Nebraska's campaign public funding laws would likely be found unconstitutional if tested by a court, state Attorney General Jon Bruning said in an opinion issued Wednesday.
The opinion was requested by Frank Daley, executive director of the Nebraska Accountability and Disclosure Commission, which monitors campaign spending. Daley asked the attorney general whether Nebraska's Campaign Finance Limitation Act, relating to the distribution of public funds, was constitutional in light of a recent U.S. Supreme Court decision in an Arizona case.
He also asked whether Nebraska law related to contribution limits was constitutional, given the ruling.
Bruning said the statute pertaining to contribution limits is so interwoven with public financing provisions that a court could find it impossible to enforce provisions independently.
The opinion does not take away the requirement that candidates report who gives them money, said Omaha Sen. Scott Lautenbaugh, who has opposed the public funding portion of the state's campaign finance law.
Daley said Wednesday the Accountability and Disclosure Commission will meet Aug. 26 to consider the opinion and look at resolving potential issues for the upcoming election.
"That's why we asked for the opinion, so that we could address it as soon as possible if there's a need to," he said.
Candidates already have begun turning in the forms that say whether they will abide or not abide by spending limits, Lincoln Sen. Bill Avery said.
Lautenbaugh said he has long hated the public funding mechanism in the law because of what he called its "disastrous" effect.
"It didn't take the money away, it just diverted it from the campaign and candidate you can hold responsible, into groups you've never heard of before and never will hear of again after the election," he said.
Now, there are lots of well-funded outside groups saying very negative things in races, with no accountability, he said.
"I don't know if we can put the toothpaste back in the tube now," Lautenbaugh said.
Nebraska's Campaign Finance Limitation Act was enacted in 1992 to help encourage voluntary compliance with campaign finance limits in primary and general elections.
Under it, candidates for state offices have varying spending limits for primary and general elections.
Candidates who agree to abide by the voluntary limits can qualify for public funds if their opponents exceed the cap. Once a candidate who does not abide spends 40 percent of his or her estimate, the abiding opponent can request matching state funds.
The act was tweaked during the last legislative session to allow political candidates to accept contributions of as much as 75 percent of the spending cap from groups. The limit had been 50 percent.
Money in the Campaign Finance Limitation Act fund comes from fines levied against candidates or campaigns for violating campaign finance laws. There is about $800,000 sitting in the fund, Avery said.
With the opinion, Lautenbaugh said, what's left of the Nebraska campaign finance law is a "mere husk" that sets up spending limits, but likely no mechanism to give that public money to candidates who abide by the limits.
The U.S. Supreme Court, in a 5-4 ruling in June, struck down part of an Arizona law that gives money to publicly funded candidates facing privately funded opponents and independent groups.
The court said the law substantially burdened political speech and was not sufficiently justified by a compelling state interest. It violated the First Amendment, the court said.
Arizona passed the law in the wake of a public corruption scandal. It was intended to reward candidates who forgo raising campaign cash, even in the face of heavy spending fueled by private money.
In a 2010 ruling in another case, the court removed most limits on spending by corporations and organized labor.
Avery said it's unfortunate the court has made it almost impossible to get control over campaign money. His office has been looking at possible legislation in light of the court's decision.
"I'm certainly not going to throw up my hands and say, 'I give up,'" Avery said. "My commitment to reducing the influence of special interest money in campaigns has not changed."