The next election will most likely break all previous records in campaign spending, and the money barrier is as high as ever when it comes to running for federal office. At the same time, confidence in our elections remains shaky at best.

On a recent episode of our vlog, Jacob interviewed some movers and shakers pushing the Clean Elections public financing system. Clean Elections give candidates the option to qualify for full public financing of their campaigns if they meet criteria including collecting a certain number of small donations. This movement has already won key victories in seven states and two cities, where voluntary public financing is now in place for statewide, local and state legislative offices.

Some in Congress have proposed legislation create a national public financing system for our congressional elections, and there are signs that this effort is one of the strongest in years.

In 1990, the Minnesota Legislature enacted the Campaign Reform Act, a system of voluntary public financing for congressional candidates in Minnesota who agreed to adhere to voluntary limits on campaign spending and who met the eligibility requirements established by the statute. By June 1992, seven Minnesota candidates for congressional office, including the late Senator Paul Wellstone, had signed and filed expenditure limitations agreements with the Minnesota Ethical Practices Board, indicating their intent to participate in the voluntary public financing system.

Three incumbents from the Minnesota congressional delegation, however, challenged the Campaign Reform Act in federal court, and a federal district court judge in Minnesota struck down the law on the grounds that federal law preempted it. A three-judge panel of the U.S. Court of Appeals for the Eighth Circuit upheld that ruling.

Yet, Minnesota did not seek further review of the matter before the U.S. Supreme Court. This means that while the Eighth Circuit ruling is controlling authority for the states within that appellate court’s jurisdiction (Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota), it is not binding on any other state. In other words, since the U.S. Supreme Court has yet to rule on this question and since no other court has faced this issue, all of the states outside the Eighth Circuit’s jurisdiction remain free to enact a voluntary public financing system for their congressional candidates.

While opponents to such a system will surely cite the Eighth Circuit’s ruling, courts reviewing such a system outside the Eighth Circuit’s jurisdiction will not be bound by that appellate court’s ruling. If another circuit were to uphold such a system and rule that it is not preempted by federal law, such a decision would set the stage for a potential Supreme Court ruling on the matter, since a conflict between two circuit courts serves as a basis for Supreme Court review.

And there are strong legal arguments that the Eighth Circuit got it wrong.

Federal law, through the Bipartisan Campaign Reform Act of 2002 (and, prior to that, through the Federal Election Campaign Act of 1974), regulates the financing of federal election campaigns. For example, federal law limits the amount of money individuals and political action committees may contribute directly to a congressional or presidential candidate. It also sets forth candidate reporting and disclosure requirements, and provides for partial public funding for presidential candidates conditioned on the acceptance of voluntary campaign spending limits.

Federal law, however, does not provide any public financing for congressional candidates; the law is silent on that matter.

As Supreme Court Justice Louis D. Brandeis once wrote: “It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as laboratory; and try novel social and economic experiments without risk to the rest of the country.”

John Bonifaz is a member of the Why Tuesday? advisory board. A version of this piece was posted on TPMCafe.com as part of Why Tuesday?’s week-long guest blogging there.

If you're new here, you may want to subscribe to my RSS feed. Thanks for visiting!