Earlier this week, New York’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 to the Brennan Center for Justice at New York University, says 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 says even though the commission, in its final meeting on November 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 and comptroller, and the Senate and Assembly that Lee says is an “enormous step forward."
But the commission also imposes 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 Party and the Conservative Party are challenging the new ballot access requirements in court. Arguments will be heard December 12.
Lee says those challenges may have a chance of success. She says 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,” said Lee. “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, who both voted in favor of the final recommendations. Heastie, at the Capitol for a pre-2020 session conference with his Democratic members Tuesday, said there’s a reason why all the commission’s recommendations should stand or fall together. He says 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 gives the example of a candidate who loses a primary then creates a new party line just to get public money.
The legislature has a chance in the next three weeks to make changes to the commission’s recommendations before they take effect.
Lee, with the Brennan Center, says the legislature should take this opportunity to amend them, and include the severability clause.
Heastie says lawmakers have not yet decided whether they will do so.
“It’s hard for me to predict,” said Heastie, who says 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.
Democratic Governor Andrew 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 together in order for the entire plan to work.
“You can’t just pick and choose,” Cuomo 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 commissions’ plan for a public funded campaign finance system. The Fair Elections Coalition, made up of over 200 groups, has written a letter to the says the governor and legislative leaders, asking them to return to Albany before December 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.