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McComish v. Bennett: A “Trigger” to Kill Matching Funds?

On Monday the United States Supreme Court heard oral arguments in McComish v. Bennett, a free speech challenge to the “matching funds” provision of the Arizona Clean Elections Act.  According to the law, candidates who accept taxpayer funds (that is, agree to accept money from the public till in exchange for not raising private funds) receive an extra helping of funds each time an opposing candidate (that is, one who does not accept any taxpayer funds) spends campaign money above a certain level.  This “trigger” also affects independent grassroots groups. 

Arizona’s experiment in deciding how much speech is “just right” runs afoul of the First Amendment.  Think of it this way, for each dollar a grassroots group spends for advertising, its opponent will receive that same amount of money from the state.  Even worse, if an independent candidate runs against three publicly funded candidates in a primary election and spends $10,000 in advertising, then the government doles out $30,000 in cold, hard cash to his opponents.  

It doesn’t take much to recognize the chill this places on free speech.  When grassroots groups and independent candidates want to broadcast their message, they shouldn’t be penalized for speaking.  After all, in this kind of system one is less likely to express any support at all.  Proponents of the law insist that there is no such chill from matching funds, and that it in fact creates more speech.  They also claim that the intent of the law is to combat corruption or the appearance of corruption, and the fact that it works more to “level the playing field” (a concept wholly foreign to the First Amendment) is merely an incentive for candidates to take public funds. Hogwash. 

The real truth about Arizona’s Clean Election system is that it is anything but clean.  It puts limits on how much speech independent voices will produce while providing favors to those candidates who curry favor with the state.  The established purpose of the law is to reduce the “influence” of “special interests.”  In other words, the government gets to decide which voices should speak in abundance and which should be tuned down a bit, or entirely muted.  While “innovative,” such experiments enjoy no validity under the First Amendment, which promises each person the natural right of expression and association to ensure that a civil society might be maintained. 

A transcript of the argument is now available, and reveals that a majority of the Court appears highly skeptical of the proponents’ rosy depictions of “clean” elections. 

Below are some highlights. Bill Maurer, from the Institute for Justice, argues against the matching funds trigger:

JUSTICE SCALIA:  Mr. Maurer, suppose – suppose the government imposes a fine of $500 for all political speech, and people nonetheless continue to engage in political speech and pay the $500. Would that make the $500 penalty for political speech constitutional?

MR. MAURER: No, it would not, Your Honor.

* * * *

JUSTICE KAGAN: I think the purpose of this law is to prevent corruption. That’s what the purpose of all public financing systems are.

MR. MAURER: Your Honor, I would respectfully disagree that the purpose of this law is to prevent corruption, and I would like to read from the executive director of the Clean Elections Commission who said that: “It cannot be disputed that the purpose of the Clean Elections Act is to equalize the playing field and to give participating candidates an equal opportunity to get their message out,” . . . .

            * * * *

JUSTICE SOTOMAYOR:  . . . . So, I’m going to start from that – that assumption, that there was no evidence in the courts below that any candidate stopped speaking because of or stopped collecting money because of this.  So exactly what is the burden otherwise? What are you claiming the burden is? The burden is that the – that the government is choosing to give someone else money?

MR. MAURER:  No, Your Honor. First, I would respectfully disagree with the characterization of the Ninth Circuit of the evidence produced at the district court.  There was considerable evidence of people not making expenditures, of slowing their fund-raising, as – as one of my clients put it, to a crawl in order to avoid triggering matching funds . . . .

Congratulations to Bill Maurer for excellent presentation at oral arguments!  We cannot predict the Court’s opinion, but it’s certain that the Court is not as blind to the chill of matching funds as proponents of “Clean Elections.”  The Wyoming Liberty Group was proud to participate in this challenge, itself contributing a friend of the court brief that detailed the many constitutional problems with Arizona’s Clean Elections law. 

Institute for Justice has collected coverage of the case on their Make No Law Free Speech Blog.

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