By Christian Palmer
Arizona Capitol Times
and David Ziemer
Wisconsin Law Journal
The U.S. Supreme Court appears ready to strike a key provision of Arizona’s Clean Elections Act, leaving the future of state and national public campaign financing programs, including Wisconsin’s, in limbo.
The high court’s Nov. 29 decision to accept jurisdiction of McComish v. Bennett came as no surprise to court observers. In June, the Supreme Court, without addressing the lawsuit, interrupted the distribution of matching funds for the 2010 election cycle despite a prior 9th Circuit Court of Appeals ruling that found the funds constitutionally acceptable.
“We can read tea leaves, and the assumption is (the challengers) have the votes on the Supreme Court, which restrained matching funds before they even granted cert,” said Mike Valder, an attorney who played a leading role in promoting the 1998 ballot initiative that created public campaign financing in Arizona.
Other appellate courts have issued differing opinions on the legality of matching funds, which are distributed by the state to publicly funded candidates in order to offset private fundraising advantages of candidates who raise money the traditional way by soliciting donations from private interests, as well as spending on behalf of candidates by independent political groups.
Arizona is one of a handful of states with public campaign financing options for candidates. Others include Connecticut, Florida, Maine, Massachusetts and Wisconsin.
How the U.S. Supreme Court decides the case will have a significant effect on the constitutionality of Wisconsin’s Impartial Justice Act, which provides public funding for Wisconsin Supreme Court races.
Two cases challenging the Act are currently pending in federal court in the Western District, one brought by Jefferson County Circuit Court Judge Randy R. Koschnick, and the other by Wisconsin Right to Life.
Wisconsin Department of Justice spokesman William Cosh issued the following statement on the court’s grant of certiorari:
“The grant of certiorari in McComish has no immediate impact on our cases but could affect the possibility of a stay in either or both of our cases. First, it is possible that Judge (William) Conley could decide, on his own initiative, to stay the cases before he issues any decision on the pending motions. Second, one or more of the parties could move for a stay pending the outcome of McComish. I do not know the plaintiffs’ views about the possibility of a stay. On our side, no decision on such a possibility has yet been discussed, let alone reached.”
The plaintiffs, however, do not want a stay, but would prefer that the district court issue a ruling on summary judgment motions currently pending before the court. James R. Troupis, who represents the plaintiffs, said in an interview that he is hoping for a decision on the merits because otherwise, the provisions of the Act would be in effect for the upcoming Supreme Court election.
In contrast, Troupis noted that implementation of the Arizona law won’t go into effect unless the Supreme Court upholds the law, because the Supreme Court has enjoined enforcement of the Arizona law pending its decision. Troupis said he expects to file an amicus curiae brief in the Arizona case.
The biggest difference between the Arizona and Wisconsin laws, according to Troupis, is that the Wisconsin law applies only to Supreme Court elections, while the Arizona law applies to all state offices.
Based on this distinction, Troupis said he expects that, even if the Arizona law is struck down, Wisconsin will argue that its law is still constitutional because of the State’s interest in protecting the appearance of impartial justice.
But, he said, this distinction was flatly rejected by the U.S. Supreme Court in Republican Party of Minnesota v. White, 536 U.S. 765 (2002).
In July, the 2nd Circuit Court of Appeals struck a similar matching funds law used in Connecticut on grounds that it disadvantaged minor parties such as the Green Party, which sued to overturn the provision.
The Arizona challenge leveled by privately funded conservative lawmakers and several like-minded political action committees is different. The major claim is that matching funds discourage traditional candidates and political committees from engaging in costly political speech, for fear of triggering government funding for opposing candidates.
That argument, which has been leveled unsuccessfully in court for years by opponents of Clean Elections, was strengthened by the U.S. Supreme Court’s 2008 ruling in Davis v. Federal Elections Commission.
That decision shot down the so-called “Millionaire’s Amendment” included in 2002 federal campaign finance reforms known as McCain-Feingold. The amendment greatly loosened campaign finance restrictions for candidates whose competitors were able and willing to spend large amounts of their own money on the campaign trail.
The amendment was designed to equalize candidates’ resources, a goal the court did not find to fit with the recognized compelling government interest of thwarting corruption or at least its appearance.
Now, even many die-hard supporters of public campaign financing believe the U.S. Supreme Court will declare matching funds illegal because of the Davis ruling and the court’s other blows to campaign finance restrictions in cases like Citizens United v. F.E.C. and F.E.C. v. Wisconsin Right to Life.
Attorneys with the Libertarian-leaning Goldwater Institute and the Institute for Justice, who are representing the plaintiffs, are relishing what they find to be an ideal opportunity to obliterate the law that they claim dampens free speech and coerces candidates to run with government money.
“We’re ecstatic that we have a chance to put an end to the worst feature of taxpayer subsidies for politicians,” said Clint Bolick, chief litigant of the Goldwater Institute. “The matching-funds system brazenly violates the First Amendment right of candidates to speak without having government put its thumb on the scale for their opponents.”
The Citizens Clean Elections Commission, Arizona’s supervising agency for public campaign financing, has tried to remain optimistic. Its director, Todd Lang, is keen to argue that “freedom of speech does not equal freedom from rebuttal” when debating whether matching funds present a constitutional threat to privately financed candidates.
The mantra is a slight alteration of the conclusion reached by 1st Circuit Court of Appeals Senior Judge Frank Coffin, who wrote candidates had “no right to speak free from response” in a 1999 decision that upheld matching funds used in Maine.