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“Before Congress can truly meet the challenges of energy and climate change, unemployment, and financial regulation, it must address the perverse incentives that mire each and every one of its members in a perpetual race for private campaign funds.”

- Tim Wirth
Former Senator from Colorado
ACR Advisory Board Member

ACR Files Amicus Brief with Supreme Court

Friday, March 4th, 2011

WASHINGTON, DC – A bipartisan committee of former U.S. Senators, Representatives, and Governors representing Americans for Campaign Reform today filed an amicus brief in the Supreme Court case of McComish v. Bennett defending the constitutionality of voluntary public funding of state elections in Arizona.

The lead attorneys on the amicus brief were Professor Charles Fried, the former Solicitor General under President Reagan, and attorneys Clifford Sloan, Bradley Klein, Geoffrey Wyatt, and Cory Black of the law firm Skadden Arps. The amici filing the brief in support of the respondents were:

According to Sen. Warren Rudman, co-chair of ACR, the motivation for the brief from a uniquely bipartisan group of signers was the growing concern among former elected officials over the role of private money in politics. “Big money is quietly undermining the integrity of our representative form of government,” Rudman said.  “The best way to fundamentally change the dysfunctional dynamic in Washington is to restore political purchasing power to the American people through small donor public funding of state and federal elections. The Arizona public funding law is an important step in this direction and ought to be preserved.”

Overview of the McComish Case and Amicus Brief:

The case in question involves a challenge to the constitutionality of the “trigger funds” provision of Arizona’s Citizen’s Clean Elections Act of 1998. The law established a voluntary system of public funding for qualifying candidates seeking election to state office in Arizona.

Under the provision, candidates who opt in to the Clean Elections system receive matching funds beyond their initial allocation if they are outspent by a privately funded opponent. Oral argument in the McComish case is scheduled for March 28, 2011 and a decision is expected before the end of the Supreme Court Term in June.

The law is being challenged by a group of Arizona candidates and political committees who claim that triggered funds to participating candidates have a “chilling” effect on the First Amendment free speech of privately fund-ed candidates and independent spenders. The Ninth Circuit Court of Appeals rejected the challenge last May.

The brief from former elected officials defends the constitutionality of Arizona’s law on the premise that providing public funds to qualifying candidates, without regard for the recipients’ party or message,  expands rather than restricts free speech. The brief opens by setting out the free speech principles at stake in the case:

The law at issue in this case is not, in the words of the First Amendment, a law “abridging the freedom of speech.” Rather, it adds voices to the political forum and thereby expands speech… If there is one fixed star in the constitutional firmament, it is that arguments seeking to compel a reduction in speech face an extraordinary hurdle. This Court’s decision in Citizens United v. FEC, 130 S. Ct. 876 (2010), has been celebrated and criticized as enabling corporate speech in the political arena, but its clear message is that arguments for shutting down speech are constitutionally suspect. Absent the gravest justification, demands to limit or eliminate speech have no constitutional force.

Contrary to petitioners’ characterization of the Arizona law as curtailing First Amendment speech, the brief argues, Arizona’s Clean Elections program places no limits on the ability of privately funded candidates or independent spenders to enter the political debate, including by spending far in excess of the triggered funds provided to participating candidates. Instead, Arizona extends public financing to any candidate who meets certain qualifications and agrees to forego fundraising from private sources. Thus, if the government violates no one’s First Amendment rights, does not silence, suppress or deter anyone’s speech by speaking a contrary message in its own voice, so most assuredly it burdens no speech when it makes funds available to all comers on a viewpoint neutral basis. More speech may answer speech but it does not silence it. What effect speech has on its audience the First Amendment leaves up to the audience.

In addition to refuting the petitioners’ broad claims that the Arizona law violates freedom of speech, the brief specifically responds to the Supreme Court cases cited by petitioners in defense of their attack on public funding in the Arizona law. Foremost among the cases petitioners cite is Davis v. FEC in 2008:

[N]one of the theories invoked by petitioners turns the promotion of speech at issue in this case into a burden on other speakers. Petitioners maintain that Davis v. FEC, 554 U.S. 724 (2008), compels invalidation of the Arizona law. But Davis concerned a different kind of law, one that imposed asymmetrical campaign contribution limits on candidates. The result of this disparate treatment was that opponents of self-financed candidates could raise three times the money of their opponents from individual donors; it was this “discriminatory” feature of the law that made it an impermissible “penalty” on speech. Arizona’s law does no such thing. It finances, rather than limits, campaign speech, and it thus promotes, rather than burdens, First Amendment values.

Finally, the brief refutes the petitioners’ claim that the Court should be concerned with potential self-censorship by privately funded candidates who are opposed by Clean Elections candidates under the Arizona law, pointing out that the “risk” at issue is not censorship but more speech:

Petitioners argue that Arizona’s law “chills” their speech because candidates will self-censor to avoid triggering funding of their opponents. But this Court’s “chilling” cases have traditionally been concerned that the threat of government regulation would suppress particular points of view – not that a speaker should be shielded from speech. Here, the “risk” from speaking is more speech – not censorship. Just as there is no “heckler’s veto” of the speech of another, so too there should be no “speaker’s veto” of the speech of another.

The brief concludes that, ”Because the Arizona law permissibly expands speech and thereby furthers First Amendment values, Petitioners’ request that this Court invalidate the law is unavailing.”