McComish v. Bennett is a case argued during the October 2010 term of the U.S. Supreme Court. The case involved an Arizona campaign finance law that gave "matching funds to candidates who accept public financing" and an increase in those funds depending on their opponents' private spending.[1] Argument in the case was held on March 28, 2011. The case came on a writ of certiorari to the United States Court of Appeals for the 9th Circuit. On June 27, 2011, in a 5-4 decision, the court reversed the judgment of the Ninth Circuit Court of Appeals. Plaintiffs argued "that to avoid triggering matching funds for their opponents, they had to limit their spending and, in essence, their freedom of speech."[1] Writing for the majority, Chief Justice John Roberts concluded that "Laws like Arizona’s matching funds provision...inhibit robust and wide-open political debate without sufficient justification..."[2]
HIGHLIGHTS
The case: An Arizona law created a public financing system to fund campaigns for state office. Candidates who participate receive an initial outlay of public funds and are granted additional matching funds to match, approximately, money spent both by privately-funded candidates and independent groups supporting the privately financed candidates that exceed the initial outlay.
The issue: Does the matching funds provision impose a burden on speech in violation of the First Amendment?
The Arizona Citizens Clean Elections Act created a public financing system to fund primary and general election campaigns for state office. Incentivizing participation, candidates received an initial outlay of public funds to conduct their campaigns. Additionally, matching funds were "also granted ... if a privately financed candidate's expenditures, combined with the expenditures of independent groups made in support of the privately financed candidate or in opposition to a publicly financed candidate, exceed the publicly financed candidate's initial state allotment." Once matching funds were triggered, a publicly financed candidate received "roughly one dollar for every dollar raised or spent by the privately financed candidate--including any money of his own that a privately financed candidate spends on his campaign--and for every dollar spent by independent groups that support the privately financed candidate." Matching funds were capped at two times the initial outlay. A group of Arizona candidates challenged the provisions of the Act as violative of free speech protections of the First Amendment. A federal district court entered a permanent injunction against the matching funds provision, but the Ninth Circuit Court of Appealsreversed, "concluding that the provision imposed only a minimal burden and that the burden was justified by Arizona's interest in reducing quid pro quo political corruption." Argument before the U.S. Supreme Court was held on March 28, 2011. On June 27, 2011, the court reversed the judgment of the Ninth Circuit Court of Appeals.
In 1998, Arizona Proposition 200, also known as the "Clean Elections" Act, was approved by voters. The Act established a commission to disburse public funds to state candidates opting to forgo private funding, as well as an increase in matching funds depending on the amount opponents choosing to raise private funds had spent. In practice, this meant that "for every dollar a group or individual spent to support the candidate of their choice, over the publicly funded candidate’s initial government subsidy, the government paid an equal amount of money to the political competition."[4]
The Goldwater Institute, a Phoenix-based 501(c)(3)nonprofit, filed a lawsuit challenging the Act on behalf of candidates that raised funds privately, including Rep. John McComish, Treasurer Dean Martin, Sen. Robert Burns and Rep. Nancy McLain. The candidates argued that in order to avoid triggering increased matching funds for opponents, they had to limit the amount of money they spent, which in effect limited their free speech.[5] The United States District Court for the District of Arizona overturned the matching-funds provision of the Act as unconstitutional. The United States Court of Appeals for the 9th Circuit, however, overturned the lower court's decisions because, in its view, the impact of freedom of speech was minimal. The case was appealed to the U.S. Supreme Court, where it was consolidated with Arizona Free Enterprise Club Freedom Club PAC v. Bennett, a related challenge to the Act.[6]
Petitioner's challenge
The petitioners challenged the matching funds provision, arguing that the provision unconstitutionally penalized their speech and burdened their ability to fully exercise their First Amendment rights of free speech.[7]
"1. Whether Citizens United v. Federal Election Comm'n, 130 S. Ct. 876 (2010), and Davis v. Federal Election Comm'n, 128 S. Ct. 2759 (2008), require this Court to strike down Arizona's matching funds trigger under the First and Fourteenth Amendments because it penalizes and deters free speech by forcing privately-financed candidates and their supporters to finance the dissemination of hostile political speech whenever they raise or spend private money, or when independent expenditures
are made, above a "spending limit."
2. Whether Citizens United and Davis require this Court to strike down Arizona's matching funds trigger under the First and Fourteenth Amendments because it regulates campaign financing in order to equalize "influence" and financial resources among competing candidates and interest groups, rather than to advance directly a compelling state interest in the least restrictive manner."[8]
William Maurer argued the case for petitioners, John McComish et al.
1. A lump-sum hypothetical
Justice Ruth Bader Ginsburg and, later, Justice Anthony Kennedy questioned Maurer as to whether a larger lump sum initial public outlay would be permitted under the Supreme Court's prior holding in Davis v. Federal Election Commission:
Maurer
“
This case is about whether the government may insert itself into elections and manipulate campaign spending to favor its preferred candidates. Arizona does this in a manner that is even more burdensome to free speech than the law at issue in Davis v. FEC. Arizona burdens the law of three groups that pose no threat of corruption under this Court's precedents: Independent expenditure groups, self-financed
candidates, and candidates who raise private funds under one of the lowest contribution limits in the Nation. Under Davis v. FEC and this Court's well-established precedents, the matching funds provision is unconstitutional and should be struck down.[11]
”
Ginsburg
“
Mr. Maurer, you -- you don't have any objection, you wouldn't have any objection, if Arizona trebled the amount at the outset? In other words, there was a maximum amount, the so-called matching funds; if it were given all in one lump and the publicly funded candidate was told, give it back if you don't use it, that would be okay?[11]
”
Maurer
“
That would be constitutional under Davis, Your Honor. This case is not about whether the State of Arizona may provide campaign financing using public funds, nor is it about whether -- the ability of Arizona to ensure that those who receive the public funds can run effective campaigns. What this case is about is whether the government can turn my act of speaking into the vehicle by which my political opponents benefit with direct government subsidies.[11]
”
Kennedy
“
In -- in this case, do you think the law is content-neutral within its own universe, which applies just to political speech, so it's not content-neutral in that sense? But within the scheme that it sets up, is it content-neutral?[11]
Because the only thing that will trigger matching funds, particularly for independent expenditure groups, is the content of the message. If an independent expenditure group speaks in favor of a privately financed candidate, they will not trigger matching funds. If they speak against a publicly financed candidate, they will trigger matching funds. That not is only content-based; it is also a rejection of the standard this Court enunciated in Citizens United that the government cannot make distinguishing burdens on the basis of an identity of a speaker.[11]
”
Kennedy
“
In Justice Ginsburg's hypothetical -- I'm still trying to think about -- suppose there is one candidate for the -- for the pink party, and then three candidates for the orange party, and all three candidates for the orange party received the lump sum Justice Ginsburg was talking about. But there's only one candidate on the other side, and he has to face, or she has to face, three. Is that constitutional?[11]
”
Maurer
“
It would not be -- I'm sorry. It would be constitutional under Davis. And I -- and I think that the point, Your Honor, is reflected --[11]
”
Scalia
“
I didn't understand the hypothetical. I really didn't.[11]
”
Kennedy
“
One person is on one side; three people are on the other side. And under the Arizona law, if the three people on the other side are all participating candidates, each of them gets a bonus if there's only one person speaking on behalf of the non-participating candidate, right?[11]
All right. In Justice Ginsburg's hypothetical, wouldn't you have the same problem in different terms, in that one candidate faces three people, all of whom are funded by the -- by the government?[11]
”
Maurer
“
Well, this case is not challenging a public financing system, and --[11]
”
Kennedy
“
I'm just asking as a theoretical matter whether there would be a constitutional problem in the case that I put under Justice Ginsburg's hypothetical.[11]
There may be -- there may be instances where a public financing law is so lopsided that it creates a coercive effect, and Buckley was quite clear that one of the things that was acceptable about the public financing system at issue in that case was that it was voluntary. But in this case, we're dealing with a very different type of First Amendment harm. The trigger matters, Your Honors. It is, in fact, determinative. It is exactly the same kind of trigger --[11]
”
Ginsburg
“
I thought that the point of Buckley was that the public funding, which you can accept or reject, the justification for it was that it increased rather than decreased speech. And the -- I think you were quite right in recognizing that matching funds, this Court has said, do not conflict with the -- with the First Amendment.[11]
”
Maurer
“
Your Honor, if I -- if I had said that, I was mistaken.[11]
Public funding. And so if it turns out that the States -- public funding isn't being used because -- because the limits are low, and yet the, the State wants to conserve the public fisc. So instead of just increasing the amount at the outset, it says the -- the -- the object is the same, but we're economizing by not giving it out in one lump sum, we're giving it out in installments.[11]
”
Maurer
“
Your Honor, in Riley v. National Federation of the Blind, this Court recognized that -- that the government cannot sacrifice speech for efficiency, and what -- if -- if we accept the holding of Davis v. FEC and accept that that is still a holding that is viable under the First Amendment, then what the -- the position of the Respondents is, is that they, in fact, can sacrifice free speech in order to be more efficient ...[11]
”
2. The purpose of the statute
Justice Alito presented a hypothetical for public funding and, based on counsel's response, prompted Justice Kagan to raise questions of the purposes and scope of public financing :
Alito
“
Would there be anything unconstitutional about a system that worked roughly like this? At the beginning -- at some point prior to each election cycle, the commission that supervises this law would make a calculation about how much money would be needed for a candidate in a gubernatorial race or a State senate race or an assembly race, if that's what it's called in Arizona, to get that candidate's message out to the electorate, and that would be the amount of the public funding, period.[11]
”
Maurer
“
That would be a constitutional system, Your Honor. There is no constitutional objection or at least we're not raising any constitutional objection to the idea that there is a -- that public financing means that people can't run effective races. You can have a public financing system with sufficient funds to run an effective race. But what you cannot do is exactly what Arizona has done, which is turn my act of speaking into the vehicle by which my political opponents benefit.[11]
”
Kagan
“
But that's interesting, Mr. Maurer, because I don't see all that much of a difference between Justice Alito's hypothetical and the facts here. In other words, you said that Justice Alito's hypothetical would be constitutional, even though under Justice Alito's hypothetical the State is trying to figure out how much money it takes to run a competitive race and giving people who enter the public financing system that amount of money. That's exactly what the State is doing here, but it's doing it in actually a more accurate way. So if Justice Alito's hypothetical is constitutional, why isn't this? They're both trying to do the same thing, which is to put sufficient money in the hands of people who enter the public financing system in order to run a competitive race.[11]
”
Maurer
“
Your Honor, one of the things that would distinguish that is that it -- Justice Alito's hypothetical completely divorces the amount of the grant from my political activity or the political activity of people who don't want to or cannot take public funds in Arizona.[11]
”
Kagan
“
Well, I think, to the contrary, in Justice Alito's hypothetical, just the State is estimating how much a person will spend. Here the State is measuring how much a person will spend. The only difference is that one is more accurate than the other.[11]
”
Maurer
“
Your Honor, I believe the distinction would lie in the fact that the purpose of this law is not to provide necessarily the ability of candidates to run effective publicly financed campaigns. The purpose of this law is to limit spending in
elections and to level the playing field. Justice Alito's hypothetical --[11]
”
Kagan
“
I think the purpose of this law is to prevent corruption. That's what the purpose of all public financing systems are.[11]
”
Maurer
“
Your Honor, I would respectfully disagree that the purpose of this law is to prevent corruption, and I would like to read from the executive director of the Clean Elections Commission who said that: "It cannot be disputed that the purpose of the Clean Elections Act is to equalize the playing field and to give participating candidates equal opportunity to get their message out," which is at Joint Appendix 236.[11]
”
Kagan
“
Well, Mr. Maurer, some people may use certain buzz words and other people don't use those buzz words, but isn't it true that for 40 years what public financing systems have been based upon is the idea that when there is a lot of private money floating around the political system, that candidates and then public office holders get beholden to various people who are giving that money and make actions based on how much they receive from those people, and that's the idea of a public financing system is to try to prevent that?[11]
”
Maurer
“
Well, that is the basis of public financing systems in general, but this system does not actually address that because this Court --[11]
”
Scalia
“
We have the contrary argue here. I'm sure that in some of the public financing cases that we've heard argued, it was asserted that the purpose was to level the playing field, and that that was an entirely valid purpose. I'm unaware that all public financing laws have had as their purpose simply to avoid corruption.[11]
”
Maurer
“
Your Honor, it -- when this law was promoted, when it was drafted, when it was propagated and -- and -- and campaigned about to the people of the State of Arizona, it was presented as doing two things: Leveling the playing field and limiting spending in campaigns. It wasn't until this Court's decision in -- in Davis that the State of Arizona suddenly discovered that the purpose of the law was actually to fight corruption or the primary purpose was to actually fight corruption.[11]
”
3. What's the burden?
Justice Sotomayor questioned Maurer as to what the precise burden being placed on speech is as a result of the law:
Sotomayor
“
Counsel, you keep -- I -- I just want to understand exactly what you claim the burden is, because I thought that what the circuit and the courts below said was that there was no evidence that any candidate actually didn't speak or didn't fund raise because of this law. There's some claims to the contrary in your briefs before us, but I've looked for that below, and there doesn't appear to be any record of that. So, I'm going to start from that -- that assumption, that there was no evidence in the courts below that any candidate stopped speaking because of or stopped collecting money because of this. So exactly what is the burden otherwise? What are you claiming the burden is? The burden is that the -- that the government is choosing to give someone else money?[11]
”
Maurer
“
No, Your Honor. First, I would respectfully disagree with the characterization of the Ninth Circuit of the evidence produced at the district court. There was considerable evidence of people not making expenditures, of slowing their fund-raising, as -- as one of my clients put it, to a crawl in order to avoid triggering matching funds. But even if that were relevant, the -- or even if that -- that material did not exist, in Davis this Court recognized that the inherent structure of the Act constitutes a substantial burden on speech because it presents the choice of
I -- I want to go, not rely on Davis, but just articulate for me, assuming my hypothetical, the burden is that you have to delay fund-raising or delay expenditures because you're choosing to do so.[11]
”
Maurer
“
We are not choosing to do so. We're -- we are being coerced into do -- doing so by the government.[11]
”
Sotomayor
“
No, if you spend it -- if you spend it at the time you want to, you collect it at the time you want, no one's -- the law's not telling you not to do it. You find it an advantage not to do it, correct?[11]
Because your opponent won't speak as loud and won't respond, correct?[11]
”
Maurer
“
I -- I would respectfully disagree, Your Honor. What the harm in delaying your speech is that in order to minimize the -- the triggering of substantial, and I would -- I would also add unfair benefits to a publicly financed candidate based on one's act of unfettered political expression, candidates and independent expenditure groups all testified, all the Petitioners testified that they delayed speaking in order to minimize the effect of matching funds,[11]
”
Respondent's argument
Bradley S. Phillips argued the case for the respondents, Ken Bennett et al.
1. Does public financing produce more speech?
Chief Justice Roberts and Justices Scalia and Alito challenged respondents' counsel's claim that public funding produces more speech:
Phillips
“
Public funding of elections results in more speech and more electoral competition and directly furthers the government's compelling interest in combatting real and apparent corruption in politics. There was a suggestion in response, I believe, to Justice Kagan's question that this law was not intended to combat corruption, but I --[11]
”
Roberts
“
But counsel, how -- the supposition that it results in more speech, let's take the independent expenditure example. You've got one candidate running against three others. There's an independent expenditure on behalf of the one candidate. That means, say $10,000. That means each of the other three get $10,000 of their own. Now, that might promote more speech, but the effect may well be for the independent expenditure to say, I'm not going to spend the money, and so the other candidates don't get the money and you have less speech.[11]
”
Phillips
“
Well, Your Honor, it would result in more speech certainly if all the candidates got the $10,000. There's no evidence in the record of anyone actually not spending, any independent group not spending money either in that circumstance or any other circumstance.[11]
”
Roberts
“
How would you -- what would that evidence look like?[11]
”
Phillips
“
The evidence would -- would simply look -- plausibly, even just someone saying that they didn't spend money because of that, although that would be not very hard evidence. But there isn't even that sort of evidence with respect to independent groups here, Your Honor. And it makes sense, Your Honor --[11]
”
Roberts
“
Well, other than somebody saying it, I'm just curious what the evidence would look like. You're -- it's -- you're proving a negative. You're saying, well, this person didn't do something because of this, and that's pretty hard to do.[11]
”
Phillips
“
I -- that's possibly true, Your Honor. The statistical data, however, here indicates that individual expenditures have in fact gone up since the implementation of matching funds in Arizona. That obviously doesn't directly address the three-candidate situation, I acknowledge that. But there's no evidence that independent expenditures have been suppressed at all, Your Honor. And I would -- I think the question here, Your Honor, is --[11]
”
Scalia
“
May I ask how it -- how it combats corruption unless it suppresses large contributions --[11]
-- by certain entities? I mean, I can understand you say, well, it will stop big donors from giving $10 million to somebody's campaign and having that person in his pocket. But that -- that donor is still going to have that -- that senator or whoever it is just as much indebted to him if he gives $10 million, regardless of whether everybody else gets $10 million as well. How does it -- how does it combat corruption unless -- unless the other side is correct that its whole purpose is to suppress the contribution of $10 million, to make it unworthwhile for anybody to give $10 million?[11]
”
Phillips
“
Your Honor, Arizona's triggered matching funds provision combats corruption in the same manner that public funding combats corruption, because that -- the law is designed to encourage candidates to accept public funding because it offers a viable public funding option to them while conserving the State's resources. And public funding serves the anticorruption rationale in two fundamental ways. First, it frees the candidates who accept public funding from the need to accept potentially corrupting private contributions.[11]
”
Alito
“
Well, there are States that have public funding without having a matching fund provision. I would appreciate it if you would compare these two regimes. The first is exactly what Arizona has now. The second is exactly what Arizona has now minus the matching fund provision. So under the second one you have very strict contribution limits, and you have reporting of all contributions. Now, why does the addition of the matching fund provision serve an anticorruption interest?[11]
”
Phillips
“
Well, Your Honor, I think for the same reasons I think that are implicit in the Buckley Court's upholding of public funding at the same time that the Court upheld contribution limits and disclosure requirements, I think implicitly therefore holding that the three could go together, serving the anticorruption interests. And I think it does that, first, by, first by -- first by freeing, as I said, freeing the publicly funded candidates from the need even to take the limited privately -- private contributions that would be allowed under the law, and which this Court has never held there's a minimum at which that no longer conceivably becomes corrupting. But secondly, it -- it combats corruption by providing for more candidates running, more political speech, and more electoral competition, all of which have happened in Arizona. And where you have more candidates and more electoral competition, you have less -- you are going to have less corruption. The record --[11]
”
Roberts
“
So -- so the idea is this is a way of encouraging candidates to take the public financing, right?[11]
Would it encourage more candidates to do that if you doubled the amount that was available for every additional amount that the privately financed candidate spends? He spends $1,000 over the amount and the publicly financed candidate gets $2,000. A lot more people are going to do the publicly financing route if that were the case.[11]
”
Phillips
“
It would encourage them more, Your Honor. It's not our contention that anything that a State or Congress did to encourage public funding would necessarily be constitutional. I think the question would be different if it were a two to one or, to make a more stark contrast, a ten to one match. I think that would raise multiple questions. One question would be, looking at the statute in its entirety, has the public funding scheme become coercive rather than voluntary? It would raise the question whether the purpose of the law were really to simply provide viable funding to candidates --[11]
”
Roberts
“
But that's kind of an odd line to find in the First Amendment, isn't it? That you get a 100 percent matching as opposed to, say, 110 percent or 150 percent? Somewhere in the First Amendment the line is drawn on the amount?[11]
”
Phillips
“
I think somewhere in the First Amendment there is a line, Your Honor, implicit in Buckley, where a public funding law provides such substantial benefits without sufficient countervailing burdens to publicly funded candidates that it becomes coercive rather than voluntary, and therefore you have coerced someone into accepting a spending limit, which I believe would be certainly subject to strict scrutiny and almost surely unconstitutional. And I think that is -- the Court would need to assess that in each instance, and I think it could be done. I certainly don't think that here you have a coercive system. A third of the candidates don't accept public funding, and most of those who don't and accept -- and face publicly funded candidates actually win.[11]
Certainly it doesn't work in the sense, Your Honor, if the goal were for everyone to accept public funding, it doesn't work in that sense. But it certainly works in the sense that two-thirds of the candidates do, and it works in the sense that there hasn't been a repeat of the public corruption scandals in Arizona since the law was passed.[11]
”
2. Expression vs. disclosure
Chief Justice Roberts and Justice Kennedy asked questions regarding the distinction between expression and disclosure with regards to the Arizona law:
Roberts
“
As a matter of common sense -- I think this has already been asked -- if you knew that a $10,000 expenditure that you would make that would support a candidate would result in $30,000, 40,000, 50,000, depending on how many opposition candidates there were available for them, wouldn't you think twice about it?[11]
”
Phillips
“
I might think twice about it, Your Honor. But first, I think thinking twice is not a severe burden. I think I might think twice in some circumstances if I knew that by spending a certain amount of money I had to disclose the fact that I was doing that and what my political views were and lose my anonymity, but thinking twice this Court has held in that circumstance doesn't create a severe burden, and we would submit that thinking twice here similarly does not.[11]
”
Roberts
“
Well, if you're thinking twice and one way you're thinking is not to do it, that sounds like a sufficient burden.[11]
”
Phillips
“
Well, Your Honor, if it were a sufficient burden, it would presumably have been a sufficient burden with respect to disclosure, where this Court has recognized that some people may not spend or contribute because of the disclosure requirements.[11]
”
Roberts
“
Our cases, as you know, have drawn a distinction between expression and disclosure.[11]
”
Phillips
“
Yes. Yes, Your Honor, but the point I'm making is that the disclosure, this Court has recognized, potentially chills, deters the expression itself.[11]
”
Kennedy
“
Are you saying that anything that has to be disclosed can also be prohibited? I mean, I just don't see the equivalence here.[11]
”
Phillips
“
No, Your Honor, I wasn't suggesting that. But I --[11]
”
Kennedy
“
It seems to me that this law has a severe criticisms leveled at it, severe legal invalidities alleged, quite without reference to disclosure.[11]
”
Phillips
“
Well, Your Honor, I was making the analogy to disclosure in the sense of the think-twice notion that Mr. Chief Justice raised, but I don't think -- I don't think this creates any more of a burden, indeed we would submit less of a burden, than a disclosure requirement. You would expect somebody who believes that their speech is more persuasive than the other participants in the race, whether they be an independent group or a candidate, to choose more speech, because they think that, if I speak, even if the other people speak, my message is going to get out there and it's going to be preferable. There may be some few candidates, although there's not a record of that here, some few groups or candidates who would decide that they would prefer less speech. It's better for me if my opponent or the other candidate doesn't speak more because he's going to be more persuasive than I am.[11]
”
Amicus curiae's argument
William M. Jay argued the case for the United States of America as an amicus curiae.
Is Arizona's purpose legitimate?
Chief Justice Roberts and Justice Alito asked the government's counsel about the legitimacy of Arizona's law:
Roberts
“
Counsel, do you agree that under our precedents, leveling the playing field for candidates is not a legitimate State purpose?[11]
”
Jay
“
We do, Mr. Chief Justice. That -- that, of course, is not what's at work here.[11]
”
Roberts
“
Well, I checked the Citizens' Clean Elections Commission website this morning, and it says that this act was passed to, quote, "level the playing field" when it comes to running for office. Why isn't that clear evidence that it's unconstitutional?[11]
”
Jay
“
Well, Mr. Chief Justice, whatever the Citizens Clean Elections Commission says on its web site I think isn't dispositive of what the voters of Arizona had in mind when they passed this initiative. The Court -- this Court has recognized since Buckley that public financing serves a valid anticorruption purpose, and it does so because it eliminates the influence of private contributions on the candidates who take public financing. And it --[11]
”
Alito
“
But would you agree that the matching fund provision by itself does not serve an anticorruption purpose?[11]
”
Jay
“
Well, Justice Alito, the matching funds provision the State of Arizona has concluded is an important way of ensuring that candidates will take public financing, because it is a formula of ensuring that candidates will have enough money to run competitive races without wasting the State's money...[11]
”
Roberts
“
Why -- why do you think the elections commission then tells us its purpose is to level the playing field?[11]
”
Jay
“
I can't -- I -- I don't speak for the elections commission, Mr. Chief Justice, but the State of Arizona has said in -- in this case that the purpose of public financing, as indeed was the purpose of the presidential public financing system that this Court upheld in Buckley, is to combat corruption. And public financing is a recognized way of combatting corruption, and giving out these matching funds is a way of encouraging candidates to participate.[11]
In his opinion for the court, Chief Justice Roberts held that the matching funds provision imposed a substantial burden on political speech that could not be justified by a compelling interest in order to survive First Amendment scrutiny. The court held that the logic of the court's precedent in Davis v. Federal Election Commission governed in this case, and that "much like the burden placed on speech in Davis, the matching funds provision 'imposes an unprecedented penalty on any candidate who robustly exercises [his] First Amendment right[s].'" The chief justice said,
“
Arizona's program gives money to a candidate in direct response to the campaign speech of an opposing candidate or an independent group. It does this when the opposing candidate has chosen not to accept public financing, and has engaged in political speech above a level set by the State. The professed purpose of the state law is to cause a sufficient number of candidates to sign up for public financing ... which subjects them to the various restrictions on speech that go along with that program. This goes too far; Arizona's matching funds provision substantially burdens the speech of privately financed candidates and independent expenditure groups without serving a compelling state interest ... Laws like Arizona's matching funds provision that inhibit robust and wide-open political debate without sufficient justification cannot stand.
The First Amendment's core purpose is to foster a healthy, vibrant political system full of robust discussion and debate. Nothing in Arizona's anti-corruption statute, the Arizona Citizens Clean Elections Act, violates this constitutional protection. To the contrary, the Act promotes 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' ... No fundamental principle of our Constitution backs the Court's ruling; to the contrary, it is the law struck down today that fostered both the vigorous competition of ideas and its ultimate object--a government responsive to the will of the people. Arizonans deserve better. Like citizens across this country, Arizonans deserve a government that represents and serves them all. And no less, Arizonans deserve the chance to reform their electoral system so as to attain that most American of goals. Truly, democracy is not a game.
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