Federal Court Strikes Down “Matching Funds” In Arizona Taxpayer-funded Elections Scheme

John Kramer
John Kramer · January 21, 2010

Arlington, Va.—A federal court today struck down the “matching funds” provision of Arizona’s so-called “Clean Elections” system after finding that this scheme violates First Amendment rights. Judge Roslyn O. Silver of the U.S. District Court for the District of Arizona ruled that the matching funds provision in the Arizona law “burdens … First Amendment rights, is not supported by a compelling state interest, is not narrowly tailored, and is not the least restrictive alternative.” Under this now-defunct scheme, if an independent group or a privately financed candidate spent above a government-mandated limit, the Clean Elections Commission would dole out nearly dollar-for-dollar “matching funds” to publicly funded candidates to counter the privately financed speech. That means that for every dollar an individual or group spent above the limit to support the candidate of their choice, the government paid an equal amount of money to the political competition.

“The court has acted to end to this clear violation of First Amendment rights,” said Institute for Justice Arizona Chapter Executive Director Tim Keller. “For too long, Arizona’s unconstitutional Clean Elections scheme has muzzled the speech of candidates and independent groups and tilted the playing field toward those who accept taxpayer dollars for their political campaigns. Now, Arizonans can look forward to conducting their campaigns without government manipulating the debate by putting its finger on the scales in favor of those candidates taking public money.”

The court stayed the effect of its decision for 10 days, during which time the state may seek a further stay at the Ninth U.S. Circuit Court of Appeals.

In the case, McComish v. Brewer, the Institute for Justice represents state Rep. Rick Murphy and state Sen. Robert Burns, as well as Arizona State Treasurer Dean Martin, the Freedom Club PAC and the Arizona Taxpayers Action Committee.

Treasurer Martin has been challenging the Clean Elections system since 2004 and has now finally received the victory he has sought for six years. However, Martin is now a candidate for governor and the unfair structure of the Clean Elections system, which punished candidates who run using voluntary private donations, had already forced him to participate in it for his gubernatorial race, despite his long opposition to Clean Elections on constitutional and policy grounds. “I’m nonetheless delighted that Judge Silver has ruled on the merits of the case and struck down this system,” Martin said.

Rep. Rick Murphy’s experience in his 2008 race illustrates how matching funds chilled speech. Murphy had three taxpayer-funded opponents in the general election, so for every dollar he raised to spend on his own speech his opponents received three additional dollars in taxpayer funds to counter his speech.

“The trial court correctly recognized that this matching-funds scheme could not continue suppressing the First Amendment rights of candidates, citizens and independent groups,” said Bill Maurer, the IJ attorney who argued the motion for summary judgment. “Those seeking greater government interference with elections held up Arizona’s unconstitutional system as a model they could replicate across the country, including at the federal level. The court’s decision today should give any jurisdiction considering instituting a similar plan notice that such systems are incompatible with the free speech rights of independent groups and privately funded candidates.”

Keller continued, “This system was not only unconstitutional, it has been a complete failure at achieving any of its goals. As Arizona has witnessed firsthand, the so-called ‘Clean Elections’ Act has resulted in less speech, fewer voices and less information for voters about an issue of vital public importance: Who should be elected to public office. It has done nothing to change rates by which incumbents are reelected and has also led to a more partisan and divided legislature as candidates no longer needed to attract broad support from private funders.”

Read more about Arizona’s Clean Elections system.