Arizona Chamber of Commerce and Industry

Ninth Circuit Court Strikes Out on Matching Funds

Glenn Hamer
 
If the 9th Circuit Court of Appeals were a baseball team, then much of the roster would be facing a trip to the minors.

As columnist George Will recently pointed out, over the past 50 years, the Supreme Court has reversed the 9th Circuit an average of almost 11 times per Supreme Court term, more than any other circuit court. 

That's a rotten batting average.

Last week, the Mudville 9th swung and missed again when it ruled that the matching funds component of Arizona's publicly funded elections scheme was constitutional.  While we were disappointed with the ruling, based on the court's past performance, we probably shouldn't have been surprised. 

It's unfortunate that advocates of free speech and of an electoral system that isn't bankrolled with public funds have to rely on a court's involvement at all.  The Legislature missed an opportunity in the recently completed legislative session to allow voters the opportunity to decide whether they want public funds to continue to be used on political campaigns.

SCR 1043 (Clean Elections; funds; transfer), introduced by Sen. Chuck Gray, would have redirected public funds used for political campaigns to education.  The bill passed the Senate, but it failed to pass the House Judiciary Committee in early April.  SCR 1009 (publicly financed elections; prohibition), introduced by former Sen. Jonathan Paton, originally sought to prohibit the use of public funds for political campaigns.  That bill passed the Senate, but in the House Judiciary Committee it was amended to seek an outright repeal of the publicly funded election scheme.  That version did not receive a floor vote in the House.

We were frustrated by the House's unwillingness to take a stand for better stewardship of taxpayer dollars, especially by those representatives who tout their fiscal conservative credentials and decry the abuse of public funds when they're on the campaign trail, yet when given the opportunity to bolster their conservative bona fides at the Legislature, go silent.  And for those keeping score, no House or Senate Democrat voted for either of the measures.

The problems with publicly funded elections have been well documented.  Dubious uses of funding. Slates of candidates gaming the system with a traditionally funded candidate triggering matching funds to benefit his running mates.  Lawmakers removed from office by a body unaccountable to voters.  A Clean Elections Commission that allocates $2 million for public relations and $78,000 for an outside lobbyist, outrageous expenses for a state agency in the face of a state government simply trying to stay solvent.

And after promises that publicly financed campaigns would deliver a Legislature that would be less polarized and more responsive to constituents, the state capitol has only become more ideologically rigid, with lawmakers' personal agendas taking priority over the state's needs.

But most disturbing about Arizona's publicly funded elections scheme is that its matching funds provision squelches free speech.

Traditionally funded candidates, not wanting to increase their publicly-funded opponents' coffers, bite their tongue, lest the other side get more dollars to publicize their own campaign.  Forget about leveling the playing field.  Matching funds discourage political speech by privately-funded candidates, placing control over the tenor of a campaign in the hands of the publicly-funded candidate.

In January, district court Judge Roslyn Silver found matching funds to violate the First Amendment.  The state then filed an appeal with the 9th Circuit, which reversed Judge Silver's ruling.

That brings us to the U.S. Supreme Court, where the legal team at the Goldwater Institute is taking its appeal to the 9th Circuit's decision. 

The Supreme Court already this year struck a blow for increased political speech in the Citizens United case, where it ruled that corporations and unions are no different than individuals when it comes to exercising their right to free speech by making contributions to independent political committees.

Like an unruly child, the 9th Circuit has been consistently scolded by the Supreme Court for its overreach and activist interpretation of the Constitution.  We're hopeful the Supreme Court will give the 9th another timeout over matching funds.  

Voters deserve to decide whether this is what they had in mind when they passed the public funding system into law 12 years ago, and the 2012 ballot will likely put that question to them again.  We'll work hard to convince voters to restore a political system that values free speech, makes politicians responsive to their constituents and, once and for all, gets the government out of the campaign business.