The plaintiffs — candidates for the Maine House and Senate,campaign contributors, political action committees ("PACs") andthe Maine Libertarian Party — challenge the constitutionality ofthe Maine Clean Election Act, 21-A M.R.S.A. § 1121 et. seq. (WestSupp. 1998). Maine citizens voted this measure into law as avoter initiative in the fall of 1996 after the Maine legislaturedeclined to enact it. It makes public funding available tocandidates running for state elective offices (House, Senate,Governor) beginning in the year 2000 if they choose toparticipate in the program and accept its limitations. Although Ido not rule at this time on the constitutionality of itscontribution cap reductions for donations to nonparticipatingcandidates, I find the rest of the statute constitutional.
These are the particulars: Candidates who want state fundingfirst collect "seed money contributions" from the public at nomore than $100 per contributor.1 See § 1122(9). Candidatescan use this seed money to seek out the necessary number of"qualifying contributions," separate $5 contributions to theMaine Clean Election Fund in checks or money orders fromregistered voters. See § 1122(7). Candidates seeking a seat inthe Senate and House of Representatives must collect 150 and 50of these "qualifying contributions," respectively. See §1125(3). Candidates must, before or during the qualifying period,"file a declaration of intent to seek certification as a MaineClean Election Act candidate and to comply with the [Act's]requirements." § 1125(1).
Once certified by the Commission on Governmental Ethics onElection Practices (the "Commission") as a Maine Clean ElectionAct candidate, see § 1125(5), the candidate must transfer allunspent seed money to the state fund, must limit campaignspending to the amount the candidate receives from the state, andmust not accept any more private contributions. See § 1125(5)-(6).There are civil and criminal penalties for violating theserules. See § 1127. The state, in turn, provides public funds forthe certified candidate's campaign in a sum equal to the averageamount spent in the previous two election cycles in a similarkind of election (i.e., by office and type of election, generalor primary, contested or uncontested).2 See§ 1125(7)-(8). If a privately funded opponent receives or spendsmore than the certified candidate receives from the Commission,the Commission issues the certified candidate a dollar-for-dollarmatch of the overage up to total state funding of no more thantwice the original distribution. See § 1125(9). To implement thismatching provision, the statute requires privately fundedcandidates to notify the state when they receive or spend over 1%more than what the certified candidate originally received fromthe state. See § 1017(3-B). Independent expenditures made byothers on behalf of nonparticipating candidates also count aspart of the calculation. See § 1125(9).
The plaintiffs charge overall that the Maine Clean Election Actis unconstitutional because it unfairly coerces candidates toparticipate in the public funding program. In particular, theplaintiffs claim that it penalizes candidates who choose not toopt into the public funding program by certifying their publiclyfunded opponents as "clean." Moreover, the plaintiffs claim thatthe matching funds mechanism of the statute has the effect ofpunishing non-certified candidates for spending money on theircampaigns, that it is improperly keyed to receipts rather thanspending, and that it requires excessive reporting by privatelyfunded candidates. They also complain that independentexpenditures spent in support of privately funded candidates orin opposition to certified candidates can trigger increases inthe amounts of public funds available to certified candidates,even though the privately funded candidates have nothing to dowith the expenditure of independent funds on their behalf. Theyargue that this last provision — together with a longstandingprovision requiring reports of any independent expenditure over$50 — "burdens" those who make independent expenditures. Inaddition, they challenge the public funding of primary electionson the ground that the extra money for an opponent is doublyunfair to independent candidates who do not run in a primary.Finally, they claim that the public funding formula is whollyinadequate for any competitive campaign and that it will "starve"the candidates in such campaigns.3
A. PUBLIC FUNDING IN GENERAL
First, I start with the assumption that public financing ofelectoral campaigns is constitutional. Buckley v. Valeoestablished that proposition: "Congress may engage in publicfinancing of election campaigns and may condition acceptance ofpublic funds on an agreement by the candidate to abide byspecified expenditure limitations." 424 U.S. 1, 57 a. 65, 96S.Ct. 612, 46 L.Ed.2d 659. Accord Republican Nat'l Comm. v. FEC,487 F. Supp. 280, 284 (S.D.N.Y.) (three-judge panel), aff'd,445 U.S. 955, 100 S.Ct. 1639, 64 L.Ed.2d 231 (1980) (Mem.). Far frombeing a threat to First Amendment values, such measures are an"effort, not to abridge, restrict, or censor speech, but ratherto use public money to facilitate and enlarge discussion andparticipation in the electoral process, goals vital to aself-governing people." Buckley, 424 U.S. at 92-93, 96S.Ct. 612. Such legislation "furthers, not abridges, pertinentFirst Amendment values." Id. at 93, 96 S.Ct. 612. It is thereforeundeniable that public funding of election speech is consistentwith the First Amendment.
Second, the Court of Appeals for this Circuit has recognizedexplicitly that a State may, without violating the Constitution,provide incentives to persuade candidates to use public fundingand reduce their dependence on private contributions. See VoteChoice, Inc. v. DiStefano, 4 F.3d 26, 88 (1st Cir. 1993) ("[t]heSupreme Court has upheld a very direct and tangible incentive:the provision of public funds to candidates who agree to placedecreased reliance on private campaign contributions."). TheConstitution does not require a State to be neutral on thissubject, id. at 39; state legislation may actively favor publicfinancing.
What state legislation may not do is eliminate altogether acandidate's voluntary choice in deciding whether to fund his/herelection with private contributions or with public funding.Voluntariness is "an important factor in judicial ratification ofgovernment-sponsored campaign financing schemes." Id. at 38."Coerced compliance" can be fatal; incentives might go too far.Id. According to the First Circuit, there "is a point at whichregulatory incentives stray beyond the pale, creating disparitiesso profound that they become impermissibly coercive." Id. at38.4
The Maine Clean Election Act passes the voluntariness test. Itis a public financing mechanism that provides incentives tocandidates to make the public financing route attractive, but theincentives hardly are overwhelming or of an order that can besaid to create profound disparities. The initial funding ismodest, and the publicly funded candidate cannot raise or spendprivate money. If a privately funded candidate spends or receivesmore money than his/her publicly funded opponent received in theinitial distribution, the Commission disburses to the publiclyfunded candidate a dollar-for-dollar match, but with a ceiling(twice the distribution) on how much the publicly fundedcandidate can receive in total public funds. Similar provisionshave been upheld elsewhere. See Gable v. Patton, 142 F.3d 940(6th Cir. 1998) (approving Kentucky's 2-for-1 matchingprovision); Rosenstiel v. Rodriguez, 101 F.3d 1544 (8th Cir.1996) (approving Minnesota's 50% distribution rule), cert.denied, 520 U.S. 1229, 117 S.Ct. 1820, 137 L.Ed.2d 1028 (1997).There are burdens as well — the seed money contribution islimited to $100 per contributor and the candidate must raise asignificant number of $5 qualifying contributions. TheConstitution does not require that the choice of fundingmechanism for a candidate be "in exact balance — we suspect thatvery few campaign financing schemes ever achieve perfectequipoise," Vote Choice, 4 F.3d at 39. In fact, Maine's programpresents a real choice, not a preordained decision, for acandidate.
I turn now to individual components of the legislation that theplaintiffs attack.
The seemingly most petty dispute about the statute isironically perhaps the most troubling. The statute requires theCommission to certify those who qualify as "a Maine CleanElection Act candidate." 21-A M.R.S.A. § 1125(5). The plaintiffsfear that the consequence will be a labeling of publicly fundedcandidates as "clean" candidates and privately funded candidatesas "unclean" candidates. The terminology has obvious OldTestament overtones. The Commission apparently has had somediscomfort of its own and has sought to defuse the issue. In hisaffidavit, William Hain, the Commission's Executive Director,explained that candidates who have met the prerequisites "will be`certified' by the Commission as eligible to receive publicfunding. The Commission will refer to such candidates thereafteras `certified' candidates." Hain Dep., Vol. I, June 1, 1999, ¶6.
A state must tread carefully in labeling candidates. To besure, there is a traditional role in identifying candidates withtraditional labels such as party affiliation. See League of WomenVoters v. Gwadosky, 966 F. Supp. 52, 62 (D.Me. 1997). But all theMaine Clean Election Act really needed to do here to satisfy itslegitimate objectives was to provide that the Commission woulddetermine whether a candidate qualified for public funding.Certification and labeling are superfluous. Given theCommission's announcement of how it plans to proceed, however, Ido not find this provision of the statute unconstitutional. Whatcandidates choose to call themselves or their opponents is beyondstate control; they can use pejorative and complimentary labelsirrespective of the statute.
C. MATCHING FUNDS
(1) "Punishment" of First Amendment Activities
The plaintiffs complain most vociferously about the matchingfunds provision of the statute. That provision increases thepublic funding of a candidate to match his/her privately fundedopponent up to a cap of twice the initial distribution once theprivately funded opponent raises or spends an amount equal to101% of the initial state distribution. The plaintiffs claim thatthis is a direct infringement of their First Amendment rights ofspeech and advocacy in an election. Their argument is that thethreat of additional public funding for an opponent is a directdeterrent to raising or spending money for the privately fundedcandidate. Why should I advertise my candidacy, they say, if myopponent will be afforded the same opportunity?
It is here perhaps that there is the most profound disconnectbetween First Amendment jurisprudence, based upon thelate-eighteenth century values reflected in the First Amendment, andwhat are assumed to be the political realities of late-twentiethcentury campaigning. To be specific, the plaintiffs want topreserve the ability to "out spend" their publicly-financedopponents. Their view of free speech is that there is no point inspeaking if your opponent gets to be heard as well. The questionis not whose message is more persuasive, but whose message willbe heard. The general premise of the First Amendment asinterpreted by the Supreme Court, on the other hand, is that itpreserves and fosters a marketplace of ideas. See, e.g., CitizensAgainst Rent Control v. City of Berkeley, 454 U.s. 290, 295, 102S.Ct. 434, 70 L.Ed.2d 492 (1981). The image is one of candidatesvoicing their positions and competing on the inherent worth oftheir character and positions, and voters choosing accordingly.In that view of the world, more speech is better. If a privatelyfunded candidate puts out his/her candidacy and ideas to thepublic, the public can only gain when the opposing candidatespeaks in return. This "marketplace of ideas" metaphor does notrecognize a disincentive to speak in the first place merelybecause some other person may speak as well.
In more conventional First Amendment language, the plaintiffs'argument is that a matching fund program limits First Amendmentrights as follows: When a privately funded candidate speaks outin the First Amendment marketplace, the State unconstitutionallyenters the marketplace and offsets the privately fundedcandidate's voice by providing money for the publicly fundedopponent to raise his/her voice in response. That, the plaintiffssay, is not content-neutral, but results in theState unconstitutionally taking sides in the First Amendmentmarketplace.5
The plaintiffs' argument proves too much. The Supreme Court hasalready upheld public funding subsidies of election candidates asfurthering First Amendment values. Such programs are an "effort,not to abridge, restrict, or censor speech, but rather to usepublic money to facilitate and enlarge discussion andparticipation in the electoral process, goals vital to aself-governing people." Buckley, 424 U.S. at 92-93, 96 S.Ct. 612. They"further, not abridge, pertinent First Amendment values." Id.at 93, 96 S.Ct. 612. As the Court noted, "[o]ur statute hooks arereplete with laws providing financial assistance to the exerciseof free speech, such as aid to public broadcasting and otherforms of educational media, and preferential postal rates andantitrust exemptions for newspapers." 424 U.S. at 93 n. 127, 96S.Ct. 612 (citations omitted). The test for constitutionality ofcandidate public funding mechanisms in this Circuit and elsewhereis whether the decision for a candidate to participate in apublic funding scheme remains essentially voluntary. See VoteChoice, 4 F.3d at 38; Rosenstiel, 101 F.3d at 1549-53; Gable, 142F.3d at 948. There is nothing unfair, and no profound disparity,in Maine's decision to make the public funding equivalent to thatwhich a privately funded candidate may raise, see Gable, 142 F.3dat 949 (supporting a 2-for-1 match), particularly when the publicfunding has a modest cap. Consequently, I reject the plaintiffs'contention that the matching fund provision infringes on theplaintiffs' First Amendment rights.
(2) Receipts vs. Spending
The plaintiffs argue that it is unfair to tie the publicfunding match to amounts the privately funded candidates raise,rather than limit it to amounts they spend. They point out thatnot every dollar a candidate raises is necessarily spent in theelection; instead, some of these amounts may be used bylegislative leadership for distribution to other candidates, orspent after the election on supplementing the modest constituentallowance, funding future campaigns, or retiring debt. Were theState not to tie the match to receipts as well as expenditures,however, a privately funded candidate would be able to amass awar chest, then spend it all in the last day or two before theelection without an opportunity for the publicly funded candidateto obtain his/her matching funds and spend them effectively. Toavoid this type of gamesmanship, measuring the match by receiptsas well as expenditures is a legitimate approach for thelegislation to take. The privately funded candidate who does notneed extra receipts can simply defer them and thereby avoidhaving his/her publicly funded opponent obtain more money.
(3) Excessive Reporting
All candidates for State Senator and State Representative,whether privately or publicly financed, must file a regularreport six days before election day itemizing contributions madeto, and all expenditures made or authorized by, the candidate,sec. 1017(3-A)(A)-(B); and, during the last 12 days before theelection (until 48 hours before the end of the election), reportsof individual contributions and expenditures over $1,000 within48 hours of the respective contribution or expenditure. See 21-AM.R.S.A. 1017(3-A)(C) (West 1993). Under subsection 1017(5), allreports required under section 1017 "must contain the itemizedaccounts of contributions received . . . including the date acontribution was received, and the name, address, occupation,principal place of business, if any, and the amount of thecontribution of each person who has made a contributionaggregating in excess of $50." Additionally, all reports "mustcontain the itemized expenditures made or authorized during thereport filing period, the date and purpose of each expenditureand the name of each payee and creditor." See § 1017(5). Theplaintiffs do not challenge these requirements.
What the plaintiffs do challenge is subsection 1017(3-B), theaccelerated reporting provision that voters enacted along withthe Maine Clean Election Act, and the regulations the Commissionhas adopted for additional reporting. Subsection 3-B empowers theCommission to establish by rule an expedited reporting scheduleapplicable to candidates who receive, spend, or obligate morethan one percent of the funds initially distributed to theircertified opponent. See id. The Commission requires thesecandidates to submit three or more additional reports. SeeCommission on Governmental Ethics and Election Practices, Rule toImplement the Maine Clean Election Act and Related Provisions,94-270(1998), ch. 1, § 7. The first such report, the "101percent" report, is one required by the express language ofsubsection 1017(3-B); when a non-certified candidate reaches the101 percent mark, he or she must report to the Commission. Seeid. § 7(2). The second and third reports update the 101 percentreport; candidates must file these 21 days and 12 days prior tothe election. See id. § 7(3)-(4). Finally, non-certifiedcandidates must submit their own "48-hour" report in addition tothe "48-hour" report required of all candidates. See id. § 7(5).This report informs the Commission of "single expendituresof . . . $750 by candidates for State Senator, and $500 bycandidates for State Representative made after the 12th daybefore any election and more than 48 hours before 5 p.m. on thedate of that election." Id. The report is due within 48 hours ofthe expenditure. See id. Thus, a publicly funded candidate for,say, State Senate must file a regular report and, depending onexpenditures, one or more regular 48-hour reports. Thenon-certified opponent must file a regular report and, depending oncontributions and expenditures, a regular 48-hour report, and ifhe/she exceeds the State funding distribution, a 101 percentreport, two updated 101 percent reports, and again, depending oncontributions and expenditures, one or more non-certifiedcandidate's 48-hour reports. The plaintiffs complain that thesereporting requirements are coercive and that no candidate couldrationally choose to forego public funding and undertake thisburdensome reporting scheme.
If the matching provision is to work, clearly some reportingmechanism is required. The issue is whether the statute, asinterpreted by the Commission, goes too far — so as to removethe voluntariness of the public funding choice because privatelyfunded campaigns have been made too onerous; or because themeasures intrude on First Amendment rights and are not narrowlytailored to compelling governmental interests.
The State's only legitimate interest in requiring theadditional reports from privately funded candidates is to keeptrack of their funding so that the matching mechanism will work.All the Commission needs to know in the additional reports,therefore, are the total contributions and expenditures. Thestatute seems to recognize this in ordering a report as to the"candidate's total campaign contributions, obligations andexpenditures to date."621-A M.R.S.A. § 1017(3-B). Indeed, seeking more detail than thatwould give the publicly funded candidate an unfair tacticaladvantage of being able to perceive exactly how his/her opponentis spending campaign monies. So far as enforcing other provisionsof the campaign financing law is concerned, the State has nogreater interest in expedited reports from privately fundedcandidates than it does for publicly funded candidates; anynecessary detailed reporting can occur after the election.Furthermore, if a privately funded candidate exceeds double thestate funding formula, the match ceases to operate and the Stateno longer has an interest in the expedited disclosures.
It is my obligation to interpret the statute, if it reasonablycan he read that way, to be constitutional. To require reports ofthe frequency provided here is a narrowly tailored measure tomake a compelling governmental interest — the matching provision— work, only if totals alone need to be reported and if theobligation to provide expedited reports ends once the privatelyfunded candidate exceeds double the state funding. Requiredreporting of only totals, moreover, is not so onerous as to makepublic funding an involuntary choice. The challenge to thisprovision is to the statute and regulations on their face, sinceI do not yet have their application on this subject before me.Accordingly, as I construe them, they satisfy First Amendmentconcerns.7
D. INDEPENDENT EXPENDITURES
Individual citizens sometimes decide to spend money supportingor opposing a candidate without the authorization or involvementof the candidate or his/her campaign organization. These havecome to be called "independent expenditures." In Buckley, theSupreme Court struck down a $1,000 federal limit on suchexpenditures, emphasizing that they are entitled to a high levelof First Amendment protection. 424 U.S. at 4, 51, 96 S.Ct. 612.The First Circuit has struck down a similar limit on independentexpenditures imposed by New Hampshire legislation. New HampshireRight to Life PAC v. Gardner, 99 F.3d 8, 19-20 (1st Cir. 1996).But Maine has not imposed a limit on independent expenditures,only counted them as part of the monies attributable to aprivately funded candidate when deciding whether to match thefunding. See 21-A M.R.S.A. § 1125(9). Maine has also requiredever since 1975 that any independent expenditures over $50 bereported. See 1975 Pub.L. No. 759, sec. 1, as amended andcodified at 21-A M.R.S.A. § 1019 (West Supp. 1998). Theplaintiffs attack these provisions as violating the FirstAmendment rights of both privately funded candidates and citizensor groups who want to make independent expenditures. Thecandidates contend that they cannot control these expenditures,may not want them, and may not actually benefit from them. Theplaintiffs who want to make independent expenditures complainthat the threat of a match from public funds creates adisincentive for them to exercise their First Amendment rights inthe first place.8
The reason the legislation counts the independent expenditureagainst the candidate on whose behalf it is used is obvious: suchindependent expenditures can in fact be of great assistance to acandidate andcould furnish an easy loophole to avoid the parity of thematching fund scheme if they were not counted. The Commission hasadopted the reasonable regulation that in calculating the match,independent expenditures in support of the publicly fundedcandidate will also be taken into account. See Commission onGovernmental Ethics and Election Practices, Rule to Implement theMaine Clean Election Act and Related Provisions, 94-270 (1998),ch. 1, § 6(3)(B)(2)(b).9 The overall solution is not perfect,but there is no perfect solution.10
So far as reporting of independent expenditures is concerned,the provision in question has existed since 1975, and the 1996voter referendum made only modest changes. Compare 21-A M.R.S.A.§ 1019 (West 1993) with 21-A M.R.S.A. § 1019 (West Supp. 1998).Specifically, this provision requires a report to be filed forevery independent expenditure exceeding $50, and if anexpenditure is more than $500, an itemized report must be filed.See § 1019(2) (West Supp. 1998).
In Buckley, the Supreme Court upheld the constitutionality of aprovision, section 434(e) of the Federal Election Campaign Act("FECA"), that required those making independent expendituresexceeding $100 to file a report with the federal government. See424 U.S. at 80-81, 96 S.Ct. 612. The Court, concerned about "theright of associational privacy," applied a strict scrutiny test,id. at 75, 96 S.Ct. 612, but concluded that "§ 434(e), asconstrued, bears a sufficient relationship to a substantialgovernmental interest." Id. at 80, 96 S.Ct. 612.
In upholding the constitutionality of the provision, the Courtdescribed the government's interest in this type of reportingrequirement as designed "to insure that the voters are fullyinformed and to achieve through publicity the maximum deterrenceto corruption and undue influence possible." Id. at 76, 96 S.Ct.612. Emphasizing the "informational interest," the Courtobserved that the provision "goes beyond the general disclosurerequirements to shed the light of publicity on spending that isunambiguously campaign related but would not otherwise bereported because it takes the form of independent expenditures orof contributions to an individual or group not itself required toreport the names of its contributors." Id. at 81, 96 S.Ct. 612.
Based on the Buckley analysis, I conclude that Maine'sreporting requirement is constitutional. The Maine statute, likethe FECA, requires those who make independent expendituresrelated to the express advocacy of a particular candidate toreport their expenditures. Compare 21-AM.R.S.A. § 1019 (West Supp. 1998) with 424 U.S. at 76-80, 96S.Ct. 612 (construing § 434(e)). The only difference between thetwo provisions is the expenditure threshold that triggers thereporting requirement. The FECA threshold approved in Buckley in1976 was $10011 and Maine's threshold adopted in 1975 is $50.I do not believe these differing thresholds affect the ultimateanalysis. Additionally, the FECA required extensive reportingonce that $100 threshold was surpassed, see 424 U.S. at 157-59,96 S.Ct. 612 (appendix presenting § 434(e), the reportingrequirements), while the Maine statute only requires a detailedreport after $500 have been spent in independent expenditures.See 21-A M.R.S.A. § 1019(2).
E. PUBLIC FUNDING FOR PRIMARY ELECTIONS
The plaintiffs object that independent candidates who have noprimary to run in, but simply run in the general election, areparticularly disadvantaged because their publicly fundedopponents obtain extra money deriving from the separateallocation for primaries and general elections. The premise ofthe argument seems to be that name recognition achieved in apublicly funded primary carries over to a general election andthat an independent candidate is therefore doubly prejudiced. Onthe other hand, candidates who do run in a primary election mustspend money and it would be unfair in a public funding measure toignore that necessity. The amounts distributed here are hardlyhuge,12 and I conclude that the separate allocation forprimaries is necessary to make the public financing measureeffective.
I conclude, therefore, that Maine's public financing mechanismoverall is voluntary and does not create undue disparities. Thatshould be the end of the First Amendment analysis. Buckley, 424U.S. at 92-93, 96 S.Ct. 612; Vote Choice, 4 F.3d at 39 (voluntarypublic funding supports, not abridges, First Amendment values).If it is necessary to go further, I find that the financingmechanism is narrowly tailored to compelling governmentalinterests.13 The First Circuit has recognized such interestsin a public funding measure, like Maine's, that will "facilitatecommunication with the electorate, free candidates from thepressures of fundraising, and, relatedly, tend to combatcorruption." Vote Choice, 4 F.3d at 39 (quotations and citationsomitted). The State accordingly may make public funding anattractive choice and still pass constitutional muster. Id.
The fact that this legislation came into being by way ofpetition/referendum rather than by the legislature's enacting itdoes not change the standard of review. No greater deference isdue the popular will expressed in an initiative when it is beingtested against the First Amendment. After all, the majority canintrude upon constitutional rights through direct democracy aseasily as it can through its elected representatives, SeeBerkeley, 454 U.S. at 295, 102 S.Ct. 434. But no less deferenceis due a popular initiative, either. States are entitled tochoose the methods by which law is made,14 and there is noreason to give one form greater weight than another in assessingits constitutionality under the federal constitution. I do notacceptthe proposition that legislatures are entitled to more deferencebecause they have committees that hold hearings and are able togive more deliberation to their legislative product. It is notfor the judiciary to pry into the minds of legislators todetermine whether they have voted their own self-interest or theinterest of their constituents, or both, in enacting a particularpiece of legislation; the same holds true for prying into theminds of individual voters when they vote on apetition/referendum.
I will continue to consider the constitutional challenge toMaine's reduced contribution limits for privately fundedcampaigns. See 21-A M.R.S.A. § 1015 (West Supp. 1998). Thatquestion is more difficult and the difficulty is compounded bythe fact that the Supreme Court has heard argument on a similarcase, Nixon v. Shrink Missouri Gov't PAC, 68 U.S. Law Week 3288,1999 WL 813789 (oral argument on No. 98-963 on October 5, 1999),and presumably will announce, sometime before its term ends inJune, 2000, what the new rules are for analyzing the question. Inany event, there is no reason to delay the certain appeal of mydecision upholding the constitutionality of the Maine CleanElection Act.15 All of the parties want certainty on thatissue, which can only be provided by the Court of Appeals.
Accordingly, under Fed.R.Civ.P. 54(b), I ORDER the Clerk toenter final judgment in favor of the defendants on Counts Three,Four, Five, Six, Seven, Eight, Nine and Ten of the Daggett, etal. Complaint, and on the third claim for relief in the Stearns,et al. Complaint.
1. Under 21-A M.R.S.A. § 1125(2), gubernatorial candidates arelimited to $50,000 in seed money; Senate candidates to $1,500;and House of Representatives candidates to $500.
2. This amount is reduced by 25% for the first cycle (thereason is unclear; at oral argument one of the lawyers suggestedthat it approximates the amount a certified candidate does nothave to spend on fund-raising). For the 2000 elections, theamounts for House elections are $1,141 for the primary ($511 ifuncontested) and $3,252 for the general election; for the Senate,$4,334 for the primary ($2,100 if uncontested) and $12,910 forthe general election. (See Hain Dep., June 29, 1999, Ex. 2) Forthe next governor's election (2002) the amounts are $104,713 forthe primary and $286,910 for the general election. (See MaineClean Election Fund Distribution for Governors (Draft),Stipulated R. 111.5.) Because the upcoming election does notinvolve the governor's office and because none of the plaintiffspurports to be a candidate for governor, I will not discussfurther the portions of the statute that apply to gubernatorialelections.
3. I do not address this final issue because I conclude thatunder constitutional requirements any public funding program mustbe voluntary; if it is voluntary, then criticisms that it is toopenurious are ill-founded, since a candidate can simply choosenot to participate.
4. I will not debate whether the law amounts to a benefit forthe publicly funded candidate or a penalty for the privatelyfinanced candidate. Because elections are a contest between atleast two candidates clearly the law confers both a benefit and apenalty — it depends on whose perspective is chosen. The FirstCircuit has pointed out a number of reasons why these labels donot assist the analysis. See Vote Choice, 4 F.3d at 38.
5. The plaintiffs' argument would essentially limit publicfunding programs to a fixed amount of public subsidy andpermitted expenditures set in advance. In such a program, acandidate makes a one-time choice whether to participate. Theplaintiffs object to any program that is flexible because theyview it as the State unconstitutionally responding to FirstAmendment activities of nonparticipants.
6. There is an ambiguity here. The statute requires filing ofa report "detailing the candidate's total campaign contributions,obligations and expenditures to date." The word "detailing," ifgiven precedence, could require the details resulting in thetotal as opposed to a simple specification of the totals.Moreover, subsection 3-B is an addition to an already existingsection 1017 that has a definition of "report" that requires avery detailed itemization. At this point, the Commission has notyet specified either by rule or by form design what theaccelerated reports will in fact contain.
7. If significantly more detail were required in the reportsor if the obligation to report continued beyond the cap I havementioned, I would have serious doubts aboutconstitutionality.
8. I reject the argument that the match calculationunconstitutionally burdens the First Amendment rights of thosewho intend to make independent expenditures on the same basis asI have upheld the matching provision in general. Arguably, thisconclusion is contrary to that of Day v. Holahan, 34 F.3d 1356(8th Cir. 1994), cert. denied, 513 U.S. 1127, 115 S.Ct. 936, 130L.Ed.2d 881 (1995). In Day, however, the court rejected thelegitimacy of the public funding justification because evenwithout the new measure concerning independent expenditures,candidate participation in Minnesota's public funding alreadyapproached 100%.
9. At first glance it seems unfair that a publicly fundedcandidate can apparently receive the benefit of independentexpenditures with no reduction in his/her public funding untilthe privately funded candidate exceeds the threshold and causesan increase in the publicly funded candidate's entitlement. Butif every independent expenditure on behalf of a publicly fundedcandidate were recognized from the beginning, outsiders couldessentially deprive the publicly funded candidate of all fundsand the ability to run his/her own campaign. In contrast, theprivately funded candidate has the right and ability to continueto raise money whereas the publicly funded candidate doesnot.
10. Another potential difficulty is the three-candidate race,where one candidate is publicly funded and two candidates areprivately funded. If one private candidate raises a lot of money,the program will distribute matching funds to the publicly fundedcandidate, but the other private (third) candidate will be leftin the lurch. There is no indication that this is a likelyoccurrence. Cf. Buckley, 424 U.S. at 68-72, 96 S.Ct. 612(rejecting claims that independent disclosure requirements poseda danger to minor parties because they claimants failed toprovide evidence of any danger). In fact, new candidates withlittle money are likely to elect the public funding alternative.If it turns out to he a severe First Amendment issue inactuality, it can be dealt with then. Cf. Brown v. SocialistWorkers '74 Campaign Committee, 459 U.S. 87, 103 S.Ct. 416, 74L.Ed.2d 250 (1982) (finding disclosure provisions of Ohio lawunconstitutional as applied to Socialist Workers Party, a minorpolitical party whose members would be subject toharassment).
11. The dollar threshold was subsequently increased from $100to $250. See 2 U.S.C.A. § 434(c) (West 1997).
12. $1,141 for contested House primaries, $4,334 forcontested Senate primaries, $511 for uncontested House primaries,and $2,100 for uncontested Senate primaries. (See Hain Dep. June29, 1999, Ex. 2.)
13. Indeed, it may be sufficient if the legislation is "infurtherance of sufficiently important governmental interests andhas not unfairly or unnecessarily burdened the politicalopportunity of any party or candidate." Buckley, 424 U.S. at95-96, 96 S.Ct. 612.
14. In Maine, voter initiatives are one way of making law. SeeMe. Const. Art. IV, Part First § 1; id., Part Third § 18(1).
15. I recognize that the plaintiffs contend that one of thereasons that public funding in Maine is "involuntary" is that theprivate contribution ceilings are so low that a privately fundedcandidate cannot realistically raise enough money. My decision onvoluntariness, therefore, should be read as assuming — withoutdeciding — that the lower limits will stay in effect. Ifultimately I find these reduced limits unconstitutional andrestore the pre-existing higher limits, then the "involuntary"argument is even weaker.