Opponents of the state’s public campaign finance system are going to get another chance to try to void provisions of the law which can hurt candidates supported by special interests.
Reversing its own earlier decision, the 9th U.S. Circuit Court of Appeals said state Treasurer Dean Martin can challenge a part of the Citizens Clean Elections Act.
The judges said the fact that Martin has said he will run again in 2010 means his challenge to the law did not evaporate after he was elected last year.
But the ruling is far from a clear victory. It simply sends the case back to a trial judge — a judge who previously concluded the law is constitutional.
The 1998 law allows candidates for statewide and legislative offices to get public
That measure was approved by voters despite objections of several business groups, which have traditionally financed campaigns through personal donations of executives and political action committees.
One provision gives more cash to publicly funded candidates when privately financed foes get additional dollars.
Attorney Tim Keller of the Institute for Justice challenged that provision on behalf of 2002 gubernatorial candidate Matt Salmon as well as Martin, who was elected last year as treasurer. Both ran with private funds.
Keller said the net effect is to coerce candidates illegally into accepting public funds because of the match.
He also is challenging another provision that provides additional money to publicly financed candidates when independent groups take out ads attacking them or supporting their privately funded foes.
Yet independent expenditures made on behalf of the publicly funded candidate are not considered.
That angered the Association of American Physicians and Surgeons. Keller, who also represents that group, said that match harms the group’s ability to spend money on behalf of candidates it likes because each dollar spent means an equal amount for that person’s foe.
U.S. District Court Judge Earl Carroll threw out the lawsuit in 2005, ruling the government can adopt rules designed to abolish even the appearance of corruption in the political process.
Earlier this year the 9th Circuit upheld that ruling. But in its new ruling, the judges directed Carroll to take another look at the issue.
Technically, only Martin remains as a plaintiff. But Keller said the arguments he is making on Martin’s behalf to void matching funds for candidate spending are the same as those aimed at the match of independent expenditures.
Keller said the 2002 gubernatorial election shows the flaws in the financing system.
That year featured a fourway race involving Democrat Janet Napolitano, Republican Matt Salmon, Libertarian Barry Hess and independent Richard Mahoney. Napolitano and Mahoney took public funds; Salmon and Hess did not.
At that time Napolitano was entitled to $409,950 for the primary and $614,930 for the general election.
But Napolitano ended up getting an additional $1.2 million based on money either given to Salmon’s campaign or spent by others to get him elected.
For example the state Democratic Party paid for TV commercials attacking Salmon. The Republican Party responded with a $350,000 campaign of its own.
Napolitano got an additional $350,000, with no offset for what the Institute for Justice says was the $1 million spent on her behalf by the Democrats.
Similarly a Salmon fundraiser by President Bush raised $750,000 but netted only about $500,000 after costs.
Yet the state gave $750,000 to Napolitano — and an equal amount to Mahoney.
Republican Len Munsil acknowledged that disparity is one reason he accepted public funds in his race last year against Napolitano.