POSTED: Monday, February 1st, 2010 at 1:00 am

BY: CHRISTIAN PALMER

Phoenix, AZ – Arizona political candidates who chose to run their campaigns with public money appear to have made a foolhardy decision.

Matching funds, an important part of the state’s Clean Elections system, are unconstitutional and will not be available for the 2010 election cycle, U.S. District Court Judge Roslyn Silver concluded in a 23-page order released on Jan. 20.

Goldwater Institute attorney Nick Dranias summed up the judge’s decision in two words: “Total victory.”

Silver’s order included a five-day stay that prevents her conclusion from taking effect immediately. If an appeal is filed with the Ninth Circuit Court of Appeals by the state or defenders of the Citizens Clean Elections Commission, however, the stay will be extended to 10 days.

Todd Lang, the director of the Clean Elections Commission, did not immediately return calls. Still, the commission is expected to appeal Silver’s order in hopes of allowing matching funds to be distributed to publicly funded candidates during the 2010 election cycle.

Dranias said the commission has only a slim chance because Silver concluded that privately funded candidates’ right to free speech is burdened by matching funds, based on U.S. Supreme Court case law established in Davis v. Federal Elections Commission.

The commission and the Clean Elections Institute argued that the Davis case, which struck the so-called Millionaire’s Amendment from federal campaign finance law, does not provide an apples-to-apples comparison to matching funds.

But Silver noted in her ruling that the Davis case required her to determine the funds present a “cognizable burden” for privately funded candidates whose campaign expenditures trigger the distribution of matching money to their publicly funded opponents.

“Plaintiffs face a choice very similar to that faced in Davis: abide by a limit on personal expenditures or face potentially serious negative consequences,” she wrote. “In Davis, the negative consequence was having one’s opponent subject to higher contribution limits. Here, the negative consequence is having one’s opponent receive additional funds.”

Despite voicing several misgivings with arguments presented by the Goldwater Institute and the Institute for Justice, Silver ordered the end of matching funds.

“Arguably, the benefit conferred by matching funds is more constitutionally objectionable than increasing an opponent’s individual contribution limits,” She wrote. “In the latter scenario, the opponent must still go out and raise the additional contributions…matching funds, by contrast, ensure that there will be additional money to counteract the excess expenditures by the non-participating candidate.”

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