Arizona political candidates who chose to run their campaigns with public money might have made a foolhardy decision.

Matching funds, an important part of the state’s Clean Elections system, are unconstitutional and will not be available for the 2010 election cycle, U.S. District Court Judge Roslyn Silver concluded in a 23-page order released on Jan. 20.

Nick Dranias, an attorney for the Goldwater Institute, summed up the judge’s decision in two words: “Total victory.” The Goldwater Institute was a plaintiff in the case.

Yet Silver prevented her decision from taking effect immediately. She issued a stay of 10 days if an appeal is filed with the 9th Circuit Court of Appeals.

The judge’s decision will have widespread impacts on the 2010 elections unless the 9th Circuit Court of Appeals hears the case immediately or issues an injunction on Silver’s ruling.

The Citizens Clean Elections Commission on Jan. 21 voted unanimously to appeal Silver’s ruling.
Todd Lang, director of the Clean Elections Commission, said the Attorney General’s Office planned to file a notice of appeal with the 9th Circuit on Jan. 22, and would file a motion asking the court to prevent the ruling from taking effect until after the November election. Lang said the commission will ask for an expedited review of the appeal.

“I think we have a chance to prevail on the merits, and regardless, I think the harm to the election cycle is pretty clear,” Lang said.

The decision came in the middle of an election cycle in which candidates have chosen either to run their campaigns by raising money privately or by relying on public financing from the Citizens Clean Elections Commission.

The matching funds provision gives publicly funded candidates more money if a privately-funded opponent spends more than the initial amount given to Clean Elections candidates. It also applies if an outside group spends money opposing the publicly funded candidate or supporting his opponent.

Many candidates who don’t agree with the Clean Elections system used it anyway because it has proven to be an effective way to raise campaign money. Several gubernatorial candidates have said they plan to run with public money, including Treasurer Dean Martin and Gov. Jan Brewer, both Republicans.

Brewer campaign aide Doug Cole said the governor is still moving forward with her plans to run a publicly funded campaign.

“This case is far from over. It’s going to be appealed to the 9th Circuit,” Cole said. “It’s our hope that no matter what happens here that at least we have a stay through this cycle.”

Martin, a critic of the Clean Elections system and a plaintiff in the legal challenge, ran a privately funded campaign for treasurer in 2006. But he decided to use public funding for his gubernatorial campaign.

He said it’s probably too late to change course.

“We’ll take a look at it again, but, really, the harm came six months ago that they didn’t rule against this thing, that they let it stay so long that the time when you’d normally be building up and fundraising, you really couldn’t,” he said.

Rep. David Lujan, a Democrat from Phoenix, earlier this month announced he would return tens of thousands of dollars he had raised so that he could run for attorney general using Clean Elections money. Silver’s ruling won’t alter that decision, he said.

“I still think it makes the most sense for my campaign,” he said. “I think Clean Elections is still a system that will enable me to spend more time reaching out to voters,” Lujan said.

Members of the Legislature, too, have opted for public financing, even some who disagree with the premise of using the state’s money to pay for candidate campaigns.

Rep. Rich Crandall, a Mesa Republican, said he ran using public financing in 2008 due to necessity. His seatmate, House Speaker Kirk Adams, was able to raise a lot of money. Because there was a Democratic candidate in the race who would receive about $60,000 total from Clean Elections because of Adams’ fundraising, Crandall said he had little choice but to take public financing.

“I almost had to run ‘Clean,’ from a defensive standpoint,” he said.

Adams was happy to see matching funds struck down.

“This is huge,” he said. “It’s a game-changer. I’ll never have to finance another opponent again.”
Silver explained her decision by saying matching funds burdens the right to free speech, based on U.S. Supreme Court case law established in Davis v. Federal Elections Commission.
Silver noted in her ruling that the Davis case required her to determine the funds present a “cognizable burden” for privately funded candidates whose campaign expenditures trigger the distribution of matching money to their publicly funded opponents.

“Plaintiffs face a choice very similar to that faced in Davis: abide by a limit on personal expenditures or face potentially serious negative consequences,” she wrote. “In Davis, the negative consequence was having one’s opponent subject to higher contribution limits. Here, the negative consequence is having one’s opponent receive additional funds.”

“Arguably, the benefit conferred by matching funds is more constitutionally objectionable than increasing an opponent’s individual contribution limits,” she wrote.

The commission and the Clean Elections Institute argued that the Davis case, which struck the so-called Millionaire’s Amendment from federal campaign finance law, does not provide an apples-to-apples comparison to matching funds.

– Reporters Jim Small and Jeremy Duda contributed to this story.