VOL. 17 ISSUE NO. 26   |   JUNE 29 – JULY 5, 2011


SCOTUS shoots down matching fund provisions of Clean Elections

Kagan called the triggering mechanism for matching funds ‘constitutionally irrelevant’

chief justice john robertsWASHINGTON – On Monday, in a 5-4 decision, the U.S. Supreme Court found the matching funds provision of the Arizona Citizens Clean Elections Act unconstitutional, with the opinion of the court delivered by Chief Justice John Roberts (r).

Roberts wrote, “We hold that Arizona’s matching funds scheme substantially burdens protected political speech without serving a compelling state interest and therefore violates the First Amendment.”

Justice Elena Kagan, who was joined by justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor, issued a dissenting opinion.

Petitioners, comprised of a candidate for state treasurer, four candidates for the Arizona House of Representatives, and two independent expenditure groups that spend money to support and oppose candidates, challenged the constitutionality of the matching funds provision, asserting it penalized speech and burdened their ability to fully exercise their First Amendment rights.

The U.S. District Court entered a permanent injunction against the matching funds provision.
The injunction was subsequently reversed by the Ninth Circuit Court of Appeals, concluding the matching funds provision imposed only a minimal burden, which it stated was justified by Arizona’s interest in reducing political corruption.   
In elections where there are multiple publicly financed candidates, the matching funds provision of the CCEA created a multiplier effect, whereas, each dollar spent by the privately funded candidate triggered an additional dollar of funding to each of that candidate’s publicly financed opponents.

Spending by independent expenditure committees to promote a privately financed candidate also triggered matching funds to that candidate’s opponents.

While those matching funds, triggered by the independent expenditure group, go directly to the publicly funded candidates to use as they please, which is a substantial advantage for the publicly funded candidate, the privately funded candidate has no control over what an independent expenditure group does that may trigger funding to his opponents.

Roberts stated, “The professed purpose of the state law is to cause a sufficient number of candidates to sign up for public financing … which subjects them to the various restrictions on speech that go along with that program. This goes too far; Arizona’s matching funds provision substantially burdens the speech of privately financed candidates and independent expenditure groups without serving a compelling state interest.”

Roberts pointed out in a footnote the dissent “repeatedly argues that the Arizona matching funds regime results in ‘more political speech’ … but – given the logic of the dissent’s position – that is only a step to less speech. If the matching funds provision achieves its professed goal and causes candidates to switch to public financing … there will be less speech: no spending above the initial state-set amount by formerly privately financed candidates, and no associated matching funds for anyone. Not only that, the level of speech will depend on the state’s judgment of the desirable amount, an amount tethered to available (and often scarce) state resources.”

According to the majority, it is not the amount of funding provided to publicly financed candidates that is constitutionally problematic but rather the manner in which that funding is provided—in direct response to the political speech of privately financed candidates and independent expenditure groups.

In its amicus brief, the United States claimed additional funds provided by the state to the petitioners’ opponents does not make petitioners’ own speech any less effective.

However, Roberts countered, “Of course it does. One does not have to subscribe to the view that electoral debate is zero sum … to see the flaws in the United States’ perspective. All else being equal, an advertisement supporting the election of a candidate that goes without a response is often more effective than an advertisement that is directly controverted. And even if the publicly funded candidate decides to use his new money to address a different issue altogether, the end goal of that spending is to claim electoral victory over the opponent that triggered the additional state funding.”

elena kaganKagan (l) asserts private campaign financing causes corruption, resulting in politicians ignoring the public interest, sound public policy languishing and citizens losing confidence in their government.

According to Kagan, citizens, in recognizing the “cancerous effect of this corruption,” enacted campaign finance measures through referendum to cap campaign contributions, require disclosure of substantial donations and create an optional public financing program if they refrain from private fundraising.

She stated “But, these measures do not work,” adding, “Simple disclosure fails to prevent shady dealing. And candidates choose not to participate in the public financing system because the sums provided do not make them competitive with their privately financed opponents. So the state remains afflicted with corruption.”

Kagan criticized the majority for holding the system she believes “produces honest government, working on behalf of the people,” as clashing with our Constitution.

“In case after case, year upon year,” Kagan stated, “we have distinguished between speech restrictions and speech subsidies.

“There is a basic difference between direct state interference with First Amendment protected activity and state encouragement of other expression,” wrote Kagan, pointing out, “Government subsidies of speech, designed to stimulate … expression … are consistent with the First Amendment, so long as they do not discriminate on the basis of viewpoint.”

Kagan called the triggering mechanism for matching funds “constitutionally irrelevant,” and concluded, “No fundamental principle of our Constitution backs the court’s ruling; to the contrary, it is the law struck down today that fostered both the vigorous competition of ideas and its ultimate object—a government responsive to the will of the people. Arizonans deserve better. Like citizens across this country, Arizonans deserve a government that represents and serves them all.”

Noting the U.S. Supreme Court has previously rejected government efforts to increase the speech of some at the expense of others outside the campaign finance context, Roberts concluded, “Laws like Arizona’s matching funds provision that inhibit robust and wide-open political debate without sufficient justification cannot stand.”

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