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Supreme Court blocks matching funds, throwing races into turmoil

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.


  1. In other words, if participaing candidates received the maximum funding allowable in one grant at the beginning of their campaigns their would be no grounds for complaint. However, because the drafters of the Clean Elections Act sought to protect the public purse by granting matching funds only in those races where the spending by traditional candidates or outside interest groups exceeded the norm, the Supreme Court has decided to strip the voters of the opportunity to hear both sides of the story in precisely those campaigns. Nonsense, pure judicial nonsense.

  2. Why don’t we just do away with elections entirely and auction off the offices to the highest bidder? We should encourage everyone to defraud their business partners like Buz Mills did so they can buy themselves a seat at the political table. The US Supreme Court has, since the 2000 election decision and the “money has a first amendment right” decision, become nothing more than an arm of the Republican party…Bush and Company got what they paid for — a stacked deck that we inaccurately describe as a “court.” Roberts and Scalia are the definition of “activist judges.

  3. So far, the SCOTUS is batting 1000 for Big Money and Corporations. No surprise since they were selected by the Corporate-backed Bush Crime Family.

    NO Government-regulation. NO limits on “endowed by their creator” free-speech right to fund political Campaigns. No limit to police arrest and interrogation.

    The true Party of NO!!

  4. If the blocking of a corporation from spending money on a campaign is in violation of the 1st amendment and a restriction on free speech, then why are the voters of Arizona deprived of the same rights under the Constitution as a corporation enjoys. Corporations’ do not vote, “Yet.”
    The governing issues for the court, in even accepting this case for review are: the Goldwater Institute very conservative organization, four very conservative justices and one swing justice. So much for an independent judiciary, envisioned by the founding father, this appears to be political decision by a conservative activist court which has little problem fostering their reactionary political agenda. The court which prides itself on protecting States rights should leave our state alone and allow the voters to change or modify the Clean Election Law as they see fit.

  5. It’s about time they stopped stealing my money. I shouldn’t have to fund any candidate that I don’t want in office. I hope this day leads to freedom in this area of our lives.

  6. You want to be a candidate? Raise your own money. But first try to “educate” the voting public by making TV time free to candidates who gather sufficient signatures. The voter is stupid, by and large, and the two major parties love ’em that way! Do something about that.

    And add to every ballot “none of the above” which would toss out any election results where the candidates don’t receive more votes than “None” box. McCain and Obama would have gone down in flames and we might have then had some seasoned (not senile) or juvenile (untested, inexperienced) candidates from which to choose.

  7. @ Jon: And how is it “they” are stealing your money? The funding mechanisms for Clean Elections are voter approved and have been upheld by the courts.

    And who says your money is going to candidates you don’t want? Did you get a receipt from the Secretary of State or the Clean Elections Commission telling you which candidate received “your” money? Perhaps a thank you note from a candidate? Didn’t think so. Perhaps “your” money went to a candidate you do like — or to fund the voter information pamphlet or the public debates…

    Public money gets spent in lots of ways we individually may not agree on — but always only on ways we collectively agree on, either directly (like this voter approved law) or indirectly though our elected representatives.

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