U.S. Supreme Court blocks matching funds provision of Clean Elections

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WASHINGTON – On Tuesday, June 8, 2010, the U.S. Supreme Court issued an order blocking the distribution of matching funds under Arizona’s Clean Elections Act.

U.S. District Court Judge Roslyn O. Silver, for the District of Arizona, declared the matching funds provision unconstitutional on Jan. 20, 2010.

Silver concluded the Act, in its current form, is not supported by a compelling interest, is not narrowly tailored, is not the least restrictive alternative, and is unconstitutional under the First Amendment.

However, on May 21, it was reversed and remanded by the Ninth Circuit Court of Appeals for further proceedings.

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

Tashima went on to say, “The record demonstrates that Arizona has a long history of quid pro quo corruption,” and mentions AzScam, in which legislators sold their votes for bribes.
Despite contribution limits in place prior to the Act, Tashima stated, “Arizona voters were justified in concluding that contribution limits alone were not sufficient to combat corruption and its appearance … Furthermore, the state has an interest in providing matching funds to encourage participation in its public funding scheme.”

Tashima said the district court “misapprehended how the Act functions to reduce corruption” and concluded the Act does not violate the First Amendment.

Judge Andrew J. Kleinfeld wrote a concurring opinion stating, “Arizona is entitled to make good or bad laws so long as they do not violate the Constitution. Since this law does not limit speech, it does not violate the First Amendment.

“Perhaps public funding is good because it helps candidates run for office without relying on contributions from people who will want something in return. Perhaps it is bad because in a state with a large electorate and mass media, large contributors are the only people involved who know a candidate, and their money gives the public the benefit of what amounts to quality screening by people who actually know the candidate. As for the notion that contributions amount to bribery, at least when they are large, that may be so, or it may be that large contributions amount to protection money that those especially vulnerable to government power pay to those they fear will wield it. Perhaps both, or neither, is true … None of this matters to this case.”

While Kleinfeld noted there are no Ninth Circuit cases speaking to the constitutionality of the Arizona scheme or anything like it, and sister circuits have issued divided opinions, he concluded “Arizona is not constitutionally barred from using the scheme before us.”
Arizona Chamber of Commerce and Industry President and CEO Glenn Hamer applauded the U.S. Supreme Court’s injunction.

He said, “Now traditionally funded candidates can run their campaigns at full strength without simultaneously helping their publicly funded opponents.”

Hamer went on to say, “I am confident that the Supreme Court will give matching funds a full review later this year and will agree that they should be permanently relegated to the same category as the Edsel, 8-track tapes and Betamax.”

Nick Dranius, the Goldwater Institute’s lead attorney for the plaintiffs in the case known as McComish v. Bennett, said, “This ruling vindicates the right of traditionally funded candidates to run their campaigns without the heavy hand of government helping their opponents.”

The Goldwater Institute moved to have the Supreme Court intervene before the state began doling out the first round of matching funds on June 22, 2010.

In a pleading before the court on Monday, the Goldwater Institute emphasized that publicly subsidized candidates were first warned by Silver over 18 months ago that matching funds were unconstitutional. While Silver issued her final ruling on Jan. 20, she delayed her order so the state could appeal. The Supreme Court's action on Tuesday ended that delay and put Silver's order into effect immediately.

Governor Jan Brewer, who is running as a Clean Elections candidate, called the Supreme Court’s order “troubling.”