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Two-way attack waged on Clean Elections matching funds

While attorneys prepare for a summer showdown over the constitutionality of a segment of Arizona's system of public campaign financing, a committee of legislators will decide whether to give voters the opportunity to ban publicly funded campaigns entirely.

On June 15, the Senate Judiciary Committee is scheduled to hear testimony and vote on whether to further SCR1025 for a full Senate consideration. The referendum would allow Arizona voters to amend the state's Constitution to ban publicly funded campaigns.

The measure would effectively nullify a 1998-approved voter initiative that established the Citizens Clean Elections Commission and the state's use of publicly funded campaigns for legislative and statewide offices.

Supporters of the system argue public funds have lessened the grip that special-interest groups hold over lawmakers and have allowed a wider variety of candidates to run viable campaigns for office.

"Clean Elections has opened the door to many, many people in Arizona to be involved in the political process. It's allowed people to run for office that otherwise wouldn't be able to and allowed voices to be heard by elected officials. It's been a benefit to Arizona," said Michael Becker, voter education manager for the Clean Elections Commission.

But foes of Arizona's campaign scenario claim the system's regulatory operations chill the unfettered free-speech rights of candidates who raise their own money, and they credit the availability of public money for the election of ineffective, fringe candidates.

"Clean Elections gives you a lesser quality of people, and I think people should have to raise their own money," said Sen. Steve Pierce, a Prescott rancher who funded his 2008 campaign for office. "If I want to pay my own way or raise money somebody else gets to get the money from the state. It's not fair."

Pierce is one of five senators to co-sign the referendum, which has been introduced by Tucson Sen. Jonathan Paton, a Republican who also serves as chairman of the Senate Judiciary Committee.

Meanwhile, attorneys for Clean Elections Commission and a host of private organizations are expected to file legal briefs in federal court on June 12 to address a lawsuit that could determine the state's use of so-called matching funds.

Matching funds, distributed by the Clean Elections Commission, aid publicly funded candidates when their privately funded opponents exceed campaign-spending limits or benefit from expenditures from independent political groups.

Last year, attorneys from the Goldwater Institute filed a lawsuit challenging the constitutionality of matching funds on behalf of several privately funded Republican candidates who claimed the available matching money coerces candidates into campaigning with public money and creates a chilling effect on political speech.

The lawsuit was filed during the 2008 campaign, but U.S. District Court Judge Roslyn Silver refused to stop the commission from distributing the funds during the remainder of the election season.

But, in the same stroke, Silver agreed with the plaintiffs, who were joined by the Institute for Justice, that the matching funds system was unconstitutional under the 2008 U.S. Supreme Court decision in Davis v. F.E.C.

That decision nullified the federal so-called "Millionaire's Amendment," which allowed federal candidates to exceed established contribution limits if they face a self-funded opponent who campaigned with large amounts of their own money.

The court's opinion noted that government entities have been authorized to place limits on campaign financing to minimize corruption, or at least the appearance of corruption.

The intent of the Millionaire's Amendment, the court noted, was to create a "level playing field" among candidates. The designation is not an established compelling government interest to regulate the financing of political campaigns.

Silver, in an explanation released in October, said the matching-funds provision differed from the Millionaire's Amendment but still had the same effect of burdening the free-speech rights of candidates.

"Ultimately, the Arizona Act's mechanism for funding differs, it enforces substantially the same coercive choice on traditional candidates – to abide by a limit on personal expenditures or else endure a burden on that right," Silver wrote. "…The Arizona Act imposes a substantial burden on the First Amendment right to use personal funds for campaign speech."

Litigants involved in the case expect Silver to make a final determination on whether to ban matching funds by the end of this year.

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