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Court Case

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

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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.