State Capitol News
4:26 pm
Mon April 12, 2010

Attorney for State Clean Elections Tells Judges There is a Reason to Uphold Legality

San Francisco, CA – Under the law, candidates for statewide and legislative office
can take public funds or run with private dollars. Those that
choose the former get a set amount. Opponents have no limits. But
if they spend more than that allocation, the state provides
publicly funded candidates a dollar-for-dollar match. A federal
judge ruled earlier this year that illegally deters candidates
from spending money because each dollar they use effectively
subsidizes the reverse viewpoint. Attorney Brad Phillips argued
that the law -- and government-funded matches -- are legal
because they serve a compelling public interest.

(That act has both enhanced political speech and the
competitiveness of elections in Arizona and has reduced actual
and apparent corruption in Arizona politics without burdening
political speech. There has been no repeat of the scandals of the

In that incident, known as AzScam, an undercover agent posing as
a lobbyist for legalized gaming gave thousands in bribes and
campaign donations to lawmakers. Seven were forced out of office.
But appellate judge Andrew Kleinfeld told Phillips it's legally
irrelevant whether public financing is good public policy or not.

(People could see it as good or bad that the taxpayers have to
support whatever yahoo wants to fill up their TV screen with ads
for six months.)

Kleinfeld said the only issue is whether matching funds prevent
corruption and therefore are a legitimate government intrusion
into the political system. Phillips, in a back-and-forth with the
judge, said that's the standard in a landmark U.S. Supreme Court
case called Buckley -- and this meets that goal.

(By providing public funding, and sufficient funding to allow
candidates to run competitive races, you remove those candidates,
essentially, from the privately financed system that the court
has said results in at least potential real and apparent

(Only if the contributions are too big. I think part of the
court's theory in Buckley was as long as the contributions aren't
too big, they're just not going to work as bribes.)

Kleinfeld also questioned the contention of Nick Dranias of the
Goldwater Institute 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. I can talk as much as I want. It's
just that I can't shut you down.)

Dranias disagreed.

(Well, if it destroys the value of every dollar you spend, it
functions as the functional equivalent as a fine.)

After the hearing, Todd Lang, director of the Citizens Clean
Elections Commission defended the claim that public funding has
prevented a repeat of AzScam. He said the 1998 voter-approved
plan was in direct reaction to the scandal that showed politicans
could be for sale.

(With Clean Elections, it changes the appearance. And people get
more involved in campaigns. You're right: People could still be
corrupt under the current system. But the fact is, the average
voter supports Clean Elections because it makes them feel better
about the way government works, about the fact that it's not big
money that enables you to run, it's your ideas.)

But Dranias Dranias pointed out that lawmakers approved new
restrictions on lobbyists and gifts to legislators in the wake of
AzScam. Public financing wasn't enacted until years later. The
ruling, when it comes, will affect several high-profile races,
including that of governor where Buz Mills, using his own cash,
already has spent more than the $707,000 in public dollars going
to incumbent Jan Brewer in the Republican primary. For Arizona
Public Radio this is Howard Fischer.