Legal opponents of Arizona’s ‘Clean Elections’ were dealt a substantial loss when a 9th Circuit Court of Appeals panel on May 10 dismissed a suit charging the publicly funded campaign system drowns free speech and coerces candidates to run campaigns with public funds.
A three-judge panel, on a 3-0 vote, avoided ruling on the merits of the case initiated by the Tucson-based Association of American Physicians and Surgeons and two Valley Republicans because it found either they suffered no actual injury from the Clean Elections Act or that claims of injury were no longer relevant.
Tim Keller, attorney for the plaintiffs, said the dismissal was upsetting and the 9th Circuit dismissal was “inconsistent with its own precedents and inconsistent with the facts of the case.”
“My clients’ free speech rights have been infringed upon and will continue to be infringed upon by the operation of the state’s so-called Clean Elections Act,” said Keller, an attorney with the Institute for Justice, a libertarian leaning law firm.
The court rejected the association’s argument that it stopped making independent expenditures to influence political races because its free speech rights would be effectively muted by laws providing matching funds to publicly funded candidates they oppose.
Though the suit stated the association would participate politically in the future if the Clean Elections Act matching funds provision was lifted, the panel stated it lacked jurisdiction to decide cases without the showing of “actual impact on the challenger.”
It also appeared the court was persuaded by the fact the association dissolved its political action committee after losing the suit before a federal judge in Phoenix.
“Our courts do not exist to settle abstract questions, interesting and important as they may be,” wrote Judge John Noonan, of the 9th Circuit panel.
Likewise, the panel found that former GOP gubernatorial candidate Matt Salmon’s case gave no indication he plans to run for office again and notes “he is not a spokesman for future candidates for governor,” and therefore “no current controversy exists.”
The claims brought by current state Treasurer Dean Martin are also “no more alive than Salmon’s,” according to the seven-page opinion, because he also did not allege he would run for office again where the “situation of which he complains of would repeat itself.”
Keller disagreed with court’s logic and said the claim that private candidates are harmed by provisions of the Clean Elections Act is certainly capable of being legally repeated and the complaint has so far evaded review.
“This is a long recognized exception to the mootness doctrine,” said Keller, who added there are at least three precedents set by the 9th Circuit itself showing it has accepted jurisdiction of cases where plaintiffs have discontinued a practice or business while awaiting adjudication.
Clean Elections director: Ruling was ‘close call’
Todd Lang, the executive director of the Citizens Clean Elections Commission, said the ruling on the suit’s mootness was a “close call,” but he believes the panel would have ruled in favor of Clean Elections regardless.
“We would have all preferred to see it ruled on the merits once and for all, but we’re pleased with the result,” said Lang, who successfully defended the use of civil and criminal surcharges to raise public funds for campaigns before the Arizona Supreme Court in 2002.
He said the suit’s arguments that matching funds trample free speech rights of independent expenditure groups and private candidates is nonsense because “freedom of speech doesn’t translate to freedom from rebuttal.”
The funds help present other sides to political positions and help deter attack advertisements. The suits raised against Clean Elections by opponents are destined to fail, he said.
“Folks really want to see the law go away so they manufacture these lawsuits that ultimately are defeated,” he said, noting Arizona’s system of publicly funded campaigns has thwarted about a “dozen” such suits.
Keller, of the Institute for Justice, said he is not certain what legal path will be taken, but guesses he will probably seek a review of the suit’s merits before the entire 9th Circuit Court of Appeals.
“It’s aggravating, but we’ll pick ourselves up and dust ourselves off and move forward,” he said.
FYI
The case number of the suit is CV-04- 00200.