Lawsuit Exposes Dirty Little Secrets Behind Arizona’s “Clean” Elections

Phoenix, AZ—Should political candidates be coerced to take taxpayer funds when they run for office? And should the government play favorites in political campaigns by purposefully drowning out the speech of those who support privately funded candidates rather than candidates who rely on government funds?

The Institute for Justice Arizona Chapter (IJ-AZ) doesn’t think so.

That’s why the IJ-AZ filed a federal lawsuit today in the U.S. District Court for the District of Arizona challenging the constitutionality of the so-called Clean Elections Act. The suit was filed on behalf of the Association of American Physicians and Surgeons, a group that makes independent expenditures in political campaigns, as well as 2002 gubernatorial candidate and former three-term U.S. Congressman Matt Salmon, two-term state Sen. Dean Martin, and former state legislator Lori Daniels. Each of these individuals seeks to preserve his or her First Amendment right to free speech by running for public office as a traditional privately supported candidate rather than as a “Clean” Elections candidate who reaches into the taxpayers’ pockets.

Frank Conti, executive director of the IJ-AZ and lead attorney in the lawsuit, said, “Democratic elections in a free society should not be run under socialist rules—rules that take merit out of the system and instead try to force everyone to be equal. Yet that is just what is taking place in Arizona where the State seeks to equalize funding to all candidates, regardless of the public’s support of their message, and have all candidates accept taxpayer funds to get their message out.”

Tellingly, Salmon said, “As a privately supported candidate I was praying that no one would make an independent expenditure on my behalf.”

Arizona’s system tilts the playing field sharply in favor of government-funded candidates by:

  • Treating independent expenditures differently depending on whether they favor a government-funded or a privately supported candidate;
  • Paying matching funds to government-funded candidates based on the gross amount of money that their privately supported opponents raise (without subtracting what their opponents spend to raise it);
  • Requiring (in addition to the six regularly scheduled campaign finance reports) that privately supported candidates spend time and money filing 37 special ?trigger? reports in the four months before Election Day, while government-funded candidates have only three extra reports to file;
  • Lowering the maximum contribution limit for privately supported candidates, making contributions tougher to raise; and
  • Creating a Clean Elections Commission, an un-elected body of bureaucrats with boundless authority to police reporting requirements during an election cycle.

The Clean Elections Act is an initiative that was narrowly passed by voters in 1998. It has had the desired effect of pushing nearly every statewide office seeker to the public trough for funding. Of the nine statewide races in Arizona in 2002, only three major-party candidates opted for a privately supported campaign, and only two of those—Superintendent of Public Instruction Tom Horne and Corporation Commissioner Mike Gleason—won.

Conti said, “Federal courts have said that states can use taxpayer money to fund political campaigns, and even encourage candidates to accept that funding. But what a state cannot do is coerce candidates to take welfare for politicians, or punish them for refusing to do so.”

Courts have also said that such a system cannot muzzle the voice of individuals and groups who want to speak out on behalf of privately funded candidates. The U.S. Supreme Court ruled that a state cannot try to “level the playing field” in political campaigns by equalizing the relative financial resources of candidates. But in Arizona, the Clean Elections system does that and more—leveling the playing field by leveling certain players on that field for the benefit of others. For example, under Arizona’s law, the State gives one taxpayer dollar to a participating, government-funded candidate for every dollar spent by a group that either opposes that participating candidate or supports his privately supported opponent. But there is no regulation or limitation on independent expenditures that favor government-funded candidates.

The U.S. Supreme Court has ruled that involuntary limits on campaign expenditures—and attempts to equalize the relative financial resources of candidates—are unconstitutional infringements of free speech under the First Amendment. Lower federal courts have likewise found that state public financing systems chill speech when they go beyond promoting participation in taxpayer funding, and actually begin punishing nonparticipation. The IJ-AZ’s suit points out that the Clean Elections Act suffers from these fatal flaws.

“Clean Elections forces groups to think twice before expressing themselves in a political campaign,” explained Conti. “Why spend $1,000 supporting your viewpoint when the State will simply step up to the ATM—in this case, Arizona Taxpayers’ Money—and shell out $1,000 to the government-funded candidate’s side of the argument?”

“The government shouldn’t play favorites in elections by providing advantage to some and disadvantage to others,” said Sen. Martin. “The voters should make those decisions.”

Clint Bolick, the Institute for Justice’s vice president, said, “The Clean Elections Act has delivered exactly the opposite of what its framers promised. Under Clean Elections we have nastier elections; we have government-funded candidates wildly outspending privately funded candidates; and we don’t have a level playing field but instead a very uneven system that greatly favors those who can reconcile themselves to take public subsidies. Clean Elections is a mess the Institute for Justice Arizona Chapter intends to clean up.”

 

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