After an Arizona federal district court, relying on a recent US Supreme Court decision,
declared
a provision of that state’s clean elections law unconstitutional, other states are having to decide how to move forward on clean elections in their states.

Given that this was just one decision by a lower court, the California legislature approved
AB 583
on August 30th, one day after the Arizona ruling. This legislation, sponsored by
Rep. Loni Hancock
, creates a public financing pilot program for the Secretary of State race in 2014. For the law to go into effect it must first be approved by voters next year. On the other hand, New Jersey legislators overreacted to the decision and
Assembly Speaker Joseph Roberts Jr.
announced that he would not seek to renew clean elections legislation (
AB 100
) in the upcoming session.

The Arizona Court Decision: In Arizona, the decision focused on the “fair fight funds” that are given to publicly funded candidates who have been outspent by privately funded opponents or third parties. In a case brought by the rightwing Goldwater Institute on behalf of Republican legislative candidates, the judge in the decision declared that “fair fight” funds restrict the First Amendment rights of privately financed legislative candidates.

In Arizona, the decision focused on the “fair fight funds” that are given to publicly funded candidates who have been outspent by privately funded opponents or third parties. In a case brought by the rightwing Goldwater Institute on behalf of Republican legislative candidates, the judge in the decision declared that “fair fight” funds restrict the First Amendment rights of privately financed legislative candidates.

In Arizona, the decision focused on the “fair fight funds” that are given to publicly funded candidates who have been outspent by privately funded opponents or third parties. In a case brought by the rightwing Goldwater Institute on behalf of Republican legislative candidates, the judge in the decision declared that “fair fight” funds restrict the First Amendment rights of privately financed legislative candidates.

The controversial ruling is based on the US Supreme Court’s recent decision
Davis vs. Federal Election Commission
which invalidated a separate and distinct provision in federal law, the so-called “millionaire’s amendment” to the Bipartisan Campaign Reform Act of 2002 (popularly referred to as “McCain-Feingold”). That law allowed candidates outspent by self-funded opponents to accept larger contributions than their opponents, and applied unique disclosure and reporting requirements on the self-funded candidate. The rightwing majority in that Supreme Court decision stated that “leveling the playing field” in a political contest is not a legitimate government interest.

Why the Arizona Decision May be Overturned on Appeal: When the Davis decision was released, some in the election law community took it as an
indication
that fair fight funds would also fail to pass constitutional muster because, according to their thinking, such funds are specifically designed to level the speech of the various candidates. However, the
Campaign Legal Center
(CLC) has put forth a
cogent counter-argument
that outlines the critical differences between the two provisions and the additional, legitimate justifications for fair fight funds.

When the Davis decision was released, some in the election law community took it as an
indication
that fair fight funds would also fail to pass constitutional muster because, according to their thinking, such funds are specifically designed to level the speech of the various candidates. However, the
Campaign Legal Center
(CLC) has put forth a
cogent counter-argument
that outlines the critical differences between the two provisions and the additional, legitimate justifications for fair fight funds.

When the Davis decision was released, some in the election law community took it as an
indication
that fair fight funds would also fail to pass constitutional muster because, according to their thinking, such funds are specifically designed to level the speech of the various candidates. However, the
Campaign Legal Center
(CLC) has put forth a
cogent counter-argument
that outlines the critical differences between the two provisions and the additional, legitimate justifications for fair fight funds.

As the CLC points out, the millionaire’s amendment placed significant burdens on the self-financed candidate that fair fight funds do not – accepting lower contribution limits and more reporting requirements. Fair fight funds in contrast place no additional burden on a privately financed candidate’s speech; they merely amplify the speech of publicly financed candidates. In addition, the state benefits by limiting campaign expenditures for publicly financed candidates, only giving them additional funds when needed to wage a competitive election. This is clearly a reasonable way to ration scarce state resources. The funds also induce participation in the public financing system, for without them participating candidates would be engaged in a type of unilateral disarmament.

The district court ruling will have no immediate effect in Arizona because the judge declined to grant a temporary restraining order to prevent the disbursement of fair fight funds citing the nearness of the upcoming election. A hearing will be held in early October regarding a permentant injunction. Whatever the outcome at the district court level, the issue of the constitutionality of fair fight funds will almost certainly be appealed to the US Supreme Court.

California and New Jersey Clean Elections Campaigns: California’s law is still waiting for the Governor’s signature and voter approval, but it retains its fair fight provision, granting matching funds to outspent publicly financed candidates. Funding for the program comes from increased lobbyist registration fees and a voluntary tax-form contribution.

California’s law is still waiting for the Governor’s signature and voter approval, but it retains its fair fight provision, granting matching funds to outspent publicly financed candidates. Funding for the program comes from increased lobbyist registration fees and a voluntary tax-form contribution.

California’s law is still waiting for the Governor’s signature and voter approval, but it retains its fair fight provision, granting matching funds to outspent publicly financed candidates. Funding for the program comes from increased lobbyist registration fees and a voluntary tax-form contribution.

In New Jersey, it’s unfortunate that Speaker Roberts has shelved the legislation, since he has been the sponsor and major legislative promoter of clean elections in New Jersey from when the first pilots were established in 2005. The Arizona decision was in accord with a
legal opinion
from the New Jersey Office of Legislative Services, which also predicted that fair fight funds will be held unconstitutional under Davis. Still, a
press release
issued by the Speaker stated that clean elections would merely be “on hiatus” and lamented that “… an activist court half a continent away has thrown such a huge obstacle in the way of a good government ethics reform that was making real headway in changing politics in New Jersey for the better.”

Given the fact that the Arizona decision has no legal bearing on New Jersey, and that many courts have upheld fair fight funds in the past, many were perplexed at the Speaker’s statement. Multiple commentators have posited that the Arizona decision is a
fig leaf
for abandoning a issue that was being heavily attacked by opponents.