Arizona Clean Elections Scheme Violates First Amendment Rights, Say Candidates and Independent Groups

J. Justin Wilson
J. Justin Wilson · June 11, 2009

Arlington, Va.—Arizona’s scheme of taxpayer funding for political campaigns violates the First Amendment rights of candidates and independent groups, according to papers to be filed in federal court tomorrow by the Institute for Justice on behalf of candidates and groups silenced by the system. Despite the failings of Arizona’s so-called “Clean Elections” system, the scheme has served as a model for efforts to regulate political speech elsewhere, including the proposed Fair Elections Now Act in Congress.

“For a decade, Arizona’s taxpayer-funded elections scheme has trampled free speech rights and tilted the electoral playing field toward those who run their political campaigns with taxpayer dollars,” said Tim Keller, executive director of the Institute for Justice Arizona Chapter. “It is time to bring this failed experiment and others like it to an end.”

Tomorrow’s filing of a motion for summary judgment in McComish v. Bennett, asking Judge Roslyn O. Silver of the U.S. District Court of Arizona to strike down the “matching funds” provision of the Clean Elections law, is the culmination of a five-year legal battle to have the merits of IJ’s clients’ First Amendment claims heard in court.

Matching funds are taxpayer dollars provided to publicly funded candidates when their privately funded opponents raise more than a government-imposed limit, or when independent groups speak out in favor of privately funded candidates.

Matching funds often guarantee that candidates who refuse taxpayer subsidies will be outspent by publicly funded opponents. Indeed, IJ client and state Rep. Rick Murphy, who faced three taxpayer-funded candidates in the 2008 general election, raised $21,000. But his opponents received more than $176,000 in taxpayer dollars.

The best bet for traditional candidates is to delay raising money for their own speech to avoid triggering matching funds. And that is just what candidates do, according to an analysis of Clean Elections data by campaign finance expert and University of Rochester political science professor Dr. David Primo. In testimony presented to the court, Dr. Primo concludes that “the matching provisions lead to changes in fundraising and campaign spending in ways that are harmful to free expression.”

“Arizona tells candidates who run with voluntary support to just shut up or risk being outspent with government funds—a Catch-22 the First Amendment does not tolerate,” said William Maurer, an IJ attorney and lead counsel in the challenge to Arizona’s law.

No wonder that Judge Silver earlier found in the case that matching funds burden First Amendment rights and cause “irreparable injury both through the dispensation of funds that will be used to oppose them and through the mere fact that their speech is burdened.”

Nonetheless, backers of campaign finance regulation are continuing a nationwide effort to push such schemes, including the Fair Elections Now Act, which would fund the election campaigns of U.S. senators and representatives with the public’s money. Likely in a nod to the unconstitutionality of matching funds provisions, the latest version of this bill recycled from earlier sessions does not include matching funds, but it is similar to Arizona’s system in nearly every other respect.

As Arizona’s experience shows, the Fair Elections Now Act is unlikely to deliver on its supporters’ grandiose promises. Research on Arizona’s system and similar plans elsewhere has shown little increase in the competitiveness or “cleanliness” of elections and no boost to citizen participation. Worse, by replacing traditional campaigns funded by voluntary donations with government funding, these systems invite government control of the democratic process.

“Those backing government-funding schemes believe there is something inherently wrong with American citizens banding together, pooling their resources and trying to bring about political change,” said Maurer. “But such a free exchange of ideas is exactly what the First Amendment was designed to protect. By contrast, these systems are designed to dampen free-wheeling and robust democratic debate and restrict political speech so that it only occurs within government-imposed limits. It is fundamentally inconsistent with the First Amendment for the government to coerce candidates into silence when they speak more than the government would like.”

Bizarrely, supporters of the Fair Elections system argue that government funding of politicians’ campaigns will save taxpayer dollars by reducing special interest influence on spending priorities. But a Center for Competitive Politics analysis found that spending grew faster in Arizona and Maine after they passed Clean Elections schemes.

“Fair Elections backers offer a cure that is worse than the disease: restricting the rights of Americans to participate in the political process because politicians are tempted to do the wrong thing,” concluded Maurer. “The real solution for the trading of political favors is to return government to its constitutional limits so there are fewer favors to seek or give, while fully protecting the rights of citizens to criticize those in power.”

In McComish v. Bennett, IJ represents Murphy, Arizona State Treasurer Dean Martin, state Sen. Robert Burns, the Freedom Club PAC and the Arizona Taxpayers Action Committee.

The Institute for Justice defends First Amendment freedoms and challenges burdensome campaign finance laws nationwide. IJ recently won a victory for free speech in Florida when a federal judge struck down the state’s broadest-in-the-nation “electioneering communications” law. IJ also stopped an attempt to use Washington state’s campaign finance laws to regulate talk-radio commentary about a ballot issue. IJ is currently challenging Colorado’s campaign finance laws that prevented ordinary citizens and nonprofits from freely talking about issues on the ballot, as well as federal regulations that have silenced, an independent group that wants to oppose or support candidates on the basis of their stand on free speech.

Read more information about Arizona’s Clean Elections system.