Steve Simpson

Today, the Supreme Court will hear oral argument in Arizona Free Enterprise PAC v. Bennett, the first campaign finance case since the Court decided Citizens United last January. While the case will not affect as many laws as Citizens United, it promises to be just as controversial, for it involves the constitutionality of what “good government” types have long seen as a sort of campaign finance holy grail—government financing of political campaigns.

Under Arizona’s Citizens Clean Elections Act, candidates for state office can opt to have their campaigns funded by the state, instead of raising funds from private donors. The catch—and there’s always a catch when the government is handing out “free” things—is that they must reject private funds and spend only the limited funds provided by the state. Proponents of government funding have long viewed the programs as a way to limit campaign spending and “level the playing field” among candidates they believed could not win without government subsidies, and the Act’s proponents were no different.

The problem, however, was that too many candidates might not make the “right” choice. The Act couldn’t force candidates to choose state funding and its attendant cap on spending because the Supreme Court has long rejected spending limits in campaigns. So proponents did the next best thing—they included a “matching funds” provision that stacked the deck against anyone who might run against a state-funded candidate.

Under the matching funds provision, the state gives additional grants to state-funded candidates when their privately-funded opponents outspend them. Even the spending of independent groups who support privately-funded candidates gets “matched” under the provision, and privately-funded candidates who run against several state-funded opponents face a multiplier effect, as their expenditures are “matched” with grants to every opponent. This would be like the government handing money to every major news network every time Fox News speaks too much. The clear message: Accept state-funds and limit your spending, or the government will shower your opponent with money she will use to defeat you.

Steve Simpson

Steve Simpson is a senior attorney at the Institute for Justice. He litigates primarily free speech cases in the state and federal courts across the country.