A decade after Clean Elections began to stifle campaign speech in Arizona, free speech could soon be liberated. On January 15, 2010, U.S. District Court Judge Roslyn Silver will hold a hearing on Goldwater Institute’s challenge to the matching funds provisions of Arizona’s Clean Elections Act. The judge could temporarily or permanently block matching funds for government-subsidized candidates and finally allow traditionally-funded candidates and their supporters to speak freely in the 2010 election cycle.
Unfortunately, in a last ditch effort to preserve government subsidies for her 2010 campaign, Governor Jan Brewer has submitted an affidavit asking for matching funds to be saved, saying her candidacy is not viable without them.
But matching funds clearly violate the First Amendment. Under the Clean Election Act’s matching funds scheme, “participating” candidates, like Governor Brewer, receive nearly one dollar for every dollar privately raised or spent by a non-government subsidized (or traditionally-funded) candidate to promote his or her message.
Matching funds punish traditional candidates by causing their promotional efforts—their campaign speech—to fund the campaign speech of opposing candidates. Moreover, the threat of such punishment chills free speech by causing traditional candidates and their supporters to think twice before raising or spending money that might trigger matching funds to an opposing government-funded candidate.
Governor Jan Brewer had plenty of notice not to rely on such government subsidies during the 2010 election cycle. In two decisions issued during the 2008 election cycle, Judge Silver ruled that matching funds violated the First Amendment rights of traditionally-funded candidates and their supporters because individuals are entitled to be free from punishment for exercising their constitutional rights. Judge Silver also ruled that then-recent Supreme Court case Davis v. FEC required her to strike down any campaign finance regulation, like matching funds, that has the effect of chilling and deterring campaign speech. Judge Silver refrained from striking down matching funds at that time only because she did not want to interfere with an ongoing election.
This Friday, with the 2010 elections still many months away, we hope the court will protect the First Amendment and end the speech-stifling reign of Clean Elections in Arizona with an injunction on matching funds.
Nick Dranias holds the Goldwater Institute Clarence J. and Katherine P. Duncan chair for constitutional government and is the director of the Institute's Dorothy D. and Joseph A. Moller Center for Constitutional Government.
Goldwater Institute: McComish v. Bennett (Clean Elections)
Goldwater Institute: Plaintiffs' Second Motion for Preliminary Injunction