State Capitol News
3:35 pm
Fri May 21, 2010

Federal Court Upholds Controversial Provision of State's Election Law

Phoenix, AZ – A 1998 voter-approved law lets candidates for statewide and
legislastive office get public funds if they refuse other cash.
It also gives additional dollars to those candidates who
participate in the Clean Elections system if their privately
financed foes spend more. Earlier this year a federal judge
concluded that violates the First Amendment rights of non-
participating candidates because every time they spend a dollar,
their foes got a dollar. But the 9th circuit said there's nothing
inherently wrong with that. Nick Dranias, attorney for the
Goldwater Institute which represents the challengers, said he
will ask the U.S. Supreme Court to immediately intercede, saying
the 9th circuit got it wrong.

(Notably the court studiously ignored and did not analyze our
theory that the matching fund system causes the exercise of First
Amendment rights to dissemniate hostile speech.)

He cited the arguments of House Speaker John McComish, one of the
challengers, who said he decided not to spend more money because
doing so would give additional cash to his publicly funded foes
to put out materials hostile to his own campaign. But appellate
Judge Wallace Tashima said challengers are unhappy because the
law denies them a competitive advantage over their publicly
funded foes. Todd Lang, director of the Citizens Clean Elections
System said the judges got it right.

(The 9th circuit recognized that the First Amendment protects
freedom of speec. It doesn't protect freedom from rebuttal. And,
effectively, that's what the plaintiffs were arguing that somehow
their First Amendment rights were being harmed because somebody
gets to respond to them.)

If the Supreme Court won't take up the case, the most immediate
beneficiaries will be those running for office this year with
public dollars who are facing better financed foes. Leading that
list are two Republican gubernatorial candidates: incumbent Jan
Brewer and state Treasurer Dean Martin. Under the terms of the
law they each are entitled to $707,477 for the GOP primary. But
business owner Buz Mills, who also is running in that primary,
reported he already has spent close to $1.8 million. That means
Brewer and Martin will get a check for the difference next month
to spend on their own campaigns. Curiously enough, one of the
challengers to the matching funds is Martin. He said his
objections came during his successful 2006 bid for state
treasurer when he stopped raising more money because each new
dollar would mean more money for Rano Singh, his publicly
financed Demcoratic foe. Martin said it was precisely because of
the law he decided to accept public funds in this year's bid for
governor.

(The system is so skewed toward the participating candidate that
if you want to be competitive you almost are forced to run under
that system.)