Ninth Circuit Deals Significant Blow to Free Speech; Court’s Ruling Reinstates So-Called “Clean Elections” Provisions

John Kramer
John Kramer · May 21, 2010

Arlington, Va.—In a substantial blow to the freedom of political speech, the Ninth U.S. Circuit Court of Appeals today upheld the “matching funds” provisions in Arizona’s “Clean Elections” Act in the case of McComish v. Bennett.  A federal district court in Arizona had struck down the provisions in January as a violation of the First Amendment.

The Act squelches the free speech of candidates who raise their own funds for their campaigns, by simply handing out funds to their opponents who participate in the taxpayer-funded scheme.  For every dollar a privately funded candidate spends above a certain amount, the government hands taxpayer dollars over to his opponent to allow him to “match” the spending—and thus the speech—of the privately funded candidate.  The Act even matches funds spent by independent groups to support privately funded candidates.  The Act thus punishes privately funded candidates and their supporters for spending money on speech.

“The Ninth Circuit’s decision today was wrong on the facts and the law,” said Bill Maurer, the lead attorney in a legal challenge to the Arizona law brought by the Institute for Justice. “The Court failed to follow U.S. Supreme Court precedent and decades of cases holding that the government has no role in ‘leveling the playing field’ among political speakers.  As a result, we expect to appeal to the U.S. Supreme Court.”

When she struck down the “matching funds” provisions in January, Judge Roslyn O. Silver of the U.S. District Court for the District of Arizona saw them for what they were:  a “burden[]” on “First Amendment rights” that “is not supported by a compelling state interest, is not narrowly tailored, and is not the least restrictive alternative.” The Ninth Circuit’s decision today overturned Judge Silver’s holding and rejected her reasoning.

“Matching funds violate the First Amendment rights of candidates, citizens and independent groups,” said Maurer.  “The government may not give a fundraising advantage to one candidate at the expense of his opponents.  The point of the Clean Elections Act is to limit spending on speech, and that is exactly what it does.”

The Ninth Circuit’s conclusion—that any burden on traditional candidates is insignificant— is belied by the plaintiffs’ experiences in this case.  For example, plaintiff Rep. Rick 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.

Murphy is determined to continue the fight, however, and today noted, “This decision is shocking given controlling U.S. Supreme Court precedent.”

In addition to Rep. Murphy, the Institute for Justice also represents two independent political groups, the Arizona Free Enterprise Club’s Freedom Club PAC and the Arizona Taxpayers Action Committee, and Dean Martin, who is Arizona State Treasurer, and state Senate President Robert Burns.

“We are disappointed by the ruling,” said Shane Wickfors of the Arizona Taxpayers Action Committee.  “The ruling will clearly hurt our ability to raise money and speak freely in the upcoming election cycle, but we are even more determined to pursue the right to speak out about candidates and the election process.”

Steve Voeller of the Freedom Club PAC also vowed to keep defending free speech and noted that under the ruling the Arizona Free Enterprise Club’s First Amendment rights would continue to be violated because “we will have to keep deciding whether to restrict our speech to keep it from being overwhelmed by money taken from the taxpayers.”

Tim Keller, executive director of the IJ Arizona Chapter, noted, “For a decade, this Act has warped Arizona’s politics and produced a system where our elections are more partisan and dirtier than ever.  Without swift action from the U.S. Supreme Court, Arizonans will experience more elections where the misnamed Clean Elections Act distorts and burdens our political speech.”

The Institute for Justice defends First Amendment freedoms and challenges burdensome campaign finance laws nationwide.  IJ recently won a landmark victory for free speech in federal court on behalf of, an independent group that opposes or supports candidates on the basis of their stand on free speech.  IJ also won recent victories for free speech in Florida when a federal judge struck down the state’s broadest-in-the-nation “electioneering communications” law and in Washington when it stopped an attempt to use the state’s campaign finance laws to regulate talk-radio commentary about a ballot issue.
Read more about Arizona’s Clean Elections system.