9th Circuit Case Could Decide Future of Free Speech in Elections

John Kramer
John Kramer · February 8, 2007

Arlington, Va.—May the government bankroll your political opponent’s election campaign because you refused to fund your campaign with tax dollars?

And may the government drown out your campaign by doling out a dollar-for-dollar match to your opponent whenever someone (even without your direction or coordination) promotes your candidacy?

In America, we once prized individuals who went out on their own and possessed a message strong enough to attract others to them without the need for force or government financing. Today, however, through ever-increasing public finance schemes, we hamper such individuality, especially in politics. A case in point is Arizona’s so-called “Clean Elections Act” under which the government financially favors candidates who accept public funds while harming those who accept only private, voluntary donations.

On Monday, February 12, 2007, the Institute for Justice will appear before the 9th U.S. Circuit Court of Appeals in San Francisco arguing Arizona’s laws that penalize privately funded political speech are unconstitutional.

“The public—and not the government—is in the best position to decide if a candidate’s message has value, and one way the public expresses that decision is in the contributions they make to a candidate,” said Tim Keller, executive director of the Institute for Justice Arizona Chapter, who will argue the case of Association of American Physicians and Surgeons v. Brewer. “If an office seeker’s message connects with the public, he or she raises more funds. But Arizona’s election funding scheme throws out that tried-and-true system and replaces it with one that punishes those who reject taxpayer money, yet have a popular message.”

Arizona law also imposes onerous reporting requirements on privately funded candidates. A privately funded candidate may have to file up to 37 time-consuming reports on contributions during one election cycle, compared to only three such filings for publicly funded candidates. These reports trigger more funds to be immediately disbursed to the tax-funded candidate, thereby placing the entire burden on those who refuse taxpayer funds for their campaign.

“The reporting requirements are yet another stick the State of Arizona uses to coerce candidates into the publicly funded system and punishes them for nonparticipation,” Keller said.

The Institute for Justice is challenging four provisions of Arizona’s “Clean Elections Act”:

  1. The matching funds provision for publicly funded candidates that are triggered by independent expenditures outside the candidates’ control and without their coordination. (Simply put, the “Clean Elections” system drowns out the voices of independent groups by granting the group’s opponents a dollar-for-dollar subsidy.)
  2. The provision that provides taxpayer-funded candidates with funds based on the privately funded candidates’ expenditures and contributions. (Under the Act, the harder a privately financed candidate works, the more his taxpayer- financed opponent benefits.)
  3. The Act’s onerous reporting requirements that facilitate the dollar-for-dollar matching funds. (The additional reporting requirements place the burden of ensuring that publicly funded candidates receive funding equal on privately financed candidates.)
  4. The Act’s reduced contribution limits for privately funded candidates.

(The reduced contribution limits make it more difficult for privately financed candidates to amass the resources necessary to win elections.)

“The impact of this government-funded election system is not just theoretical; it has a real-world impact that muzzles free speech,” Keller said. “Would you spend money to defeat a publicly funded candidate if you knew that would lead the government to give money to the candidate you oppose? This chills your speech and makes you think twice before speaking out during an election. That is what is happening in Arizona; individuals don’t want to see their speech get drowned out by a candidate who gets political welfare rather than earns support in the marketplace of ideas.”

Another problem with government-funded elections in Arizona is that taxpayer-funded candidates are rewarded with subsidies equal to the gross contributions independent candidates receive, rather than what they net. So, for example, when former state representative, Congressman and gubernatorial candidate Matt Salmon brought President Bush to campaign for him, that event grossed $750,000 in contributions, but the net was only $500,000. Under the “Clean Elections Act,” the government sent $1.5 million to Salmon’s two opponents to divide. This is yet another way the Act penalizes traditional candidates.

In yet another twist, when independent expenditures are made on behalf of government-funded candidates, no such matching funds flow to traditional candidates, but the reverse is not true. So, when Democratic opponents of Salmon received $1 million from the Democratic Party to defeat him, those expenditures didn’t count against his Democratic rival, now-Governor Janet Napolitano, so long as she spent less than $3 million. But when the Arizona Republican Party responded with expenditures of $300,000, the government quickly cut checks to Napolitano and an Independent candidate for $300,000 each. Salmon didn’t control the Republican Party’s independent message, yet the result was more money for his political opponents.

Keller concluded, “Rather than acting as a neutral referee, the state actively tilts the playing field in favor of government-funded candidates.”