McComish v. Bennett (Clean Elections)

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Case Background:

In 1998 Arizona voters narrowly approved a ballot initiative called the Clean Elections Act. The law set up a system of publicly financed election campaigns for candidates for statewide office and the state legislature.

Since its inception in 2000, several lawsuits claiming the system violates the First Amendment have been filed. One such lawsuit is still on appeal in federal court.

The Goldwater Institute filed its lawsuit, McComish v. Bennett, to challenge the "matching funds" provisions in the system based on a June 2008 U.S. Supreme Court decision in the Davis v. F.E.C. case. That case held that the goal of “leveling” electoral opportunities does not justify a campaign finance system in which “the vigorous exercise of the right to use personal funds to finance campaign speech produces fundraising advantages for opponents in the competitive context of electoral politics.” 

In January 2010, U.S. District Court Judge Roslyn Silver ruled that the matching funds portion of Clean Elections in unconstitutional under the First Amendment. The state appealed the decision to the Ninth Circuit Court of Appeals, and the Goldwater Institute filed an emergency request with U.S. Supreme Court Justice Anthony Kennedy to enact the permanent injunction issued by Judge Silver to strike down matching funds. Justice Kennedy denied the request without prejudice and indicated the Goldwater Institute can re-file if the Ninth Circuit does not rule by June, 2010.

In May 2010, the Ninth Circuit Court of Appeals declared that matching funds are constitutional and did not create a significant threat to First Amendment rights. The Institute immediately sent an emergency request for an injunction to the U.S. Supreme Court. On June 1, 2010 the Supreme Court denied the initial request for an injunction, but said the Institute could file another request provided that the Institute planned to appeal the Ninth Circuit decision. The Institute re-filed its request for an injunction with a pledge to file a timely appeal that same day.

On June 8, 2010, the Supreme Court issued an order to enforce the District Court's injunction against the use of matching funds. The Supreme Court's order says the injunction will remain into effect until the Court rules on the underlying appeal of the Ninth Circuit decision. The injunction also would be lifted if the Supreme Court decides not to consider the formal appeal, the order says.

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:

• 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.

Press Releases:

• 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 explains the Goldwater Institute's hearing on Clean Elections
  KFYI 550 AM, January 13, 2010
• "Federal judge voides public financing provision"
  Howard Fischer, East Valley Tribune, August 29, 2008
• Nick Dranias details the Citizens United Amicus Brief
  Channel 3 News, August 24, 2009
• "Suit seeks to derail Arizona's Clean Elections Law"
  Howard Fischer, East Valley Tribune, August 23, 2008

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"

How can I help?

• The stakes are high, help build positive press. Write letters to the editor for your local newspaper and let them know how you feel.
• The Goldwater Institute's Scharf-Norton Constitutional Litigation Center is able to defend your constitutional freedom because of the generous donations of private individuals.  R. Evan Scharf and John R. Norton III have arranged for a $1 million challenge grant to establish and fund the Goldwater Institute Scharf-Norton Center for Constitutional Litigation.  To donate to the litigation center or become a member of the Goldwater Institute, please call (602) 462-5000.

Learn more about the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation.