U.S. Supreme Court Prevents Arizona From Penalizing Free Speech During 2010 Election

John Kramer
John Kramer · June 8, 2010

Arlington, Va.—Arlington, Va.—In a victory for the freedom of political speech, today the U.S. Supreme Court vacated an order of the Ninth U.S. Circuit Court of Appeals and reinstated an injunction against Arizona’s unconstitutional “matching funds” law—part of Arizona’s so-called system of “Clean Elections”—in the case of McComish v. Bennett.  A federal district court in Arizona struck down “matching funds” in January as a violation of the First Amendment, but the Ninth Circuit stopped that ruling from taking effect and later reversed it.

“This is terrific news for our fight to vindicate free speech by striking down this unconstitutional law,” said IJ senior attorney Bill Maurer, lead counsel for the Institute in this case.  “We will now ask the Court to take up this case on the merits.”

Arizona’s “Clean Elections” Act gives public money to politicians to run for office and squelches the free speech of candidates who choose to forego taxpayer dollars and instead raise their own funds for their campaigns.  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.  Just as importantly, 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 during campaigns.

“The Supreme Court’s decision today will allow the 2010 Arizona election to occur without the government placing its thumb on the scale in favor of those politicians who receive government subsidies,” continued Maurer.  “The purpose of this law was to limit individuals’ speech by limiting their spending.  But the First Amendment does not permit the government to restrain Americans from robustly exercising the right of free speech.”

When she struck down the “matching funds” provisions in January, Judge Roslyn O. Silver of the U.S. District Court of 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.”  Shortly thereafter, however, the Ninth Circuit stayed the effect of that decision.  Last month, the Ninth Circuit 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 an electoral advantage to one candidate by ‘leveling’ the speech 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, in 2008, IJ client 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.  The motion to stay the issuance of the funds was brought by IJ and the Goldwater Institute, which also represents privately financed candidates in the case.

“The Court’s action today demonstrates how badly the Ninth Circuit erred in upholding this unconstitutional system,” said IJ-Arizona staff attorney Paul Avelar.  “The Court’s unusual step today reflects the harm this system does to the free speech rights of privately financed candidates and independent groups that support them.”

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.  Today, the Supreme Court correctly recognized that allowing Arizona’s punitive system of taxpayer-financed campaigns to continue for yet another election would irreparably harm First Amendment rights.”

The Institute for Justice defends First Amendment freedoms and challenges burdensome campaign finance laws nationwide.  It is joined in this fight to strike down Arizona’s “matching funds” law by the Scharf-Norton Center for Constitutional Litigation at the Goldwater Institute.  IJ recently won a landmark victory for free speech in federal court on behalf of SpeechNow.org, 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.