McComish v. Bennett

Amicus brief in McComish v. Bennett
Benjamin Barr and Stephen Klein

Filed: January 20, 2011 (U.S. Supreme Court)

1. Do Citizens United v. Federal Election Comm’n and Davis v. Federal Election Comm’n require the Court to strike down Arizona’s matching funds system under the First and Fourteenth Amendments because it penalizes and deters free speech by forcing privately-financed candidates and their supporters to finance the dissemination of hostile political speech whenever they raise or spend private money, or when independent expenditures are made, above a “spending limit?”

2. Do Citizens United and Davis require the Court to strike down Arizona’s matching funds system under the First and Fourteenth Amendments because it regulates campaign financing in order to equalize “influence” and financial resources among competing candidates and interest groups, rather than to advance directly a compelling state interest in the least restrictive manner.

Under Arizona’s Clean Elections Act, when one runs for public office against a publicly funded candidate and does not accept public financing, expenditures they make (or that others make in their support) above a certain threshold trigger dollar-per-dollar matching in the campaign. Wyoming Liberty Group filed this amicus brief in support of striking down this provision on First Amendment grounds.

In this brief, we continue to hit upon the theme (found first in our Citizens United briefs) that government has no place anointing some speakers and restricting others, especially in the political arena. The brief provides a thorough history of coerced speech cases, and shows that it is only where government funds create more speech without disincentivizing others from speaking that First Amendment freedoms are not harmed. It then goes on to discuss the chilling effects doctrine and illustrates the many harms the matching funds provision has inflicted on speech (evidence that was all but dismissed by the Ninth Circuit Court of Appeals).  Finally, the brief calls for a re-examination and articulation of the chilling effects standard, so that it does not require 1,000+ pages of court documents and a trip to the Supreme Court just to be able to speak.

The Supreme Court ruled that the “trigger” in the matching funds provision chills speech and does not serve a compelling governmental interest, and so violates the First Amendment. Chief Justice Roberts, writing for the majority, paid special attention to the harmful effects of matching funds on not just candidates, but independent political groups. This ruling is a strong precedent for free speech, and establishes that government subsidies for political speech must not be directly contingent on the speech of others.

Click here to read the brief.

The Supreme Court opinion is here.

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