February 2005

2004 Election Cycle Demonstrated Dirty Secret Behind “Clean Elections Act”

By Jennifer Barnett

In January 2004, IJ-AZ filed a lawsuit to expose the dirty secret underlying Arizona’s scheme of financing political campaigns with taxpayers’ money, the so-called “Clean Elections Act.” While our litigation continues, the 2004 election demonstrated exactly the chilling effect we warned about.

When an independent organization makes an expenditure on behalf of a privately funded candidate or in opposition to a taxpayer-funded candidate, the government doles out money to the taxpayer-funded candidate in a dollar-for-dollar matching plan—that amounted to more than $19 million since 2000, the system’s first year. This system chills speech and punishes—with taxpayer money—independent political organizations and privately funded candidates for their political speech.

Two examples of chilled speech in this last election cycle stand out. Mainstream Arizona, an independent organization, sent out mailers regarding the voting records of nine incumbent legislators. The mailers triggered the matching funds provision, and the nine legislators, all taxpayer-funded candidates, received matching funds to counter the mailers. Mainstream thereafter chose not to make any further political speech so that it could avoid triggering the matching funds and thus aid the very candidates Mainstream hoped would be defeated.

Similarly, the Arizona Democratic Party sent out mailers in October to highlight the voting records of Republican candidates. The Citizens Clean Election Commission determined that the mailers went beyond “merely reporting voting records” to advocating against the candidates. It then awarded matching funds to the Republican candidates. The result for the Arizona Democratic Party? A decision to avoid future mailers seeking to educate the voting public that might trigger the matching funds provision.

The Act thus had the direct effect of chilling political speech in the 2004 election cycle. If it remains in force, Arizonans can only anticipate more chilled speech resulting in less information available to educate voters.

Even more dangerous are the national implications as other states consider following Arizona’s example. Maine already has such a system in place, while New Jersey, New Mexico, North Carolina and Vermont have limited versions in place. Advocates are mobilizing to pass similar laws in California, Connecticut, Hawaii, Minnesota, Massachusetts, Washington and West Virginia.

The Institute for Justice Arizona Chapter will continue its litigation to vindicate Arizonans’ right to political free speech and demonstrate that the misguided national trend should likewise be stopped.

Jennifer Barnett is an IJ-AZ staff attorney.