Conservative Justices Ax Ariz. Clean Elections Law

     (CN) – Arizona cannot keep a campaign finance law that lets publicly funded candidates receive additional public money when their privately funded rivals outspend them, the Supreme Court ruled Monday.

     The Clean Elections law, enacted in 1998, allows candidates who collect a certain number of $5 donations to receive a lump sum of public money if they agree to refuse money from special interest groups. Candidates can qualify for more public money if an opponent running as a traditional candidate spends more money on his campaign than the publicly funded candidate initially received.
     Republican candidates claimed the system hinders political speech by forcing them to rein in their own spending to avoid triggering additional matching funds for their Clean Elections opponents.
     Publicly funded candidates Jan Brewer and Dean Martin had counted on getting about $2.1 million under the law, but the Supreme Court limited them to the $707,440 they initially received for their Republican primary bid. The privately funded opponent, Buzz Mills, had spent close to $2.3 million, according to the Arizona Daily Sun.
     A federal judge issued a permanent injunction against the law after concluding that it had put a substantial burden on speech. The 9th Circuit stayed that injunction in May, saying the law did not violate the First Amendment, but the high court reinstated the block against matching funds pending the outcome of this appeal.
     On Monday, a majority of the divided justices concluded that the Arizona law is “more problematic” than the so-called Millionaire’s Amendment to the Bipartisan Campaign Reform Act of 2002, struck down by the high court in 2008 with the decision in Davis v. Federal Election Commission.
     First, the penalty in Davis consisted of raising the contribution limits for one of the candidates,” Chief Justice John Roberts wrote for the majority. “The candidate who benefited from the increased limits still had to go out and raise the funds. He may or may not have been able to do so. The other candidate, therefore, faced merely the possibility that his opponent would be able to raise additional funds, through contribution limits that remained subject to a cap. And still the Court held that this was an ‘unprecedented penalty,’ a ‘special and potentially significant burden’ that had to be justified by a compelling state interest – a rigorous First Amendment hurdle. Here the benefit to the publicly financed candidate is the direct and automatic release of public money. That is a far heavier burden than in Davis.”
     The majority noted that the law would trigger matching funds even if independent groups promoted the privately financed candidate without his consent, and in that the situation the privately funded candidate has no say over how that money is spent.
     “That disparity in control – giving money directly to a publicly financed candidate, in response to independent expenditures that cannot be coordinated with the privately funded candidate – is a substantial advantage for the publicly funded candidate,” Roberts wrote. “That candidate can allocate the money according to his own campaign strategy, which the privately financed candidate could not do with the independent group expenditures that triggered the matching funds.”
     Justices Ruth Bader Ginsburg and Stephen Breyer both parted with the majority, as they did in the millionaire’s amendment case. This time, they joined a dissent authored by Justice Elena Kagan, as did Justice Sonia Sotomayor.
     “A person familiar with our country’s core values – our devotion to democratic self-governance, as well as to ‘uninhibited, robust, and wide-open’ debate – might expect this Court to celebrate, or at least not to interfere with” a state’s success at ridding itself of corruption and restoring integrity to the political system, Kagan wrote, quoting from the court’s 1964 decision in New York Times Co. v. Sullivan. “But today, the majority holds that the … system that produces honest government, working on behalf of all the people – clashes with our Constitution. The First Amendment, the majority insists, requires us all to rely on the measures employed in the first State, even when they have failed to break the stranglehold of special interests on elected officials.
     “I disagree,” Kagan continued. “The First Amendment’s core purpose is to foster a healthy, vibrant political system full of robust discussion and debate. Nothing in Arizona’s anticorruption statute, the Arizona Citizens Clean Elections Act, violates this constitutional protection. To the contrary, the Act promotes the values underlying both the First Amendment and our entire Constitution by enhancing the “opportunity for free political discussion to the end that government may be responsive to the will of the people.”

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