Bnr.N E. Fnosn Snxon c.

Brqsox Bnlxrrpv
ATTORNEY GENEML COUNSEL TO THE GENERAL ASSEMBLY

EuznsrH F, H,lnrus Knrrnv, M. Rown

CHIEF DEPUTY TTORNEY GENEML DEPUTY COUNSEL

Cnnolv A. Quarrnocxr Jennv M. McCov

DEPUTY ATTORNEY GENEML ASSISTANT TTORNEY GENERAL

THE ATTORNEY GENERAL OF MARYLAND D*ro Wi Srnvpn

ASSISTANT ATTORNEY GENERL
OFFICE OF COUNSEL TO THE GENERAL ASSEMBLY

CONFIDENTIAL
August IL,20L7

The Honorable Marc Korman

Maryland General Assembly
210 House Office Building
Annapolis, Maryland 2l4OI

Dear Delegate Korman:

You asked for confidential advice. Specifically you asked

whether the State can enable a county Eovernment to do public

financing for State legislative offices, For example, could the
State legislature pass a law enabling Montgomery County
government to set up and fund a public funding program for the
eight legislative districts within the county? Would such a fund
be permissible given that all of the county's state legislative
districts are solely in Montgomery County, and not split between
neighboring counties?

As discussed below, it is my view that the General Assembly may pass valid
legislation authorizing local governments to establish a public campaign financing
program for State legislative offices in the county's State legislative districts,

A first issue ralsed is whether providing a "local option" violates the Equal
Protection Clause, The issue is raised because by providing a local option it is
possible that candidates for State legislative office in some districts may not have
the opportunity to participate in a public funding program. It is my view that
providing a local option would not violate the Equal Protection Clause. The Equal
Protection Clause of the Fourteenth Amendment does not:take from the States the
po\/er to ciassify, but "'keeps governmental decision makers from treating
differently persons who are in all relevant respects.alike,'i'Morrison v. Gararghty,
239 F.3d 648,654 (4th Cir. 2001).t'To succeed on an equal protection claim, a
plaintiff must first demonstrate that he has been treated differently from others
with whom he is similarly situated and that the unequal treatment was the result of
intentional or purposeful discrimination." Id. Only after that showing has been made

IO4 LEGISI-IIVE SERVICES BUILDING . 90 STATE CIRCLE . NNAPOLIS, MARYIAND LI4OI.T99T

4to-946-56oo .3or-97o-56oo ' rl.x 4to-946-56ot rw 4to-946-54or . 3or-97o-54or
The Honorable Marc Korman
August II,2017
Page 2

does a court proceed "to determine whether the disparity in treatment can be
justified under the r"equisite level of scrutiny,r Id.

The Supreme Court determined that the constitution )'permits the States a
wide scope of discretion in enacting laws which affect some groups of citizens
differently than otheis." McGowan v. Maryland,366 U.S.420,425 (1961). The
Court further explained that "Ia] statutory discrimination will not,be set aside if any
state bf facts reasonably may be conceived to justify it." Id. at426. Legislation is
presumed to be valid and will be sustained if the classification drawn by the statute
is rationally related to a legitimate state interest." City of Cleburne v. Cleburne
Living City, 1nc.,473U.5.432,440 (1985), Underthat standard, which is the
"rational basis" test, a classification will not be overturned "unless the varying
treatment of different groups or persons is so unrelated to the achievement of any
combination of legitimate purposes that [the court] can only conclude that the
fgovernmental] actions were irrational ." Murphy v. Edmonds,325 Md' 342, 355
(L992) (alterations in original) (citations omitted).

While recognizing the legislature's authority to pass legislation that impacts

different parts of the State, the Court of Appeals has also declared that the power

cannot be used to deprive the citizens of one part of the State of the
rights and privileges which they enjoy in common with the citizens of
all other parts of the State, unless there is some difference between
the conditions in the territory selected and the conditions in the
territory not affected by the statute sufficient to afford some basis,
however slight, for classification.

Maryland Coal & Reatty Co. v. Bureau of Mines, 193 Md . 627, 642 (7949).In that
case, the statute in question regulated strip mining in every area of the State
except Garrett County. The only other locality where strip mining occurred was
Allegany, The Court determined that the General Assembly did not have a rational
basis to regulate strip mining in Allegany, but not Garrett. "There is no difference in
conditions that would make strip mining a menace to public health and safety in
Allegany but harmless in Garrett." Id. at 643. As a result, the Court struck the law
as unconstitutional because it violated the Equal Protection Clause.

Applying the foregoing case law, so long as the General Assembly has a
rational basis for authorizing a public funding program only for State legislative
candidates in those counties that authorize the program, the bill would not violate
the Equal Protection Clause. Moreover, there is an argument that because all
competitors for each legislative seat would be similarly situated, there is no unequal
treatment among similarly situated persons. Although candidates in some
legislative districts could not participate in a public funding program where the
relevant county did not authorize such, those candidates would not be competing
The Honorable Marc Korman
August II,2AI7
Page 3

against candidates in other legislative districts where the relevant county

authorized the program.l

Another issue raised is whether the First Amendment rights of legislative

candidates and their supporters are violated in a local option scheme. The Supreme
Court has confirmed that candidates and their supporters have First Amendment
rights, Anderson v. Celebrezze,460 U.S, 780 (1983). In that case, the Court held
that Ohio's early filing deadline for independent presidential candidates, which was
75 days before the primary election, placed an unconstitutional burden on the
voting and associational rights of independent candidates. Based on Anderson and
other precedent, a court reviewing the proposed legislation would likely apply the
following balancing test:

It must firstconsider the character and magnitude of the asserted

injury to the rights protected by the First and Fourteenth Amendments
that the plaintiff seeks to vindicate, It then must identify and evaluate
the precise interests put forward by the State as justifications for the
burden imposed by its rule, In passing judgment, the Court must not
only determine the legitimacy and strength of each of those interests;
it also must consider the extent to which those interests make it
necessary to burden the plaintiffts rights,

Id. at 789.
The Supreme Court has held that the right to candidacy is not fundamental,
Accordingly, the availability of public funding for legislative candidates in some
districts but not others would likely be subject to rational basis review. Clements v.
Fashing,457 U.S. 957 (1982) (treating two-year waitng period before public office
holder may run as a candidate for the legislature an "insignificant" burden on the
Fir.st Amendment rights of candidates and voters). Relying on Clemenfs, the Court
of Appeals applied the rational basis standard to uphold a constitutional ban on
unregistered voters holding elected public office. Broadwaterv. State,306 Md,597
(1986). Under that test, if any state of facts reasonably can be conceived that
would sustain the constitutionality of the statute, the existence of that state of facts
as a basis for passage of the law must be assumed. Id. at 606. Moreover, as stated
previously, the proposed legislation would not pose a burden on some candidates
and not others running in the same race. That is, competitors are all treated equally
with regard to the availabilty of public funding, Thus, so long as there is a rational
basis for limiting the public financing program to legislative candidates in those
counties that have authorized such, I believe a court would reject a claim that the

l This would be true for multi-county districts so long as the program is structured to
treat all candidates in any legislative district the same, such as that all candidates in any
legislative district including a county that authorized public funding may participate in the
public funding program.
The Honorable Marc Korman
August I7,2077
Page 4

bill violates the First Amendment rights of candidates and their supporters simply
becauSe public financing is not available in every legislative district.

On the other hand, other aspects of a public financing program may be

subject to a higher level of scrutiny under the First Amendment, depending on how
the program is configured. The Supreme Court has made clear"'fllaws that burden
political speech are ... subject to strict scrutiny, which requires the Government to
prove that the restriction furthers a compelling interest and is narrowly tailored to
achieve that interest."' Arizona Free Enterprise Club PAC v. Bennett,564 U.S.72t,
735 (2011) (quoting Citizens United v. Federal Election Comm'n,558 U.S. 310
(2010)). The Court also noted, "[a]t the same time, we have subjected strictures
on campaign-related speech that we have found less onerous to a lower level of
scrutiny and upheld those restrictions." Id.

In the Arizona Free Enterprise CIub PAC case/ the Court determined that
Arizona's public campaign finance law was in violation of the First Amendment. The
offending aspect of the program was a matching fund provision. "Once a privately
financed candidate has raised or spent more than the State's initial grant to a
publicly financed candidate, each personal dollar spent by the privately financed
candidate results in an award of almost one additional dollar to his opponent." Id.
at737. The Court observed "[t]hat plainly forces the privately financed candidate to
'shoulder a special and potentially significant burden'when choosing to exercise his
First Amendment right to spend funds on behalf of his candidacy." Id. "It is not the
amount of funding that the State provides to publicly financed candidates that is
constitutionally problematic in this case, It is the manner in which that funding is
provided--in direct response to the political speech of privately financed candidates
and independent expenditure groups." Id. at747.

The Court went on to declare that the State's nterest in providing matching
funds-to level the playing field-was not compelling,
"Leveling the playinE field" can sound like a good thing. But in a
democracy, campaigning for office is not a game, It is a critically
important form of speech. The First Amendment embodies our choice
as a Nation that, when it comes to such speech, the guiding principle
is freedom the "unfettered interchange of ideas"-not whatever the
State may view as fair.

Id. at 750, The Court also rejected that the matching funds served an anti-
corruption purpose, id. at75L, or that encouraging participation in the public
finance program was a legitimate purpose. Id. at 753 ("By the State's logic it could
grant a publicly funded candidate five dollars in matching funds for every dollar his
pr.ivately financed opponent spent, or force candidates who wish to run on private
funds to pay a $10,000 fine in order to encourage participation in the public funding
regime. Such measures might well promote participation in public financing, but
would clearly suppress or unacceptably alter political speech.).
The Honorable Marc Korman
August 1L,2077
Page 5

Although the Supreme Court has found some public campaign financing
programs unconstitutional it is important to recognize, however, that the Court
continues to confirm that "governments'may engage in public financing of election
campaigns' and that doing so can further'significant governmental interest[s],'
such as the state interest in preventing corruption." Id. at 754. Nevertheless, "the
goal of creating a viable public financing scheme can only b pursued in a manner
consistent with the First Amendment.".Id. Accordingly, so long as the public
campaign finance program avoids the problems found to be unconstitutional in the
past, such as the escalating matching public fund provision triggered by an
opponent's spending at issue in Arizona Free Enterprise Club PAC case, a bill
providing a "local option" should face no First Amendment roadblocks. See, e.9.,
Daggett v. Comm'n on Govt. Ethics & Elections Practices, 205 F .3d 445 , 466 ( lst
Cir. 2000 ("Although public financing is not inherently unconstitutional, it may be so
if it'burdens the exercise of political speech'but is not'narrowly tailored to serve a
compelling state interest."')

In summary, it is my view that it is possible for the General Assembly to pass

legislation that would pass constitutional muster authorizing a local option to
establish a public campaign financing program for State legislative offices in a
relevant county's State legislative.districts.

Sincerely,

Sandra Benson Brantley

Counsel to the General Assem Y