noting that large subsi dies would make public funding “prohibitively expensive and spell its doom”
How later courts described this case
- noting that large subsi dies would make public funding “prohibitively expensive and spell its doom”
- noting that large subsi *692 dies would make public funding “prohibitively expensive and spell its doom”
- matching funds create “potential chilling effects” and “impose some First Amendment burden”
- "Davis says nothing about public funding schemes...."
Written by the judges who cited it.
The opinion
KLEINFELD, Circuit Judge,
concurring:
I concur. My reasoning is slightly different. In my view, the historical and policy considerations do not matter to the outcome. Although the complaint asserts both a facial and an as-applied challenge, the district court injunction and the arguments 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 Commission 1 is easily distinguished 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 contribution limit per donor. 2 The Arizona scheme does not manipulate the limits on private donors’ contributions according 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 Arizona’s violate the First Amendment. 3 The Supreme Court cited *528 with apparent approval the Eighth Circuit decision, 4 which may be contrary to the view we take today. But as the majority 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.
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 Contribution 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 candidates running against privately financed candidates and the strategic concerns the scheme creates for privately financed candidates. Because the challenged scheme imposes no contribution 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. Intelligent, 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 differently according to whether there is a fixed election day or an extended period for mail-in ballots, at large elections of multiple candidates in one district or single winner elections in 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 newspapers for months, all at taxpayer expense, might pose a genuine challenge to a privately funded candidate, unless that candidate could raise funds well beyond the ceiling in the public fund *529 ing 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 contribution 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 fundraising. 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 candidate’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
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 contributors 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 candidate. 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 *530 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 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.
. - U.S. -, 128 S.Ct. 2759 , 171 L.Ed.2d 737 (2008).
. Id. at 2766 .
. Compare N.C. Right to Life Comm. Fund for Indep. Political Expenditures v. Leake, 524 F.3d 427, 437 (4th Cir.2008) (holding that matching funds to publicly funded candidates that trigger based on contributions and ex- *528 pendilures 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 advocating for a privately financed candidate burdens the speech of the independent advocacy groups, subjecting the law to strict scrutiny, and striking it down).
. Davis, 128 S.Ct. at 2772 .
. 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 nonparticipating 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. Section 16-952 does not impose contribution limits.
. Accord N.C. Right to Life, 524 F.3d at 437 ; Daggett, 205 F.3d at 464 .
. N.C. Right to Life, 524 F.3d at 438 ; Daggett, 205 F.3d at 464 .
. See Daggett, 205 F.3d at 464.
. Cf. Nat’l Endowment for the Arts v. Finley, 524 U.S. 569, 587-88 , 118 S.Ct. 2168 , 141 L.Ed.2d 500 (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).
. Cf. Rosenberger v. Rector and Visitors of the Univ. of Va., 515 U.S. 819, 829-30 , 115 S.Ct. 2510 , 132 L.Ed.2d 700 (1995) (holding that a public university must make its printing facilities available to all qualifying student publications regardless of viewpoint).
. 424 U.S. 1, 25-26 , 96 S.Ct. 612 , 46 L.Ed.2d 659 (1976) (per curiam); see also Citizens United v. Fed. Election Comm'n, - U.S. -, 130 S.Ct. 876, 901 , - L.Ed.2d -(2010).