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.)
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.
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
- Brennan Center Brief for Respondents
- State of Arizona Brief for Respondents
- Goldwater Institute Brief for Petitioners
- Institute for Justice Brief for Petitioners
US Supreme Court Amicus Briefs
In Support of Respondents
- Former Elected Officials Amicus Brief in Support of Respondents
- Charles Fried, Bill Bradley, Bob Kerrey, Sam Nunn, Warren Rudman, Alan Simpson, Christine Todd Whitman, et al.
- Former State Supreme Court Justices Amicus Brief in Support of Respondents
- New York, San Francisco and the Counsel for International Municipal Lawyers Association Amicus Brief in Support of Respondents
- Political Scientists Amicus Brief in Support of Respondents
- Professors of Constitutional and Election Law Amicus Brief in Support of Respondents
- Richard Briffault, Heather Gerken, Richard Pildes, et al.
- United States Amicus Brief in Support of Respondents
- Former ACLU Officials Amicus Brief in Support of Respondents
- Norman Dorsen and Burt Neuborne
- The Committee for Economic Development Amicus Brief in Support of Respondents
- Constitutional Scholars Amicus Brief in Support of Respondents
- Bruce Ackerman, Lawrence Lessig, Zephyr Teachout, Adam Winkler
- Anthony Corrado, Thomas Mann and Norman Ornstein Amicus Brief in Support of Respondents
- Campaign Legal Center Amicus Brief in Support of Respondents
- Center for Governmental Studies Amicus Brief in Support of Respondents
- SEIU Amicus Brief in Support of Respondents
- Self-Financing Candidates Amicus Brief in Support of Respondents
- Maine Citizens for Clean Elections Amicus Brief in Support of Respondents
- The States of Iowa, Connecticut, Maryland, New Mexico and Vermont Amicus Brief in Support of Respondents
- Union for Reform Judaism Amicus Brief in Support of Respondents
In Support of Petitioners
- Center for Competitive Politics Amicus Brief in Support of Petitioners
- Justice and Freedom Fund Amicus Brief in Support of Petitioners
- Yankee Institute for Public Policy Amicus Brief in Support of Petitioners
- Former FEC Officials Amicus Brief in Support of Petitioners
- Gun Owners of America Amicus Brief in Support of Petitioners
- Wyoming Liberty Group Amicus Brief in Support of Petitioners
- Senator Mitch McConnell Amicus Brief in Support of Petitioners
- Cato Institute Amicus Brief in Support of Petitioners
Other US Supreme Court Documents
- Supreme Court Certiorari
- Brennan Center Brief in Opposition to Petition for a Writ of Certiorari
- Plaintiffs’ Renewed Emergency Application to Vacate Appellate Stay
- Defendant’s Response to Renewed Emergency Application to Vacate Appellate Stay
- Defendant Intervenor’s Response to Renewed Emergency Application to Vacate Appellate Stay
- Plaintiffs’ Reply to Response to Renewed Emergency Application to Vacate Appellate Stay
- Plaintiff Intervenors’ Response in Support of Emergency Application to Vacate Appellate Stay
- Justice Kennedy’s Order Denying Application to Vacate Stay
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.