A federal appeals court will hear arguments Monday that will determine if Buz Mills can financially bury Jan Brewer in the Republican gubernatorial primary.
Strictly speaking, neither Mills nor Brewer are parties to the lawsuit. But they clearly will be affected by what the 9th U.S. Circuit Court of Appeals rules on the legality of a “matching funds” provision of the state’s public financing system.
Foes of the law won the first round: U.S. District Court Judge Roslyn Silver ruled three months ago it is unconstitutional to give extra money to publicly funded candidates when their privately financed foes outspend them.
Even if the three-judge panel hearing the case Monday agrees, another question remains: How quickly that ruling should apply.
Attorneys for the Citizens Clean Elections Commission contend it is too late to change the rules this year. They argue that some candidates already have decided to accept public funding based, at least in part, on the promise of more cash if their opponents spend more.
But Nick Dranias, attorney for the Goldwater Institute, said anyone who decided to take public dollars knew the risks. While Silver did not make her formal ruling until January, she actually issued a preliminary finding in 2008 concluding the system was likely illegal.
The court fight over the matching fund dollars comes as some lawmakers are trying to repeal the entire public financing system. But that effort, backed by the business community, has stalled as other legislators seek to keep the program alive.
Approved by voters in 1998, the law allows — but does not require — candidates for statewide and legislative office to get public dollars for their campaigns. To qualify, they have to gather a certain number of $5 donations as a showing of public support.
Funding is based on a formula.
This year, for example, gubernatorial contenders with contested primaries get $707,447 for the primary and another $1,061,171 for the general election if they’re nominated. Brewer already has received her primary allocation.
The “matching funds” provision — the one the court will hear — entitles her to a dollar-for-dollar match once any privately financed foe spends more than she got, up to three times the original allocation.
In fact, Mills has filed a report with the Secretary of State’s Office showing he already has spent more than $2.1 million, what with television ads and mailed out full-color brochures.
Normally, Brewer would get her match in June. But that all depends on what the federal appeals court rules.
Brewer campaign spokesman Doug Cole said that, at least for her, there’s no turning back since she’s already received the cash. Cole said that’s why Brewer believes the 9th Circuit should leave the matching fund system in place, at least for now, even if they agree with Silver and conclude it is unconstitutional.
Mills is so far spending only his own money. That makes him, in some ways, the poster child for why Silver concluded the matching funds are illegal: She said it interferes with a candidate’s free speech rights if every dollar spent of personal cash provides a dollar to an opponent.
Silver said this artificial balancing of financing by the government can be justified only with a showing of a legitimate public purpose. But Silver rejected arguments by the state that such intervention is necessary to prevent corruption.
The outcome of the legal dispute will also affect the GOP gubernatorial campaigns of state Treasurer Dean Martin who is running with public money and former Board of Regents President John Munger who is using private cash. Democrat Terry Goddard, so far unopposed in his party’s primary, also is relying on public funds.
But other races also hang in the balance.
For example, Republican Andrew Thomas said he will run for attorney general using public dollars. That qualifies him for $183,311 in the primary.
But state Superintendent of Public Instruction Tom Horne, who wants the same office, already had collected more than $208,000 by the end of last year in private dollars and said Friday he now has $300,000.
And Republican candidate for treasurer Andrei Cherny had $354,225 in the bank by the end of last year; publicly funded foes like state Sen. Barbara Leff are entitled to just $91,645 for the primary.