Impact of Public Financing Ruling Weighed

What does the Supreme Court’s ruling in Arizona Free Enterprise Club v. Bennett, striking down a matching-funds mechanism in the state’s public campaign financing law, mean for elections in Arizona?

An Arizona Republic article interviewed three people involved with Arizona’s system for their analyses, and reached no conclusions. In a nutshell, the article said critics of public financing thought the ruling would lead to the demise of  Arizona’s Clean Elections system, while admirers thought the system could be reformed and endure.

A political campaign consultant, Constantin Querard, had helped conservative Republicans run for legislative office while taking advantage of Arizona’s public financing law. He remarked that he thought there was little future overall for the Clean Elections system. But he saw a potential for it in judicial elections. According to the article, “He suggests the public-finance model might be a nice fit for judicial elections, especially if voters can be persuaded to do away with merit selection for judges in Maricopa and Pima counties and go to direct election.”

Meanwhile a Los Angeles Times article was headlined, “Arizona conservatives scramble after campaign finance law’s defeat: The state’s Clean Elections Act had swept a surge of small-government Republicans into power.”

An editorial about the future of North Carolina’s public financing system for judicial campaigns appeared in the Greensboro News & Record. Since 2006, the editorial said, “Most judicial candidates have participated in the public system and run without tawdry fundraising. That’s worth saving, but finding a way to do it within the new parameters set by the court won’t be easy.”

The commentary on Arizona Free Enterprise continued in various news media. At least one analyst dug deep into the opinion to convey the precise arguments of opposing justices, and portray the conflicting views at issue.

Stanley Fish of Florida International University wrote in the New York Times’ Opinionator blog that the majority opinion and dissent depicted “a clash between the worship of freedom of speech and a concern for the quality of public life in relation to which free speech may sometimes be asked to take a back seat.”

A Des Moines Register editorial declared in the headline, “Court is right: Money’s influence should be dealt with by voters.” On the other hand Frank Askin of the Constitutional Litigation Clinic at Rutgers Law School wrote a commentary in the Newark Star-Ledger entitled, “Speech is free only to those who can afford it.”

In his Election Law blog, Rick Hasen commented on an argument that was advanced by Justice at Stake in supporting the constitutionality of Wisconsin’s public financing law for state Supreme Court campaigns (see Gavel Grab). Given the U.S. Supreme Court’s ruling last week, both sides in a case challenging Wisconsin’s law have asked a federal appeals court to dismiss the case as moot. Hasen elaborated:

“The legal question in the Wisconsin case is a very interesting one.  May a public financing system like the one the Supreme Court struck down in Arizona Free Enterprise as violating the First Amendment be constitutional when applied in judicial elections, on grounds that the state’s interests in regulating campaign finances in judicial elections are stronger than in legislative elections.

“More generally, one question I’ve been thinking about is when the state’s interests in promoting an impartial judiciary, due process rights of litigants, and public confidence in the fairness of the judicial process justify laws regulating judges and judicial candidates which would [be] unconstitutional under the First Amendment when applied to legislators or legislative candidates?”

To learn more about Arizona Free Enterprise Club, see earlier Gavel Grab posts.

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