Supreme Court to decide Arizona’s unique campaign financing law

State officials say the matching funds system does not penalize traditionally funded candidates. Instead, they say, it is a calibrated mechanism to ensure that publicly-funded candidates are provided with sufficient money to run competitive races.

Since the total amount of matching funds for candidates is capped, privately funded candidates are free to outspend publicly funded candidates, Assistant Attorney General James Barton said in his brief defending the law.

“Petitioners alleged that the matching funds provision may burden their ability to speak, but it imposes no ceiling on campaign-related activities and does not prevent petitioners from speaking,” Mr. Barton wrote.

The state also argues that the public funding program protects Arizona from quid pro quo corruption and the appearance of corruption by freeing participating candidates from having to rely on special interest groups for campaign contributions.

“A system which eliminates the need for a candidate to accept private dollars would prevent financial quid pro quo: dollars for political favors,” Barton said in his brief.

Opponents dispute corruption-fighting rationale

Opponents of the public finance system dispute this claimed corruption-fighting rationale. They say the public funding mechanism is really designed to “level the playing field” among competing candidates by restricting the amount of money candidates are likely to spend trying to get elected.

“The matching funds provision exists to ‘level’ the speech of privately financed candidates and independent expenditure groups who speak against publicly financed candidates,” wrote William Maurer, a lawyer with the Institute of Justice, in his brief on behalf of candidates and organizations challenging the law.

“It does so by creating disincentives for candidates and independent expenditure groups to engage in political activity above the expenditure limit set by the act,” he said.

Any effect on corruption, he says, is too far removed from the more direct effect of chilling political speech, he said.

The case began as lawsuits filed on behalf of two groups of candidates for state office and political committees that make independent expenditures in state elections. They argued that the matching fund provision of Arizona’s public finance system violated their free speech rights by deterring them from making campaign expenditures that might trigger a new source of funds for their publicly financed political opponents.

Lower courts came to different conclusions

A federal judge agreed with the candidates, and ordered the state to stop disbursing matching funds. A panel of the Ninth US Circuit Court of Appeals reversed, finding that Arizona’s public finance system was justified as a means to prevent corruption and that the matching funds provision did not amount to a significant impediment to political speech.

“Based on the record before us, we conclude that any burden the act imposes on Plaintiffs’ speech is indirect or minimal,” the appeals court said.

“Plaintiffs bemoan that matching funds deny them a competitive advantage in elections,” the panel said. “The essence of this claim is not that they have been silenced, but that the speech of their opponents has been enabled.”

A few weeks after the Ninth Circuit panel’s decision, the US Supreme Court blocked the decision and reinstated the federal judge’s injunction prohibiting enforcement of the matching funds provision.

The cases are Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett (10-238) and McComish v. Bennett (10-239).

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