McComish v. Bennett (Clean Elections)

Posted on August 21, 2008 | Type: Case
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Case Background:

The Goldwater Institute has partnered with the Institute for Justice to bring an end to the use of matching funds as part of the Arizona Citizens Clean Elections Act. Narrowly passed by voters in 1998, the act uses taxpayer money in an attempt to level the financial playing field between candidates for state offices.

This matching funds provision was challenged by two lawsuits – McComish v. Bennett and Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett – which have been consolidated. The U.S. Supreme Court heard oral arguments on March 28 to reverse a decision of the Ninth Circuit Court of Appeals that upheld matching funds. On June 27, 2011, the High Court reversed the Ninth Circuit Court of Appeals and declared matching funds unconstitutional.

Here's how the provision works: If a privately funded candidate raises or spends money beyond a specific limit, an unelected state commission gives approximately the same amount of taxpayer money to all publicly funded opponents. In addition, if a person or group makes an independent expenditure in favor of a privately financed candidate, the commission also gives the same amount of money to all opponents funding their campaigns with tax dollars.

In effect, the state government is using public money to dilute the political speech of one group and promote the political speech of another.

In January 2010, U.S. District Court Judge Roslyn Silver ruled the matching funds portion of the Clean Elections Act violated the First Amendment and issued an injunction against it. The Citizens Clean Elections Commission appealed this decision to the Ninth Circuit Court of Appeals, which declared the scheme constitutional.

In a rare and unusual move, the Supreme Court stayed the Ninth Circuit’s decision and reinstated the injunction against matching funds before hearing oral arguments and ultimately ruling matching funds unconstitutional.

The Stakes:

  • The protection of the First Amendment rights of candidates who chose not to participate in the taxpayer-subsidized election finance system.
  • The elimination of government interference in campaign activities.

Case Documents:


Case Timeline:

August 21, 2008: Case filed in U.S. District Court.

July 17, 2009: Deadline for opposition brief.

July 31, 2009: Deadline for reply brief.

August 7, 2009: Hearing deadline.

January 5, 2010: Goldwater Institute files preliminary injunction asking Judge Silver to stop the issuance of matching funds for the 2010 election.

January 15, 2010: 1:30PM hearing on motions for summary judgment in U.S. Federal District Court, 401 W. Washington Street, Phoenix, Judge Roslyn Silver's courtroom #624.

January 20, 2010: Judge Silver strikes down Clean Elections as unconstitutional, but puts a stay on her order that allows for the state to appeal.

January 27, 2010: Goldwater Institute asks 9th Circuit Court of Appeals to remove the stay and strike down the matching funds provision of Clean Elections immediately. It is refused.

February 3, 2010: Goldwater Institute files emergency appeal to repeal the stay on Judge Silver's order with Supreme Court Justice Anthony Kennedy. The appeal is refused and gives the 9th Circuit until June 1st to rule on the appeal by the state.

May 21, 2010: 9th Circuit rules in favor of the state in appeal, saying that Clean Elections' matching funds is constitutional.

May 24, 2010: Goldwater files emergency appeal to lift the stay and block matching funds so they have time to appeal.

June 1, 2010: Justice Kennedy refuses appeal, citing that Goldwater needed to state an intent to appeal the decision. Goldwater Institute files a third application to lift stay adding its intent to appeal the 9th Circuit's decision.

June 8, 2010: U.S. Supreme Court grants Goldwater Institute's request to halt matching funds.

August 17, 2010: Goldwater Institute makes formal appeal to U.S. Supreme Court.

November 29, 2010: U.S. Supreme Court agrees to consider formal appeal.

March 28, 2011: U.S. Supreme Court heard oral arguments.

June 27, 2011: U.S. Supreme Court reverses Ninth Circuit Court of Appeal's ruling and declares matching funds unconstitutional.


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