SAN FRANCISCO — The fact that no lawmaker has been charged or convicted of corruption since the AzScam scandal of the early 1990s proves Arizona’s public funding of elections works and is legal, an attorney for the Citizens Clean Elections Commission said Monday.
Brad Phillips acknowledged the U.S. Supreme Court has limited the ability of government to restrict political speech.
But Phillips told judges of the 9th Circuit Court of Appeals that public financing is legal when it furthers a “compelling” governmental purpose. He said that includes preventing corruption — or even the appearance of corruption.
Attorney Nicholas Dranias of the Goldwater Institute scoffed at the argument that public financing — and, specifically, the provision in dispute which gives extra money to publicly funded candidates when privately financed foes spend more — has made Arizona politics less corrupt.
Hanging in the balance is a key provision of the law which lets the government act as a financial campaign “equalizer.”
Candidates who accept public funds get a set amount of dollars for their campaigns. But if opponents, who have no limits,spend more than their allocation, the state provides a dollar-for-dollar match.
A federal judge ruled earlier this year that unconstitutionally deters candidates and supporters from spending money because each dollar they use effectively subsidizes the reverse viewpoint.
The appellate ruling, which could take weeks or longer, could affect this year’s elections: Several high profile races, including the one for governor, involve privately financed contenders who already have spent more than their publicly funded foes. If the judges strike down the law — and if their decision is effective immediately — those publicly funded contenders won’t get any more cash no matter how much their opponents spend.
Phillips told appellate judges Monday that public funding and the matching dollar provision frees candidates from having to raise money from private sources. He said breaking that link “has reduced actual and apparent corruption in Arizona politics without burdening political speech.”
As proof, he said, there has been no repeat of AzScam since public funding was approved by voters in 1998.
In that early 1990s incident, an undercover agent, posing as a lobbyist who wanted casino gaming in Arizona, gave thousands of dollars in campaign contributions and bribes to lawmakers willing to support the plan. Six lawmakers quit in plea deals with prosecutors; a seventh was convicted of conspiracy to commit bribery and filing false campaign statements.
Judge Andrew Kleinfeld said it’s legally irrelevant whether public funding is good policy.
“People could see it as good or bad that the taxpayers have to support whatever yahoo wants to fill up their TV screen for six months,” he said. The issue, said Kleinfeld, is whether matching funds prevent corruption and therefore are a legitimate government intrusion into the political system.
“By providing public funding, and sufficient funding to allow candidates to run competitive races, you remove those candidates, essentially, from the privately financed system,” Phillips responded, a system courts have said result in real or potential corruption.
“Only if contributions are too big,” Kleinfeld shot back. “As long as the contributions aren’t too big, they’re just not going to work as bribes.”
Kleinfeld also grilled Dranias, whose organization represents some incumbents and challengers that use private dollars, on his contention that matching funds for publicly funded candidates is a penalty on those using private dollars.
“The only penalty I see here is a strategic one: If I spend more money, you get more money,” the judge told Dranias.
“I can talk as much as I want,” Kleinfeld continued. “It’s just that I can’t shut you down.”
“If it destroys the value of every dollar you spend, it functions as the functional equivalent of a fine,” Dranias responded.
After the hearing, Todd Lang, director of the Citizens Clean Elections Commission, defended his attorney’s claim that public funding has prevented a repeat of AzScam.
“I think Clean Elections improves the appearance of the Legislature because it gives folks an opportunity to run without taking big money,” he said. And Lang said just the “appearance” of less corruption is important.
“We don’t know if there would have been another AzScam but for Clean Elections,” he said. “What we do know is that one has not happened and public perception of government is served by Clean Elections.”
Dranias, however, noted lawmakers approved new restrictions on lobbyists and gifts to legislators in the wake of AzScam. Public financing wasn’t enacted until years later.