An unofficial legislative committee will meet in two weeks to figure out the future of the state’s Fair and Clean Elections program, the status of which is in serious jeopardy.
The bill renewing the program, which was tested as a pilot project in 2005 and 2007, was pulled from consideration in June after both the programs’ backers and detractors raised concerns about the new legislation.
Last month it was dealt an even more serious setback, when the U.S. Supreme Court, in Davis v. Federal Election Commission, struck down the federal Millionaire’s Amendment, which allows out-funded candidates more leeway with campaign contribution limits. At the request of Assembly Democrats, the non-partisan Office of Legislative Services (OLS) wrote an opinion stating that the Clean Elections program’s “rescue funds” – meant to give a boost to candidates facing attacks from an outside group or a well-funded opponent who opted out of the program – would likely be ruled unconstitutional under the Supreme Court precedent.
“Speaker Roberts remains committed to Clean Elections but concedes the Supreme Court’s ruling is a major setback. The Speaker is reconvening the legislative working group later this month to explore possible ways over the roadblock created by the Court,” said Assembly Democratic Spokesman Derek Roseman in a statement. “We are disappointed that the Supreme Court in Washington has threatened such a promising program to clean up government in New Jersey.”
Coincidentally, the majority opinion in the 5-4 Supreme Court decision was written by Justice Samuel Alito, who grew up in Hamilton, which dominates today’s 14th Legislative District — the centerpiece of the Clean Elections program last year.
State Sen. Bill Baroni (R-Hamilton), who won that election and is perhaps the most high profile champion of Clean Elections, said that a challenge to the constitutionality of rescue funds poses the biggest threat to the program. Candidates are only likely to participate if they have an assurance of something at least resembling a level playing field. If the provision for rescue funds is eliminated, none will want to risk opting in faced with the potential onslaught from a wealthy opponent or 501(c)4 organization.
“It would be very difficult to convince candidates to do it without rescue money,” said Baroni.
Those rescue funds were used last year by a member of a slate opposed to Baroni’s. Assemblywoman Linda Greenstein (D-Plainsboro), faced with a radio and print onslaught by a 501(c)4 group called Common Sense America, was given $100,000 on top of the $535,000 in Clean Elections money she already had to fight back.
With that in mind, Baroni said, he and the other legislators on the committee will work carefully and utilize the best legal minds at their disposal.
“I would say it is all but certain that, were we to pass something, it would likely be challenged constitutionally, so we need to make sure that whatever we do, it will pass constitutional muster,” said Baroni.
Some proponents of the program argue that the OLS’s opinion was conservatively and cautiously written, and note that other states are pressing forward with their own similar programs undaunted by the Supreme Court decision.
In Connecticut, 70% of the state’s Assembly candidates are expected to participate in the Citizens’ Election Program, which is similar to the one in New Jersey, according to an Associated Press article from last month. Connecticut’s program also includes provisions for rescue funds.
“As far as Clean Elections is concerned, it seems to me that the Davis decision applies to individual candidates, not to programs,” said Ingrid Reed, director of the Eagleton Institute’s New Jersey Project, and a supporter of the program
But Clean Elections also faces ideological hurtles from conservatives who don’t like the idea of the government funding political campaigns and fiscal pressure from legislators who doubt that the state’s dire financial status warrants spending hundreds of thousands of dollars more on the program.
Proponents argue, however, that the program will ultimately save the state much more money by lessening pork barrel spending brought about by special interest donations.
Assemblywoman Allison Littell-McHose (R-Franklin), who reluctantly took part in the program last year, favors getting rid of it altogether.
“I think that the Supreme Court decision confirms what I’ve been saying all along: that this program was flawed from the beginning,” she said. “I think we need to scrap it, and at this point we don’t have the money in the state of New Jersey to operate a program like this. It’s not the time for it, and I think we need to more carefully study other states who have more carefully switched over to these other systems.”
Whatever the committee hammers out later this month, there will likely be drastic changes to the program. The bill that was withdrawn expanded the pilot program to eight districts, and included primaries. The amount given to the candidates was also cut back significantly to $150,000 for both the primary and general elections – too drastic for some of the program’s supporters.
State Sen. Loretta Weinberg (D-Teaneck), who had the unique situation last year of receiving Clean Elections funds while her Republican opponent failed to qualify, was not optimistic about the future of the program. The paperwork, for instance, was far too cumbersome.
Weinberg, who sits on the Clean Elections legislative committee, also said that a giant loophole needs to be closed. If candidates haven’t used all their money by the time the election is over, they have to return it to the state. But in between election seasons, politicians go back to receiving money from the special interests that the program seeks to eliminate.
“Our campaign accounts are used for tickets to dinners and all the things one has to do as an elected official. So that dichotomy has not been worked out,” she said.
Moreover, Weinberg said, the program is likely to never work without a wholesale, drastic change. Rather than working a voluntary program, Weinberg thinks that for it to achieve its stated purpose of weeding out special interest money, it should eventually be mandatory for all 40 legislative districts.
“Whatever we design, someone finds a loophole around it,” she said. “As I point out to people, banks have big safes in them and somebody finds a way to rob them anyway.”