# Amicus Curiae Brief — Arizona Free Enterprise Club's Freedom Club PAC v. Bennett > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0642%3A16 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2010 - **Citation:** 562 U.S. 1060 ## Text Nos. 10-238 and 10-239 —_ ——— a << I ee 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 Neal RMA AALYA {.¢ * \ ‘ (+ a he Pons W ‘ ° ‘ . Sad \ Vlar “ Nps WA j _, ‘ { Witt tan ME ay issistant fo the So (rf ‘ Wars! ay 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 1} i4 ™) soll op” ~~! \\ 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] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0642%3A16. Public record. Not legal advice.