Supreme Court Challenge to Arizona Clean Elections Act Could Have National Implications

J. Gerald Hebert and Tara Malloy
Mar 17, 2011
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On March 28th, the U.S. Supreme Court will hear oral argument in McComish v. Bennett, a high-stakes campaign finance case in which the Court will assess the constitutionality of a public financing law for the first time in 35 years. The case deals with the “triggered matching funds provisions” of Arizona’s highly successful Clean Elections system, but it could affect similar public financing systems in numerous states and cities. Just a year after the controversial decision in Citizens United v. FEC, the Court is once again poised to issue a ruling that could make it harder for ordinary citizens to compete with big money in our democracy.

In recent years, states and cities beset by corruption scandals have enacted innovative public financing systems as a way to clean up their politics. These systems give candidates a chance to make their case to the electorate without relying on potentially-corruptive private contributions from special interests. They are a bright spot in an otherwise distressing political landscape dominated by big money. The U.S. Supreme Court strongly endorsed voluntary public financing in the landmark 1976 Buckley v. Valeo case, finding that public financing represents a governmental effort “not to abridge, restrict, or censor speech, but rather to use public money to facilitate and enlarge public discussion and participation in the electoral process, goals vital to a self-governing people.” McComish offers the Court a chance to reaffirm its longstanding support of public funding.

The case could have a broad impact on federal and state efforts to create alternative methods for funding election campaigns. Depending on its scope, an adverse ruling from the high Court could undermine public financing systems across the country and increase still further the grossly disproportionate voice given to corporations and unions in our elections.

Last year, the Court’s controversial decision in Citizens United v. FEC ignored decades of legal precedent and unleashed vast corporate and union treasury funds on the 2010 mid-term elections. The Legal Center has urged the Supreme Court to avoid a similar judicial overreach in McComish v. Bennett and to instead rule narrowly on the Arizona law before the Court.

The Challenged Arizona Law 

At issue are the trigger provisions of Arizona’s Citizens Clean Elections Act, enacted by voters through a ballot referendum 13 years ago. The Act provides public funds to qualifying candidates who raise a threshold number of small private contributions, and agree to forgo any additional private fundraising and to limit their campaign spending. The challenged trigger provisions provide participating candidates with supplemental public funds in the event they face high spending by privately-financed opponents or by hostile outside groups. This triggered release of supplemental public financing ensures that participating candidates have sufficient resources to wage competitive campaigns while conserving limited state resources and avoiding the needless disbursement of public funds. Importantly, the trigger provisions impose no direct limits or restrictions on the spending of nonparticipating candidates or independent groups in order to meet these goals.

This system has been a striking success. Competition has increased in Arizona, as the vast majority of candidates participate, Republican and Democrat alike. Most importantly, by encouraging participation in the program, the trigger provisions have reduced state candidates’ reliance on private contributions and thereby furthered the compelling governmental interest in combating potential corruption in Arizona elections.

This success notwithstanding, in August 2008, a group of privately-financed candidates and outside spending groups challenged the Act, arguing that triggered matching funds chilled their speech by indirectly deterring their spending. Although they offered no proof that their speech was actually chilled, a federal district court overturned the trigger provisions. A unanimous Ninth Circuit Court of Appeals, however, upheld the provisions in May of last year.The U.S. Supreme Court then “stayed” the Ninth Circuit opinion, effectively invalidating the trigger provisions in the middle of the 2010 election. Now the high Court has agreed to hear the case.

The Defense of the Arizona Law

The law is being defended by the State of Arizona, as well as the Brennan Center for Justice at NYU School of Law and the pro bono firm of Munger Tolles Olsen on behalf of the Arizona Clean Elections Institute. The amici briefs have been coordinated by the Campaign Legal Center. The statute is being challenged by the Goldwater Institute and the Institute for Justice. The Solicitor General of the United States filed a strong brief in support of the law on behalf of the U.S. government and will participate in oral argument.

The defense of the law has also attracted a striking array of friends of the court (“amici curiae”) from across the political spectrum, urging the Justices to uphold the law as a boost for political speech.

The Campaign Legal Center, with Democracy 21, filed an amici brief on behalf of eight public interest groups to defend the challenged trigger provisions. The Legal Center’s brief argued that the Supreme Court’s decision in Buckley v. Valeostrongly endorsed public financing and that the principles underlying that decision also supported the constitutionality of Arizona’s program. The Legal Center also noted that a broad range of public financing programs have been enacted at the federal, state and local levels, and urged the Supreme Court to rule in a manner consistent with the relatively narrow focus of the Arizona challenge. In addition to serving as a friend-of-the-court, the Legal Center, along with its partners, coordinated a broad range of amici in the defense of the Arizona public financing system, including:

  • Charles Fried, Ronald Reagan’s Solicitor General, authored a brief on behalf of former senators Alan Simpson (R-WY), Warren Rudman (R-NH), Bob Kerrey (D-NE), and Bill Bradley (D-NJ), governors Christine Todd Whitman (R-NJ) and Bruce Babbitt (D-AZ), and others. They noted: “[The plaintiffs] challenge a regime that silences no one, prohibits no speech, and only enables additional speech. To make their counterintuitive point that Arizona’s law is nonetheless constitutionally defective, Petitioners must argue that, because the Arizona law enables more speech, it somehow has impermissibly interfered with their ability to speak as much as they want on any subject they choose.”
  • Thirteen former chief and associate justices of state supreme courts, and Justice at Stake, filed a brief in support of the Act, explaining that states faced with rising special interest spending for judicial contests increasingly are turning to public funding as an alternative. The justices wrote: “Public financing eliminates the need for judges to ‘dial for dollars’ from major contributors, many of whom appear before them in court. It is therefore one of the most powerful reforms in shielding courts from special-interest influence.”
  • Top political scientists weighed in, presenting evidence that the Arizona system actually promotes competition and political speech. The law’s challengers assert that the triggered matching funds curb their speech. They claim they are afraid to spend too much, which may trigger more funds for their opponents. In fact, the political scientists assert, the evidence shows no impact on spending levels by nonparticipating candidates.

In total, 17 amicus briefs were filed in support of Arizona’s law, which included briefs from prominent business executives and constitutional law experts.

Does the Law Curb Speech?

The law’s opponents claim that privately-financed candidates are “chilled” from spending beyond the threshold that triggers the release of supplemental public funds to their political opponents.

As a legal matter, their argument is based on the Supreme Court’s 2008 decision inDavis v. FEC. But Davis was not a public financing case, and should not govern theMcComish proceedings. In Davis, the Court struck down a provision of the McCain-Feingold law that raised the campaign contribution limits for congressional candidates who faced an opponent who self-financed his or her campaign. The Court struck down this asymmetrical system, which subjected two privately-financed candidates to different contribution limits based upon their differential use of personal funds, concluding that the enforcement of a lower contribution limit on the self-financing candidate amounted to a direct penalty on that candidate. InMcComish, by contrast, there is no unequal treatment of similarly-situated candidates.

More broadly, it is plain that public funding systems (with or without trigger funds) in fact boost the speech of participating candidates without deterring robust campaigning by non-participating candidates. Donald Green, director of the Institute for Social Policy Studies at Yale University and an expert witness in the case, reported that spending by privately-funded candidates with publicly-funded rivals does not cluster just below the trigger threshold, a finding recently affirmed by a group of political scientists. One would expect such a clustered spending pattern if triggered matching funds had actually chilled the spending of privately-funded candidates.

An Innovative and Successful Reform

Public financing of campaigns has proven an effective, innovative reform—one that enhances the speech and encourages participation of candidates and citizens. Currently, 29 state and municipal public financing systems are in place.

  • Arizona, Maine and Connecticut have robust public financing systems in which the majority of state candidates participate.
  • New York City and San Francisco, among many others, have municipal systems.
  • North Carolina and, most recently, Wisconsin have adopted public financing for statewide judicial elections.
  • Several of these systems have “trigger” provisions akin to Arizona’s, including Maine, New Mexico, North Carolina and Wisconsin.
  • Of course, a number of public financing systems do not include triggers, including the presidential public financing system. The presidential system has operated successfully for three decades, and until 2008, it was used by every presidential nominee of both parties, including Presidents Ford, Carter, Reagan, Bush, Clinton and Bush. (The system now needs updating to make it viable for presidential aspirants.) Various state systems, including programs in Massachusetts, Michigan and Minnesota, similarly operate without trigger provisions. Although there is thus a diversity of public financing programs, an adverse ruling by the high Court could jeopardize many successful reform systems across the country and, depending on the breadth of the ruling, threaten the fundamental constitutionality of public financing.

Not Another Citizens United

The McComish case on its surface may appear limited in scope – impacting a single state’s public financing system – but it has the potential to have a much wider impact on our democracy.  

As the briefs show, Arizona’s triggered matching funds provision is carefully tailored to combat political corruption, enhance political speech, and increase competition in a fiscally responsible way. It does not chill the speech of privately-financed opponents. Rather, it “furthers, not abridges, pertinent First Amendment values,” and adds voices to the political debate. Voluntary public financing plays a critical role in our democracy.

How the Court rules in the McComish case is likely to determine the viability of public financing currently in effect in scores of places around the country. Arizona’s system has been a great success and should be preserved.  And even if the Court rules against the Arizona program, its decision can and should be a narrow one.  This case should not become the Citizens United of public financing.

 

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