Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett

Supreme Court weakens public campaign financing by striking down awards of extra funds to opponents of high spending candidates.

The Issue: Candidates for state office challenged a provision of Arizona’s public campaign finance law that awarded additional funds to publicly financed candidates when their opponents exceeded certain spending or fundraising thresholds. The challengers argued that this provision violated the First Amendment rights of privately financed candidates because (1) their speech could be “chilled,” in that they might refrain from spending on their own speech in order to keep their opponents from receiving additional funds, and (2) if their spending triggered matching funds for their opponents, they would thereby in effect be “funding” speech that they oppose.

Why It Matters: A series of Supreme Court decisions striking down most restrictions on campaign spending and fundraising have left public financing as virtually the only viable means of limiting the role of money in politics. Without such limits it is virtually impossible to ensure that government is not beholden to those with the deepest pockets, that a variety of voices will be heard by the public, and that public service and participation in public debate will not become inaccessible for all but a privileged few. But public financing cannot work if candidates are deterred from participating by the fear of being hopelessly outspent. The promise of additional funding for opponents of high-spending candidates lessens this fear while accommodating the political and fiscal reality that the funds available for public financing are not limitless.

Public Good’s Contribution: PGLC authored a brief on the merits in the Supreme Court on behalf of former candidates for electoral office who had financed their own campaigns in substantial part, often in the face of campaign finance laws that awarded additional funds to their opponents or relaxed fundraising restrictions on their opponents in order to mitigate the advantages of well funded candidates. The brief explained that none of these candidates was ever deterred in any measure from broadcasting his own speech by concern that his spending would increase the resources of his opponents, that it would not make sense for them to limit their spending for this reason, and that even if they did, this would not amount to a “chill” on protected speech. The challenged provision made it easier for a variety of voices to be heard, thereby contributing to that robust exchange of ideas about issues of public concern which the First Amendment was intended to protect – and it did so without restricting anyone’s speech.

Amici Represented by Public Good: Public Good’s brief was filed on behalf of four Congressmen, two former Congressmen, a former Governor now Senator, and a former major party candidate for Senator and Governor, all of whom had contributed substantial funds to their own campaigns, most of them in contexts where their spending triggered provisions benefiting the campaigns of their opponents.

Outcome: The Supreme Court, in the 5-4 split that has become characteristic of its campaign finance decisions, struck down the challenged provision as violating the First Amendment, increasing (again) the dependence of politics on private money.

McComish v. Bennett, 653 F.3d 1106 (9th Cir. 2010), reversed, 131 S. Ct. 2806 (2011).

Download our brief filed in the Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett; McComish v. Bennett case.