Republicans Attack Clean Elections from a New Angle

The "Goldwater" Institute is leading yet another futile crusade against Arizona’s popular and successful Clean Elections public finance system. This time several "traditionally" funded candidates are pewling about their civil rights being infringed upon by other candidates (their opponents) getting public funds. The "Goldwater" Institute saw the recent Supreme Court decision in Davis v. FEC and thought they saw an line of a attack on Arizona’s Clean Elections: they are deluded.

Other blogs and even the mainstream media, not to mention those between the two extremes, have been reporting that the Goldwater suit has been successful and that the matching funds portion of Clean Elections have been declared unconstitutional. THIS IS NOT THE CASE. It just shows how little the mainstream press and some bloggers understand the legal process. Judge Silver issued an order

(PDF) which recognized a likelihood of success of the merits, but denied an injunction of the Clean Elections system. The judge merely ruled that the plaintiffs MIGHT succeed on the merits – not that they have. And the Judge is wrong to boot and will undoubtedly reform her view of the law when there has been a chance for the parties to argue the matter properly.

John McComish, Nancy McLain, Kevin Gibbons, Frank Antenori, Tony Bouie, and Doug Sposito are the "traditional" pols who want an end to publicly financed candidates receiving matching funds to keep them competitive with those who are using private money. They do have a point. There are circumstances when the matching fund provisions end up favoring the Clean candidates, especially when there is more than one "traditionally" funded candidate in a race. And the small charge-off for expenses that is deducted from matching funds probably is unrealistically low. But these are details and are eminently within the power of the Arizona legislature to fix, since those changes would conform to the intent of the voters in passing Clean Elections. Instead of a fix, the politico-plaintiff’s lawsuit seeks to invalidate the entire section of Clean Elections dealing with matching funds. They aren’t reformers pointing out some problems, they’re vandals seeking to overturn the will of Arizona’s voters through the courts. Isn’t that "judicial activism" in conservative parlance? Most importantly, do these problems constitute a violation of the civil rights of "traditional" candidates like the plaintiffs?

The answer is clearly "no". For those familiar with the case law let me lay out the most fundamental case: Clean Elections does not impose any additional limits on contributions, and certainly not asymmetric ones as in Davis; matching funds do not reduce the speech rights of "traditionally" funded candidates; and equalizing access to political speech is a valid governmental goal that has never been rejected by the courts.

At first glance the Goldwater suit against the matching funds provisions of Clean Elections has some merit. The Supreme Court has recently struck down some provisions of BICRA that concerned self-financing candidates in Davis, just as Clean Elections’ matching funds provisions concern self- and "traditionally" funded candidates. But the similarities and underlying constitutional issues stop at the surface. A closer look at Supreme Court precedents and the Goldwater’s allegations against Clean Elections clearly show that unlike the BICRA provisions, Clean Elections matching funds provisions do not impose any limits on contributions, and do not reduce to the freedom of "traditionals" to spend (i.e. speak in the unfortunate Buckley equivalence)

The central allegation of the suit is that equalizing funding to publicly financed candidates, which is the purpose of the matching fund provisions, is not a permissible governmental goal. The courts have never held this to be the case, and given the courts’ deference to management of the political system generally ceded to the legislature, likely never will. It is true that so far only avoiding corruption of the appearance of corruption is recognized by Davis as a valid purpose for limiting contributions, but for the Arizona Supreme Court or United States Supreme Court to strike down the matching fund provisions of Clean Elections, the courts would have to blaze new doctrinal ground and significantly limit the constitutional powers of legislatures. They would have to declare the legislatures cannot act to equalize funding. That would be a major doctrinal innovation and a major new limit on legislative authority over the political process. It’s just not going to happen in my view. Rather, the point of this suit seems to be to raise funds for the Goldwater Institute, and get conservative ink for the candidates, not to the win the case.

The most concrete example of harm to the plaintiffs raised by their brief is merely speculative, and oddly psychological. They claim that the speech of "traditional" candidates is chilled by the fear that by raising and spending additional funds to promote their messages, they are giving their opponents money. The problem is that speech is not really a finite good. More for me does not mean less for you. If "traditional" candidates are so concerned about their opponents’ messages to voters that they are willing to stifle their own, they can’t have much confidence in the superiority of their views. Their money having a multiplier effect on the speech available to all candidates shouldn’t affect the "traditional" candidate’s speech at all. If it does, well… that really their problem, not a Constitutional crisis. Get over yourselves, plaintiffs. Your feelings are not constitutionally significant.

The system of matching funds clearly has some inequities that need to be addressed. There are pernicious side-effects and loopholes that can be exploited by the unscrupulous, but these are within the power of our legislature to fix. The legislature could further the will of the voters and provide a better Clean Elections system, but they don’t want to do that: they would prefer to work to destroy what Arizona’s citizens have created. Instead of incremental improvement, movement conservatives are set on exploiting problems to try to undermine and destroy the system.

If the plaintiffs and the Goldwater Institute were serious about addressing the problems of Clean Elections, I would be the first to support their efforts. But the problems of Clean Elections do not mean it is unconstitutional, nor do they undermine the benefits and resounding success of Arizona’s Clean Elections system. The greatest irony perhaps is that those who have benefited the most of Clean Elections – movement conservatives – are the very people most adamantly opposed to it. Clean Elections has significantly broadened the range of political choices and the opportunities to be politically involved in Arizona (often to my chagrin), and Arizonans are right to be proud of that system.