Supreme Court Strikes Down Arizona Public Financing Law

Scarcely one year after its radical ruling in Citizens United v. FEC, the Supreme Court today struck down key provisions of Arizona’s state public financing program in another decision that will undermine the integrity of our elections.  The 5-4 opinion throws into jeopardy the public financing programs of several states and municipalities that contain trigger provisions much like those struck down today as part of Arizona’s program.  The successful and popular program was passed by Arizona voters in 1998 after a wave of corruption scandals in the state.

McComish marks the first time that the Supreme Court has reviewed a public financing law since Buckley v. Valeo overwhelmingly approved the constitutionality of the presidential public financing system 35 years ago in the wake of Watergate.  The Buckley Court declared 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.”

“Today’s decision runs counter to the spirit of the Buckley precedent, which found that public financing was enhancement, not an abridgement, of First Amendment values,” Legal Center Associate Counsel Tara Malloy said.  “The Court’s hostility towards legislative efforts to protect our elections from the corrupting effects of big money politics is deeply disturbing and deeply anti-democratic.”

The focus of the decision was the “triggered matching funds provisions” of Arizona’s highly-successful Clean Elections system that provided participating candidates with supplemental public funds grants in the event that they faced large expenditures by a privately-financed opponent or an outside group.  These trigger provisions were important to the “Clean Elections” model of public financing, as they encouraged participation and ensured that publicly-financed candidates can remain competitive in elections that are increasingly dominated by outside corporate money.

Importantly, the decision does not affect many public financing programs without trigger provisions.  These include the presidential public financing system, state programs using different payment models, such the programs of Minnesota and Massachusetts, and the congressional system proposed by the Fair Elections Now Act.

“Voluntary public financing plays a critical role in our democracy and represents one of the last bulwarks against the flood of corporate money that the Citizens United decision released.”  Ms. Malloy stated.  “But the silver lining to the Supreme Court’s decision is that it invalidates only one model of public financing and leaves open other avenues for reform.  Citizens and legislators will simply have to work harder in the design of public financing programs to ensure that they clear the new constitutional hurdles created by the Roberts Court.”

The Campaign Legal Center, with Democracy 21, filed an amici curiae brief with the Supreme Court on behalf of eight public interest groups in support of the challenged trigger provisions of the Arizona program. 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.