# 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%3A17 ## 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 ce . 3 — eee ~————— oe - Se 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0642%3A17. Public record. Not legal advice.