Clean Elections has cloudy future but clearly shows disconnect

A dizzying number of contradicting court rulings has been issued on Clean Elections as litigation worked all the way up to the U.S. Supreme Court, which on June 8 blocked matching funds for Arizona candidates. This has clouded the future for the state's publicly financed campaign system. In other words, Arizona again is on cusp of a fundamental change in how elections are funded, but exactly how that will play out is anything but clear.

Clean Elections is a prime example of unintended consequences for ballot-box legislation prompted by Arizonans' disconnect with elected leaders.

The initiative

Clean Elections – Arizona's publicly financed campaign system – was created by voter initiative in 1998. The law allows potential candidates for state offices to collect a specified number of individual $5 contributions and then qualify for public funding. Clean Elections has never been without controversy, but the most hotly debated element is the matching-funds provision. This allows publicly funded candidates to receive matching funds if a privately funded opponent spends above and beyond the initial distribution (which qualifying candidates will receive this election). Passed by voters by a slim margin of 51%, not surprisingly Clean Elections has always had nearly as many detractors as supporters.

A lesson in unintended outcomes

Supporters of Clean Elections touted the measure to voters in 1998 as "diminishing the influence of special interest money" and stressed the measure would "encourage citizen participation in the political process" and "promote freedom of speech under the U.S. and Arizona Constitutions."

Before the matching funds provision was halted by the U.S. Supreme Court, the 9th Circuit Court of Appeals agreed, noting in a unanimous ruling that the matching funds provision of the Act imposes only a minimal burden on First Amendment rights. "It survives intermediate scrutiny because it bears a substantial relation to the State's important interest in reducing quid pro quo political corruption."

Yet, as litigation has worked through the court system, the primary argument against Clean Elections is that it actually limits free speech. Those questioning the appropriateness of matching funds argue that by awarding additional funding to publically funded candidates based on the spending of privately funded opponents, those who have actually raised the funds are negatively impacted. The spoils of reaching out to more individuals and raising additional support are mitigated when the publicly funded candidate is awarded the same amount without doing the legwork with constituents. Thus, the argument goes, free speech is negatively impacted.

Clean Elections was sold and established as an agent of free speech. It is quite possible the U.S. Supreme Court may find it actually served the contrary purpose. Additionally, since Clean Elections was created through initiative and not through legislative action, it is now a voter-protected program. As a result, it is a system that in reality can only be changed by litigation – costly, long-term litigation.

Voter disconnect

Clean Elections was established by voters, bypassing elected policymakers viewed as ineffective, in order to create a mechanism to elect more effective policymakers.

Confusing? Absolutely, but also a concrete example of how voters react when there is a genuine feeling of disconnect between what they expect from elected leaders and what they believe those elected leaders are actually accomplishing.

When Arizona voters passed Clean Elections, we were only the second state in the nation to create this kind of publicly funded system, modeling it after Maine. Currently, about one third of states have some kind of publicly financed system for elections. Arizona, Connecticut and Maine are unique in that our systems require candidates to rely almost exclusively on public dollars to run.

Maine's matching funds provision, which has maximum limits set, was upheld in 20005, but could potentially be impacted by the U.S. Supreme Court's action on the Arizona case. Arizona's progressive history has made us a trailblazer when it comes to the use of citizen initiative, with our frequency of use putting us in the top five states in the nation. Long-time Arizonans may be surprised to learn that voters in other states do not frequently face five or 10 ballot issues each election cycle.

When something so fundamental to governance as election funding is radically changed, with little to no national guidance, the question becomes, is voter initiative without thoughtful and meaningful debate truly the best and most effective route?

While many point to the citizens' initiative as the purest form of democracy, there also is an argument that it is merely a tool of the disconnected citizen.

Founding Father James Madison noted of representative democracy: "The effect of [a representative democracy is] to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of the nation."

Ideally, a representative democracy creates the framework necessary for more thoughtful and deliberative legislation. It also creates an outcome that is actually more responsive to the ebbs and flows of a state's needs and the wants of a citizenry, as it is not locked in as Arizona's voter-protected initiatives are. Clean Elections is the kind of new idea – the kind of radical change – that is best extensively researched, vetted and debated in a legislative body. However, when citizens do not trust those elected to make the best choices and represent their needs, they bypass the legislative body and take legislating and budgeting into their individual hands.

This was not a new phenomenon in 1998, and is even starker today. Arizonans express a deep suspicion that their legislative leaders are not representing their best interests. A number of polls in the last 12 months demonstrate voters' frustration with elected leadership:

• A July 2009 Arizona Indicators poll found that only 3% of respondents trusted local officials "a great deal" and 66% expressed disapproval of how legislators were handling the recent state budget crisis.7
• A 2009 statewide survey found that only 10% of respondents believe that their elected officials represent their interests.
• A poll conducted in January found "negative regard for the Legislature is literally three times what it was in 2006 and 2007 and favorable ratings have dropped from 30 to 15%."

Does this dissatisfaction coupled with extensive use of initiatives lead to increased voter participation?

In Arizona, it's been quite the opposite. Arizonans' participation in statewide elections continues to be among the lowest in the nation, with turnout in the primaries, where often the winner is the winner in the general, is even more abysmal – 23% in 2008. Voters are expressing their disaffection by simply not showing up at the polls.

It seems forgoing legislative debate and action is not only a tool of voters, but of legislators as well. Of this year's 10 ballot initiatives, nine are legislative referrals. This abdication of the Legislature's most basic responsibility – crafting public policy – only further distances Arizonans from the leaders running the state. It appears the disconnect can be felt from both sides.