AUGUSTA — The LePage administration on Thursday said it's standing neutral as the state's ethics commission begins work conforming Maine's clean elections law following a recent U.S. Supreme Court decision against states awarding public money to candidates facing well-heeled opponents.
However, Dan Billings, chief legal counsel for the administration, said the high court's decision should signal the end of the clean elections law for gubernatorial candidates. Billings also recommended that the commission consider waiting until after the 2012 election to make changes to the law for legislative candidates.
Billings said any steps to conform Maine's law with the court decision could change the rules of the game during campaign season.
But critics say the rules have already changed following the U.S. Supreme Court's 5-4 decision to strike down a key provision of Arizona's clean elections law, a law modeled after Maine's system.
In a 5-4 ruling, the court's conservative majority sided with plaintiffs who argued that Arizona's matching funds provision violated the First Amendment. The majority said that wealthy campaign contributors could be reluctant to donate if they knew their money could be matched by a candidate backed by public dollars.
The First Amendment argument was set up by the court's landmark "Citizens United" decision in 2009, another ideologically divided ruling that removed federal spending caps on businesses and unions. The court's majority ruled that campaign donations were the equivalent of free speech, thereby setting legal precedent that limits government's ability to level the playing field in elections.
The Legislature had anticipated the decision and charged the Commission on Governmental Ethics and Election Practices with finding ways to amend the state's law to deal with the absence of matching funds. The commission is expected to present its recommendations and to propose legislation for the next legislative session.
The commission is considering three alternative models to deal with the decision.
But Billings said it may be best to do nothing and allow the results of the 2012 election to shape future policy.
Billings added that the court decision cast more doubt on the viability of gubernatorial candidates participating in clean elections.
Opponents of the law frequently note that publicly funded candidates have been unsuccessful in winning the Blaine House since the Clean Elections Act was implemented in 2000, yet publicly funded candidates draw about half of the money from the system.
This year, the Legislature carried over a bill that would have repealed gubernatorial candidates' ability to participate in the publicly funded system.
In 2010, the state paid a total of $6.3 million to clean election candidates and close to $3 million to gubernatorial candidates. Of the $3.3 million spent on legislative candidates, less than $800,000 went to matching funds.
Matching funds are triggered when a privately financed candidate receives large donations from a contributor or political action committee. While the system is designed to level the playing field, wealthy outside groups have found ways to circumvent it.
Last year, the Virginia-based Republican State Leadership Committee spent $400,000 on a handful of close state legislative races. The PAC reported the expenditure late and the candidates targeted claimed they didn't receive their matching funds in time to respond to the committee's attack ads.
Proponents of the state's clean elections law acknowledge such flaws. They also say the high court decision on matching funds will make it difficult to attract new, less wealthy candidates.
In the absence of matching funds, individuals with the Maine Citizens for Clean Elections hope the commission can find a way to make sure races don't tilt toward incumbents or wealthy candidates.
Representatives of Maine Citizens for Clean Elections said the Supreme Court decision was a significant blow to the system, which was overwhelmingly approved by voters in 1996.
The system is highly utilized by legislative candidates, nearly 80 percent of whom have participated over the past four years.
Billings said that level of participation shouldn't be confused with popularity, especially among Republicans.
"A lot of people in my party aren't comfortable with taking taxpayer money to run their campaigns, but they do it for pragmatic reasons," he said.
The Legislature this year overwhelmingly rejected legislation to repeal the Maine Clean Elections Act.
The House voted 112-33 against repeal. Fifteen of the Republican representatives who favored repeal ran as clean election candidates in 2010.
Opponents of the law say it does little to decrease campaign spending.
The Legislature will decide whether gubernatorial candidates can participate in clean elections. Regardless of what happens, privately financed candidates will be allowed to spend more than they did in 2010.
This session, the Legislature passed a bill that doubles the individual, private campaign contribution limit for gubernatorial candidates, from $750 to $1,500.
Critics say the bill will increase the role of special-interest money and corporate influence in the next governor's race and will immediately benefit the incumbent, Gov. Paul LePage.