A federal judge has agreed to hear arguments that she should immediately block a key provision of the state's system of publicly financing elections.
U.S. District Court Judge Roslyn Silver scheduled a hearing for Jan. 15 on the request by attorneys for several current or potential elected officials to prevent the Citizens Clean Elections Commission from providing matching dollars to their publicly financed foes. Attorney Nick Dranias of the Goldwater Institute, who is representing the challengers to the law, said Silver needs to act now, before this year's campaign gets into full swing.
Specifically, Dranias said if Silver waits for several more months before she rules on the constitutionality of the matching funds provision - she already has indicated she believes it is illegal - the ruling will come after many of the candidates already have decided whether to accept public funds. At that point, he said, defenders of the law will argue it isn't fair to change the rules in the middle of an election.
Dranias has a specific reason to be fearful.
Silver, in an August 2008 decision, said it appears the law violates the rights of candidates who choose not to accept public dollars. But Silver allowed the financing to continue because the election was so close.
Dranias said that shouldn't be allowed to happen again.
If Dranias is successful, that could change the tenor of the entire 2010 campaign.
Most notably, it could dissuade many candidates from agreeing to accept public funds. The alternative is to remain in the public financing system but run the risk of being financially buried by a better funded opponent, with no chance of catching up.
The law, approved by voters in 1998, allows - but does not require - candidates for statewide and legislative office to get public dollars for their campaigns if they promise not to take any other outside dollars above what they are allocated.
The provision at issue says if a privately funded foe spends more than the allocation to the publicly funded candidate, the person running with public funds - called a "participating candidate" - gets a dollar-for-dollar match, up to three times the original amount.
So a candidate for the Legislature who would normally get $14,319 for a contested primary could end up with close to $43,000.
Challengers said that infringes on the free-speech rights of those privately funded candidates because each time they spend money on their campaign, they effectively are giving more resources to their opponents.
In a ruling last year, Silver agreed. "The Arizona act imposes a substantial burden on the First Amendment right to use personal funds for campaign speech," the judge wrote.
But she said that, based on just a preliminary review of the law, she was not ready to halt the matching funds for the 2008 race, especially so close to the election.
Since that time Silver has heard arguments by both challengers and the state but has yet to issue a ruling. That led Dranias to seek an immediate injunction to keep the matching funds at least out of the 2010 race.
"Within the next 30 days, candidates will begin declaring their intentions to run traditional or participating campaigns because their first campaign finance report is due Feb. 1," Dranias said in his legal filings.
"I have to protect my clients' interests," he told Capitol Media Services.