The U.S. Supreme Court blocked Arizona’s Clean Elections system from distributing matching funds, throwing a number of high profile campaigns into disarray just weeks before candidates were to start receiving money.
The court on June 8 granted a request by the Goldwater Institute to halt a recent ruling of the U.S. Ninth Circuit Court of Appeals that declared matching funds constitutional. The justices ordered that the distribution of matching funds be put on hold until it can hear a full appeal of the matching funds system.
Goldwater Institute attorney Nick Dranias said he doesn’t expect the court to hear the appeal in McComish v. Bennett until around October, meaning matching funds are essentially finished for 2010.
The primary election is Aug. 24. The general election is Nov. 2.
“At minimum, I think we’ve succeeded in stopping the violation of our clients’ first amendment rights for this election cycle,” he said. “The blocking of matching funds continues until they reject or accept our appeal.”
Clean Elections Commission Executive Director Todd Lang said he was “extremely disappointed” in the Supreme Court’s ruling and called it a step back for the freedom of speech.
“To take such an action as this so late in an election cycle is unprecedented. Matching funds result in more speech and more political debate, not less,” Lang said in a press release.
But Dranias and Clint Bolick, director of the Goldwater Institute’s legal division, said publicly funded candidates had fair warning that matching funds might not be there for them. U.S. District Court judge Roslyn Silver wrote in 2008 – more than a year before her ruling – that the system was likely unconstitutional.
“People were on notice not only from the court rulings but from the Clean Elections folks themselves that matching funds were in serious jeopardy this year. So people who gambled that public subsidies would be available to them now are reaping the folly of such a gamble,” Bolick said.
The decision will take a major toll on several campaigns, most notably in the governor’s race. Businessman Buz Mills has already spent nearly $2.3 million in his quest for the Republican nomination, and due to the court’s ruling, incumbent Gov. Jan Brewer and state Treasurer Dean Martin will be left with only $707,000 for the Republican primary, instead of the total $2.1 million they had been slated to receive due to matching funds.
Martin is running a publicly funded campaign, despite being one of the plaintiffs in the case against matching funds. He said he opposes the matching funds system but said he decided to run clean because the system is set up to put traditional candidates at a disadvantage.
Despite the loss of about $1.4 million to his campaign, Martin called the Supreme Court’s ruling a victory. Brewer loses the same amount, he said, and unlike him, she’s already spent some of her Clean Elections money.
“She suffers the bigger loss. She’s already been spending money,” Martin said. “Regardless of what this does to my capmaign it’s a long-term improvement to Arizona, and our election system is worth it.”
Others disagreed. Lobbyist Chris Herstam said the ruling hurt Martin far more than Brewer. Most polls show Brewer, who got a major bump in the polls after signing a popular illegal immigration law, with substantial leads over both of her challengers.
“I think the Supreme Court ruling is a killer for the Dean Martin campaign,” Herstam said.
Some, such as Democratic consultant Barry Dill, felt Attorney General Terry Goddard, the Democratic nominee for governor, would reap the benefits of the ruling. Brewer would’ve had to spend her matching funds before the primary election, but still could’ve used some of the $2.1 million to attack Goddard if she felt her lead against Martin and Mills was secure.
“With the matching funds we expected Brewer to go ahead and start marching onto a general election platform and beat the hell out of Terry Goddard with the extra money,” Dill said. Now that doesn’t appear to be quite the case. She won’t have that luxury.”
Brewer said she felt it was “extremely unusual” for the judicial branch to change in the middle of an election cycle and said she hoped the Supreme Court would reconsider its decision. Both Dranias and Lang said they considered that to be extremely unlikely, and that there is no recourse for publicly funded candidates in 2010.
“When you go into Clean Elections you go in knowing what the amounts are. But you also go in, as we did, relying on what the voters passed in 1998, and a portion of that was the matching funds,” said Doug Cole, a spokesman for Brewer’s campaign.
In a brief to the court on June 7, the Goldwater Institute cited John Munger, a Republican gubernatorial candidate who dropped out of the race the prior week, saying his privately funded campaign couldn’t compete with the millions his rivals would get from Mills’ spending.
Munger, the former chairman of the Arizona Republican Party, said he had no plans to get back into the race, but said he probably wouldn’t have dropped out if he had known the Supreme Court would strike down matching funds. At the time he withdrew, Munger said he had only raised about $325,000.
“I wish they had issued this ruling a week ago,” he said. “It appeared to us … there wasn’t going to be any change within this election cycle.”
The court could still uphold the Ninth Circuit’s ruling and reinstate matching funds for future election cycles, Lang said, but said the court has been hostile to campaign finance reform – as evidenced by its decision earlier this year in Citizens United v. Federal Elections Commission, which lifted restrictions on campaign spending by corporations and labor unions.
“If they’re willing to come in and strike down matching funds in the middle of a cycle, it’s pretty clear where they’re going to go,” Lang said. “There’s still a chance that we could win but frankly I’m not optimistic at this point.”
Some, such as Democratic attorney general candidate Felecia Rotellini, said she decided to run a privately funded campaign because of the threat to matching funds. “From the very beginning back in September, we strategically decided that I had to run my own race, and the best way to do that was to run as a traditional candidate,” said Rotellini, who is running against two publicly funded opponents in the primary.
The Clean Elections Commission was scheduled to begin distributing matching funds on June 22.
Dranias said the Goldwater Institute has until late August to file its appeal.