McComish v. Bennett

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN MCCOMISH; NANCY MCLAIN; 

TONY BOUIE,

Plaintiffs-Appellees,

ROBERT BURNS,

Plaintiff-Intervenor-Appellee,

ARIZONA FREE ENTERPRISE CLUB’S

FREEDOM CLUB PAC; ARIZONA

TAXPAYERS ACTION COMMITTEE,

agent of Taxpayers Action

Committee; DEAN MARTIN; RICK

MURPHY,

Plaintiffs-Intervenors-Appellees,

No. 10-15165

v.

 D.C. No.

KEN BENNETT, in his official CV-08-1550-ROS

capacity as Secretary of State of

the State of Arizona; GARY

SCARAMAZZO; ROYANN J. PARKER;

JEFFREY L. FAIRMAN; DONALD

LINDHOLM; LORI S. DANIELS, in

their official capacities as

members of the Arizona Citizens

Clean Elections Commission,

Defendants-Appellants,

and

CLEAN ELECTIONS INSTITUTE, INC.,

Defendant-Intervenor.



9139

9140 MCCOMISH v. BENNETT

JOHN MCCOMISH; NANCY MCLAIN; 

TONY BOUIE,

Plaintiffs-Appellees,

DEAN MARTIN; ROBERT BURNS;

RICK MURPHY; ARIZONA FREE

ENTERPRISE CLUB’S FREEDOM CLUB

PAC; ARIZONA TAXPAYERS ACTION

COMMITTEE, agent of Taxpayers

Action Committee,

Plaintiffs-Intervenors-Appellees, No. 10-15166

v. DC No.

KEN BENNETT, in his official

capacity as Secretary of State of

 CV 08-1550 ROS

ORDER AND

the State of Arizona; GARY AMENDED

SCARAMAZZO; ROYANN J. PARKER; OPINION

JEFFREY L. FAIRMAN; DONALD

LINDHOLM; LORI S. DANIELS, in

their official capacities as

members of the Arizona Citizens

Clean Elections Commission,

Defendants,

and

CLEAN ELECTIONS INSTITUTE, INC.,

Defendant-Intervenor-Appellant.



Appeals from the United States District Court

for the District of Arizona

Roslyn O. Silver, District Judge, Presiding

Argued and Submitted

April 12, 2010—San Francisco, California

Filed May 21, 2010

Amended June 23, 2010

MCCOMISH v. BENNETT 9141

Before: Andrew J. Kleinfeld, A. Wallace Tashima, and

Sidney R. Thomas, Circuit Judges.

Opinion by Judge Tashima;

Concurrence by Judge Kleinfeld

MCCOMISH v. BENNETT 9143

COUNSEL

Nicholas C. Dranias, Goldwater Institute, Phoeniz, Arizona,

for the plaintiffs-appellees.

William R. Maurer, Institute for Justice, Seattle, Washington,

for the plaintiffs-intervenors-appellees.

Mary R. O’Gracy, Solicitor General of Arizona, Phoenix, Ari-

zona, for the defendants-appellants.

Bradley S. Phillips, Munger, Tolles, & Olson, Los Angeles,

California, for the defendant-intervenor-appellant.

Stephen M. Hoersting, Center for Competitive Politics, Alex-

andria, Virginia, for amicus curiae Center for Competitive

Politics.

9144 MCCOMISH v. BENNETT

ORDER

The opinion filed May 21, 2010, slip op. 7319, is amended

by deleting footnote 1, slip op. at 7326, and substituting the

following footnote in its place:

1 Governor Symington was sentenced to a 30-month

term of imprisonment, but his conviction was

reversed and the case remanded for a new trial. See

United States v. Symington, 195 F.3d 1080 (9th Cir.

1999). He was then granted a presidential pardon

just as his retrial was set to commence.

OPINION

TASHIMA, Circuit Judge:

This is a challenge to the constitutionality of the “matching

funds” provision of Arizona’s Citizens Clean Elections Act,

Ariz. Rev. Stat. § 16-952. The Act establishes a legal frame-

work within which the State of Arizona may provide public

financing to candidates for state political offices. A candidate

who chooses to participate in the Act’s voluntary public

financing scheme relinquishes her or his right to raise private

campaign contributions. Instead, she or he receives an initial

grant of funds from the state to spend on her or his campaign.

The challenged provision ensures that if the participating can-

didate has an opponent who is not participating in the public

financing system and whose campaign expenditures or contri-

butions exceed a threshold set by the Act, she or he receives

additional matching funds from the State.

Six past and future candidates for Arizona political office

who have, or plan to, run privately-financed campaigns, as

well as two political action committees who fund such candi-

dates, brought suit to enjoin the Act’s matching funds provi-

MCCOMISH v. BENNETT 9145

sion, alleging that it violates their rights under the First

Amendment and the Equal Protection Clause of the Four-

teenth Amendment of the U.S. Constitution. These Plaintiffs

claim that the matching funds provision severely burdens their

exercise of protected political speech by punishing them for

making, receiving, or spending campaign contributions. As

nonparticipating candidates, if they exceed the Act’s matching

funds threshold, they will trigger the disbursement of match-

ing funds to their opponents. They allege that their fear of

triggering matching funds to their opponent causes them to

curb their campaign fundraising or spending, thereby chilling

their speech. They also claim that because the Act treats can-

didates differently based on whether or not they participate in

the public financing scheme, it denies them the equal protec-

tion of the law.

The district court held that the matching funds provision of

the Act violated the First Amendment. It did not reach Plain-

tiffs’ equal protection claim. After determining that the

matching funds provision of the Act could not be severed

from the Act as a whole, the district court granted Plaintiffs’

motion for summary judgment, issued a declaratory judgment

that the Act violates the First Amendment, and enjoined its

enforcement.

Applying Supreme Court precedent analyzing campaign

finance laws under the First Amendment, see Citizens United

v. FEC, 130 S. Ct. 876 (2010); Davis v. FEC, 128 S.Ct. 2759

(2008); Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), we

conclude that the matching funds provision of the Act

imposes only a minimal burden on First Amendment rights.

It survives intermediate scrutiny because it bears a substantial

relation to the State’s important interest in reducing quid pro

quo political corruption. Because the Act conforms to the

requirements of the First Amendment and must be upheld, we

reverse. We decline to address Plaintiffs’ equal protection

claim in the first instance; instead, we remand to the district

court so that it may consider the issue.

9146 MCCOMISH v. BENNETT

I. Statutory Background

Prior to the passage of the Citizens Clean Elections Act (the

“Act”), Arizona had already adopted campaign contribution

limits. Ariz. Rev. Stat. § 16-905 (historical and statutory

note). In 1986, the State’s voters passed an initiative measure

establishing individual contribution limits of $200 for legisla-

tive candidates and $500 for statewide candidates, per elec-

tion. See id. Even with these campaign contribution limits in

place, Arizona experienced a series of massive political cor-

ruption scandals.

In 1988, Governor Evan Mecham was indicted on multiple

criminal charges, including perjury and fraud for allegedly

hiding a campaign loan. He was later impeached on charges

of misuse of public funds and obstruction of justice, and

ousted from office. Next, the “Savings and Loan Scandal” led

to a United States Senate Ethics Committee investigation of

certain activities of both U.S. Senators from Arizona, who had

received contributions and favors from Arizona savings and

loan tycoon Charles Keating.

Then, in 1991, AzScam erupted. A sting operation caught

state legislators on videotape accepting campaign contribu-

tions and bribes in exchange for agreeing to support gambling

legislation. The video footage was generally seen as outra-

geous. For example, Representative Don Kenny was seen

stuffing a $55,000 cash bribe into a gym bag after joking, “are

you sure there are no hidden cameras up there?” AzScam

resulted in the indictment of twenty-one individuals, including

lobbyists, political activists, and seven state legislators. Two

additional state legislators were named in a civil racketeering

suit. In total, nearly ten percent of the Arizona Legislature at

the time faced civil or criminal charges related to AzScam.

Former Arizona Governor J. Fife Symington testified that the

scandal was highly publicized around the state.

MCCOMISH v. BENNETT 9147

In the late nineties, Governor Symington himself was

embroiled in scandal and indicted on twenty-three counts,

including using the power of his office to extort concessions

from a pension fund to which he owed $10 million. He

became Arizona’s second governor in a row to leave his

office in disgrace when he resigned in 1997, after being con-

victed on seven counts of filing false financial statements.1

In the wake of these scandals, the voters of Arizona passed

the Citizens Clean Elections Act, Ariz. Rev. Stat. §§ 16-940

- 16-961, an initiative measure, in the 1998 statewide election.

Ariz. Rev. Stat. § 16-940 (historical and statutory note). There

is no evidence that the Act was intended solely to remedy Ari-

zona’s apparent susceptibility to political corruption. Plain-

tiffs, however, introduced ample evidence indicating that

when the Act was adopted, voters were aware of, and con-

cerned about, continuing and repeated political corruption in

Arizona.

The voter information pamphlet for the 1998 election

argued that the Act should be approved because it would free

politicians “to represent the best interests of all the citizens,

not just the large financial contributors who can trade their

cash for political support.” Ballot Propositions Publicity Pam-

phlet for the 1998 Arizona General Election, at *87, available

at http://www.azsos.gov/election/1998/info/pubpamphlet/

prop200.pdf. One justification for the Act was that it would

change Arizona’s “reputation [as] a state rife with corruption

and the abuse of money in politics . . . . [and] restore confi-

dence in our political system.” Id. at *88. The pamphlet fur-

ther noted that under the existing election law regime, “[o]ur

1

Governor Symington was sentenced to a 30-month term of imprison-

ment, but his conviction was reversed and the case remanded for a new

trial. See United States v. Symington, 195 F.3d 1080 (9th Cir. 1999). He

was then granted a presidential pardon just as his retrial was set to com-

mence.

9148 MCCOMISH v. BENNETT

elected officials are going to jail and this cycle of abuse seems

endless.”2 Id.

The Act’s findings state that the State’s previous election

financing system, “[u]ndermine[d] public confidence in the

integrity of public officials,” because it “[a]llow[ed] Arizona

elected officials to accept large campaign contributions from

private interests over which they have governmental jurisdic-

tion.” Ariz. Rev. Stat. § 16-940. The Act’s stated purpose is

to “create a clean elections system that will improve the integ-

rity of Arizona state government by diminishing the influence

of special-interest money, will encourage citizen participation

in the political process, and will promote freedom of speech.”

Id.

Plaintiffs argue that the Act was not aimed at reducing cor-

ruption, and that legislative reforms designed to prevent

another AzScam had already been adopted at the time the Act

was passed. Instead, Plaintiffs contend that the Act’s true pur-

poses were to level the political playing field and reduce cam-

paign spending.3 Voters are motivated by varied and

2

One of the Act’s original supporters testified that another one of its

goals was to “promote freedom of speech because . . . [under the Act,]

more candidates would have more opportunity to speak.”

3

We recently recognized in Long Beach Area Chamber of Commerce v.

City of Long Beach, that in light of Supreme Court precedent, “ ‘prevent-

ing corruption or the appearance of corruption are the only legitimate and

compelling government interests thus far identified for restricting cam-

paign finances.’ ” Long Beach, No. 07-55691, __ F.3d __, 2010 WL

1729710 at *7 (9th Cir. April 30, 2010) (quoting FEC v. Nat’l Conserva-

tive Political Action Comm., 470 U.S. 480, 496-97 (1985)). In particular,

we observed that the so-called “anti-distortion rationale,” under which the

government claims an “interest in combating ‘the corrosive and distorting

effects of immense aggregations of wealth,’ ” is not a legitimate basis for

campaign finance restrictions after the Supreme Court partially overruled

Austin v. Mich. State Chamber of Commerce, 494 U.S. 652 (1990), in its

Citizens United decision. Id. at *6 (quoting Austin, 494 U.S. at 660 and

discussing Citizens United, 130 S. Ct. at 904, 912-13). Likewise, the “time

protection rationale,” under which the government claims an interest in

MCCOMISH v. BENNETT 9149

conflicting motivations. Generally, a diverse electorate cannot

be said to share one true intent in adopting an initiative mea-

sure. More specifically, the extent to which Arizona’s various

corruption scandals led to the passage of the Act cannot be

precisely determined. Based on the record before us, however,

we conclude that one of the principal purposes of the Act was

to reduce quid pro quo corruption.

The Act created a system of public financing for political

campaigns. A candidate who chooses not to participate in this

system may raise unlimited funds from private donations,

subject to contribution limits and disclosure requirements,

which existed before the Act. If a candidate opts to participate

in the public financing system, she or he agrees to forfeit her

or his right to fund her or his campaign with private contribu-

tions. Instead, she or he must collect a required number of

five-dollar “qualifying contributions” during a specified time

period to demonstrate that she or he has the voter support to

be a viable candidate. Ariz. Rev. Stat. § 16-946. The number

of required qualifying contributions varies between two hun-

dred and four thousand, depending on the office that the can-

didate is seeking. Ariz. Rev. Stat. § 16-950(D).

“ ‘protect[ing] candidates from spending too much time raising money

rather than devoting that time to campaigning among ordinary voters’ ”

may not serve as the basis for restricting campaign finance activity. Id. at

*7 (quoting Randall v. Sorrell, 548 U.S. 230, 243-45 (2006)).

We need not, however, address the potential legitimacy of arguments

that the State has not raised before us in defense of the Act. Further, even

if the State had raised these arguments, “[i]t is unnecessary to look beyond

the Act’s primary purpose to limit the actuality and appearance of corrup-

tion resulting from large individual financial contributions in order to find

a constitutionally sufficient justification” for the matching funds provi-

sion. Buckley, 424 U.S. at 26. Because the Act is justified by the State’s

legitimate and non-illusory interest in reducing quid pro quo corruption,

we need not consider the constitutional legitimacy of other potential ratio-

nales that might support it. See id. at 24-27.

9150 MCCOMISH v. BENNETT

If the candidate qualifies for public financing, she or he

will then receive a lump-sum grant for her or his primary

campaign, which varies depending on whether she or he is

running opposed or unopposed in a party primary, or whether

she or he is an independent candidate. Ariz. Rev. Stat. § 16-

951. If the participating candidate has a nonparticipating

opponent in the primary who spends more than her or his ini-

tial grant, or whose expenditures, combined with the value of

independent expenditures in opposition to her or his candi-

dacy or in support of her or his nonparticipating opponent,4

exceed the amount of her or his initial grant, the participating

candidate will receive “matching funds” in the amount of the

combined spending of her or his nonparticipating opponent,

plus the value of independent expenditures against her or him

or in support of her or his nonparticipating opponent, reduced

by six percent and reduced by the amount of “early contribu-

tions” raised by the nonparticipating opponent during the pre-

primary fundraising period.5 Ariz. Rev. Stat. §§ 16-952, 16-

945.

If the participating candidate wins her or his primary and

continues on to the general election, she or he receives a sec-

ond initial lump-sum grant. Ariz. Rev. Stat. § 16-952. If she

or he has a nonparticipating opponent in the primary whose

4

An independent expenditure is a campaign expenditure made by a third

party that “expressly advocates the election or defeat of a clearly identified

candidate, that is made without cooperation or consultation with any can-

didate or committee or agent of the candidate and that is not made in con-

cert with or at the request or suggestion of a candidate, or any committee

or agent of the candidate.” Ariz. Rev. Stat. § 16-901(14).

5

The matching funds that the participating candidate receives are

reduced by six percent to take into account the fact that nonparticipating

candidates incur expenses in order to raise money. The assumption under-

lying this provision is that a nonparticipating candidate must spend six

dollars (on postage, event costs, etc.) in order to raise one hundred dollars,

while a participating candidate has no fundraising costs. Therefore, in

order for both candidates to have the same net amount available to spend

on non-fundraising campaign expenses, the matching funds that the partic-

ipating candidate receives are reduced by six percent.

MCCOMISH v. BENNETT 9151

contributions received, combined with the value of indepen-

dent expenditures in supporting him or her and opposing the

participating candidate, less his or her expenditures during the

primary campaign, exceed the amount of the participating

candidate’s second initial grant, the participating candidate

will receive matching funds, calculated in the same manner as

in the primary campaign. Ariz. Rev. Stat. § 16-952(B). During

both elections, matching funds, combined with the initial

grant, may not exceed three times the amount of the initial

grant. Ariz. Rev. Stat. § 16-952(E). This means that a nonpar-

ticipating candidate who is able to raise funds in excess of

three times the amount of his or her participating candidate’s

initial grant gains a potentially unlimited financial advantage

in the campaign.

II. Factual Background

Plaintiffs are John McComish and Nancy McLain, current

members of the Arizona House of Representatives who are

seeking reelection in 2010, Tony Bouie, a non-incumbent can-

didate for the Arizona House of Representatives, and Robert

Burns, an Arizona State Senator seeking reelection in 2010.

Joining them in this challenge to the Act are plaintiffs-

intervenors, Dean Martin, a former Arizona State Senator,

current State Treasurer, and candidate for Governor in 2010,

Rick Murphy a member of the Arizona House of Representa-

tives seeking reelection in 2010, the Arizona Free Enterprise

Club’s Freedom Club PAC (“Freedom Club PAC”), a politi-

cal action committee (“PAC”) which makes contributions to

Arizonans for a Sound Economy, an independent expenditure

committee that funds independent expenditures in races sub-

ject to the Act, and the Arizona Taxpayers Action Committee

(“Arizona Taxpayers”), an independent expenditure commit-

tee that makes independent expenditures in races subject to

the Act. All candidate-plaintiffs have declined to participate

in the Act’s public funding program and will be running in the

2010 election as privately-financed candidates.

9152 MCCOMISH v. BENNETT

Plaintiffs sued Jan Brewer, in her official capacity as Ari-

zona Secretary of State,6 and Gary Scaramazzo, Royann Par-

ker, Jeffrey Fairman, Donald Lindholm, and Lori Daniels, in

their official capacities as members of the Arizona Citizens

Clean Elections Commission (collectively, the “State”). The

Clean Elections Institute, Inc., a nonprofit organization

formed to continue the work of Arizonans for Clean Elec-

tions, the campaign committee that sponsored the initiative

that created the Act, intervened as a defendant.

Since 2002, between fifty-two percent and sixty-seven per-

cent of candidates for state office during general elections

have chosen to participate in the Act’s public funding pro-

gram. Plaintiffs contend that matching funds have dampened

overall campaign spending in Arizona. It is undisputed, how-

ever, that overall campaign spending in Arizona has increased

since the Act’s passage.

Plaintiffs also allege that matching funds have specifically

deterred them from engaging in political expression through

monetary expenditures. They argue that the fear of triggering

matching funds causes privately-funded candidates to refrain

from or delay raising and spending money in support of their

campaigns. They contend that matching funds burden the

speech of independent expenditure committees by causing

them to delay making independent expenditures in order to

avoid triggering matching funds until later in the campaign,

when the publicly-financed candidate will have less time to

use them, in an attempt to minimize the competitive benefit

of the matching funds to the publicly-financed candidate.

We agree with the district court’s observation that “Plain-

tiffs’ testimony is somewhat scattered and shows only a vague

interpretation of the burden of the Act.” John McComish testi-

fied that in his 2008 campaign for the House of Representa-

6

Ken Bennett has succeeded Jan Brewer as Secretary of State since the

commencement of this action.

MCCOMISH v. BENNETT 9153

tives, he triggered matching funds to his opponents. In order

to avoid triggering additional matching funds to his opponents

until later in the campaign, he “deci[ded] to wait and not

make any substantial expenditures until September 2, 2008.”

McComish describes this as an act of “self-censorship” in

order to avoid the consequence of “disseminat[ing] view-

points hostile to my campaign.”

Nancy McLain testified that during her 2008 campaign for

House of Representatives she “made a conscious decision to

not raise or spend a significant amount because it could not

be spent without resulting in ‘equalizing funds.’ ” Although

she avoided triggering matching funds in the general election,

she triggered matching funds in the primary. She claims that

her “reluctance to fundraise and spend money during the pri-

mary election meant that [she] was not able to broadcast [her]

message either on air or in newspapers as often as [she]

thought necessary to win the election,” although she was vic-

torious. She describes matching funds as imposing a “compet-

itive disadvantage” on her campaign, which her fundraising

and spending choices “seek to minimize.”

Tony Bouie also triggered matching funds during his 2008

campaign for House of Representatives. He testified that

because he had “no control over independent expenditures

that the Commission deems [to] benefit him” he “fe[lt] com-

pelled to conserve money for damage-control in anticipation

of poorly-conceived independent expenditures backfiring

after they trigger matching funds” to his opponents. As a

result he “change[d his] campaign strategy” by “holding [his]

campaign speech until [his] expenditures could be timed to

minimize the impact of the matching funds.” He believes that

matching funds thereby “placed [him] at a continuous tactical

disadvantage.”

Robert Burns “believe[s] that the existence of matching

funds coerces traditionally funded candidates into changing

their message and the timing of getting out their message,

9154 MCCOMISH v. BENNETT

even if ultimately the amount of messaging a traditional can-

didate chooses to engage in does not change.” His deposition

testimony indicated that matching funds had not actually

chilled his speech during his most recent 2008 election for

State Senate. He admitted that he was willing to trigger

matching funds. Further, he also indicated that despite the

matching funds provision, he simply communicated his mes-

sage to the extent he felt was necessary to win, stating “[i]f

I had to spend X number of dollars to get out a — a mailer,

and I had that amount of money, I would go ahead and do the

mailer.”

Dean Martin stated that “the matching funds provision of

the Act forced [him] to self-censor” in his most recent race for

State Treasurer in 2006. He reasoned that the “only way [he]

could avoid being massively outspent by [his] opponent was

to prevent the triggering of additional matching funds to her

campaign” and “was thus coerced into accepting the same

limits as [his] government-funded opponent . . . [without]

receiv[ing] any of the benefits of being a government-funded

candidate, such as the receipt of matching funds for indepen-

dent expenditures that opposed [his] candidacy and the label

‘participating’ or ‘clean’ candidate.” Despite Martin’s testi-

mony that he felt matching funds severely burdened his

speech, he curiously could not even recall whether he had

ever triggered matching funds to an opponent. The record

indicates that Martin is fundamentally opposed to the policy

of publicly financing political campaigns, regardless of

whether a given public financing scheme includes a provision

for matching funds.

Rick Murphy ran successfully for House of Representatives

as a participating candidate in 2004. He later ran for reelec-

tion in 2006 and 2008 as a nonparticipating candidate. He tes-

tified that he attempted to not trigger matching funds during

his 2006 campaign because, since his opponent would receive

additional matching funds once he surpassed the threshold

amount, “[i]t didn’t seem like it made a lot of sense for me

MCCOMISH v. BENNETT 9155

to do that, so I curtailed my speech and curtailed my fundrais-

ing in order to prevent it.” Still, Murphy testified that match-

ing funds have never prevented him from accepting a political

contribution. Murphy’s testimony that he curtailed his fun-

draising for fear of triggering matching funds was directly

contradicted by his own campaign consultant, who testified

that he advised Murphy to “raise as much money” as he could

from “everywhere,” that he never advised Murphy to stop

raising money, and that Murphy never curtailed or stopped his

fundraising efforts.

The treasurer of the Freedom Club PAC testified that the

PAC has never been prevented from making an independent

expenditure for fear of triggering matching funds. He further

stated that he takes into account various campaign finance

“reporting requirements, notifications and filings” upon which

matching funds disbursement determinations by the Citizens

Clean Elections Commission are based, in determining when

to spend money.

Arizona Taxpayers stated that it “decided not to speak in

opposition to [a] participating candidate . . . in the 2006 pri-

mary election because such speech would have triggered

matching funds.” However, the groups’s founder admitted

that it had never decided against making an expenditure

because it would trigger matching funds. Further, the evi-

dence demonstrates that Arizona Taxpayers could not afford

to make expenditures during the 2006 primary election,

because it had only $52.72 in cash on hand.

III. Standard and Scope of Review

We review the district court’s grant of summary judgment

to Plaintiffs and denial of summary judgment to the State de

novo.7 See Block v. City of L.A., 253 F.3d 410, 416 (9th Cir.

7

“Ordinarily a denial of a motion for summary judgment is not a final

order and thus not appealable. 28 U.S.C. § 1291. However, the district

court’s grant of summary judgment was a final decision giving us jurisdic-

tion to review its denial of [the State’s] motion for summary judgment.”

Abend v. MCA, Inc., 863 F.2d 1465, 1482 n.20 (9th Cir. 1988).

9156 MCCOMISH v. BENNETT

2001). This means that we will look at the case “anew, the

same as if it had not been heard before, and as if no decision

previously had been rendered,” and “giving no deference to

the district judge’s determinations.” Freeman v. DirecTV,

Inc., 457 F.3d 1001, 1004 (9th Cir. 2006); Ditto v. McCurdy,

510 F.3d 1070, 1075 (9th Cir. 2007).8 We apply the same

legal standard that the district court did, “[v]iewing the evi-

dence in the light most favorable to the nonmoving party,”

and granting summary judgment “only if no genuine issues of

material fact remain for trial and the moving party is entitled

to judgment as a matter of law.” Block, 253 F.3d at 416. We

“may affirm on any ground supported by the record.” N. Mar-

iana Islands v. United States, 399 F.3d 1057, 1060 (9th Cir.

2005). Because the district court did not rule on the parties’

evidentiary objections and did not strike any evidence from

the record, all of the evidence adduced below remains a part

of the record before us on appeal. See Vinson v. Thomas, 288

F.3d 1145, 1152 & n.8 (9th Cir. 2002).

IV. Analysis

First, we must determine what level of constitutional scru-

tiny applies to the Act’s matching funds provision. The level

of scrutiny that applies to a law which implicates First

Amendment concerns is “dictated by both the intrinsic

strength of, and the magnitude of the burden placed on, the

speech and associational freedoms at issue.” Lincoln Club v.

8

We reject Plaintiffs’ argument that Brown v. Cal. Dep’t of Transp., 321

F.3d 1217, 1221 (9th Cir. 2003), requires us to review the district court’s

findings of fact for clear error because its opinion was one which struck

down a restriction on speech. Brown, and the line of cases that it follows,

apply to this Court’s review of cases in which the district court made find-

ings of fact in the process of issuing a preliminary injunction or holding

a bench trial, or when questions of fact were submitted to a jury. See

Planned Parenthood v. Am. Coalition of Life Activists, 290 F.3d 1058,

1066-1070 (9th Cir. 2002) (en banc). This case, arising from a grant of

summary judgment, is in an entirely different procedural posture to which

these cases do not apply.

MCCOMISH v. BENNETT 9157

City of Irvine, 292 F.3d 934, 938 (9th Cir. 2002). We must,

therefore, engage in a two-step inquiry. First, we determine

whether the type of speech the law affects is fully protected

by the First Amendment. Next, we determine the type of bur-

den, if any, that the law places on that speech. Laws that place

severe burdens on fully protected speech are subject to strict

scrutiny. Laws that “place[ ] only a minimal burden on fully

protected . . . freedoms” or that apply to “speech and associa-

tional freedoms [that] are not fully protected by the First

Amendment” receive intermediate scrutiny. Id.

[1] Buckley, the Supreme Court’s landmark case on the

constitutionality of campaign finance laws under the First

Amendment, provides guidance in determining whether the

Act affects fully protected speech. Buckley held that campaign

contributions are not fully protected political speech. 424 U.S.

at 21-22; see also Lincoln Club, 292 F.3d at 938-39. The

Supreme Court reasoned that a “contribution serves as a gen-

eral expression of support for the candidate and his views, but

does not communicate the underlying basis for the support.

. . . [T]he transformation of contributions into political debate

involves speech by someone other than the contributor.”

Buckley, 424 U.S. at 21. By contrast, campaign expenditures

are fully protected speech because a “restriction on the

amount of money a person can spend on political communica-

tion during a campaign necessarily reduces the quantity of

expression by restricting the number of issues discussed, the

depth of their exploration, and the size of the audience

reached.” Id. at 19.

[2] Following Buckley, a law that has a hybrid effect on

both contributions and expenditures is interpreted as though

it affects fully protected speech. See Lincoln Club, 292 F.3d

at 939. The matching funds provision of the Act affects both

contributions and expenditures. During primary elections, the

Act explicitly ties participating candidate’s matching fund

disbursements to nonparticipating candidates’ expenditures.

Ariz. Rev. Stat. § 16-952. During a general election, the Act

9158 MCCOMISH v. BENNETT

bases matching fund calculations on contributions received by

nonparticipating candidates. Id. This includes contributions

that come from a nonparticipating candidate’s personal funds,

which, under Buckley’s framework, are considered expendi-

tures, and fully protected speech. See 424 U.S. at 51-55.

Because the Act affects both contributions and expenditures,

we analyze it as though it affects fully protected speech.

Next, we determine what level of burden, if any, the Act

imposes on that speech. Plaintiffs argue that the Supreme

Court’s recent decision in Davis, 128 S. Ct. 2759, controls

this case, and compels the conclusion that the Act places a

severe burden on their speech triggering the application of

strict scrutiny. The State and Defendant-Intervenor counter

that the Act places only a minimal or indirect burden on

Plaintiffs’ speech and that the Supreme Court’s latest cam-

paign finance decision, Citizens United, 130 S. Ct. 876, reaf-

firmed that intermediate scrutiny applies to such laws.

[3] In Buckley, the Supreme Court evaluated the constitu-

tionality of provisions of the Federal Election Campaign Act

of 1971, and related provisions of the Internal Revenue Code

of 1954, as amended, which allowed for the public financing

of presidential elections. See 424 U.S. at 6, 85-109. The Court

found that the public financing scheme in that case was “a

congressional effort, not to abridge, restrict, or censor speech,

but rather to use public money to facilitate and enlarge public

discussion and participation in the electoral process, goals

vital to a self-governing people. Thus [it] furthers, not

abridges, pertinent First Amendment values.” Id. at 92-93

(footnote omitted). Therefore, the public financing of elec-

tions itself does not create any burden on speech.

In Davis, the Court struck down the Millionaire’s Amend-

ment to the Bipartisan Campaign Reform Act of 2002

(“BCRA”), 2 U.S.C. § 441a-1(a). The Millionaire’s Amend-

ment applied to campaigns for the United States House of

Representatives, in which all candidates are privately financed

MCCOMISH v. BENNETT 9159

and there is no public funding. But if one candidate financed

his campaign with personal funds in excess of a threshold

amount, “a new, asymmetrical regulatory scheme c[ame] into

play.” 128 S. Ct. at 2766. While the self-financing candidate

continued to be subject to the normal contribution limits, his

opponent, the ‘non-self-financing’ candidate became eligible

to “receive individual contributions at treble the normal limit

. . . even from individuals who may have reached the normal

aggregate contributions cap, and [could] accept coordinated

party expenditures without limit.” Id. The Davis Court held

that this “scheme of discriminatory contribution limits,” “im-

poses a substantial burden on the exercise of the First Amend-

ment right to use personal funds for campaign speech.” Id. at

2772. Having found the Millionaire’s Amendment to be a

substantial burden on fully protected speech, the Court

applied strict scrutiny. Id.

Plaintiffs urge us to adopt the rationale of the district court

and conclude that, under the logic of Davis, they have “estab-

lished a cognizable burden” under the First Amendment. The

district court reasoned that “[i]f the mere potential for your

opponent to raise additional funds is a substantial burden, the

granting of additional funds to your opponent must also be a

burden.” We disagree. As discussed below, we conclude that

Davis is easily and properly distinguished from the case at

bench.

The regulatory framework the Supreme Court examined in

Davis is different from the one we confront under the Act.

Davis says nothing about public “funding schemes and there-

fore says nothing about their constitutionality.” Comment,

122 Harv. L. Rev. 375, 383 (Nov. 2008). All of the candidates

in Davis were subject to the same scheme regulating privately

financed candidates. “Under the usual circumstances, the

same restrictions apply to all the competitors for a seat and

their authorized committees.” Davis, 128 S.Ct. at 2765. But

if one candidate heavily self-funded his campaign, it triggered

an entirely new “asymmetrical regulatory scheme” that

9160 MCCOMISH v. BENNETT

required him to file three additional types of campaign

finance disclosures not required of his opponents. Id. at 2766-

67. “Failure to comply with the reporting requirements may

[have] result[ed] in civil and criminal penalties.” Id. at 2767.

It also triggered new, more generous campaign contribution

limits, but only for the self-financing candidate’s opponents.

Id. at 2771.

In striking down the Millionaire’s Amendment, the

Supreme Court noted that had the law “simply raised the con-

tribution limits for all candidates, Davis’ argument would

plainly fail.” Id. at 2770; see also id. at 2771 (“Consequently,

if § 319(a)’s elevated contribution limits applied across the

board, Davis would not have any basis for challenging those

limits.”). Instead, the law constituted a burden on Davis’

speech only because it treated candidates running against each

other under the same regulatory framework differently based

on a candidate’s decision to self-finance his or her campaign,

which is a manner of engaging in fully protected speech. Id.

at 2771.

In contrast, the Supreme Court has held that it is constitu-

tional to subject candidates running against each other for the

same office to entirely different regulatory schemes when

some candidates voluntarily choose to participate in a public

financing system. Buckley, 424 U.S. at 97. “[T]he Constitu-

tion does not require Congress to treat all declared candidates

the same for public financing purposes.” Id. “Sometimes the

grossest discrimination can lie in treating things that are dif-

ferent as though they were exactly alike.” Id. at 97-98.

In Davis, the Millionaire’s Amendment was an attempt to

“level electoral opportunities for candidates of different per-

sonal wealth.” 128 S. Ct. at 2773. This was problematic

because Buckley had held that “the First Amendment simply

cannot tolerate [a] restriction upon the freedom of a candidate

to speak without legislative limit on behalf of his own candi-

dacy.” 424 U.S. at 54. In Citizens United, the Supreme Court

MCCOMISH v. BENNETT 9161

elaborated on its decision in Davis, indicating that the Mil-

lionaire’s Amendment was unconstitutional because it specifi-

cally sought to disadvantage the rich. “The rule that political

speech cannot be limited based on a speaker’s wealth is a nec-

essary consequence of the premise that the First Amendment

generally prohibits the suppression of political speech based

on the speaker’s identity.” Citizens United, 130 S. Ct. at 905.

Under the Act, while matching funds are calculated based on

the total contributions received and expenditures made by a

nonparticipating opponent, they are not distributed specifi-

cally to the opponents of wealthy candidates. Matching funds

do not distinguish between different sources of nonparticipat-

ing candidates’ financing at all. The law in Davis was prob-

lematic because it singled out the speakers to whom it applied

based on their identity. The Act’s matching funds provision

makes no such identity-based distinctions.

[4] Plaintiffs, perhaps recognizing that they have not dem-

onstrated any actual chilling of their speech by the Act, argue

that under Davis, we could strike down the matching funds

provision without any proof that their speech has been

deterred or punished. But Davis does not require this Court to

recognize mere metaphysical threats to political speech as

severe burdens. We will only conclude that the Act burdens

speech to the extent that Plaintiffs have proven that the spec-

ter of matching funds has actually chilled or deterred them

from accepting campaign contributions or making expendi-

tures.

[5] Based on the record before us, we conclude that any

burden the Act imposes on Plaintiffs’ speech is indirect or mini-

mal.9 Since the Act’s adoption, campaign spending in Arizona

(Text continued on page 9163)

9

Prior to, and without the benefit of, the Supreme Court’s recent deci-

sions in Citizens United and Davis, three of our sister circuits considered

the constitutionality of state public financing schemes with matching

funds provisions similar to the one we now confront. See N.C. Right to

Life Comm. Fund for Indep. Political Expenditures v. Leake, 524 F.3d 427

9162 MCCOMISH v. BENNETT

(4th Cir. 2008); Daggett v. Comm’n on Gov’tal Ethics and Election Prac-

tices, 205 F.3d 445 (1st Cir. 2000); Day v. Holahan, 34 F.3d 1356 (8th

Cir. 1994). The Fourth and First Circuits concluded that the respective

statutes imposed no First Amendment burden at all. See N.C. Right to Life,

524 F.3d at 437-49; Daggett, 205 F.3d at 464-65. The Eighth Circuit,

however, concluded that the Minnesota law at issue imposed a substantial

burden on fully protected political speech and, because it could not survive

strict scrutiny, struck it down. See Day, 34 F.3d at 1360, 1363.

Plaintiffs argue that because the Supreme Court’s decision in Davis

cites Day, Davis somehow transformed the decision of one of our sister

circuits into controlling precedent. Davis cites Day only once for a single,

limited proposition. See Davis, 128 S. Ct. at 2772 (“Many candidates who

can afford to make large personal expenditures to support their campaigns

may choose to do so despite [the Millionaire’s Amendment], but they must

shoulder a special and potentially significant burden if they make that

choice. See Day v. Holahan, 34 F.3d 1536, 1359-60 (C.A.8 1994) (con-

cluding that a Minnesota law that increased a candidate’s expenditure lim-

its and eligibility for public funds based on independent expenditures

against her candidacy burdened the speech of those making the indepen-

dent expenditures)”). In so citing Day, Davis did not affirm or adopt the

Eighth Circuit’s approach, nor did it overturn sub silento the decisions of

the First and Fourth Circuits. It merely cited Day for what it is — a deci-

sion in which our sister circuit found that a law chilled protected speech

and held that such a burden could not survive strict scrutiny. Our decision

is not controlled by Day, nor are we persuaded by it.

In Day, plaintiffs demonstrated that the Minnesota statute they were

challenging had a “chilling effect” on political speech and that its “mere

enactment . . . ha[d] prevented many if not most potential political expen-

ditures from ever being made.” 34 F.3d at 1360. As discussed infra, Plain-

tiffs have not established the existence of such a chilling effect in the

instant case. Having found that the Minnesota law imposed a substantial

burden on fully protected political speech, the Eighth Circuit proceeded to

apply strict scrutiny. Id. at 1361. The court concluded that the law could

not survive that test because it found that the state’s professed interest sup-

porting the law, that of encouraging participation in the public financing

program, was “not legitimate,” “no matter how compelling in the

abstract,” because it was not based in fact, but was rather “contrived for

purposes of [ ] litigation.” Id. The record there demonstrated that the chal-

lenged provision was “not necessary to encourage candidates’ involve-

ment in public campaign financing, as participation was approaching

100% before the new campaign finance laws were passed.” Id.

MCCOMISH v. BENNETT 9163

has increased. Several Plaintiffs testified that they would have

made increased expenditures or undertaken increased fun-

draising but for the matching funds provision. No Plaintiff,

however, has pointed to any specific instance in which she or

he has declined a contribution or failed to make an expendi-

ture for fear of triggering matching funds. The record as a

whole contradicts many of Plaintiffs’ unsupported assertions

that their speech has been chilled. Robert Burns admitted he

was willing to trigger matching funds and spent as much

money as he needed to in order to communicate his message.

Dean Martin claimed his speech was chilled by matching

funds, but could not even recall whether he had triggered

them in the past. Rick Murphy admitted he had never turned

a contribution away, and his political consultant testified that

he never slowed his fundraising. The Freedom Club PAC’s

treasurer testified that he has never been dissuaded from mak-

ing an independent expenditure by the possibility of triggering

matching funds. Arizona Taxpayers’s claim that it declined to

speak in the 2006 primary for fear of triggering matching

funds seems disingenuous in light of the fact that it only had

$52.72 cash on hand. Plaintiffs have not demonstrated that

any chilling effect exists. Their own experiences campaigning

under the Act highlight that it “in no way limits the quantity

of speech one can engage in or the amount of money one can

spend engaging in political speech, nor does it threaten cen-

sure or penalty for such expenditures.” Daggett, 205 F.3d at

464.

Two years after it decided Day, the Eighth Circuit, recognizing the

unusual factual background of that case, declined to extend its reasoning

and upheld other provisions of Minnesota’s campaign finance law under

strict scrutiny. See Rosenstiel v. Rodriguez, 101 F.3d 1544, 1555 (8th Cir.

1996). In the case at bench, because the interest Arizona asserts in support

of the Act is not “contrived for purposes of this litigation,” Day, 34 F.3d

at 1361, even under current Eighth Circuit law “the circumstances sur-

rounding the enactment of the [Act] make Day inapposite.” Rosenstiel,

101 F.3d at 1555. We decline to follow the Eighth Circuit down a road

that even it refused to follow.

9164 MCCOMISH v. BENNETT

Plaintiffs bemoan that matching funds deny them a compet-

itive advantage in elections. The essence of this claim is not

that they have been silenced, but that the speech of their oppo-

nents has been enabled. We agree with the First Circuit that

the First Amendment includes “no right to speak free from

response — the purpose of the First Amendment is to secure

the widest possible dissemination of information from diverse

and antagonistic sources.” Id. (internal quotations omitted).

Plaintiffs’ assertions that they have delayed making certain

expenditures in order to avoid triggering matching funds to

their opponents until later in the campaign cycle is evidence

that they continue to seek strategic advantages under the Act,

but does not support the argument that their speech has been

chilled. Many campaign finance regulations, particularly dis-

closure requirements, lead candidates to engage in such strate-

gic behavior, but this does not make them unconstitutional.

As the Court has observed, “the public begins to concentrate

on elections only in the weeks immediately before they are

held.” Citizens United, 130 S. Ct. at 895. Consequently, wait-

ing until that time to make campaign expenditures would not

necessarily be evidence of coerced behavior. Rather, such

decisions likely reflect a rational strategy of maximizing the

impact of one’s campaign funds.

[6] Although Plaintiffs cannot point to any specific

instances in which their speech has been chilled because of

the Act, we recognize that under the Supreme Court’s juris-

prudence, even laws that create only potential chilling effects

impose some First Amendment burden. For example, the

Supreme Court has held that campaign contribution disclosure

requirements and campaign advertisement funding disclosure

and disclaimer requirements impose a minimal burden on

speech and are therefore subject to intermediate scrutiny. See

Buckley, 424 U.S. at 64 (disclosure requirements); Citizens

United, 130 S. Ct. at 914 (disclosure and disclaimer require-

ments). In Buckley, the law at issue required candidates and

PACs, as well as some other individuals or groups making

MCCOMISH v. BENNETT 9165

political contributions or expenditures, to file disclosure

reports with the FEC. 424 U.S. at 63. The Court recognized

that these reporting requirements “can seriously infringe on

privacy of association and belief guaranteed by the First

Amendment.” Id. at 64. The Court also realized that the pub-

lic disclosure of political contributions “will deter some indi-

viduals who otherwise might contribute. In some instances,

disclosure may even expose contributors to harassment or

retaliation.” Id. at 68. Even though these were “not insignifi-

cant burdens on individual rights,” the Court analyzed them

under intermediate scrutiny rather than strict scrutiny because

the disclosure laws “impose no ceiling on campaign-related

activities.” Id. at 64, 68.

Recently, in Citizens United, the Court applied the same

type of analysis to the BCRA’s requirement that political

advertisements must state who “is responsible for the content

of [certain] advertising.” 130 S. Ct. at 913-14. The Court reaf-

firmed Buckley’s reasoning that such requirements may

impose a cognizable burden under the First Amendment even

though they “do not prevent anyone from speaking.” Id. at

914.

The Court rejected the plaintiffs’ arguments that the

requirement “decreases both the quantity and effectiveness of

the group’s speech by forcing it to devote four seconds of

each advertisement to the spoken disclaimer.” Id. at 915.

Notably, in the absence of any evidence “of harassment or

retaliation,” the Court also dismissed the plaintiffs’ arguments

that the disclosure requirements would “chill donations to an

organization.” Id. at 916.

[7] In this case, as in Buckley and Citizens United, the bur-

den that Plaintiffs allege is merely a theoretical chilling effect

on donors who might dislike the statutory result of making a

contribution or candidates who may seek a tactical advantage

related to the release or timing of matching funds. The match-

ing funds provision does not actually prevent anyone from

9166 MCCOMISH v. BENNETT

speaking in the first place or cap campaign expenditures.

Also, as in Buckley and Citizens United, there is no evidence

that any Plaintiff has actually suffered the consequence they

allege the Act imposes. We conclude that the burden created

by the Act is most analogous to the burden of disclosure and

disclaimer requirements in Buckley and Citizens United. Fol-

lowing the Supreme Court’s precedents in those cases,

because the Act imposes only a minimal burden on fully pro-

tected speech, intermediate scrutiny applies.

[8] Examining the matching funds provision under inter-

mediate scrutiny, because there is a “ ‘substantial relation’ ”

between the Act’s matching funds provision and a “ ‘suffi-

ciently important’ governmental interest,” we conclude that it

does not violate the First Amendment. See Citizens United,

130 S. Ct. at 914 (quoting Buckley). The State has a suffi-

ciently important interest in preventing corruption and the

appearance of corruption. See Citizens United, 130 S. Ct. at

909. The record demonstrates that Arizona has a long history

of quid pro quo corruption. AzScam, in which legislators lit-

erally sold their votes for cash bribes, was just one of many

substantial, wide-spread, and highly-publicized political scan-

dals that Arizona experienced in the late 1980s and 1990s.

These incidents occurred despite the contributions limits in

place prior to the Act. Regardless of whether quid pro quo

corruption continued to be a problem at the time of the Act’s

passage, the appearance of quid pro quo corruption to the

electorate was undeniable. Arizona voters were justified in

concluding that contribution limits alone were not sufficient

to combat corruption and its appearance. As the Supreme

Court has recognized, the State’s interest in eradicating the

appearance of quid pro quo corruption to restore the elector-

ate’s confidence in its system of government is not “illusory,”

it is substantial and compelling. See Buckley, 424 U.S. at 26-

27.

Furthermore, the State has an interest in providing match-

ing funds to encourage participation in its public funding

MCCOMISH v. BENNETT 9167

scheme. Because Buckley held that public financing of elec-

tions furthers First Amendment values, federal courts have

found that states may structure them in a manner which will

encourage candidate participation in them. See, e.g., Rosen-

stiel, 101 F.3d at 1553 (“the State has a compelling interest

in stimulating candidate participation in its public financing

scheme”). The Eighth and First Circuits have found this inter-

est to be so compelling as to withstand even the strictest scruti-

ny.10 See id.; Vote Choice, Inc. v. DiStefano, 4 F.3d 26, 39-40

(1st Cir. 1993) (finding that the state has a “compelling” inter-

est in “having candidates accept public financing”).

The district court misapprehended how the Act functions to

reduce corruption. It assumed that the Act works by reducing

nonparticipating candidates’ incentive to fundraise private

contributions, thereby reducing the appearance of corruption

among nonparticipating candidates. Thus, it concluded that

the Act did not further an anticorrpution interest by providing

matching funds to participating candidates triggered by non-

participating candidates making contributions to their own

campaigns from their own private funds. In doing so, it relied

on the Court’s holding that “discouraging use of personal

funds[ ] disserves the anticorruption interest.” Davis, 128 S.

Ct. at 2773.

The fact is, however, that the Act is aimed at reducing cor-

ruption among participating candidates. The relevant inquiry

thus is whether matching funds bear a substantial relation to

reducing corruption among participating candidates. In

exchange for public funding, participating candidates relin-

quish their right to raise campaign contributions from private

donors. They therefore have both reduced opportunities and

reduced incentives to trade legislative favors for financial

10

Because we hold that the Act is subject only to intermediate scrutiny,

we need not decide whether the Act would survive strict scrutiny, as the

First and Fourth Circuits have held with respect to public financing

schemes similar to the Act.

9168 MCCOMISH v. BENNETT

favors. The Supreme Court has held “[i]t cannot be gainsaid

that public financing as a means of eliminating the improper

influence of large private contributions furthers a significant

governmental interest.” Buckley, 424 U.S. at 96.

Viewing the Act from this perspective, it is clear that the

Act’s anticorruption interest is further promoted by high par-

ticipation in the program. The more candidates that run with

public funding, the smaller the appearance among Arizona

elected officials of being susceptible to quid pro quo corrup-

tion, because fewer of those elected officials will have

accepted a private campaign contribution and thus be viewed

as beholden to their campaign contributors or as susceptible

to such influence.

It is not relevant under this analysis what the source of a

nonparticipating candidate’s campaign contributions is when

he or she triggers matching funds. In order to promote partici-

pation in the program, and reduce the appearance of quid pro

quo corruption, the State must be able to ensure that partici-

pating candidates will be able to mount competitive cam-

paigns, no matter what the source of their opponent’s funding.

If matching funds were not triggered by independent expendi-

tures or expenditures from a nonparticipating candidate’s own

funds, the Act’s public funding plan would not attract partici-

pants. It would be an enormous political risk to participate in

such a system.

In this way, matching funds bear a substantial relation to

the State’s anticorruption interest. A public financing system

with no participants does nothing to reduce the existence or

appearance of quid pro quo corruption. If participants were

not given matching funds, they would not join the program

because they would not be viable candidates in their elections.

If the State were to adopt the district court’s recommendation

of structuring matching funds by tying them “solely to contri-

butions made by third parties to a candidate,” it would have

the effect of deterring the participation of any candidate who

MCCOMISH v. BENNETT 9169

feared she or he might have an opponent who was able to self-

finance or would be the beneficiary of large independent

expenditures. This would substantially diminish the Act’s

ability to attract participants, thereby undermining its ability

to prevent corruption.

[9] In contrast, if the Act were to raise the amount of its

lump-sum grants and do away with matching funds alto-

gether, it would make the Act prohibitively expensive and

spell its doom. By linking the amount of public funding in

individual races to the amount of money being spent in these

races, the State is able to allocate its funding among races of

varying levels of competitiveness without having to make

qualitative evaluations of which candidates are more “deserv-

ing” of funding beyond the base amounts provided to all

publically-funded candidates. The State must walk a fine line

between providing too much and too little funding to partici-

pating candidates, and we cannot conclude that the Act’s

matching funds provision has failed in this effort.

V. Conclusion

[10] For the reasons set forth above, we conclude that the

matching funds provision of the Act does not violate the First

Amendment. We decline to reach the equal protection claim,

and reverse and remand to the district court for further pro-

ceedings consistent with this opinion.

REVERSED and REMANDED.

KLEINFELD, Circuit Judge, concurring:

I concur. My reasoning is slightly different. In my view, the

historical and policy considerations do not matter to the out-

come. Although the complaint asserts both a facial and an as-

9170 MCCOMISH v. BENNETT

applied challenge, the district court injunction and the argu-

ments amount to a facial rejection of the statute.

The fact that matters is that the Arizona public financing

scheme imposes no limitations whatsoever on a candidate’s

speech. Davis v. Federal Election Commission1 is easily dis-

tinguished because there the scheme did indeed impose a limit

on the candidate’s speech, at least indirectly. If the candidate

spent too much of his own money promoting his political

position, then his opponent would benefit from a tripled con-

tribution limit per donor.2 The Arizona scheme does not

manipulate the limits on private donors’ contributions accord-

ing to whether a competing candidate is participating in the

government funding scheme. Had it done so, Davis would

apply by analogy.

Other circuits have divided on whether schemes like Arizo-

na’s violate the First Amendment.3 The Supreme Court cited

with apparent approval the Eighth Circuit decision,4 which

may be contrary to the view we take today. But as the major-

ity correctly says, it is not clear that the Supreme Court meant

to adopt the Eighth Circuit view, and Davis did not require the

Court to address a scheme like the one addressed by the

Eighth Circuit.

1

128 S.Ct. 2759 (2008).

2

Id. at 2766.

3

Compare N.C. Right to Life Comm. Fund for Indep. Political Expendi-

tures v. Leake, 524 F.3d 427, 437 (4th Cir. 2008) (holding that matching

funds to publicly funded candidates that trigger based on contributions and

expenditures for privately funded candidates do not impose any burden on

First Amendment rights) and Daggett v. Comm’n on Gov’tal Ethics and

Election Practices, 205 F.3d 445, 464 (1st Cir. 2000) (same) with Day v.

Holahan, 34 F.3d 1356, 1360-62 (8th Cir. 1994) (holding that providing

additional public funds in response to independent expenditures advocat-

ing for a privately financed candidate burdens the speech of the indepen-

dent advocacy groups, subjecting the law to strict scrutiny, and striking it

down).

4

Davis, 128 S.Ct. at 2772.

MCCOMISH v. BENNETT 9171

I doubt that the level of scrutiny or risk of corruption matter

in this case. The Arizona public financing scheme’s matching

funds provision imposes no limit at all on contributions or

expenditures for one’s own campaign. The limits are separate

from the public financing scheme and not challenged. The

plaintiffs do not challenge the contribution limits.5 Contribu-

tion limits are what invoke corruption and level of scrutiny

considerations.

Plaintiffs challenge not contribution limits, but the benefits

that the public financing scheme gives to participating candi-

dates running against privately financed candidates and the

strategic concerns the scheme creates for privately financed

candidates. Because the challenged scheme imposes no con-

tribution or spending limits, it does not restrict speech at all,

so I cannot see why heightened scrutiny would apply.6 All

that the evidence shows is that candidates who forego public

funding make strategic decisions in response to the public

funding scheme.7 That is not a restriction on speech. Intelli-

gent, ambitious people seeking political office, or any other

goal, are likely to study the rules and develop strategies taking

maximum advantage of the rules. The kinds of strategic

choices generated by the Arizona rules do not differ in kind

from the choices presented to candidates by other election

laws. For example, candidates will run their campaigns differ-

ently according to whether there is a fixed election day or an

extended period for mail-in ballots, at large elections of multi-

ple candidates in one district or single winner elections in

5

Contribution limits are imposed by Arizona Revised Statutes § 16-905.

Part of the referendum that created Arizona’s public funding scheme alters

the contribution limits by providing new rules for participating candidates,

§ 16-941(A), and uniformly decreasing the contribution limits for nonpar-

ticipating candidates, § 16-941(B). The complaint does not allege that

either § 16-905 or § 16-941 is unconstitutional. It alleges that § 16-952,

the matching funds provision of the referendum, is unconstitutional. Sec-

tion 16-952 does not impose contribution limits.

6

Accord N.C. Right to Life, 524 F.3d at 437; Daggett, 205 F.3d at 464.

7

N.C. Right to Life, 524 F.3d at 438; Daggett, 205 F.3d at 464.

9172 MCCOMISH v. BENNETT

multiple smaller districts, or partisan or nonpartisan elections.

That different laws generate different strategies does not make

them restrictions on speech.

The only speech-related concern I can see to the Arizona

scheme is that a privately funded candidate has to raise a lot

more money to swamp a publicly funded candidate. Someone

not serious about politics, but serious about traveling, eating

meals, and seeing his picture on billboards and in the newspa-

pers for months, all at taxpayer expense, might pose a genuine

challenge to a privately funded candidate, unless that candi-

date could raise funds well beyond the ceiling in the public

funding scheme. If the notion is that campaign contributions

amount to disguised bribery, I suppose this might mean the

Arizona scheme would promote rather than inhibit corruption.

But it is hard to see the materiality of that because contribu-

tion limits have not been challenged, and all the corruption

theory has been used to justify in First Amendment law is

contribution limits. As for the privately funded candidate, his

or her speech is not limited by this increased burden of fun-

draising. Rather, his chances of winning are inhibited if he

makes an incorrect judgment about whether he is going to be

able to raise enough money to swamp the publicly funded

candidate. But the First Amendment does not protect the can-

didate’s interest in winning, just his interest in being heard.

There is no First Amendment right to make one’s opponent

speak less,8 nor is there a First Amendment right to prohibit

the government from subsidizing one’s opponent,9 especially

when the same subsidy is available to the challenger if the

challenger accepts the same terms as his opponent.10

8

See Daggett, 205 F.3d at 464.

9

Cf. Nat’l Endowment for the Arts v. Finley, 524 U.S. 569, 587-88

(1998) (holding that the National Endowment for the Arts may decide who

to subsidize based on aesthetic value of artworks because a subsidy is not

a regulation on who can speak).

10

Cf. Rosenberger v. Rector and Visitors of the Univ. of Va., 515 U.S.

819, 829-30 (1995) (holding that a public university must make its print-

ing facilities available to all qualifying student publications regardless of

viewpoint).

MCCOMISH v. BENNETT 9173

As for the practical effects of the Arizona scheme, I have

no idea whether they are good or bad, and nothing in the

record throws any light on whether the good outweighs the

bad or vice versa. Intent and motivation do not show effect,

because the unintended effects of reform frequently outweigh

the intended effects. Nor does it matter whether the scheme

is a good or bad one, for First Amendment purposes. Arizona

is entitled to make good or bad laws so long as they do not

violate the Constitution. Since this law does not limit speech,

it does not violate the First Amendment.

Perhaps public funding is good because it helps candidates

run for office without relying on contributions from people

who will want something in return. Perhaps it is bad because

in a state with a large electorate and mass media, large con-

tributors are the only people involved who know a candidate,

and their money gives the public the benefit of what amounts

to quality screening by people who actually know the candi-

date. As for the notion that contributions amount to bribery,

at least when they are large, that may be so, or it may be that

large contributions amount to protection money that those

especially vulnerable to government power pay to those they

fear will wield it. Perhaps both, or neither, is true. Doubtless

many contributions result from contributors’ beliefs about

who will provide good government, and gratitude to those

willing to accept elected office and competent to discharge it

well. None of this matters to this case. The only significance

of the corruption concern to First Amendment law is that in

Buckley v. Valeo, the concern was used to justify a limit on

contributions to campaigns.11 Since the case before us does

not involve a contribution limit or any other burden on

speech, the concern is immaterial.

In sum, the Arizona public financing scheme does not limit

speech directly or indirectly. The only Supreme Court case

11

424 U.S. 1, 25-26 (1976) (per curiam); see also Citizens United v.

Fed. Election Comm’n, 130 S.Ct. 876, 901 (2010).

9174 MCCOMISH v. BENNETT

touching at all closely upon the issues is Davis, and Davis has

to be distinguished because the scheme in that case affected

contribution limits and this scheme does not. No Ninth Circuit

case speaks to the constitutionality of the Arizona scheme or

anything like it. Our sister circuits are divided. Accordingly,

I conclude that Arizona is not constitutionally barred from

using the scheme before us.