Court skeptical of Ariz. campaign finance law


Associated Press
Court skeptical of Ariz. campaign finance law
By Mark Sherman
March 28, 2011


WASHINGTON — The Supreme Court appeared poised Monday to strike down a provision of a campaign financing system in Arizona that gives extra cash to publicly funded candidates who face privately funded rivals and independent groups.

Such a decision would be another blow to public campaign financing, once thought of as an antidote to the corrupting influence of money in politics. President Barack Obama has been the most prominent example of politicians who have abandoned public financing because they can raise far more money privately.

The justices heard arguments in a challenge to the Arizona system that gives candidates who opt for public financing up to two times their base amount when they’re outspent by privately funded rivals or targeted by independent group spending.

The court’s conservative-leaning justices, who have issued a string of decisions upending campaign finance laws in the past five years, appeared skeptical of the Arizona law because it, in their view, is designed to level the playing field for all candidates. The court has said such leveling often runs afoul of the First Amendment.

Among the recent rulings were last year’s Citizens United decision that removed most limits on election spending by corporations and organized labor, and a 2008 decision that voided the federal “millionaire’s amendment” to increase contribution limits for congressional candidates facing wealthy opponents. Both decisions were ideologically split 5-4 votes in which the conservative justices prevailed.

On Monday, several justices seized on the contention that the law discourages candidates and independent groups from spending money when they know it will result in more money going to the candidate they oppose.

“Just as a common-sense matter, if I’m someone with the capacity and will to make an independent expenditure, why don’t I think twice?” Justice Anthony Kennedy asked.

Bradley S. Phillips, the Los Angeles-based lawyer defending the law, said it encourages more competition by ensuring that publicly funded candidates have the chance to run credible races.

Phillips said the system is strictly voluntary. Candidates decide whether to take public funds, and if so, they agree not to raise any private money.

William Maurer, the Seattle-based lawyer for the challengers, said elections are a “zero-sum game,” and that what benefits one candidate, harms the opponent. Tying disbursements of campaign funds to the activities of privately funded candidates means “each time they speak, the more work that they do, the more their opponents benefit,” Maurer said.

The law was enacted by voters in the aftermath of a public corruption scandal in Arizona in the 1990s.

Four other states, Maine, New Mexico, North Carolina and Wisconsin, have similar “trigger” provisions that affect some political races, and could be vulnerable if the Supreme Court strikes down the Arizona provision. Another state, Connecticut, changed its law to eliminate its trigger after a federal appeals court struck it down.

Los Angeles and New York are among big cities that also provide public money to candidates.

Retired Justice Sandra Day O’Connor sat through part of the argument dealing with a law from her native Arizona. O’Connor looked more favorably on campaign finance restrictions than does her successor, Justice Samuel Alito.

Alito seemed to suggest that giving a publicly funded candidate campaign money in one lump sum – so that the amount of money does not depend on an opponent’s campaign activity – could resolve the potential First Amendment problems in Arizona’s law.

Justice Elena Kagan seemed strongly supportive of the Arizona law.

“I think the purpose of this law is to prevent corruption,” Kagan said. “That’s what the purpose of all public financing systems are.”

But there appeared to be five votes to rule otherwise.

Doug Kendall, head of the liberal interest group Constitutional Accountability Center, attended the argument and said afterward that the court seemed ready to “gut an effort by Arizona to expand speech while combating the worst public corruption scandal in the state’s history.”

A decision should come by summer.

The cases, joined together at the high court, are Arizona Free Enterprise v. Bennett, 10-238, and McComish v. Bennett, 10-239.