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Lack of key provision could sink new public campaign finance plan in court 

Dec 3, 2019

Earlier this week, the state’s public campaign finance commission issued a plan to allow candidates for state offices to receive public matching grants for some campaign donations under $250.

But advocates worry that the final report left out a key legal clause -- and that could jettison the entire program if any one part of it is successfully challenged in court.

It’s called a severability clause, and it’s often included to protect a new law from court challenges.

Chisun Lee, who is senior counsel at the Brennan Center for Justice at New York University, said in layman’s terms, it means that if one part of a new statute is successfully challenged and struck down in court, then the rest of the law still stands.

“It’s a standard, boilerplate piece of the legislation,” she said.

But Lee said even though the commission, in its final meeting on Nov. 25, voted to include the provision, she was surprised to see that it was left out of the final report.

“We’re very concerned about that,” Lee said.

The commission’s recommendations include a public matching fund program for the races for governor, lieutenant governor, attorney general, comptroller and Senate and Assembly seats, which Lee said is an “enormous step forward.”

But the commission also imposed tougher requirements for minor parties to qualify to be on the ballot. Instead of 50,000 votes on the statewide ballot every four years, they would be required to win 130,000 votes every two years.

The Working Families and Conservative parties are challenging the new ballot access requirements in court. Arguments will be heard Dec. 12.

Lee said those challenges may have a chance of success. She said while the public campaign finance program was based on extensive data, including studies done by the Brennan Center, the new rules for minor parties to qualify for the ballot are on shakier ground.

“Some of those decisions came so late in the process and were such dramatic departures from today’s rules,” Lee said. “We’re really troubled by the lack of a basis (for the changes).”

Assembly Speaker Carl Heastie has two appointees on the nine-member commission; both voted in favor of the final recommendations. Heastie, at the Capitol for a pre-2020 session conference with his Democratic members, said there’s a reason why all the commission’s recommendations should stand or fall together.

He said with $100 million of taxpayer money being spent on public campaign financing, there needs to be more proof that a political party is credible and deserving of public funds.

“That you don’t make it so easy for people to access funds,” Heastie said.

Heastie gave the example of a candidate who loses a primary, then creates a new party line just to get public money.

 

Governor Cuomo, speaking to reporters in Buffalo, says the plan devised by the commission makes “historic changes”.

“It’s probably, in my lifetime, the most aggressive, positive reform of money in politics,” Cuomo said.

And Cuomo agrees that all of the provisions, including the stiffer requirements for third parties, need to remain all together in order for the entire plan to work.

“You can’t just pick and choose,” Cuomo said.

 

The State Legislature has a chance in the next three weeks to make changes to the commission’s recommendations before they take effect.

Lee said the Legislature should take this opportunity to amend them and include the severability clause.

Heastie said lawmakers have not yet decided whether they will do so.

“It’s hard for me to predict,” said Heastie, who said his Democratic members have some minor complaints about the commission’s recommendations but might not want to see the perfect become the enemy of the good.

“It’s a wait-and-see approach,” he said.

Senate Leader Andrea Stewart-Cousins, in an interview with public radio and television, has said that even if the commission’s recommendations become law at the end of the month, the Legislature can still change them next year, since the public campaign financing system would not take effect for several years.

Not all advocacy groups are pleased with the commission’s plan for a public funded campaign finance system.

The Fair Elections Coalition, made up of over 200 groups, has written a letter to the governor and legislative leaders, asking them to return to Albany before Dec. 22 and lower the maximum contribution rates allowed, including $18,000 for the governor’s race. The coalition also wants the governor and Legislature to scrap the stricter requirements for ballot access for minor parties, and to allow the new plan to take effect in 2022, instead of 2024 for legislative races and 2026 for statewide seats.