U.S. Supreme Court Considers Whether to Hear IJ’s Challenge to Arizona’s “Clean Elections” Scheme

John Kramer
John Kramer · November 16, 2010

Arlington, Va.—On, Tuesday, Nov. 23, 2010, the U.S. Supreme Court is scheduled to decide whether to hear a challenge by the Institute for Justice to Arizona’s “Clean Elections” Act in the case of Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett. Actions taken by the High Court earlier this year lead many to believe there is a better-than-average chance the Court will accept this case for review.

For a brief, funny video explaining how the “Clean Election” system rigs political races in favor of government-funded candidates, visit: www.ij.org/AZCleanElectionsVideo.

Arizona’s “Clean Elections” Act gives public money to politicians to run for office and squelches the free speech of independent groups, as well as candidates who choose to forgo taxpayer dollars and instead raise their own funds for their campaigns. For every dollar an independent group opposing a publicly financed candidate or a traditionally funded candidate spends above a certain amount, the government hands taxpayer dollars over to the publicly financed candidates in the race. This allows the government-subsidized candidate to “match” the spending—and thus the speech—of the independent group or privately funded candidate opposing him. The harder an independent group or traditionally financed candidate works, the more the government-subsidized candidate benefits. The Act curbs speech, discourages participation and limits what voters will hear about politics.

In June of this year, in a very unusual step, the U.S. Supreme Court stayed an order of the 9th U.S. Circuit Court of Appeals and reinstated an injunction against Arizona’s unconstitutional “matching funds” law. A federal district court in Arizona struck down “matching funds” in January as a violation of the First Amendment, but the 9th Circuit stopped that ruling from taking effect and later reversed it. The Supreme Court’s decision allowed the 2010 Arizona election to occur without the government placing its thumb on the scale in favor of those politicians who receive government subsidies.

Bill Maurer, an attorney with the Institute for Justice, said, “The purpose of this law was to limit individuals’ speech by limiting their spending. But the First Amendment does not permit the government to restrain Americans from robustly exercising the right of free speech.”

Maurer said, “Matching funds violate the First Amendment rights of candidates, citizens and independent groups. The government may not give an electoral advantage to one candidate by ‘leveling’ the speech of his opponents. The system is set up to punish those the government believes are speaking too much, while subsidizing those it believes are speaking too little. In a free society, the government has no business micromanaging how citizens debate, of all things, who should run the government.”

In this challenge, IJ represents independent expenditure groups—ordinary Americans who have banded together to speak out about elections—as well as traditionally financed candidates. After the Supreme Court’s decision in Citizens United earlier this year, it is clear that campaigns are not the private domain of candidates, but that independent groups have every right to speak and try to get their message heard.

Maurer said, “Arizona’s ‘Clean Elections’ Act is nothing less than welfare for politicians.”

The 9th Circuit’s conclusion—that any burden on speech caused by the scheme is insignificant—is belied by Arizonans’ experiences. Matching funds have caused independent expenditure groups not to oppose publicly financed candidates—and caused privately financed candidates to ask those groups to remain silent—solely because of the threat of matching funds. Matching funds have caused candidates to avoid raising funds, leaving them less money and less able to communicate with voters. Finally, even when independent groups and privately financed candidates are not outright silenced by matching funds, matching funds forces them to delay speaking in elections—when the disadvantages created by matching funds can be minimized—rather than speak when they want and when they think their message will be best received.

The Institute for Justice represents two independent political groups, the Arizona Free Enterprise Club’s Freedom Club PAC and the Arizona Taxpayers Action Committee, as well as Arizona political leaders Dean Martin, Arizona State Treasurer, and Rep. Rick Murphy.

The Institute for Justice has been on a hot streak when it comes to challenging government-imposed campaign finance restrictions that limit free speech. Earlier this month, IJ scored a major legal victory when the 10th U.S. Circuit Court of Appeals ruled that Colorado’s campaign finance laws violated the constitutional rights of six neighbors who were forced to register with the government and comply with burdensome campaign finance laws simply for opposing a ballot issue involving the annexation of their neighborhood. In Sampson v. Buescher, Judge Harris L. Hartz of the 10th Circuit, writing for a unanimous court, recognized the severe burden Colorado’s campaign finance laws imposed on grassroots political activists. In his opinion, he wrote, “The average citizen cannot be expected to master on his or her own the many campaign financial-disclosure requirements set forth in Colorado’s constitution, the Campaign Act, and the Secretary of State’s Rules Concerning Campaign and Political Finance.”

In March of this year, the Institute for Justice, teaming up with the Center for Competitive Politics, won a landmark victory for free speech in federal court on behalf of SpeechNow.org, an independent group that opposes or supports candidates on the basis of their stand on free speech. IJ won a victory for free speech in Florida when a federal judge struck down the state’s broadest-in-the-nation “electioneering communications” law, and another in 2007 in Washington when it stopped an attempt to use the state’s campaign finance laws to regulate talk-radio commentary about a ballot issue.

Institute for Justice President and General Counsel Chip Mellor warned, “Government funding of campaigns ultimately means government control over how much speech occurs in those campaigns. It is not the government’s place to decide which politicians should get a bigger megaphone. Under our Constitution, the public, and not the government, decides whose message is worth supporting.”

IJ Senior Attorney Bert Gall said, “Arizona’s scheme of taxpayer-funded elections is one of the most far-reaching in the nation and a model that ‘reformers’ have pushed across the country. Without the Supreme Court’s intervention now, our core rights as citizens to speak on political matters will give way to government control.”