REACTION: Goldwater Institute Says "Government's Heavy Thumb" Off the Scales

Further reaction to the U.S. Supreme Court's 5-4 decision today that the matching funds provisions in Arizona's Clean Elections campaign financing system violate the First Amendment: the Goldwater Institute, which represented the plaintiffs in one of the consolidated cases, is justifiably feeling pretty good, as evidenced in their still-wet-on-the-screen news release:

PHOENIX — Today, in a 5 to 4 decision, the U.S. Supreme Court affirmed a lower court decision striking down the matching funds provisions of Arizona’s taxpayer-funded campaign finance system known as Clean Elections.


Mirroring arguments from the Goldwater Institute that prompted the Supreme Court to block Arizona’s matching funds system on June 8, 2010, the Court declared that Arizona’s matching funds provision, “The First amendment embodies our choice as a Nation that, when it comes to [campaign] speech, the guiding principle is freedom---the ‘unfettered exchange of ideas’---not whatever the State may view as fair."

The Supreme Court confirmed that Arizona’s system of providing government campaign funding to candidates cannot be squared with its earlier decision in Davis v. F.E.C. In Davis, the Court struck down a regulatory scheme whereby “the vigorous exercise of the right to use personal funds to finance campaign speech produces fundraising advantages for opponents in the competitive context of electoral politics.” Arizona’s matching funds provisions similarly disadvantage citizen-funded candidates for exercising their First Amendment rights by causing their campaign contributions and expenditures to trigger taxpayer subsidies to opposing government-funded candidates.

“This decision protects democratic elections and gets government’s heavy thumb off the scale,” said Nick Dranias, the Goldwater Institute’s director of constitutional studies and the lead attorney in the case.

Although labeled differently, similar matching funds provisions exist in Florida, Maine, New Jersey, New Mexico, North Carolina, Rhode Island, and Wisconsin. Additionally, Connecticut and Massachusetts previously had public-financing provisions, but repealed them.

The Court’s decision puts an end to these unconstitutional experiments.

The Goldwater Institute Scharf-Norton Center for Constitutional Litigation represented John McComish, Nancy McLain, and Tony Bouie, candidates for the Arizona Legislature whose campaigns were funded by donations from citizens, not the government. Previously, the Institute secured three rulings from U.S. District Court Judge Roslyn O. Silver that Arizona’s matching funds provision violated the First Amendment. Those rulings were overturned by the Ninth Circuit on May 21, 2010.

But on June 8, 2010, responding to an emergency request from the Goldwater Institute, the U.S. Supreme Court blocked the Ninth Circuit’s decision from taking effect and suspended Arizona’s use of matching funds for its 2010 election cycle. Subsequent decisions arising from the Second and Eleventh Circuit Courts of Appeal followed suit, striking down equivalent matching funds provisions in Connecticut and Florida. The Supreme Court formally agreed to consider the Goldwater Institute’s challenge on Nov. 29, 2010, along with a separate case that had been filed by the Institute of Justice.


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