Pulling the Trigger on Public Campaign Finance: The Contextual Approach to Analyzing Trigger Funds

The unpredictable nature of electoral politics makes it difficult for public campaign financing programs to be both efficient and effective. Programs that award too much money to publicly funded candidates risk insolvency, while miserly systems cannot attract participants. Moreover, the competitiveness of any given race changes with each election cycle—what was a landslide one year might be the closest of contests next November. Several states have tried to address this dilemma by enacting “trigger” provisions that disburse extra money to publicly funded candidates only after their opponents raise or spend beyond a certain amount. These laws have faced legal challenges from political committees and candidates who argue that trigger funds provisions flout the First Amendment’s protection of political speech by aiding the speaker’s opponent. Supporters of campaign finance regulation counter that trigger funds facilitate political speech rather than chilling it. This Note examines the widely divergent federal court rulings on these challen ges, both before and after the U.S. Supreme Court’s important Davis v. FEC opinion, with a focus on the U.S Court of Appeals for the Ninth Circuit’s recent McComish v. Bennett decision. It finds that none of the trigger funds jurisprudence has fully analyzed both the state interest in the provisions and in trigger funds’ burdensome effects. The Note then recommends a contextual approach to understanding the state interest in public finance legislation. It asserts that courts should not scrutinize a state’s trigger provision in isolation from the rest of its public finance regime. The Note concludes that because typical trigger funds provisions encourage participation in public financing, which in turn reduces corruption, trigger funds survive First Amendment scrutiny