Supreme Court curbs Arizona public funding in elections

The Supreme Court, in an unusual move, came to the aid Tuesday of well-funded candidates in Arizona and blocked the state from giving extra public money to those candidates who had agreed to forgo private financing.

The court’s emergency order throws a wrench into the state’s campaigns two months before its primary elections. It is the latest sign that the high court’s conservative bloc is skeptical of legal rules to limit election spending or to equalize the spending between wealthy and not-so-wealthy candidates.

Two years ago, the court in a 5-4 decision intervened on behalf of a wealthy candidate for Congress from upstate New York and struck down the “millionaire’s amendment.” That measure, part of the McCain-Feingold Act, allowed a candidate to raise more money through larger donations if his opponent was spending lavishly. Justice Samuel A. Alito Jr. called it a “drag” on the free-speech rights of the wealthier candidate because he was penalized for spending more.

That ruling, in turn, fueled a 1st Amendment challenge to Arizona’s Clean Elections Act, which was approved by voters in 1998. The measure was designed to combat corruption in the state Legislature. It provided public funds for candidates who agreed to abide by limits on spending and fundraising.

Gov. Jan Brewer called the high court’s order “terribly troubling.” A Republican, she is being challenged in the primary by Owen “Buz” Mills, a wealthy businessman who has already spent more than $2 million on his campaign.

Brewer had agreed to public funding and was to receive $707,000 for her campaign. She was also eligible to receive up to $1.4 million in extra matching funds because Mills had vastly outspent her. The Supreme Court’s order means she will not receive the extra money this month.

“It is extremely unusual for the judicial branch to change the rules of an election while it is being held,” Brewer said. The primary election is Aug. 24. The matching funds were to go out June 22. The Supreme Court order is likely to stay in effect at least until fall, when justices probably will hear arguments in the case.

Todd Lang, executive director of Arizona’s Citizens Clean Elections Commission, said he was surprised by the timing of the court’s intervention. “I’m extremely disappointed. To take an action such as this so late in the election cycle is unprecedented. Matching funds result in more speech and political debate, not less.”

The challengers, led by the Goldwater Institute and the Institute for Justice, called the court’s order a “victory of freedom of political speech.”

The decision “will allow the 2010 Arizona election to occur without the government placing its thumb on the scale in favor of those politicians who receive public funding,” said William Maurer, executive director of the Institute for Justice.

In January, the Supreme Court gave corporations a free-speech right to spend unlimited amounts on election races, overturning another part of the McCain-Feingold Act.

In the decade since the Arizona law went into effect, most state legislative candidates have agreed to take public funding. But the court has said candidates always retain the right to raise and spend money on their own.

Relying on the Supreme Court’s ruling on the “millionaire’s amendment,” a federal judge in Phoenix struck down Arizona’s system of matching funds for candidates who faced well-heeled opponents. The ruling did not void the principle of public funding, however.

But the U.S. 9th Circuit Court of Appeals revived the full law this spring and said the extra matching funds did not infringe upon the free-speech rights of wealthy candidates.

The challengers appealed to the high court seeking an emergency order to block the distribution of the matching funds until the Supreme Court could rule on the constitutional challenge. Justice Anthony M. Kennedy, speaking for the court, granted the order Tuesday. He did not say who voted in favor, but it takes the votes of five justices to grant a stay.

Nick Dranias, lead lawyer for the Goldwater Institute, said the matching funds violated the 1st Amendment rights of the privately funded candidate because the state “funds dollar for dollar hostile speech against you.” If the privately funded candidate raises more money, his opponent gets more public funds, he noted.

Loyola Law School professor Richard L. Hasen, an election law expert, said the court’s order signaled that the justices were likely to take up the constitutional challenge and strike down the key part of the Arizona law.

“It shows there is such a distrust of these measures among five justices,” he said.