The question of whether publicly funded elections can offer candidates “equalizing” payments to offset higher spending by privately funded opponents is again heading to what appears to be an unfriendly U.S. Supreme Court.
The Supreme Court this week overturned a “stay” issued by a federal court in Arizona which had allowed that state’s public financing system to stay in place during this year’s elections while a challenge to its constitutionality was being appealed.
The case was brought by several privately funded candidates and political action committees, who argued that their rights to unfettered political speech were violated when their own expenditures triggered extra public funds for their opponents.
The same Arizona court found that the provision of equalizing payments in Arizona Clean Elections law is unconstitutional, based on the Supreme Court’s ruling in the case of Citizens United. However, the underlying law, which provides a basic level of public funding to qualifying candidates, was left intact.
That decision was overturned by the 9th Circuit in May, but opponents of public financing moved to appeal to the Supreme Court.
The Supreme Court’s action prevents Arizona candidates from receiving “equalizing” payments until the Supreme Court either decides not to hear the case, or else issues a final ruling.
The LA Times reports that Arizona’s Republican governor will be denied $1.4 million in equalizing payments her reelection campaign had been expected to receive.
An eventual decision in the case could also impact the Hawaii County experiment with comprehensive public financing, which is up and running for the 2010 elections for county council and which includes equalizing payments.
In its May 21 decision upholding the constitutionality of the Arizona law, the 9th Circuit Court of Appeals attempted to distinguish it from prior cases decided by the Supreme Court.
In Davis, the Millionaire’s Amendment was an attempt to “level electoral opportunities for candidates of different personal wealth.” 128 S. Ct. at 2773. This was problematic because Buckley had held that “the First Amendment simply cannot tolerate [a] restriction upon the freedom of a candidate to speak without legislative limit on behalf of his own candidacy.” 424 U.S. at 54. In Citizens United, the Supreme Court elaborated on its decision in Davis, indicating that the Millionaire’s Amendment was unconstitutional because it specifically sought to disadvantage the rich. “The rule that political speech cannot be limited based on a speaker’s wealth is a necessary consequence of the premise that the First Amendment generally prohibits the suppression of political speech based on the speaker’s identity.” Citizens United, 130 S. Ct. at 905. Under the Act, while matching funds are calculated based on the total contributions received and expenditures made by a nonparticipating opponent, they are not distributed specifically to the opponents of wealthy candidates. Matching funds do not distinguish between different sources of nonparticipating candidates’ financing at all. The law in Davis was problematic because it singled out the speakers to whom it applied based on their identity. The Act’s matching funds provision makes no such identity-based distinctions.
The Supreme Court’s decision to enter the case early by lifting the court-imposed stay appears to indicate that a majority of the court may not view the 9th Circuit’s action favorably.
Documents in the case are available online via the Goldwater Institute, one of the sponsors of the underlying lawsuit.