The Campaign Legal Center and Democracy 21 joined by other reform groups filed an amicus brief today in the Supreme Court defending the constitutionality of the state public financing law in Arizona.

In addition to Democracy 21 and the Campaign Legal Center, the reform groups who joined in filing the amicus brief included League of Woman Voters of the United States, League of Women Voters of Arizona, Public Citizen, CREW, Sierra Club and New Jersey Appleseed Public Interest Center.

The lead attorneys on the amicus brief were Tara Malloy, an attorney with the Campaign Legal Center, and Don Simon, outside counsel to Democracy 21.

The amicus brief was filed in the case of McComish v. Bennett, which involves a  challenge to the constitutionality of the “trigger funds” provisions in Arizona’s public financing law. Oral argument in the Supreme Court on the McComish
case is scheduled for March 28, 2011 and a decision is expected before the end of this Term in June.
Under the Arizona law, established in 1998 by Arizona voters, candidates for state office who use the public financing system receive an initial grant of public funds once they qualify by raising a certain number of small contributions. 

In addition, if a candidate participating in the system is running against a non-participating candidate who spends privately raised funds in excess of the public grant given to the participating candidate, the participating candidate is eligible to receive additional public funds.  Participating candidates also are eligible to receive additional public funds if they are the targets of independent expenditures by outside groups.

A group of Arizona candidates and political committees challenged the Arizona law as a violation of the First Amendment, claiming that the provision of “trigger funds” to participating candidates had a “chilling” effect on the speech of nonparticipating candidates and independent spenders.

In a decision issued last May, the Ninth Circuit Court of Appeals rejected the challenge and upheld as constitutional the “trigger funds” provisions in the Arizona law. The Supreme Court accepted the case for review. 
In the brief filed today, the reform groups argue that the Arizona law is constitutional under the standards set forth by the Supreme Court in Buckley v. Valeo in 1976, which upheld the constitutionality of the presidential public financing system.  The brief argues:

[T]he challenged trigger provisions are supported by the same governmental interests that were found in Buckley to support the presidential system: “eliminating the improper influence of large private contributions” and “relieving . . . candidates from the rigors of soliciting private contributions.”  424 U.S. at 96.  The record below – undisputed by petitioners – demonstrates that trigger provisions encourage candidate participation in Arizona’s program.  By increasing participation in the program, the provisions reduce state candidates’ reliance on private contributions and thereby further the compelling governmental interest in preventing corruption or the appearance of corruption.

The brief stresses that the Arizona law imposes no restrictions on spending by candidates in Arizona who choose not in participate in the public financing system, or on spending by outside groups.  Both non-participating candidates and outside groups are free to raise and spend as much money as they want. 

Nor is there any indirect “chilling” effect on their spending that gives rise to a First Amendment claim.  The brief argues:

[T]he trigger provisions are no more than a release mechanism for a state subsidy. This Court has not previously held that the indirect effect of a public subsidy program on the speech of those persons who are not subsidized represents a cognizable burden under the First Amendment, at least absent content- or viewpoint-based discrimination or the imposition of an unconstitutional condition.  See, e.g., Regan v. Taxation With Representation, 461 U.S. 540 (1983); National Endowment for the Arts (NEA) v. Finley, 524 U.S. 569 (1998).  Cf. Rosenberger v.  Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995) (applying strict scrutiny to public university’s student activities program that denied funds to publications expressing religious viewpoint). 

Finally, the brief distinguishes an earlier case that petitioners in this case rely on most heavily – Davis v. FEC.  In that case, decided in 2008, the Supreme Court struck down the so-called “Millionaire’s Amendment,” a provision of the Bipartisan Campaign Reform Act of 2002 which provided higher contribution limits to candidates running against wealthy opponents who spent a large amount of their own personal wealth.  The Court found that the Millionaire’s Amendment impermissibly discriminated against wealthy candidates, and the petitioners claim that the Arizona law similarly discriminates against candidates who choose not to participate in the public financing system.  But as the reform groups brief notes:

The Davis decision is distinguishable from the instant case in two respects.  First, and most fundamentally, the Millionaire’s Amendment imposed discriminatory direct limits on fundraising by self-financed candidates.  Here, by contrast, the trigger provisions did not directly restrict either the contributions to or the expenditures by their campaigns.  See, e.g., 611 F.3d at 530 (“Davis has to be distinguished because the scheme in that case affected contribution limits and this scheme does not.”) (Kleinfeld, J., concurring).  Instead, as discussed in the previous section, the challenged provisions operate merely to release public subsidies to participating candidates.  As a subsidy scheme instead of a direct restriction, the Act is subject to more deferential review.

Second, the Millionaire’s Amendment not only enforced a direct limit on the speech of self-financed candidates, but created a limit that was “asymmetric” and “discriminatory.” Id. at 2771-72.  The Davis Court repeatedly stressed that “if 319(a)’s elevated contribution limits applied across the board,” i.e. if the contribution limit was symmetrical, then the plaintiff’s challenge “would plainly fail.”  Id. at 2771 (emphasis added); see also id. at 2766, 2767 & 2772.  Hence, it was only the “discriminatory” nature of the regulation that gave rise to constitutional concerns.  Here, by contrast, there are no comparable fears with asymmetry. . . .                                                                              

Here, because publicly-funded and privately financed candidates voluntarily elect different regulatory programs ab initio, they are not similarly-situated.  Indeed, participating candidates choose a far more restrictive campaign finance regime – one that includes spending limits and stringent limitations on private fundraising – than do candidates who choose to finance their campaigns using private funds.  See, e.g., Ariz. Stat. 16-941, -945, -959(a).  That only participants receive trigger funds is therefore not “discrimination”; it is simply the result of the candidates’ voluntary decisions to compete in different regulatory programs.  

“It should be recognized that the petitioners who brought the Arizona case are not challenging the constitutionality of public financing as a whole, but rather are just challenging the ‘trigger funds’ provisions that provide additional public funds in certain circumstances for participating candidates,” said Fred Wertheimer, President of Democracy 21 and a member of the legal team that filed the amicus brief for the reform groups. 

“This means the Arizona case should not affect the constitutionality of the presidential public financing system, which was effective for most of its existence and does not have “trigger fund” provisions. Nor should the Arizona case affect the numerous state and local public financing systems that currently exist without having ‘trigger funds’ provisions,” Wertheimer stated.