Nebraska AG predicts state campaign finance laws to be overturned if challenged

[JURIST] Nebraska Attorney General Jon Bruning [official website] on Wednesday issued an advisory opinion [text, PDF] drawing marked parallels between the state's campaign finance laws and portions of similar Arizona regulations that were recently overturned [JURIST report] by the US Supreme Court [official website]. Under Nebraska law, candidates for certain public offices may voluntarily accept additional oversight in exchange for public financing [Neb Rev Stat § 1604], the levels of which may vary depending on the expenditures of privately-financed opponents. Additionally, no candidates may accept contributions from certain independent entities, including corporations, unions and professional organizations, that in aggregate total more than 50 percent of defined spending limitations [Neb Rev Stat § 1608]. Bruning's opinion predicts that, in light of the recent Arizona decision, these provisions would be overturned if evaluated by the Supreme Court on a strict scrutiny basis for failing to demonstrate a sufficiently overriding state interest. The Nebraska Accountability and Disclosure Commission [official website] is scheduled to meet next week to consider the opinion and potential remedies [AP report] that may be implemented prior to the upcoming election cycle.

In June, the Supreme Court ruled [opinion, PDF] in Arizona Free Enterprise Club's Freedom Club PAC v. Bennett [Cornell LII backgrounder] that an Arizona campaign finance regulation that provided publicly financed candidates with additional government subsidies, triggered by independent expenditure groups' speech against such candidates or by the candidates' privately financed opponents, violates the First Amendment [text]. The court held 5-4 that such a system substantially burdens political speech and is not sufficiently justified by a compelling state interest to satisfy the First Amendment. Counsel for the respondent argued that "public funding of elections results in more speech and more electoral competition" and furthers a governmental interest of staving off "real and apparent corruption in politics."

 

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