Arizona Citizens Clean Elections under attack again

Posted by AzBlueMeanie:

The Arizona Capitol Times (subscription required) reports that Arizona Citizens Clean Elections Commission is under attack again:

On June 15, the Senate Judiciary Committee is scheduled to hear testimony and vote on whether to further SCR1025 for a full Senate consideration. The referendum would allow Arizona voters to amend the state's Constitution to ban publicly funded campaigns.

The measure would effectively nullify a 1998-approved voter initiative that established the Citizens Clean Elections Commission and the state's use of publicly funded campaigns for legislative and statewide offices.

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[F]oes of Arizona's campaign scenario claim the system's regulatory operations chill the unfettered free-speech rights of candidates who raise their own money, and they credit the availability of public money for the election of ineffective, fringe candidates.

"Clean Elections gives you a lesser quality of people, and I think people should have to raise their own money," said Sen. Steve Pierce, a Prescott rancher who funded his 2008 campaign for office. "If I want to pay my own way or raise money somebody else gets to get the money from the state. It's not fair."

Pierce is one of five senators to co-sign the referendum, which has been introduced by Tucson Sen. Jonathan Paton, a Republican who also serves as chairman of the Senate Judiciary Committee.

Attorneys for the Citizens Clean Elections Commission and a host of private organizations are expected to file legal briefs in federal court on June 12 to address a lawsuit that could determine the state's use of so-called matching funds.

Last year, attorneys from the Goldwater Institute filed a lawsuit challenging the constitutionality of matching funds on behalf of several privately funded Republican candidates who claimed the available matching money coerces candidates into campaigning with public money and creates a chilling effect on political speech.

The lawsuit was filed during the 2008 campaign, but U.S. District Court Judge Roslyn Silver refused to stop the commission from distributing the funds during the remainder of the election season.

But, in the same stroke, Silver agreed with the plaintiffs, who were joined by the Institute for Justice, that the matching funds system was unconstitutional under the 2008 U.S. Supreme Court decision in Davis v. F.E.C.

That decision nullified the federal so-called "Millionaire's Amendment," which allowed federal candidates to exceed established contribution limits if they face a self-funded opponent who campaigned with large amounts of their own money.

The court's opinion noted that government entities have been authorized to place limits on campaign financing to minimize corruption, or at least the appearance of corruption.

The intent of the Millionaire's Amendment, the court noted, was to create a "level playing field" among candidates. The designation is not an established compelling government interest to regulate the financing of political campaigns.

Silver, in an explanation released in October, said the matching-funds provision differed from the Millionaire's Amendment but still had the same effect of burdening the free-speech rights of candidates.

"Ultimately, the Arizona Act's mechanism for funding differs, it enforces substantially the same coercive choice on traditional candidates – to abide by a limit on personal expenditures or else endure a burden on that right," Silver wrote. "…The Arizona Act imposes a substantial burden on the First Amendment right to use personal funds for campaign speech."

Judge Silver is expected to make a final determination on whether to ban matching funds by the end of this year.

I predict that Judge Silver will follow the decisions of a conservative U.S. Supreme Court and essentially find that "money is speech" and those candidates who have more money are entitled to "more speech" in banning matching funds from the Citizens Clean Elections Commission.

This will also leave candidates vulnerable to attack from well-funded independent expenditure committees that are front groups for special interests who indirectly support their opponent with so-called "issue advertising." These tend to be negative attack ads that distort the facts and the truth (think Swift Boat Liars for Truth). By striking down the matching funds provision, Judge Silver may leave a candidate financially unable to respond to such a vicious smear campaign of lies.

Arizona's Citizens Clean Elections will have been eviscerated and rendered ineffective.