Challenge to Publicly Financed Elections Will Proceed in Arizona State Court

John Kramer
John Kramer · March 19, 2001

Washington, D.C.—A First Amendment lawsuit challenging coerced financing provisions of the so-called Arizona Clean Elections Act will shift from federal to state court following a ruling last week that the federal district court does not have jurisdiction to consider the challenge.

“This lawsuit will not skip a beat,” vowed Clint Bolick, litigation director of the Institute for Justice, a Washington, D.C.-based public interest law firm prosecuting the case. “Forcing Arizona taxpayers to fund the speech of politicians is not only obnoxious but unconstitutional.”

The Institute represents Rep. Steve May, lobbyist Rick Lavis and others in challenging two funding sources for the public campaign finance fund for candidates for state office: a ten percent surcharge imposed on all civil fines (including parking tickets) and a $100 fee imposed only on lobbyists representing business-related entities. Together, the two fees comprise more than half the public finance fund.

“The dirty little secret of the clean election fund is that most of the financing is coercive, not voluntary,” explained Institute senior attorney Scott Bullock. “The First Amendment forbids the state from compelling individuals to fund the political speech of others.”

The federal court ruling, issued last Tuesday by federal Judge Thomas S. Zilly, found that the Tax Injunction Act, which prevents federal courts from ruling on state tax issues in most instances, applied here because the fees amount to a tax.

“Rather than appeal a procedural issue in the federal court, we’ll promptly re-file the case in state court and seek a ruling at the earliest possible opportunity,” declared Clint Bolick. “We don’t want Arizona taxpayers forced to foot the bill for politicians.”

“If anything, the finding that the fees represent a ‘tax’ helps us,” Bolick added. “The state cannot tax speech, and it certainly cannot tax a person’s desire not to speak through coerced contributions to political candidates.”

The Institute hopes to re-file the case in state court in Phoenix within the next two weeks.