Broad Bipartisan Support of Arizona’s Public Financing System

Bill Bradley, Alan Simpson and Others File Amicus Briefs With the U.S. Supreme Court in McComish v. Bennett

Contact: Jeanine Plant-Chirlin, jeanine.plant-chirlin@nyu.edu  (646–292–8322)

New York – Arizona’s public campaign financing system — at issue in a high-profile case before the U.S. Supreme Court — drew support yesterday from a prominent group of bipartisan political leaders, business executives, constitutional law experts, and political scientists.

The case, McComish v. Bennett, concerns the constitutionality of one aspect of the state’s program — “triggered matching funds.” These funds award additional grants to publicly-financed candidates facing high-spending opponents or high-spending outside groups.

Among the leaders supporting Arizona’s law:

• Charles Fried (former Solicitor General under President Ronald Reagan)
• Bill Bradley (former Democratic Senator, New Jersey)
• Bob Kerrey (former Democratic Governor and Senator, Nebraska)
• Sam Nunn (former Democratic Senator, Georgia)
• Warren Rudman (former Republican Senator, New Hampshire)
• Alan Simpson (former Republican Senator, Wyoming)
• Christine Todd Whitman (former Republican Governor, New Jersey)
• Charles Kolb (President, Committee on Economic Development)
• Heather Gerken (Professor, Yale Law School)
• Richard Pildes (Professor, New York University School of Law)
• Richard Briffault (Professor, Columbia Law School)
• Norman Dorsen (former President, ACLU)
• Costas Panagopoulos (Professor & Director of Center for Electoral Politics, Fordham University)

“Petitioners attempt to portray Arizona’s law as a restriction on speech, when in fact it is their position that would have a restrictive effect on political discourse,” reads the amicus brief submitted by Charles Fried on behalf of a bipartisan group of former elected officials, including Bill Bradley, Bob Kerrey, Sam Nunn, Warren Rudman, Alan Simpson, and Christine Todd Whitman. “They challenge a regime that silences no one, prohibits no speech, and only enables additional speech. To make their counterintuitive point that Arizona’s law is nonetheless constitutionally defective, Petitioners must argue that, because the Arizona law enables more speech, it somehow has impermissibly interfered with their ability to speak as much as they want on any subject they choose. This objection depends on a premise that this Court in many ways and contexts has firmly rejected.”

“Petitioner asks this Court to accept, on faith alone, the premise that no ‘rational person’ would want to raise and spend money if it means it would trigger additional public funds for his or her opponent, and that ‘anyone who takes ideas seriously’ will be chilled by that prospect,” states the amicus brief submitted by the City of New York and the City and County of San Francisco. “Many years of practical experience, however, demonstrate that trigger funds have no impact on the campaign spending of non-participants, as Arizona, New York City, San Francisco, and others can attest.”

“What do Amici’s analyses and findings affirmatively demonstrate? (A) There is no statistically significant evidence of clustering below the triggering amount in Arizona elections between 2006 and 2010; and (B) Spending in Arizona’s 2010 election, after the Court enjoined enforcement of the matching funds provision, did not increase relative to other states,” reads the amicus brief submitted by a group of political scientists, including Costas Panagopoulos, Ryan D. Enos, and Conor M. Dowling. “[This] research, analyses and findings conclusively establish that the matching funds provision does not deter or otherwise ‘chill’ the propensity to speak by nonparticipating candidates and their supporters.”

“[T]here is no evidence of constitutional injury to warrant shutting down Arizona’s and others states’ development of public funding systems using supplemental funding triggers,” states the amicus brief submitted by constitutional and election law professors, including Richard Briffault, Heather Gerken, and Richard Pildes, among many others. “Instead, the existing data support the conclusion that Arizona’s measure enhances overall speech without burdening the speech of any campaign participants. The Court should, therefore, permit Arizona and other states to continue experimenting with campaign finance regulations, including public funding systems that utilize the kind of trigger mechanism that Arizona employs.”

In addition, Acting United States Solicitor General Neal Katyal submitted a brief on behalf of the United States, which states: “The matching-funds provision of the Arizona Act is consistent with the First Amendment because it does not ‘abridg[e] the freedom of speech.’ This Court’s precedents make clear that Arizona’s provision of public funds to participating candidates does not, in and of itself, violate the First Amendment rights of candidates who choose to finance their own campaigns. …The matching-funds provision is designed to create adequate incentives for candidates to choose public financing, thereby allowing the Act to achieve its important purposes, without wasting scarce public resources.”

On March 28, the Brennan Center, with its pro bono counsel Munger, Tolles & Olson LLP, will defend the law in the Supreme Court on behalf of its client the Arizona Clean Elections Institute. Bradley Phillips of Munger Tolles is expected to argue the case, as is the U.S. Solicitor General’s office.

For more information about the case, read our case page here.

If you have questions, please contact Jeanine Plant-Chirlin at jeanine.plant-chirlin@nyu.edu or at 646–292–8322.