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Supreme Court labels matching funds ‘substantial burden’ to free speech

In this Nov. 2, 2010, file photo, a voter leaves a polling station on election day in Apache Junction. The Supreme Court on June 27 struck down a provision of a campaign financing system in Arizona that gives extra money to publicly funded candidates who face privately funded rivals and independent groups. (AP Photo/Ross D. Franklin, File)

In this Nov. 2, 2010, file photo, a voter leaves a polling station on election day in Apache Junction. The Supreme Court on June 27 struck down a provision of a campaign financing system in Arizona that gives extra money to publicly funded candidates who face privately funded rivals and independent groups. (AP Photo/Ross D. Franklin, File)

Arizona’s system of public campaign financing has been dealt a major, although expected, blow by the U.S. Supreme Court, which ruled June 27 that the matching funds provision of the Clean Elections Act is unconstitutional.

Matching funds provided publicly funded candidates a dollar-for-dollar match to offset the money raised by their privately-funded competitors and money spent by independent interest groups.

After displaying a substantial dose of skepticism toward the law during oral arguments in March, the court’s conservative majority concluded that matching funds create an unconstitutional and discouraging consequence for private political speech.

In writing for a 5-4 majority, Chief Justice John Roberts found the provision presents a “substantial burden” to free speech rights and does nothing to curtail political corruption or its appearance. The corruption element remains the only legally recognized basis for government campaign finance regulations.

“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.

He concluded that the law creates significant strategic drawbacks for privately funded candidates and interest groups, both of whom are forced to choose 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 effect of increasing political speech outweighs its created burden on private candidates and interest groups.

Roberts derisively attacked that notion as a “sort of beggar thy neighbor approach to free speech” that created a “wholly foreign” First Amendment impact of restricting the speech of some to “enhance the relative voice of others.”

Roberts also took strong exception to claims that matching funds were intended to curtail corruption and the appearance of corruption made possible by candidates soliciting and accepting political contributions from special interest groups.

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, Robert 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 displayed by Roberts was equally matched by Kagan, who found the claims of matching funds opponents to be downright galling. 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. Further, she found Arizona’s matching funds law to be sufficiently tailored to provide a “Goldilocks solution” that gives candidates the “just right” amount of money to run competitive campaigns.

Matching funds, she concluded, incentivize use of Arizona’s public campaign financing option, which has a positive effect of reducing the political “stranglehold” that interest groups have on elected officials 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,” Kagan wrote.

The dissenting minority was also persuaded that Arizona’s history of political corruption, particularly that displayed during the AzScam bribery scandal in the early 1990s, 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,” she wrote.

Todd Lang, the director of the Citizens Clean Elections Commission, which has the responsibility of distributing matching funds during election seasons, said he was disappointed, though not surprised, with the ruling.

Lang said he found some consolation that the court was so narrowly divided on the issue, but he remained adamant in his belief that the opinion wrongfully struck a law designed to increase political dialogue and debate.

“The First Amendment has always been here as a shield to protect us from wrongful government intrusion on speech or restrictions on speech,” said Lang. “Now, with Chief Justice Roberts’ decision, it is being used as a sword to eviscerate programs designed to enhance our democracy and encourage political participation. The Constitution was designed to encourage debate and (promote) the diversity of views in the marketplace of ideas.”

While Lang rued the loss of matching funds, opponents of the law praised the decision as proof that the public —  and not the government —  remains the rightful and only arbiter of political campaigns and candidates.

Goldwater Institute attorney Nick Dranias, who filed the matching funds federal lawsuit in 2008 on behalf of several privately funded legislative candidates, said the court correctly interrupted a system that allows the bypassing of the necessary link between voters and candidates.

“The opinion cuts off the route for increased government meddling in elections,” he said. “Matching funds created a dangerous situation where candidates no longer have to necessarily appeal to their constituencies. They could go to a bureaucrat to cut a check.”

The court’s opinion was widely expected since the 2008 ruling 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 ruling 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.

In the Arizona case, Roberts 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 Arizona 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.

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