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.
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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
Judge Silver next is critical of Davis v. FEC, suggesting her disagreement with the Supreme Court, but conceding she is bound by precedent.
Determining that matching funds constitute a cognizable burden does not end the inquiry. The weight of that burden must also be assessed. Unfortunately, Davis provided no guidance on how the statute at issue constituted a “substantial burden” on the plaintiffs’ rights. After explaining its holding that discriminatory fundraising limitations constituted a burden, the Davis court jumped to the conclusion that the burden was “substantial.”15 This ipse dixit was announced “without the slightest veneer of reasoning to shield the obvious fiat by which it [is] reached.” Francis v. Henderson, 425 U.S. 536, 552 (1976) (Brennan, J. dissenting). But the lack of reasoning does not free this Court to ignore the conclusion. If lifting a candidate’s opponent’s fundraising limitations constitutes a “substantial burden,” awarding funds to a candidate’s opponent must constitute a “substantial burden” as well. Accordingly, Arizona’s matching funds constitute a substantial burden and are permissible only if they are supported by a compelling government interest and are narrowly tailored to achieve that interest.
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Davis states the only legitimate and compelling interest is the elimination of corruption or the perception of corruption. Based on earlier cases, the contours of this anti-corruption concern are far from clear.16
[Footnote 16. The Supreme Court has repeatedly upheld statutes “designed to protect against the undue influence of aggregations of wealth on the political process.” 128 S. Ct. at 2781 (J. Stevens dissent). There is at least an open question whether a state’s anticorruption interest includes countering “the corrosive and distorting effects of immense aggregations of wealth” on the political process. Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 660 (1990).]
But the most recent Supreme Court cases seem to recognize corruption only in the sense of “politicians [being] too compliant with the wishes of large contributors.” Nixon, 528 U.S. at 389, 390. In other words, the only legitimate anti-corruption interest is in preventing the reality or appearance of quid pro quo arrangements between politicians and contributors. This type of anti-corruption interest supports some aspects of the Act, but it does not support the Act’s application to self-financed candidates.
Under the Act, if a candidate wishes to expend his or her own money, that expenditure will trigger the “burden” of matching funds. Defendants have not identified any anti-corruption interest served by burdening self-financed candidates’ speech in this manner.
In fact, the Supreme Court has recognized that “reliance on personal funds reduces the threat of corruption” and “discouraging use of personal funds disserves the anti-corruption interest.” Davis, 128 S. Ct. at 2773. Thus, there is no compelling interest served by the Act.
The Act allegedly seeks to target and eliminate the “evil” of the appearance or reality of corruption. But the Act places a burden on a candidate’s expenditure of personal funds even though there is no apparent and constitutionally recognized anti-corruption interest served by such a restriction. Thus, the Act is restricting speech that has nothing to do with the allegedly compelling interest. The Act is not narrowly tailored.
* * *
Finally, the Act is not the least restrictive alternative. At the very least, the Act could have been structured such that it does not place a burden on a candidate’s expenditure of personal funds. For example, the Act could tie matching funds solely to contributions made by third parties to a candidate. Such a structure would achieve the anti-corruption goal recognized by the Supreme Court without burdening a candidate’s decision to expend personal funds.
This is Judge Silver's recommendation to the Legislature how to remedy the matching funds provision. But our Arizona Legislature is not interested in fixing Clean Elections, Republicans are intent on killing it.
Finally, Judge Silver declined to address the equal protection claim because the case is decided on other grounds.
Plaintiffs claim the Act violates their right to equal protection based on participating and non-participating candidates being treated “differently with respect to direct expenditures, independent expenditures or contributions made on their behalf.” (Doc. 1 at 18). Because the Act violates the First Amendment, the Court need not resolve this issue.
The Roberts' Supreme Court is hostile to campaign finance reforms that would limit the ability of monied interests like wealthy candidates and corporations from spending to their heart's content in an election on the flawed theory that money equals speech. The only sure way to combat this flawed theory is a constitutional amendment providing for publicly financed elections. Then the courts will be bound by the Constitution. Good luck getting an amendment out of Congress and approved by 38 states.
UPDATE: Michael Bryan has posted the proposed order (pdf) at Mike's Delicious Links in the right hand column of the blog.
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