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Arizona Free Enterprise Club v. Bennett

The Brennan Center, with its pro bono partner, defended the Arizona Clean Elections law in front of the Supreme Court in Arizona Free Enterprise Club v. Bennett, a case challenging one provision of Arizona’s public financing system—triggered matching funds.

Published: June 27, 2011

On June 27, 2011, the Supreme Court ruled 5–4 to throw out a provi­sion of Arizon­a’s public campaign finan­cing system. The Bren­nan Center, with its pro bono part­ner Munger, Tolles & Olson LLP, fought to preserve the law so ordin­ary citizens could have a voice in campaigns. In opin­ion writ­ten by Justice Roberts the Court broadly held that:

(1)   The triggered match­ing fund provi­sions of Arizon­a’s public finan­cing system substan­tially burden free speech of privately financed candid­ates and inde­pend­ent expendit­ure groups without fulfilling a compel­ling govern­ment interest.

(2)   Public finan­cing is an accept­able vehicle to combat corrup­tion or the appear­ance of corrup­tion so long as it is “pursued in a manner consist­ent with the First Amend­ment,” but Arizon­a’s program went “too far” (29).

Accord­ingly, the Court over­turned the Ninth Circuit decision and inval­id­ated trig­ger fund provi­sions in Arizona and in other public campaign finan­cing programs, while affirm­ing the consti­tu­tion­al­ity of public finan­cing programs without such provi­sions.

The Major­ity Opin­ion:

Quot­ing from the Supreme Court’s decision in Davis v. FEC, 128 S. Ct. 2759 (2008), which struck down a provi­sion of the BCRA  that triggered higher contri­bu­tion limits for federal candid­ates facing wealthy self-finan­cing oppon­ents, Justice Roberts found that Arizon­a’s program

“plainly forces the privately financed candid­ate to ‘shoulder a special and poten­tially signi­fic­ant burden’ when choos­ing to exer­cise his First Amend­ment right to spend funds on behalf of his candid­acy.”  (11)

“The penalty imposed by Arizon­a’s match­ing funds provi­sion is differ­ent in some respects from the penalty imposed by the law we struck down in Davis. But those differ­ences make the Arizona law more consti­tu­tion­ally prob­lem­atic, not less.” (Id.)

The Dissent:

Justice Kagan penned a force­ful dissent:

“Except in a world gone topsy-turvy, addi­tional campaign speech and elect­oral compet­i­tion is not a First Amend­ment injury.” (9)

“This suit, in fact, may merit less atten­tion than any chal­lenge to a speech subsidy ever seen in this Court….Arizona, remem­ber, offers to support any person running for state office. Peti­tion­ers here refused that assist­ance. So they are making a novel argu­ment: that Arizona viol­ated their First Amend­ment rights by disburs­ing funds to other speak­ers even though they could have received (but chose to spurn) the same finan­cial assist­ance. Some people might call that chutzpah.” (12)

“Robust campaigns lead­ing to the elec­tion of repres­ent­at­ives not beholden to the few, but account­able to the many. The people of Arizona might have expec­ted a decent respect for those object­ives. Today, they do not get it.” (32)


The Bren­nan Center’s Brief for Respond­ents

On Febru­ary 14 2011, the Bren­nan Center for Justice – serving as coun­sel for defend­ant-inter­venor Clean Elec­tions Insti­tute – filed a brief for the respond­ents in Arizona Free Enter­prise Club v. Bennett. The brief urged the Court not to apply strict scru­tiny to the triggered match­ing funds provi­sion, as it promoted rather than directly regu­lat­ing speech in any manner. As evid­ence that the provi­sion did not burden candid­ate speech, the brief argued that privately financed candid­ates spent either well below or above the trig­ger threshold and that spend­ing on inde­pend­ent expendit­ures increased precip­it­ously since the estab­lish­ment of the program.

Brief of Bren­nan Center for Defend­ant-Intevernor Clean Elec­tions Inst.


Back­ground on the Case

Arizon­a’s Clean Elec­tions law – enacted after outrageous state corrup­tion scan­dals in 1998 – provides public fund­ing for legis­lat­ive and statewide candid­ates who qual­ify and agree to forgo private fundrais­ing. The law also contained “trig­ger match­ing funds,” which were issued to parti­cip­at­ing candid­ates who faced high-spend­ing, non-parti­cip­at­ing oppon­ents or outside groups. Such funds provided publicly funded candid­ates with addi­tional grants when their oppon­ents or third parties spent more than a threshold “trig­ger” amount against them. Trig­ger match­ing funds enabled states such as Arizona to provide publicly funded candid­ates with enough money to run in compet­it­ive races while avoid­ing the waste of public funds on uncom­pet­it­ive races.

On May 21, 2010, the Ninth Circuit unan­im­ously upheld the consti­tu­tion­al­ity of the Act—over­turn­ing an Arizona District Court. On May 24, 2010, Plaintiffs peti­tioned the Supreme Court to vacate the appel­late stay by May 28, 2010 in order to block the distri­bu­tion of match­ing funds to candid­ates parti­cip­at­ing in the state’s public finan­cing system in 2010. On June 8, 2010 the Supreme Court gran­ted plaintiffs’ peti­tion pending the Court’s certi­or­ari decision. On Novem­ber 29, 2010 the Supreme Court gran­ted certi­or­ari in this litig­a­tion. The Bren­nan Center, on behalf of our client the Arizona Clean Elec­tions Insti­tute, submit­ted its brief on Febru­ary 14, 2011. For a press release about the Court’s decision click here.


Related Court Docu­ments

US Supreme Court Opin­ions

US Supreme Court Merit Briefs

US Supreme Court Amicus Briefs

In Support of Respond­ents

In Support of Peti­tion­ers

Other US Supreme Court Docu­ments

Court Decisions

U.S. Court of Appeals Briefs

U.S. District Court Briefs


Brad­ley S. Phil­lips, Grant A. Davis-Denny and Eliza­beth J. Neubauer of Munger, Tolles & Olson LLP are co-coun­sel on the brief.