Arizona’s Clean Elections not so clean after all
By Linda Bentley | September 10, 2008
PHOENIX – Voters passed the Arizona Clean Elections Act (CEA) in 1998 and it has been under intense scrutiny ever since.
The U.S. Supreme Court threw Arizona’s law a curveball on June 27 with its ruling in Davis v. FEC (Federal Elections Commission) where it stated the government could not burden free speech by imposing an unconstitutional “penalty on any candidate who robustly exercises his First Amendment right,” which is precisely what providing matching funds to a candidate’s opponent does.
The court struck down what was known as the “Millionaires’ Amendment,” which raised contribution limits for federal candidates facing opponents wealthy enough to finance their own campaigns.
On August 21, the Goldwater Institute filed a complaint in U.S. District Court on behalf of plaintiffs John McComish, Nancy McLain, Doug Sposito, Frank Antenori, Kevin Gibbons and Tony Bouie, all non-participating candidates, and five days later sought a temporary restraining order (TRO) to halt the matching funds provision of the CEA, claiming those provisions impermissibly burden their First Amendment rights to freedom of speech.
On Sept. 3, U.S. District Court Judge Roslyn O. Silver granted the Institute for Justice’s (IJ) motion to intervene with a complaint filed on behalf of plaintiffs Dean Martin, Robert Burns, Rick Murphy, AZ Free Enterprise Club PAC and Arizona Taxpayer Action Committee, as well as a motion to intervene filed by the Institute for Law in the Public Interest on behalf of the Clean Elections Institute, Inc. as defendants.
Martin illustrated the unfairness of the CEA in his declaration, pointing out, as a non-participant he faced a government-funded Democratic opponent who faced no opposition in the primary election. Yet under the CEA, she still received both full cash disbursements of matching funds, which is an amount equal to the Act’s spending limit for the office of treasurer. Specifically, she received $47,770 for the primary election and $71,665 for the general election – for a total of $119,425.
However, because Martin’s opponent had no primary opposition, she was able to use every dollar of her full government-provided war chest against him in the general election.
And, even though Martin’s opponent already had $119,425 to spend against him in the general, as soon as Martin’s campaign raised an amount equal to his opponent’s general election spending limit of $71,655, she began receiving, dollar-for-dollar, what Martin raised in private donations.
According to Martin, if his campaign had not stopped its fundraising activities, she would have received a total of $214,965 for the general election, which, with the addition of primary funds, totaled $262,735.
The only means Martin had to avoid being massively outspent by his opponent was to prevent triggering of additional matching funds by his own campaign.
So, even though Martin chose not to participate as a clean elections candidate, he was still coerced into accepting the same limits as his government-funded opponent, yet without receiving any of the benefits of being a government-funded candidate, such as the receipt of matching funds for independent expenditures that opposed his candidacy and the label “participating” or “clean” candidate.
Expenditure limits for treasurer have since been raised to $82,620 for the primary and $124,020 for the general election. The CEA allows for a public subsidy of up to two times the amount in matching funds, setting a $372,060 potential limit for matching contributions to every government-funded candidate running for that office.
And, because raising that amount of money costs a campaign far more than the 6 percent deducted from the matching dollar-for-dollar funds provided to participating opponents, Martin claimed a government-funded opponent will always have more resources than a privately funded candidate and said, “[T]he harder the privately financed candidate works the more the government-funded candidate will benefit.”
IJ Washington Chapter Executive Director William Maurer, who is also co-counsel in the intervening Martin case, said, “The government’s job is to ensure equal access to the polls not equal access to campaign money. Candidates with a more appealing message who raise more to fund their own speech should be free to do so – and not be punished with a government check to their opponent. If the First Amendment means anything, it must mean that the government should not be sticking its nose and its checkbook into free political debate.”
Although Silver denied their motion for a TRO on Aug. 29, she said even though disadvantaged candidates weren’t a party to this litigation, “disrupting their expectations of funding shortly before an election surely interferes with the state’s interest in holding a fair, contested election.
“Certainly the fair nature of this election has been tainted by the constitutional violations with which it is entwined. However, as defendants point out, ‘[c]hanging the rule now would irreparably harm the candidates who in good faith chose to accept public funding by participating in Arizona’s Clean Elections program.’”
Silver concluded, “Plaintiffs have shown success on the merits. However, given the special nature of an election and the seriousness of enjoining a critical facet of it at this stage in time, Plaintiffs have not shown that the balance of harms tilts in their favor.”