High Court Takes Another Stab At Campaign Finance

The campaign finance wars return to the U.S. Supreme Court on Monday. Last year, the high court, by a 5-4 vote, overturned a century-old legal understanding that barred corporations from spending money on candidate elections.

Now comes an attack from a different direction — a challenge to a public financing system that has existed in Arizona for more than a decade. Once again, reform advocates face an uphill battle.

A Century Of U.S. Campaign Finance Law

A poster from President Nixon's re-election campaign, 1972.
Kean Collection/Getty Images

The Clean Elections Act

Before the court is a law enacted in Arizona by public referendum in 1998. The Arizona Citizens Clean Elections Act capped a series of reform laws passed in response to a police sting operation earlier in the decade, in which state legislators were videotaped accepting campaign contributions and bribes in exchange for agreeing to support the legalization of casino gambling in the state. By the time the scandal had run its course, approximately 10 percent of the Arizona Legislature had been implicated, according to the state.

The Clean Elections Act at the center of Monday's case provides government money to state candidates who agree to forgo private funding.

In order to spread limited public resources as far as possible, and to ensure competitive elections, the law gives participating candidates a relatively small base amount of money, and it provides additional funding to candidates whose privately funded opponents spend significantly more.

In its brief to the Supreme Court, the state called the law a success, a system that "combats corruption and promotes free speech" — and noted that by 2008, two-thirds of all primary and general election candidates for state office accepted public funding in place of private funds.

But some groups and candidates say the law is aimed at "leveling the playing field" for candidates, a purpose that the Supreme Court has said is unconstitutional.

McComish v. Bennett

The Case
Enacted by ballot referendum in 1998, Arizona's Citizens Clean Elections Act provides government funds to state candidates who agree to forgo private funding. The law also provides additional funding to candidates whose privately funded opponents spend significantly more.

In 2008, a group of privately financed candidates and outside spending groups challenged the law, arguing that matching government funds suppressed their speech by deterring them from spending as much as they wanted to.

Last year, the Supreme Court blocked the law after a federal appeals court upheld it.

At Issue
The question before the court is whether the matching funds provision of the Arizona law violates the free speech rights of privately funded candidates.

The Arguments
Arizona says the law is a success, a system that "combats corruption and promotes free speech." In its brief to the Supreme Court, the state also noted that by 2008, two-thirds of all primary and general election candidates for state office accepted public funding in place of private funds.

Critics say the Arizona system is rigged to suppress speech, forcing privately funded candidates to effectively silence themselves by putting off spending until late in the campaign in order to avoid triggering more money for their opponents.

A System That Suppresses Speech?

Among them is John McComish, who was the only privately funded candidate in a four-way Republican state legislative primary election in 2008.

In such a multiple-candidate election, when a privately financed candidate like McComish spends above a certain threshold, each of his publicly financed opponents gets additional money to match him.

Nicholas Dranias, who represents McComish and other candidates who are challenging the law, say that because McComish faced three publicly financed opponents, he got "swamped by overwhelming speech against his candidacy."

Dranias argues that the Arizona system is rigged to suppress speech, forcing privately funded candidates like McComish to effectively silence themselves by putting off spending until late in the campaign in order to avoid triggering more money for their opponents.

In McComish's case, says Dranias, "he specifically chose not to spend money on a robocall because ... it would have triggered three times as much money to be spent against him."

A Battle Already Fought And Lost?

Former Reagan administration Solicitor General Charles Fried counters that McComish and other privately funded candidates are "absolutely free to spend whatever they want." Their objection to government funding for their opponents, Fried says, "is just whining."

Fried, who has filed a brief in this case on behalf of a coalition of Republican and Democratic former officeholders, says that the complaints voiced against the Arizona law are the same ones voiced by those who fought and lost the legal battle to retain the ban on corporate campaign spending.

"Tipping the balance, loading the dice, swamping the airwaves — all those arguments were made and they were rejected," Fried says. "So why are they good now?"

Dranias responds that the situations are not the same. "The government is the one financing the swamping of speech, and that makes all the difference," he says. "The First Amendment is about keeping the government out of the electoral system, not manipulating the electoral system."

But Fried calls this argument "nonsense," comparing it to someone "saying that when the government has an anti-smoking campaign, it violates the free speech rights of tobacco companies."

The lesson of last year's Supreme Court decision is that more speech is good, says Fried, and the Arizona law fosters more speech by allowing privately funded candidates to spend as much as they want while providing a limited amount to publicly funded candidates who agree to forgo private donations.

Widespread Implications

The Arizona law, however, has already faced one setback. Last summer, after a federal appeals court upheld it, the Supreme Court took the unusual step of blocking the state law in the middle of an election campaign.

If the court strikes down the Arizona law as a violation of the free speech rights of privately funded candidates, the decision could have ramifications for other public financing systems across the country.

Dozens of state and local governments have enacted some sort of public campaign financing system; four states have enacted public financing laws for judicial elections, with matching-fund provisions similar to Arizona's.

A coalition of former state Supreme Court justices has filed a brief in Monday's case, arguing that public financing for judicial elections is "one of the most powerful reforms in shielding courts from special-interest influence," and that invalidation of Arizona's law could lead to the collapse of these systems.

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