Ballot Law: Arizona’s unconstitutional matching-funds law

July 13, 2011

Ballot Law(Editor’s Note: With 2010’s Citizens United Supreme Court ruling, the field of election law has seen, and continues to see, many significant changes.  Throughout the month of July, we’ll be looking at important developments in the area.)

For the first post on Stephen Colbert’s super PAC, click here.

Arizona has certainly been a frequent flier in the federal courts recently.

At the end of June, the Supreme Court decided Arizona Free Enterprise Club v. Bennett, which invalidated an Arizona election law that sought to “level the playing field” in election campaign finances.

The law, the Arizona Citizens Clean Elections Act, was passed in 1998, contained a provision that provided public money to publicly-funded candidates (who must agree to limit their expenditures to $500) in almost matching amounts to amounts spent by privately-funded candidates.

The provision triggers after a privately-financed candidate has raised or spent a certain threshold amount.

After that, each dollar spent by that privately-financed candidate or an independent political organization (mainly political action committees) triggered direct payment of public money of almost one dollar to publicly-financed opponents.

Matching funds paid out are limited to twice the initial authorized grant of public funding to the publicly-financed candidate.

In a 5-4 decision, the Supreme Court found that the provision was an unconstitutional burden on the free-speech rights of privately-financed candidates and independent expenditure groups.

While the law doesn’t explicitly limit the speech or money spent on speech of privately-financed candidates, the majority saw the fact that private-candidates’ expenditures led to a release of public funds to their opponents as a substantial limitation on speech.

The dissent disagreed, claiming that the main purpose of the First Amendment is to “foster a healthy, vibrant political system full of robust discussion and debate.”

Rather than violating the First Amendment, the Arizona law actually encouraged this purpose by removing the factor of wealth from whose voices may be heard in the public forum.

In short, the law produces more political speech, not less.

Supreme Court BuildingThe dissent also took issue with the majority’s assertion that public subsidies constitute a burden on speech, since the Court’s jurisprudence on the issue up until this case held otherwise.

According to the majority, though, there is a difference between a seminal Supreme Court case on public campaign financing, 1976’s Buckley v. Valeo, and the current one.

That difference is the matching provision discussed above, which unconstitutionally burdens free-speech.

The majority suggests that this burden lies in the way the mechanism diminishes the effectiveness of the privately-funded candidate’s expression by enabling his opponent to respond using public funds.

I really can’t see the majority’s argument, but their holding still doesn’t surprise me.

The current Court majority has repeatedly struck down legislative attempts at campaign finance reform with First Amendment rationales (see 2008’s Davis v. FEC and 2010’s Citizens United v. FEC as examples).

With the Supreme Court invalidating campaign finance restrictions on every such case that hits its docket, future elections are going to see a lot more money dumped into them.

With 2012 being a presidential election year, we should see a massive increase in campaign spending over 2008, if the Court’s decisions have had any effect.

What we probably won’t see in 2012 because of the Court’s ruling, though, are as many successful independent candidates of limited funding from Arizona.