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

Nos. 10-238 and 10-239 ce . 3

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4

In she _

Supreme Court of ‘the Gnited tates

ARIZONA FREE ENTERPRISE

CLUB'S FREEDOM CLUB PAC, ec? al.,

Petitioners,

‘

KEN BENNETT, e¢ al,

Respondents

——— — — ¢ ——_—- —--—-_ —

JOHN MCCOMISH, ef ai.,

Petitioners.

-

KEN BENNETT. ef al...

Respondents

On Writs Of Certiorari To The United States

Court Of Appeals For The Ninth Circuit

r

BRIEF OF AMICI CURIAE CAMPAIGN LEGAL

CENTER, DEMOCRACY 21, LEAGUE OF WOMEN

VOTERS OF THE UNITED STATES, LEAGUE OF

WOMEN VOTERS OF ARIZONA, PUBLIC CITIZEN,

CITIZENS FOR RESPONSIBILITY AND ETHICS IN

WASHINGTON, NEW JERSEY APPLESEED PUBLIC

INTEREST LAW CENTER AND SIERRA CLUB

IN SUPPORT OF RESPONDENTS

7

DONALD J. SIMON J GPRALD HERBERT

SONOSKY, CHAMBERS, SACHSF, = Counsel of Record

ENDRESON & PERRY, LLP Paka MALLoy

1425 K Street, NW, Sunte GOO Pact S Ryan

Washington, D.C 20005 THE CAMPAIGN LEGAL CENTER

(202) GS2-0240 LIS E Street, NE

Purn WERTHEIMER Washington, D.C. 20002

Nesting (202) 736-2200

2000 Ma lia tts Ave. NW ghebert@campaignlegaleenter ong

2000 Massachusetts Ave, }

Washington, DC 200386

(202) 429-2008

Counsel for Amici Curiae

February 2011

—_—

—— Soe a

CVACALE LAW PRTEP PRINTING OF) SOO 9D). 6a

OR CALL OOLLECT (€0l) We UNS

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ........... RAE AEBS pe ill

INTEREST OF AMICI CURIAE .....................044. l

SUMMARY OF ARGUMENT .......0.00000...0.. 1

TTT ssa cuevasaiglles uiccsuspocedetonervesataoevenseere: 3

1 The Presidential Public Financing Sys-

tem and Other Models of Public Finane-

ing Without “Trigger Provisions” Are Not

a I I in hak cat eu cailah eenes 3

Il. The Trigger Provisions of Arizona’s Public

Financing Program Are Constitutional ...... S

A. The Constitutionality of Public Fi-

nancing Was Affirmed in Buckley v.

Valeo and Republican National Com-

RE i ea ea 9

B. Reviewed Under the Standards Set

Forth in Buckley, the Trigger Provi-

sions Are Constitutional...................... 13

1. Because the Release of Trigger

Funds Does Not Impose Any Cog-

nizable Burden on Petitioners’ Ex-

ercise of their First Amendment

Rights, Strict Scrutiny Is Inappli-

USERS ETA NERSER AR SBT ESD ake ROA ih aero 13

a. The Challenged Trigger Provi-

sions Do Not Represent a Di-

rect Restraint on Speech........... 14

il

TABLE OF CONTENTS -— Continued

Page

b. The Indirect “Chilling Effect”

of the Trigger Provisions Al-

leged by Petitioners Does Not

Constitute a Cognizable Bur-

BE i cei cinineiictveescceacsssonns 16

c. Davis Does Not Justify a Break

From This Precedent................. 24

d. The “Compelled Access” Cases

Cited by Petitioners Do Not

REESE INISRE RSet cet ec ner sie CA Re ee

to

~]

2. like the Public Financing System

Upheld in Buckley, the Trigger

Provisions Advance the Compel-

ling Governmental Interest in

Preventing Corruption and the

Appearance of Corruption .............. 29

a. The Trigger Provisions En-

courage Participation in the

Arizona Public Financing Pro-

gram and Thereby Prevent Ac-

tual and Apparent Corruption

in State Elections...................... 30

b. Davis v. FEC Is Inapplicable Be-

cause the Miullionaire’s Amend-

ment Did Not Serve Anti-

Corruption Goals ..................ss0ss 3

Se cedidsanb ions 4]

APPENDIX A, description of the amici curiae ....App. 1

inl

TABLE OF AUTHORITIES

Page

FEDERAL CASES:

Board of Regents of Univ. of Wis. System v.

Southworth, 529 U.S. 217 (2000) ...................ecceeees 17

Buckley v. Valeo, 424 U.S. 1 (1976)... passim

Citizens United v. FEC, 1308S. Ct. 876 (2010).....15, 30

Daggett v. Comm'n on Governmental Ethics &

Election Practices, 205 F.3d 445 (Ist Cir.

ERC TE PS SI At Me SET RE SEEKING Eae Se eee uae 8, 31

Davis v. FEC, 128 S. Ct. 2759 (2008)................. passim

FEC v. National Conservative Political Action

IE, . Se Oe is Me ID oices cccdsuscccescocesecenceosecens 15

FEC v. Masachusetts Citizens for Life, Inc., 479

I a I alee 16

FEC v. Wisconsin Right to Life, Inc., 551 U.S.

Fe ESA eat ease aant Nar nce ee mth er aR CR ame 15, 35

Gable v. Patton, 142 F.3d 940 (6th Cir. 1998).............. 8

Green Party of Conn. v. Garfield, 616 F.3d 213

EBS EAS eae SE etna RS ROR eee 8

Leathers v. Medlock, 499 U.S. 439 (1991).................. 20

McComish v. Bennett, 611 F.3d 510 (9th Cir.

Sc civesnnisbississialieli ies ntancp adie rdrdecanebesiapsincnioanene passim

Miami Herald Publishing Co. v. Tornillo, 418

GRRE Sa Ren NR TR Ua aU 27, 28

National Endowment for the Arts v. Finley, 524

Ne SI cise, lddrcvecsavsteuteciesaeel 17, 18, 19, 20

iv

TABLE OF AUTHORITIES — Continued

Page

Nixon vu. Shrink Missouri Government PAC,

Se I Ee Si ccscisiprsiceicsisinlicicienidamdatiintiansinaeaasemin’ 34

North Carolina Right to Life Comm. v. Leake,

Se I SII vexssncccnssncwivanuasnniocdennibonsseitones 8,31

Pacific Gas & Elec. Co. v. Pub. Utils. Comm'n,

I cesccisinciiovntieeionocebsanvaalicumedsints 27, 28, 29

Randall v. Sorrell, 548 U.S. 230 (2006) ....000.00 ee. 1

Regan v. Taxation with Representation of

Wash., 461 U.S. 540 (1983)... ees passim

Republican National Committee v. FEC, 487

F.Supp. 280 (S.D.N.Y. 1980), aff'd, 445 U.S.

PT icinstrinacsxiestinieprasipatidiubiantamiivadusiadionta 9,11, 12,31

Rosenstiel v. Rodriguez, 101 F.3d 1544 (8th Cir.

III is secisiesactecaeneapinbeilieesatianipiaeanlaaibaeonivaimecianilumdeneeabeabeiiain 8

Rust v. Sullivan, 500 U.S. 173 (1991).........00.... 19

Rosenberger v. Rector and Visitors of the Univ.

of Virginia, 515 U.S. 819 (1995) ...cccccsesceseeeeees 17, 23

Scott v. Roberts, 612 F.3d 1279 (11th Cir. 2010).......... 8

Vote Choice, Inc. v. DiStefano, 4 F.3d 26 (1st

Fe ci ccccovetiasirisidecsssubaenvacummmmesneiaiavemcedsuammedinicedl 8

FEDERAL STATUTES:

Federal Election Campaign Act, 2 U.S.C.

FRE ARTE a DN eee eT ETE 1

Bipartisan Campaign Reform Act, § 319(a)............... 24

2 U.S.C. § 434(c)

Vv

TABLE OF AUTHORITIES — Continued

Page

I 16

I ae 35

FE ATER a ERT ere PEt Pee eS 16

er: PS HE GUI cc hacsnsernesseneendisvonseceuseumiel 5,9

| EES et ae aE 5,6

Oe NO ois hscege ed sarin ida cuncichassanaucenaseumioneal 5

ERIE REE RNS ULE SE 6

ES SER a are Lew ee eee a Sone ae 6

I a aad 6

FF ay REE ae re ee a et a OE ee 5

ECS Ro oR ie ee eee RTS 5

8 EELS. ER IRIN re BRE ES ene 5

STATE STATUTES:

ARIZ. REV. STAT. §§ 16-940 — 16-961 .......0000. ee. 7

BR, BUNT. TI. Bh oscssnccicccsscconsscceossnescssceseccsscces 26

ts MUG Ue MII iccicrnccsctescrecnssscennpsussiousesesdeen 26

ARIZ. REV. STAT. § 16-952(A)-(C)....... eee eeee eee eeeeees 2,7

CONN. GEN. STAT. §§ 9-700 — 9-741... eee eee eee 7

Se ns I Or Eo cseubeneinonbbsctonsanies 6

St ry MS: OP I a oc can pnsunnensoniocsnncesunse 6

21-A ME. Rev. Star. §§ 1121-1128.......0.0. eee 7

M.D. Cone ANN., [ELECTIONS] § 15-106............000000002... 6

v1

TABLE OF AUTHORITIES —- Continued

Page

ep meee. Game, RWS Ge, BOL), B Boni cocc wc cec ccs cccecsecnces 6

rs MM Ol a oa oes i cadcaeas ee

Michi. COMP. tas Ee AE ETE pn ne LR tee ae

tM sardines aducocseun 6

Pe MN GNI, SP PCORIIIED 5. enn ssh cccovadcosaaccscdeccaccenees 6

N.M. Stat. ANN. $§ 1-19A-2 - 1-19A-17 2.200.000.0007

N.C. GEN. Stat. §§ 163-278.61 — 163-278.70 ...............7

we. Beat. O UE.80................: Soret AN a eee Pe

LEGISLATIVE AND MISCELLANEOUS MATERIALS:

S. Rep. No. 93-689 (1974)... Lo ee ae ..12, 36

Center for Governmental Studies, State Pudlre

Financing Charts (May 2009), available at

http: www.cgs org images publications egs_

state_pfe_050409_ pdf ............... eamnealagunemedtatemtemnaea niet +

Center for Governmental Studies, Local Pudlic

Financing Charts (May 2009), available ai

http: www.eegs.org images publications egs

local_pfe_050409 pdf LE a A ALERT IEEE Tt REA TENE A ESO ae +

INTEREST OF AMICI CURIAE’

This brnefis filed on behalf of eight public inter-

est snteidiaibions that are interested ino campaign

finance reform and support public financing programs

and other measures to protect the integrmty of gov

ernment

SUMMARY OF ARGUMENT

Over thirty vears ago. in Bucklev vo Valeo, 424

U.S. 1 (1976). this Court rejected challenges brought

under the First and Fifth Amendments to the presi-

dential pubhe financing system enacted as part of the

Federal Election Campaign Act (FECA), 2 USC.

S$ 4381. ef seg. Any attempt to revisit the fundamental

constitutionality of public financing would thus

require the abandonment of this leading precedent.

See Randall v. Sorrel], 548 US. 230, 243-44 (2006)

(finding that principles of stare decisis commanded

respect for Buckle).

The presidential system upheld in Buckley did not

include any previsions comparable to the triggered

.

This bnefis filed with the written consent of all parties

This bref was not authored in whole or in part by counsel to

any party. No person or entity other than eric: or their pacerhist

made a monetary contmbution te this bnef’s preparation or

submission

A deseription of the aruci cumae is attached as Appendix A

hereto

~

matching funds provisions (trigger provisions”), AR.

Rev. Star. $ 16-952. AC), challenged in this case.

Nevertheless, the legal principles set forth in Buckley

in us review of the presidential system govern this

Court's review of the challenged provisions and

compel the conclusion that the trigger provisions of

Anzona’s Citizens’ Clean Flections Act (“Act”) are

constitutional,

First. like the presidential program reviewed in

Buckley, the challenged trigger provisions provide a

public subsidy to participating candidates, but do not

restrict the expenditures made by non-participating

candidates or their supporters. Thus. under Buckles

and this Court’s public subsidy jurisprudence, the Act

“furthers, not abridges, pertinent First Amendment

values.” 424 US. at 938. Stmet scrutiny is therefore

not warranted.

Second, the challenged tmgger provisions are

supported by the same governmental interests that

were found in Rucklev to support the presidential

system: “eliminating the improper influence of large

private contmbutions” and “reheving ... candidates

trom the rigors of soliciting private contmbutions.” Ja.

at 96. The record below - undisputed by petitioners -

demonstrates that trigger provisions encourage

candidate participation in Arizena’s public financing

program. By increasing participation, the provisions

In turn reduce state candidates reliance on private

contmbutions and thereby promote the compelling

governmental interest in) combating actual and

apparent corruption

Finally, contrary to petitioners’ assertions, Davis

v FEC, 128 8 Ct. 2759 (2008), does not demand a

different result. See Brief of Petitioners Arizona Free

Enterprise Club's Freedom Club PAC, ef a/. (“PAC

Br.) at 29-32; Brief for Petitioners MecComush, ef a!

(“MeComish Br") at 25, 47-50 The “Milhonaire’s

Amendment” at issue in Dacor and the tngger provi-

sions at issue here impose burdens on First Amend-

ment activity that are radically different both in kind

and in degree, and impheate wholly different gov

ernmental interests.

In short, Buckley endorsed the presidential

public financing system as a speech-enhaneing alter

native to a system of potentially-corrupting pmvately-

funded campaigns. Petitioners have presented no

reason why this Court should not likewise approve

Arizona's Act, and affirm the judgment of the Ninth

Circuit Court of Appeals below.

— @

ARGUMENT

1. The Presidential Public Financing System

and Other Models of Public Financing

Without “Trigger Provisions” Are Not at

Issue in This Case.

Buckley unequivocally affirmed the constitution

ahty of public financing. Although the trigger provi-

sions at issue here are also constitutional under the

reasoning of Buckley. see Section Il, infra, it is im-

portant to highhght that the presidential public

financing system upheld in Buckley, and the pubhe

financing systems used in a number of state and local

jurisdictions, do not contain trigger provisions. Given

these differences, amici urge this Court to rule in a

manner consistent with the relatively narrow focus of

this challenge, and to avoid consideration of the

constitutionality. of public financing programs that

are not before the Court.

Atter Buckley broadly endorsed the constitution-

ahty of pubhe financing, numerous publhe funding

programs were enacted at the state and local levels.

Today, 23 states provide some manner of publhe

financing in connection to state electoral camparns

Center for Governmental Studies (CGS), State Public

Financing Charts (May 2009), available at http

www ces org mages publications cgs_state_pte_Qos0409.

pdf. In addition, fifteen local jurisdictions, including

New York City and Los Angeles. have enacted some

form of public financing. CGS, Local Public Financing

Charts (May 2009), avadable at http. www egs org

images publications cgs_local_pte_Q50409 pdt

The proliferahon of pubhe financing programs

has led to the creation of multiple models for provid-

ing publhe subsidies to electoral campaigns, ranging

from tax credits for individuals who make political

contributions, to full pubhe financing for state politt-

eal and judicial campaigns

One early model for public financing was the

presidential system. It is a voluntary program that

combines a “matching funds” system for the financing

of presidential primary elechon campaigns and a

“lump sum” grant system for the financing of presi

dential general election campaigns See 26 USC

§$ 9001, ef seq.

In a presidential primary election, candidates

who choose to participate qualify for pubhe financing

by raising a threshold amount of small contributions

in each of twenty states, as well as by agreeing to

abide by Lmots on their campaign expenditures and

on their use of personal funds. 424 U.S. at 89-90) see

also 26 U.S.C. § 9033(b). Once a candidate qualifies,

she is elimble to have each private contmbution of up

to $250 per contributor “matched” on a Ll] ratio with

public funds, up to a maximum aggregate amount

that equals half of the spending limit for the primary

campaign. 424 US. at 89-90; 26 USC. $$ 9034(a),

ib). The amount of pubhe funding received by partici-

pating candidates is thus based on the amount of

matchable contrnbutions they raise, and is wholly

unconnected to campaign spending in the race bv

other candidates or by independent entities. 26

U.S.C. §$ 9034(a). In the general election, the presi-

dential system provides a “lump sum” grant to each

nominee of a major party who chooses to participate

ld §$ 904.a)." Candidates must agree to forgo private

* Miner party or new party presidential nominees can

quahfty tor a partial “lump sum” grant, provided that either their

party reeeived at least five percent of the vote in the prev

ous presidential election, or that the nominee receives five

percent in the present election See 26 USC $$ 9004 aH IKA),

QO04 ars)

.

ty

fundraising and to comply with a spending limit and

other restmetions. 424 US. at 8S. See a/so 26 ULS.C.

S$ 90038 b), 9004(d). Funds are released shortly after

the party nominating conventions to candidates who

meet all eligibility requirements, and again, the size

of the grant is unconnected to campaign spending in

the race by other candidates or by independent enti-

ties. le. $$ 9005 (a), 9006 Lb).

Various states and localities have enacted pro

grams that track the presidential system in whole or

pert. A number of states, for instance, “match” the

privete contributions raised by qualifving primary

election candidates in a manner analogous to the

presidental primary election model. These jurisdic

tions include Maryland, Massachusetts, Michigan

and New Jersey. M.D. Copr ANN., [ELECTIONS] § 15-

L0G, Mass. GEN. Laws ech. 55C, § 5; Mich. Comp. Laws

§ 169.264, N.J. Svar. ANN. § 19:44A-33. Some jurisdic-

tions provide “lump sum” grants to qualifying general

elecuion candidates in a manner analogous to the

presidential general election model. Examples include

Hawan, Michigan, Minnesota and Wisconsin. Haw.

Rev. Svar. § 11-425, -428; Micn. Comp. Laws

§ 169.265; MINN. Star. § LOA.SL; Wis. Star. § 11.50.

None of these programs includes tngger funds provi.

sions like those challenged in this case.

In contrast to the presidential system, a number

of other states have adopted a “Clean Elections”

model that provides full public financing to both

primary and general election campaigns in a manner

analogous to the Act challenged here Candidates

qualify for grants by initially raising a threshold

number of small private contributions and ayreeing

to both forgo any additional private fundraising and

comply with spending limits. Arizona, Connecticut,

Maine, New Mexico and North Carolina have adopted

such public financing systems for some or all of their

state office elections. AkIzZ. Rev. Star. $$ 16-940 to

“961; CONN. GEN. Star. $$ 9-700 to -741l; 21-A Me.

Rev. Star. §$§ 1121-1128; N.M. Srar. ANN. §§ 1-19A-2

to -17; N.C. GEN. Star. $$ 163-278.61 to -.70. In some

cases, these systems include trigger provisions, like

the Arizona provisions challenged here, that disburse

to a participating candidate supplemental public

funds in the event the participant faces large expend-

itures by a privately-financed opponent or an inde-

pendent expenditure group. See Artz. Rev. Star. § 16

me

52.

Pubhe financing systems thus vary in how funds

are distributed (match versus grant), and in the types

of grants made (lump sum grant versus grant sup

plemented by trigger funds). The type of tngger

provision at issue here is not a component of all

pubhe financing systems. Any decision in this case

must accordingly take heed of the broad vanety of

models that are used for the publhe financing of

electoral campaigns, and make the necessary distine

tions between public financing systems that use

trigger grants, such as the Arizona law at issue here,

and those that do not.

8

ll. The Trigger Provisions of Arizona's Public

Financing Program Are Constitutional.

In Buckley, this Court emphatically rejected a

First Amendment challenge to the presidential public

financing system.

Although a trigger provision was not reviewed in

Buckley, the First Amendment principles set forth in

Buckley govern this Court’s review of the trigger

provisions here. Buckley stands for two propositions.

First. electoral subsidies do not “abridge” speech

within the meaning of the First Amendment, but

rather enhance speech. 424 U.S. at 92-93. Second,

public financing serves the compelling governmental

interest in preventing the political corruption often

endemic to elections that rely on private financing.

ld. at 96. Applied to this case, these foundational

principles compel the conclusion that the Arizona

trigger provisions are constitutional.

* This conclusion has also been the holding ef many of the

lower courts that have reviewed “tmggered” subsidy schemes

comparable to the law challenged here. North Carolina Right to

lafe Comm. vo Leake, 424 F.3d 427 (4th Cir, 2008), cert. denied,

129 S.Ct. 490 (2008), Daggett vo Comm'n on Governmental

Ethics & Election Practices, 205 F.3d 445 (lst Cir. 2000),

Rosenstiel vo Rodriguez, 101 FSd 1544 (Sth Cir 1996), cert

dented, 520 U.S. 1229 11997). Cf Gable v. Patten, 142 F 3d 940

(6th Cir. 1998); Vote Chore, Inc v. DiStefano, 4 F.3d 26 (ist Cir.

1993). But see Green Party of Conn. v. Garfield, 616 F.3d 213

(2nd Cir. 2010); Scott v. Roberts, 612 F 3d 1279 (11th Cir, 2010).

9

A. The Constitutionality of Public Financ-

ing Was Affirmed in Buckley v. Valeo

and Republican National Committee v.

FEC.

In Buckley, this Court found that the presidential

public financing system was consistent with both the

First Amendment and with principles of equal protec-

tion. Four vears later, this Court again affirmed the

constitutionality of the presidential system in Repub-

lican National Committee (RNC) v. FEC, 487 F. Supp.

280 (S.D.N.Y. 1980), aff'd, 445 U.S. 955 (1980).

Buckley considered two interrelated challenges to

Subtitle H of the Internal Revenue Code, 26 U.S.C.

§$ 9001, ef seq.: first, a claim that “public financing of

election campaigns, however meritorious, violates the

First Amendment,” and second, an equal protection

claim brought under the Fifth Amendment that the

qualifying criteria for public financing discriminated

against minor party candidates. 424 U.S. at 92, 93-

104.

In its consideration of the First Amendment

challenge, the Court first dismissed the allegation

that the presidential system burdened rights protect-

ed by the First Amendment. It noted that the First

Amendment provided that “Congress shall make no

law ... abridging the freedom of speech, or of the

press,” but found that the presidential system was a

measure “not to abridge, restrict, or censor speech,

but rather to use public money to facilitate and

enlarge public discussion and participation in the

10

electoral process, goals vital to a_ self-governing

people.” /d. at 92-93 (emphasis added). The Court

accordingly concluded that public financing did not

impose any encumbrance on free speech. Jd. at 93; see

also McComish v. Bennett, 611 F.3d 510, 521 (9th Cir.

2010) (“[T]he publhe financing of elections itself does

not create any burden on speech.”).

Buckley also recognized that the presidential

system represented but one example of a_ long-

standing governmental policy to support First

Amendment activities through public subsidies:

{T]he central purpose of the Speech and

Press Clauses was to assure a society in

which “uninhibited, robust, and wide-open”

public debate concerning matters of public

interest would thrive, for only in such a soci-

ety can a healthy representative democracy

flourish. Legislation to enhance these First

Amendment values is the rule, not the excep-

tion. Our statute books are replete with laws

providing financial assistance to the exercise

of free speech, such as aid to public broad-

casting and other forms of educational me-

dia, and preferential postal rates and

antitrust exemptions for newspapers.

424 U.S. at 93 n.127 (internal citations omitted). The

Court thus emphasized that governmental subsidies

were presumptively constitutional because’ they

“enhanced” speech instead of diminishing it.

11

In rejecting the separate claim that the qualify-

ing criteria for public financing “invidiously discrim-

inated” against minor party candidates, id. at 93, the

Court found that the presidential system was enacted

“in furtherance of sufficiently important governmen-

tal interests,” id. at 95-96. It explained:

It cannot be gainsaid that public financing as

a means of eliminating the improper influ-

ence of large private contributions furthers a

significant governmental interest. In addi-

tion, ... Congress properly regarded public

financing as an appropriate means of reliev-

ing major-party Presidential candidates from

the mgors of soliciting private contributions.

Id. at 96 (internal citations omitted). The Court

concluded that the government’s interest both in

combating actual and apparent corruption and in

protecting candidates from the pressures of fundrais-

ing outweighed any “discrimination” worked by the

minor party candidate qualifying criteria. Jd. at 99.

In RNC, the three-judge district court revisited

Buckley and rejected the claim that the presidential

system violated the First Amendment rights of either

candidates or their supporters by conditioning eligi-

bility for public funds upon candidates’ compliance

with expenditure limits. 487 F. Supp. at 283-84.

In its holding, the panel rejected the notion that

public funding was burdensome, noting that “the

conditions imposed by Congress upon receipt of public

campaign financing do not infringe upon the First

12

Amendment rights of candidates.” Jd. at 285. It

further explained that the presidential system “mere-

ly provides a presidential candidate with an addition-

al funding alternative which he or she would not

otherwise have and does not deprive the candidate of

other methods of funding which may be thought to

provide greater or more effective exercise of rights of

communication or association than would public

funding.” /d. at 285.

Even if the public financing system did impose a

burden on speech, the district court found that any

burden was outweighed by the congressional plan “to

reduce the deleterious influence of large contributions

on our political process, to facilitate communication

by candidates with the electorate, and to free candi-

dates from the rigors of fundraising.” Jd. (quoting

Buckley, 424 U.S. at 91). The panel emphasized the

anti-corruption effects of the program, recognizing

that “[i]f the candidate chooses to accept public fi-

nancing he or she is beholden unto no person and, if

elected, should feel no post-election obligation toward

any. contributor of the type that might have existed as

a result of a privately financed campaign.” /d. at 284.

The court also emphasized that Congress had found

that public financing would “‘eliminate reliance on

large private contributions’ and on the implicit obliga-

tions to private contributors that may arise from such

reliance... .” Jd. (quoting S. Rep. No. 93-689 (1974),

at *5-6). This Court summarily affirmed. 445 U.S.

955 (1980).

13

Thus, both Buckley and RNC made clear that

public financing does not constitute a burden on the

First Amendment rights of either candidates or their

supporters, and in any event, is justified by the “vital”

governmental interests in combating actual and

apparent corruption and freeing candidates from the

pressures of private fundraising.

B. Reviewed Under the Standards Set

Forth in Buckley, the Trigger Provi-

sions Are Constitutional.

1. Because the Release of Trigger

Funds Does Not Impose Any Cog-

nizable Burden on Petitioners’ Ex-

ercise of their First Amendment

Rights, Strict Scrutiny Is Inappli

cable.

The Court of Appeals recognized that the trigger

provisions do not impose any direct restrictions on

petitioners’ fundraising or expenditures. 611 F.3d at

525 (“The matching funds provision does not actually

prevent anyone from speaking in the first place or cap

campaign expenditures.”). Instead, according to the

majority opinion, the trigger provisions at most create

“potential chilling effects” on petitioners’ campaign

activities. Jd. at 524 (emphasis added). Analogizing

the potential effects of the trigger provisions to the

incidental burdens imposed by campaign finance

disclosure requirements, the majority accordingly

reviewed the challenged provisions under “exacting,”

but not strict, scrutiny. Judge Kleinfeld, in his

l4

concurrence, argued that not even heightened serut-

ny should apply. 611 F.3d at 528 (“Because the chal-

lenged scheme imposes no contribution or spending

limits, if does not restrict speech ai ali, so TL cannot see

why heightened scrutiny would apply”) (emphasis

added’.

The Ninth Cirecutt’s rejection of stmet serutiny

was correct. Indeed. the relevant legal autherty

suggests that the release of tmgger funds does not

constitute a cognizable burden on First Amendment

rights at all. Bucklew stressed that publhe financing

for electoral campaigns simply does not “abridge”

speech within the meaning of the First Amendment.

And this Court's jurisprudence on public subsidies

makes clear that a subsidy for First Amendment

activities is subject to stmet scrutiny only when it

discriminates on the basis of content or viewpoint,

neither of which the Arizona law does. See Section

IT.B.1.b, infra. There is thus no basis for petitioners’

claim that strict scrutiny applies.

a. The Challenged Trigger Provi-

sions Do Not Represent a Direct

Restraint on Speech.

The challenged tmgger provisions do not directly

restrict, limit or regulate either the contributions

raised or the expenditures made by petitioners. They

instead function as a mechanism for determining

when. and in what amounts. public funds are re-

leased to participating candidates

15

The trigger provisions thus stand in stark con

trast to the types of campaign finance regulations

that have drawn stmet scrutiny review from this

Court in the past. namely direct restrictions on ex-

penditures:

© Buckley applied strict scrutiny to strike down

a $1,000 Jintrt on independent expenditures

“relative to a clearly identified candidate

during a calendar vear.” 424 U.S. 42-45.

FEC v. National Conservative Political Ac-

fron Commm., 470 U.S. 480, 496 (1985), ap-

phed strict scrutiny to stmke down a $1,000

limzit on the expenditures of political commit-

tees to support the campaign of a presiden-

tial candidate participating in the public

financing system.

FEC v. Wisconsin Right to Life, inc. WRTL).

SOL U.S. 449. 482 (2007), applied strict scru-

tiny to partially invalidate the federal dan

on the expenditure of corporate and union

treasury funds for “electioneering communi-

cations.”

.

Citizens United vo FEC, 130 S.Ct. S76

(2010), apphed strict scrutiny to strike down

the federal ban on the expenditure of corpo-

rate treasury funds for independent expendi-

tures. Jd. at S98.

In their attempt to characterize the challenged provi-

sions as “de facto limits” on their expenditures, PAC

Br. at 24, petitioners thus gloss over the fact that the

only laws this Court has deemed “expenditure re-

strictions” subject to strict scrutiny have been direc?

lo

limits on an entity’s spending. In this case, by con

trast, there are no such direct restmetions on peti

tioners’ spending. They are free to raise and spend as

much as they want

The application of strict scrutiny to the triggered

subsidy here would therefore represent a major break

from this Court’s campaign finance jurisprudence,

which has hitherto subjected only direct restmetions

on campaign spending and fundraising to. strict

scruuiny review.

b. The Indirect "Chilling Effect” of

the Trigger Provisions Alleged by

Petitioners Does Not Constitute a

Cognizable Burden on Speech.

Petitioners concede that the challenged provi.

SIONS IMpose No “overt restmections” on the amount of

Indeed, in determining the applicable level of scrutiny, the

Court of Appeais may have overstated the impact of the tngver

provisions when it comparad them to “the burden of disclosure

and disclaimer requirements in Buckley and Citizens United.” 611

"Sado at 425 Disclasure rules impose dinxy reporting. record,

keeping and administratuve burdens on regulated parties Soe

e., FEC v. Massachusetts Citizens for Life, Inc. 479 U.S. 238,

ZSL-H5 (ISS6) cdiseussing the admunistrative obligations entarled

in disclasure); av also 7 USC. $$ 484.0), oD: 4414. But the release

of a subsidy to a parhapating aindidate imposes no direct bundens

On Nen-parvapating candidates, not even the relatvely minimal

obhgatons associated with repertaing or disclaimer rmquirnements

The Court of Appeals’ appheation of exacting scrutiny is thus more

stnangent than this Court’s past campaym finance preedents

would require Comnaww Bucklev, 424 US 92-98

li

speech in which they can engage PAC Br. 27-28.

Nevertheless, petitioners maintain that the release of

public funds to participating candidates on the basis

of petitioners’ expenditures creates an idirect chill

on their speech so severe that strict serutiny is war-

ranted.

But the trigger provisions are no more than a

release mechanism for a state subsidy. This Court has

not previously held that the madirect effect of a public

subsidy program on the speech of those persons who

are not subsidized represents a cognizable burden

under the First Amendment, at least absent content-

or viewpotnt-based discrimination or the imposition

of an unconstituuional condition. See, eg. Regan v

Taxation with Representation of Wash., 461 U.S. 540

(1983), National Endowment for the Aris (NEA) v

Finley, 524 U.S. 569 (1998). Cf Rosenderger vo. Rector

and Visitors of the Univ. of Virginia, 515 U.S. 819

(1995). Certainly this Court has not held that a

subsidy that was not content-based or viewpo:nt-

based imposes such an onerous burden on speech as

to require strict scrutiny’

* This Court has reoogmzed that pubhe financing is one

example of a constitutional public subsidy scheme. See Regan,

451 U.S. at 549 (noting that Buckley upheld the presidential

pubhe financing system as a permissible subsidy without

applying stmct scrutiny), Bogan’ of Regents of Uni of Wis

System vo Southworth, 529 US 217, 241 (2000) (noting that

Buctley “rejected ai challenge to a congresstonal program

providing Viewpoint neutral subsidies to all Presidential cand:-

dates”) (Souter, J., concurnng)

1S

As discussed above, Buckley emphasized that the

public subsidies provided by the presidential publie

financing system “further| |], not abmadgel |, pertinent

First Amendment values.” 424 U.S. at 98. The Court

thus indicated that the presidential public financing

system does not represent a burden on speech at

all. Accordingly, the Buckley Court “rejected First

Amendment and equal protection challenges to this

isystem) without applying strict scrutiny.” Regan, 461

US at 549 coating Buckley, 424 US. at 93-108)

To apply strict scrutiny to the challenged prov

sions here would controvert not only Buckley but

also a long line of this Court's precedents that have

upheld a broad range of governmental subsidies of

speech under the First Amendment. As noted by

Buckley, “lojur statute books are replete with laws

providing financial assistance to the exercise of free

speech, such as aid to pubhe broadcasting and other

forms of educational media, and preferential postal

rates and antitrust exemptions for newspapers.” 42

US at 93 n.127 Unternal citations onmntted) And this

Court has consistently granted the government more

latitude when it sudsidizes the First Amendment

activities of pmvate parties, than when it unposes

affirmative resirictions on the speech of such parties

See, e.g.. NEA, 524 U.S. at 587-88 ({Allthough the

First Amendment certainly has application in the

subsidy context, we note that the Government may

allocate competitive funding according to criteria

that would be impermissible were direct: regulation

of speech ... at stake.”); Regan, 461 U.S. at 550

19

(contrasting restrmetions on speech “when the State

attempts to impose its will by toree of law” with the

“governmental provision of subsidies” where the

state's “power to encourage actions deemed to be in

the public interest is necessarily far broader”) (inter-

nal quotations omitted). Cf Rust vo. Sullivan, 500 US.

173, 1938 (199)? Phere is a basic difference between

direct state interference with a protected activity and

state encouragement of an alternative activity conso-

nant with legislative polhiev.”) (quotations omitted}.

Further, this Court has not adopted the view that

the government's failure to subsidize a person's

speech, or alternatively, the government's decision to

subsidize the speech of a person’s competitors, consti-

tutes an unconstitutional “chill” on that) person's

speech, absent viewpoint discrimination. See, e.g,

McConush, 611 FSd at 529 (‘There is no First

Amendment right to make one’s opponent speak less

nor is there a First Amendment right to prohibit the

gevernment from subsidizing one’s opponent, espe

cially when the same subsidy ts available to the

challenger if the challenger accepts the same terms

as his opponent.”) (Kleinfeld, J., concurring)

This prmneiple is well illustrated by the NEA

decision. There, the Court found that a statute re-

quiring the NEA to take into consideration standards

of “decency and respect for diverse belrefs and values

of the American public” when judging grant apphca-

thons Was consistent with the First Amendment. 524

US. at 576. The statute had been passed in response

to several controversial works of art that had been

20

funded by the NEA. As highlhghted by the dissent, the

fact that such decency standards had the “potential to

chill individual theught and expression” of the “mak-

ers or exlubiters of potentially controversial art” did

not render the subsidy scheme unconstitutional in

the eves of the majority. See 524 U.S. at 621 (Souter,

J.. dissenting) Indeed, two Justices beheved that

even a subsidy scheme that discriminated on the basis

of viewpoint would not “abridge” speech within the

meaning of the First Amendment. Jd. at 595-96 (Scaha,

J., and Thomas, J., concurring); see a/so ra. at S99

(‘l regard the distinction between ‘abridging’ speech

and funding it as a fundamental divide, on this side

of which the First Amendment ts inapplicable... . The

Government, T think, may allocate both competitive

and noncompetitive funding ad libitum, insofar as the

First Amendment ts concerned.”) (emphasis added)

Similarly, in Regan, this Court found no uncon-

stitutional burden in the fact that Congress chose to

selectively subsidize the lobbying of veteran’s organ:-

zations by allowing them, but not section S501(e 3)

organizations, to accept tax-deductible contributions

for lobbying. 461 U.S. at 550-51. Although this subsi-

dy discriminated between different 501(¢) orgamza-

tions based on the interests they represented, the

Court found that it did not warrant strict: scrutiny

review because it was viewpoint neutral, ie., it was

“not intended to suppress any ideas.” nor was there

“anv demonstration that it had that effect.” Jd. at

548. See also Leathers v. Medlock, A499 US. 439, 447

(1991) (finding that Arkansas’ exemption of print

media from general sales (ax applicable to television

cable and satellite media did not warrant heighted

review as it did not “threaten|] to suppress the

expression of particular ideas or viewpoints”)

Anzona’s subsidy scheme is not as restrictive as

those considered in NEA and Regan. First, unlike the

limited subsidy programs in those two cases, public

funds in Arizona — and by extension, “tmgger funds”

are equally available to all candidates. The petitioner

candidates voluntarily chose not to join the pubhe

financing program. Their subsequent complaint that

their opponents’ receipt of pubhe funds “chills” their

own speech is therefore even less persuasive than the

complaints asserted by the plaintiffs in NEA and

Regan, because here, petitioners could have had full

access to the state subsidy simply by choosing to

accept it.

Furthermore, unlike the tax subsidy that was

available only to veteran’s groups in Regan, the Act

does not in any way discriminate between different

candidates on the basis of their identity or the inter-

ests they represent. And unlike NEA, the Act does not

set any particular content standards for the speech

that is ehynble for subsidization: any candidate meet-

ing the fundraising qualifving criteria is elunble for

public financing in Arizona, regardless of the content

or viewpoints of the candidate's intended speech.

To be sure, instead of issuing subsidies on the

basis of content) standards or other qualification

critemna, the Arizona program releases trigger funds

*>*)

~~

based on the aggregate spending or fundraising by, or

on behalf of. non-participating candidates. However,

it is unclear why this release mechanism would be

any more burdensome than the standards employed

in Regan and NEA. The trigger provisions do not

coerce any content or disfavor any viewpoint. They

merely provide that petitioners’ campaign activity, in

certain circumstances, will give rise to a response.

Furthermore, the open structure of Arizona’s

program further undercuts any claim that the trigger

provisions are somehow uniquely coercive. Even

assuming arguendo that linking a subsidy to contm-

butions or expenditures creates “potential chilling

effects,” see 611 F.3d at 524, here Arizona has made

this “potentially chilling” subsidy available to all

qualifving candidates. Unlike the plaintiffs in Regan

or NEA, petitioner candidates had a choice regarding

whether to accept the public subsidy. Their strategie

decision to dechne public funding reflects their as-

sessment that any “chill” created by the trigger

provisions would be outweighed by the benefits of

private fundraising. It would be absurd to argue that

Arizona's triggered subsidy scheme warrants stricter

review than other subsidy schemes when the pet

tioner candidates, unlhke the Regan or NEA plaintiffs,

voluntarily chose to reject the offered subsidy because

they determined it to be a competitive disadvantage.

Perhaps anticipating this argument, petitioners

make the claim that the trigger provisions indeed

discriminate on the basis of viewpoint because funds

23

are only released when independent expenditures

oppose a participant or support a privately-financed

candidate. McComish Br. at 59. But “opposition” to a

participant does not express any “viewpoint” because

there are no viewpoint-based criteria for participation

in the Arizona program in the first place. Viewpoint-

based discrimination is found “when the specific

motivating ideology or the opimon or perspective of

the speaker is the rationale for the restriction,” see

Rosenberger, 515 U.S. 829, or where “governmental

provision of subsidies” is “aimled] at the suppression

of dangerous ideas,” see Regan, 461 U.S. 550 Unternal

quotations omitted). Here, the trigger provisions were

not enacted in opposition to any particular “motivat-

ing ideology” or for the suppression of any “dangerous

ideas.” Trigger funds are made available regardless of

the views expressed in campaign speech. A participat-

ing candidate could either be for or against gun

control, and in either case, he would receive trigger

funds if he faced independent spending that exceeded

the statutory thresholds. The inverse is also true. An

independent group could either be for or against gun

control, and if its spending exceeded the applicable

threshold in an election, trigger funds would be

released to any affected participating candidates

regardless of the group's substantive viewpoint.

Petitioners also complain that trigger funds are

viewpoint-based because, by subsidizing only the

speech of participants, the Act implies that “speech

benefitting traditional candidates” is inferior or

“dirty.” McComish Br. at 61. In essence, petitioners

24

claim that the grant of a subsidy in itself conveys a

governmental preference for the “viewpoint” of those

who agree to accept the subsidy. But if the mere grant

of a subsidy, without more, constituted viewpoint

discrimination, then all public subsidy schemes would

suffer from this constitutional defect. Clearly, this is

not the case nor, under Buckley or this Court’s public

subsidy jurisprudence, could it be.

Petitioners have cited no case in which this Court

has found that the subsidization of speech on a view-

point-neutral basis constitutes an indirect burden on

First Amendment activity so onerous that. strict

scrutiny is required. There is thus no basis for peti-

tioners’ contention that the grant of a subsidy to their

political opponents demands strict scrutiny.

c. Davis Does Not Justify a Break

From This Precedent.

Against the weight of this case law, petitioners

counter that Davis nevertheless requires the applica-

tion of strict scrutiny to the challenged provisions. It

does not.

In Davis, the Supreme Court reviewed the Mil-

lionaire’s Amendment, a “scheme of discriminatory

contribution limits,” that not only directly restricted

the fundraising of self-financed congressional candi-

dates, but did so on a discriminatory basis. See 128

S.Ct. at 2772; Bipartisan Campaign Reform Act

(BCRA) § 319(a). If a congressional candidate spent

over $350,000 of her personal funds to support her

RAS)

campaign, the Millionaire’s Amendment tripled the

contribution limit for any candidates in her race who

did not spend a comparable amount of personal

wealth. Section 319(a) thus forced the self-financed

candidate to operate under a contribution limit that

was three times lower than that of her conventionally-

financed opponents. /d. at 2766-67.

The Davis decision is distinguishable from the

instant case in two respects. First, and most funda-

mentally, the Millionaire's Amendment enforced a

direct limit on contributions to self-financed candi-

dates. Here, by contrast, the trigger provisions did

not directly restrict either the contributions to or the

expenditures by petitioner candidates. See McComish,

611 F.3d at 530 (“Davis has to be distinguished be-

cause the scheme in that case affected contribution

limits and this scheme does not.”) (Kleinfeld, J.,

concurring). Instead, as discussed above, the chal-

lenged provisions merely release supplemental public

funds to participating candidates. As a_ subsidy

scheme instead of a direct restriction, the Act is

subject to more deferential review.

Second, the Millionaire’s Amendment not only

retained a direct limit on the speech of self-financed

candidates, but also created a scheme of contribution

limits that was “asymmetric” and “discriminatory.”

The Davis Court repeatedly stressed that “if

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

the board,” 1.e., if the contribution limit was symmet-

rical, then “[plaintiff] would not have any basis for

challenging those limits.” 7d. at 2771 (emphasis

26

added); see also id. at 2770. Hence, it was only the

asymmetrical nature of the regulation that gave rise

to constitutional concerns. Here, by contrast, there is

no comparable issue of discrimination.

The Millionaire’s Amendment applied to congres-

sional races in which the candidates were similarly

situated from a regulatory perspective: all candidates

were privately financed and operating under the

same federal campaign finance regime. See 128 S. Ct.

at 2765 (“Under the usual circumstances, the same

restrictions apply to all the competitors for a seat.”).

When a candidate self-financed his campaign, the

Millionaire’s Amendment triggered “discriminatory

fundraising limitations” and effectively superimposed

an “asymmetrical regulatory scheme” onto an other-

wise unitary regulatory regime. Jd. at 2766, 2772.

Here, because publicly-funded and privately-

financed candidates voluntarily elect different regula-

tory programs ab initio, they are not similarly situat-

ed. Indeed, participating candidates choose a far more

restrictive campaign finance regime — one that in-

cludes spending limits and stringent limitations on

private fundraising — than do candidates who choose

to privately finance their campaigns. See Ariz. REV.

Stat. §§ 16-941, -945. That only participants receive

trigger funds is therefore not “discrimination”; it is

simply the result of the candidates’ voluntary deci-

sions to compete in different regulatory programs.

Buckley affirms the permissibility of creating two

different financing regimes. The Court there found no

27

constitutional requirement that all candidates be

treated identically in terms of voluntary public fi-

nancing, recognizing that “the Constitution does not

require Congress to treat all declared candidates the

same for public financing purposes. ... Sometimes

the grossest discrimination can lie in treating things

that are different as though they were exactly alike.”

424 U.S. at 97-98. Thus, under Buckley, no constitu-

tional burden arises from treating participating and

non-participating candidates differently because the

differential treatment is entirely due to the fact that

the candidates are not similarly situated.

In sum, because the trigger provisions do not

directly restrict petitioners nor discriminate between

similarly-situated candidates, Davis does not govern

here.

d. The “Compelled Access” Cases

Cited by Petitioners Do Not Apply.

In their final attempt to find support for strict

scrutiny, petitioners resort to this Court’s decisions in

Pacific Gas & Elec. Co. v. Pub. Utils. Comm’n, 475

U.S. 1 (1986) and Miami Herald Publishing Co. v.

Tornillo, 418 U.S. 241 (1974). Because both cases

turned on “compelled access,” however, neither is

relevant to this case.

In Pacific Gas, the Court reviewed a state com-

mission ruling that required a utility company to

disseminate in its billing materials literature from

certain outside groups that opposed the company in

28

commission proceedings. The Court held that the

ruling violated the First Amendment because it

created a government-entoreed right of access to the

utility company’s tilling envelope for certain speakers

based on their viewpoint. and thereby forced the

utility company “to associate with speech with which

lthe company] may disagree.” 475 US. at 15. Simi

larly, in Tornilo, the Court struck down a “rght-

of-reply statute” that required a newspaper to provide

a political candidate with free space in ifs pages

to respond to any newspaper editomals eriticwing

the personal character of the candidate. 418 US. at

244-45.

Here, by contrast, the tmgger provisions do not

grant participating candidates any “right of access” to

petitioners’ property, funds or communications for the

purpose of disseminating the participants’ speech

Indeed, petitioners do not claim otherwise. Instead,

they simply assert that “hke the regulatory regime in

Pacific Gas & Elee Co., Arizona’s matching funds

system compels traditional candidates and their

supporters to ely disseminate hostile speech through

their exercise of First Amendment rights.” MeComush

Br. at 54 (emphasis added).

But this argument misrepresents what the Court

in Pacific Gas meant when ut criticized the commis-

sion’s order compelling the utihty company to “Aelp

disseminate hostile views.” 475 U.S. at 14 (emphasis

added). The Court made clear that the constitutional

violation was forcing the company “to use ifs property

oo

the billing envelopes — to distribute the message of

another” Jado at 17-18 cemphasis added) Moreover,

the Pecryfie Gas Court expheitly distinguished gov

ernmental subsidy programs — cveluding the presi

dential public financing system reviewed in Buckles

that distributed governmental subsidies without the

“help” of compelled access to the property of a private

party It noted that unlike “the fundamentally content-

neutral subsidies that we sustained in Raucklev and

Regan” “the Commission's order identifies a tavored

speaker based on the identity of the interests that

ithe speaker] may represent and forces the speaker's

opponent not the taxpaving public to assist in

disseminating the speaker's message.” See rd. at 15.

IG certing Buckley, 424 US. at 97-105, Regan, 461

US. at 546-50) Unternal quotations omitted) In

making this distinction, the Court therefore affirmed

that taxpaver-funded subsidy schemes that do not

rely on a “right of access” to another speaker's proper-

ty or communications do not raise First Amendment

CONCEPTS

2. Like the Public Financing System

Upheld in Buckley, the Trigger Pro-

visions Advance the Compelling

Governmental Interest in Prevent-

ing Corruption and the Appearance

of Corruption.

Because the challenged trigger provisions are

Viewpoint neutral, and do not impose any constitu.

tionally-cogmizable burdens on speech, there ts some

SO

question as to whether the provisions should be

subjected even to exacting serutiny But even uf the

provisions are reviewed under this) standard, see

MceComush, GUL Fd at S25, they nevertheless are

constitutional because they bear a “substantial re

lation” te oa “sufflaently important” governmental

interest. See Citizens United, 180 S.Ct. at 914

Buckley atirms that the challenged (rigger provisions

further the compelling governmental interest m com

bating corruption and the appearance of corruption in

state elections

a. The Trigger Provisions Encour-

age Participation in the Arizona

Public Financing Program and

Thereby Prevent Actual and Ap-

parent Corruption in State Elec-

tions.

Buckley made clear that publie financing serves

multiple “vital” interests, including “reducling] the

deleterious influence of large contributions on our

political process,” “tacilitatiing| commumeation by

candidates with the electorate.” and “freeling| eandi

dates from the rigors of fundraising” 424 US at 91

Prime among the interests served by publie

financing is the prevention of actual and apparent

political corruption. The Backlev Court noted expheit

ly that pubhe financing was “a means of eliminating

the nmproper influence of large private contributions.”

ld? at 96. This principle has been reaffirmed by

numerous lower courts in their review of federal or

state pubhe financing programs. See, eg., Leake, O24

P3d at 440-41 (finding that state’s pubhe financing

system “is designed to promote the state's ant.

corruption goals”), Daugget?, 205 FE 3d at 4701 Cholding

that public financing provides “the assurance that

contributors will not have an opportunity. to seek

special access, and the avoidance of any appearance

of corruption”) ANC, 487 F Supp at 284

From Buckley's holding that pubhe financing

furthers the prevention of corruption, 1 follows that

these components of a pubhe financing program that

further the program's viability are substantially

related to this compelling anti-corruption purpose.

More specifically, “[blecause Buckley held that pubhe

financing of elections furthers First Amendment

Values,” “states may. structure (pubhe financing

programs! in a manner which wall encourage cand-

date participation in them” See McoCormmish, 611 F 3d

at 526. The (rigger provisions of Arizona's program do

yust ths. They provide assurance to participating

candidates that they will have the resources to re-

spond to high spending by their privately-financed

opponents or by outside groups) Without such assur-

ance, candidates might be reluctant to participate in

a system of publre financing and spending limits

because of a well grounded concern that they would

be competitively disadvantaged by doing seo) By thus

tacihtating candidates’ participation im Arizena’s

program, the trigger provisions reduce candidates’

reliance on private contributions and thereby advance

the compelling governmental interest in preventing:

ty

corruption or the appearance of corruption At the

very least, high participation rates in the program

and the corresponding reduction im the number of

campaigns reliant on private money reduces or elim

nates the appearance that campaign contributions

buy influence or increased access to elected officials

Petitioners put forward various arguments in an

effort to obscure the clear appheability of Buckley to

this case, and bw extension, the relevance of the

government's anti-corruption interest, See PAC Br. at

35-43. None of these arguments have merit

First, petitioners claim that unlike the presiden-

tial system in Buckley, the Crue intent of Che Arivona

program was to “level the phoing feld™ and to

“achieve equality among speakers ” PAC Bro at) 36

But petitioners’ attempt to characterize the intent of

the Act as primarily or exclusively related to “leveling

the playing field” is factually inaccurate. The record

makes clear that the anticorruption goals of the Act

were prominent in hterature promoting the ballot

imitative and that corruption concerns were para

mount m the minds of the imtiative voters See

MecComiush, GULF 38d at 514-16, Bref of Respondent

Clean Elections Institute at 3.5, 42-44 Indeed, the

voter information pamphlet for Che imutiative, which

petitioners concede is dispositive, see PAC Bro at 37

n@, stated expheitly that the Act “would change

Arizona's ‘reputation [as] a state rife with corruption

and the abuse of monev in politics land] restore

confidence in our political system” 611 Sd at 515

(quoting Ballot Propositions Pubheity Pamphlet: for

1998 Arizona General Election, at “SS) It was thus

reasonable for the Court of Appeals to conclude that

“one of the principal purposes of the Act was to reduce

quid pro quo corruption” Jd. at S516 Against the

weight of this evidence, petitioners offer only a collec

tion of out-of context quotations from various activ

ists for the initiative to demonstrate its purported

“equalizing” purpose — and resort to highlishting a

statement on the Citizens Clean Election Commus-

sion’s website posted over a decade offer passage of

the voter initiatiwe PAC Br at 9-11

In any event, even if petruioners had compried a

more persuasive record regarding the primacy of the

“equahzing” ravionale, the premise upon which their

legal argument rehes is faulty: the possibilty that

the Act was perceived by some voters as advancing

multiple governmental yoals does not somehow

nullify the anti-corruption purpose and effect of the

Act. As the Court of Appeals noted, “[vloters are

motivated by varied and conflicting motivations” and

the exact extent to which they were motivated by

corruption concerns “cannot be precisely determined ”

611 FP Sd at 515-16. Even assuming that “leveling: the

plaving: field” was an ancillary motivation of some

Initiative voters, that does not obviate the clear anti

corruption purpose behind the Act. This purpose was

exphemto in the initiative hterature and further rein

foreed by Arizona’s history of corruption scandals

against which the pubhe debate was conducted) This

Court has recognized that a majority. vote for a

campaign finance measure where there is pubhe

oe

awareness of poliueal corruption is evidence that

Voters were motivated by their perception of corrup-

tion) Nivon vo SArink Missouri Government PAC, 428

US. 377, 394 (2000), Even if Amzona voters were

exposed to multiple pohey arguments for pubhe

financing, this does not undercut Buckley's affirma

tron that publhe financing programs, like Arizona's

system, are justified by compelling anti corruption

interests

Seoond, petitioners attempt to distinguish Buck

lev by noting that the presidential svstem did not

include tmeger provisions, arguing that this distine-

tion indicates that the triggers are an mnproper

“prophylactic” measure MeComuish Br at 81-88; PAC

Bro at 53-55 As discussed in Section |, the observa

tion that the presidential publi financing system

does not have trnggers is correct) But ait does not

follow that the (rigger provisions are therefore merely

prophylactic to the Act’s anti-corruption objective

The recerd is replete with testimony indreating

that the trigger provisions encourage participation in

Anvzona’s program. See Clean Elections Bro at 47-48

(ating Jount Appendix 386-88) 439-43, 540-44, 590-91)

Petitioners neither dispute this point nor offer ev:

dence to the contrarv. And measures, such as the

trigger provisions, to ensure participation in the

program are directly related to the government's ant

corruption interest because, as the Court of Appeals

found, “la} pubhe financing system with no partic:

pants does nothing to reduce the existence or appear

MY le

ance of quid pro quo corruption” BIL US at 427

Petitioners nonetheless assert that the connec:

tion between the triggers and the Acts anth

corruption goals is “indirect” and comparable to Che

“indirect connection between issue advocacy reguia-

tion and anticorruption purposes, which did not

withstand strict scrutiny in Wisconsin Right To Life”

MeComish Br. at Sl. But the problem with the corpo-

rate funding restriction reyected in WAT as an

impermissible “prophylaxis upon prophylaxis” meas

ure Was not that it was “indirect,” but rather that it

was overbroad — that it covered issue speech as well

as express advocacy, See 551 US. at 479; see also 2

USC $44 lbibk2) Here, however, the trigger pro

visions cannot be construed as “overbroad.” They do

not “restmet” a breader category of speech im an

attempt) to prevent crreumvention of a narrower

campaign finance restriction, they do not directly

“restrict” speech at all) See Section IB La, supra

Nor does the Act with trigger provisions regulate any

more speech than the Act would regulate if it lacked

trigger provisions, or if it utilized another mechanism

to release public funds (o participating candidates,

such as lump sum payments

Lastly, this Court should also reject petitioners’

novel theory that “within a system that) already

protubits large campaign contributions and imposes

extensive disclosure requirements,” pubhe tinanemyg

“simply cannot further advance anticorruption pur

poses.” MeComish Bro at 65-69) This theory) runs

directly counter to the Buckley and RNC decisions

The presidential publie financing system was also

30

enacted in a regulatory system that already included

contribution limits and comprehensive disclosure,

and vet this Court squarely held that puble financing

promoted the government's anthcorruption goals) 424

US. at 96-97

Indeed, the Buckley Court reeognized that there

Was alWays the potential for corruption “lajnder a

system of private financing of elections” because “a

candidate lacking immense personal or family wealth

must depend on financial contmbutions from others to

provide the resources Nnecessaryv to conduct a success

ful campaign.” 424 US at 26 cemphasis added). And

“(tio the extent that large contributions are mven to

secure a quid pro quo from current and potential

office holders, the integrity of our system of repre:

sentative democracy 1s undermined” Jd at) 26-27

Pubhe financing thus furthers compelling state

Interests precisely because it “elaminates the improp

er imiluence of large private contmbutions” that 1s

often endemic to such a system. Jd at 96° This insight

was also part of the legislative findings supporting

the presidential system Congress rejected the argu

ment that “reporting and disclosure rules combined

with limits on contributions provide sulieent re:

form.” and instead found that “(the only way in

Which Congress can eliminate reliance on) large

private contmbutlhions and = still) ensure adequate

presentation to the electorate of opposing viewpoints

of competing candidates is through comprehensive

pubhe financing "So Rep No. 93-689 (1974). at *4

b. Davis v. FEC Is Inapplicable Be-

cause the Millionaire's Amendment

Did Not Serve Anti-Corruption

Goals.

The tenuous relevance of Davis to this case ts

further undercut by the fact that the Milhonaire’s

Amendment and pubhe financing programs have

been found to implicate different governmental

interests. The Millionaire's Amendment was found in

Decis to advance no legtimate governmental inter

est, while pubhe financing was found by the Buckley

Court to advance the “vital” governmental interest in

preventing political corruption

In Dacis, the government attempted to justify a

“scheme of discriminatory contnbution lhmuits” on the

twin grounds that the hmuits prevented corruption

and “leveled the playing field” between self-financed

and conventionally-financed congressional cand-

dates. The Court first rejected the asserted ant-

corruption goal invoking Buckley, it reasoned that

because a candidate's “reliance on personal funds

reduces the threat of corruption.” 128 8. Ct. at 2773,

the Millhonaire’s Amendment, by discouraging the use

of personal funds, undermines the anti-corruption

interest. Indeed, by tripling the contmbution limits

for conventionally-financed candidates, the Mailhon-

aire’s Amendment would allow vet larger contribu

tions and increase the potential for guid pro que

arrangements. The Court also rejected the govern

ment’s alternative argument that the Milhonarre’s

Amendment lhmuts “were pustitied because they ‘level

3s

electoral opportunities for candidates of different

personal wealth,” finding that the Court's) pnor

decisions “provide no support for the proposition that

this is a legitimate government objective.” Jd

By contrast, Buckley makes clear that) puble

financing serves to prevent corruption and the ap-

pearance of corruption, as well as to insulate candi

dates from the pressures of private fundraising. 424

US. at 93. Hence, whereas the Milhonaire’s Amend-

ment, in the view of the Court, did not advance the

governmental interest in preventing corruption

because it increased the size of allowable private

contmbutions for certain candidates and discouraged

the non-corrupting expenditure of personal funds,

public financing programs turther the compelling

governmental interest of “reduciing! the deleterious

influence of large contributions on our political pro

cess.” 424 US. at 93.

In an attempt to salvage the appheability. of

Davis to publie financing, petitioners have labored to

uncover a clandestine “equalizing rationale” behind

the Act. See Section IL B 2.a, supra But in so doing,

they misapprehend the very nature of what the Court

in the past has considered an impermissible attempt

to “level the playing fleld.” See, eg, MeComuish Br at

63-64 (arguing that adjusting pubhe funds grants to

ensure that participants are “viable” is tantamount to

“equahzing” electoral influence!) In Buckley. the

Court was concerned about expenditure restrictions

and other state attempts to “equalizie] the relative

amhty of individuals and groups to influence the

.’

3Y

outcome of elections” im an electoral system that

rehed entirely on private financing. 424 U.S. at 48.

Here, however, by enacting trigger provisions, Arizo-

na is not equalizing the resources of candidates

competing in the same privately-financed electoral

system; instead, the state is providing that candi

dates who have chosen to operate in a different type

of electoral svstem — a pubhicly-financed system -

have adequate funds to communmicate with the elec-

torate and respond to their political opponents. In

short, Arizona ts not leveling the playing field be-

tween similarly-situated) privately-finaneed candh-

dates, but rather is ensuring that candidates

operating in two different systems are competitive

and can engage in meaningful debate.

The permissibihty of Arizona’s dual campaign

finance system is underscored by the fact that the

constitutional concerns that informed this Court's

rejection of past “equalizing” restmetions are not

present here. In Buckley, the Court feared that in a

system of privately-financed elections, expenditure

hmuts or other attempts to equalize resources would

by necessity discriminate against those with wealth

or fundraising prowess. See also Davis, 128 5S. Ct. at

2773 (finding that BCRA $319%a) attempted “to

reduce the natural advantage that wealthy individu-

als possess in campaigns tor federal office”). As Buck.

lev noted, “[t}he First Amendment's protection against

governmental abridgment of free expression cannot

properly be made to depend on a person's financial

ability to engage in pubhe discussion.” 424 U.S. at 49.

40

But in a system of snived private and public financ-

ing, calibrating pubhe funds grants through trigger

provisions does not discriminate against privately-

financed candidates who, after all, were free to accept

public funds themselves. Participating candidates

and privately-financed candidates are not similarly-

situated: they have voluntartly chosen two different

funding systems.

Also inapplicable here is the Buckley Court's

concern that equalizing measures, such as the $1,000

limit on independent expenditures invalidated there,

would “necessarily reduce’ ] the quantity of expres-

sion by restricting the number of issues discussed,

the depth of their exploration, and the size of the

audience reached.” 7d. at 19. But far from constrain-

ing free speech, the trigger provisions enhance politi

eal speech and debate. By providing optional

subsidies to all qualifving candidates regardless of

their identity, behefs or viewpoints, the Act “assure[s]

a society in which ‘uninhibited, robust, and wide-

open’ public debate concerning matters of public

interest ... thrivels].” /d. at 93 n.127 (quoting New

York Times Co. v. Sullivan, 876 U.S. 254, 270 (1964)).

¢

41

CONCLUSION

For the foregoing reasons, the judgment of the

Court of Appeals should be affirmed.

February 2011

Respectfully submitted,

DONALD J. SIMON J. GERALD HEBERT

SONOSKY, CHAMBERS, SACHSE, Counsel of Record

ENDRESON & PERRY, LLP TARA MALLOY

1425 K Street, NW PAUL S. RYAN

Suite 600 THE CAMPAIGN LEGAL

Washington, D.C. 20005 CENTER

(202) 682-0240 215 E Street, NE

Washington, D.C. 20002

FRED WERTHEIMER (202) 736-2200

DEMOCRACY 21

2000 Massachusetts Ave., NW

Washington, D.C. 20036

(202) 429-2008

Counsel for Amici Curiae

App. 1

APPENDIX A

The following groups constitute the ayiicr curiae who

submit the foregoing brief:

The Campaign Legal Center (CLC) is a

non-profit, non-partisan organization created

to represent the public perspective in admin-

istrative and legal proceedings interpreting

and enforcing campaign finance and other

election laws throughout the nation It par-

ticipates in FEC rulemaking and advisory

opinion proceedings and = files complaints

with the FEC to ensure that the agency is

properly entorcing federal election laws. The

CLC has participated as an amicus curiae in

a broad range of campaign finance cases, in

cluding in the district court proceedings im

the instant case.

Citizens for Responsibility and Ethics

in Washington (CREW) is) ao non-profit

SOKeKS) organization dedicated to promot-

ing ethics and accountability in government

and public life by targeting government off-

clals - regardless of party affihation — who

sacrifice the common good to special inter

ests. CREW advances its mission using a

combination of research, htigation and media

outreach.

Democracy 21 is a non-profit, non-partisan

policy organization that works to ensure the

integrity of our democracy. It supports cam-

pain finance and other political reforms and

conducts public education efforts to accom-

plish these goals, participates ino htigation

App. 2

invelving the constitutionaltty. and inter

pretation of campaign finance laws and

works to ensure that campaign finance laws

are effectively and properly enforced and

unplemented

The League of Women Voters of the

United States is a non-partisan, communi:

ty-based organization that encourages the in

formed and active participation of citizens in

government, and influences pubhe pohev

through education and advocacy. Founded in

1920 as an outgrowth of the struggle to win

voting mghts for women, the League ts orga-

nized in more than S850 communities and in

every state, with more than 150,000 mem-

bers and supporters nationwide. One of the

League's primary goals ts to promote an open

governmental system that is representative,

accountable, and responsive and that assures

opportunities for ciuiven participation in gov-

ernment decision making. To further this

goal, the League has been a leader in seeking

campaign finance reform at the state, local,

and national levels

League of Women Voters of Arizona is a

non-partisan, community-based organiation

that encourages the informed and active

participation of e1tizens in government, and

miuences public pohev through education

and advocacy. The League (Arizona) helped

dratt the ballot imitiative connected to Ari

gona’s Citizens’ Clean Elections Act and ad

vocated for its enactment by state voters. It

App. 3

continues to advocate betore the state legis

lature to protect and strengthen the Act

New Jersey Appleseed Public Interest

Law Center ONd Appleseed”) is a non-profit

corporation established to provide legal ad

vocacy on behalf of New Jersey residents in

matters raising sumificant public policy is-

sues. The Center was initially authorized by

the taculty of Rutgers Law School-Newark to

develop and expand the reach of pubhe

interest law and education in the State

Since 1998, the Center has been athhated

with Appleseed, a national public interest

organizing project created by alumni of Har-

vard Law School NJ Appleseed currently to-

cuses its work on health care reform, election

reform, government and corporate accounts

tihty issues, and environmental and public

health issues) Pursuant to its election reform

project, Nd Appleseed has worked with and

has represented community groups that have

sought to establish state and local clean

cCAMpayywn programs

Public Citizen, Ine... a national government.

reform and consumer-advocacy organimwation

founded in 1971, appears on behalf of its ap-

proximately 225,000 members and support

ers before Congress, administrative agencies,

and courts on a wide range of issues. Public

Citizen works for enactment and entorce-

ment of laws fostering an open, accountable

and responsive government and protecting

consumers, workers, and the public. Publhe

Citizen has long advocated campaign finance

App 4

laws that combat the appearance and reality

of corruption of pubhe officials, including

laws providing publi financing for cand-

dates on the national and state levels. Public

Citizen lawyers offen appear as counsel in

litigation involving campaign finance issues,

and Pubhe Citvven itself frequently parties

pates in such litasation as armcus curiae

The Sierra Club ts a national non protit or-

ganization of approxunately 600.000) mer.

bers and supporters dedicated to exploring,

enjoving, and protecting the wild places of

the earth, to practicing and promoting the

responsible use of the earth's ecosvstems and

resources, to educating and enlisting human

ity to protect and restore the quahty of the

natural and human environment, and to us-

ing all lawful means to carry out these objec.

tives. The Club's particular interest in this

case and the tissues which the case concerns

stem from the Club's interests in improving

the quahty of publicly elected offeials bw re

ducing the undue influence of money in elec

tions and by reducing campaurn selieitation

efforts so that elected oMcials can better

serve their constituents and the environ

mer