Posted by AzBlueMeanue:

U.S. District Court Judge Roslyn Silver will hold a hearing today on Arizona Clean Elections matching funds, but she previously entered a preliminary order last August holding matching funds are unconstitutional, and the Judge has posted an 18 page proposed order prior to today's hearing to the court's web site, again holding that matching funds are unconstitutional.

Here is today's reporting in The Arizona Republic Judge likely to toss Clean Elections law, the Arizona Guardian Federal judge set to toss state match for clean elections (subscription required), and the Arizona Daily Star Clean Elections matching funds appear to be dead. What is surprisingly missing from the reporting this morning is any discussion of Judge Silver's proposed order and her factual findings and legal reasoning.

I have read the proposed order, and it is unsettling. Judge Silver finds the claim of harm by the plaintiffs to be dubious at best. The Judge is critical of the U.S. Supreme Court precedent of Davis v. FEC(2008), but concedes that she is bound to follow precedent in holding matching funds unconstitutional.

In other words, "my hands are tied." The Judge is incredulous of the plaintiff's claims, but she is reluctantly bound to follow Supreme Court precedent. The real problem here is the Roberts' Supreme Court that engaged in conservative judicial activism to contrive a decision that benefited monied interests in Davis v. FEC. (An issue we will revisit when the Court issues its decision in Citizens United v. FEC).

Let's take a look at what Judge Silver actually says. Her factual findings as to all of the plaintiffs are representative of her factual findings with respect to John McComish:

"Mr. McComish claims the Act requires him to take steps to minimize the impact of matching funds. Mr. McComish does this “by refraining from making campaign expenditures that [he] would otherwise make . . . or by adopting a tactic of delaying [his] expenditures in such a manner as to minimize the benefit any participating candidate may receive from matching funds.” This, according to Mr. McComish, “amounts to self-censorship because [he] will refrain from engaging in communication at times and in manners that [he] would otherwise choose in order to avoid disseminating viewpoints that are hostile to [his] candidacy.” (Id. at 5).

Mr. McComish also believes matching funds “discriminate against traditional candidates.” (Doc. 316 at 5). This “discrimination” allegedly occurs when a nonparticipating candidate triggers matching funds to his opponents. The Court is unable to conceive of how an award of matching funds “discriminates” against McComish.

Discrimination in a general sense requires that two individuals or groups be treated differently by the government. Mr. McComish and the other Plaintiffs mentioned below have not explained how they have been legally disfavored by the government in comparison to participating candidates."

Judge Silver is equally dubious of the claims of Dean Martin who, despite being a plaintiff to this case, recently announced he is running for Governor as a Clean Elections participating candidate (what a piece of work).

"Despite Mr. Martin’s statement that matching funds forced him to limit his speech, and the fact that Mr. Martin triggered matching funds in 2006, Mr. Martin was unable during his deposition to recall whether he had ever triggered matching funds. (Doc. 309-8 at 3). It follows that if matching funds were a serious concern, Mr. Martin would know whether he had triggered such funds. Mr. Martin also testified he has supported legislation to repeal the Act, and his opposition to matching funds is based, at least in part, on the provision that if you accept government funding “you’re not allowed . . . to support your own campaign over a certain amount.” (Id. at 9). Thus, it appears that Mr. Martin’s real focus has been on public funding of elections in general, and not matching funds in particular."

Now let's go to the heart of Judge Silver's legal reasoning for her opinion and order.

According to Plaintiffs, matching funds place a “drag on campaign speech.” (Doc.297 at 15). That drag is present because “Matching Funds cause the vigorous exercise of First Amendment rights by Plaintiffs, political action committees and their supporters to produce fundraising advantages for their opposing government-subsidized candidates.” (Id.)

In other words, Plaintiffs allege they will refrain from raising funds or spending their personal monies to prevent participating candidates from receiving matching funds. This, according to Plaintiffs, is a severe burden on their free speech rights. Plaintiffs’ argument relies in large part on the Supreme Court’s recent decision in Davis v. Federal Election Commission, 128 S. Ct. 2759 (2008). While Davis is instructive, it does not answer the precise question now before the Court.

* * *

In some respects the burden Plaintiffs allegedly suffer in this case is analogous to the burden in Davis. Plaintiffs submit evidence that they have felt “chilled” and that but for the matching provisions they would have spent or will spend more money on campaigns. Thus, it appears that in Plaintiffs’ view, the “burden” is that an exercise of their First Amendment right to spend as much as they wish will result in Arizona conferring an additional benefit on publicly-financed candidates. Those candidates presumably will spend the matching funds, i.e. generate more speech.

In other words, the “burden” created by the Act is that Plaintiffs’ speech will lead directly to more speech. Given that the purpose of the First Amendment is to “secure the widest possible dissemination of information from diverse and antagonistic sources,” it seems illogical to conclude that the Act creating more speech is a constitutionally prohibited “burden” on Plaintiffs. Buckley v. Valeo, 424 U.S. 1, 49.

Another strange aspect of the alleged burden is that public financing of elections is permitted by the Constitution. If the Act provided for a single lump sum award, instead of incremental awards, the law would fall squarely within the regime blessed in Buckley and reaffirmed in Davis. Presumably the Act would also be permissible if the incremental awards were linked to some occurrence other than a non-publicly financed candidate’s speech. Thus, Plaintiffs are left to argue their First Amendment rights are violated not by the fact of public financing, or the level of that financing, but by the fact that Arizona provides incremental grants linked to their activities. If a single lump sum award12 would not burden Plaintiffs’ free speech rights in any cognizable way, finding a burden solely because of the incremental nature of the awards seems difficult to establish.13

[Footnote 13. Using the amounts available for a general election for a legislative candidate as an example, the spending limit is $19,382. Once a non-participating candidate spends more than that amount, the participating opponent receives dollar-for-dollar matching funds, up to a maximum of approximately $54,000. Arizona could award an initial grant of $54,000 to each legislative candidate who opted for public financing, and this award would constitute no constitutionally prohibited “burden” on Plaintiffs’ rights. Thus, Plaintiffs’ argument is that an award under the current regime of $25,000 (the initial grant plus some matching funds) violates their rights, but an award of twice that amount (not based on matching funds) would not.]

Despite the unsettling nature of Plaintiffs’ claims, Davis requires this Court find Plaintiffs have established a cognizable burden. Plaintiffs face a choice very similar to that faced in Davis: either “abide by a limit on personal expenditures” or face potentially serious negative consequences. In Davis, the negative consequence was having one’s opponent subject to higher contribution limits. Here, the negative consequence is having one’s opponent receive additional funds. “Arguably the benefit conferred by [matching funds] is more constitutionally objectionable than increasing an opponent’s individual contribution limits. In the latter scenario, the opponent must still go out and raise the additional contributions . . . [Matching funds], by contrast, ensure[] that there will be additional money to counteract the excess expenditures by the non-participating candidate . . . .” Green Party of Connecticut v. Garfield, 2009 WL 2730525, at *67 (D. Conn. 2009). Accordingly, if the statute in Davis constituted a burden, matching funds must also constitute a burden.14

by David Safier In a press release sent to BfA and other media outlets by Cheryl Cage, who is running for the LD-26 Senate seat, she let opponent Al Melvin and others know she's serious. Cage has decided to run traditional. Cage raised $32,000 in the year preceding the legislative election, with most donations being … Read more

Posted by AzBlueMeanie: Rep. John Shadegg is retiring from Congress to take his ventriloquist act on the comedy club tour. That baby Maddie is amazing. As often as I have seen this video, I have yet to see Maddie's lips moving when the dummy is speaking. How does she do it? Easy work for Shadegg.

Posted by AzBlueMeanie:

I'll believe it when I see it. We have been down this road before in 2008. We won't get fooled again.

The Rothenberg Political Report cryptically reports that AZ 3: Shadegg (R) to Retire:

Republican Cong. John Shadegg (R) is retiring. First elected in 1994, he represents Arizona's 3rd District. John McCain carried the district with 56% in 2008.

This has yet to be confirmed by Rep. Shadegg. He could always change his mind – again.

UPDATE: MSNBC's First Read has a statement from Rep. John Shadegg confirming the report. Shadegg retires, and it's for real this time – First Read:

From NBC's Domenico Montanaro
The 14th House Republican this cycle is not running for reelection — Rep. John Shadegg (AZ).

"While it would be difficult to leave this position at any time," Shadegg said in a statement, "it is particularly hard to do so now with the challenges we face as a nation, but it is necessary for me to do so." And this: “While the rules of the House do not allow me to pursue future employment while I am still in office, rest assured, I will continue to remain in the fight for freedom and defend American exceptionalism.”

Shadegg was part of the 1994 wave of Republicans that were swept into Congress. In 2008, Shadegg won with 54% of the vote; Presidential candidate John McCain, an Arizonan, won with 56%. Last year was Shadegg's closest race since being elected.

Republican operatives say the seat is "safe," though it wasn't immediately clear who the GOP (or Democratic) candidate would be. According to the Cook Political Report, The district has a +9 Republican leaning.

Shadegg had said in February of 2008 that he would retire, but then changed his mind.

“Two years ago I considered retiring and briefly announced my intention to do so," Shadegg said in a statment, adding, "This time, however, my decision is irreversible."

Here's Shadegg's full statement from his office after the jump:

Posted by AzBlueMeanie: In the least suspenseful announcement of the year, House Minority Leader David Lujan finally made it official and annouced today that he is running for Attorney General. From the Arizona Guardian Lujan's in AG's race: House minority leader makes it official (subscription required): Scrap the exploratory tag. House Minority Leader David Lujan … Read more