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David M. Primo

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"Clean Elections" Stifles Speech

Posted: 08/18/10 03:22 PM ET

The U.S. Supreme Court is currently considering whether to hear Arizona Freedom Club PAC v. Bennett, a First Amendment challenge to Arizona's unconstitutional "Clean Elections" system of public funding for political campaigns. This system provides taxpayer dollars to candidates simply because their opponent--or even an independent group--chooses to spend or raise more than a limit set by the government. As my research shows, the effect of these "matching funds" is to punish the speech of candidates who refuse government handouts.

To see how this Byzantine system works, consider a general election Arizona House race between three candidates--Alex, Bob and Carol. Bob and Carol participate in the public funding system, but Alex does not. Instead, Alex works hard and raises $20,000 more than Bob and Carol each receive from public funding initially. Meanwhile, an independent group spends $10,000 apart from Alex's campaign, urging voters to elect him. Under Arizona's system, Bob and Carol receive additional subsidies of $60,000 ($30,000 each) from the government (less a small amount to account for Alex's fundraising costs). You read that correctly. Alex's successful fundraising, exceeding an arbitrary government-mandated limit by $20,000, plus the decision of a group he has no control over to spend $10,000 supporting him, mean that his opponents receive nearly $60,000 in additional government funds.

Arizona officials claim that nobody is being prevented from speaking under these rules, and that privately funded candidates are free to spend however much they want running for office, as are independent groups that want to speak in support of a privately funded candidate. That's like saying that a runner is free to run a race as long as he does not outrun his opponents. The truth is, a rational candidate must question whether $1 of additional campaign spending is worth it if his opponents each receive $1 in return.

My research demonstrates that many privately supported candidates facing this dilemma alter their speech as a result. Specifically, Arizona candidates at risk of triggering matching funds delay their fundraising and spending until the last possible minute in a campaign, holding fire in order to postpone the distribution of matching funds and make them less useful to opponents. Certainly, it is a common campaign tactic to make a last-minute push for votes, but I found that the late fundraising and spending of candidates facing the prospect of matching funds far outstripped that of other privately funded candidates not threatened by matching funds--by four to one in the two weeks before Arizona House primary campaigns and, in competitive races, by three to one in the two weeks before the general election.

These candidates, along with independent groups whose speech is likewise "leveled" by matching funds, are making a savvy choice to minimize the harm caused to their campaigns by their own speech under Arizona's system--but it is a choice they should not be forced to make under the First Amendment. In a free society, the government simply should not have a say in whether, or when, candidates speak.

Moreover, these harms to free speech and free elections come without any of the benefits promised by supporters. Public funding of elections is the Holy Grail of campaign finance reform, with supporters claiming that it will restore trust in government, increase the competitiveness of elections, and reduce the influence of "special interests" in politics. But the reality is at odds with the rhetoric: There is virtually no evidence that public funding has improved politics on any of these dimensions, as my research, the research of other political scientists, and research conducted by the nonpartisan U.S. General Accountability Office has established.

The case against Clean Elections in Arizona is a damning one. The system stifles speech during elections and has utterly failed to accomplish what its supporters promised. It's time to restore First Amendment rights to Arizona elections.


David M. Primo is associate professor of political science at the University of Rochester and served as an expert witness in Arizona Freedom Club PAC when it was before the federal district court.