Matching Funds for Your Opponent No Big Deal, 9th Circuit Says


Today a federal appeals court rejected a First Amendment challenge to the "matching funds" provision of Arizona's Clean Elections Act. Under this law, participating candidates receive a taxpayer dollar for every private dollar spent by their unsubsidized opponents (or by groups that support them). In January, on the day before the Supreme Court overturned federal restrictions on political speech by corporations in Citizens United v. FEC, U.S. District Judge Roslyn O. Silver ruled that Arizona's system "burdens…First Amendment rights, is not supported by a compelling state interest, is not narrowly tailored, and is not the least restrictive alternative." The U.S. Court of Appeals for the 9th Circuit disagreed (PDF), saying the law "imposes only a minimal burden on First Amendment rights" and is therefore subject to "intermediate scrutiny," rather than the "strict scrutiny" applied by Silver. The 9th Circuit said Arizona's system "survives intermediate scrutiny because it bears a substantial relation to the State's important interest in reducing quid pro quo political corruption." The issue, which may ultimately be resolved by the Supreme Court, is timely because one of the responses proposed by critics of Citizens United is increased public subsidies for political campaigns.

The Institute for Justice, which represents the state legislator and political activists who brought the suit, has background here.