By Paul Sherman
At the Institute for Justice, every one of our cases is an uphill fight, often against overwhelming odds and decades of bad legal precedent. As a result, we have learned a little something about perseverance. But few cases in IJ’s history have tested our resolve as much as our challenge to Arizona’s system of taxpayer-funded political campaigns, which IJ launched in 1999.
Under Arizona’s so-called “Clean Elections” system, political candidates have the option of running for office on the public dime, collecting government-issued subsidies instead of having to raise money on their own through voluntary contributions from the public. As a result, taxpayers are forced to pay for the campaigns of candidates with whom they might vehemently disagree.
This, by itself, would be bad enough. After all, as Thomas Jefferson recognized, “[T]o compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical.” But Arizona’s system goes even further and actively discourages ordinary people from speaking out in elections. Under the law, if a taxpayer-funded candidate is outspent by a privately funded candidate or by independent groups, the state will shovel more money to the taxpayer-funded candidate to make up the difference. In other words, speaking out against a “Clean Elections” candidate just means more public money for that candidate.
Arizona’s scheme violates the First Amendment, which prohibits the government from burdening or discouraging political speech. But filing a case was risky. In 1999, when IJ filed its challenge to Arizona’s law, federal courts had become increasing deferential to so-called campaign finance “reform,” a trend that would only get worse over the next seven years, before the changing composition of the U.S. Supreme Court made it friendlier to free speech and more hostile to campaign finance regulations.
Throughout the litigation, IJ persevered through setbacks. The case was initially dismissed from federal court, so we refiled in state court, where we lost at trial, won on appeal, but then lost before the Arizona Supreme Court. Rather than give up, we filed a new challenge in federal court in 2004, and for the past six years, that challenge has been winding its way through federal court.
Now that stick-to-it-iveness is about to pay off.
On August 17—almost 11 years after we first filed the case—IJ asked the U.S. Supreme Court to hear Arizona Freedom Club PAC v. Bennett. Although any Supreme Court petition is a long shot, knowledgeable observers believe there is a good chance that the Supreme Court will hear the case. One strong indicator is that on June 8, 2010, the Court issued an emergency order freezing the operation of the “matching funds” portion of Arizona’s law. Such orders are rarely issued, and signal serious interest by the Court in the case.
Looking back, we could never have guessed that the fight would take this long. But now that we are on the cusp of having IJ’s fifth case before the U.S. Supreme Court in just nine years, we are reminded of why we persevere: The harder the conflict, the more glorious the triumph.
Paul Sherman is an IJ staff attorney.