Supreme Court to weigh constitutionality of Arizona public campaign finance law

By Robert Barnes
Washington Post Staff Writer
Monday, November 29, 2010; 10:58 PM

The Supreme Court will again review government efforts to regulate campaign spending, agreeing to consider an Arizona law that distributes subsidies to publicly funded candidates who face big-spending opponents.

The decision was not a surprise, as justices in June had blocked a portion of the state's 12-year-old Clean Elections program, which authorizes public money for state candidates who bypass most private fundraising. The court stopped the state from providing "matching funds" to those candidates, which become available when political opponents or outside groups spend in excess of state limits.

It will be the court's first foray into campaign finance regulation since its controversial 5 to 4 decision in January in Citizens United v. Federal Election Commission . That ruling said unions and corporations could spend unlimited amounts from their general treasuries to advocate for and against candidates.

Opponents of the Arizona law say it also unconstitutionally limits the free speech of privately funded candidates and groups, who they say are forced to cut back their spending to avoid enabling their opponents to receive more public money.

The outcome of the case could have enormous consequences for public campaign finance efforts, which are based on the notion that providing public funds for campaigns reduces the potential for corruption that can come with private fundraising.

Campaign finance expert Richard Hasen of the Loyola Law School in Los Angeles wrote in a blog post over the weekend that matching funds are one of the best incentives for coaxing candidates to accept public financing.

"The whole point of the extra matching funds in the Arizona plan is to give candidates assurance they won't be vastly outspent in their election," Hasen wrote.

"While an adverse ruling by the Supreme Court . . . would not mean that all public financing systems would be unconstitutional, it would eliminate one of the best ways to create effective public financing systems."

Others who support public financing emphasized the narrowness of the case - Arizona and a handful of other states provide matching funds to candidates who are outspent. Groups such as Democracy 21 and the Campaign Legal Center said that the public financing system used in presidential elections does not contain a provision for matching funds, and neither do proposals to extend such a system to other federal races.

The Supreme Court has not looked kindly on efforts to create a level playing field for political candidates. In 2008, the court by a 5 to 4 vote struck the "millionaire's amendment" in the McCain-Feingold campaign finance act. That provision allowed candidates to raise money in excess of contribution limits if his or her opponent was spending large sums of personal wealth.

Justice Samuel A. Alito Jr. wrote for the majority that such a scheme violated the free speech rights of the wealthy candidate.

Arizona insists its law is different. Voters approved the system in 1998, when the state was in the midst of a scandal involving legislators accepting campaign contributions and bribes to support gambling legislation. At one point, 10 percent of the Arizona legislature faced civil or criminal charges related to the scandal.

Arizona argued that the public financing program was an attempt to avoid corruption and that the matching funds provisions were a necessary component to entice candidates to give up private fundraising.

A federal judge in Arizona cited the Supreme Court's recent decisions in ruling the law unconstitutional. But the U.S. Court of Appeals for the 9th Circuit disagreed, saying it imposed only a minimal burden on First Amendment rights and was justified by the state's desire to clean up its "long history" of corruption.

The Brennan Center in New York has represented the Arizona entity responsible for administering the program, and its executive director, Michael Waldman, said in a statement that the law has "helped move the state beyond egregious corruption and recurrent scandal."

"We strongly hope the court finds this provision constitutional, and more broadly reasserts its long-standing support for voluntary public financing," Waldman said.

The law was challenged by several Republican candidates and conservative legal groups who say that limits on spending violate the Constitution.

William Maurer, the lead attorney for the Institute for Justice, one of the groups, said it is not up to the government to decide "who is spending too much and who is spending too little."

Arizona's law "limits individual speech while putting a thumb on the scale in favor of government-funded candidates," he said.

The court combined two cases, Arizona Free Enterprise, et al. v. Bennett and McComish v. Bennett, and will hear arguments in the spring.

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