RENEE MONTAGNE, host:
At the U.S. Supreme Court today, another battle in the campaign finance wars. Last year, the high court overturned a hundred-year-old legal understanding that kept corporations from spending money on candidate elections. Today the issue is the public financing of campaigns in Arizona. NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG: A series of campaign finance laws were enacted in Arizona in the 1990s in response to a police sting operation that videotaped state legislators accepting campaign contribution 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, some 10 percent of the state legislature had been implicated. And in 1998, Arizona voters, by referendum, enacted a state public financing law. The so-called Clean Elections Law 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 candidates a relatively small base amount, and provides additional funding to candidates whose privately funded opponents spend significantly more.
Reformers saw the law as a success. By 2008, two-thirds of all primary and general election candidate for state office accepted public funding in place of private funds. But some groups and candidates viewed it as a stacked deck, which was aimed at leveling the playing field of candidates - something that the Supreme Court has said is unconstitutional.
Nicholas Dranias represents some of the candidates who are challenging the law, among them John McComish, who was the only privately funded candidate in a four-way Republican State House primary in 2008. In a multiple-candidate primary like this, when a candidate like McComish spends more than a certain amount, his publicly funded primary opponents each get more money to match his expenditures.
Mr. NICHOLAS DRANIAS (Attorney; Director, Center for Constitutional Government, Goldwater Institute): So he gets swamped by overwhelming speech against his candidacy when he faces multiple participating candidates.
TOTENBERG: Lawyer Dranias also says that the system is rigged to suppress speech, forcing candidates to spend mainly at the end of the campaign - too late in the game to trigger more money for their opponents.
Mr. DRANIAS: In McComish's case, he specifically chose not to spend money on a robo-call, because at the point in time that he would have done that, it would have triggered three times as much money to be spent against him.
Mr. CHARLES FRIED (Former Solicitor General): This is just whining.
TOTENBERG: Former Reagan Solicitor General Charles Fried.
Mr. FRIED: They're absolutely free to spend whatever they want.
TOTENBERG: 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 against corporate campaign spending in the Supreme Court last year. The case was called Citizens United.
Mr. FRIED: All those arguments were made in Citizens United; tipping the balance, loading the dice, swamping the airwaves. All those arguments were made and they were rejected.
TOTENBERG: Lawyer Dranias responds that the situations are not the same.
Mr. DRANIAS: The government is the one financing the swamping of speech and that makes all the difference. The First Amendment is about keeping the government out of the electoral system, not manipulating the electoral system.
TOTENBERG: But Fried disagrees.
Mr. FRIED: It's like saying that when the government has an anti-smoking campaign, it violates the free speech rights of tobacco companies. It's nonsense.
TOTENBERG: The lesson of last year's Supreme Court decision, says Fried, is that more speech is good and the Arizona law fosters more speech.
That argument may be a tough sell. When a federal appeals court upheld the Arizona law, the Supreme Court last June 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, especially in states that have tried to use similar public financing systems to insulate judicial elections from special interest money.
Nina Totenberg, NPR News, Washington.
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