Litigation

AZ Public Financing Provision ?In Jeopardy?

By Peter Hardin

National media gave extensive coverage to Supreme Court arguments in a case challenging Arizona?s law for public financing of campaigns, and most pointed toward the same conclusion.

Judging from comments by justices, it appears almost inevitable that the five justices who made up the majority in last year’s landmark Citizens United ruling on campaign finance will strike down a key provision of Arizona’s law, according to these reports.

Under the provision, publicly funded candidates get additional dollars, called matching or ?trigger funds,? when privately financed candidates or independent groups spend more.

“The likely result in the Arizona case…will be an incremental step and the fifth decision from the Roberts court cutting back on the government?s ability to regulate campaign financing,” suggested reporter Adam Liptak in the New York Times.

A USA Today article offered a similar analysis and the following assessment:

“Such a decision would not outright void state public financing systems. But it would undercut one of the incentives some states employ to entice candidates to use public financing and forgo large private contributions that might lead to corruption or the appearance of corruption.”

Justice at Stake has warned in an amicus brief that an adverse ruling could gravely threaten fair courts, due to the “deluge of special interest money [that] is eroding public trust in America?s courts? and the strong promise for public financing  as a viable reform. Four states have adopted public financing for judicial elections with laws that use a provision like Arizona’s.

A Supreme Court majority appeared ready to strike down the Arizona provision as an assault on free speech, according to a Washington Post article. The provision “seemed in jeopardy,” concurred a Wall Street Journal report.

The case is called McComish v. Bennett. The oral arguments were the topic of an early Gavel Grab report Monday, and subsequent news coverage has provided more examples of the justices’ comments.

Lawyer Bradley Phillips, representing Arizona, told the court the law was designed to combat corruption. He said there was no evidence in the record of any privately funded candidate or independent group not spending money as a result of the matching funds provision for publicly funded candidates.

A skeptical Chief Justice John Roberts answered, ?If you knew that a $10,000 expenditure that you would make that would support a candidate would result in $30,000, $40,000, $50,000, depending on how many opposition candidates there were available for them, wouldn?t you think twice about it??

The high court majority said in Citizens United that the government may not restrict campaign speech to level the playing field among rival candidates. Justice Roberts seized on that issue in reporting the results of his own Internet research about the Arizona law.

?I checked the Citizens Clean Elections Commission Web site this morning,? he said, ?and it says that this act was passed to, quote, ?level the playing field? when it comes to running for office. Why isn?t that clear evidence that it?s unconstitutional??

Lawyer William Jay, representing the U.S. government, said a statement on a Web site did not serve to determine the purpose of the law, which is more than a decade old.

Justice Anthony Kennedy did not seem prepared to accept Phillips’ argument that there was no evidence of a deterrence to spending by independent groups. “I frankly am tempted to believe the opposite view,” the justice said.

Some justices belonging to the court’s more liberal wing appeared to disagree. “There?s no restriction at all here,? said Justice Elena Kagan. ?It?s more speech all the way around.?

In Slate, Dahlia Lithwick came to a similar conclusion as the mainstream media writers, but she was the only to wrap fictitious song titles into it:

“[I]t’s clear that this will be a 5-4 reprise of Citizens United and that one more in a long line of campaign-finance restrictions is about to bite the dust. We can call the new single ‘Some Speech Is More Equal Than Others.’ Or better yet, ‘Death by One More Cut.’”

To learn more about the case, called McComish v. Bennett, check out the JAS resources page about it, or visit Gavel Grab.

Full post as published by The Gavel on March 29, 2011 (boomark / email).