Jay P. Greene's Blog

(Guest Post by Matthew Ladner)

The U.S. Supreme Court delivered a resounding blow against government managed political speech by ruling the matching funds provision of the Arizona Clean Elections program unconstitutional.
Congratulations go out to the Goldwater Institute and the Institute for Justice for seeing this case through. Special credit especially goes to the Goldwater Institute’s Nick Dranias (pictured above), who recognized the opportunity to challenge this pernicious law and took extraordinary efforts to secure this victory.

Arizona established “Clean Elections” by a ballot measure in reaction to political scandals. The system went far beyond public financing for candidates, forcing candidates for Arizona offices to choose to run “clean” or “traditional.” If you ran “clean” you not only get money from the state from your campaign, the Clean Elections system would match funds raised by any traditional opponents.

In other words, the system skewed heavily against privately financed candidates, and created a huge disincentive for anyone to donate to a campaign in which a “clean” candidate had entered. More than anything else, the system worked as an incumbency protection racket. As an incumbent, you already had a certain amount of name identification. If you faced a challenger who needed in essence to spend money in order to acquire name identification, you could simply run “Clean” and quash them. As long as you hadn’t been arrested for robbing a liquor store, you were fine. If the liquor store you robbed were owned by a member of the opposite political party, you were probably still fine. Who in their right mind would donate money to a traditional candidate under such circumstances?

The scandals associated with the program, of course, were many. It didn’t take long for Republicans to dredge up some “Green Party” candidates to game the system. Teams of candidates entered elections with the real candidates running “Clean” while the dupe candidate running traditional in order to generate more “Clean” funds for the team. I kept waiting for someone to found a PAC called “Al Qaeda in Arizona” in order to make independent expenditures (also covered by Clean Elections) and trigger “Clean” money for preferred candidates.

The Clean Elections system certainly played a role in Janet Napolitano’s initial election victory, but also probably helped secure oversized Republican majorities in the legislature. Regardless of which party did a better job of using and abusing this system, by suppressing free political speech it was wrong. Over the last few years, the scales fell from the eyes of many former supporters I spoke with, who eventually gave up notions of trying to “fix” Clean Elections and quietly hoped that it would die. Some Republicans who had become expert at gaming the system privately complained about the suit.

Fortunately, the United Supreme Court struck down this free-speech suppressing nonsense. “If the matching funds provision achieves its professed goal and causes candidates to switch to public financing, . . . there will be less speech: no spending above the initial state-set amount by formerly privately financed candidates, and no associated matching funds for anyone. Not only that, the level of speech will depend on the State’s judgment of the desirable amount, an amount tethered to available (and often scarce) state resources,” the majority ruled. “The whole point of the First Amendment is to protect speakers against unjustified restrictions on speech, even when those restrictions reflect the will of the majority. When it comes to protected speech, the speaker is sovereign.”

Congrats to the Goldwater Institute and the Institute for Justice for this very important victory. Keep it up and someday political speech may enjoy as much 1st Amendment protection as pornography!