Institute for Justice Asks 9th Circuit to Affirm Decision That Arizona’s Campaign Financing Scheme is Unconstitutional

John Kramer
John Kramer · March 2, 2010

Arlington, Va.—“When Arizona’s ‘Clean Elections Act’ gives money to publicly financed political candidates to cancel out the speech of independent groups and privately funded candidates, it doesn’t level the playing field; it levels the players on the field,” warned Bill Maurer, an attorney with the Institute for Justice and lead counsel in the challenge to Arizona’s law.  IJ filed its opening brief today with the 9th U.S. Circuit Court of Appeals in Bennett v. McComish.  The case is on an expedited schedule with the federal appeals court because it deals with the free speech rights of political candidates and those who support them; the 9th Circuit is scheduled to hear oral arguments in the case on Monday, April 12, 2010, in San Francisco.

On January 20, 2010, a federal district court in Arizona declared the matching funds provision of the state’s so-called “Clean Elections Act” unconstitutional.  Matching funds are a misguided effort to “level the playing field” by drowning out the voices of independent groups and individual privately financed political candidates.  Matching funds are taxpayer dollars given to publicly funded candidates when independent groups and privately funded opposition candidates raise or spend more than a government-imposed limit.  For every dollar such groups or individuals spend to support the privately funded candidacies, the government cancels out, and often completely overwhelms, that support by paying that amount of money to their political competition and sometimes in multiple amounts if there is more than one taxpayer-funded candidate.

Maurer said, “The government’s job should be to ensure equal access to the polls not equal resources for candidates.  In truly free elections, candidates with stronger campaigns and more appealing messages should enjoy a funding edge, but Arizona punishes popular privately funded candidates by financing their opponents.”

The best bet for traditional candidates (those who are privately funded) 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 trial court, Dr. Primo concludes that “the matching provisions lead to changes in fundraising and campaign spending in ways that are harmful to free expression.”  That court found 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.”

In her January 20 ruling, Judge Roslyn O. Silver of the U.S. District Court for the District of Arizona ruled that the matching funds provision “burdens … First Amendment rights, is not supported by a compelling state interest, is not narrowly tailored, and is not the least restrictive alternative.”  Judge Silver, however, stayed her ruling so that the state commission that enforces Arizona’s public financing scheme could appeal.  An emergency motions panel from the 9th Circuit extended that stay until the three-judge panel assigned to decide the merits of the case could decide the case.  Unless the merits panel vacates the stay, matching funds will be issued in the 2010 election and significantly burden the free speech rights of all privately financed political candidates for state and legislative offices in Arizona.

“The 9th Circuit should act swiftly to affirm the district court’s judgment and immediately vacate the stay so that the matching funds provision will not be able to trigger any additional public subsidies,” continued Maurer.  “For too long, Arizona’s unconstitutional Clean Elections scheme has muzzled the speech of independent groups and candidates and tilted the scale toward those who accept taxpayer dollars for their political campaigns.  Arizonans should be able to conduct their 2010 campaigns without government manipulating the debate by putting its thumb on the scales in favor of those candidates taking public money.”

The district court ruling in Bennett v. McComish was the culmination of a five-year legal battle by the Institute for Justice to have the merits of its clients’ First Amendment claims heard in court.  IJ represents two independent political groups, the Arizona Free Enterprise Club’s Freedom Club PAC and the Arizona Taxpayers Action Committee and candidates state Rep. Rick Murphy, Arizona State Treasurer Dean Martin and state Senate President Robert Burns.  Rep. Rick Murphy’s experience in his 2008 legislative race is illustrative of how matching funds have 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.  Matching funds often guarantee that candidates who refuse taxpayer subsidies will be outspent by publicly funded opponents.  Indeed, Murphy raised only $21,000 in the general election, but his three opponents received more than $176,000 in public subsidies because of the matching funds provision.

“Public campaign financing has been a complete failure in Arizona,” said Institute for Justice Arizona Chapter Executive Director Tim Keller.  “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 incumbent reelection rates and has also led to a more partisan and divided legislature as candidates no longer need to attract broad support from private funders.”

“Despite the utter failure of government-funded political elections in Arizona, some want to use this as a model to regulate political speech elsewhere,” warned Maurer.  “But, as the district court in Arizona recognized, such systems are incompatible with American free speech rights.  People have a right to participate in elections, and that includes financially supporting candidates and causes in which they believe.  If we truly want to prevent trading political favors for campaign contributions, the answer is to return government to its constitutional limits so there are fewer favors to seek or give.  The answer is to limit government power, not political speech and participation.”

In particular, Congress is now considering the “Fair Elections Now Act,” which would fund the election campaigns of U.S. senators and representatives with public money.  Although a matching funds provision was recently stripped out, it remains similar to Arizona’s system in nearly every other respect.

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

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 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 about Arizona’s Clean Elections system.