Supreme Court blocks Arizona election funding
Share with others:
WASHINGTON -- The Supreme Court, in an unusual move, on Tuesday came to the aid 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 orders 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 spending between wealthy and not-so-wealthy candidates.
Two years ago, the court in a 5-4 decision intervened on a behalf of a wealthy candidate for Congress in upstate New York and struck down the so-called "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 millionaire candidate because he was penalized for spending more on his race.
That ruling, in turn, fueled a First Amendment challenge to Arizona's Clean Elections Law, which voters approved 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 was among those who were surprised by the high court's order. She called it "terribly troubling." A Republican, she is being challenged in the GOP primary by wealthy businessman Buz Mills, who has already spent more than $2 million on his race.
Ms. Brewer had agreed to public funding and was to receive $707,000 for her campaign. She was also eligible to receive as much as $1.4 million in extra matching funds because Mr. Mills had vastly outspent her. The Supreme Court's order means that she will not receive the extra money later this month.
"It is extremely unusual for the judicial branch to change the rules of an election while it is being held," Ms. Brewer said.
The primary election is set for Aug. 24. The matching funds were to go out June 22. For its part, the Supreme Court order is likely to stay in effect at least until the fall, when it probably will hear arguments in the case.
Todd Lang, executive director of the Arizona Clean Elections Commission, said he, too, 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," he said. "Matching funds result in more speech and political debate, not less."
But the challengers, led by the Goldwater Institute and the Institute for Justice, called the court's order a "victory of freedom of political speech." Institute for Justice spokesman Bill Maurer said 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."
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.
The Arizona law has been in effect for a decade, and most state legislators 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 in the Millionaire's Amendment, a Phoenix federal judge struck down Arizona's system of matching funds for candidates who faced well-heeled opponents. But the ruling did not void the principle of public funding.
The 9th U.S. Circuit Court of Appeals in San Francisco revived the full law this spring, however, and said the extra matching funds did not infringe on the free-speech rights of the millionaire candidates. The challengers appealed to the high court, seeking an emergency order to block distribution of the matching funds until the Supreme Court can 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 violate the First 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 said.
Loyola University law professor Richard Hasen, an election law expert, said the court's order signals that the justices are 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, and "it also shows a lot is up for grabs" in the campaign finance area.
First Published June 9, 2010 12:00 am