In All Fairness: Using Political Broadcast Access Doctrine to Tailor Public Campaign Fund Matching

Abstract

Recent United States Supreme Court decisions have undermined the viability of campaign public financing systems, a vital tool for fighting political corruption. First, Citizens United v. FEC allowed privately financed candidates and independent groups to spend unlimited amounts of money on campaigning. Publicly financed candidates now risk being vastly outspent. Second, Arizona Free Enterprise Club’s Freedom PAC v. Bennett invalidated a proportional fund matching system whereby privately financed candidates’ or independent groups’ spending triggered funds to publicly funded candidates. These decisions effectuate a libertarian speech doctrine: all speakers, individual or corporate, must be absolutely unburdened. To comply with this approach, public financing must be tailored to reduce its monetary correlation with, and corresponding burden on, privately funded speech. This Article proposes matching broadcast advertising access costs as a measured solution. The proposed system does not burden privately funded speech, and it increases media availability: if a privately financed candidate or independent group purchases advertising time, the publicly financed candidate is provided funds to purchase equivalent time. Matching access costs reduces any burden on speakers while importing First Amendment jurisprudence and telecommunications law to support the constitutionality of this system. These laws recognize the First Amendment rights of the electorate, the problem of political advertising market saturation, and the values of an informed citizenry. Essential for democracy is an informed, engaged, and participating citizenry. Matching broadcast access costs increases available information, comports with the