Restraining Arizona

Fixing 'clean' elections

Campaign finance reformers see expanded public funding of candidates as an antidote to Citizens United v. FEC, the January decision in which the U.S. Supreme Court overturned restrictions on political speech by corporations. But their plans could be stymied by a case that reached a crucial juncture the day before that decision was announced.

In a ruling that was barely noticed at the time, U.S. District Judge Roslyn Silver concluded that Arizona's "clean elections" system, which subsidizes participating candidates so they can match the spending of their privately financed opponents, imposes a "substantial burden" on freedom of speech. By giving a dollar to each opponent of a privately funded candidate for every dollar he spends above a predetermined threshold, Silver ruled, the system in effect punishes the privately funded candidate for speaking. Although Silver's injunction against the subsidies was overturned by an appeals court in May, it was restored in June by the Supreme Court, which is deciding whether to hear the case.

It is well established that direct restrictions on campaign spending violate the First Amendment. The question posed by this case is whether Arizona is trying to achieve the same result indirectly. Institute for Justice attorney Bill Maurer, one of the lawyers representing the activists and politicians challenging Arizona's system, argues that "the purpose of this law was to limit individuals' speech by limiting their spending."