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Goldwater Institute appeals matching funds ruling

With less than a month to go before Clean Elections candidates start getting matching funds, the Goldwater Institute is falling back on its last line of defense to scrap the public financing system for the 2010 elections.

The Goldwater Institute on May 25 filed an emergency motion with U.S. Supreme Court Justice Anthony Kennedy, requesting that he uphold the U.S. District Court ruling that struck down matching funds as unconstitutional. Kennedy can refer the issue to the full court, said Goldwater attorney Nick Dranias, but has the authority to rule on his own.

“We believe that Justice Kennedy is a champion of free speech. We believe that Justice Kennedy will be one of the strongest advocates for free speech in the entire Supreme Court. And we believe matching funds punish the exercise of First Amendment rights to engage in free speech,” Dranias said.

The window for the Supreme Court to scrap matching funds is small and closing quickly. The Citizens Clean Elections Commission will begin disbursing matching funds on June 22, but Dranias said Kennedy must rule before June 11 – when the Ninth Circuit’s mandate becomes official – in order to keep the public funding from being distributed.

The Ninth Circuit on May 21 ruled that the matching funds provision of Arizona’s Clean Elections system is constitutional and does not violate the First Amendment to the U.S. Constitution. The ruling reversed a U.S. District Court ruling that the system, which provides a dollar-for-dollar match to publicly funded candidates who are outspent by privately funded opponents, is a burden on the traditional candidates’ free speech rights.
CCEC Director Todd Lang said he expects Kennedy to refer the Goldwater Institute’s motion to the full Supreme Court, and believes the justice will be hesitant to tamper with the election this late in the cycle.

“I would be surprised if he did it without referring it the full court. I would imagine Justice Kennedy is going to tread lightly before he makes a decision that could affect the outcome of an election,” Lang said.

Lang said ending the matching funds provision this late in the campaign season would be unfair to publicly funded candidates who ran for office under the assumption that the money would be available in 2010. A Supreme Court reversal of the Ninth Circuit’s ruling in McComish v. Bennett, he said, would place a major burden on the campaigns of numerous Clean Elections candidates who are running against privately funded opponents.

Technically, the Goldwater Institute is not asking for an appeal of the Ninth Circuit’s ruling. When the Ninth Circuit agreed to take up the case, it issued a stay that prevented District Court Judge Roslyn Silver’s ruling from going into effect. The institute is asking the Supreme Court to lift that stay, and put the Ninth Circuit’s ruling on hold.

The Goldwater Institute asked Kennedy to vacate that stay in February, but the request was denied by the full Supreme Court.

Dranias, however, said he has reason for optimism that the institute’s second request for a stay will meet a better outcome. The court denied the Goldwater Institute’s request without prejudice, which means the justices intentionally left themselves the option of readdressing the case in the future, he said.

And Kennedy’s recent vote in the landmark case Citizens United v. Federal Elections Commission, in which the court lifted a ban on corporate and union spending in elections, shows which side of the campaign finance debate he is on, Dranias said.

“If the court didn’t think we had a case, if the court didn’t want to interfere with this election cycle and protect First Amendment rights, it wouldn’t have given us its denial without prejudice and the invitation to re-file,” Dranias said. “I don’t think the court just wants us to spin our wheels. I think the court wants to hear this case and wants to reconsider whether they should intervene.”

If Kennedy denied the Goldwater Institute’s request, Dranias said it would likely ask the Supreme Court for an emergency appeal. But that, he said, would leave the court little time to consider the issue before candidates started receiving matching funds.

In several races, candidates already have money coming to them. Incumbent Gov. Jan Brewer, for example, qualified for public funding in February and is already eligible for at least $1.1 million in matching funds due to the big-spending campaign of primary challenger Buz Mills.

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