The U.S. Supreme Court will review the legality of a key provision of Arizona’s system of publicly financing of elections.
In a brief order Monday, the justices agreed to a request by opponents of the system to take a closer look at a provision in the law that gives those getting public dollars extra cash when their privately funded foes spend more.
A federal judge in Phoenix had declared the provision violates the First Amendment Rights of those candidates who use their own money or donations from individuals or special interests. But the 9th Circuit Court of Appeals found nothing unconstitutional about the system.
Monday’s decision does not guarantee that the high court will overturn that appellate ruling.
But the justices earlier this year blocked the state from giving matching funds to publicly financed candidates for this election while they looked at the law closer. And it takes at least four of the nine justices to decide to review that appellate court ruling.
Less clear is what happens to the rest of the public financing law if the matching funds provision is voided.
Todd Lang, executive director of the Citizens Clean Elections Commission, which administers the funding, said he believes some candidates may choose to instead run with private funding “simply because they’re fearful of being outspent’’ by challengers.
The 1998 voter-approved law lets candidates for statewide and legislative office get public dollars if they agree not to take private funds. The amount each “participating’’ candidate gets is based on the specific office sought.
This year, for example, publicly financed candidates for governor got $707,447 in the primary; those that survived were entitled to another $1,061,171.
Previous lawsuits by business groups to kill the whole idea of public financing have been rejected.
This case involves two separate challenges solely to a provision of the law giving a dollar-for-dollar match, up to three times the original amount, to publicly funded candidates when opponents spend more than the allocation.
One group of privately financed candidates says the system violates their rights of free speech -- in this case, to get out their message -- by giving extra money to their publicly funded foes every time they spend more.
A parallel lawsuit includes groups that want to spend their own money. Their opposition stems from the fact that their spending on behalf of a favored candidate or against someone they do not like results in additional cash for the disfavored candidate.
In a ruling earlier this year, U.S. District Court Judge Roslyn Silver said this kind of artificial balancing of financing of candidates by the government could be justified only with a showing of a legitimate public purpose. Silver rejected arguments by the state that such intervention was necessary to prevent corruption.
The 9th Circuit overturned that decision, saying the claims of challengers were unsubstantiated. Judge Wallace Tashima, writing for the court, said not a single plaintiff cited a case where they refused a donation or did not spend money to avoid an opponent receiving a match.
But the Supreme Court, in an unusual order earlier this year, blocked the state from providing the matching dollars this election until the justices got to weigh in.
That left several publicly financed candidates at a disadvantage.
In the Republican gubernatorial primary, for example, Buz Mills put close to $3.2 million of his own cash into the race. That normally would have entitled incumbent Jan Brewer to more than $2.1 million -- the limit of her original allocation times three.
In the end, though, it did not hurt Brewer who rode a wave of popularity for her backing of the state’s new immigration law to an easy victory in the primary and, ultimately, in the general election earlier this month.
Lang said he does not believe a decision by the Supreme Court to kill matching funds, if that happens, undermines public financing.
“I think you’ll find folks (will) still participate,’’ he said. But Lang said some may be dissuaded.
“I think in tough races, incumbents who have access to fundraising may choose not to run as a participating candidate even though they would like to simply because they’re fearful of being outspent,’’ Lang said. “That’s one of the harms of getting rid of matching funds: Folks who want to participate may not be able to in some races.’’
Nick Dranias, attorney for the Goldwater Institute, which represents candidates challenging the law, said he believes some people will still opt for public funds even without the possibility of a match.
Dranias said, though, the high court could decide that matching funds are an integral part of the public financing system and that voiding one part necessarily kills the whole plan.
The U.S. Supreme Court will review the legality of a key provision of Arizona's system of publicly financing of elections.
In a brief order this morning, the justices agreed to a request by opponents of the system to take a closer look at a provision in the law which gives those getting public dollars extra cash when their privately funded foes spend more.
A federal judge in Phoenix had declared the provision violates the First Amendment Rights of those candidates who use their own money or donations from individuals or special interests. But the 9th Circuit Court of Appeals found nothing unconstitutional about the system.
Today's decision does not guarantee that the high court will overturn that appellate ruling.
But the justices earlier this year blocked the state from giving matching funds to publicly financed candidates, at least for this election, while they looked at the law closer. And it takes at least four of the nine justices to decide that they want to review that appellate court ruling.
A hearing date will be set for the spring.
