Free Speech and Quid Pro Quo: The Case of Arizona Free Enterprise Club's Freedom Club PAC v. Bennett

Transcription

1 From the SelectedWorks of Wes Larsen March 3, 2012 Free Speech and Quid Pro Quo: The Case of Arizona Free Enterprise Club's Freedom Club PAC v. Bennett Wes Larsen Available at:

2 Free Speech and Quid Pro Quo: The Case of Arizona Free Enterprise Club's Freedom Club PAC v. Bennett Wes S. Larsen Word Count: 9,638 (inclusive of Table of Contents and footnotes) One of the most pressing issues attached to any political race is the need for campaign finance reform. This necessity is especially urgent for governments that have suffered from intense political scandals, such as those that occurred in Arizona during the latter part of the last century. To curb future political corruption, Arizona passed the Arizona Citizens Clean Election Act of 1998, which set specific limitations on private campaign spending and implemented trigger mechanisms to cut off public funding for state office candidates upon use of private funds. As practical as the Arizona law may have been, however, the U.S. Supreme Court recently found that the limitations the law placed on individual and third-party speech were not aligned with the U.S. Constitution, and struck the trigger portions of the statute. This Article explores the history of campaign finance reform as it relates to the Court s ruling, discusses the implications of the ruling, and investigates the options that Arizona and other governments in the U.S. have in curbing political corruption while walking the tightrope created by federal constitutional law.

3 Table of Contents I. Introduction... 3 II. Historical Background... 5 A. Campaign Expenditure Limitations: Buckley v. Valeo... 6 B. Campaign Finance Reform Anew: Davis v. Federal Election Commission... 7 C. Corporate Free Speech: Citizens United v. Federal Election Commission... 9 III. Arizona Free Enterprise Club's Freedom Club PAC v. Bennett A. Corruption and the Arizona Citizens Clean Election Act of B. The Ninth Circuit: McComish v. Bennett C. The Supreme Court Majority s Opinion Dissenters Opinion IV. Did the Court Get it Right? A. Current Implications B. Future Implications C. Propositions V. Conclusion

4 Free Speech and Quid Pro Quo: The Case of Arizona Free Enterprise Club's Freedom Club PAC v. Bennett I. Introduction Perhaps one of the largest controversies that exists in state and federal elections in the United States today is the notorious issue of campaign financing. For example, according to one online commentator, The historic election of 2008 re-confirmed one truism about American democracy: Money wins elections. 1 In a world where money seems to reign supreme, voters may question whether a winning candidate prevailed in her particular election because people legitimately sided with her ideologies, or because she simply had more campaign funds for advertising and research. Voters may also wonder whether the winning candidate will be expected to provide quid pro quo political favors for her campaign fund donors, regardless of her constituents needs and desires. In the face of this looming topic, multiple jurisdictions within the U.S. have tried their hand at reforming campaign finance so as to level the balance for opposing candidates. The federal government, for example, has attempted countless times to curb campaign spending through the Federal Election Campaign Act of 1971, 2 the Bipartisan Campaign Reform Act of 2002, 3 and other laws. 4 Likewise, states such as Arizona and Maine have struggled to restructure campaign financing for state elections. 5 Yet without fail, the controversy of campaign financing 1 Communications, Money Wins Presidency and 9 of 10 Congressional Races in Priciest U.S. Election Ever, OPENSECRETS.ORG (Nov. 2, 2008, 3:19 PM), 2 Federal Election Campaign Act of 1971, 2 U.S.C (1971). 3 Bipartisan Campaign Reform Act of 2002, 2 U.S.C. 441a-1 (2002). 4 See, e.g., Tillman Act of 1907, ch. 420, Pub. L. No. 36, 34 Stat (1907); Hatch Act of 1939, Pub L. No , 53 Stat (1939) (current version codified at 5 U.S.C (2006)); Federal Corrupt Practices Act, 15 U.S.C. 78dd-1(a)(1) (2006). 5 See Arizona Citizens Clean Election Act of 1998, ARIZ. REV. STAT. ANN (2011); see also Maine Clean Election Act, ME. REV. STAT. tit. 21-A, (2008). 3

5 continues to rear its ugly head each time voters hit the polls, with seemingly more criticism elicited during close elections. An interesting case in point involves the Arizona Citizens Clean Election Act of 1998, 6 which that state s legislature passed in the face of a handful of notorious state campaign funding scandals. 7 Under the Act, a candidate for state office would qualify for exclusive public funding for her campaign by meeting certain requirements, including refraining from receiving or spending private funds. 8 Candidates who did receive private funding from any source were automatically disqualified from public campaign grants. 9 In addition, publicly-funded candidates were given matching funds for any monies spent by privately-funded candidates (and independent groups in support of privately-funded candidates) which exceeded the initial allotment granted to the publicly-funded candidate. 10 However, a group of political action committees and Arizona candidates sued the Arizona Secretary of State in an effort to have the ACCEA overturned as unconstitutional. 11 In a close, 5-4 decision, the Supreme Court of the United States found that the matching funds provision of the ACCEA placed a substantial burden on the free speech of both privately-funded candidates and the interest groups and others who support them. 12 The Arizona Free Enterprise Club's Freedom Club PAC v. Bennett 13 Court hence held the Act up to the fire of strict scrutiny, and found that it failed to pass the test ARIZ. REV. STAT. ANN (A). 7 ; McComish v. Bennett, 611 F.3d 510, 514 (9th Cir. 2010). 8 ARIZ. REV. STAT. ANN (B). 9 Ariz. Free Enter. Club's Freedom Club PAC v. Bennett, 131 S. Ct (2011). 10 ARIZ. REV. STAT. ANN (A). 11 Bennett, 131 S. Ct. at at In order to differentiate between this Supreme Court case and the Ninth Circuit case of McComish v. Bennett (discussed infra), I will use the term Bennett to refer to the higher Court s case, and McComish to refer to the circuit court case. 14 Bennett, 131 S. Ct. at

6 According to the Court, Arizona had no compelling interest in the matching funds provision of the Act, despite the state s desire to curb campaign funding corruption. 15 As with many Supreme Court decisions, a looming question arises regarding the Bennett holding: Did the Court get it right, and if so then where did the Arizona Legislature go wrong? This Article provides a historical background of campaign finance reform as reviewed by the Supreme Court in a handful of prominent cases; the Article then dissects the Bennett case itself, discussing both the majority and dissenting opinions. Finally, the Article ponders on the shortand long-term implications that the Court s decision in Bennett will have on campaign financing throughout the nation, and discusses reform options that U.S. and other jurisdictions can explore in an effort to rid their governments of campaign finance corruption. II. Historical Background The Bennett case is not unique in its line of thought; it actually is but the latest ruling in a well-established series of Supreme Court precedent discussing campaign finance reform. Chief among these cases are Buckley v. Valeo, 16 Davis v. Federal Election Commission, 17 and the highly controversial Citizens United v. Federal Election Commission, 18 which President Barack Obama openly criticized in his 2010 State of the Union Address. 19 The following subsections will discuss these three cases and the ways in which each one set the scene for the Bennett ruling U.S. 1 (1976) U.S. 724 (2008) S. Ct. 876 (2010). 19 See President Barack Obama, State of the Union Address (Jan. 27, 2010), in 156 CONG. REC. H418 (daily ed. Jan. 27, 2010). 5

7 A. Campaign Expenditure Limitations: Buckley v. Valeo One of the initial efforts in America to regulate campaign financing was found in the Federal Election Campaign Act (FECA), which originally passed Congress in 1972 and was amended in 1974 to include campaign expenditure limitations. 20 Upon passage of the 1974 amendments, FECA did everything from placing limits on individual political contributions and mandating disclosure of campaign contributors to setting expenditure caps for certain types of campaign spending. 21 One of the Act s provisions, in particular, stated that no person shall make contributions to any candidate with respect to any election for Federal office which, in the aggregate, exceed $1, The Act also placed limits on candidates ability to use family or personal funds on their own campaigns, and on the amount they could spend in running for office. 23 Opponents of the 1974 amendments asserted that the statute s limitations on political spending violated the First Amendment s guarantee of free speech. 24 This argument, as well as other assertions including that FECA s disclosure rules infringed on the constitutional right to freedom of association, formed the basis of the Buckley complaint. 25 In analyzing FECA s funding limitation mandates, the Buckley Court recognized the First Amendment issues at hand, and therefore reviewed the controversial provisions with strict scrutiny. 26 As part of its analysis of the statute s text, the Court stated that although the Act's contribution and expenditure limitations both implicate fundamental First Amendment interests, its expenditure ceilings impose significantly more severe restrictions on protected freedoms of 20 2 U.S.C. 431 (1974) Davis, 554 U.S. at Buckley, 424 U.S. at at at 75. 6

8 political expression and association than do its limitations on financial contributions. 27 In finding the expenditure limits to be unconstitutional, the Court declared: The Act's expenditure ceilings impose direct and substantial restraints on the quantity of political speech. The most drastic of the limitations restricts individuals and groups, including political parties that fail to place a candidate on the ballot, to an expenditure of $1,000 relative to a clearly identified candidate during a calendar year. Other expenditure ceilings limit spending by candidates, their campaigns, and political parties in connection with election campaigns. It is clear that a primary effect of these expenditure limitations is to restrict the quantity of campaign speech by individuals, groups, and candidates. The restrictions, while neutral as to the ideas expressed, limit political expression at the core of our electoral process and of the First Amendment freedoms. 28 Thus, the take-away from Buckley was that, while limiting contributions to a candidate was not unlawful, limiting campaign expenditures was absolutely unconstitutional. One immediate problem generated by the Court s decision in Buckley was the fact that only one proposed evil was left in shackles, while another evil was set free. Corporations, special interest groups, and other powerful conglomerates were not allowed to contribute more than a certain amount to a candidate 29 but as long as the candidate continued to line up individual donors, she could arguably still spend as much as she wanted on advertising and smear campaigns. Hence, the concept of campaign finance reform was far from out of the picture in American elections. B. Campaign Finance Reform Anew: Davis v. Federal Election Commission Following the Court s decision in Buckley, it quickly became clear that the need for campaign finance reform was ever-pressing. On January 22, 2001, Senator John McCain of Arizona introduced a bill on point that would eventually become known as McCain- 27 at at 39 (quoting Williams v. Rhodes, 393 U.S. 23, 32 (1968) (internal citations omitted)). 29 at 45. 7

9 Feingold. 30 Although the bill underwent numerous drafts and was subjected to intense scrutiny, a version of it became codified as the Bipartisan Campaign Reform Act of 2002 (BCRA). 31 As with FECA, the BCRA consisted of a few highly controversial mandates; these mandates addressed the increased importance of soft money, the proliferation of issue ads, and the disturbing findings of a Senate investigation into campaign practices related to the 1996 federal elections. 32 The BCRA famously limited an individual s contributions to a particular House of Representatives candidate s campaign to $2,300 during a two-year election period, and also capped the amount of money that a candidate could receive from her political party. 33 The particular section of the BCRA at issue in Davis, however, was the Millionaire s Amendment. 34 This section mandated that if a particularly wealthy candidate used her own money to fund her campaign, and such funding caused the opposition personal fund amount (OPFA) 35 to exceed $350,000, the wealthy candidate s non-self funding opponent would automatically be allowed to receive three times the $2,300 limit per individual contributor as well as unlimited funds from her political party. 36 This curious attack on wealthy candidates infuriated congressional candidate John Jack Davis, who filed suit and asserted that the Millionaire s Amendment infringed on his freedom of speech. 37 The Supreme Court agreed with Davis, and held that the limits on self-financing which the BCRA placed on Congressional candidates did in fact burden Davis ability to spend his own 30 Kathy Gill, McCain-Feingold Campaign Finance Reform, ABOUT.COM, (last visited Dec. 6, 2011) McConnell v. Federal Election Comm n, 540 U.S. 93, 93 (2003). 33 Davis, 554 U.S. at at The OPFA, in simple terms, is a statistic that compares the expenditure of personal funds by competing candidates and also takes into account to some degree certain other fundraising. Davis, 554 U.S. at at at

10 money on his candidacy, thus unconstitutionally limiting his freedom of speech. 38 In formulating its opinion, the Majority made good use of the Court s previous logic in Buckley. 39 The Court stated: Buckley's emphasis on the fundamental nature of the right to spend personal funds for campaign speech is instructive. While BCRA does not impose a cap on a candidate's expenditure of personal funds, it imposes an unprecedented penalty on any candidate who robustly exercises that First Amendment right. Section 319(a) requires a candidate to choose between the First Amendment right to engage in unfettered political speech and subjection to discriminatory fundraising limitations. 40 The Court noted that candidates whose choice to use personal funds triggered the Millionaire s Amendment were forced by the BCRA to shoulder a special and potentially significant burden if they make that choice. 41 This significant burden, as with all burdens on free speech, could only be constitutional if justified by a compelling state interest and according to the Court, the Millionaire s Amendment had no such justification. 42 Thus, in finding for the plaintiff, the Davis Court set in stone the idea that to limit a person s ability to spend money on a campaign including her own campaign was a bona fide infringement on that person s constitutionallyprotected freedom of speech. 43 C. Corporate Free Speech: Citizens United v. Federal Election Commission The glowing steel of the Davis ruling had barely begun to cool when another campaign finance issue came before the Court: Whether a corporation had the same free speech rights as a person, and thus was constitutionally protected in spending money on political campaigns at at at at See id. at See Citizens United v. Fed. Election Comm'n, 130 S. Ct. 876 (2010). 9

11 At issue in Citizens United v. Federal Election Commission was another controversial section of the BCRA, which in effect banned corporations (both for-profit and non-profit) from using corporate treasury funds to make an electioneering communication 45 referring to a political candidate within thirty days of an election. 46 Citizens United, a non-profit corporation, created a documentary entitled Hillary: The Movie, which was critical of 2008 presidential candidate Hillary Clinton; Citizens United intended to advertise the film and make it available as a video-on-demand during the days leading up to the 2008 Democratic Party presidential primaries. 47 In order to offensively protect itself from prosecution under the BCRA, Citizens United filed for declaratory and injunctive relief against the Federal Election Commission (FEC) in the U.S. District Court for the District of Columbia. 48 After the FEC was granted summary judgment in light of Austin v. Michigan Chamber of Commerce, 49 the plaintiff appealed to the 45 2 U.S.C. 434(f)(3)(A) (2006). The statute defines electioneering communication as follows: (A) In general (i) The term electioneering communication means any broadcast, cable, or satellite communication which (I) refers to a clearly identified candidate for Federal office; (II) is made within-- (aa) 60 days before a general, special, or runoff election for the office sought by the candidate; or (bb) 30 days before a primary or preference election, or a convention or caucus of a political party that has authority to nominate a candidate, for the office sought by the candidate; and (III) in the case of a communication which refers to a candidate for an office other than President or Vice President, is targeted to the relevant electorate. (ii) If clause (i) is held to be constitutionally insufficient by final judicial decision to support the regulation provided herein, then the term electioneering communication means any broadcast, cable, or satellite communication which promotes or supports a candidate for that office, or attacks or opposes a candidate for that office (regardless of whether the communication expressly advocates a vote for or against a candidate) and which also is suggestive of no plausible meaning other than an exhortation to vote for or against a specific candidate. Nothing in this subparagraph shall be construed to affect the interpretation or application of section (b) of title 11, Code of Federal Regulations. 46 Citizens United, 130 S. Ct. at at at U.S. 652 (1990) (holding that state law barring corporations from using treasury money to oppose or support political candidates was not a violation of the First and Fourteenth Amendments). 10

12 Supreme Court, which noted probable jurisdiction and requested briefing from the parties regarding whether Austin should be overturned. 50 With a Majority of only five justices, the Court overruled its holding in Austin and found that the controversial section of the BCRA did in fact violate the First Amendment rights of corporations. 51 In arriving at this conclusion, the Court first clarified that corporate speech is protected under the First Amendment, 52 and then concluded that political speech does not lose First Amendment protection simply because its source is a corporation. 53 The Court furthered proclaimed that, in view of First National Bank of Boston v. Bellotti 54 and other cases, it had already rejected the assertion that political speech of corporations or other associations should be treated differently under the First Amendment simply because such associations are not natural persons. 55 The Supreme Court also discussed how the portion of the BCRA that banned corporate political expenditures was actually incongruent with the Court s holding in Buckley that limitations on such expenditures were violative of free speech rights. 56 In justification of its holding that the BCRA s ban on corporate expenditures violated the First Amendment, the Court stated: There is simply no support for the view that the First Amendment, as originally understood, would permit the suppression of political speech by media corporations. The Framers may not have anticipated modern business and media corporations. Yet television networks and major newspapers owned by media corporations have become the most important means of mass communication in 50 Citizens United, 130 S. Ct. at at at 899 (citing First Nat l Bank of Boston v. Bellotti, 435 U.S. 765, 778 (1978) (citing Linmark Assocs., Inc. v. Willingboro, 431 U.S. 85 (1977); Time, Inc. v. Firestone, 424 U.S. 448 (1976); Doran v. Salem Inn, Inc., 422 U.S. 922 (1975); Se. Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975); Cox Broad. Corp. v. Cohn, 420 U.S. 469 (1975); Miami Herald Publ g Co. v. Tornillo, 418 U.S. 241 (1974); New York Times Co. v. United States, 403 U.S. 713 (1971) (per curiam); Time, Inc. v. Hill, 385 U.S. 374 (1967); New York Times Co. v. Sullivan, 376 U.S. 254 (1964); Kingsley Int'l Pictures Corp. v. Regents of Univ. of N. Y., 360 U.S. 684 (1959); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952)). 53 at (quoting First Nat l Bank of Boston v. Bellotti, 435 U.S. 765, 784 (1978)) U.S. 765, 784 (1978). 55 Citizens United, 130 S. Ct. at 900 (quoting First Nat l Bank of Boston v. Bellotti, 435 U.S. 765, 776 (1978)). 56 at

13 modern times. The First Amendment was certainly not understood to condone the suppression of political speech in society's most salient media. It was understood as a response to the repression of speech and the press that had existed in England and the heavy taxes on the press that were imposed in the colonies. 57 Thus, according to the Majority, it is unlawful for a law to restrict a corporation s ability to spend treasury funds on or against a political candidate; 58 as such, corporations implicitly have free reign to speak as loudly as any citizen (or louder at times, in terms of available funding). III. Arizona Free Enterprise Club's Freedom Club PAC v. Bennett After the Court announced its thunderous ruling in Citizens United, the law in the United States regarding campaign finance reform had quite a different character compared to when the 1971 version of FECA was passed. Buckley banned limitations on political expenditures; 59 Davis denounced laws that in effect limited a wealthy candidate s use of personal funds on her own campaign; 60 and Citizens United made clear that the ban on limiting campaign expenditures extended to corporations as well. 61 By early 2010, it appeared that the Court at least as long as a majority of its members continued to agree on the issue was strongly opposed to any law that attempted to restrict or in effect restricted an entity s use of funds (whether personal or donated) for political purposes. Such was the state of the law when the Court heard Arizona Free Enterprise Club's Freedom Club PAC v. Bennett. A. Corruption and the Arizona Citizens Clean Election Act of 1998 During the twenty-plus years leading up to Bennett, the state of Arizona seemed to be plagued with political scandals and corruption. First, Governor Evan Mecham was indicted in 1988 for fraud, perjury, and other charges in connection with a secret campaign loan he received, 57 at 906 (internal citation omitted). 58 at Buckley, 424 U.S. at Davis, 554 U.S. at Citizens United, 130 S. Ct. at

14 leading to his eventual impeachment. 62 Then, a U.S. Senate Ethics Committee investigation was initiated against Arizona s two U.S. senators in connection with favors and contributions each had received from Charles Keating, a notorious savings and loan magnate. 63 Next, a 1991 incident known as AzScam occurred, in which [a] sting operation caught [Arizona] state legislators on videotape accepting campaign contributions and bribes in exchange for agreeing to support gambling legislation. 64 Information obtained during AzScam led to around ten percent of Arizona s state legislature being charged criminally or civilly for related instances. 65 And as if this was not enough, Governor J. Fife Symington resigned in 1997 after being indicted on twenty-three counts, which included claims that the governor had misused his executive powers to wring concessions from a pension fund to which he owed money. 66 Fed-up with both being the national brunt of corruption jokes and being victimized by greedy politicians, the Arizona citizenry passed an initiative known as the Arizona Citizens Clean Elections Act of 1998 (ACCEA). 67 Part of the intention behind the initiative was to help politicians be better-able to represent the citizens who voted for them, without feeling a quid pro quo duty to the entities that endowed them with campaign contributions. 68 One particular proponent of the Act argued that Arizonans -- in the past -- had earned a reputation for electing strong and independent political leaders. Now, Arizona has earned the reputation of a state rife with corruption and the abuse of money in politics. Our elected officials are going to jail and this cycle of abuse seems endless. It s time to change that. It s time to restore confidence in our political system. It s time to pass the Citizens Clean Election Act McComish, 611 F.3d at at John Eichenauer, Argument For Proposition 200, PROPOSITION 200, (last visited Dec. 6, 2011). 13

15 For many Arizonans, it appeared that the Act was an answer to a prayer for the cycle of abuse 70 to finally end, thus leading to an Arizona in which the people could trust that the officials they elected would be honest, dependable, and non-buyable. The ACCEA s principal function was to create a framework for the public funding of state political campaigns. 71 Candidates could choose either to receive public funding under the Act (and hence be subject to its requirements), or else reject all public funding and instead campaign solely with private funds (which were governed by previously-existing disclosure and limitation mandates). 72 However, [i]f a candidate [opted] to participate in the public financing system, she or he [agreed] to forfeit her or his right to fund her or his campaign with private contributions. Instead, she or he [had to] collect a required number of five-dollar qualifying contributions during a specified time period to demonstrate that she or he [had] the voter support to be a viable candidate.... If the candidate [qualified] for public financing, she or he [would] then receive a lump-sum grant for her or his primary campaign, which [varied] depending on whether she or he [was] running opposed or unopposed in a party primary, or whether she or he [was] an independent candidate.... If the participating candidate [had] a nonparticipating opponent in the primary who [spent] more than her or his initial grant, or whose expenditures, combined with the value of independent expenditures in opposition to her or his candidacy or in support of her or his nonparticipating opponent, [exceeded] the amount of her or his initial grant, the participating candidate [would] receive matching funds in the amount of the combined spending of her or his nonparticipating opponent, plus the value of independent expenditures against her or him or in support of her or his nonparticipating opponent, reduced by six percent and reduced by the amount of early contributions raised by the nonparticipating opponent during the preprimary fundraising period. 73 The Act hence seemed to effectively persuade candidates to forego private campaign funding and instead bide by the ACCEA s public funding rules, which in turn freed candidates from the vice (or appearance) of being bought with the private monies of powerful donors McComish, 611 F.3d at

16 Nevertheless, and as discussed below, the ACCEA s fund-matching provisions were not without strong opposition. The controversy that sparked the initial lawsuit in Bennett lies in the concept that the Act substantially burdened the free speech of privately-funded candidates and their supporters. 74 Such a candidate would feel incapable of spending any funds on her campaign without invoking the consequence of her publicly-funded opponents automatically receiving a matching amount of campaign money from the government. 75 Furthermore, many candidates who fully intended to take advantage of the Act s benefits were involuntarily prevented from doing so as soon as a private individual or group spent funds in support of the candidate, regardless of whether the candidate had solicited that third-party s support. 76 Thus, the Act s practical effect seemed to result in the First Amendment free speech rights of these candidates and third-parties including businesses being substantially burdened. Consequently, although the Act made valiant efforts to restore the people of Arizona s trust in state politicians, it appeared that a legion of litigation was eagerly lying in wait to derail the state s well-meaning anti-corruption efforts. B. The Ninth Circuit: McComish v. Bennett 77 Raising the arguments mentioned above, a group of past and future Arizona state office candidates, together with a political action committee and two independent special-interest committees, filed suit in federal court so as to get rid of the matching funds provision. 78 The district court found for the plaintiffs, granting them summary judgment, handing down a 74 at at It is interesting to note that the Ninth Circuit filed its McComish opinion on May 21, 2010; the Supreme Court, meanwhile, had handed down its opinion in Davis on June 26, 2008, and in Citizens United on January 21, See McComish, 611 F.3d at 510; Davis, 554 U.S. at 724; Citizens United, 130 S. Ct. at McComish, 611 F.3d at 517,

17 declaratory judgment that the ACCEA s fund-matching provisions violated free speech, and issuing an injunction to immobilize the law s controversial terms. 79 However, the Ninth Circuit McComish court firmly disagreed with the trial court s logic. 80 In doing so, it recognized that Buckley governed the constitutionality of campaign finance laws in analyzing whether a particular statute impinged on fully-protected speech. 81 According to the court, a law that, like the ACCEA s matching funds provisions, has a hybrid effect on both contributions and expenditures[,] is interpreted as though it affects fully protected speech. 82 Having categorized the speech in question as constitutionally protected, the circuit court then set about determining whether the ACCEA placed a burden on the protected speech, and if so then to what extent. 83 The court noted that, in light of Buckley, the public financing of elections itself does not create any burden on speech. 84 The McComish plaintiffs argued that the fund-matching provisions placed a heavy burden on their protected speech, and asserted the Supreme Court s logic in Davis. 85 However, the Ninth Circuit found that Davis was easily and properly distinguishable from the case at bench, 86 and disagreed with the district court s finding that [i]f the mere potential for your opponent to raise additional funds is a substantial burden, the granting of additional funds to your opponent must also be a burden. 87 The circuit court pointed out that the law at issue in Davis did not deal with publicly-funded campaigns, but instead simply increased contribution limits for 79 at at (referencing Lincoln Club of Orange Cnty. v. City of Irvine, Calif., 292 F.3d 934, 939 (9th Cir. 2002)). 83 at at 517, at

18 those candidates that were not self-funded above the $350,000 maximum. 88 The court also briefly discussed how in Citizens United, the Supreme Court had affirmed that the BCRA was unconstitutional in Davis in that it placed burdensome restrictions on the speech of the rich. 89 Under the Ninth Circuit s logic, Davis simply did not apply to the McComish plaintiffs causes of action because the ACCEA did not make any distinction based on the identity of a particular candidate. 90 The court then concluded that the burden placed on protected speech by the fundmatching provisions was indirect or minimal. 91 The court pointed out that none of the plaintiffs had alleged any factual instance in which they had rejected a donation or neglected to make a campaign expenditure for fear of triggering the matching mechanism. 92 Failing to find that any of the plaintiffs speech had been chilled by the ACCEA, the court commented that, in reality, the Act did not inhibit anyone s speech it simply enabled the speech of candidates who otherwise would be at an unfair disadvantage with respect to campaign funding. 93 In light of this logic, the Ninth Circuit found that intermediate scrutiny was proper (contrary to the strict scrutiny asserted by the plaintiffs), since the burden on the fully protected speech at issue was only minimal. 94 As such, the court stated that because there is a substantial relation [sic] between the Act's matching funds provision and a sufficiently [sic] important governmental interest, we conclude that it does not violate the First Amendment. 95 The circuit court found that the state s sufficiently important interest, which was 88 at at at at at at 521, at 525 (quoting Citizens United, 130 S. Ct. at 914 (quoting Buckley, 424 U.S. at 197)). 17

19 also compelling and substantial, was to prevent corruption and its appearance in light of Arizona s troubling recent history. 96 The court stated: In exchange for public funding, participating candidates relinquish their right to raise campaign contributions from private donors. They therefore have both reduced opportunities and reduced incentives to trade legislative favors for financial favors.... Viewing the Act from this perspective, it is clear that the Act's anticorruption interest is further promoted by high participation in the program. The more candidates that run with public funding, the smaller the appearance among Arizona elected officials of being susceptible to quid pro quo corruption, because fewer of those elected officials will have accepted a private campaign contribution and thus be viewed as beholden to their campaign contributors or as susceptible to such influence. 97 Finding that the ACCEA s matching provisions bore a substantial relationship to a governmental interest and hence did not violate the First Amendment, the Ninth Circuit promptly reversed the district court and remanded the case for a decision to be entered in favor of the defendants. 98 C. The Supreme Court Not to be disheartened, the plaintiffs appealed to the U.S. Supreme Court, which accepted the case and heard oral argument from both sides (under the name Arizona Free Enterprise Club's Freedom Club PAC v. Bennett due to the loss of one plaintiff 99 ) on March 28, Contrary to the Ninth Circuit s decision, the Court found that the ACCEA s matching funds provision did substantially burden the protected political speech of the plaintiffs, and that the state did not have a compelling interest that would justify this burden. 101 The Court was split in its usual ideological manner, with Justices Scalia, Thomas, Kennedy, Alito, and Chief Justice Roberts forming the Majority, and Justices Kagan, Breyer, Ginsburg, and Sotomayor 96 at at at Bennett, 131 S. Ct. at at at

20 disagreeing. 102 The Chief Justice wrote for the Court, while freshman Justice Kagan wrote for the dissenters Majority s Opinion Unlike the Ninth Circuit, the Court found that Davis did in fact control the case at hand, stating that the matching funds provision imposes an unprecedented penalty on any candidate who robustly exercises [his] First Amendment right[s]. 104 The Majority continued: Once a privately financed candidate has raised or spent more than the State's initial grant to a publicly financed candidate, each personal dollar spent by the privately financed candidate results in an award of almost one additional dollar to his opponent. That 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.... If the law at issue in Davis imposed a burden on candidate speech, the Arizona law unquestionably does so as well. 105 The Majority also noted that, while the ACCEA imposed different penalties than the BCRA, these penalties made the Arizona law even more restrictive on speech than the Davis statute. 106 Chief Justice Roberts pointed out that in Davis, the penalty of the Millionaire s Amendment was simply that the opposing party s contribution limitations were lifted; she still had to raise the additional funds on her own. 107 The ACCEA, on the other hand, required nothing of publicly funded candidates; once a privately funded candidate triggered the matching provision, the publicly funded candidates received increased funding automatically, with no required effort on their part. 108 Furthermore, for every dollar the privately funded candidate spent, all of her publicly funded opponents would receive state monies thus creating a at 2818 (quoting Davis, 554 U.S. at 739). 105 at 2818 (quoting Davis, 554 U.S. at 739). 106 at 2818 (citing Green Party of Conn. v. Garfield, 616 F.3d 213, (2nd Cir. 2010)). 107 at at

21 multiplier effect. 109 Finally, the Court found that the ACCEA s concession that even private entities could trigger the matching provision for a particular candidate without that candidate having a say (by simply spending funds to independently advertise for the candidate) was an added substantial burden on both the candidate and any third-party group interested in voicing its opinion. 110 Hence, if the BCRA s Millionaire s Amendment was a substantial burden on free speech, then the ACCEA s matching funds provision was even more of a burden Dissenters Opinion Regardless of the Majority s logic, the four dissenting justices stood firm in opposition to the Court s ruling. 112 Justice Kagan began her dissent by pointing out that, rather than celebrating Arizona s success in eliminating political corruption from its system, the Majority instead destroyed all that Arizona s citizens had worked for in creating the public funding structure. 113 The dissent asserted that, rather than burdening free speech, the matching funds provisions actually promote[d] the values underlying both the First Amendment and our entire Constitution by enhancing the opportunity for free political discussion to the end that government may be responsive to the will of the people. 114 Justice Kagan argued that the massive wave of political corruption with which America had been plagued for decades was directly related to private funding of political campaigns, and that [b]y supplanting private cash in elections, public financing eliminates the source of political corruption. 115 Arguing against the Majority, the dissent firmly states that, rather than burdening free speech, the ACCEA as passed by the legislature subsidizes and so produces more political 109 at at See id. at at at 2830 (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964))

22 speech, since it places no spending limits or restrictions on candidates but simply subsidizes speech. 116 And since the plaintiffs were attempting to have the matching provisions eliminated from the ACCEA, they, and not the state, were the individuals and entities trying to burden free speech. 117 IV. Did the Court Get it Right? Despite the dissenters noteworthy claims to the contrary, 118 it is clear that the Court did indeed get it right in view of the precedent laid by Buckley, 119 Davis, 120 and Citizens United. 121 Indirectly penalizing a candidate or other entity for spending money to voice its opinion by automatically giving matching funds (whether in the form of public grants or raised donation limits) to the opposition plainly burdens the candidate s or entity s ability to speak freely. It would be hard to imagine how a candidate (or other entity, for that matter) would not feel her speech was burdened if every private dollar she spent was in effect given to her adversaries. Since the Buckley/Davis/Citizens United precedent places great emphasis on the fact that spending money on a political campaign is a form of protected speech, 122 it appears that penalizing a person s choice to use such money is a clear limitation of that person s free speech. But what will happen if states are restrained from being able to impose financial hindrances on 116 at at See supra Part III.C See supra Part II.A. 120 See supra Part II.B. 121 See supra Part II.C. 122 See, e.g., Buckley, 424 U.S. at 52 ( The ceiling on personal expenditures by candidates on their own behalf... imposes a substantial restraint on the ability of persons to engage in protected First Amendment expression. ); Davis, 554 U.S. at 726 ( This Court... agrees with Davis that this scheme impermissibly burdens his First Amendment right to spend his own money for campaign speech. ); Citizens United, 130 S. Ct. at 905 ( All speakers, including individuals and the media, use money amassed from the economic marketplace to fund their speech. The First Amendment protects the resulting speech, even if it was enabled by economic transactions with persons or entities who disagree with the speaker's ideas. ). 21

23 political speech? The key to answering this question lies in an analysis of Bennett s current and future implications. A. Current Implications The obvious immediate implication that Bennett presents is that the ACCEA s matching funds provision is no longer enforceable. 123 Thus, privately funded candidates no longer face any heartache in the event they or their supporters spend money on their political campaigns. The downside, as elaborated by Justice Kagan, 124 is that publicly-funded candidates are no longer protected from the overwhelming power that private funds might harbor. Yet since there is no longer a matching trigger to turn off a candidate s ability to receive public funds, one must wonder whether all Arizona candidates now get public funding in spite of, instead of in lieu of, private funding. Hence, it appears that the ACCEA is broken (at least for now) with respect to providing a mechanism for preventing private funding from engendering corruption. But being broken does not mean that the law is dead. If Arizona still sees private funding as the cause of its corruption issues, then it simply needs to find another way to dissuade its use. B. Future Implications Bennett s future implications arguably lie more in Arizona s, or any other state s, ability to create a form of campaign finance reform that does not hold the campaign expenditures of a candidate against her. Until Arizona implements a new system, candidates will simply not be bound expense-wise in the way they once were. But a nagging question still lingers: Is the private funding of political campaigns truly the root of all political corruption? 123 See Bennett, 131 S. Ct. at 2889 ( Laws like Arizona's matching funds provision that inhibit robust and wide-open political debate without sufficient justification cannot stand. ). 124 at

24 Perhaps. But perhaps not. If he who has the most funds wins is a true maxim, then it seems like the only way to remedy the problem would be to ban the politically motivated use of private funds by any entity. Yet doing so would not eradicate the problem, since under Citizens United the government cannot limit the amount of money a business (or any other entity, for that matter) may choose to spend on a political issue or candidate about which it feels strongly. 125 Then again, what if other factors such as political party influences, opportunities to be part of a legislative committee, or even personal experiences also cause a politician to be corrupt? What if friendships, allegiances, biases, popularity, power, respect, submission, or philosophies are what engender the corruption germ, independent of money? The issue would hence not be, How can the state limit private funding of campaigns, but rather, How can the state eliminate free thought and human nature? If states truly want to have corruption-less governments for future generations, they may be without a remedy due to the fact that perfect people do not exist. C. Propositions Nevertheless, it seems that up until the Supreme Court struck the funds-matching provisions of the ACCEA, Arizona had finally freed itself from political corruption. After all, the state no longer suffered from the intense political scandals that plagued it throughout the latter part of the twentieth century thus suggesting that a quid pro quo link does exist between private campaign funds and political dishonesty. However, if private funding is a main source of political corruption, as the Bennett dissenters suggest, 126 then Arizona and its sister-states will need to find a better way of limiting it. 125 Citizens United, 130 S. Ct. at Bennett, 131 S. Ct. at

25 As a side note, some commentators have passionately argued that all provisions of the ACCEA, including the fund-matching provisions, are fully constitutional. 127 Perhaps such political activists need only to wait until the current composition of the Supreme Court is rearranged, and then attempt to have Bennett overruled by a more liberal Court. Until that opportunity arises, states like Arizona clearly need to find a way by which to constitutionally prevent political corruption. In 2007, Jason B. Frasco proposed a method of using a matching funds trigger mechanism to curb political corruption that in his view would avoid violating First Amendment speech rights. 128 His suggestions included: requiring all candidates to raise a certain amount of minimal contributions so that only serious candidates are included in public fund distribution; allowing candidates, during the period prior to their acceptance of public funding, to collect limited seed money donations from private third party donors; distributing a competitive amount of public funds to each candidate so as to eliminate the incentives private funding would pose; and providing a matching trigger that would give public funds to participating candidates in light of the funds spent by non-participating candidates or their supporters. 129 Frasco also noted a number of qualities that a matching funds scheme should likewise have in order to avoid unconstitutionality. 130 He suggested (1) keeping the trigger mechanism 127 See, e.g., M. Colleen Connor, Raising Arizona: Strengthening Express Advocacy Regulation through the Citizens Clean Elections Act, 34 ARIZ. ST. L.J. 507 (2002) (making a firm argument that the ACCEA, including the fundtriggering provisions, is fully constitutional and beneficial to Arizona); Eric H. Wexler, A Trigger Too Far?: The Future of Trigger Funding Provisions in Public Campaign Financing After Davis v. FEC, 13 U. PA. J. CONST. L (2011) (arguing that the McComish court was correct in applying intermediate scrutiny to the ACCEA in light of the sufficiently important governmental interest of eliminating political corruption); George LoBiondo, Pulling the Trigger on Public Campaign Finance: The Contextual Approach to Analyzing Trigger Funds, 79 FORDHAM L. REV (2011) (suggesting (prior to the Bennett ruling) that if the Court would consider the ACCEA s fundmatching provisions in the context of the ACCEA as a whole, it should find that the provisions meet the strict scrutiny standard). 128 Jason B. Frasco, Full Public Funding: An Effective and Legally Viable Model for Campaign Finance Reform in the States, 92 CORNELL L. REV. 733, (2007) at

26 viewpoint neutral, (2) disregarding the status of a candidate s political party (major, minor, independent) in making disbursements, (3) setting a matching fund limit of about two to three times the original disbursement amount, (4) avoiding controversial terms in the statute (such as clean elections or clean candidate ), (5) maintaining a neutral administering body for the funding scheme, (6) carefully balancing the scheme s participation benefits and incentives with its burdens and disadvantages, and (7) narrowly structuring the reporting requirements of candidates who do not participate so as to advance compelling and identifiable interests. 131 Despite the subsequent Davis, Citizens United, and Bennett holdings, 132 it appears that many, but not all, of Frasco s suggestions may still be applicable in making an anti-corruption public fund matching scheme pass constitutional muster. The obvious flaw in Frasco s proposal is the requirement that a matching-funds provision be triggered when non-participating candidates and their supporters outspend participating candidates, 133 since this is precisely what Bennett denounced as an unconstitutional limitation of speech. 134 Yet some of Frasco s ideas are intriguing, and could certainly help lawmakers find a better way to root out corruption without inhibiting speech. For example, choosing statutory terms wisely would enforce the perceived neutrality that should exist between participating and non-participating candidates. Also, if the amount of public funds distributed to candidates was competitive and sufficient to fuel a healthy campaign, then perhaps little incentive would exist for candidates to use other funding. Yet then again, if a candidate s purpose in using private funding is to outspend her opponents so as to gain an advantage, then it seems no amount of public funds would suffice. A further loophole that Bennett creates in Frasco s proposition is See supra Part II.A-C. 133 Frasco, supra note 127, at Bennett, 131 S. Ct. at