(Institute for Justice) – Today (August 17, 2010), the Institute for Justice is asking the U.S. Supreme Court to review and reverse a decision of the Ninth U.S. Circuit Court of Appeals in Arizona Freedom Club PAC v. Bennett, which upheld Arizona’s unconstitutional “matching funds” provision of the state’s “Clean Elections” law.
A federal district court in Arizona had struck down the law in January as a violation of the First Amendment, but the Ninth Circuit reversed that decision this past May. In an unusual move, the U.S. Supreme Court in June prohibited Arizona from giving away matching funds to politicians during the 2010 elections. (A detailed backgrounder for journalists is available at: http://www.ij.org/1228.)
Arizona’s “Clean Elections” Act gives public money to politicians to run for office, but it does not stop there. It attempts to “level the playing field” among candidates who take taxpayer money and candidates who choose to forego taxpayer dollars and raise their own funds for their campaigns, as well as the independent groups that support them. For every dollar a privately financed candidate or a group supporting that candidate spends above a certain amount, the government hands taxpayer dollars over to his opponent to allow him to “match” the spending—and thus the speech—of the privately funded candidate or groups supporting him. And the more these candidates or groups speak, the more their political and ideological opponents benefit.
“The Supreme Court must strike down this law because it allows the government to place its thumb on the scale in favor of politicians who receive government subsidies,” said Bill Maurer, the lead attorney in a legal challenge to the Arizona law brought by the Institute for Justice. “The Ninth Circuit badly erred in upholding this unconstitutional system. We are asking the Supreme Court to once and for all stop the harm this system does to the free speech rights of privately financed candidates and independent groups that support them.”
“Matching funds violate the First Amendment rights of candidates, citizens and independent groups,” said Paul Avelar, staff attorney for the Institute’s Arizona Chapter. “The government may not give a fundraising advantage to one candidate at the expense of his or her opponents. The point of the Clean Elections Act is to limit spending on speech—and thus limit political speech—and that is exactly what it does.”
The Ninth Circuit’s decision was so inconsistent with protections for free speech in campaigns that since the decision came out on May 21, 2010, two federal appellate courts—the Second Circuit and the Eleventh Circuit—have refused to follow it. In those cases, these courts struck down matching funds systems in Connecticut and Florida.
“The split among the federal appellate courts means that whether the government gets to ‘level’ your speech or not depends on what state you live in,” continued Maurer. “It is precisely situations like these where the Supreme Court typically acts to create a uniform rule across the country.”
The issue of whether these kinds of matching funds systems are constitutional is one of national importance. In addition to Arizona, Maine also provides public financing and matching funds for all state offices. Eight other states provide public financing and matching funds for some state offices. Many more states have considered adding such a system. Moreover, the expansion of these systems is a top priority for well-funded, politically influential special interest groups who want more government involvement in elections. Such systems, which seek to replace America’s traditional system of private support for politicians with a new system that is government directed and funded, are becoming more commonplace and proponents seek to make it the norm in all U.S. elections.
Arizona’s system suppresses political activity while providing none of the grandiose benefits promised by its proponents. Tim Keller, executive director of the IJ Arizona Chapter, noted, “For a decade, this Act has warped Arizona’s politics and produced a system where our elections are more partisan and dirtier than ever. Half of Arizona’s voters don’t know the system exists and those who are aware of it, don’t understand it. Rather than ‘cleaning up’ Arizona’s elections, all the system has done is create complex rules to regulate political activity, suppress speech, and further distance politicians from the people they are supposed to represent.”
Public funding advocates often make bold claims about the benefits of these systems, but scientific evidence supporting these claims is scarce. David M. Primo, an Associate Professor of Political Science at the University of Rochester, recently compared the claims and promises made by public funding advocates with the actual evidence. He concluded that the evidence demonstrates that public funding programs have delivered few, if any, of the benefits promised by their promoters, and they have certainly not resulted in the fundamental transformation and rebirth of confidence in government the promoters sought. On the other hand, Primo found that the cost of such programs—not only in terms of their negative effect on the timing and nature of political speech in the states with such programs, but also in terms of wasted public resources—is demonstrable and real. In other words, public funding is a program that promises much, delivers little, and raises real constitutional and policy problems. Primo’s research brief is available at: http://www.ij.org/3466.
The Institute for Justice’s clients in the case—Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett—are two independent expenditure groups and two elected officials who prefer to run privately financed campaigns. Specifically, IJ represents the Arizona Free Enterprise Club’s Freedom Club PAC, the Arizona Taxpayers Action Committee, Arizona State Treasurer Dean Martin, and Arizona State Representative Rick Murphy.
Also filing a request for review of the Ninth Circuit’s decision is the Goldwater Institute, which represents privately financed candidates challenging the law. IJ has requested that the Supreme Court accept both requests and consolidate its review in order to consider the full range of claims against the law in one proceeding.
The Court is expected to act on the IJ’s petition for review sometime during its fall session.
The Institute for Justice defends First Amendment freedoms and challenges burdensome campaign finance laws nationwide. IJ recently won a landmark victory for free speech in federal court on behalf of SpeechNow.org, an independent group that opposes or supports candidates on the basis of their stand on free speech. IJ also won recent victories for free speech in Florida when a federal judge struck down the state’s broadest-in-the-nation “electioneering communications” law and in Washington when it stopped an attempt to use the state’s campaign finance laws to regulate talk-radio commentary about a ballot issue.
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