Last week, when the Supreme Court blocked the distribution of "matching funds" under Arizona's Citizens Clean Elections Act while it considers a constitutional challenge to the law, publicly financed candidates complained that the Court was changing the rules in the middle of an election campaign and depriving them of money they were expecting. It is hard to feel bad for them, not only because they chose to mooch off taxpayers instead of raising money from voluntary supporters but also because they were put on notice nearly two years ago that their subsidies were likely to be found unconstitutional. In October 2008, U.S. District Judge Roslyn Silver ruled (PDF) that the candidates challenging Arizona's campaign finance system "have shown a very strong likelihood of success on the merits," although she declined to issue a preliminary injunction at that point, with the general election less than a month away.
The commission that oversees Arizona's "clean elections" system claims (PDF) that Gov. Jan Brewer and other candidates who were counting on matching funds have no recourse: Although they still get basic funding, they won't get taxpayer money to match the spending of privately funded opponents, and they are not allowed to raise money on their own. Goldwater Institute attorney Nick Dranias, who challenged the Clean Elections Act along with Bill Maurer of the Institute for Justice, says the commission is misinterpreting the law:
There is nothing in the law that prohibits withdrawal from the Clean Elections system—provided taxpayer-funded candidates return their government subsidies and run with private financing. No provision in the Citizens Clean Elections Act addresses the issue of voluntary withdrawal from the system. And no rule prohibits the Commission from allowing candidates to withdraw from the system if they return their subsidies.
In interviews with the Phoenix New Times, Dranias and Clint Bolick, Goldwater's director of constitutional litigation, make the case against sympathy for publicly funded candidates:
"If they behaved reasonably," they would have a contingency plan," Dranias said. "After 19 months of rulings from the district court saying this is unconstitutional, no serious candidate would not be prepared for this contingency."
Added Bolick, "People who gambled that public subsidies would be available to them now are reaping the folly of such a gamble."
Look for my column about the case tomorrow.