Goldwater Institute asks the Supremes to intervene in Citizens Clean Elections

Posted by AzBlueMeanie:

The ruling of U.S. District Court Judge Roslyn Silver holding that the matching funds provision of Citizens Clean Elections is unconstitutional, based upon U.S. Supreme Court precedents, was appealed to the Ninth Circuit Court of Appeals. Judge Silver granted an order of stay of her opinion and order pending the appeal.

The Goldwater Institute, representing the corporatists who want to do away with Citizens Clean Elections on the specious argument that it is "public welfare for politicians" (as opposed to corporate bailouts and the corporate welfare companies routinely receive from the very same politicians who are challenging Citizens Clean Elections), has filed a petition from the order of stay with the U.S. Supreme Court. Block Clean Elections, US justices are urged:

In pleadings Thursday before the U.S. Supreme Court, attorney Nick Dranias of the Goldwater Institute noted that U.S. District Judge Roslyn Silver has already concluded a provision giving extra money to publicly financed candidates to match spending by privately funded foes is unconstitutional. But the 9th U.S. Circuit Court of Appeals agreed earlier this week to stay her decision while the state appeals, effectively leaving the matching funds in place.

Dranias argued that every day Silver's ruling is prevented from taking effect "punishes, deters and chills the exercise of First Amendment rights" by those who want to use their own money, or that of donors, to run for office.

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"If anything, it is far more likely the Court of Appeals' appellate stay is disrupting, and would disrupt the legitimacy of the 2010 election cycle by stifling core political speech," [Dranias] told the justices. "Additionally, no case has ever held that the public interest requires courts to refrain from vindicating the First Amendment in order to ensure government campaign subsidies are distributed to particular candidates."

Dranias' "chilling political speech" argument is specious. No one is denying his clients' political speech. This is not about speech at all, it is about maintaining his clients' financial advantage over their political opponents, something never contemplated by the Founding Fathers nor protected by the U.S. Constitution. Judge Silver destroyed Dranias' specious argument in her opinion:

In some respects the burden Plaintiffs allegedly suffer in this case is analogous to the burden in [Davis v. FEC]. 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 award 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.

Unfortunately, the petition filed by the Goldwater Institute will be heard by the conservative activist Supreme Court that radically departed from long-standing federal law and judicial precedents in Citizens United v. FEC to give birth to a new corporatocracy. There are probably the votes on the Supreme Court to consider this petition rather than deny it.

Should the Supreme Court agree to consider this petition it should be taken as a sign that the court intends to lift the stay order pending the outcome of this appeal (which will eventually find its way to the U.S. Supreme Court). Stay tuned.