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U.S. Supreme Court strikes down matching funds

The front of the US Supreme Court in Washington, DC.

The front of the US Supreme Court in Washington, DC.

Arizona’s system of public campaign financing has been dealt a major, although expected, blow by the U.S. Supreme Court, which ruled today that the matching funds provision of the Clean Elections Act is unconstitutional.

Matching funds provide publicly funded candidates a dollar-for-dollar match to offset the money raised by their privately-funded competitors and that spent by independent interest groups. But a majority of the court ruled that the funding stream illegally discourages private candidates and interest groups from raising and spending cash to influence elections.

In writing for a 5-4 majority, Chief Justice John Roberts found that matching funds present a “substantial burden” to free speech rights and do nothing to advance compelling government interests in curtailing political corruption.

“Laws like Arizona’s matching funds provision that inhibit robust and wide-open political debate without sufficient justification cannot stand,” Roberts wrote in a 68-page opinion.

Roberts found that the law creates significant strategic drawbacks for privately funded candidates and interest groups, both of whom are presented with the dilemma of choosing whether to engage in political spending for fear of giving an additional advantage to an opponent or opponents.

The majority opinion was also utterly dismissive of claims made by the Citizens Clean Elections Commission, the Clean Elections Institute and the federal government, which argued that the law’s positive effect of increasing political speech outweighs the slight burden placed on private candidates and interest groups.

The net speech increase comes at the expense of private candidates and interest groups, wrote Roberts, adding “this sort of beggar thy neighbor approach to free speech – restricting the speech of some elements of our society in order to enhance the relative voice of others – is wholly foreign to the First Amendment.”

Roberts also took strong exception to claims that the matching funds provision was rooted in trying to stop political corruption.

He noted that the provision’s statutory title, “equal funding of candidates,” laid bare its true intent: to unconstitutionally “level the playing field” among candidates with differing strengths. Public campaign financing would also not prevent candidates or officeholders from directly accepting bribes, Roberts wrote.

In delivering its opinion, the court split along ideological lines, with Roberts joined by conservative justices Samuel Alito, Anthony Kennedy, Antonin Scalia and Clarence Thomas. Liberal justices Stephen Breyer, Ruth Ginsberg, Elena Kagan and Sonia Sotomayor found matching funds to be constitutional.

The force, if not outrage, displayed by Roberts was matched by Kagan, who found the claims of matching funds opponents to be infuriating. All candidates are given the choice to run with public or private funding, she noted, and the law affects all independent expenditure groups equally regardless of their political affiliations.

Kagan noted that many states and even the federal government have public campaign finance options that have survived legal scrutiny, and she claimed that Arizona’s matching funds law provides a “Goldilocks solution” that gives candidates the “just right” amount of money to run competitive campaigns.

Further, matching funds incentivize use of Arizona’s public campaign financing option, which has a positive effect of reducing inappropriate influence presented by large political contributions and creating more, not less, political speech.

“Except in a world gone topsy-turvey, additional campaign speech and electoral competition is not a First Amendment injury,” she wrote.

Kagan also appeared persuaded that Arizona’s history of political corruption, particularly that displayed during the AzScam bribery scandal, warranted additional anti-corruption electoral measures. The law also doesn’t restrict the speech of private candidates or interest groups, she said.

“The statute does not tell candidates or their supporters how much money they can spend to convey their message, when they can spend it, or what they can spend it on,” Kagan wrote.

The court’s opinion was widely expected since the 2008 opinion released in Davis v. Federal Elections Commission, which rejected a portion of federal campaign finance reform laws designed to minimize the advantages of wealthy candidates who contribute heavily to their own campaigns.

The Davis opinion struck the so-called “Millionaires’ Amendment,” which allowed federal candidates to enjoy higher contribution limits if their opponents waged campaigns with substantial amounts of personal money.

Roberts, in the court’s 68-page opinion, found that Arizona’s matching funds created an even higher – and guaranteed – burden on the speech rights of privately funded candidates and interest groups than what federal candidates faced in Davis.

The lawsuit, Free Enterprise Club v. Bennett, was filed by the Institute for Justice on behalf of the Arizona Free Enterprise Club’s Freedom PAC, the Arizona Taxpayers Action Committee and former state Treasurer Dean Martin. It was consolidated with another case, McComish v. Bennett, which attorneys with the Goldwater Institute filed in light of the court’s opinion in Davis v. F.E.C. The Goldwater Institute represented Sen. John McComish, Rep. Nancy McLain and former legislative candidate Tony Bouie.

Last year, the 9th Circuit Court of Appeals overturned a lower court’s ruling and declared the matching funds program constitutional. However, the Supreme Court last June reinstated the lower court’s block on the distribution of matching funds during the 2010 elections, a move many observers took as an indication that the court was likely to strike down the matching funds as unconstitutional.

Read the high court’s opinion here.


  1. Rather than justice we get yet another 5/4 ideological opinion from the “Supreme Court.” What was once an unbiased body focused on constitutional justice has become nothing more than another extremist arm of the Republican Party, highly evident since the Bush/Gore decision. Scalia, Roberts, Thomas and Alito should be impeached for engiging in unlawful political activities and ruining the once unbiased image of the Court.

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