The future of a key provision of the state’s public financing of elections laws could depend on whether the U.S. Supreme Court believes it deters anyone from spending money on behalf of others.
In an hour-long argument Monday, attorney William Maurer from the Institute for Justice told the court that the problem is not that the foes of the legislators, candidates and special interests he represents are getting money to run their campaigns. In fact, Maurer conceded that public funding is constitutional.
What’s unconstitutional, he argued, is that every time his clients spend money — or their supporters spend money on their behalf — the publicly financed candidates get a dollar-for-dollar match. Maurer said the results is that, at least in one case, one candidate slowed his fundraising “to a crawl in order to avoid triggering matching funds” for his opponents.
But Bradley Phillips, who represents the Citizens Clean Elections Commission, argued there is no evidence that anyone’s spending has been deterred.
The issue is crucial to the case.
In essence, challengers are saying that matching funds violates the First Amendment right of free speech. That is because they will refrain from spending the money they need to get elected — or to get their candidates elected — for fear that it will result in instant cash for their opponents.
The amount of cash can be significant.
Candidates get a set amount based on the office being sought. In the case of Arizona’s governor race this past election, the state provided $707,447 for primary races and another $1,061,717 for general election survivors. The law provides a match, up to three times the original amount, when foes spend more.
Justice Antonin Scalia was skeptical of Phillips’ claim.
“Is something true just because you say it?” he asked. And Scalia said there was “statistical evidence” that the amount of money being spent on elections has not increased as fast as the state’s population.
And Scalia said there also was evidence that some privately financed contenders waited until the last possible moment to spend extra money so that their opponents would have little time to use their matching funds to respond.
“I do not understand how you can say there was no evidence,” the justice pressed. “I mean, maybe you might say, ‘I do not find the evidence persuasive,’ but don’t tell me there’s no evidence.”
“Maybe I should say there’s no significant evidence, your honor,” Phillips responded.
Several of the justices suggested they had problems with Maurer’s argument that matching funds are somehow less constitutional than outright grants for candidates.
Maurer said there would be nothing wrong with the state increasing the amount of money it gave to publicly financed candidates up front, even if that amount ended up equaling or exceeding what they might have gotten in a match.
“You can have a public financing system with sufficient funds to run an effective race,” Maurer said.
Kagan said that would appear to be what Arizona is doing here. “They’re both trying to do the same thing, which is to put sufficient money in the hands of people who enter the public financing system in order to run a competitive race,” she said.
In fact, she said, using matching funds versus a bigger up-front grant would appear to be “more accurate.”
Justice Ruth Bader Ginsburg noted the public funding system was approved by voters in 1998, after the AzScam scandal in which several legislators were convicted of taking bribes for their votes. She said that may show people were interested in preventing corruption.
Maurer noted, though, that the bribes taken were for personal gain, not for campaign contributions.
The justices did not say when they will rule.