Defending the First Amendment at the Supreme Court

On March 28, 2011, I argued Arizona Freedom Club PAC v. Bennett/McComish v. Bennett before the U.S. Supreme Court. The consolidated cases brought by the Institute for Justice and the Goldwater Institute concern the constitutionality of the so-called “matching funds” provision of the wildly misnamed Arizona Citizens Clean Elections Act. Under that provision, candidates who run for office using taxpayer funds are entitled to additional subsidies each time their traditionally financed opponents or an independent group opposing them spend above a certain amount. The purpose and effect of the law is to limit the speech of those opposing taxpayer-financed candidates and “level the playing field” among political speakers. The government, in effect, puts a thumb on the scale in favor of its preferred candidates.

Opposing IJ and Goldwater that day were the state of Arizona, the Arizona Clean Elections Institute and the Obama administration. Even though the federal presidential public financing system does not contain “matching funds,” the federal government nonetheless participated in oral argument to urge the Court to uphold Arizona’s system as an essential part of public financing of campaigns.

As the first campaign finance case heard at the Supreme Court since its high-profile decision in Citizens United v. FEC, the argument drew considerable media attention, with most commentators concluding that a majority of the Court appeared to be skeptical of our opponents’ arguments. (I achieved a personal milestone when The New York Times—a strong supporter of limiting the political speech of those outside the media—quoted my argument and criticized me by name in an editorial urging the Court to uphold Arizona’s law.)

Delivering an effective Supreme Court argument requires weeks of preparation and tireless teamwork. We spent countless hours in internal practice sessions called “moot courts,” where attorneys ask question after question that anticipate the Court’s areas of inquiry and give us the chance to hone our responses. In addition to our internal moot courts, Georgetown Law School and the Heritage Foundation graciously hosted moots in front of “courts” consisting of a former U.S. Attorney Gen­­eral, former Federal Elections Commissioners, leading law professors and advocates who frequently appear before the Court.

This practice was in addition to the time spent reading the briefs (24 in all, including “friend-of-the-court” briefs), the case law and the massive record in the case. Because there is no limit on what the Justices may ask an advocate before them, a lawyer must be prepared to address whatever issue—on the facts, the law, or the policy implications of a decision—the Court wishes to address.

The ability to effectively advocate before the Court is beyond the capacity of many nonprofit organizations and private law firms. With the support of our donors and the dedication of our staff and attorneys, however, IJ is able to more than hold its own and advocate effectively in the defense of liberty at the highest levels.

The Supreme Court should release its decision sometime in the early summer. In the meantime, if you want to read a transcript or listen to an audio recording of the argument, those are available at www.ij.org/azcleanelections.

IJ’s litigation against government-imposed limits on our free speech in the guise of campaign finance “reforms” is yet another example of what we do best: We take once-lost legal causes and completely change the terms of the debate, thereby restoring the freedoms we are supposed to enjoy in our constitutional republic. Certainly decades of similar legal battles stand before us, but, as we continue to show, with principled and well-prepared advocacy, we can accomplish anything.

Bill Maurer is the IJ Washington Chapter executive director.