McComish v. Bennett

September 16, 2010 • Legal Briefs

In 1998, after years of scandals ranging from governors being indicted to legislators taking bribes, Arizona passed the Citizens Clean Elections Act. This law hoped to “clean up” state politics by creating a system for publicly funding campaigns. Participation in the public funding is not mandatory, however, and those who do not participate are subject to rules that match their “excess” private funds with disbursals to their opponent from the public fund. In short, if a privately funded candidate spends more than their publicly funded opponent, then the publicly funded candidate receives public “matching funds.” Whatever the motivations behind the Act, the effects have been to significantly chill political speech. Indeed, ample evidence introduced at trial in a lawsuit challenging the Act showed that privately funded candidates changed their spending — and thus their speaking — as a result of the matching funds provisions. In elections, where there is no effective speech without spending money, the matching funds provision of the Clean Elections Act diminishes the quality and quantity of political speech. In 2008, however, the Supreme Court in Davis v. FEC struck down a similar provision in the federal McCain‐​Feingold law in which individually wealthy candidates were penalized for spending their own money by triggering increased contribution limits for their opponents. Even this modest opportunity for opponents to raise more money was found to be an unconstitutional burden on political speech. Cato has thus filed a brief supporting a request that the Supreme Court review the lower court’s decision upholding the Clean Elections Act. We highlight Davis (in which Cato also filed a brief) and numerous other cases that point to a clear conclusion: if the mere possibility of your opponent getting more money is unconstitutional then the guarantee that your opponent will get more money (Arizona’s Act automatically disburses matching funds) is even more so. Allowing the government to abridge political speech in this fashion not only diminishes the quality of our political debate, but it ignores the fundamental principle upon which the First Amendment is premised: that the government cannot be trusted to regulate political speech for the public benefit.

Media Name: McComishBrief.jpg
About the Author
Ilya Shapiro

Director, Robert A. Levy Center for Constitutional Studies, Cato Institute