Why sharply divided Supreme Court may strike down Arizona campaign-finance law

A sharply divided US Supreme Court on Monday appeared prepared to strike down a key portion of Arizona’s system of public financing for elections –potentially dealing another major blow to campaign finance reform advocates.

The case, Arizona Free Enterprise Club v. Bennett, examines an Arizona law that provides public funding for political candidates. At issue is the provision providing matching funds to publicly-funded candidates. These candidates get dollar-for-dollar taxpayer funding equal to the campaign spending of any political opponents who choose to rely on private campaign donations.

The Arizona system is designed to encourage candidates for statewide office to reject traditional, private fund-raising efforts, in favor of a government-funded option. Under the public option, candidates who obtain a certain number of $5 donations are deemed qualified for an "initial grant" of campaign funds. No one is challenging the constitutionality of that portion of the state law.

The controversial part of the law involves the allocation of matching funds. Under the law, whenever a candidate who rejected the government-funded option spends more than that initial grant, all government-funded candidates are eligible to receive a dollar-for-dollar match, to ensure the political campaign remains competitive.

Privately-funded candidates must abide by campaign contribution and disclosure limits, but are permitted to raise and spend unlimited amounts in their campaigns. In contrast, government-funded candidates are limited to spending three times the initial grant amount.

Arguments before the Supreme Court

“This case is not about whether the State of Arizona may provide campaign financing using public funds,” William Maurer, a lawyer for candidates and groups challenging the law, told the justices.

“What this case is about is whether the government can turn my act of speaking into the vehicle by which my political opponents benefit – with direct government subsidies,” he said.

The lawyer defending the Arizona law, Bradley Phillips, told the justices the provision fosters more political speech and more political competition while simultaneously fighting the corrupting influence of money in politics.

Mr. Phillips told the court that the matching-funds provision helps fight corruption by offering candidates an effective alternative to raising campaign funds from special interests.

Mr. Maurer countered that the provision violates free speech protections of the First Amendment by punishing candidates who opt-out of the public financing program. He said the government should not use one candidate’s protected political speech as a means of triggering additional money for other, government-funded, candidates.

Maurer said there was no constitutional problem with awarding public-funded candidates the full amount of the campaign grant upfront. He said his only complaint was with the triggering mechanism.

The law also provides additional matching funds whenever an independent advocacy group runs an ad opposed to a government-funded candidate or in favor of a privately-funded candidate. In contrast, no funding is triggered when an advocacy group backs a government-funded candidate or opposes a privately funded candidate.

Questions from the justices

During the hour-long argument on Monday, the justices appeared to be divided along well-established liberal-conservative lines.

The liberal wing, comprised of Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan, appeared through their questions and comments to favor upholding Arizona’s matching funds provision.

They appeared to agree with the federal appeals court panel that said the provision was permissible because it enhanced speech, fostering more political speech rather than less.

“There’s no restriction at all here,” Justice Kagan said at one point. “It’s more speech all the way around.”

1 | 2

Next