The Ninth Circuit Court of Appeal has upheld matching funds for Clean Elections. That means candidates in this year’s state races will likely get matching funds. But it also means Clean Elections is headed for the Supreme Court.
From the Arizona Republic:
by Alia Beard Rau -
The Arizona Republic
The U.S. Court of Appeals for the 9th circuit ruled that matching funds offered through the state’s publicly funded Clean Elections system do not substantially violate the First Amendment, and in fact, are needed to prevent political corruption in Arizona.
“We conclude that the matching funds provision of the act imposes only a minimal burden on First-Amendment rights,” the three-judge appeals panel stated in their written ruling.
Attorneys opposing the Clean Elections system plan to ask the U.S. Supreme Court as early as Friday to immediately halt matching funds until that court can issue its own decision.
Arizona voters approved Clean Elections in 1998. Participating candidates collect a certain number of $5 donations from constitutes and agree not to accept money from special interest groups in exchange for a lump sum of public money to fund their campaigns. Candidates can get additional public funds if an opponent running as a traditional candidate spends more money — their own or their donors’ — than the Clean Elections candidate received initially.
In 2008, the Goldwater Institute filed a lawsuit on behalf of several Republican candidates, including state Treasurer Dean Martin, Sen. Bob Burns of Peoria, Rep. John McComish of Phoenix and Rep. Nancy McLain of Bullhead City. The traditional candidates argued that they limited their own campaign spending to avoid triggering additional public contributions to Clean Elections opponents, chilling their own freedom of speech
U.S. District Court Judge Roslyn Silver agreed, issuing a ruling in January that matching funds violate First Amendment freedom of speech because they cause non-participating candidates to limit their campaigning, fundraising and spending.
The 9th Circuit judges found no such evidence.
“No plaintiff, however, has pointed to any specific instance in which she or he has declined a contribution or failed to make an expenditure for fear of triggering matching funds,” they wrote.
“The record as a whole contradicts many of plaintiffs’ unsupported assertions that their speech has been chilled.”
The panel went on to say that Arizona has a “long history” of political corruption, and matching funds are important to reducing that corruption.
“AzScam, in which legislators literally sold their votes for cash bribes, was just one of many substantial, wide-spread, and highly-publicized political scandals that Arizona experienced in the late 1980s and 1990s,” the ruling stated. “The more candidates that run with public funding, the smaller the appearance among Arizona elected officials of being susceptible to quid pro quo corruption, because fewer of those elected officials will have accepted a private campaign contribution and thus be viewed as beholden to their campaign contributors or as susceptible to such influence.”
Nick Dranias with the Goldwater Institute was one of the attorneys who argued against matching funds.
“The decision is mistaken,” Dranias said. “We will be pursuing a review with the Supreme Court as soon as humanly possible.”
Dranias said that the 9th Circuit chose not to address what he thought was his side’s strongest argument. He said that’s where he thinks the Supreme Court will intervene.
“When your opponent receives government money whenever you (as a traditional candidate) spend money, that punishes you for spending money,” he said. “That’s the government punishing you for exercising your First-Amendment rights.”
The uncertainty as to the future of matching funds hasn’t had much impact on candidates’ willingness to participate in the program, said Citizens Clean Elections Commission executive director Todd Lang. He said participation is down only slightly compared to the 2008 primary.
As of May 10, 147 candidates have signed up. There are 10 participating gubernatorial candidates, including Republican incumbent Jan Brewer, Democrat Terry Goddard, Republican Dean Martin, Independent Stanford Drew Collins and Libertarian Alvin Ray Yount.
The percentage of people running as participating candidates rather than as traditional candidates has increased every election cycle. In the 2000 primary it was 26 percent and in 2008 it was 65 percent, according to the Citizens Clean Election Commission.