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Supreme Court rules part of Az’s Clean Elections unconstitutional


A divided U.S. Supreme Court Monday invalidated the matching-funds provision of Arizona's Clean Elections Act, saying it violates the free-speech rights of those not participating in the fund.

Chief Justice John Roberts, writing for the five-member majority, said the provision "imposes a substantial burden on the speech of privately financed candidates and independent expenditure groups." The state's interest in reducing political corruption was not strong enough to allow that First Amendment infringement, he wrote.

But Justice Elena Kagan, in her dissent, wrote that the Arizona law actually "… furthered First Amendment values" rather than limiting them. Monday's ruling, she wrote, deprives Arizonans of "the chance to reform their electoral system" to combat corrupt politics.

The ruling further clouds the future of public financing of elections in the state, with the legislature this year approving a ballot measure to do away with such funding. That proposed constitutional amendment, the "No Taxpayer Subsidies for Political Campaigns Act," is set to go before voters in November 2012.

For now, said Citizens Clean Elections Commission Executive Director Todd Lang, the ruling "really isn't going to change a whole lot."

The ruling did not invalidate the overall public financing law, and no matching funds have been disbursed in the state since 2008, pending court challenges.

Candidates who accept public funding under the law agree not to take special-interest money for their campaigns.

Under the matching-funds provision, the base amount of public funding can be increased to publicly funded candidates if their privately funded opponents spend or receive any amount above that base level. The provision also kicks in if an independent campaign committee spends money in support of the traditionally funded candidate that puts his campaign above the base level.

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In that case, the law says publicly funded candidates can receive up to three times the base amount, on a dollar-for-dollar basis with their opponents, to help them stay competitive.

The state argued to the Supreme Court that the law was needed to keep special interests from buying elections. But opponents said that was disproven in the last election, when current-Gov. Jan Brewer was denied matching funds because of the court challenges and still won over traditionally funded candidates.

"One of the biggest arguments for systems like this is that money buys elections," said Paul Avelar, staff attorney with the Arizona chapter of the Institute for Justice, which opposes the matching-fund provision. "Whether or not voters agree with you is beyond purchase."

But critics attacked the ruling.

Rep. Raul M. Grijalva, D-Tucson, said in a prepared statement that the decision is "a sign that wealth now decides how much free speech you get."

Grijalva said that without the matching-funds provision, the number of qualified people running for office will decline because political hopefuls will not have the means to respond to attack ads.

The commission says on its website that the percentage of candidates who agreed to public funding for their campaigns grew from 26 percent in 2000 to 65 percent by 2008. Of those 2008 candidates, most received the base amount and only 15 percent got any kind of matching funds, said Louis Hoffman, a commission member.

"I'm certainly disappointed in the narrow ruling by the Supreme Court," said Hoffman, one of the authors of the original Clean Elections Act.

Lang said the matching provision could be tweaked to comply with the Supreme Court's ruling, if the commission decides to do so. Hoffman said he is confident a clean-elections system will remain in place and allow Arizonans who want to run for office do so, "even if not so robustly."

Avelar is not so sure. While there is a state court challenge to the proposed 2012 referendum on public elections financing, he is confident the measure will go before voters next year. And he hopes they reject public financing.

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"I don't see anything clean about a program that discourages political speech," Avelar said.

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How Clean Elections matching funds work

  • State candidates who ask for public campaign finances agree not to accept money from businesses, labor unions, political action committees or political parties;
  • If a privately financed candidate spends more than a set amount in the primary, or collects more than a set amount in the general election, his publicly financed opponent gets more money from the state;
  • If an independent campaign committee's spending to support a privately financed candidate that puts that candidate's spending over a set amount, the publicly financed opponent gets more money from the state;
  • For each dollar the traditional candidate spends or receives above the set amount, the publicly funded candidates get 94 cents from the state — $1 minus a 6 percent fundraising fee;
  • Publicly funded candidates continue to get additional funding up to three times the base amount;
  • If there is more than one publicly funded candidate in a race, each of them will receive additional funds to match the funding of the privately funded candidate, up to the three-times-base level.

Base general election funding levels for public campaigns in 2012

  • Governor: $1,063,874
  • Secretary of State: $275,667
  • Attorney General: $275,667
  • Treasurer: $137,811
  • Superintendent of Public Instruction: $137,811
  • Corporation Commissioner: $137,811
  • Mine Inspector: $68,928
  • Legislator: $21,533