In 2005, the Portland City Council created a public financing program for candidates for City offices, the Campaign Finance Fund (“CFF”). It allows publicly funded campaigns for Mayor, City Commissioner, and Auditor candidates. When the program was created the Mayor and Council pledged they would refer the program to voters in 2010. That vote will happen in November.
The ACLU strongly supports public financing of candidate election campaigns as a way to address the financial barriers in mounting a race for elected office and to counter the influence of wealthy special interests in elections. The Portland CFF is administered by the Auditor and allows eligible candidates to seek certification to receive public funds for the primary, general and special elections by collecting a required number of $5.00 qualifying contributions for Portland residents. Upon certification, public funds are available as follows – in the primary: $200,000 for Mayor, $150,000 for Commissioner and Auditor; in the general: $250,000 for Mayor, $200,000 for Commissioner and Auditor. The ordinance also requires more frequent campaign disclosure requirements for both participating and non-participating candidates.
In evaluating public financing proposals and laws, the ACLU looks to see that the following criteria are met: that public funds are available to all legally qualified candidates; that the program provides a floor for campaign expenditures in an amount sufficient to mount an effective and competitive campaign; and that it avoids intrusive or inequitable government regulation, burdensome record keeping and discrimination in distribution of funds.
The Portland CFF meets all of those requirements. However, Portland has a matching fund mechanism that runs afoul of ACLU policy. Specifically, in discussing adjustment mechanisms (allocating additional funds to a participating candidate when other candidates spend more than a certain threshold), the ACLU supports such adjustment mechanisms only when the overall result does not interfere with the voluntary nature of the candidate’s choice to participate in the public finance system. Specifically, we believe that matching funds should not have the effect of regulating independent speakers who do not coordinate with candidates. ACLU therefore opposes adjustment mechanisms triggered by independent, non-candidate expenditures.
The Portland CFF sets forth different scenarios when matching funds (adjusted financial thresholds) will occur. This includes a number of situations when the trigger for increased funding is based solely on independent expenditures. Independent expenditures are defined in the Portland Ordinance as “any expenditure…that is not made with the cooperation or with the prior consent of, or in consultation with, or at the request or suggestion of, a Candidate or any agent or authorized committee of the Candidate.” Persons or political committees making independent expenditures over $1,000 must file notice to the Auditor.
As way to illustrate our concern, if an anti-choice CFF candidate were running against a pro-choice non-CFF candidate and a pro-choice advocacy group, completely independent of the pro-choice non-CFF candidate, were to make expenditures in support of that candidate (for example, advertising its support for all pro-choice endorsed candidates), the anti-choice candidate could receive additional government matching funds because of the pro-choice advocacy group’s actions. The result would be that speech by advocacy organizations, operating completely independent of the candidates, would trigger additional public funds going to the candidate they oppose.
If Measure 26-108 is approved by voters, we will ask the City Council to amend this part of the CFF. Indeed, the U.S. Supreme Court currently has a case that may require Portland to change the matching fund provisions, depending on how the Court rules next term.
Still, the ACLU believes the Portland public financing program is very important to preserve and we urge your YES vote, even as we note the program’s one flaw that should be fixed.
