In 1998 the citizens of Arizona passed a referendum to reduce political corruption in the state, The Arizona Citizens Clean Election Act. The citizen’s initiative came about after AzScam, a scandal in which roughly 10% of state legislators were found to have taken bribes, including campaign contributions, in exchange for supporting legislation that gave tax breaks to supporters. Prior to passage of the Clean Election Act, Arizona had campaign limits in place, but they had proven insufficient to stop corruption in the state government.
The Arizona Citizens Clean Election Act seems to have produced the intended result. Other than gifts, less than the annual $500 limit, of football tickets to Fiesta Bowl and Cardinal games, the waters have been pretty calm. Whatever you think of Arizona’s laws, they are passed by a citizen legislature. Arizona is known as state where anyone can run for office regardless of means or special interest connections. In large part that has been because of the public funding and matching funds provisions of the Clean Election Act.
Here’s how it works, or used to work until today’s Supreme Court decision. Anyone filing to run for public office could elect public funding of his/her campaign. That person’s campaign received a stipend to get up and running. If a privately funded opponent, or an independent expenditure group supporting the privately funded opponent, outspent you, the state would match the amount 94 cents to the dollar, up to a cap that was triple the original stipend. If the privately financed opponent spent beyond that, the publicly funded candidate had no access to additional funds. To be clear, a privately funded campaign doesn’t just mean spending one’s own money. It includes financing a campaign through private campaign donations.
The matching funds provision was an attempt to provide adequate public funding while not creating an excessive burden on the state treasury. The initial stipend, if sufficient, held down costs as compared to a large initial fund. Additional funds were triggered only if necessary to respond to a heavier spending privately financed campaign. The law is entirely content, party and person neutral.
Today the U. S. Supreme Court ruled that the matching funds provision of the Clean Election Act constitutes a burden on the First Amendment free speech rights of privately funded candidates and the independent expenditure groups that support them. Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett. The majority opinion was written by Chief Justice Roberts. Justice Kagan, in perhaps her best work since joining the Court, wrote the dissent. I suggest reading the dissent first. It will clarify some of the leaps of logic employed in the majority opinion.
The majority reasoned that this law would burden the free speech rights of privately funded candidates because they might be reluctant to spend more than the initial funding of their publicly funded opponent, lest the matching funds provisions be triggered to allow the publicly funded candidate to respond. The majority compared Arizona’s law to Davis v. FEC. The Davis case provided that, if a privately funded candidate outspent a publicly funded candidate, the publicly funded candidate would be allowed to receive campaign contributions at three times the rate of the privately funded candidate, $6900 per contribution compared to $2300 per contribution. Davis was based on the disparity in contribution limits, not the triggering mechanism.
Chief Justice Roberts makes two good points about Arizona’s law. First, there is the possibility of a multiplier effect. If there are two publicly funded candidates and one privately funded candidate, each of the publicly funded candidates gets the matching funds if the privately funded candidate spends enough to trigger matching funds. But the decision did not stop with declaring that aspect unconstitutional.
The second point made by the Chief Justice is that matching funds could be triggered by an independent expenditure group’s spending in support of the privately funded candidate. While this point is technically valid, it relies on the fiction that candidates exercise no control over independent expenditure groups who are in their corner during an election. The Court did reason correctly that the spending amounts of an independent group were not directly in the campaign of the privately funded candidate, while the matching funds went directly to the campaign of the publicly funded candidate. The Court takes the position that this in turn burdens the privately funded candidate’s free speech.
Once the majority decided that the Clean Election Act created a burden on the speech rights of privately funded candidates they examined whether there was a compelling state interest. The Court has held previously that prevention of corruption is a compelling state interest. Before getting to the corruption issue, the Court commented on the impact of the law creating a level playing field in elections:
“We have repeatedly rejected the argument that the government has a compelling state interest in leveling the playing field.”
That’s true, but the level playing field issue was something of a red herring as the law was specifically passed to correct election corruption that occurred during AzScam. The Court then relied on Citizens United for the proposition that “independent expenditures . . . do not give rise to corruption or the appearance of corruption.” In the end, the Court’s majority determined that the law did not meet the state’s compelling interest in preventing corruption, and that the law’s matching funds provision is unconstitutional. This will also deep-six similar matching funds laws in Maine, North Carolina, Minnesota, Connecticut and Florida.
Justice Kagan, in dissent, holds little back when she says,
“…today the majority holds that…the system that produces honest government, working on behalf of all the people, clashes with our court.”
Kagan points out that the law, as a starting point, does not burden speech. According to her dissent, far from burdening speech, the law actually enhances the quantity of speech in a campaign. Those without resources, or connections to resources, were, until today’s ruling, given the opportunity to respond to more well-heeled candidates and press forward with a more open debate for the electorate.
She also applauds Arizona for its fiscal responsibility. The majority would have no problem with Arizona tripling its initial stipend. It is only the trigger of matching funds that makes the law unconstitutional according to Roberts. Kagan responds that the distinction is counter-productive. The matching funds scheme endows a campaign with taxpayer money only as necessary, avoiding waste of state resources.
The split on the Court was as expected. Roberts, Scalia, Thomas, Kennedy and Alito were in the majority. Kagan was joined by Ginsburg, Breyer and Sotomayor in dissent.
Final Thought: Citizens United gave corporations, unions and other interest groups the right to spend unlimited amounts of money to influence elections. Today’s decision takes away an opportunity to respond to the overbearing influence peddlers.
Contributor, aka tidbits. Retired attorney in complex litigation, death penalty defense and constitutional law. Former Nat’l Board Chair: Alzheimer’s Association. Served on multiple political campaigns, including two for U.S. Senator Mark O. Hatfield (R-OR). Contributing author to three legal books and multiple legal publications.