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SEIU, Obama Administration, Public Citizen, former Rep. Alan Grayson and Sierra Club ask Supreme Court to restrict free speech in Arizona case

By Steve Voeller and Michael Paranzino

The U.S. Supreme Court on Monday, March 28, 2011 will hold oral arguments in an important first amendment case that implicates public campaign financing schemes in jurisdictions across the country. So it should come as no surprise that outside groups asking the Court to rule against the first amendment interests in the case comprise a virtual Who’s Who of liberal activists.

The SEIU (the nation’s second largest union representing government workers), Ralph Nader-founded Public Citizen, former Rep. Alan Grayson (D-FL), the Sierra Club and the Obama Administration have all weighed in with amicus briefs urging the Court to reject our position that the “matching funds” provision in Arizona’s “Clean Elections” law burdens the exercise of political speech that is at the core of what the first amendment to the Constitution protects.

[The case is Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett. Co-author Steve Voeller is President of the Arizona Free Enterprise Club (AZFEC).]

The “Matching Funds” Provision

Arizona’s “Clean Elections” law permits government financing of political campaigns. Candidates are permitted to decline the public financing and raise money from willing donors and spend their own money on their campaigns. The law includes a “matching funds” provision that provides additional government funds to all publicly-funded opponents of a privately-funded candidate, when that candidate, or independent groups supporting that candidate, spend more than a government-set threshold.

This punishes candidates and groups for robustly expressing their views because it provides government handouts to these speakers’ political opponents specifically in response to their amount of political speech. Thus it tries to do indirectly what it obviously could not do directly: punish speakers who speak in amounts or at times the government disapproves of.

The law also institutionalizes a pro-big government bias into election campaigns. Through its unfair regime that disfavors privately-financed candidates, the law uses state power to pressure proponents of free markets and small government into either compromising their beliefs on the one hand (accepting the government money to be competitive), or being punished if they refuse to play along and refuse the government funding. Perhaps that explains part of the enthusiasm of liberal amici in support of Arizona’s law.

Where the case stands

The Circuit Courts of Appeals are split on whether the first amendment prohibits these “matching funds” provisions. Several Circuits, as well as many commentators, believed that the U.S. Supreme Court effectively banned such provisions in its Davis and Citizens United decisions. But the 9th Circuit ruled otherwise, overturning the Federal District Court in Arizona that had ruled the matching funds provision unconstitutional.

AZFEC et al. appealed to the Supreme Court, with oral arguments in the case to occur Monday. (The Institute for Justice and the Goldwater Institute are representing AZFEC and the other petitioners in the case.)

The Supreme Court, in Davis v. Federal Election Commission (2008), struck down part of the McCain-Feingold federal campaign finance law known as the “Millionaire’s Amendment.” Federal campaign finance law limits how much individuals can contribute to candidates, but the Millionaire’s Amendment tripled these limits when a candidate’s opponent spent more than $350,000 of their own money on their campaign. In striking down the provision, the Court noted that “it imposes an unprecedented penalty on any candidate who robustly exercises that First Amendment right.” The Court also strongly rejected the government’s argument that the restrictions on speech were justified by a compelling state interest: “The argument that a candidate’s speech may be restricted in order to ‘level electoral opportunities’ has ominous implications because it would permit Congress to arrogate the voters’ authority to evaluate the strengths of candidates competing for office.”

Then, in last year’s Citizens United v. Federal Election Commission (2010), the Court ruled that government may not infringe on corporate speech in the form of independent campaign expenditures.

Davis and Citizens United, then, obliterate Arizona’s effort to punish the speech of candidates and independent groups by funding these speakers’ opponents if the government decides the amount of speech has been excessive. Arizona’s “matching funds” provision violates the first amendment and must be struck down.

Under current law, AZFEC’s political speech is burdened because speaking in certain ways or amounts means the government will step in and further directly fund its opponents. (Note that in Davis, the law found unconstitutional merely permitted additional fundraising; in Arizona, the government actually hands preferred candidates additional funds.) The government cannot permissibly punish AZFEC for robustly exercising its free speech rights.

The amicus briefs of the law’s supporters are telling. One, by liberal law professors, cites more than 20 cases, but curiously ignores the Davis case that closely resembles this one.

Then there is the rich irony of the Obama Administration’s amicus brief defending a public financing scheme after the President single-handedly gutted the presidential public financing system by violating his pledge to abide by it in 2008.

SEIU’s brief, meanwhile, notes (at p. 13) “the State’s interest in reigning in campaign fundraising” and suggests the state may take steps to make public financing attractive when campaigns “generate a more-than-normal amount of political spending.” Could it possibly be consistent with the Constitution for the government to be “reigning in” core political speech at the heart of the first amendment, or deciding when the amount of political speech is “more-than-normal”?

The brief of Public Citizen, the Sierra Club, and the League of Women Voters (among other liberal groups) is also instructive, because the groups spend several pages (pp. 3-7) delicately urging the Court not to use this case to take a fresh look at the constitutionality of the entire public financing concept used by the federal presidential system and by many state and local governments nationwide. These regimes, upheld in Buckley v. Valeo in 1976 but increasingly at odds with our understanding of the first amendment and notions of equal protection, could come crashing down if the Court were to confront head-on the constitutional infirmities of government-funded core political campaign speech. Their brief also takes pains to distinguish “trigger provisions” like Arizona’s “matching funds” provision, with what the groups consider the much more benign public financing upheld in Buckley, a not-too-subtle sign that they might be throwing Arizona’s law under the bus to try to salvage other public financing regimes.

But while these liberal groups are certainly correct that Arizona’s “matching funds” law can be struck down without overturning Buckley, the fact remains Buckley is under fire for some good reasons. To cite just one of the decision’s rationales that has not stood up well to the test of time, consider this holding from that case: governments may burden core political speech without violating the Constitution to, among other things, “free candidates from the rigors of fundraising.”

On Monday, none of that need be reached to find that the Arizona “matching funds” provision violates the first amendment to the Constitution. The state of Arizona may not punish candidates and groups for robustly expressing their views. Such core political speech is at the heart of the first amendment. We look forward to Monday’s oral argument at the U.S. Supreme Court.

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Steve Voeller is President of the Arizona Free Enterprise Club, a 501(c)(4) advocacy group not affiliated with any other organization. Michael Paranzino is an occasional consultant to AZFEC.

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