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June 27, 2011

Supreme Court Eviscerates Arizona’s Public Financing System

By Jeremy Miller

Today, in a 5-4 decision striking down Arizona’s matching funds provision, a majority of the Supreme Court continued to allow big money to capture and corrupt our public elections.  This is yet another nail in the coffin of campaign finance reform, jeopardizing a host of similar public financing systems throughout the country and turning back the clock on state efforts to prevent corruption in their political campaigns.     

For decades, campaign finance reformers have struggled to create political environments that keep big special interest money from corrupting government.  With a history of corruption in state elections, Arizona found a way to do just that by creating an effective public financing scheme.  The state scheme attacked corruption and the appearance of corruption in the state’s political system by breaking candidates’ dependence on big money.  Under Arizona’s now eviscerated campaign finance provision, ordinary citizens were able to run competitive races against better-financed opponents by agreeing to limit total spending and accepting only small contributions.  In exchange, the state contributed public funding. 

Today’s decision centers on the matching funds provision of the law (sometimes referred to as the “trigger” mechanism) that provides those candidates who opt-in with additional funding if their opponents exceed established spending limits.  This is a critical component, because it allows candidates who agree to forsake large contributions for small ones to go toe-to-toe with self-financing millionaires and well-financed candidates supported by big money special interests.  Without this protection, few serious candidates would opt into the system.

The Supreme Court struck down the provision based on a deeply flawed analysis that incorrectly interpreted the facts.  Chief Justice Roberts, writing for the majority, premised his opinion on the incorrect assertion that Arizona’s matching funds provision imposes a substantial burden on the speech of candidates and independent expenditure groups.  Nothing could be further from the truth.  Such public financing schemes create more speech and broaden public debate.  In her dissenting opinion – joined by Justices Ginsburg, Breyer and Sotomayor – Justice Elena Kagan correctly observes that the Arizona law “promotes the values underlying both the First Amendment and our entire Constitution by enhancing the ‘opportunity for free political discussion to the end that government may be responsive to the will of the people.’”  The majority’s opinion runs directly contrary to those values.  

Once again, the Roberts Court displayed an incomprehensible hostility to campaign finance laws without good reason, denigrating efforts to root out public corruption.  Today’s opinion also runs contrary to the  longstanding precedent of Buckley v. Valeo that public financing of elections facilitates and enlarges public discussion in support of First Amendment values.  Contrary to the majority’s assertion, Arizona’s matching funds provision imposes no ceiling on speech and prevents no one from speaking; to the contrary, it subsidizes and enhances speech.  Just as important, the law deters quid pro quo corruption and the appearance of corruption by providing candidates with the option to campaign without depending on outside contributions, thus justifying the matching funds provision.    

In light of today’s disastrously misguided decision, a number of similar state and local public financing will need revision.  But those public financing systems without “trigger” mechanisms – which exist in some form in nearly one-third of the states – remain constitutionally viable as a means to combat corruption.  The march toward clean elections and greater integrity in government continues, with yet another obstacle in its course. 

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