It’s too late in the current election cycle to block payment of extra campaign money to publicly funded candidates whose campaign strategies took so-called matching funds into account, the state told the U.S. Supreme Court on Monday.
Lawyers for the state filed a response asking the justices to reject a request by opponents of matching funds to block the June 22 start of the payments.
Publicly funded candidates get so-called matching funds – up to twice as much as their original allotments of public funding – when they’re outspent by privately funded rivals or targeted by independent groups’ spending.
It wasn’t immediately known how soon the Supreme Court would act on the opponents’ request, which has high stakes for races for state offices from the governor on down the ballot.
Lower courts split on whether matching funds are constitutional.
The opponents’ last week said matching funds infringe on the First Amendment free-speech rights of privately funded candidates by inhibiting candidates’ spending and their contributors.
The state’s response disputed that and also said blocking matching funds would hurt candidates who now are not allowed to switch to private funding after getting public money.
In at least the Republican race for governor, Yavapai County businessman Buz Mills already has spent enough money on his largely self-funded campaign that his publicly funded rivals already are positioned to receive the maximum matching funds, the state’s response noted.
That means providing matching funds for Mills’ publicly funded opponents wouldn’t have any effect on any additional spending by Mills, the response added.
“Thus, the only ‘harm’ that Mr. Mills will suffer if this court denies this application is that his opponents will be able to exercise their free speech too, using money allotted to them by an Arizona law that has been in place since 1998,” the response said.
Gov. Jan Brewer’s campaign in the Republican primary race has already qualified for public funding. State Treasurer Dean Martin also plans to run with public funding but has not yet qualified for it.
In a final filing, the opponents argued Monday that candidates have long been aware that matching funds could be declared unconstitutional.
The approach of the 2010 elections shouldn’t stand in the way of protecting First Amendment rights, the opponents’ lawyers said. “Arizona’s election season is not a Constitution-free zone.”
Their filing noted that a trial judge first ruled in late 2008 that matching funds could be unconstitutional. The judge issued a formal order with that conclusion in January but the 9th U.S. Circuit Court of Appeals overturned it in May.