[CFR-Announce] U.S. Supreme Court Destroys Arizona Public Funding System

[Dan Meek]

  Supreme Court Blocks Arizona Election Funding

David G. Savage and Jennifer Martinez, Tribune Washington Bureau

June 8, 2010 | 2:39 p.m.

Washington....The Supreme Court, in an unusual move, came to the aid 
Tuesday of well-funded candidates in Arizona and blocked the state from 
giving extra public money to those candidates who had agreed to forego 
private financing.

The court's emergency orders throws a wrench into the state's campaigns 
two months before its primary elections. It is the latest sign the high 
court's conservative bloc is skeptical of legal rules to limit election 
spending or to equalize the spending between wealthy and not-so-wealthy 
candidates.

Two years ago, the court in a 5-4 decision intervened on a behalf of a 
wealthy candidate for Congress from upstate New York and struck down the 
so-called "Millionaire's Amendment." That measure, part of the 
McCain-Feingold Act, allowed a candidate to raise more money through 
larger donations if his opponent was spending lavishly. Justice Samuel 
A. Alito Jr. called it a "drag" on the free-speech rights of the 
millionaire candidate because he was penalized for spending more on his 
race.

That ruling, in turn, fueled a 1st Amendment challenge to Arizona's 
Clean Elections Law, which was approved by its voters in 1998. The 
measure was designed to combat corruption in the state legislature. It 
providing public funds for candidates who agreed to abide by limits on 
spending and fund-raising.

Gov. Jan Brewer was among those who were surprised by the high court's 
order. She called it "terribly troubling." A Republican, she is being 
challenged in the Republican primary by Buz Mills, a wealthy 
businessman, who has already spent more than $2 million on his race.

Brewer had agreed to public funding and was to receive $707,000 for her 
campaign. She was also eligible to receive up to $1.4 million in extra 
matching funds because Mills, her opponent, had vastly outspent her. The 
Supreme Court's order means she will not receive the extra money later 
this month.

"It is extremely unusual for the judicial branch to change the rules of 
an election while it is being held," Brewer said. The primary election 
is set for August 24. The matching funds were to go out on June 22. For 
its part, the Supreme Court order is likely to stay in effect at least 
until the fall, when it probably will hear arguments in the case.

Todd Lang, executive director of the Arizona Clean Elections Commission, 
said he too was surprised by the timing of the court's intervention. 
"I'm extremely disappointed. To take an action such as this so late in 
the election cycle is unprecedented. Matching funds result in more 
speech and political debate, not less."

But the challengers, led by the Goldwater Institute and the Institute 
for Justice, called the court's order a "victory of freedom of political 
speech."

The decision "will allow the 2010 Arizona election to occur without the 
government placing its thumb on the scale in favor of those politicians 
who receive public funding," said Bill Maurer for the IJ.

In January the Supreme Court gave corporations a free speech right to 
spend unlimited amounts on election races, overturning another part of 
the McCain-Feingold act.

The Arizona law has been in effect for a decade, and most state 
legislators have agreed to take public funding. But the court has said 
candidates always retain the right to raise and spend money on their own.

Relying on the Supreme Court's ruling in the Millionaire's Amendment, a 
federal judge in Phoenix struck down Arizona's system of matching funds 
for candidates who faced well-healed opponents. The ruling did not void 
the principle of public funding, however.

However, the U.S. 9th Circuit Court of Appeals revived the full law this 
spring and said the extra matching funds did not infringe the 
free-speech rights of the millionaire candidates.

The challengers appealed to the high court seeking an emergency order to 
block the distribution of the matching funds until the Supreme Court can 
rule on the constitutional challenge. Justice Anthony M. Kennedy, 
speaking for the court, granted the order Tuesday. He did not say who 
voted in favor, but it takes the votes of five justices to grant a stay.

Nick Dranias, lead lawyer for the Goldwater Institute, said the matching 
funds violate the 1st Amendment rights of the privately funded candidate 
because the state "funds dollar for dollar hostile speech against you." 
If the privately funded candidate raises more money, his opponent gets 
more public funds, he said.

Loyola Law Professor Richard Hasen, an election law expert, said the 
court's order signals the justices are likely to take up the 
constitutional challenge and strike down the key part of the Arizona 
law. "It shows there is such a distrust of these measures among five 
justices," said. "It also shows a lot is up for grabs" in the area of 
campaign finance, he said.

David.savage at latimes.com <mailto:David.savage at latimes.com>

JenMartinez at Tribune.Com <mailto:JenMartinez at Tribune.Com>

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