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Clean Elections case: The stakes are high for democracy

As part of an emerging pattern, another legal battle in Arizona soon will have the country buzzing again.

This time, the attention won’t come from immigration policy, border security or John McCain. Instead, Arizona is about to affect the election law universe in a way that will ignite political pundits’ debates for some time.

Ordinarily, developments in election law are of such esoteric significance that very few outside certain legal and academic circles would care. Occasionally, however, election-law developments do attract national headlines, as in 2010 when the Supreme Court decided the controversial Citizens United case, holding that limits on independent expenditures by organizations exceeded the government’s authority under the Constitution.

When President Obama criticized the high court’s decision in his 2010 State of the Union address, election law became all the rage for a short while in the national media, and frenzied debates continue online, in journals and in other forums.

As with anything, election law becomes exciting when it touches on hot issues of social significance: ideological differences about the limits of government power, the effect of corporate spending during election cycles, the corruption of officeholders who are or appear beholden to special-interest money, and so on.

Incredibly, Arizona’s Clean Elections case—which is known as McComish v. Bennett, and which is set to be decided this year by the U.S. Supreme Court—transcends the boring, technical campaign-finance laws that gave rise to the lawsuit. It actually touches on more consequential issues than any political junkie could ask for.

And the parties to the lawsuit recently submitted their briefs to the Supreme Court, which means Arizona soon will be slugging it out in front of the whole country. The oral argument is scheduled for March 28.

Arizona’s Clean Elections Act provides for the public financing of political campaigns. In exchange for government money, publicly financed candidates are prohibited from accepting contributions from individuals or organizations, including corporations and labor unions.

Part of the Clean Elections program is the matching-funds provision, which requires the government to give money to a publicly financed candidate any time a non-publicly financed political opponent spends money above a certain threshold on communications (such as TV ads) opposing him or her.

Represented by Arizona’s libertarian heavyweights Nick Dranias and Clint Bolick of the Goldwater Institute, the challengers argue that the government’s matching funds violate the First Amendment rights of non-publicly financed candidates, because matching funds deter political speech against publicly financed candidates.

By running such advertising, non-publicly financed candidates help instead of hurt their publicly financed opponents by triggering matching funds that can then be used against them.

Represented by James Barton and his team at the Attorney General’s Office, Arizona argues that publicly financed campaigns reduce corruption and the appearance of corruption in politics because publicly financed candidates are precluded from receiving money from special interests.

Free from the influence of hefty campaign donations, candidates will be responsive to ordinary people as opposed to only wealthy special-interest groups.

But the issues cut through the noisy details directly to the core of the integrity of the democratic process.

Does the government exceed the limits of its power and violate free speech—thereby undermining a core pillar of democracy—by punishing political candidates who exercise their right to promote their own campaigns against those of their opponents?

Will big-time special-interest money drown out the voices of ordinary, individual citizens—thereby undermining a core pillar of democracy—if candidates are not provided the option to run campaigns on public funds?

The Constitution is front and center, the arguments come down along largely ideological lines, and the stakes are as high as they can be for democracy, as Arizona is not the only jurisdiction that uses matching funds. The Supreme Court is the arena of this election-law battle, which means the decision will affect the whole country. And Arizona is forcing the play, which means whatever the outcome, we’ll be seeing ourselves in the headlines again.

— Anthony Tsontakis, an election-law attorney with Tsontakis Law, PC in Phoenix, worked on the McComish v. Bennett case while a law clerk for the Goldwater Institute in the summer of 2009.

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