State defends election subsidies
on May 27, 2010 at 1:56 pm
UPDATE: Briefing in the case discussed here is now completed, with the filing of the challengers’ reply brief, arguing that they went to the Supreme Court for new relief without first trying to get the Ninth Circuit Court to put its ruling on hold, because the former tactic was “the very procedural route contemplated” by the Supreme Court when it refused, last February, to provide immediate relief against the matching funds program. Also filed Thursday afternoon was an amicus brief supporting the challenge.
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The state of Arizona argued in a Supreme Court filing Thursday that its system of public subsidies for candidates for state government offices will never work to prevent rich candidates, using only private donations, to spend as much as they like to try to win office.  “Candidates who choose private funding…can always out-spend their publicly funded opponents,” officials argued, urging the Justices not to disturb the system of state election subsidies that have been authorized for the past 12 years. This year, the filing said, 155 candidates are running within the subsidy system, and it said it would be disruptive to change course now.
The Court is expected to act within the next few days, at most, on a plea to stop the distribution of state “matching” funds to candidates who are running with public financing. Such funds will start being passed out to most candidates on June 22; some have already received such grants. Justice Anthony M. Kennedy, in his role as Circuit Justice, has the case before him, but it is likely he will share it with his colleagues for action. The case is McComish, et al., v. Bennett, et al. (application 09A1133).
A group of candidates relying only on private contributions are challenging the constitutionality of the 1998 state law, contending that it forces them to curtail their campaign activity because, if they go on raising money to finance further efforts, that will trigger added subsidies for the candidates relying on the state’s system. Rather than trigger those subsidies, the privately funded candidates have said, they will have to curb their fund raising and their spending, and thus curtail their message to voters, violating their First Amendment rights.
The state, replying on Thursday, said that the challengers “disregard two critical aspects” of the public financing system. First, it said, they ignore the fact that the law puts a fixed cap on the total amount of subsidies that may go to publicly financed candidates, with the ceiling set at three times the initial amount of a subsidy grant. Once that cap is reached, there is no way for subsidized candidates to keep up if the privately financing candidates go on raising and spending money on their campaigns, it said.
The second overlooked factor, according to the state’s brief, is that the law seeks to curb the influence of large private donations only on the subsidized candidates, not their privately financed opponents. To assure that candidates running within the system have a chance to compete without turning to large private donors, the state provides enough funds to make them competitive, even if they are substantially out-spent by richer candidacies.
The Clean Elections Institute, Inc., an advocacy group that supports the Arizona law, argued in a separate filing that the scheme is working as it was intended to do when voters first approved it in 1995. Before the law was adopted, the Institute contended, Arizona had “one of the worst state-level corruption scandals in the nation’s history,” leading to indictment of nearly 10 percent of the members of the state legislature for taking campaign money and bribes in return for support gambling legislation. It had been on the books more than a decade before the current challengers came forward to contest it, the Institute said. A federal judge found the law invalid, according to that brief, only by misunderstanding how the act works to insulate subsidized candidates from corrupting influences.
Both the Institute and the state contended that the challengers have no legal right to an order blocking the distribution of subsidy funds at this point, because they did not attempt first to get the Ninth Circuit Court to put a hold on its ruling last week upholding the constitutionality of the subsidy scheme.
On Thursday, the challengers drew support in the Supreme Court from a political action committee for the Arizona Free Enterprise Club, and from the Arizona Taxpayers Action Committee, along with several other privately financed candidates, who also have intervened in the case. Their brief, found here, argued that independent campaign organizations like theirs will be harmed by the matching funds program because they, too, will be penalized if they opt to support election of the “wrong” candidate.  These independent groups are not eligible for state subsidies to make up for what they will be prevented from raising and spending on their own, that filing indicated.
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