For Immediate Release
Friday, March 11, 2005

Contact Information:
Deborah Goldberg, 212-998-6748
Dorothee Benz, 212-998-6318

Court Dismisses Lawsuit against Arizona Clean Elections Law

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New York, NY – The United States District Court for Arizona yesterday dismissed the latest lawsuit brought against the state's landmark Clean Elections Act. The ruling by federal District Court Judge Earl Carroll marks the seventh time that opponents of the reform legislation, which was passed by Arizona voters in 1998 and went into effect in 2000, tried-and failed-to stop the successful public funding program for state elections.

The case, Association of American Physicians and Surgeons v. Brewer, alleged the matching funds provision of the Clean Elections Act effectively makes participation in the public financing program compulsory. The Clean Elections Act provides for full public financing for participating candidates, who receive a lump sum; it also provides matching funds to participating candidates in amounts equal to any funds over the lump-sum amount that their non-participating opponents have raised or that have been spent on independent ads. In other words, it provides matching funds so that non-participating candidates cannot grossly outspend participating candidates, which would discourage participation and undermine the entire system. The plaintiffs in Association of American Physicians and Surgeons v. Brewer contended the law violated their First Amendment and Fourteenth Amendment equal protection rights. Judge Carroll firmly rejected that claim.

The motion to dismiss the lawsuit was brought by the Brennan Center for Justice at NYU School of Law and Arizona Center for Law in the Public Interest on behalf of the Clean Elections Institute and Steven Poe, a 2004 candidate for the Arizona State Senate.

"This latest ruling affirms once again that the Clean Election Act is constitutionally sound as well as good public policy," said Deborah Goldberg from the Brennan Center. "The law has helped make government in Arizona more honest, open and accountable by allowing candidates to compete on the basis of ideas and popular support rather than personal wealth or campaign contributions."

The Arizona Clean Elections Law was the second state campaign finance reform measure to institute full public financing for all state elections. (The Maine Clean Elections system withstood a similar court challenge in the 2000 case Daggett v. Commission on Governmental Ethics and Election Practices, and Association of American Physicians and Surgeons v. Brewer adopts the reasoning of the earlier case.) It is one of a growing number of states that are instituting reform legislation both to open up the political process so that more people can participate and to address the corrupting influence of money on politics.

The Citizen's Clean Elections Commission

The Goldwater Institute's Center for Constitutional Government opposes The Clean Elections Law:

Is Cleanliness Political Godliness? Arizona's Clean Elections Law after Its First Year
by Robert J. Franciosi
Arizona Issue Analysis #168
November 30, 2001

Executive Summary

In 1998, Arizona voters passed the Citizens Clean Elections Act. Its purpose was to eliminate the alleged deleterious effect of private money on state politics: the influence of private contributions on elected officials and the advantages enjoyed by candidates with large campaign chests. The Citizens Clean Elections Act established an optional system of public campaign finance for those people seeking state offices. Candidates may forswear private contributions and in return receive public subsidies for their campaigns. The money for the subsidies comes from compulsory and noncompulsory sources.

Fourteen states provide some public subsidies for political candidates. Seven fund candidates for state legislative office. Of those, however, most provide only partial or matching support for candidates who agree to stay below a specified spending cap. Arizona is one of only three states (Maine and Massachusetts are the other two) that, as of this writing, provide legislative candidates with public funding for up to the full amount of statutory caps- typically $10–$20 thousand (Common Cause 1999).?

In 2000, 233 candidates ran for seats on the Arizona Legislature; of those, 54, or 23 percent, were Clean Elections candidates. There were also 5 candidates for the Arizona Corporation Commission who accepted public subsidies. During this election cycle there were no races for the other offices-governor, attorney general, secretary of state, superintendent of public education, and mine inspector-eligible for Clean Elections money. A total of $1.9 million was given to the 59 participating candidates. Of those candidates running for the legislature, 14 won a seat: 2 in the Senate (1 Democrat and 1 Republican), and 12 in the House (2 Republicans and 10 Democrats.) Clean Elections candidates won both races for the Corporation Commission.

This report analyzes the effects of the Citizens Clean Elections Act after its first election cycle to determine its impact on the competitiveness of legislative races in 2000. Compared with 1996, which was the last presidential election year, the 2000 election saw a small increase in the competitiveness of races. That is, the number of races with more candidates I wish to thank Lauren Kummerer and Keith Aspinall, research interns at the Goldwater Institute, for their assistance. This report refers to candidates who accepted public subsidies as "participating candidates," "Clean Elections candidates," or "publicly subsidized candidates." Candidates who accepted private contributions will be referred to as "nonparticipating candidates" or "privately funded candidates." Goldwater Institute 2 in 2000 than in 1996 was slightly higher than the number of races in which the number of candidates declined. The only dramatic changes in 2000 were a decline in the competitiveness of Republican primary races and an increase in the number of Democratic candidates in Senate races. However, in many races, the increase in the number of candidates can be attributed to factors other than Clean Elections-especially vacant seats caused by term limits.

This report also explores whether accepting public subsidies caused legislators to vote differently from legislators who continued to accept private support. It compares the votes of publicly and privately supported legislators on bills considered by the Arizona legislature during the 2001 session to the positions taken by numerous interest groups on the same bills. It finds, after controlling for the ideology of legislators, no meaningful difference in the way subsidized and unsubsidized legislators voted. That is, legislators who used public funds to get elected were equally likely to vote for or against most interest groups such as the Arizona Chamber of Commerce, the Sierra Club, the National Rifle Association, and Planned Parenthood as their privately financed counterparts in the same party.

Finally, this report comments on the concerns that are raised by an expansion of campaign finance regulation and subsidies like the Clean Elections Act. Most important are the threats against First Amendment rights. Taken to its intended limit, the act will make political campaigns, for office at least, a wholly owned subsidiary of the state government, giving the government significant power over political speech in the state. There is also the fact that a majority of the funds distributed under the act are coerced, which forces all residents to support political ideologies that they may not agree with.

We must weigh the costs and benefits of increasing the competitiveness of political campaigns. In 2000 the average Clean Elections candidate for a legislative seat spent more than the overall average candidate, so the money spent on elections in 2000 was likely greater than it would have been without the Clean Elections Act. When a candidate receives private backing, it is safe to assume that, at least to some of the public, his opinions and positions make an important contribution to the policy debate. Otherwise, his supporters would not contribute the time, money and other resources needed for a campaign. With public funding, however, there is no such market test. Is a candidate's presence in a legislative race worth $25,000 or more in subsidies?

Given its negligible impact, its cost, and its infringement of First Amendment rights, the Clean Elections system should be repealed. Unfortunately, under present law the courts are virtually the only branch of Goldwater Institute 3 government that has the power to modify or abolish the Clean Elections Act. A lawsuit filed by the Institute for Justice may succeed in stripping away two-thirds of the revenue used for the subsidies, effectively emasculating the act. Absent this, it is up to Arizona voters to eliminate the act through an initiative.

Several foundations have spent millions of dollars to spread the Clean Elections model to other states. Despite the large amount of cash that will be used to persuade them, voters in other states should learn from Arizona's experience and steer clear of the Clean Elections system.