The nation’s high court on Monday voided a key provision of the state’s system of public financing of elections, a move that even supporters concede will result in more candidates choosing to solicit funds from business interests, labor unions and other special interests.
In a divided decision, the U.S. Supreme Court said Arizona cannot provide additional funds to publicly financed candidates when their privately financed foes spend more. Also gone are provisions that give these candidates extra money when independent committees run commercials against them.
Technically speaking, the Clean Elections Act still exists and candidates are still able to get public dollars if they agree not to take outside funds. And the court was careful to say that its ruling does not make public financing by itself illegal.
But the executive director of the Citizens Clean Elections Commission said the demise of the matching funds will mean fewer publicly funded candidates in future races.
“We’ll lose incumbents because incumbents will have access to the lobbyists and insider money,’’ said Todd Lang. And Lang said candidates who face well-financed foes are unlikely to opt for public dollars knowing that they would be outspent, with no way to make up the difference.
While Monday’s ruling will put a damper on public financing, it may just be a precursor.
State lawmakers put a measure on the 2012 ballot to constitutionally ban any type of public funding of future elections. If approved, that would wipe out not just the program voters approved in 1998 for statewide and legislative elections but a similar system for Tucson city elections.
Under the terms of the 1998 initiative, candidates who agree not to take outside funds get a set amount of public dollars based on the office being sought.
In the case of governor this past election, the state provided $707,447 for primary races and another $1,061,717 for general election survivors. But the law provides a match, up to three times the original amount, when foes — or those acting on their behalf — spend more.
Sen. John McComish, one of the opponents of public financing whose district includes parts of Tempe, Chandler and Ahwatukee Foothills, said that infringed on his constitutional rights of free speech.
“In 2008 I made a conscious decision at one point I wasn’t going to raise any more money because my (publicly funded) opponents would get that same amount of money,’’ he said. Worse yet, McComish said, is that they would get the cash handed to them by the state rather than having to go out and raise additional dollars.
“They didn’t have to work for it,’’ he said.
“Why would I do that?’’ McComish continued. “It really inhibited my speech.’’
Chief Justice John Roberts, writing the majority ruling in the 5-4 decision, agreed.
“The direct result of the speech of privately financed candidates and independent expenditure groups is a state-provided monetary subsidy to a political rival,’’ he wrote. And Roberts said that “substantially burdens the speech of privately financed candidates and independent expenditure groups without serving a compelling state interest.’’
But Justice Elena Kagan, in her dissent, said the system — including the matching funds — is a legitimate exercise of state power to deal with “the cancerous effect of corruption’’ of campaign dollars being traded for political votes. And she said public funding of elections, by itself, is not enough.
“Candidates will participate only if they know that they will receive sufficient funding to run competitive races,’’ Kagan wrote. She also rejected the arguments that anyone’s First Amendment rights are being harmed.
“In fact, by providing resources to many candidates, the program creates more speech and thereby broadens public debate,’’ she said.
But Roberts noted the matching funds provision applied not only to political donations but also to what candidates spend of their own cash.
“Burdening a candidate’s expenditure of his own funds on his own campaign does not further the state’s anticorruption interest,’’ the chief justice wrote. And Roberts said having candidates use their own money actually discourages corruption.
He also said independent expenditures on behalf of a candidate, which also trigger matching funds for foes, “do not give rise to corruption or the appearance of corruption.’’
Lang said Monday’s ruling allows any candidate with sufficient resources, whether personal or from political supporters, to greatly outspend publicly funded foes, leaving the latter with little chance — and few resources — to respond. In essence, he said, opponents of public financing are using the First Amendment not as a shield to protect free speech but as a sword to limit the speech of others.
McComish conceded the huge funding advantage that could result for privately financed candidates with sufficient personal resources or the ability to attract campaign donations. But he said that does not make it unfair to those who choose to take public money.
“They would know that going in,’’ he said. “They could either take the (public) money that they don’t have to work for, which is a flat amount, or not participate in Clean Elections and go out and earn money the old fashioned way.’’
McComish rejected the argument that there is a direct link between campaign donations and how people vote. But he said money does have an effect.
“Somebody that supports a candidate, if that candidate is elected, those supporters are going to have access,’’ he said.
“They’re not necessarily going to get their way,’’ McComish continued. “But they will get a hearing.’’
Monday’s ruling still provides the option of the state simply increasing the amount of money that is given to publicly funded candidates, without linking that to what their foes spend. That, however, would require approval by state lawmakers — the same lawmakers who just last year chose to ask voters to repeal public funding entirely.
Lang said the future of that proposal “depends on how hostile or how much money is spent by the (Arizona) Chamber and others to try to influence the Legislature.’’
Monday’s win was a significant victory for business groups like the state chamber, which fought the 1998 initiative and, after it was approved, went to court multiple times in bids to have the system declared illegal. Each of those efforts failed.
In the majority ruling, Roberts noted that the court previously threw out a federal law that said once a candidate spends more than $350,000 of his or her own money, then political foes could take more in contributions from individuals. In that case, the chief justice noted, the court concluded the provision forced candidates to choose between their First Amendment rights — with the right to spend money on one’s own behalf within that right — and being subject to discriminatory funding limitations.
The Arizona law, Roberts argued, is even more legally offensive.
In the prior case, he said, the other candidate still had to go out and solicit those extra donations. In Arizona, however, the state handed the extra money to the outspent publicly funded candidate.
Roberts also said the fact that the match applies to independent expenditures — those made by an outside group, with no connection to the publicly funded candidate’s foes — also makes the Arizona law unconstitutional. That’s because the publicly financed candidate gets to spend the extra state-provided cash any way he or she wants; the privately funded candidate has no say over the message being sent by what are supposed to be political friends.