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FOR IMMEDIATE RELEASE:
June 27, 2011
U.S. Supreme Court
Strikes Down
Arizona’s “Clean Elections” Act
Court Protects Free Speech
and Political Participation
Arlington, Va.—In a victory for free speech and
political participation, today the U.S. Supreme
Court ruled that the “matching funds” provision
of Arizona’s so-called “Clean Elections” Act is
unconstitutional. The landmark case is Arizona
Free Enterprise Club’s Freedom Club PAC v.
Bennett, argued by the Institute for Justice.
Both IJ and the Goldwater Institute had
challenged Arizona’s law in court.
“This case is a clear reminder to government officials
that they may not coerce speakers to limit their
own speech,” said Bill Maurer, an attorney with
the Institute for Justice, who argued the case.
“The Court’s decision today, like other recent
decisions, makes clear that the First Amendment
is not an exception to campaign finance laws;
t is the rule.”
Maurer said, “As a result of today’s ruling, government
can no longer use public funds to manipulate speech
in campaigns to favor government-funded political
candidates and turn the speech of traditionally funded
candidates into the vehicle by which their entire
political goals are undermined.”
Arizona’s “Clean Elections” Act manipulated
election speech by favoring candidates who
participated in the public funding system over
those who chose to forego taxpayer dollars
nd instead raised funds through voluntary
contributions. For every dollar a privately funded
candidate spent above a government-dictated
amount, the government gave additional funds
to his opponent. The Act even matched funds
spent by independent groups that supported privately
funded candidates, thereby canceling out those
independent groups’ speech.
According to the Court, “The direct result of the
speech of privately financed candidates and
independent expenditure groups is a state-provided
monetary subsidy to a political rival. That
cash subsidy, conferred in response to political
speech, penalizes speech.”
The Court’s decision followed the reasoning of
its 2008 decision in Davis v. FEC, in which it
struck down unequal contribution limits for
candidates. As the Court said in today’s decision
, although the penalty imposed by Arizona’s law is
different in some respects from the law in Davis “
those differences make the Arizona law more
constitutionally problematic, not less.”
For example, Arizona’s law matches not only
candidate expenditures, but those of independent
expenditure groups, such as the clients represented
by the Institute for Justice. As the Court put it “the
matching funds provision forces privately funded
candidates to fight a political hyrdra of sorts.
Each dollar they spend generates two adversarial
dollars in response.”
At bottom, the matching funds provision was a
bald attempt by the state to manipulate speech
by forcing speakers to either trigger matching funds,
change their message, or refrain from speaking.
According to the Court, “forcing that choice . . .
certainly contravenes ‘the fundamental rule of
protection under the First Amendment, that a
speaker has the autonomy to choose the content
of his own message.’”
Moreover, the Court recognized that the end result
of the matching funds was the total curtailment of
political speech, for “If the matching funds provision
achieves its professed goal and causes candidates
to switch to public financing, . . . there will be less
speech: no spending above the initial state-set
amount by formerly privately financed candidates,
and no associated matching funds for anyone.
Not only that, the level of speech will depend on the
State’s judgment of the desirable amount, an amount
tethered to available (and often scarce) state resources.”
But as the Court strongly reiterated today, “the whole
point of the First Amendment is to protect speakers
against unjustified restrictions on speech, even when
those restrictions reflect the will of the majority.
When it comes to protected speech, the speaker
is sovereign.”
In finding that matching funds substantially burden
speech, Chief Justice Roberts pointed to research
by University of Rochester political scientist David
Primo, an expert in the case. Contrary to claims of
Clean Elections’ backers, Dr. Primo’s original research
“found that privately financed candidates facing
the prospect of triggering matching funds changed
the timing of their fundraising activities, the timing
of their expenditures, and, thus, their overall
campaign strategy” to avoid sending additional
funds to opponents. The research is available at
www.ij.org/images/pdf_folder/first_amendment/az_
campaign_finance/expert-report-d_primo.pdf.
Today’s ruling is important not just for those states
and municipalities that have similar “matching fund”
systems. As Maurer explains, “The decision prohibits
government from attempting to level the playing field
among political speakers by creating disincentives
for some and incentives for others. The clear
message of the First Amendment to government
is: Hands off!”
Although today’s ruling affects only the matching
funds provision of the Clean Elections Act, there
is a measure on the November 2012 Arizona ballot
that would end the whole Clean Elections system
by forbidding government support of candidate campaigns.
The Institute for Justice has litigated against this
unconstitutional provision since 2004. IJ
represents independent political groups the
Arizona Free Enterprise Club’s Freedom Club PAC
and the Arizona Taxpayers Action Committee as
well as political candidates Senator Rick Murphy
and former State Treasurer Dean Martin.
“Now that matching funds are no more, we do
not have to censor our own speech,” said Steve
Voeller of the Arizona Free Enterprise Club’s
Freedom Club PAC. “As long as this law was
in place, we knew that that speaking out in the
election meant that our political opponents would
be showered with government money. The more
we spoke, the more politicians we opposed
benefitted. Now we can actually speak freely.”
Shane Wikfors of the Arizona Taxpayers Action
Committee said, “We have always believed that
this law was meant to corral not only candidates
but also voters by limiting political speech,
intimidating organizations like ours and ultimately
leading to a political outcome that was tainted
by the state’s involvement. We are grateful that
the Court protected political expression and struck
down this unconstitutional state intervention.”
Rick Murphy said, “I'm grateful a majority of the
justices recognized that the government shouldn't
try to ‘level the playing field’ of free speech with public money.”
Dean Martin said, “After nearly a decade, justice
has prevailed. Now I am looking forward to
November 2012, when the voters have a chance
to get rid of the rest of taxpayer money that
support politicians.”
Many observers anticipated the Court would strike
down the matching funds program. IJ-Arizona
Staff Attorney Paul Avelar explained, “It was
pretty clear that matching funds violate the First
Amendment rights of candidates, citizens and
independent groups. The Ninth Circuit’s decision,
now overturned, was so inconsistent with protections
for free speech in campaigns that two other
federal appellate courts almost immediately refused
to follow it. In those cases, the courts struck down
matching funds systems in Connecticut and Florida.”
“This is yet another example of an important judicial
trend the Institute for Justice has advocated since
our founding—that of judicial engagement,” said
Institute for Justice President and General Counsel
Chip Mellor. “The Court looked beyond the state’s
claims about Clean Elections to its substance.
It recognized that the real purpose of the law was
not to eliminate corruption, but to level the playing
field by manipulating speech. In the past, the
courts have all too often rubberstamped the
government’s claims about corruption in elections
and upheld campaign finance laws that violated
First Amendment rights. The Court seems to be
moving in the other direction in campaign finance,
and as a result, we are all freer.”
Arizona Free Enterprise Club’s Freedom Club
PAC is just one of several challenges the
Institute for Justice is litigating against restrictions
on free speech by campaign finance laws. Mello
r promised that “IJ will continue to fight against
laws that reduce speech, silence disfavored
speakers and viewpoints, and allow government
to manipulate the marketplace of ideas thereby
stripping away people’s right to govern themselves.”
Social science research shows that the purported
benefits of public funding programs rarely materialize,
while the costs to candidates and independent
groups are real. Dr. Primo summed up the findings
of the best available research in a paper for the
Institute for Justice (available at
http://www.ij.org/about/3466), and concluded,
“Public funding is a program that promises much
and delivers little.”
IJ recently won a landmark victory for free speech
in federal court on behalf of SpeechNow.org, an
independent group that opposes or supports
candidates on the basis of their stance on free
speech. IJ also won on behalf of a group of
neighbors who were prosecuted by their political
opponents under Colorado’s byzantine campaign
finance laws merely for speaking out against the
annexation of their neighborhood to a nearby town.
In addition, IJ won recent victories for free speech
in Florida when a federal judge struck down the
state’s broadest-in-the-nation “electioneering
communications” law and in Washington when
it stopped an attempt to use the state’s campaign
finance laws to regulate talk-radio commentary
about a ballot issue.
# # #
Best,
Christina WalshDirector of Activism and Coalitions
Institute for Justice
901 N. Glebe Road, Suite 900
Arlington, VA 22203
(703) 682-9320
(703)-682-9321 (fax)
www.ij.org
www.castlecoalition.org
Twitter: @ChristinaWalsh
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Mark Mix P.S. With free legal assistance from the National Right to Work Foundation, five