Amicus Curiae Brief — Arizona Free Enterprise Club's Freedom Club PAC v. Bennett

Nos. 10-238 and 10-239

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ea: CL ERs

Un the Supreme Court of the Umted States

ARIVONA FREER ENTE RERISE CloURS

PREE DOM CLUBPAC LEE AL. PRE TETIONE RS

REN BENNE THOIN HIS OPELCLIAL CAPACEEY AS

ARTZONA SPCRE TARY OF STATE ETP AL.

TON MCCOMIEST r Al... O10 PIONER

KEN BENNETTOIN HLS OPPTOCEAL CAPACTTY AS

ARIZONA SPCRETARY OF SCAPTELE PAI

BRIER POR THE UNITE DSTATES AS AMICUS CURIAR

SUPPORTING KESPONDENTDS

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QUESTION PRESENTED

Whether the “matching funds” provisions ot the An

cona Citizens Clean Eleetions Act vielate the Furst

Amendment

TABLE OF CONTENTS

Interest of the United States

Statement

Summary of argument

Anzument

lL. Because the Arizona Act does not substantial

bunton petitioners’ ability te spend money en

elections, the Aet ts reviewed under the “exacting

serutiny” standard 7

A. The Arizona Act does not restrict the rusht te

make CaMpoaurn expenditures |

Bo Pounvoke stinet serutiny, petitioners must

show that the Arivona Act severely burdens

their First Amendment rights

1. Only a “severe” burden on the exercise of

a comstitutional rught can tryyrer strict

Seritiny

~. Astate law does not impose a “severe”

burden on constitutionally protected

rights simply because if creates a reason

hot te exercise them |

Co Phe Anzona Act does not impose any severe

bunden on petitioners :

1. The Act does not burden petitioners by

givin a “fundraising advantage te their

Opponents

Matching funds do not impose any dis

erminatery burden on petitioners

3 Arvena’s use of a matching funds ap

proach to calculate the payments made

to publicly financed candidates does not

bunien petitioners

(dtl)

Paagre

11

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Table of Contents—Continued: Pare

IL. Vhe Arivena Act is valid under exacting scrutiny .

A” Arivona’s pubhe-fnaneiys scheme furthers

important government interests hg

8B. The matehing funds provision is an integral

and constitutionally permussible component

of the Arweona Act

Conclusion

TABLE OF ALU THORIETIES

Causes

Boant of Regents v. Southworth, S29 US. TT (00)

Bnoen vo Hartlage, 46 US. Ao Use)

ne

Buckley v. Valeo, 4224S. DOO)... | PRESS

Buntickyv. Takushs, WAS. 428 clr)

California Demoonitic Partan dorwes, 00S. aoe

LODO)

Citizens United vo FEC, BOS. Ct. S76

] y

+ ‘weg te cars rare .. 2B

Clrngman vy Beaoer, S44 US AST OQ) = we ee

Dagyrtt v Commission on Governmental Bthies &

Biection Prictices, 205 FNd 5 cist Cor VOOO) ri

Davisv FECL O54 US. 724 (2008) | | MISTI

Doe v. Reed, ROS. Ct. PST COTO) oe eee Is, 19

Kuv. San Francisco County Demoemtic Cent

Common , SM ULS. 214 SD) . 1”

FEC v. Massachusetts Ciltzens for Lite, ine.

479 ULS VSS (LGSe)

FEC vo National Conservative PAC, ATO US. 480

LLYN) ia woas

Cuses—Continued: Pare

First Natl Bank v. Bellott:, 485 US. 765 CA9TS) 2... 12

by Liguormart, Inc. v. Rhode lsiand, VT US. 484

PEEPS PEE EEE EE CPT ETS RTULT Cre eee Te ery oY

Johanns Vv. Livestock’ Mktg Ass'n, 544 US. ADO

DN Cos cb eu keh aia luahe sek eae abacus bate en een 2s

Linmark Assoes., Inc. v. Township of Walrngbono,

431 US. 85 CI877) 2a

$68 6.85608 20.8 829.4498 6.68 OOS 6B 6 6 66 6 oe Bee

Lordlant Tobacco Cov. Retlly, S638 US. 625 (O01)... 82

Maher v. Roe, 482 U.S. 464 (1977) 2. oo eee. 19

MeConneliv, FEC, AOS. 93 (2008) 2. . a=

Meese Vv. Reene, 481 US. ABA TOST) Oe ee 29

Moana Herald Publ’y Co vo Tornillo, AUS ULS. 241

PCr ae iu yon NERAU RENO KE NO CE yes keke e re tees oo

NFA vy. Frnleu, S24 US. MID I9YS) ee 16

Pacific Gas & Flee Coo v. Public Utis. Comon'n,

ES OE cnc cy cen ebasueicaks-comkeiaeedes Zs

Randall v. Sorrell, D48 U.S. 230 (2006) 2. 12, 14.31

Regan v. Taxation with Representation, ABLULS. 540

rere er ere Perey errr re re ia.

Republican Party v. White, S80 US. 765 (2002) 00... ot

Rosenberger v. Rector, AVS US. SID C99) oe, th

Rumsfeld v. FAIR, 5A7 US. AT (2006) oe, 28

Rust v. Sullivan, WOULS. 178 (991) ooo ee. 16, 19

Srmion & Schuster, lnev. Members of the N.Y. State

Crome Vretoms Bal, HZ US. LOS CI9IT) 24

Tommons v. Trin Cities Arva New Party, 520 U.S.

vg { MEE eo ET eee eae 15

Turner Broad. Sus. Ineo v. FOC, AL2 US. 622 (994) 2 18

Vi

Cases—Continued:

Page

United States v. United Foods, Inc., 888 US. 405

bar ENS aptalia D s5 TR Sean Rpt Hemet Nes har AL 27

Wand v. Rock Against Racism, 491 ULS. 781 (1989) 2. 32

Washington State Grange v. Washington State Re-

publican Party, 552 U.S. 442 (2008) 2. eee. 1d

Whitneu v. Calyornia, 274 US. 357 927) 0 eee 29

Constitution and statutes:

Se I oi os own ncdcbnsaeasuneh bas passim

Presidential Election Campaign Fund Act, 26 U.S.C.

ONES 50.40 6605-65604 5Re bee baeeCacadnse beeen 2

Presidential Primary Matching Payment Account

Gs ee is HE OE OD, onc cccdccecececepecsenes 2

RE Se ic ccec apex Riveees auveseevcrsvoes 2

EE ccc ewes ge ees tWeuNdeedscagheawhes 6

i PE re re tbin eC scp eee keaeet yen eeekouead 27

Ariz. Rev. Stat. Ann. (West Supp. 2010):

Recon c ld ne daghe eens chabeekocsecenees 5

PE Catv ebcecdcnwasaeeWed.badacsuun kis 2h

Citizens Clean Elections Act, Ariz. Rev. Stat. Ann.

§ 16-940 ef seg. (West 2006 & Supp. 2010) 200006... 2

$ 16-941(A) (West Supp. 2010) 2... ....2.00..... 3,25

§ 16-941(B)C1) (West Supp. 2010) 0. 25

§ 16-941(¢B\2) (West Supp. 2010) 20 ee. 12

$ 16-941(D) (West Supp. 2010) 2.0. 12

fo SP rer reer rere ere Tr 25

© PR CP occ ccc cece cece ccccescsces 3

DP IIE occ ccns tdeccdkdunencceeinds 12

Vil

Statutes—Continued:

§ 16-950 (West Supp. 2010)

N

§ 16-951(A)(2) (West 2006)

§ 16-951(A)(3) (West 2006)

§ 16-951(C) (West 2006)

$ 16-951(D) (West 2006)

$ 16-952 (West Supp. 2010)

§ 16-952(A) (West Supp. 2010)

$ 16-952(B) (West Supp. 2010)

$ 16-952(C) (West Supp. 2010)

$ 16-952(E) (West Supp. 2010)

§ 16-954 (West 2006)

Miscellaneous:

147 Cong. Rec. 4668 (2001)

tron Report (Dec. 5, 2002), http:/Avww.azsos.gov/

cfs/Public Re ports/2002/94398C F F-C A9F-4B F0-

B9C0-746A1 E3D6D95. pdf

Norman L. Ornstein et al., Vital Statistics on Con-

gress 2001-2002 (11th ed. 2002)

S. 3, 103d Cong., Ist Sess. (1993)

S. Amend. 148, 107th Cong,. 1st Sess. (2001)

16-951(A)(1) (West 2006) 2.000 00000000000.0.

See eee eceeeeee@eseee oe 68 86 6

H.R. 3, 103d Cong., Ist Sess. (1993)... ........25..

Matt Salmon for Governor, 2002 Post-General Elec-

PeCePes ens Cee eeoe@e8 € 628 6 6 6 6

Eee ak ge eee es ey Se ee fe |

eee Eee oe oe 6 68 6 8 6 6

rere

In the Supreme Court of the Cited States

No. 10-2388

ARIZONA FREE ENTERPRISE CLUB'S

FREEDOM CLUB PAC, ET AL... PETITIONERS

-*.

KEN BENNETT, IN HIS OFFICIAL CAPACELY AS

ARIZONA SECRETARY OF STATE, ETAL.

No. 10-239

HMOHUN MCCOMISH, FT AL... PETITIONERS

*

‘

KEN BENNER? IN HIS OFFICIAL CAPACITY AS

ARIZONA SECRETARY OF STATE. ETAL.

ON WATTS OF CERTIORARI!

POTHE UNITED STATES COURT OF APPEALS

Fm | WwW HK \ i N TH ( ‘J Ri % / r

BRIEF FOR THE UNITED STATES AS AMICUS CURIAR

SUPPORTING RESPONDENTS

INTEREST OF THE UNITED STATES

This case presents the question whether Arizona's

system of publie finaneing tor state elections violates the

First Amendment. More speetfically, petitioners con-

tend that their own campaiyn-related speech is unconsti

(1)

~

tutionally burdened beeause the ameunt of money the

State provides toa publicly financed eandidate depends

in parton the amounts raised and spent by that eandi

date’s privately financed opponent

Congress has adopted systems of public fnancing for

presidential primary and yeneral elections. See Prese

dential Fleetion Campaizn Fund Aet (Presidential Fund

Act), 26 ULS.C. 8001 ef seg.) Presidential Primary

Matching Payment Aceount Aet (Presidential Primary

Aet), 26 US. .C. 9081 ef seg. Lake Arizona, Congress has

adopted an optional public financing system while sepa

rately limiting monetary contributions to candidates for

federal office, see 2 USC. dala)

Although neither federal statute uses the sort of trip-

gered “matehing tunds” that are the speeitie subject

of this litigation, Congress has previously considered,

and both Houses have previously passed, legislation to

adopt such a mechanism. See 147 Cong. Ree. 4008

(LOOL) CS. Amend. 148, 107th Cong... Ist Sess. (LOOT) (Ss

OSE), S042), SAH): S. 8. LOBd Cong, Ist Sess. §

L01¢a), see. SOS CD)-(d) (1998) (passed Senate), HORS

108d Congy., Ist Sess. § 121. sees. OOTY, COACH) (L999)

(passed House). In addition, other provisions of federal

law have been the subject of claims like the plauntifts’

contention here that an allewed burden on First

Amendent rights warrants strict serutinyv. The United

States therefore has a siznifieant interest in the resolu.

tion of the questions presented

STATEMENT

Through the initiative process, Arizona's citizens

have enacted the Citizens Clean Eleetions Aet (Arizona

Act or Act), Ariv. Rev. Stat. Ann. $ 16 940 ef seg (West

2006 & Supp. 210), a voluntary system ot public finane-

oe

ingan which candidates for state office may eleet to par

ticipate. Petitioners argue that the Arivona Act's for-

mula for allocating “matehing funds” to publiely

nanced candidates, Which considers the fundraising or

spending of those candidates’ opponents, violates the

First Amendment. The district court permanently en-

joined the matching funds provision. Pet. App. 44-770

The court of appeals reversed and held the matehing-

funds provision valid on its face. J at bea

lL. a. Any eligible eandidate for Arizona state office

may deeide to participate in the Arizona Act's puble

financing system, To be elymible, a eandidate must raise

aspecified number of $5 contributions from elygible vot

ers, see Ariz. Rev. Stat. Ann S$ 16-946, 1o-950 (West

208 & Supp. 2010), and must agree to abide by certain

limits that apply only to pubhiely financed candidates. A

participating: candidate must agree not to aecept ans

canuen contributions (except for certain small eentr

butions that may be raised during the qualifying period),

not to spend more than S00 of his own money; and not

to exceed the Arizona Aet’s spending limit for the rele

vant eleetion. Jd. 8 LO O4TCAY West Supp. 2070)

In return, the Act provides partierpating: candidates

with public funds to spend on their ecampanurns. The

State disburses those funds in two steps. First. at the

bemnning of the election pertod, each candidate receives

a lump sum that is the default spending limit for that

election. Ariz, Rev. Stat. Ann. § Le-951C AXE) and (©)

West 2006)" Second, during the election period, the

ee ee

References to “Pet App” are Co the appends to the petition fora

writotoertiornar in Neo Lao as

© Candidates who are unopposed, or who rup as independents and

therefore do not compete im any primary election. receive lower

amounts Are. Rev. Stat. Ann. § 1-85 AX) 8) and CD) (West 2008)

spending tinut may be adjusted if candidates receive

“matehime: funds.” See id § 16-92 West Supp. 2010)

Matehing funds are triggered when a privately f

naneed candidate raises or spends more money on Che

election than the default sum allotted to publely

naneed candidates.” Spending by independent groups

may alse (rigger mateling funds iit unamburueusis

supports or opposes a eandidate. Onee a privately t-

naneed candidate reaches the threshold, then for each

additional $t that he raises or spends cor that independ

ent groups spend te suppert him or attach his oppe

nents), the spending limit tor publiely financed eandi

dates is increased by §1 (minus a siv-pereent deduction

correspondinar to fundraising: expenses) and each pub

lickly financed candidate in Che race reeeives an add

tional $l in matehing funds (minus six pereent), Ariz

Rev Stat. Ann. § 16-8520 A) (C0) (West Supp. 2010),

Matehing funds are also subject to an absolute cap

No matter how much money a privately finaneed cand

date or independent group spends, matching funds ean

not exceed two times the matial default spending limut

for the relevant cleetion. Ariz. Rev. Stat. Ann. § lo

Hhlcky (West Supp. 201M. Thus, the upper spending

hont for any publicly finaneed candidate is three times

the amount of the State's oruanal lump sum payment

cee, the ormmnal wrant itself plus Gwe times that amount

in matching: funds).

bo A candidate who does not wish to partierpate i

the pubhe financing system is not required to do so. A

candidate who forgees pubhe financime may raise funds

Is the primary e ection. matehing fonds ane tragterod Dy a peivate

ly financed candidate's expenditures. on the weneracelection, by contry

butions Pe receives. Arie Rev Stat Amp § 16 85204) OB) West Supp

SOTO)

from individuals and political committees (sulveect to

statutory hmits on contributions trom any single source,

Arti Rev. Stat. Ann. § 16-905 (West Supp. 2010): he

may spend unlimited amounts of bis own money on his

campaien, and hos total campayrn expenditures are not

limited by law

2 Petitioners are past, present, and future candi

dates for state office and politica! committees that make

Independent expenditures in state elections, Petitioners

in No. LO 2389 brouwht this action. arwuinar that the

matching funds provision violates the First Amendment.

Petitioners in Noo 10-288 intervened as plaintiffs. See

Pet App Ds-l4. All petitioners contended that the

matching funds provision prevented or discouraged

them from spending as much as they otherwise would

against pubhely financed opponents. See rd at }4-15

3. The district court granted summary judyment for

petitioners and enomned the operation of the matehinar

tunds provision, Pet) App. 45 7s

The distriet court stated that petitioners had pre

sented only “vague” evidence that the Arivona Act bur

dened their Furst Amendment rurhts. Pet. App. o20

Che court understood petitioners to argue that their

rights were burdened because, if they “spend as much as

they wish,” Arizona will anve a corresponding amount ot

money to ther publrely financed opponents fd at 63.

The court stated that, piven the First Amendment's pur:

pose “to ‘seeure the widest possible dissemination of

Petitioner Martin, then the state treasurer, made admissions ot obs

depasition that lad the distriet caart Co cenclude that matching: funds

had not been a “serious concern” a bis eampanrrs Pet) App oe Nor

didi the political-ocommittee petitioners persuade toe district court that

they had ever been dissuaded by matching funds from spending money

;

the gourt wentified a Cictual dispute on that pent Jd at As.

t)

iIntormation from diverse and antagonistic sources, it

seems illogical to conclude that the Act creating more

speech is a constitutionally prohibited ‘burden’ on [peti

hhoners|" Jd at Of (quoting Backleay Valeo ABE U Ss

1, 49 19768) Cper curiam)

The district court nevertheless held the matching

funds provision uneonstitutional under Danis vo PEC,

Hdd US. TU (ZOOS), The Courtin Dares invalidated the

“Milhonaire’s Amendment.” 2 USC) 44ta-laad, under

Which a candidate's decision te self finanee his compan

allowed his opponents (but not the self-financing eand:

date himself) tornveke a different, more permissive set

of rules, ineluding: trebled contribution limits and unlim

ited party coordinated spending Sot US) at 780 744

The district court concluded that petitioners “lace a

chotee very similar to that faced in Doris” because thes

must either “abide bv a lint on personal expenditures”

or face “neyative consequences” in the form of “having

[their }opponent{s}| receive additional funds.” Pet. App.

65. The court apphed strict serutiny, see nd at ec, and

coneluded that the matehing- funds proviston is not nar

rowly tailored to advance a compelling: interest, id at

OF 70. Phe court further held that the matehing funds

provision Was not severable, odo at TL 74. and it emomed

the implementation of the Arizona Actin its entirety

4. The courteoftappeals reversed Pet. App 1-44.

The court of appeals held that Daecs was “easily and

properly distinguished” and that petitioners had shown

onivoan “indireet or minimal’ burden on their speech

Pet App. 24. 200 The court observed that none of the

petitioners had “pointed te any specific mmstanee in which

she or he has declined a contmbation or tailed to make

an expenditure for fear of trargering matehing funds’

fd. at 29. Phe court concluded that the Arizona Act im

posed no significant burden on petitioners’ exereise ot

constitutional rurhts because “the Furst Amendment

includes ‘no rught to speak free from response’ ” Jd. at

30 (quoting: Daggett vo Comomirsston on Govern mental

Brhies & Rleetion Practices, 205 BoSd 445, 464 (ist Cir

LODO)

Vhe court of appeals accordingly apphed a torm ot

intermediate serutiny, and it rejected petitioners’ constr

tutional challenge. Pet. App. 38-37. The court exphuned

that “it}he State has a sufflerently important interest in

preventing corruption and the appearance of corrup

tion,” and that “Arizona has a long history of gard pro

guo corruption" /d at 338. The court eencluded that the

matehing-funds provision bears a substantial rekidion to

the State’s anticorruption interest because “[i]n order to

promote participation in the program, * * * the State

must be able to ensure that participating candidates will

be able to mount competitive campaigns, mo matter that

fhe source of ti CUM OP prrnee nts fu nating “ Jd at 86. The

court further explained that “rf the Aet were to raise the

amount of its lump sum grants and do away with mateh

ingr funds altogether, it would make the Act prohibitiy ely

expensive and spell its doom.” dd. at dv.

Judge Kleinfeld concurred Pet App 38440 He em

phasized that providing pubhe funds to partreipating

candidates “imposes ne contribution er spending limits”

and therefore “does not restrict speech at all” Jd at ao

He explained that, although privately financed cand

dates may sometimes “make strategic decisions in re

sponse to the public funding: scheme.” Chat etfeet “is not

a restriction on speech” 7bid.y see rd at 40-41 (The

hinds of strategie chotces generated by the Artona rules

do not ditfer in kind from the choices presented to cand:

dates by other election laws”)

SUMMARY OF ARGUMENT

1. The Aricona Act's matehing tunds provision is not

subject Co strict scrutiny because that proviston neither

directly restricts, nor severely burdens, petitioners’ own

election related expenditures. The government's discre

tion is at its heught when it allocates its own funds. Pet

tioners contend that the matching funds provision ere

ates a disincentive to speak because privately financed

ceundidates and their supporters may sometimes forge

particular expenditures in order to limit the resourees

available to their publicly finaneed opponents. This

Court's decisions make clear, however, Chat any such

disincentive is not the sort of severe burden that can

trigger stricl serutiny

Petitioners alse argue that the matching funds provi

sion burdens or penalizes their own speech by Creating

that speech as a trigger for additronal outhiys te petition

ers’ publicly financed opponents. Petitioners acknowl:

edge, however, that the Arizena Act would be constitu.

tional if the State simply provided each parthoipating

candidate the maximum amount (o¢., three times the

amount of the initial wrants avanable under current law)

at the outset, without regard to the sums raised or spent

by participants’ privately financed opponents. Using the

matehing- funds mechanism instead of that more proeth-

gate approach both conserves state resourees and re

duces the incidence of financial disparities between pub

licly and privately financed candidates, without in any

way increasing the burdens en privately financed cand!

dates or their supporters,

Petitioners’ relianee on Daves is misphiced. Under

the statute (Known as the “Milhonure’s Amendment) at

issue in Daves, a self-financing candidate's expenditure

of specified amounts of personal funds Criggered a regu

4

latory framework under which the selt-finanemyg cand

date was subject to much more stringent contmbution

limits than his opponent. Charactertaing that disparate

treatment of competing candidates as “unprecedented”

(654 U.S. at 789 and “discriminatory” Cad. at 740), the

Court held that the Milhonaire’s Amendment unconst!

tutionally burdened the self-financing candidate's exer-

cise of First Amendment rurhts. Under the Arona Act,

by contrast, peliioners’ campanen spending simply trig

vers Increased monetary outhiys that, under petihioners:

own theory, the State could have provided from the out.

set. And far from being the beneticnuiries of a “diserim

natory” regulatory framework, publicly financed Ari

zona candidates are subject to much more severe spend,

ing and fundraising restrictions than their privately t-

nanced opponents

The Arizona Aet’s matehing- funds mechanism ts not

analogous to compelled speech laws that this Court has

invalidated. Petitioners are not required to pay for, to

disseminate, or to identity themselves with their oppo

nents’ Messaves.

IL. The Arizona Act’s matching funds provision sat

isfies exacting serutiny. This Court has recognized that

voluntary public- financing programs are a constitution,

ally permissible means of preventing actual and appar

ent corruption of office holders. That Arizona also lim-

its contributions does not negate the possibility of such

corruption. And by obviating the need for candidates to

solicit donations to amass adequate resources under

applicable contribution limits, public financing serves a

further important interest by freeing office holders Co

focus on issues of public concern,

Phe matehing- funds mechanism provides a constitu

tionally permussible formula for determining how much

10

money each pubhely financed eandidate will receive.

Phe State’s public-financing scheme can attract cand

dates to participate, and thereby serve its important

purposes, only if candidates have reasonable contidence

that it will provide suffiaent sums to run competitive

campayrns. Although Arizena could invite widespread

participation by providing very large grants to all qual:

{ving applicants, that approach would waste public funds

in races Where such largesse Is unnecessary to run an

effective campayrn. And while the State cannot restrict

petitioners’ expression in order to provide equality of

opportunity to their competitors, the Arizona Aet does

not restrict petitioners’ speech. In determining in ad

vanee how to calculate the amounts to be paid to cand.

dates who choose to participate, Arizona can seek to ap

proximate the sums ratsed and spent by participants’

privately financed opponents.

ARGUMENT

The matehing-funds provision of the Arizona Act ts

consistent with the First Amendment because it does

not “abridgie] the freedom of speech.” This Court's pre

cedents make elear that Arivena’s provision of pubhe

funds to participating candidates does not, in and of it

self, violate the First Amendment rights of candidates

who cheose to finance their own campaigns A necessary

component of any public-finaneing scheme is a termula

to determine the amount of funds that each participating

eandidate will receive. The matching- funds provision ts

designed to create adequate incentives for candidates to

choose public financing, thereby allowing the Act to

achieve its important purposes, without wasting scarce

public resources.

1]

I BECAUSE THE ARIZONA ACT DOES NOT SUBSTAN.

TIALLY BURDEN PETITIONERS’ ABILITY TO SPEND

MONEY ON ELECTIONS, THE ACT IS REVIEWED UN-

DER THE “ENACTING SCRUTINY” STANDARD

Petitioners and their amici contend that strict seru-

tiny should apply because the Arizona Act “penalizes,”

“restrictis}."° or “limit{s}" the speech of candidates and

independent groups. Phat premise is incorrect. The

challenged provision does not limit the contributions

that privately finaneed candidates can reeeive or the

total amounts that such candidates or their supporters

can spend on campaign-related speech. Petitioners nev-

ertheless contend that the Act should be reviewed under

the same stringent standard as an outright prohibition

on spending. Petitioners’ theory is that the Act “bur-

dens” their speech by creating Incentives for petitioners

to forme campaign-related activity in order to prevent

additional matching funds from flowing to their oppo-

nents. The existence of that sort of strategic choice,

however, does not constitute the kind of severe burden

on constitutional rights that would trigyer striet seru-

tiny.

A. The Arizona Act Does Not Restrict The Right To Make

Campaign Expenditures

Linder the Arizona Act, privately financed candidates

and their independent supporters face no restrictions on

how much money they can spend, when they ean spend

it, orn the case of independent groups) how they must

AFEC Br. 28, 36: see MeConrell Amicus Bro LO: MeComish Bro p7

samilar to the threat of a fine”).

* AFEC Br. 26, 27, 35, 42

AFEC Br. &8, MeComush Br. 87.57: see MeConnell Amicus Br. 4-5

l2

organize their operations in order to spend money on

advocacy. All they must do to comply with the Act is

provide disclosure, Ariz. Rev. Stat. Ann. $$ 16-941(B)(2)

and (D), 16-948 (West 2006 & Supp. 2010), a require-

ment petitioners do not challenge.

The absence of any direct restriction on petitioners’

own campaign-related spending is enough, by itself, to

distinguish nearly all of the strict-scrutiny cases on

which petitioners and their amici rely. Almost every one

of this Court’s cases applying strict serutiny in the elee-

toral context has involved an outright restriction. See,

e.g., Citizens United v. FEC, 1308. Ct. 876, 897 (2010)

(describing the statute as “an outright ban, backed by

criminal sanctions”); id. at 917 (Roberts, C.J., eoneur-

ring); Randadi v. Sorredl, 548 U.S. 230, 245 (2006) (plu-

rality opinion) (“dollar cap imposed upen a candidate's

expenditures”); ?d. at 264 (Kennedy, J., concurring tn

the judgment); cd. at 267 (Thomas, J., concurring in the

judgment); Hue v. San Francisco County Democratic

Cent. Comm... 489 U.S. 214, 228-225 (1989); PEC v. Mas-

sachusetts Citizens for Lite. lne., ATO U.S. 238 (1986);

FEC v. National Conservative PAC, A470 U.S. 480, 496

(1985) (NCPAC); Brown v. Hartlage, A456 U.S. 45, 53-54

(1982); First Natl Bank v. Bellotti, 485 U.S. 765, 786

(1978); Buckley v. Valeo, A24 US. 1, 39-59 (1976) (per

curiam).

In each of those cases, the challenged restriction was

subject to strict scrutiny because the direct result of the

restriction was less speech. The Arizona Act, by con-

trast, leaves speech unrestricted and instead provides

funding for mere speech in response. See Buckley, 424

US. at 93 n.127 (pubhe finaneing is one way of “provid-

ing financial assistance to the exercise of free speech”),

et. Citizens United, 1308. Ct. at 911 CUE] t is our law and

13

our tradition that more speech, not less, is the governing

rule.”). The contrast between this case and NCPAC, on

which several amici rely, is instructive. The statute

struck down in NCPAC, a provision of the Presidential

Fund Act, tightly restricted independent expenditures

supporting a publicly financed candidate for President.

The Court applied strict scrutiny to the expenditure

limit “to assure [the] unfettered exchange of ideas” in

the electoral arena. 470 U.S. at 493 (brackets in origi-

nal) (quoting Buckley, 424 U.S. at 14). The Arizona Act

does not restrict the exchange of ideas but rather facili-

tates it. The Act does not limit the right of either pri-

vately funded candidates or independent groups to at-

tack publicly funded candidates, but merely makes it

possible for those publicly funded candidates to respond.

B. To Invoke Strict Scrutiny, Petitioners Must Show That

The Arizona Act Severely Burdens Their First Amend-

ment Rights

This Court has also applied strict scrutiny to a hand-

ful of electoral regulations that do not formally restrict

the exercise of any right protected by the First Amend-

ment, but that impose such a significant practical bur-

den on the exercise of such rights as to be tantamount to

an outright restriction. In each of those cases, however,

the Court has cautioned that it will apply strict scrutiny

only to regulations that directly, tangibly, and signifi-

cantly burden the exercise of First Amendment free-

doms. A mere “disincentive” to speech does not consti-

tute such a burden. Statutes that create such disincen-

tives are subject to less demanding scrutiny because

they pose “a less substantial risk of excising certain

ideas or viewpoints from the publie dialogue.” Turner

Broad. Sys., Ine. v. FOC, 512 U.S. 622, 642 (1994).

14

Petitioners’ evidence in this case shows, at most, that

petitioners have sometimes refrained from raising or

spending money in order to avoid triggering payments

of matching funds to opposing candidates. Petitioners

have made that tactical choice because they prefer the

situation in which both they and their opponents spend

less to a situation in whieh both they and their oppo-

nents spend more.* Petitioners would of course prefer

a regime under which they could spend additional sums

while their publicly financed opponents received only

the initial lump-sum state payments. Nothing in the

First Amendment, however, entitles them to the benc-

tits of that disparity.

1. Only a “severe” burden on the exercise of a constitu-

tional right can trigger strict scrutiny

As this Court has long emphasized, not every regula-

tion of the political process creates the sort of burden on

constitutional rights that warrants strict scrutiny.

Rather, that standard applies only to the most swbstav-

tial burdens, whether on the right to free speech, the

right to free association, or the right to vote. See, e.g.,

Jlingman v. Beaver, 544 U.S. 581, 592 (2005) (“[S]trict

scrutiny is appropriate only if the burden is severe.”).

This Court has applied that principle in numerous

First Amendment contexts. See, e.g., Clingman, 544

* Several petitioners are current state officeholders or held state of-

fice at the time suit was filed. As this Court has noted, incumbents have

natural advantages (such as name recognition) over challengers, and

challengers generally need more money to prevail than incumbents do.

See Randall, 548 U.S. at 256 (plurality opinion) (citing Norman J.

Ornstein et al., Vetal Statistics on Congress 2001-2002, at 87-96 (11th

ed. 2002)). An incumbent may well prefer that both sides spend small

amounts rather than large amounts for reasons that have nothing to do

with any First Amendment burden that the Arizona Act may pose.

lS

U.S. at S92; Washington State Grange \ * Washington

State Republican Party, 552 US. 442, 452 (ZOOS) Con:

plaining that “[i]f a statute imposes only modest bur

dens” on associational rights, strict serutiny does not

apply); Timomons ve Pein Cities Area Neve Party, o20

US. 851, 858, 864 (1997) The few eases in whieh this

Court has applied strict scrutiny based sane ona bur-

denon First grep rights are those like Davis v.

FEC, 554 U.S. 724 (2008), in which the burden was “un

precedented,” ae cial and “substantial” (see pp. 22-26,

fray, or California Democratic Party vo Jones, a30

US. S67, SS1-58Z (2000), in whieh the Court “elould)

think of no heavier burden” on associational rights than

the law at issue.

Strict scrutiny ts a demanding test, and this Court

has reeognized that it cannot be applied toad laws that

affect the choiees of voters, eandidates, and parties.

Clingman, 544 US. at 592. In particular, strict serutiny

is inappropriate ifa burden, though direct and tangible.

is merely an “ordinary” and “widespread” feature of the

electoral system. Jd. at 593. Thus, although a plaintitt

may be concretely affected by rules that prevent him

from voting in one party's primary while remaining rey

istered with another party: giving his party's ballot line

to another party’s nominee; or casting his ballot for a

write-in candidate, those regulations do not affect First

Amendment rights to the severe degree that would war-

rant strict scrutiny. Jd. at S92-H93; Tormomons, S20 US

at 398-359; Burdick ve Takashi, 504 US. ARS, 482- 434

(1992).

In xe previous case, moreover, has this Court

deemed the expenditure of public funds to be a constitu,

tionally significant burden on someone who did not want

government money for himself but opposed the provi-

16

sion of such tunds to others. To the contrary, the gov

ernment generally enjoys the greatest discretion when

it oxeretses the power to spend its own funds as it sees

ft. See. eg, NEA ve Foiley, '24 US. S89, SS7T-ASS

CI99S); 2d. at ANY (Sealia, 1, concurring in the yudazment)

(characterizing “the distinction between ‘abridging’

speech and funding it as a fundamental divide’): Rust v.

Sullivan, 5OO US. 178, 194 (IM9D) Regan vo Taxation

with Representation, ABL US. 540, b45-546 CL9S3): ef.,

e.g, NOPAC, ATO TLS. at 496 (noting, ina ease involving

Independent expenditures concerning a publicly ti-

naneed candidate, that “[tlhe restriction invelved here

is not merely an effort by the Government to regulate

the use of its own property”). The Court's reluctance vo

subject commonplace and important government elec

toral regulation to the “compelling interest” and “nar

row taloring” requirements of striet scrutiny, see

Clingrian, 544 US. at 493, applies with all the more

force Ina case like this one, for two reasons: First, the

allegedly burdensome state law does not regulate pri

vate conduct at all, but simply establishes a spending

program in which participation is wholly voluntary. See

ond, petitioners do not challenge the denial (or potential

denial) of public funds to themselves, see, eg., Fevley,

O24 US. at S77; Rosenberver ve Rector, SV ULS. S19,

S25-S8US (1995), but instead claim injury from the yzevern

ment’s prevision of funds to others.

2. Astate law does not impose a “severe” burden on con-

stitutionally protected rights simply because it cre-

ales a reason not to exercise them

A plaintiff cannot show that a law imposes a “severe”

burden merely by averring that he would prefer to re-

train from exereising his rights altogether than to exer-

ly

cise them subject to the law) This Court has long made

that point clear, including twice just last Term.

a. In upholding the public-finanemng scheme that

apphes to presidential elections, the Courtin Nacdley

stated that “Congress may engage in public financing of

election campaigns and may condition acceptance of

pubhe funds onan agreement by the eandidate to abide

by specified expenditure lumitations.” 424 US. at o7

n.6o. The Court reached that conclusion even though it

held that voveerd/reg candidates may not constitutionally

be subjected te limits on total campanrn spending. See

rd at 54-58. The Court explained that “[a}ust as a eands-

date may voluntarily imut the size ot the contributions

he chooses to accept, he may decide to forgo private

fundraising and aceept public funding” Jd. at O7 nih

Vhat analysis makes clear Chat a statutory disincentive

to the exeretse of First Amendment rights eannot prop-

erly be equated with a direct ban or restriction on such

freedoms.

b. More recently, in Crfisens (neted, the phantitt

and numereus amict—ineluding several entities that

advocate the application of strict serutiny in this ease

argued Chat disclosure requirements should be subject

to street scrutiny. They contended that requiring a per-

son or proup to disclose its identity when it funds an

clectloneering communication is a severe burden on the

right to free speech. Appellant's Reply Br. at 28-30,

Ciftzens United, sapra (Ne. OS-205); Inst. for Justice

Amicus Br. at 4-6, 8-12, IS-25, Citizens United. supra

(No. 08-205); Cato Inst. Amicus Br. at 16-26, Coftesens

(orited, supra (Ne. 08-209).

This Court squarely rejected those arguments. It

reiterated Chat tifa challenged requirement “doles] not

prevent anyone from speaking.” itis not ordinarily sub-

IS

jeet to the same level of scrutiny as an outright regula

tion of speech. IOS. Cc at Olt qquoting WeCorned y

FEC. 540 US. 98, 201 (008). The Court alse did not

agree that the potential deterrent effeet of the chal

lenged disclosure requirement —ce.. the possibility that

some persons would forge campaizn-related speeeh alto

vether rather than divulge their identities to the pub

lie—warranted the appheation of strict serutiny. Rath

er, the Court upheld the disclosure requirements under

a less demanding standard of review, rd at ld, O16. and

in so doing reaffirmed a line of cases extending back to

Rucklen. supra. In Buckley the Court reeormzed that

“Lifts undoubtedly true that publhie disclosure of contri

butions te eampaigns and political parties will deter

some Individuals who otherwise murht contribute.” 42d

US. at 68, or who otherwise might make expenditures,

see id at To. The Court nonetheless applied the lower

standard of “exacting scrutiny, whieh requires a ‘sub

stantial relation’ between the disclosure requirement

and a ‘sufficiently important’ vovernmental interest.”

Crtisens United, OS. Ct. at O14 (quoting Buckle uw, ALA

US. at 64, 60).

Similar amuments un favor of strict serutiny were

made in Doe v. Reed, AS. Ct. 28ST (2010), again by,

mvfer-adia, the same entities that urge stmet serutinys

here. Those btyrants centended that surming a petition

to hold a popular referendum on a legislative enactment

Was protected First Amendment activity, and that a

statute mandating disclosure of petition summers: names

imposed a severe burden warranting strict serutiny. See

Pet. Bro at 28-31, 40-48, Doe, supra (Ne. 8-550), Inst

for Justice Amicus Br. at 10-17, Doe, supra CNo. OM 54M),

Cato Inst. Amicus Br. at 2. 6-10, Doe. ssarra (No. 09

S60). In rejecting that contention, the Court reiterated

1%)

that disclosure requirements “may burden the abiaty to

speak, but they . 0 . de not prevent anyone from speak

Ing” 180 S.Ct at 2S1TS (quoting: Cuficers Cnited, 130

S.Ct at M1). Because “only modest burdens attend the

diselosure of a typreal petition” the Court appled exact

ing serutiny rather than strict scrutiny, and at apheld

the disclosure statute ayvainst the plamntitts: taeral chal-

lenwe. Jd. at ZSTS, 2821"

¢ In other First Amendment contents as well, the

Court has reeeyrnized that a mere disincentive is not

suffterent to create a constitutionally cognizable burden

that warrants striet scrutiny. “There is a basic differ

ence between direct state interference with a protected

activity and state encouragement ofan alternative acu

WV [that is} eonmsonant with legislative polrew” Aess, a00

US. at 198 (quoting Maher ve Roe, A82 US 464, ATH

(L977). By making pubhe funds available, Arona

seeks to eneourage candidates Co abtde by the tundrais-

Ingand spending limits that apply te partreipating ean-

didates, But neither the Arizona Act as a whole, nor its

matching-funds prevision in particular, restricts the

speech of candidates who decline te participate

CC The Arizona Act Does Not Impose Any Severe Burden

On Petitioners

Under the foregoing principles, the Arivona Act does

not umpose any severe burden on petitioners’ exereise of

their First Amendment rights. Rather, petitioners re-

main free to exercise those rishts to their fullest extent

In both ocand Crfisens d neted. the Court left open the poss rtnhity

that successful as-apphed challemres mught be breuarht by individuals

or groups who would be susceptitle to ungsually severe harm c'threats,

harassipent, er reprisals”) from disclosure. Joe, 808. Ct at Zo]

y*

(citation omittedh: Cutrscus Gerted. ses Ct at 414.81

"0

Under the Arivona Aet, Che only consequence of petition

ers’ expenditures is Chat a somew hat greater amount of

state funds may be provided to petitioners’ publicly 0

naneced opponents Petitioners’ own speech, however, ts

neither negated nor penalized by counter-speech from

their opponents. Indeed, petitioners concede (MeCom

ish Br. S4-85) that the Arivona Act would be constitu

tional ifadd publicly financed candidates for state office

were given three times the amount of the current detault

spending lnuts

Petitioners’ constitutional objection Co the Artvona

Aet’s matehing-funds provision ts that the amount of

state money provided to any particular publiely financed

candidate depends in part on the amounts raised and

spent by the candidate's opponents Petitioners contend

that the matehing-funds approach has a “punitive and

deterrent effect” because therr own exereise of Furst

Amendment rights “helpts} disseminate hostile speech”

MeComish Br. S84. But Arizona does not take meney or

other resourees from petiioners to fund or facilitate

their opponents’ speech; it does not require petitioners

to inelude their oppenents’ Messages alongside their

own. and it does not give their opponents’ messages aly

superior treatment Rather. the State merely adjusts

the amounts paid to publicly financed candidates Co tn

crease the Likelihood that Chose sums i] be sutficrent to

run a competitive campanrn and, thus, to attract candi

dates to choose the public-finaneing systent at the out

set. And unlike the Millionaire's Amendment that was

struck down in Davis, the Arizona Act does not subject

privately financed eandidates toa diseriminatory regula

tory regime. Beeause the result— more speech and

more competition is) wholly econsenant with First

Amendment values, see Aucdlen, 424 US. at 92-98, the

A

matching funds provision is not subject to striet seru

tiny

l The Act does not burden petitioners by giving a

fundraising advantage to their epponents

‘he dollar amownt of matehing funds that a publicly

financed eandidate receives does not burden that candi

date’s opponents. Petitioners concede (MeComush Br.

S485) that the State could constitutionally provide ev

ery publicly tinaneed candidate the maximum amount of

funding Coe. three times the amount of the initial lamp

sum payment) that is available under current law. Ae

cord Pet. App. 64 (district court recognizes that, “ijt the

Act provided for a single lump sam award, instead of

Incremental awards, the law would fall squarely within

the regime blessed in Buckley and reaffirmed in Do

ms) For example, the imtial lump-sum payment to a

pubhely financed candidate mn the Arizona gubernatorial

eleetion Is approximately $1.06 millien, and the mani

mum amount available is approximately $3.18 million.

State Resps. Broo ns. The Arzena Act would not be

subject to any colorable constitutional objection uf every

quahftving pubhely financed gubernatormal candidate

reeewed $3.18 million for the general election, even if

that amount were larger Chana privately financed oppo

nent was able te raise through contributions or self-

funding.

Petitioners’ repeated assertions that the Act gives

“fundraising advantapyes” to their political opponents

(ARF EC Br. 27-32) MeComush Br. 48-49, SS) are therefore

doubly miseoneeived. This Court in Buckley upheld

pubhe finaneming even while recognizing that some pub

hely financed candidates would receive larger sums than

some privately financed candidates could hope to raise.

»

-_—

424 US. at 84-85 & nes, 98-99, 1LOL-102. And the par-

ticular feature of the Artzona Act that petitioners chal-

lenge oce, the matching funds formula fer calculating

the payiments that partieipatings candidates will re

ceerve ts desurned to reduce the incidence of disparities

between privately and publicly finaneed candidates.

2. Matching fends do not impese cny discriminatory

burden on petitioners

In Deere, this Court held that the Millionaire's

Amendment “substantially burdenjed]” the rights of a

candidate who wished to spend a large sum of personal

funds on his campanuro because Davis's self financing

would trigger “disermminatory” contribution and party

coordination limits favering: his opponent. 554 US. at

740. The Arizona Act creates no such invidious discrimi

nation between similarly situated candidates. Petition-

ers’ reliance on Daris theretore is misplaced.

The Milhonatre’s Amendment did not involve public

financing. Rather, it provided that if a candidate con-

tributed a large amount of personal funds to his cam

paurn, any competing candidate whe had contributed no

personal funds (or a much smatier amount) could benefit

from a speeial set of campaign-ftinanee rules." The com

peting candidate could accept contributions of up to

$0900 per individual donor: the self-finanetng candi

date’s limit was SZ300 per individual donor. The com

The Millonatre’s Amendment was triagered when the “oppesitien

personal funds amount” COPPA) exceeded St90,0000 “The OPERA, in

simple terms, [Was] a sttistie that compare. d) the expenditure of pet

semk funds by competing candidates and also (Look} mmto aewount to

sume deyree certain other fundraismur” Dares S54 Sat TY see a

at 729 nb, Once the competing cand.diate bad raised enough money un

der the Milbonaire’s Amendment to equal he OV EA, the special rules

ceased to apply. Jd. at 729

“-

petings candidate could accept contributions trom mundi

viduals Who had already made the maximum ageregrate

campaign contributions that federal law permits, the

self-financing candidate could not. And the competing

candidate could benefit from an unlimited amount of

coordinated spending by his political party: the self

financing candidate could avcept no more than $40,900

iInsuch spending. See Dares, 554 US. at TZ8-729,

The plaintitfin Daers was a self-financing candidate

Whose campaign spending had triggered the Million

aire’s Amendment. Although his opponent had chosen

not to take advantage of the special contribution and

coordinated-spending limits, this Court held that Davis

had suffered a cognizable injury; Chat bis injury consti

tuted a “substantial burden” on his First Amendment

rights; and that strict scrutiny therefore apphed. 554

US. at 734, 740.

The injury the Court identified was not the mere faet

that Davis's own self-finanetng triggered new contribu-

tion himuts that allowed his opponent to raise more

money. “If [the Millionaire’s Amendment | simply raised

the contribution limits for all eandidates,” the Court

stated, “Davis’ argument would plainly fail” because

there is no constitutional right “to restrict an opponent's

fundraising.” S54 U.S. at 7387. The Court thus reeog

nized that Congress could permissibly have made Da

Vis's electoral spending the trigger for modifications to

the generally-appheable campaign-tinanee regime, even

if Davis preferred to self-finance his campaign while

leaving the lower contribution limits in place.

The defeet in the Millionaire’s Amendment, the

Court explained, was that a candidate who “engagels] in

unfettered political speech” must face the “unpreee-

dented penalty” of a “discriminatory” set of fundraising

24

limitations. 544 US. at 738. The Court emphasized that

it had “never upheld the constitutionality of a law that

imposes different contribution limits for candidates whe

are competing against each other.” Jd. at 738.) The

Court coneluded that the Millionaire’s Amendment

impermissibly burdened Davis's exercise of the constitu-

tional right to selt-finance because Davis was required

either to “abide by a limit on personal expenditures or”

‘to suffer the “activation of a scheme of diseriminatery

contribution limits.” Jd. at 740."

Thus, the thrust of the Davis Court's reasoning: Was

that, given the constitutionally distavered nature of any

campaign -finanee regime in which opposing candidates

in the same election are subject to different contribution

limits, Congress could not require candidates who other:

wise would self-finance to forge their exercise of constr

tutional rights in order to avoid that “discriminatory”

regulatory framework. Under the Arizona Act, by con-

trast, petitioners’ electoral spending simply triggers

increased monetary outlays that, on petitioners’ own

theory, the State could have provided from the outset.

The feature of the Milhionaire’s Amendment that the

Daves Court found decisive—ce., its treatment of pro-

tected speech as the trigger for regulation that would

Similarly, in Sinzow & Schuster, lnc vo Members of the NY State

Crone Vretanes Bd. 502 US. 108 i! Dd), the Court apphed strict seru-

tiny te New York's “Son of Sam” law because the law imposed “diserim-

inatory,” “eantent-based burdens.” Jd) at 116; see id) at T1h-118

Petitioners rely (AF EC Br. 28) on Sanon & Schuster for the proposi

tion that a disincentive is a severe burden, but the Court in Chat case

considered only a “content based financial disincentive [7 to engage in

speech ona particular subject. 502 US at 117 (emphasis added). By

contrast, the Arizona Act is content-neutral because participation is

based entirely on neutral criteria and even emlics of public financing

(such as petiuioner Murphy, JA. 674) may participate,

otherwise be constitutionally infirm--is thus absent

here. And the State’s decision to conserve searce public

resources, by mandating the higher outlays only in those

races Where they are most needed, does not render the

Act unconstitutional, See po 21. spray po 33a, aefra.

Far from being the beneficiaries of a “diserimina

tory” regulatory framework, publicly financed Arizona

candidates are subject to much more severe spending

and fundraising restrictions than their privately ti-

nanced opponents. Ct. Buckley, 424 US. at 95 (presi-

dential candidates whe voluntarily accept the benefits

of public financing must also “suffer a countervailing

denial”). Privately finaneed Arizona candidates may

spend as much as they can raise; publicly financed eandi-

dates may not spend more than the amount of the state

grant. Privately finaneed candidates may spend freely

from their personal funds; publicly financed candidates

may spend only a very limited sum ($1000 for a state-

wide office). Privately financed candidates may accept

private contributions throughout the campaign, in larger

increments; pubhely financed eandidates may raise

money only during a short window of time, only from

individuals, and only in increments of S100 or less

per person. Arm. Rev. Stat. Ann. $8 16-905CA)-(D),

16-S4 1A) and (B\CD), 16-945 (West 2006 & Supp. 2010).

In return for agreeing to this framework, publiely

financed candidates receive a grant of government funds

that spares them the need to raise money. But Buckley

makes clear that neither the grant of government funds

to a candidate, nor the prescribing of conditions (such as

voluntary adherence to an expenditure ceiling) to be

eligible for such funding, violates the First Amendment.

424 US. at 90, 92-05, 94-95; see cd. at AT n.65. And the

Court in Dares, while distinguishing the Millionaire’s

26

Amendment from the provisions that govern publie f1-

nancing of presidential campaigns, did not eall that as-

pect of Buckley into question. See 554 U.S. at 739-740.

Thus, under the Arizona Act, publiely and privately

financed candidates are simply subject to different sets

of rules. Unlike Davis's opponent, who received “fund-

raising advantages” (554 U.S. at 739) in the form of dis-

criminatory contribution and coordinated-expenditure

limits «rthout being subject to any countervailing disad-

vantage under the federal regulatory scheme, petition-

ers’ publicly financed opponents must take the bitter

with the sweet. As the Court emphasized in Buckley,

“since any * * * candidate accepting publie financing

of a campaign voluntarily assents to a spending ceiling,

[privately financed] candidates will be able to spend

more in relation to the [publicly financed] candidates.”

424 U.S. at 99. And although privately financed eandi-

dates must raise money in order to outstrip their oppo-

nents’ spending, neither the Arizona Act as a whole nor

the matching-funds provision in particular imposes any

obstacle to that fundraising. See td. at 94-95 & n.128.

Because other features of the Arizona Act work to peti-

tioners’ advantage, the formula used by the State to cal-

culate its payments to petitioners’ publicly financed

opponents-—e.g., allowing a legislative candidate to

spend $42,957 on a primary instead of $14,319, see State

Resps. Br. 6 n.3—-does not give those opponents the sort

of discriminatory “fundraising advantage” that Davis's

opponent could have received,

3. Arizona's use ofa matching-funds approach to caicu-

late the payments made to publicly financed candi-

dates does not burden petitioners

Petitioners contend (AFEC Br. 32-35; MeComish Br.

50-58) that the Arizona Act’s matching-funds provision

burdens their exercise of First Amendment rights be-

cause their own campaign spending (if it exceeds the

amount of the State’s initial grant) triggers additional

state outlays to their opponents. That argument lacks

merit. Providing additional funds to petitioners’ oppo-

nents does not make petitioners’ own speech any less

effective; does not require petitioners themselves to

fund or publicize their opponents’ speech; and does not

associate petitioners with their opponents’ messages.

The Act simply ensures that, when privately financed

‘andidates raise the stakes, publicly financed candidates

will be able to stay in the hand for at least a few more

rounds.

a. Petitioners contend (e.g., MeComish Br. 55)

that the Act “force|s] [them] to help disseminate [their

opponents’| hostile views.” Petitioners’ analogy to

compelled-speech cases is flawed beeause petitioners

provide neither the money nor the medium for their op-

ponents’ message.

Some compelled-speech claims object to funding

speech with which the plaintiff disagrees. See, e.g.,

United States v. United Foods, Inc., 5383 U.S. 405 (2001)

(cited in MeComish Br. 52). Petitioners are not taxed to

pay for matching funds, however, unless they voluntarily

check a box on their tax returns. Ariz. Rev. Stat. Ann.

§ 16-954 (West 2006); ef. 26 U.S.C. 6096 (similar). And

government appropriations, even from the general! fund,

would not constitute compelled speech in any event.

28

Johanns v. Livestock Mktg. Ass'n, 544 U.S. 550, 559,

562-563 (2005).

In other such cases, the plaintiff is made to convey

the speech with which he disagrees. See, e.g., Pacific

Gas & Elec. Co. v. Public Utils. Comm’n, 475 U.S. 1, 11

n.7, 12-13 (1986) (plurality opinion) (utility forced to

“carry” messages in its billing envelope, exclusively

from “those who disagree with [utility’s] views and who

are hostile to [utility’s] interests”); Miam: Herald

Publ'g Co. v. Tornillo, 418 U.S. 241, 257-258 (1974)

(newspaper forced to print critical rejoinder contrary to

its editorial judgment). This Court’s decisions condemn-

ing such requirements are likewise inapposite here.

“The compelled-speech violation in each of [the Court’s]

prior cases,” including Pacific Gas and Tornillo, “re-

sulted from the fact that the complaining speaker’s own

message was affected by the speech it was forced to ac-

commodate.” Rumsfeld v. FAIR, 547 U.S. 47, 63 (2006).

Petitioners are not required to disseminate any oppos-

ing speech. Nor does the matching-funds procedure

identify petitioners with their opponents’ speech or oth-

erwise obscure petitioners’ message. Cf. id. at 65;

Johanns, 544 U.S. at 564-566.

b. Petitioners also suggest (AFEC Br. 30) that the

matching-funds provision cognizably injures them sim-

ply because the matching funds enable their opponents

to engage in additional speech. That argument lacks

merit.

Although petitioners’ speech may be the but-for

cause of their opponents’ receipt of matching funds, that

is always true when one speaker’s words or actions

prompt another to respond in kind. To treat additional

speech as a First Amendment injury would contravene

this Court’s repeated admonitions that, where existing

2a

speech is insufficient or potentially counter-productive,

“the remedy [that should] be applied is more speech.”

E.g., Linmark Assoes., lnc. v. Township of Willingdoro,

431 U.S. 85, 97 (A977) (quoting Whitey v. Caivfornia,

274 U.S. 8457, 877 (1927) (Brandeis, J.. coneurring));

Meese v. Keene, 481 US. 465, 481 (1987); see also Re

publican Party v. White, 386 U.S. 765, 795 (2002) (Ren-

nedy, J.. concurring) (‘democracy and free speech are

their own correctives”). Indeed, this Court has sug-

gested that it is preferable for the government itself to

engage in its own counter-speech rather than restrict

the speech it finds objectionable. Loaonark Assocs, 431

U.S. at 97; 44 Liquormart, Inc. v. Rhode Island, AV

U.S. 484, 507-508 (1996) (opinion of Stevens, J.) And

here, Arizona does not speak itself, but simply makes

funding available. on a content- and viewpoint-neutral

basis. for candidates to engage in their own speech. See

note Ll, sapraret. Board of Regents v. Southworth, a29

U.S. 217, 233-234 (2000) Wiewpoint-neutral program to

“stimulate * * * expression” was consistent with the

First Amendment even though funded with mandatory

exactions),

Although electoral polities may be a “zero-sum” en-

deavor (AFEC Br. 30), one candidate's advertisement

does not become less effective simply because a compet-

ing candidate also engages in effective electoral advo-

cacy. Two advertisements by opposing candidates may

be directed to, reach, and persuade entirely different

audiences. And from the standpoint of First Amend-

ment values, two advertisements certainly are prefera-

ble to none. Electoral competition is not a cogmzable

burden under the First Amendment.

30)

I. THE ARTZONA ACT IS VALID UNDER ENACTING SCRU

TINY

Because petitioners have not established any “se-

vere” burden on their speech, the Act is subject net to

striet serutiny, but to the more flextble standard that

this Court has termed “exacting serutinv.” Under that

standard, the Act is valid because it bears a “'substan-

tial relation’” toa “sufficiently important’ gevernmen-

talinterest.” Crfrzens United, BOS. Ct. at 914 (quoting

Buckley, 424 ULS. at 64, 66).

AW Anzona’s Public- Financing Scheme Furthers Important

.

?

{

Government Interests

In Buckley, this Court recognized that public finane

ing of candidate campaigns, by obviating the need for

candidates to raise funds from private sources, combats

both corruption and the appearance of corruption by

“eliminating the improper influence of large private con-

tributions.” 424 U.S. at 96. This Court has repeatedly

held that the government's interest in preventing actual

and apparent corruption ts not simply important, but

compelling. See, eg.. NOPAC, 470 US. at 496-497. Pe-

titioners contend (AFEC Br. 55-56; MeComish Br. 68

v1), however, that the Arizona Act’s mateching-funds pro-

Visions are not substantially related to an important yov-

“In Buckley. the Court suggested that a claim that s publie-financing

system invidiiously discruminates myrht be reviewed under a more per:

missive standard because public financing “is not restricuve of voters’

rights and {is] cess restrictive of candidates” rughts than are ballot-ae

cess regulations that have been reviewed under enacting scrutiny. 424

US. at M4. The Court did not resolve that question, but upheld tre

Presidential Prowary Act and Presidential Fund Act as furthering “sut-

ficiently important governmental interests.” J/g at Ss. Tre Court can

do the same here.

Oornment interest because Arizona’s contribution limits

separately eliminate any meaningful danger of eorrup-

tion. That argument lacks merit.

1. States are not free to set contribution limits as

low as they may think necessary to combat corruption.

A contribution limit may be struck dewn as unduly low

ifit “prevent[s| candidates from ‘amassing the resourees

rocessary for effective [campaign] advocacy” Randall,

O48 US. at 248 (opinion of Brever, J.) (second brackets

in original); see dd. at 248-249) That Arizona has linnited

contributions to a partieular dollar amount does not

mean that no eontinuing risk of corruption exists,

As petitioners note (MeComish Br. 75-76), moreover,

a single individual can “bundle” many contributions to

gether. And an effective Arizona campaign may raise

and spend sizmificant sums. Petitioners presented in

support of their stay appheation the declaration of a

2010 gubernatorial candidate that he planned to raise

and spend mere than $1 million, see J.AL 9895: the

amount of the initial grant te publicly funded gubernato

rial candidates for the 2010) primary election was

S707 447. State Resps. Bro 6 n.8. In the 2002 gubernato-

rial election, one candidate raised and spent more than

$2 million. See Matt Salmon for Governor, 2602 Pos!

General Bleetion Report (Dee. 5, 2002), http: www.

azsos.govets PublicReports 2002 8489SCRER-CAQF

ABEO-BICO-TAGALESDOEDYS pdr Petitioners cannot

plausibly claim that the raising of such significant sums

entails vo possibility of a eandidate’s exehanging contr

butions for favors.

2. The Court in Buedley upheld doth the limits on

contributions to federal candidates, see 424 U.S. at 25

37, and the provisions that authorize public finaneing of

presidential campaigns, see ra. at 80-108. The Court

wy

as

observed that, even under campaign-finance liws that

limit the amount of money a candidate ean receive from

any single source, candidates still face “the burden of

fundraising.” /d at 6. Indeed, centribution limits in-

crease “the rigors of soliciting private contributions” by

requiring candidates Co raise funds from a greater num

ber of donors. Jord. In addition to reducing the danger

of actual or apparent corruption, pubhe financing re-

heves candidates of “the burden of fundraising.” thereby

freeing them to foeus on issues of public concern. See

dat 9-96. Buckley makes clear that Arizona’s adep-

tion of contribution limits does not prevent it from also

offering Voluntary public tinaneing. both to further re

duce the danger of corruption and to obviate the need

for participating eandidates to spend time seheiting: pri

vate donations.

Bo The Matching. Funds Prevision Is An integral And Con

stitutionally Permissthle Component Of The Arizona

Act

Under exacting serutiny, the State need not show

that the matching-funds provision is the ond wav to

offectuate its interest in preventing corruption, or that

itis the narrowest wav. Cf. eg. Lorillard Tobacce Co.

Vv. Rely. A838 US. 525, 556 (ZOOL) (no least-restrictive-

means test under see pong ery serutiny): Ward v. Rock

Against Racism, AML ULS. TS1, TOS (1989) (same). Rath-

er, it need only show ton Misa calrd way. As the court

of appeals correctly held, the State has satisfied that

requirement,

i. A necessary component of any pubhie-finaneing

scheme ts a formula for determining the amount of mon-

ey that each participating candidate will reeeive. In or.

der for Arizona's voluntary public-finanemmyg regime to

“-

“<-

attract participants. and thereby achieve the State's

Important purposes, those amounts must be hugh enough

to give candidates reasonable confidence that they wall

be able to run competitive campaigns. See Pet. App. 36

(°A public financing system with no participants does

nothing to reduce the existence or appearance of quid

pro quo corruption.) Matehing funds provide that as

surance. See, eg, State Resps. Br. 54-55, Clean Elee-

tions Inst. Resp. Bro 47-48. Although the State could

also provide the requisite assurance simply by paying

out very large sums to all candidates who satisfy the

statutory requirements, that approach would waste pub

he funds in the many clections where such large grants

are unnecessary either to enable candidates to run effee-

tive campaigns or to persuade them to elect public t-

naneing. See Pet. App. 37 Cll} the Act were to raise

the amount of tts lump-sum grants and do away with

matching funds altogether, it would make the Act pro-

ibitively expensive and spell its doom.”).

The matehing-funds provision is thus an appropri.

ately tulored way of making the public financing

scheme attractive to candidates, thereby enabling the

system to achieve its Important purposes, without un-

necessarily burdening the pubhe tise. Petitioners ac

knowledge (MeComuish Br. 84-85) that the State could

constitutionally give participating candidates the mani.

mum amount of tunding in a single lump-sum payment

at the outset, instead of one-third at the outset and the

remaining two thirds in matching funds, when trig.

gered. Butaifthe State can make the program just as ef:

fective and attractive, and encourage Just as much par-

ticipation, while spending less money on hopeless cand.

dacies or uncompetitive races, that is deffer tailoring,

not worse

at)

2. There is hkewise no merit to petitioners’ conten,

tion (APEC Br. 35-48; MeComish Br. 64) that the Art

zona Act's matching-funds previston runs afoul of a per

ceived constitutional ban on state efforts to “equalize”

political expression. To be sure. this Court has rejected

the proposition “that a candidate’s speech may be re

stricted in order to level electoral opportunities.” Darers,

oo4 US. at 742 Unternal quotation marks omitted); see

Buckley, A2A US. at AS-49, 56-57) Arizona therefore

could not hmuta privately financed candidate’s campaign

expenditures inorder to produce parity of resources as

between that candidate and his publicly financed oppo

nent. But neither the Act as a whele nor its matehing

funds provision imposes any restriction on petitioners’

own spending.

So long as the State does not restrict private speech,

iis not foreclosed from all efforts to ensure that eand)

dates Who eleet pabhe financing can have approximately

the same electoral opportunities as those who deo not. In

Buckley, for example, the Court upheld Congress's deci

sion to provide equal funding to the prestdential candi

dates of both major parties, regardless of the relative

performances of the two parties in the most recent elee

tion. See 424 ULS. at 98 1.188. In particular, nothing: in

this Court’s decisions supperts the counter intuitive

proposition that a State. in caleulating the amounts to be

paid to candidates Who have chosen to participate in the

State's public-fnancing system, cannot use as a bench

mark the sums raised and spent by participants’ pri

vately financed opponents.

In devising a payment formula, Arivona ean reason

ably seek to provide funding: that is sufficient, but not

greater than necessary, to allow participating candi

dates to run competitive campaurns. And the most obvi-

ous Measure of the amount necessary to be competitive

is the amount being spent by competitors. Tf Arizona

had chosen to provide the same level of funding to all

participating Senate candidates, i could surely have

caleulated the appropriate amount by reference to the

average cost of prior privately financed Senate cam.

paigns. The First Amendment does not prevent the

State from using the more nuaneed matehing-fund

mechanism, which recognices that the cost of an effee-

tive campaign depends in parton the circumstances of

a particular election

CONCLUSION

The judement of the court of appeals should be

alfirmed,

Respectfully submitted.

NEAL RUMAR RATYAL

Acting Solicitor General

Pony West

Assistant Afllorney (se aft ral

MatcoumM LOSTEWAKI

Ih putu Solicitor General

WintiamM M. TAY

Assistant fo flit Nolieitoer

‘ re nema

FEBRUARY ZOT]