Appellate Court Dismisses Challenge to Arizona’s Scheme of Publicly Funding Elections

John Kramer
John Kramer · May 10, 2007

Arlington, Va.—Today, the 9th U.S. Circuit Court of Appeals announced it would not decide the merits of a lawsuit seeking to strike down as unconstitutional Arizona’s laws penalizing privately funded political speech. The legal challenge filed by the Institute for Justice in January 2004 sought to strike down several provisions of Arizona’s so-called Clean Elections Act that suppress the speech of candidates and groups that desire to make independent expenditures.

“The First Amendment does not tolerate laws that allow the government to actually enter the political debate and put its thumb on the scale in favor of the taxpayer-financed candidate,” declared Tim Keller, executive director of the Institute for Justice Arizona Chapter. “But the Ninth Circuit’s refusal to decide this case on the merits means that the Clean Elections system will continue to drown out the voices of independent groups and candidates by granting lavish taxpayer subsidies to publicly funded candidates.”

In a brief opinion, the Ninth Circuit dismissed as moot the legal challenge filed by the American Association of Physicians and Surgeons, former gubernatorial candidate Matt Salmon, and current State Treasurer Dean Martin writing that there is no on-going controversy because the Association refuses to make independent expenditures as long as the Act is in place and because Martin’s declaration that he intends to run for statewide election came after the appeal was filed.

“Unfortunately, the decision was wrong on the facts and wrong on the law,” said William R. Maurer, executive director of the Institute for Justice Washington Chapter. “The facts are clear; our clients’ free speech rights have been infringed and will continue to be infringed by the Act. Moreover, the court’s decision is inconsistent with three of its own precedents that make clear that our clients deserve the opportunity to vindicate their First Amendment rights before the court.”

As a result of today’s decision, the “Clean Elections” system will continue to pay out dollar-for-dollar matching funds when private funds are used to oppose a publicly funded candidate. For example, when a person contributes to a political candidate, that contribution could trigger a dollar-for-dollar match to the candidate being opposed. The Act’s enormous reporting burdens on privately funded candidates (37 reports in a single political season) will also continue, as will the inequities inherent in any system of political welfare that is designed to force all candidates into the government-funded system.

“We will consider every possible legal recourse to revive our clients’ claims and see that they receive what they deserve: a decision on the merits vindicating their rights,” said Tim Keller.