AZ's Constitutional Problem with Public Financing Spreads to NE

Nebraska's public financing scheme for campaigns, honestly titled the Campaign Finance Limitation Act, may fall to the same fate as the Arizona scheme invalidated in Arizona Free Enterprise Club's Freedom Club PAC v Bennett, 131 S. Ct. 2806 (2011) (The Arizona legislature, rather less ingenuous than their Nebraska colleagues, title their scheme the Arizona Citizens Clean Election Act. Ariz. Rev. Stat. §16-940 et seq.)

Nebraska Attorney General Jon Bruning, responding to a request from Nebraska's campaign finance regulators, issued an opinion yesterday (Neb. Att'y Gen. Office Op. 11003) suggesting that a court considering the Nebraska statute (Neb. Rev. Stat. §§ 32-1601 to 32-1613) would likely invalidate it for the same reasons the Supreme Court found Arizona's statute unconstitutional. Applying strict scrutiny to an encumbrance on a candidate's free speech rights, the Supreme Court did not find a compelling state interest to justify the statute's scheme of providing a publicly-financed campaign with funds equal to that spent by its non-publicly-financed opponent. The Court found neither preventing corruption or leveling the electoral playing field sufficiently compelling to justify the scheme.

While Nebraska's scheme is substantially less generous than Arizona's, which provides public financing from the outset of a campaign, the Nebraska scheme does have a similar provision that applies once the non-publicly-financed campaign reaches a set spending level. General Bruning found the rationale in Bennett turned on this portion of the financing scheme, so found no reason to believe that a court would reach a different outcome in considering Nebraska's statute.

Additionally, General Bruning found that the aggregate contribution limits in Nebraska's statute would fall along with the public financing provisions because a court would likely find that the two provisions are not severable under Nebraska's statutory construction rules. The provisions were enacted together and based on the legislative history it appears that one would not have passed without the other.

Check out local coverage of the opinion in the Omaha World-Herald.

General Bruning is also a candidate for U.S. Senate. Check out his campaign website here.

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