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Justices void Arizona campaign-finance law

Publicly funded candidates’ edge held to be unfair

- The Washington Times - Monday, June 27, 2011

The Supreme Court struck down a key provision of an Arizona campaign-finance law that provided matching funds for publicly funded candidates, further solidifying the court's record of opposition to election reforms that limit speech.

The 5-4 majority ruled that the 1998 Arizona Citizens Clean Elections Act, which gives publicly financed candidates roughly a dollar for every dollar raised or spent by their privately funded rivals, violates the Constitution by restricting the free-speech rights of privately funded candidates and their donors.

The court reasoned that candidates who raise their own funding may be reluctant to spend it, knowing that their rivals will be rewarded with a counter-match. Political action committees and other donors may be especially wary of inadvertently funding candidates with whom they disagree.

"Any increase in speech resulting from the Arizona law is of one kind and one kind only: that of publicly financed candidates. The burden imposed on privately financed candidates and independent-expenditure groups reduces their speech," said Chief Justice John G. Roberts Jr. in the majority opinion for Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr.

The decision comes nearly a year and a half after another high-profile campaign-finance ruling, in Citizens United v. Federal Election Commission, in which a 5-4 majority struck down federal prohibitions on corporate and union campaign spending.

That ruling was hotly criticized by Democrats and liberal groups, who accused the court of clearing the way for corporations to buy elections. Monday's decision also came under fire for what critics described as tipping the scales in favor of the rich.

"I am concerned that todays opinion, as well as the Citizens United decision, will no doubt lead to the drowning out of individual voices of hardworking Americans by powerful special interests," said Sen. Patrick J. Leahy, Vermont Democrat.

Melanie Sloan, executive director of Citizens for Responsibility and Ethics in Washington, said "the Roberts court has issued another disastrous campaign-finance decision."

"Starting with Citizens United, Chief Justice Roberts and his conservative colleagues have been systematically dismantling our nation's campaign-finance laws, ensuring that only the richest Americans will have a say in the political process," she said.

Nick Dranias, the Goldwater Institute's director of constitutional studies and lead attorney in the case, countered that the decision "protects democratic elections and gets government's heavy thumb off the scale."

Arizona was among the national leaders in campaign-finance reform after the state was blindsided by a series of corruption scandals. The situation culminated in the 1991 "AZ-scam" case, in which seven state legislators were indicted for accepting campaign contributions or bribes in exchange for votes on casino-gambling legislation.

Justice Elena Kagan, writing the dissent, argued that states have the right to protect the legitimacy of the elections process by keeping "massive pools of private money from corrupting our political system."

"Arizonans deserve better," Justice Kagan wrote. "Like citizens across this country, Arizonans deserve a government that represents and serves them all. And no less, Arizonans deserve the chance to reform their electoral system so as to attain that most American of goals."

The Arizona case was brought by five conservative politicians and two political action committees, including the Arizona Free Enterprise Club's Freedom PAC. The club president, Steve Voeller, said: "The court got it absolutely right."

He argued the Arizona law had already placed a chilling effect on campaign spending and speech. For example, if his organization's PAC wanted to give $10,000 to a privately financed candidate who had three publicly financed rivals, the result would be the candidate's rivals receiving about $10,000 each from the state.

"Our money would be tripled against us," said Mr. Voeller. "So if we wanted to support a candidate, we'd have to think long and hard about whether it would do any good."

Even so, the law has proven popular among Arizona politicians. About two-thirds of all candidates for state office took advantage of the public-financing option through the 2008 election, said Michael Becker, voter education manager of Arizona's Citizens Clean Elections Commission, which administers the law.

The Supreme Court suspended the matching-funds provision prior to the 2010 election in anticipation of a decision, which dropped participation to about 50 percent of all candidates, said Mr. Becker.

Funding for the public financing comes mainly from a 10 percent surcharge on criminal fines and penalties, such as speeding tickets, as well as from voluntary contributions. In order to qualify for public funding, candidates must first collect $5 donations from a specified number of donors, depending on the office.

The ruling leaves in place some provisions of the Arizona law. Publicly funded candidates will continue to receive a base-level grant from the state after meeting certain thresholds for both the primary and general elections.

That could change, however, as a result of a referendum to strike down the entire law slated to appear on the 2012 ballot. The measure, referred to the ballot by the Republican-controlled state legislature, would eliminate all public funding in Arizona elections.

The high court's ruling Monday “is really the first break in the dam on public financing in Arizona,” said Mr. Voeller.

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