What is supposed to be a voluntary system of public campaign funding is so onerous on those who choose not to participate as to be, in fact, compulsory, a lawsuit filed in federal court says.

The Institute for Justice is seeking to have the court declare certain provisions of the state’s Clean Elections Act as violations of the U.S. Constitution’s First Amendment provision for free speech.

The Clean Elections Act, created through a ballot measure in 1998, “subjects nonparticipating, privately supported candidates to a series of stringent and punitive measures that have the effect of coercing participation in the public campaign funding scheme,” states the lawsuit, filed Jan. 29 in U.S. District Court for Arizona, in Phoenix. “The act goes far beyond merely promoting the use of public funding and the permissible state interest in ‘opening up’ the political process so that more voices can be heard. In operation, the act impermissibly tilts the playing field sharply in favor of government-funded candidates who are opposed by privately supported candidates…, punishing such privately supported candidates for having refused government subsidies.”

Plaintiffs in the case include 2002 gubernatorial candidate Matt Salmon, Sen. Dean Martin, R-Dist. 6, and former state lawmaker Lori Daniels, all of whom are Republicans. The fourth plaintiff is the Association of American Physicians and Surgeons, described in the lawsuit as a Tucson-based organization that “desires to make independent campaign expenditures in the upcoming 2004 statewide elections in Arizona.”

The lawsuit more specifically targets ARS 16-952(C), which allows a participating candidate to receive a dollar-for-dollar match in public funding against contributions made to a privately funded opponent.

“ARS 16-952(C) punishes the nonparticipating candidate for receiving private support, improperly injects the state into the political process by attempting to equalize the relative financial resources of candidates, and harms the independent expender by drowning out its voice, neutralizing its free speech, and placing a chilling effect on the future exercise thereof.”

Matching Funds

Mr. Salmon said that an event in 2002 raised about $750,000 for his run for governor, for which he received about $500,000 after covering expenses. By contrast, independent candidate Richard Mahoney and eventual winner Janet Napolitano, a Democrat, each received $750,000 in matching funds – an advantage, as Mr. Salmon sees it, of $250,000 to each of his opponents.

The Democratic Party during the general election season spent about $1 million criticizing Mr. Salmon for his votes as a congressman on the federal Medicare program. That $1 million was not counted as a contribution to Ms. Napolitano. But when the Republican Party countered with a television ad campaign to answer the Democrats, the $330,000 expenditure triggered matching funds in like amounts to Ms. Napolitano and Mr. Mahoney. Such a scheme effectively “neutralizes” the free-speech rights of contributors to privately funded candidates and to groups that make independent expenditures, said Frank Conti, lead counsel for the plaintiffs and executive director for the Arizona chapter of Institute for Justice.

But Tim Hogan, counsel for the Clean Elections Institute, a nonprofit group that promotes public funding of campaigns, said the lawsuit ignores the fact that matching funds are capped for participating candidates, while privately funded candidates are not subject to any cap. The cap is three times a base amount set under law for each office. For example, in 2002, the base amount for a gubernatorial candidate running with public funds in the general election was $614,930, while the cap was $1,844,790. Ms. Napolitano received exactly the cap amount for the general election.

“If you think you can raise more than that [capped amount], have at it,” Mr. Hogan said.

He said federal courts have held in previous cases that responding to political messages doesn’t blunt or negate those messages.

“The courts have rejected the argument equating responsive speech to an impairment of the initial speaker’s right to free speech,” Mr. Hogan said. “Everybody’s still got a right to speak and say what they want. The issue really is whether the matching-fund system is so coercive as to make the system mandatory. It’s about a 57-43 [per cent] split between those choosing to participate and those choosing not to run clean, so the facts are hardly on their side.”

Mr. Hogan said the Clean Elections Institute likely will file a motion to intervene in the case.

Colleen Connor, executive director of the Clean Elections Commission, which administers public funding for campaigns, said the commission will defend the provisions of the Clean Elections Act that are being challenged in the lawsuit.

The commission likely will seek summary judgment in the case, Ms. Connor said, meaning the case would be largely decided on briefs filed with the court, without a trial. —