Supreme Court Revisits Campaign Finance

March 28, 2011 -- The Supreme Court returned to the controversial issue of campaign finance today, hearing a constitutional challenge to Arizona's public financing system for political campaigns.

Several of the conservative justices on the bench seemed skeptical of the constitutionality of the Arizona Citizen's Clean Elections Act.

The law allows a candidate who qualifies for public financing to receive a lump-sum grant from the government if he or she refuses to accept private contributions.

But the law goes a step further then other public financing laws. It also says that participating candidates can qualify for additional matching funds from the government if their opponents who have chosen not to participate in public funding spend more than the initial grant.

The matching funds provided by the government are capped at three times the initial grant.

Arizona voters passed the law in 1998 in the wake of political scandals in order to restore the public faith and diminish the influence of special interest money in campaign races.

Supporters of the law say it encourages candidates to take public financing, promotes competition in races and also prevents corruption.

But opponents of the law say that it forces non-participating candidates to limit their spending so they won't trigger the matching-fund provision.

Those opposed to the law say that by limiting spending, the law suppresses the free speech rights of the non-participating candidates.

In court today, William R. Maurer, representing Arizona Free Enterprise Club, a political action committee that opposes the law, said that in an attempt to "level the playing field," the law actually worked as a disincentive for candidates to exercise their First Amendment rights.

"What this case is about is whether the government can turn my act of speaking into the vehicle by which my political opponents benefit with direct government subsidies," Maurer said.

Maurer has no objection to the public financing aspect of the law but rather to the government's giving additional funds to publicly financed candidates as a direct result of a privately financed candidate exceeding a spending limit.

Public Financing Appears Safe

The conservative justices on the bench were sympathetic to Maurer's argument.

"Just as a common-sense matter," Justice Anthony Kennedy asked, "if I'm someone with the capacity and the will to make an independent expenditure, why don't I think twice if this is going to generate an equal amount on the other side which might be better spent?"

Nick Dranias of the Goldwater Institute, who represents three state legislative candidates challenging the law, said Kennedy's comments went to the heart of the case. "Kennedy's inquiry highlights the fundamental way that Arizona's system chills free speech," he said.

But Bradley S. Phillips, who defended the law in court, said the matching funds system actually promotes speech by encouraging candidates to run.

"Public funding of elections results in more speech and more electoral competition," Phillips said, "and directly furthers the government's compelling interest in combating real and apparent corruption in politics."

Justice Elena Kagan was the most vocal supporter of the law. "It's more speech all the way around," she said.

Today's hearing comes nearly a year after the court released the controversial and closely divided Citizen's United case that struck down laws banning corporate and union expenditures in federal campaigns.

While proponents of campaign finance reform are fearful that justices are chipping away at campaign finance regulations, they say that even if the justices strike down the Arizona law, they do not appear poised to strike down the constitutionality of public financing.

"It is important to recognize here," Fred Wertheimer, a long-time proponent of campaign finance reform, "that regardless of what happens in this case, the court did not appear to be challenging the idea of public financing of elections and there are many systems and proposed reforms that do not include the Arizona matching trigger funds provision."

The court is likely to rule on the issue by early summer.