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Supreme Court Takes Aim Yet Again At Campaign Finance Laws


First Posted: 11/29/10 04:48 PM ET Updated: 05/25/11 07:15 PM ET

WASHINGTON -- The Supreme Court agreed to hear a free speech challenge to Arizona's Clean Elections Law on Monday, a case that campaign finance reform advocates expect to be another blow in the court's dismantling of the country's elections system.

Arizona candidates running for statewide and legislative offices are eligible to receive public funds after raising a certain number of $5 donations, according to the measure adopted by voters in 1998. They also have to forgo private fundraising and accept expenditure limits. The controversial part of the law is the fact that candidates can receive additional funds if they are running against an opponent who is not part of the public system and spends an amount of money beyond a certain threshold -- an attempt to level the playing field, at least in terms of funding.

In January, a U.S. district judge ruled on the side of the Goldwater Institute in Arizona, which is challenging the law. The Ninth Circuit Court of Appeals, however, unanimously reversed that decision and upheld the Clean Elections Act in May.

"We're ecstatic that we have a chance to put an end to the worst feature of taxpayer subsidies for politicians," said Clint Bolick, the Goldwater Institute's litigation director. "The matching-funds system brazenly violates the First Amendment right of candidates to speak without having government put its thumb on the scale for their opponents."

Paul Ryan, associate legal counsel at the nonpartisan Campaign Legal Center, said he wasn't at all surprised that the Supreme Court decided to hear the case, McComish v. Bennett, even though he believes the charges of free speech violations are without merit.

"It in no way limits anyone's speech," Ryan told The Huffington Post. "Instead it just gives resources to candidates to run campaigns. To have that be declared somehow a violation of the First Amendment, even though it only facilitates more speech, would be remarkable."

"Arizona Clean Elections has put elections back in the hands of voters -- ensuring that the voice of ordinary people matters as much as special-interest money and politicians are accountable to constituents instead of campaign cash," said Nick Nyhart, president and CEO of Public Campaign, pointing out that 34 percent of winning legislative candidates in Arizona used Clean Elections and five of eight statewide winners participated in the system.

Campaign finance reform advocates generally agreed that the Supreme Court will likely strike down the trigger provision in Arizona's Clean Elections Law, following its infamous decision in Citizens United that opened the floodgates to unlimited corporate spending in elections.

"The Supreme Court's desire to hear this case is another reflection of the activist bent of the Roberts court," said Ryan.

The ruling in McComish could potentially have reverberations outside of Arizona. Susan Liss of the Brennan Center, which is defending the law on behalf of the Arizona Clean Elections Institute, said that there are a handful of jurisdictions around the country that have similar trigger provisions, with the closest approximation being Maine's Clean Election Act.

"[The impact of the court's decision] will depend on whether the court looks at the case from the question in front of it, which is the question of the constitutionality of the trigger provision and whether or not that kind of a provision enhances First Amendment values or burdens First Amendment values," said Liss. "If that's what the court looks at, then these few places where this provision is in place will be affected one way or another. If the court decides to take a broader look, it's a little harder to predict what will happen."

If the court strikes down the trigger provision, it won't necessarily be a death blow for public financing. Lisa Gilbert, deputy director of Congress Watch at Public Citizen, noted that there are other models out there, including one contained in the bipartisan federal Fair Elections Now Act, which passed out of committee in the House in September.

"It has this system called a 'multiple match' for contributions," explained Gilbert. "It not only incentivizes small-dollar donors to support candidates, but it also makes the system more attractive in the same way that triggered matching funds did. If you get a candidate $100 and you're within their state, that money is matched at a four-to-one rate, and so it becomes $500."

Ryan also pointed to the multiple-match system as an alternative, although he argued that it's unfortunately less efficient than the trigger system, which directed additional funds into the races that most needed them.

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