Emerging Issues: Arizona
Supreme Court puts hold on Arizona Clean Elections law
When the U.S. Supreme Court announced its decision in Citizens United last January, we thought we'd seen it all. In that decision the Court opened up new avenues for unlimited corporate money in federal elections, rolling back campaign finance laws by about 100 years. That was bad. But on primary day, the Court took another unprecedented action with serious long term implications for our Clean Elections law.
On June 8, the Supreme Court blocked Arizona from paying out matching funds to qualified candidates in the current election cycle. That means that all the Clean Election candidates in Arizona, including the incumbent Republican governor, may be outspent in the primary election and will have no recourse. As they do in Maine, Clean Election candidates in Arizona agree to limit their spending because they know that the system will provide more funds if they are needed. For example, if a third party group runs advertisements attacking a candidate, dollar-for-dollar matching funds will be released to the candidate so she can respond to the attack.
In an extraordinary move, the Supreme Court has changed the rules in the middle of the game, and we expect that the Court's aggressive approach to campaign finance cases will continue.
In general, courts tend to be sensitive to the timing of election-related cases so as limit the disruption to the election itself. But not in this case. Instead, the Court has changed the rules in the middle of the game. This is just one more signal that the Court's aggressive approach to campaign finance cases will continue.
Since 1996, when Maine voters passed the citizen-initiated Clean Election Act, voters have been passing similar systems, opponents have been mounting court challenges, and courts have been weighing the constitutionality of the laws. In each and every case where Federal Appeals courts have considered lower court decisions, the matching funds provision has been upheld.
This agreement among the Federal Circuit courts makes the Supreme Court's intervention even more infuriating. The Court does not hear many cases - there has to be a good reason for the country's highest court to take on a particular case. One reason the justices may choose a case is when there is conflict among the circuit courts. If the several circuits that decided similar matching funds cases arrived at different conclusions, it would be very appropriate for the Supreme Court to hear the case and settle the law. But in this case, the law is settled and there is no dispute between the Circuit Courts for the Supreme Court to address.
The action taken by the Court is temporary, and they have not yet agreed to hear the case, but it seems unlikely that the justices would have taken such a radical intervention if that was not their intent.
The Arizona law, which like Maine's was passed by voters in a referenda election, has been in place and working well for ten years. For ten years matching funds have been paid out, and voters and candidates have benefited from the vigorous debate. Far from chilling the First Amendment right to free speech as the Arizona opponents claim, matching funds enhance it by providing for more speech.
Maine Citizens for Clean Elections, along with allies around the country, is mobilizing to help Arizona defend its law. If opponents gain traction, Maine's law will be the next target.
For coverage on the decision check out these editorials:
- Court should not limit ‘Clean' candidate funds, Portland Press Herald
- Clean
Elections Threatened?, Times
Record
For more information about the lawsuit go to: Brennan Center for Justice
We will continue to monitor the case closely and appreciate your support!
