Case Background:
The Goldwater Institute has partnered with the Institute for Justice to bring an end to the use of matching funds as part of the Arizona Citizens Clean Elections Act. Narrowly passed by voters in 1998, the act uses taxpayer money in an attempt to level the financial playing field between candidates for state offices.
This matching funds provision was challenged by two lawsuits – McComish v. Bennett and Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett – which have been consolidated. The U.S. Supreme Court heard oral arguments on March 28 to reverse a decision of the Ninth Circuit Court of Appeals that upheld matching funds. On June 27, 2011, the High Court reversed the Ninth Circuit Court of Appeals and declared matching funds unconstitutional.
Here's how the provision works: If a privately funded candidate raises or spends money beyond a specific limit, an unelected state commission gives approximately the same amount of taxpayer money to all publicly funded opponents. In addition, if a person or group makes an independent expenditure in favor of a privately financed candidate, the commission also gives the same amount of money to all opponents funding their campaigns with tax dollars.
In effect, the state government is using public money to dilute the political speech of one group and promote the political speech of another.
In January 2010, U.S. District Court Judge Roslyn Silver ruled the matching funds portion of the Clean Elections Act violated the First Amendment and issued an injunction against it. The Citizens Clean Elections Commission appealed this decision to the Ninth Circuit Court of Appeals, which declared the scheme constitutional.
In a rare and unusual move, the Supreme Court stayed the Ninth Circuit’s decision and reinstated the injunction against matching funds before hearing oral arguments and ultimately ruling matching funds unconstitutional.
The Stakes:
- The protection of the First Amendment rights of candidates who chose not to participate in the taxpayer-subsidized election finance system.
- The elimination of government interference in campaign activities.
Case Documents:
- June 27, 2011 U.S. Supreme Court ruling
- March 15, 2011 Reply Brief
- January 12, 2011 Merits Brief--Supreme Court
- November 29, 2010 Certiorari Granted--U.S. Supreme Court decides to hear case
- October 28, 2010 Reply in Support of Request for Supreme Court to Accept Appeal From the Ninth Circuit
- August 17, 2010 Formal Appeal to U.S. Supreme Court
- July 13, 2010 Second Circuit Court of Appeals ruling on Connecticut's matching funds provisions
- June 8, 2010 U. S. Supreme Court blocks dispersal of Clean Elections matching funds
- June 7, 2010 Appendix of Reply to State's Response to Application to U.S. Supreme Court for Injunction
- June 7, 2010 Reply to State's Response to Application to U.S. Supreme Court for Injunction
- June 7, 2010 State's Response to Application to U.S. Supreme Court for Injunction
- June 1, 2010 Second Application to U.S. Supreme Court for Injunction
- May 24, 2010 Reply to Response to Renewed Emergency Application to U.S. Supreme Court for Injunction
- May 24, 2010 Emergency Application to U.S. Supreme Court for Injunction
- May 21, 2010 Ninth Circuit's Ruling
- March 2, 2010 Appellee's Brief to the Ninth Circuit Court of Appeals
- February 16, 2010 Justice Kennedy's Decision on Application to Vacate Stay
- February 8, 2010 Plaintiff's Declarations in Support of Emergency Application to Vacate Stay
- February 8, 2010 Final Supplemental Brief in Support of Emergency Application to Vacate Stay
- February 3, 2010 Application to Vacate Stay Appendix II
- February 3, 2010 Application to Vacate Stay Appendix I
- February 3, 2010 Emergency Application to Vacate Stay
- January 29, 2010 Appendix in Support of Combined Response to Defendant's Emergency Motions for Appellate Stay
- Combined Response to Defendant's Emergency Motions for Appeallate Stay
- Denial of Emergency Motion to Vacate (with a dissent)
- Declaration of John Munger
- Declaration of John McComish
- Declaration of Jack Harper
- Emergency Motion to Vacate Stay
- Affidavit of Margaret Dugan
- Judge Silver's Order
- Supplemental Declaration of Marcus Osborn in Support of Proposed Order to Enter Permanent Injunction
- Supplemental Brief Addressing Issues Raised in January 15, 2010 Court Order
- Proposed Order
- Response in Support of Supplemental Brief Addressing Issues Raised in January 12, 2010 Court Order
- Supplemental Brief Addressing Issues Raised in January 12, 2010 Court Order
- Declaration of Buz Mills
- Rebuttal Declaration of John Munger
- Reply Memorandum in Support of Plaintiffs' Second Motion for Preliminary Injunction
- Rebuttal Declaration of Marcus Osborn, Ph.D. in Support of Second Preliminary Injunction
- Rebuttal Declaration of Tony Bouie in Support of Second Motion for Preliminary Injunction
- Affidavit of Margaret Dugan
- Affidavit of Governor Brewer’s candidate committee opposing preliminary injunction against matching funds
- Plaintiffs' Second Motion for Preliminary Injunction
- Memorandum in Support of Plaintiffs' Second Motion for Preliminary Injunction
- Plaintiffs' Reply to Defendant-Intervenor's Memorandum in Opposition to Plaintiffs' Motion for Summary Judgment
- Plaintiffs' Reply to Defendants' Memorandum in Opposition to Plaintiffs' Motion for Summary Judgment
- Plaintiffs' Reply to Defendants/Defendant Intervenors Joint Statement of Additional Facts
- Plantiff's Memorandum of Law in Opposition to Defendant's/Defendant-Intervenor's Motion for Summary Judgment
- Facts Identifying Evidence in Support of Goldwater Institute Position
- Plaintiff's Expert Declaration
- Plaintiff's Separate Statement of Fact
- Memo in Support for Summary Judgment
- Expert Report on Behalf of the Plaintiffs
- Osborn Supplemental Report
- Osborn Rebuttal Report
- Judge Silver's Memorandum Decision
- Goldwater Institute Refutes State's Defense of Clean Elections
- First Amended Complaint
- Motion For Preliminary Injunction
- Judge Silver's Decision
- Tony Bouie Declaration
- Doug Sposito Declaration
- Motion for a Temporary Restraining Order
Case Timeline:
August 21, 2008: Case filed in U.S. District Court.
July 17, 2009: Deadline for opposition brief.
July 31, 2009: Deadline for reply brief.
August 7, 2009: Hearing deadline.
January 5, 2010: Goldwater Institute files preliminary injunction asking Judge Silver to stop the issuance of matching funds for the 2010 election.
January 15, 2010: 1:30PM hearing on motions for summary judgment in U.S. Federal District Court, 401 W. Washington Street, Phoenix, Judge Roslyn Silver's courtroom #624.
January 20, 2010: Judge Silver strikes down Clean Elections as unconstitutional, but puts a stay on her order that allows for the state to appeal.
January 27, 2010: Goldwater Institute asks 9th Circuit Court of Appeals to remove the stay and strike down the matching funds provision of Clean Elections immediately. It is refused.
February 3, 2010: Goldwater Institute files emergency appeal to repeal the stay on Judge Silver's order with Supreme Court Justice Anthony Kennedy. The appeal is refused and gives the 9th Circuit until June 1st to rule on the appeal by the state.
May 21, 2010: 9th Circuit rules in favor of the state in appeal, saying that Clean Elections' matching funds is constitutional.
May 24, 2010: Goldwater files emergency appeal to lift the stay and block matching funds so they have time to appeal.
June 1, 2010: Justice Kennedy refuses appeal, citing that Goldwater needed to state an intent to appeal the decision. Goldwater Institute files a third application to lift stay adding its intent to appeal the 9th Circuit's decision.
June 8, 2010: U.S. Supreme Court grants Goldwater Institute's request to halt matching funds.
August 17, 2010: Goldwater Institute makes formal appeal to U.S. Supreme Court.
November 29, 2010: U.S. Supreme Court agrees to consider formal appeal.
March 28, 2011: U.S. Supreme Court heard oral arguments.
June 27, 2011: U.S. Supreme Court reverses Ninth Circuit Court of Appeal's ruling and declares matching funds unconstitutional.
Press Releases:
- Supreme Court Declares Arizona’s Matching Funds System Unconstitutional
- U.S. Supreme Court Will Decide Fate of ‘Matching Funds’ to Political Campaigns
- U.S. Supreme Court Blocks Release of Campaign Matching Funds
- Goldwater Institute asks Justice Kennedy to Protect Free Speech from Ninth Circuit
- Judge Strikes Down Matching Funds Portion of Clean Elections
- Candidates File Lawsuit Against Clean Elections
Media Coverage:
- Various newspaper coverage of U.S. Supreme Court's Clean Elections decision
- Nick Dranias on the argument that could end Clean Election matching funds
CBS 5 News, January 19, 2010 - Report on Goldwater Institute Clean Elections Forum
KAET, January 14, 2010 - Nick Dranias details the Citizens United Amicus Brief
Channel 3 News, August 24, 2009
Read more about Clean Elections:
- 2006 Goldwater Institute Report: "Campaign Promises: A Six-year Review of Arizona’s Experiment with Taxpayer-financed Campaigns"
- 2001 Goldwater Institute Report: "Is Cleanliness Political Godliness?: Arizona's Clean Elections Law after Its First Year"
