Nearing the 5:00 end-of-the-business-day deadline, Circuit Court Judge Roslyn Silver issued a proposed order banning matching funds. But it isn’t the final word on whether the funds will be passed out to Clean Elections candidates in 2010.

Silver’s 18-page proposed order contains numerous examples that she’s bothered by some of the Goldwater Institute’s claims that matching funds burden free speech rights of privately funded candidates. However, in the same breath, Silver writes she is compelled by the Supreme Court ruling in Davis to find that the funds are an unconstitutional burden on privately-funded candidates’ free speech rights.

Case law holds the First Amendment is to “secure the widest possible dissemination” of speech, while matching funds, presumably, create more speech, wrote Silver, adding she was curious why the Goldwater wouldn’t argue that public funding itself – without matching funds – didn’t also drag on free speech rights. “If a single lump sum award would not burden free speech rights in any cognizable way, finding a burden solely because of the incremental nature of the awards seems difficult to establish,” she wrote.

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