IJ’s Challenge to Arizona’s “Clean Elections” Goes to the U.S. Supreme Court

February 1, 2011

The Institute for Justice is heading back to the U.S. Supreme Court for one of the most important free speech cases in years. At issue in the case—Arizona Freedom Club PAC v. Bennett—is whether the government may insert itself into political campaigns and place its thumb firmly on the scales in favor of government-funded candidates.

The case also gives IJ the opportunity to team up with the Goldwater Institute, one of our close allies among state-based think tanks. Goldwater also represents a number of candidates in the case of McComish v. Bennett. The two cases were consolidated by the U.S. Supreme Court.

For more than a decade, Arizona has used taxpayer money to finance the campaigns of politicians running for office. But Arizona does not stop there. Besides funding candidates, it tries to “level the playing field” for taxpayer-financed candidates by penalizing traditionally funded candidates—those who finance their campaigns through private contributions. Arizona’s law even penalizes the independent supporters of traditionally funded candidates. It does all this by providing what Arizona calls “matching funds.” These are subsidies the government pays to government-funded candidates when their opponents spend more money than the government wants. That is, the government sets an arbitrary level, and if an independent group or privately financed candidate spends more than that, to counter their message the government pays additional money directly to the publicly financed candidates in the race.

This impedes the ability of independent groups and privately financed candidates to spend money promoting their political views above the government-set limit, because if they speak above that limit, the government directly subsidizes their political opponents. In this zero-sum game of electoral politics, the end result is a de facto limit on how much speech occurs in campaigns. For example, under Arizona’s scheme, if a traditionally funded candidate raises and spends $10,000 to promote his campaign, the government gives approximately $10,000 to each of his government-funded opponents. So, if the candidate has three government-funded rivals in a primary, that means his $10,000 turns into nearly a $30,000 gain for his opponents.

The Clean Elections Act creates an abbreviated Miranda Right for traditionally funded candidates: They have the right to remain silent, any speech they may undertake can and will be countered by government funding.

In the past few years, the U.S. Supreme Court and the lower courts have begun striking down laws that interfere with speech during campaigns. The case IJ is bringing before the Court asks whether the government may get around these decisions by creating disincentives and burdens to achieve indirectly what the government is prohibited from doing directly.

In this case, IJ represents two groups that make independent expenditures in Arizona campaigns—the Arizona Freedom Club PAC and the Arizona Taxpayers Action Committee, along with state Senator Rick Murphy and former Arizona Treasurer Dean Martin. The case demonstrates the persistence of IJ and its clients. Martin and IJ started challenging this law in 2004 and, as the years of litigation went on, including two trips to the Ninth U.S. Circuit Court of Appeals, the other clients joined with him to now present their case to the highest court in the land.

Once again, IJ is at the forefront of setting the agenda for constitutional litigation in America. The argument will take place on March 28, and the Court is expected to issue a decision before the end of June.

William R. Maurer is the IJ Washington Chapter executive director.

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