Publicly funded candidates will be getting extra cash when their privately financed foes spend more, at least for this year.
The U.S. Supreme Court on Tuesday turned aside an emergency petition by foes of the system to immediately block the extra cash from being disbursed. The justices gave no reason for their order.
But in an unusually worded order, the justices invited challengers to submit a new request - this time telling the high court that they intend to challenge last month's decision by the 9th Circuit Court of Appeals upholding the matching funds provision of the Citizens Clean Elections Act. Nick Dranias, attorney for the Goldwater Institute, which is representing several foes of the law, said he did just that late Tuesday.
At this point, though, Tuesday's high court action is most immediately a setback for candidates who sought to finally overwhelm competitors with their own resources. That includes gubernatorial hopeful Buz Mills, who specifically asked the high court to ensure than Jan Brewer and Dean Martin do not get more money because he already has far outspent the $707,447 public funding allocation for the primary.
But it also includes other candidates who hoped to collect far more from contributors than their foes.
For example, Tom Horne, who is running for attorney general, testified that the threat of matches for his GOP foes "is already causing me and my supporters to become more hesitant to contribute to the campaign ... and thus is chilling the freedom to communicate our ideas and political message to the public."
Tuesday's Supreme Court order means Andrew Thomas, running with public funds in the Republican primary against Horne won't be limited to the $183,311 official allocation once Horne spends more.
At the heart of the fight is voter approval in 1998 of a law to let candidates for statewide and legislative office get public funds.
To qualify, they have to gather a set number of $5 donations to show public support. And they have to agree to limit their spending to what they receive from the state, a figure set by the original law and adjusted for inflation.
For example, gubernatorial hopefuls now get $707,447 for the primary and $1,061,171 for the general election.
But the law, in recognizing the right of candidates not to participate in the system, provides added cash to publicly financed contenders when their foes spend more, up to three times the original amount. That totals more than $2.1 million in the governor's race.
Mills reported Tuesday he already had spent close to $2.3 million.
U.S. District Court Judge Roslyn Silver ruled earlier this year that the matching funds provision is unconstitutional. She said it infringes on the constitutional free speech rights of candidates when every time they spend a dollar their foes get an equal amount. That, Silver said, essentially discouraged them from exercising their rights.
She refused, however, to immediately block the matching funds while the case was on appeal.
The 9th Circuit last month rejected Silver's logic. Judge Wallace Tashima, writing for the court, said the argument of foes boils down to the fact that the matching fund provision denies them a competitive advantage over their publicly funded foes.
In his latest emergency petition to the high court, Dranias urged the justices to at least put matching funds on "hold" while they review the 9th circuit ruling. He argued that the appellate court misapplied the law and said allowing matching funds to be distributed would cause irreparable harm to candidates running with their own money or with donations.