By Fred Wertheimer
President, Democracy 21

On March 28 the Supreme Court will hear oral argument in McComish v. Bennett, a case involving a challenge to the constitutionality of the Arizona public financing law.

This will be the first time the Court has heard a challenge to the constitutionality of public financing of elections since it upheld the constitutionality of the presidential public financing system in Buckley v. Valeo in 1976.

The Court found in Buckley that public financing “furthers, not abridges, pertinent First Amendment values.”  The Court also found that “public financing as a means of eliminating the improper influence of large private contributions furthers a significant governmental interest.”

The petitioners in the Arizona case have not asked the Court to re-visit these holdings from Buckley but instead are focused on a narrower issue.

The Arizona case presents the question of whether the amount of public funds provided to a candidate participating in the public financing system can be increased based on the level of campaign spending by an opponent who has chosen not to accept public financing. 

The Arizona public financing law was upheld as constitutional by the Ninth Circuit Court of Appeals and the Supreme Court agreed to hear an appeal of that decision.

The law firm of Munger, Tolles & Olsen, led by Brad Phillips, and the Brennan Center for Justice served as counsel for the intervening defendant before the Ninth Circuit. They are also representing them in the Supreme Court where Mr. Phillips will argue the case on behalf of the intervening defendant.

The U.S Solicitor General filed an amicus brief with the Supreme Court in defense of the Arizona law and has requested time to participate in the oral argument.

“As the defendants’ briefs and the numerous amicus briefs make clear, the Arizona law enhances speech, contains no restrictions on speech and does not unconstitutionally chill speech,” according to Fred Wertheimer, president of Democracy 21 and an attorney on an amicus brief filed by reform groups.

“The Arizona case presents an important test of just how far this Supreme Court is prepared to go to overturn the nation’s anti-corruption campaign finance laws,” Wertheimer said.

Under the Arizona law, candidates for state office can choose to participate in the public financing system.  A candidate who opts for public financing and who qualifies by raising a specified number of small contributions then receives a grant of public funds for his campaign, and cannot raise any additional private money.  If that candidate is running against an opponent who does not accept public financing, and who raises and spends more than the amount of the grant, then the publicly financed candidate is entitled to receive additional public funds, subject to a limit on the total amount of additional funds that can be received.

The provision for additional funds exists for two reasons: to provide a public finance system in which candidates can run competitive races against privately financed candidates and to limit the use of  taxpayer funds to the amounts that are necessary to have a viable and competitive public financing system for candidates to use.

Plaintiffs challenged the Arizona law as a violation of the First Amendment free speech rights of privately financed candidates, arguing that the law “chills” their right to spend more than the grant amount because that spending will trigger additional funds to their publicly financed opponents. 

Plaintiffs rely on a 2006 Supreme Court decision in Davis v. FEC, where the Court struck down the so-called “Millionaire’s Amendment” in federal campaign finance law. That provision allowed a congressional candidate to raise private contributions subject to higher contribution limits if they were running against a wealthy opponent who spent a large amount of personal wealth. 

The Court in the Davis case, however, based its decision not on “chilling” speech but on the grounds that the provision involved was “discriminatory” in that it increased the contribution limit only for the opponent of a self-financed candidate. The Court made clear that if the provision had increased the contribution limit for both the self-financed candidate and the candidate’s opponent the provision would have been constitutional.

In the Arizona case, all candidates have the same opportunity to participate in the public financing system and the opportunity to choose whether the public or private financing system will serve them best.

There are two basic kinds of  public financing systems.

Some public financing systems, like the Arizona system, and systems in Maine and New York City provide for additional matching trigger funds. Other systems, like the presidential public financing system and the system for Connecticut state races have functioned effectively without providing matching trigger funds provisions.

In the Arizona case, the federal district court declared the “trigger” funding provisions of the Arizona law unconstitutional. The Ninth Circuit Court of Appeals, however, reversed that ruling and upheld the Arizona law. In a decision issued in May, 2010, the appeals court said that the plaintiffs had failed to show that the grant of trigger funds to a participating candidate had chilled spending by non-participating candidate:

Based on the record before us, we conclude that any burden the Act imposes on Plaintiffs’ speech is indirect or minimal.  Since the Act’s adoption, campaign spending in Arizona has increased. Several Plaintiffs testified that they would have made increased expenditures or undertaken increased fundraising but for the matching funds provision. 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. The record as a whole contradicts many of Plaintiffs’ unsupported assertions that their speech has been chilled.

The Ninth Circuit also noted that the Arizona law does not prevent any non-participating candidate from spending as much as he or she wants:

Plaintiffs bemoan that matching funds deny them a competitive advantage in elections. The essence of this claim is not that they have been silenced, but that the speech of their opponents has been enabled. We agree with the First Circuit that the First Amendment includes “no right to speak free from response – the purpose of the First Amendment is to secure the widest possible dissemination of information from diverse and antagonistic sources.”

In June, 2010, the Supreme Court issued a stay of the Ninth Circuit ruling, which had the effect of reinstating the district court decision and enjoining the trigger provision during the 2010 elections in Arizona.  In November 2010, the Court granted certiorari to hear the case on the merits.

In the Arizona case before the Supreme Court, only the constitutionality of the “trigger” fund provision is under review, not the constitutionality of public financing as a whole. 

The Supreme Court also has a second case before it that raises a different constitutional challenge to public financing of elections.  In Green Party v. Lenge, minor party candidates claimed that the public financing law for Connecticut state elections discriminates against them in the way it provides public funds for minor parties.

The Second Circuit Court of Appeals, citing the Buckley decision, upheld the minor party provisions of the Connecticut public financing law in a July, 2010 decision.

In Buckley the Supreme Court said regarding minor party candidates that “the Constitution does not require Congress to treat all declared candidates the same for public financing purposes.” The Court also stated, “Sometimes the grossest discrimination can lie in treating things that are different as though they were exactly alike.”

The plaintiffs filed a petition for certiorari in the Green Party case asking the Supreme Court to review that decision and the Court has not ruled yet on the petition. The Democracy 21 “Project Supreme Court” legal team is representing Connecticut Common Cause and other intervening defendants in the Green Party case in opposing the certiorari petition.   

In the Supreme Court briefs filed in the Arizona case, defenders of the Arizona law stress the point that the additional public funds provided to participating candidates imposes no restrictions at all on the speech of candidate not accepting public funds. The intervening defendant, the Clean Elections Institute, which along with the State of Arizona is defending the state law, said in its brief:

Arizona’s triggered matching funds “impose no ceiling on campaign-related activities” and “do not prevent anyone from speaking.” See Citizens United, 130 S. Ct. at 914 (quoting Buckley, 424 U.S. at 64 and McConnell v. Federal Election Comm’n, 540 U.S. 93, 201 (2003)). Moreover, such funds enhance political speech and enable voters to make more informed choices, by providing additional resources for participating candidates to communicate with the voters. This Court has consistently held that regulations that impose no direct limits on speech and further First Amendment values, but which may incidentally burdensome persons’ ability to speak, are subject to less than strict scrutiny. Such regulations need only bear a “substantial relation” to a “sufficiently important” governmental interest. Citizens United, 130 S. Ct. at 914 (quoting Buckley, 424 U.S. at 64, 66); see McConnell, 540 U.S. at 231-232. That is the standard the Court should apply to Arizona’s triggered matching funds.

The brief also argues that the trigger funds provisions further important anti-corruption interests by encouraging candidates to participate in public financing, which the Court has previously held serves to further, not abridge, speech:

Triggered matching funds do not abridge the right of candidates and committees to spend unlimited amounts in Arizona elections. To the contrary, Arizona’s carefully-calibrated system of disbursing limited public funds promotes First Amendment values by encouraging more candidates to run, enhancing communication with the electorate, and increasing the number of contested and competitive elections. At the same time, matching funds serve Arizona’s compelling interest in reducing the potential for quid pro quo corruption by making public financing a realistic alternative to potentially corrupting private contributions.

Former U.S. Solicitor General Charles Fried, who held this position in the Reagan Administration, joined by the law firm of Skadden, Arp, filed an amicus brief in the Arizona case on behalf of a bipartisan group of former elected officials, including the co-chairs of Americans for Campaign Reform, former Senators Bill Bradley (D-NJ), Bob Kerrey (D-NE), Warren Rudman (R-NH) and Alan Simpson (R-WY).

The brief on behalf of the former elected officials states  that the trigger funds provision serves to increase, not diminish, the amount of campaign speech:

Consideration of this case should proceed from recognition of a simple point: the law at issue in this case is not, in the words of the First Amendment, a law "abridging the freedom of speech." Rather, it adds voices to the political forum and thereby expands speech. It is Petitioners – in complaining that these additional voices are a burden on their message – who in reality are seeking to restrict speech.

The Fried brief further argues:

Petitioners attempt to portray Arizona’s law as a restriction on speech, when in fact it is their position that would have a restrictive effect on political discourse. They challenge a regime that silences no one, prohibits no speech, and only enables additional speech. To make their counterintuitive point that Arizona’s law is nonetheless constitutionally defective, Petitioners must argue that, because the Arizona law enables more speech, it somehow has impermissibly interfered with their ability to speak as much as they want on any subject they choose.

This objection depends on a premise that this Court in many ways and contexts has firmly rejected. Petitioners’ argument depends on the premise that the speech of others who disagree with them somehow interferes with, silences, swamps, or unfairly competes with, their speech. But, except where a speaker quite literally shouts down another, this Court has always rejected the notion that more speech somehow interferes with, silences, swamps, or unfairly competes with speech it opposes. It is up to the listener to decide to whom he wants to attend, to decide when he has heard enough from one speaker, to decide when one speaker is so insistent, verbose, or annoying that he no longer chooses to listen to him. That is not a choice for government to make, or for courts to compel.

The Fried brief also distinguishes the Davis decision on which the petitioners in the case primarily rely:

Petitioners maintain that Davis v. FEC, 554 U.S. 724 (2008), compels invalidation of the Arizona law. But Davis concerned a different kind of law, one that imposed asymmetrical campaign contribution limits on candidates. The result of this disparate treatment was that opponents of self-financed candidates could raise three times the money of their opponents from individual donors; it was this "discriminatory" feature of the law that made it an impermissible "penalty" on speech. Arizona’s law does no such thing. It finances, rather than limits, campaign speech, and it thus promotes, rather than burdens, First Amendment values.

The United States also filed a friend-of-the-court brief in support of the Arizona law. The brief, filed by Acting Solicitor General Neil Kumar Katyal, noted that the Arizona trigger funds provision is designed to encourage candidates to participate in the public financing system:

This Court has recognized that voluntary public-financing programs are a constitutionally permissible means of preventing actual and apparent corruption of office-holders. That Arizona also limits contributions does not negate the possibility of such corruption. And by obviating the need for candidates to solicit donations to amass adequate resources under applicable contribution limits, public financing serves a further important interest by freeing office-holders to focus on issues of public concern. The matching-funds mechanism provides a constitutionally permissible formula for determining how much money each publicly financed candidate will receive.

The State’s public-financing scheme can attract candidates to participate, and thereby serve its important purposes, only if candidates have reasonable confidence that it will provide sufficient sums to run competitive campaigns. Although Arizona could invite widespread participation by providing very large grants to all qualifying applicants, that approach would waste public funds in races where such largesse is unnecessary to run an effective campaign. And while the State cannot restrict petitioners’ expression in order to provide equality of opportunity to their competitors, the Arizona Act does not restrict petitioners’ speech. In determining in advance how to calculate the amounts to be paid to candidates who choose to participate, Arizona can seek to approximate the sums raised and spent by participants’ privately financed opponents.

The Solicitor General’s brief also refutes the argument that the Arizona law has an impermissible “chilling” effect on speech by non-participating candidates:

Petitioners and their amici contend that strict scrutiny should apply because the Arizona Act “penalizes,” “restrict[s],” or “limit[s]” the speech of candidates and independent groups. That premise is incorrect. The challenged provision does not limit the contributions that privately financed candidates can receive or the total amounts that such candidates or their supporters can spend on campaign-related speech. Petitioners nevertheless contend that the Act should be reviewed under the same stringent standard as an outright prohibition on spending. Petitioners’ theory is that the Act “burdens” their speech by creating incentives for petitioners to forgo campaign-related activity in order to prevent additional matching funds from flowing to their opponents. The existence of that sort of strategic choice, however, does not constitute the kind of severe burden on constitutional rights that would trigger strict scrutiny.

An amicus brief filed by the City of New York and the City and County of San Francisco, which have public financing systems with matching trigger funds provisions, also challenges the “chilling” effect argument stating:

Petitioner asks this Court to accept, on faith alone, the premise that no ‘rational person’ would want to raise and spend money if it means it would trigger additional public funds for his or her opponent, and that ‘anyone who takes ideas seriously’ will be chilled by that prospect. … Many years of practical experience, however, demonstrate that trigger funds have no impact on the campaign spending of non-participants, as Arizona, New York City, San Francisco, and others can attest.

In addition to the briefs discussed above, a wide variety of supporters of public financing also filed amicus briefs with the Supreme Court in support of the Arizona law. These include briefs filed by the Campaign Legal Center and Democracy 21 on behalf of a number of reform groups, by the Committee for Economic Development (CED), a national organization of 200 business leaders and university presidents, by Justice at Stake and 13 former State Chief Justices and Justices, by political scientists Norm Ornstein, Tom Mann and Tony Corrado, by a group of former officials of the ACLU, by a group of election law scholars including Richard Briffault, Dan Ortiz and Heather Gerkin, by Maine Citizens for Clean Elections, by SEIU, by the Union for Reform Judaism and by a group of wealthy, self-financing candidates, among others.