Institute for Justice and Clients Move to Join New “Clean Elections” Challenge, Ask for Injunction for November Election

J. Justin Wilson
J. Justin Wilson · September 2, 2008

Arlington, Va.—Following a federal court order late last week concluding that the cornerstone of Arizona’s so-called “Clean Elections” system is unconstitutional, the Institute for Justice and its clients in a long-standing challenge to the same scheme moved yesterday to intervene in the case and asked for a preliminary injunction halting “matching funds” payments for the general election in November.

“This order reinforces what we have argued for years: Arizona’s taxpayer-funded elections scheme muzzles free speech,” said Tim Keller, executive director of the Institute for Justice Arizona Chapter. “For too long, the Clean Elections Act has tilted the electoral playing field in favor of government-funded candidates. It is time to put a halt to Arizona’s scheme and its chilling effect on political speech, and the quickest way to do that is to put the interests of all parties before the court at once.”

On August 29, Judge Roslyn O. Silver concluded in McComish v. Brewer, filed on August 22 by the Goldwater Institute, that the matching funds provision of Arizona’s taxpayer-funded campaign system violates First Amendment rights. Judge Silver declined to issue a temporary restraining order halting matching funds payments for today’s primary because there was not enough time to do so without disrupting the election, but instead she scheduled a hearing for tomorrow to consider a preliminary injunction that would stop those payments for the general election.

The Institute for Justice represents Arizona State Treasurer Dean Martin and two independent political groups, the Arizona Free Enterprise Club’s Freedom Club PAC and the Arizona Taxpayers Action Committee, in a separate, four-year-old challenge to Clean Elections also currently in federal court, Martin v. Brewer. Yesterday, IJ and those clients as well as two candidates facing the matching funds problem in this year’s general election, state Rep. Rick Murphy and state Sen. Robert Burns, asked Judge Silver for permission to join the McComish case.

A motion to consolidate the two cases, filed last week by the state of Arizona, was denied before IJ and its clients could weigh in.

Both cases challenge the chilling effect of matching funds on candidates who run on voluntary donations, and Martin also challenges the effect of matching funds on political advocacy by independent groups. Under matching funds, Arizona shells out additional taxpayer dollars to publicly funded candidates whenever their traditional opponents or independent groups spend beyond certain legal limits.

The plights of Rep. Murphy and Sen. Burns illustrate how matching funds chill speech. Murphy will have three taxpayer-funded opponents in the general election, so for every dollar he spends above a government limit, his opponents will receive three additional dollars in taxpayer funds. Similarly, Burns’ general election opponent is running with taxpayer funds, so he intends to curtail his speech before hitting government limits to avoid triggering more taxpayer dollars for his opponent.

As Judge Roslyn O. Silver explained in her August 29 order, for candidates funded by voluntary donations, the matching funds provisions 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.”

Judge Silver also recognized that Arizona’s scheme was thrown into grave doubt by a recent U.S. Supreme Court ruling in the Millionaire’s Amendment case, Davis v. FEC. In that case, the High Court made it clear that the government cannot burden free speech by placing an unconstitutional “penalty on any candidate who robustly exercises [her] First Amendment right”—yet that is exactly what matching funds do.

“The government’s job should be to ensure equal access to the polls not equal access to campaign money,” said William R. Maurer, executive director of the Institute for Justice Washington Chapter and co-counsel in the Martin case. “Candidates with a more appealing message who raise more to fund their own speech should be free to do so—and not be punished with a government check to their opponents. If the First Amendment means anything, it must mean that the government should not be sticking its nose and its checkbook into free political debate.”