June 08, 2010

Supreme Court Blocks Arizona Matching Funds Pending Cert Petition: More Bad News for Supporters of Reasonable Campaign Finance Regulation

After a few false starts, as I expected the Court has issued an order blocking the provision of additional public financing "matching funds" in Arizona. As Lyle Denniston explains, the order will stay in effect until the Court rules on an expected petition for cert. (I fully expect that petition to be filed, and for cert. to be granted---one of the factors the Court considers in granting this kind of order is whether it is likely that at least four Justices will vote for cert.).

The main question at issue is whether it is unconstitutional to provide additional matching funds to state candidates in Arizona who participate in the voluntary public financing system when such candidates face opponents who spend a lot of their personal wealth on their campaigns (or under certain circumstances when there is large independent spending). The challengers to the law argue that the additional matching funds requirement violates the First Amendment under the Supreme Court's opinion in FEC v. Davis, which struck down McCain-Feingold's "Millionaire's Amendment." The Ninth Circuit rejected the analogy to Davis in a thoughtful opinion and concurrence, but especially given Judge Bea's strong dissent from an earlier order for a stay in the case, I expected the case to draw en banc or Supreme Court attention. One of my students, Emily Schuman, wrote this law review note (before McComish) setting out the potential application of Davis to matching funds schemes.

If the Court takes the case, it is likely to be to reverse the Ninth Circuit. The Ninth Circuit's opinion is a very well written and thoughtful opinion for the position finding matching funds provisions constitutional. There would be little reason to take the case to affirm the Ninth Circuit. (As the Ninth Circuit points out, there's not much of a circuit split, given that the Eighth Circuit backed off its earlier pre-Davis case, Day v. Holohan, flagging the constitutional problem. Day was cited with approval by the Supreme Court in Davis.)

The developments in Arizona show just what a tough litigation environment it is right now for those in the lower courts seeking to defend reasonable campaign finance regulations. As I've suggested, without matching funds provisions, public financing programs are unlikely to attract substantial participation from serious candidates, who fear being vastly outmatched by self-financed opponents or major independent spending campaigns.

Posted by Rick Hasen at June 8, 2010 07:54 AM