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

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Aion

Nos. 10-238 & 10-239

IN THE

Supreme Court of the Anited States

ARIZONA FREE ENTERPRISE CLUB'S

FREEDOM CLUB PAC, FT AL.,

Petitioners,

Vv.

KEN BENNETT, FET AL.,

Respondents.

JOHN MCCOMISH, FET AL.,

Petitioners.

Vv.

KEN BENNETT, ET AL.

Respondents.

On Writs of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

-——_— — - -—- -

BRIEF FOR AMICI CURLAE ANTHONY

CORRADO, THOMAS MANN AND NORMAN

ORNSTEIN IN SUPPORT OF RESPONDENTS

IRA M. FEINBERG*

KAREN L. COURTHEOUX

JANOS D. MARTON

HOGAN LOVELLS US LLP

875 Third Avenue

New York, NY 10022

(212) 918-3000

ira. feinberg@hoganiovells com

Counsel for Amici Curiae

“Counsel of Record

Ee

WiisSOn-Erts PRINTING CO INC) = (2027) T8SOOSE - Waseencros 0 C AO?

TABLE OF CONTENTS

Page

,s\ f fs Bo hy. i oy) » Renner eereee u

STATEMENT OF INTEREST ....... d

TE PU GAMA FIERO Eco ccc secscveccncsccsesecasseessoceses 4

ara AAR NEE oleate feaeen er nee ter oe eR s

1 Pubhe Finaneing at the Federal

Level The Presidential Public Fi-

nancing System Upheld in Buckley

I Sackczeess: ceabean Pa FE aPe caer een ic sansiciee Ss

Il. The Success of the Presidential Pub-

nn wc ccctadectsnsncncusaccones 13

Ill. The Constitutionalitv. of Amzona’s

RRR SERRE TEN se adte lies 19

IV. The Validity Of State And Local

Pubhe Financing Systems Generally ........... 21

CONCLUSION ............. Ses caaecs PELE gen caa wach eee tees 25

qa)

ll

TABLE OF AUTHORITIES

Page

Cases:

Buckley v. Valeo,

424 U.S. 1 (1976) .............. den essaual >, 6, 12, 21

Citizens United v. FEC,

130 S. Ct. 876 (2010) .......... schccsdstniha Gaiuiccetad 4

Crawford v. Marion County Election

Roard, 553 U.S. 181 (2008) .............. ee

Daggett v. Comm'n on Governmental

Ethics and Election Practices,

205 F.3d 445 (let Cir. 2000) .........................22

Davis v. FEC,

554 U.S. 724 (2008) ......... 19

FEC v. Colorado Republican Fed. Cam

pagn Comm... 533 U.S. 431 (2001)... = e

FEC v. Wisconsin Right to Life, Inc.,

951 U.S. 449 (2007) ............ RCN RA BA ETS

Green Party v. Garfield,

616 F.3d 213 (2d Cir. 2010) ........ L eidaaione ae

Gregory v. Ashcroft.

— Lip & fi. | Reo reee Bae

MeComish v. Bennett,

611 F.3d 510 (Ath Cir. 2010) o0.0... IS, 19, 20

McConnell v. FEC,

251 F. Supp. 2d 176 (D.D.C. 2009) ................. 3

McConnell v. FEC,

540 US. 93 (2003) 2. 19

eee eee ee ee ee ee

il

TABLE OF AU THORITPIES— Continued

Page

N.C. Right to Life Comm. v. Leake,

b24 F.3d 427 (4th Cir. 2008) oo... 2a

Nixon v. Shrink Mo. Gov't PAC,

oo BOR ER yy a: | re 4,23

Northwest Austin Mun. Utilitw Dist. No.

One v. Holder, 129 S. Cr. 2504 (2009) 24

Oregon v. Mitchell.

400 US. 112 (1870)... a |

Purcell v. Gonzalez.

949 US. 1 (2006) oo... vaparaaies 23

Republican Natl Comm. vo FEC,

487 F. Supp. 280 (S.D.NLY)), affa.

445 US. 955 (1980) .. .12

Rosenstiel v. Rodrigues,

1OL F.8d 1544 (Sth Cir, 1996) 20, 23

Storer v. Brown,

ee Gy ts Ce GOED wasivncccdcncesdccesccess 24

Vieth v. Jubelirer,

Be 0 i Ie OD cesccvsccecccossscstsscans 4

Vote Choice, Inc. vo DaStefano.

4 F.3d 26 (ist Cir. 1993) .......... 20, 23

Wash. State Grange v. Wash. State Re-

publican Party, 552 U.S. 442 (2008) 2.000000... 24

Wilkinson v. -Jones,

876 F. Supp. 916 (W.D. Ky. 19995) ................ s

TABLE OF AUTHORITIES

iv

Continued

Wisconsin Right to Life, Inc. vo FEC,

546 US. 410 (2006) (per curiam)

Statutes:

LZUSCS

§

Ff Seeman

§ 29001 ef seg.

§ 9003.

§§ 9OOB(D), Ce)...

ER ic ctiedesseusssnsseunes

§ 9004(a)(3) |

§ 9OOS(D)Q oo.

§§ 2008 )C1), (d)\(2)

§ 9031 ef seg.

. § 9033(aK(3) ...000

$9033) 1)

-§§ 90380b)(3), (b)-4)..

QOS4CD) oo.

VO3H Ca) ..

oO

\

TABLE OF AUTHORITIES— Continued

Page

Legislative Materials:

S. Rep. No. 93-689 (1974) 000... en

Rule

Be MI MEM gi cOcis Sanna Ssasuasoccocess l

Nee ee ee ee a a cs eweuesennepens 1

Other Authorities:

Ballot Propositions Publicity Pamphlet

for the 1998 Ariz. General Election .0000000.....19

Anthony Corrado, The Changing Envi

ronment of Presidential Campaign

Finance, in IN PURSUIT OF THE WHITE

House: How WE CHoosk OUR

PRESIDENTIAL NOMINEES (Wilham G.

I a eee savhintteanes li?

Anthony Corrado, BEYOND THE Basics:

CAMPAIGN FINANCE REFORM (2000) 008

Anthony Corrado, Participation, Compe

tition, Engagement: How to Revive

and Improve Public Funding for

Presidential Nomination Politics

(2003)........ Se aS AA at STEN 2 canes 2

Anthony Corrado, Financing Presiden-

tial Nominations under the BCRA, in

THE MAKING OF PRESIDENTIAL

CANDIDATES (Wilham G. Maver ed.,

Ea Sea a ce Ra CEN 2 ee

vi

TABLE OF AUTHORITIES = Continued

Page

Anthony Corrado, Public Funding of

Presidential Campaigns, in THE NEW

CAMPAIGN FINANCE SOURCEBOOK

(Anthony Corrado, Thomas E. Mann,

ot G5. O6B., BOD .nciccctexescdeseaee 10, 11, 13, 14

Anthony Corrado, So the Voters May

Choose... Reviving the Presidential

Matching Fund Svstem (2008) ...0.00.0.00.0000000.... 2

Anthony Corrado, Michael J. Malbin,

Thomas FE. Mann & Norman d. Orn-

stein, REFORM IN AN AGE OF

NETWORKED CAMPAIGNS (2010) 000. 3

Federal Election Comission, Presiden.

tial Rlection Campaign Fund (PECF) .... 10, 11

John C. Green, Financing the 2004

Presidential Nomination Campaigns,

in FINANCING THE 2004 ELECTION

(David B. Magleby, Anthony Corrado

& Kelly Patterson eds., 2O06)..000000000000000.......14

Jessica A. Levinson, Center for Govern.

mental Studies, State Public Finance.

ing’ Charts (2009) _....... ei vsinenuslele nee alin 21

Jessica Lovinson & Smith Long, Center

for Governmental Studies, Mapping

Public Financing in American

Fiections (BOOB)... <..cccssxsccscececuessucueeeeeeeee 22

vu

TABLE OF AUTHORITIES. 9 Continued

Page

Michael J. Malbin, Are Matching Funds

Only “kor Losers”? A Post-2004 Vi-

ston fora Renewed Public Funding

System, WELFARE FOR POLITICIANS?

TAXPAYER FINANCING OF CAMPAIGNS

(John Samples ed., 2005)......000........ Palidaisekinetl 17

Thomas Mann, Lessons for Reformers, in

FINANCING THE 2008 ELECTIONS (An-

thony Corrado and David Magleby

i scenes A EE 3

Thomas Mann, Linking Anowledge and

Action: Political Sctence and Cam

paign Finance Reform, PERSPECTIVES

Neen en on... secncedecuscsesccsccesescess 3

THE NEW CAMPAIGN FINANCE

Ce ieee

New York City Campaign Finance

Board, Public Matching Funds ..................... 22

Norman Jd. Ornstein, THE PERMANENT

CAMPAIGN AND ITS FUTURE (2000)..000000000000.... 3

IN THE

Supreme Court of the Cinited States

Nos. 10-238 & 10-239

ARIZONA FREE ENTERPRISE CLUB'S

FREEDOM CLUB PAC, ET AL.,

etitione’rs,

Lf

KEN BENNETT, FT AL.,

Respondents.

JOHN MCCOMISH. FT AL...

retttioners,

Vv.

KEN BENNETT, FEV AL.,

Respondents.

On Writs of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF FOR AMICI CURIAE ANTHONY

CORRADO, THOMAS MANN AND NORMAN

ORNSTEIN IN SUPPORT OF RESPONDENTS

STATEMENT OF INTEREST

Amici curtae are three political scientists who have

dedicated much of their careers to studying, analyz-

ing and writing extensively on Congress, federal

elections, campaign finance, and American politics. '

'Pursuant to Supreme Court Rule 37.6, we note that no part

of this bmef was authored by counsel for any party, and no

te

Anthony Corrado is a Professor of Government at

Colby College and Chair of the Board of Trustees of

the Campaign Finance Institute. He was a member

of the Campaign Finance Institute's Task Force on

Presidential Nomination Financing from 2002 to

2004. As a member of the Task Force, Corrado

participated in producing the reports, So the Voters

May Choose .. . Reviving the Presidential Matching

Fund System (2005), and Participation, Competition,

Engagement: How to Revive and Improve Public

Funding for Presidential Nomination Politics (2003).

He serves as a Special Advisor to the American Bar

Association's Advisory Commission on Election Law,

and has served as an expert consultant in several

federal election law cases, including McConnell v.

FEC, 540 U.S. 93 (2003). He served as an expert

witness in FEC v. Colorado Republican Fed. Cam

paign Comm., 533 U.S. 431 (2001), and this Court

cited and quoted his expert statement in its opinion

in that case. See id. at 449, 451. His publications

include Financing Presidential Nominations under

the BCRA, in THE MAKING OF PRESIDENTIAL

CANDIDATES (William G. Mayer ed., 2004), and

BEYOND THE BAsICcs: CAMPAIGN FINANCE REFORM

(2000), and he was co-editor, with fellow amicus

Thomas Mann and others, of THE NEW CAMPAIGN

FINANCE SOURCEBOOK (2005).

Thomas E. Mann is the W. Averell Harriman Chair

and Senor Fellow in Governance Studies at the

Brookings Institution. In addition to being co-editor

of THE NEW CAMPAIGN FINANCE SOURCEBOOK (2005),

person or entity other than amici curiae and their counse!

made a monetary contribution to the preparation or submis-

sion of the brief.

he has written many other articles on campaign

finance reform, including Lessons for Reformers, in

FINANCING THE 2008 ELECTIONS (Anthony Corrado

and David Magleby eds., 2010) and Linking Know'l-

edge and Action: Political Science and Campaign

Finance Reform, PERSPECTIVES ON POLITICS (2003).

He served as an expert witness in McConnell v. FEC,

251 F. Supp. 2d 176 (D.D.C.), affd in part & rev'd in

part, 540 U.S. 93 (2003), and this Court cited and

quoted his expert report in its opinion. See 540 US.

at 124 nn.8, 9, 11 & 12; id. at 148 & 155.

Norman J. Ornstein is a Resident Scholar at the

American Enterprise Institute for Publhec Policy

Research, and the Co-Director of the AE1-Brookings

Election Reform Project. He is the founder and

director of the Campaign Finance Working Group, a

group of scholars and practitioners that helped craft

the McCain-Feingold legislation. His publications

include ‘THE PERMANENT CAMPAIGN AND ITS FUTURE

(2000).

All three amici are co-authors, with Michael J.

Malbin, of a recent joint study for the Campaign

Finance Institute, the American Enterprise Institute

and the Brookings Institution, entitled REFORM IN AN

AGE OF NETWORKED CAMPAIGNS (2010). The study

urges, among other reforms, increased public funding

of federal and state election campaigns, particularly

through matching grants of small contributions, see

id. at 36-46.

Stemming from their expertise and interest in fed-

eral elections and campaign finance reform, Profes-

sor Corrado, Dr. Ornstein, and Dr. Mann have filed

amici briefs in previous cases before this Court

involving election-law issues.”

Amici have studied public financing systems in

depth, and have played a leading role in the public

policy debate concerning public financing systems,

their efficacy and needed reforms. Amici therefore

have a great interest in defending the validity of

public financing systems, and in keeping the door

open for further reforms which they believe may be

necessary to promote greater public participation in

our democracy, including greater public financing of

state and federal clection campaigns.

Amici therefore respectfully offer their views to aid

the Court in this case. This brief is filed with the

written consent of all parties pursuant to Supreme

Court Rule 37.3(a); the requisite consent letters have

been filed with the Clerk.

SUMMARY OF ARGUMENT

The matching grant provisions of Arizona’s public

financing system are constitutional. They serve the

important state interest in encouraging participation

in the state’s public financing system, which is

intended to reduce the risk of quid pro quo corrup-

tion and the appearance of corruption in campaign

fundraising. And the record shows that these match-

2 See Citizens United v. FEC, 130 S. Ct. 876 (2010) (Corrado,

Mann & Ornstein); FEC v. Wisconsin Right to Life, Inc., 551

U.S. 449 (2007) (Corrado, Mann & Ornstein); Wisconsin

Right to Life, Inc. v. FEC, 546 U.S. 410 (2006) (per curiam)

(Corrado, Mann & Ornstein); Vieth v. Jubelirer, 541 U.S. 267

(2004) (Mann & Ornstein); McConnell, 540 U.S. 93 (Orn-

stein); Colorado Republican, 533 U.S. 431 (Mann); Nixon v.

Shrink Mo. Gov't PAC, 528 U.S. 377 (2000) (Mann).

qr

ing grants do not in fact significantly burden the

First Amendment rights of either non-participating

candidates or independent spenders. The powerful

arguments in support of the state’s matching grant

provisions are set out in detail in the briefs of the

respondent Arizona state officials and the Clean

Elections Institute, and will not be repeated here.

We submit this brief instead to defend the validity,

importance and efficacy of public financing systems

generally, and to urge the Court to refrain from

casting doubt on the validity of these systems, re-

gardless of how the Court may resolve the narrow

issue in this case.

In Buckley v. Valeo, 424 U.S. 1 (1976), the Court

upheld the constitutionality of the provisions of the

1974 Federal Election Campaign Act (“FECA”) that

established a system of public financing for presiden-

tial elections. The Court expressly rejected the

argument that “any scheme of public financing of

election campaigns is inconsistent with the First

Amendment.” Buckley, 424 U.S. at 90. To the con-

trary, the Court recognized that the public financing

system was “a congressional effort, not to abridge,

restrict, or censor speech, but rather to use public

money to facilitate and enlarge public discussion and

participation in the electoral process.” Jd. at 92-93.

Thus, the Court held, the presidential public financ-

ing system “furthers, not abridges, pertinent First

Amendment values.” /d.

In light of Buckley, a number of states — including

Connecticut, Maine, Minnesota and North Carolina,

in addition to Arizona — have adopted voluntary

programs providing for public financing of certain

state election campaigns. These programs have been

6

enacted to serve purposes similar to those underlying

the presidential public financing system: “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. at 91. In

general, these programs have been extremely popu-

lar and successful within their states, and the basic

constitutionality of these programs has been repeat-

edly sustained.

Petitioners are careful to distinguish the matching

grant provisions at issue here from the public financ-

ing system upheld in Buckley, and make no effort to

challenge the validity of public financing systems

generally. See, e.g., Brief for Petitioners at 57-58, 69-

70, 78-79. Some of petitioners’ amici, however, are

not nearly so scrupulous, and urge this Court to take

this occasion to call into question the validity vel non

of all public financing systems. See, e.g., Brief of

Amicus Curiae Center for Competitive Politics in

Support of Petitioners at 5-9.

We urge the Court to resist this invitation. Con-

trary to the claims of petitioners’ amici that there is

no evidence public financing systems have accom-

plished any valid purpose, the presidential public

financing system has been an unqualified success for

more than 35 years. While the system needs to be

updated to maintain its relevance in light of the

increased cost and fundraising capacity of presiden-

tial campaigns, the presidential public financing

system has been used by the great majority of credi-

ble presidential candidates, across the political

spectrum, since its enactment. From 1976 through

2004, every major party presidential nominee chose

public funding in the general election, as did John

MeCain in 2008. These general election grants freed

candidates of both major parties from the need to

raise Money during the most crucial Phase of the

presidential campaign, and gave them more time to

make their case to the electorate.

Similarly, the majority of contenders for the Repub-

lean and Democratic Party presidential nominations

have chosen to participate in the pubhe matching

funds program applicable to Primary election con-

tests. Pubhe matching funds in the primaries have

particularly benefited candidates. in both mayor

parties, who were lesser-known or who were chal.

lenging their party's establishment. including Ronald

Reagan in 1976. Pat Robertson in 1988, and Patrick

Buchanan in 1992. By virtue of their success in

soheiting small contributions from a broad base of

individual donors, public financing has provided

these candidates with the resources to mount com-

petitive campaigns and to present their case to the

voters, particularly in the crucial early primary

states. Public financing has not only served to

Promote competition in elections and to provide more

meaningful choices to voters, but it has also helped

to ensure that more candidates have the opportunity

to share their views with the electorate.

Public financing has acoomphshed these objectives

while at the same time largely eliminating corrup-

tion or the appearance of corruption from the presi-

dential election process, one of the lemslation’s

primary purposes. The public financing system was

adopted in large part to address the abuses of the

1972 presidential campaign — including secret slush

funds and secretive hand-offs of bags of money -—

which were revealed in the Watergate scandal.

, ~~,

The Court should take care in its opinion not to call

into question the validity of the presidential public

financing system, or the vahdity of the various public

financing programs that have been adopted by the

states and mumeipalities. Several of the state and

local pregrams. including the Arzona measure

before the Court. were adopted in the wake of serious

corruption scandals: all were intended to create a

system of public financing of the specified state and

local elections that reduced or eliminated the risk or

appearance of corruption. Each of the state and local

systems varies considerably in its details. The states

and local governments should be free to adopt publhe

financing systems that respond to local needs and

conditions, unless and until a particular provision is

shown on a full record to impermissibly burden

constitutional mghts. It is well settled that the

states are principally responsible for choosing their

own system of elections. and the Court should be

very reluctant to limit the states’ ability to choose

public financing as a component of the states elec-

tion mechanisms.

ARGUMENT

l. Public Financing at the Federal Level:

The Presidential Public Financing Sys-

tem Upheld in Buckley v. Valeo.

Congress responded to the financial abuses that

occurred in the 1972 presidential election and those

revealed by the Watergate investigations by enacting

the 1974 Federal Election Campaign Act, now codi-

fied at 2 U.S.C § 431 ef seg... 26 U.S.C. § 9001 ef seg..

and 26 U.S.C. § 9031 et seg. One of the hallmarks of

this legslation was the creation of a voluntary

program of pubhe funding for presidential cam-

Q

paigns. This innovative reform — which remains the

model for public financing systems adopted by states

and local governments throughout the United States

—~ was designed to establish a safeguard against

corruption in the political svstem, by reducing the

emphasis on fundraising in presidential campaigns

and diminishing the influence of large private dona-

tions. See S. Rep. No. 93-689, at 5 (1974). FECA

also sought to reduce the influence of wealthy inter

ests by promoting the participation of donors of small

sums 1n the financing of presidential campaigns. Jd.

at 6-7. Further, due to congressional concerns about

the effects of msing campaign expenditures, 1d. at 5,

FECA required candidates and parties who opted to

accept public money to agree to hmits on their cam.

paign spending. 26 U.S.C. §§ 9003 (HD). (e): BOOS (ACT),

(ad 2); 9OS3(b)1).

The presidential pubhe funding svstem provides

support to candidates or national party committees

at each stage of the presidential selection process. In

the prenomination or primary election period. a

candidate mav qualify for pubhe matching funds on a

dollar-for-dollar basis for the first $250 contmbuted

by anv individual donor. 26 U.S.C. § 9034{4a). To be

eliigble for such primary election matching funds, a

candidate must raise a threshold amount from

private contributions in at least 20 states, counting

only the first $250 donated by each contributor, 26

U.S.C. §§ 9033(b\3). (4). and must agree to hmuit

personal contributions to his or her own campaign to

a maximum of $50,000, 26 U.S.C. §§ 9033(b)(1),

9035(a). The candidate must also agree to abide by

state-by-state aggregate spending hmits. and agree

to a post-election financial audit of campaign funds,

conducted by the Federal Election Commussion. 26

10

USC. § 9083(a\3) Candidates who meet these

requirements may receive matching funds on quah-

fed individual contributions received after January

1 of the year preceding the election vear, and may

receive public funds up to a maximum of half of the

candidate's aggregate spending Lhmit. 26 USC. §&§

N93 4¢a), (bd).

In the general election campaign. candidates can

choose to receive a pubhe grant that provides full

funding for his or her campaign. See 26 USC. §

9003. The amount of the grant is based on a formula

set out in the statute, which set an initial limit in

1974 of $20 milhon, plus adjustments for inflation

By 2004, the amount of the grant had risen to $74.6

milhon. See Anthony Corrado, Public Funding of

Presidential Campaigns, in THE NEW CAMPAIGN

FINANCE SOURCEBOOK 180, 193 (Anthony Corrado,

Thomas FE. Mann, Damel R. Ortiz & Trevor Potter

eds. 2005). In 2008. the grant amount increased

again to $84.1 million. See Federal Election Commis.

sion, Presidential Election Campaign Fund (PECF).

http: www _fec.gov/press bkgnd fund shtml (last

vistted Feb. 16. 2011). To be eligble for public

financing, a candidate must be the presidential

nominee of a party that quahfies for funding under

the terms of the statute. 26 U.S.C. § 9003. As in the

primaries, a participating candidate must also agree

to abide by the spending limit, restrict any personal

contmbutions to a maximum of $50,000, and agree to

a post-election financial audit. 26 U S.C. §§ 9003,

M004. A candidate who did not accept pubhe finance-

11

ing in the primaries mav nevertheless choose to

receive public financing in the general election.

The program also offers national party committees

the option to accept a grant to finance the expenses

incurred for a presidential nominating convention.

The amount of this grant was orymnally set m 1974

at $2 millon, plus adjustments for inflation, but the

base amount was subsequently increased m= 1979

and 1984. See Corrado, Public Funding of Presiden

tral Campaigns, supra, at 190. By 2008, the amount

provided to each of the major parties was $16.8

milhon. See Federal Election Commussion, Presiden

tial Election Campaign Fund, supra. As with gen-

* The law distinguishes between major party nominees and

minor party nominees for purposes of determining the

amount of the general election grant) A major party nom:

nee, defined as the nominee of a party that received at least

29 pervent of the vote in the previous presidential election, us

eligible to receive the full amount of the grant. A minor

party nomince or independent candidate ou elynble for a

proportionate share of the full amount, based on the propor

tion of the mayor parties’ average vote share represented by

the minor party's or candidate's share, provided that the

minor party or candidate received at least five percent of the

vote in the previous election. 26 USC. § 9004(a\3). Thus.

in 1996, Reform Party nominee Ross Perot received $29 1

miulhon in general election pubhe funding, slightly less than

half of the full $68.1 milhon received by each major party

nominee that vear, based on the proportiwnate share of the

general election vote that Perot meceived in 1992. See

Corrado, Public Funding of Presidential Campaigns, supra,

at 194. A participating minor party candidate may raise

additional private contmbutions, subject to generally apph-

cable contribution limits, to make up the difference between

the amount of the minor candidate's grant and the amount

of the full grant awanled to a pubhely financed major party

contender.

12

eral election funding. a minor party committee can

quahfy for a proportionate share of the amount

provided to each major party, based on the vote in

the previous presidential election, provided that the

minor partys nominee received at least five percent

of the vote. 26 U.S.C. §§ 9003(e), 9008(b)(2).

This Court upheld the constitutionahty of these

provisions in Buckley, 424 U.S. at 90-109, and re-

jected the argument that such a system of pubhe

financing of election campaigns was inherently

Inconsistent with the First Amendment. The Court

emphasized that the public financing system was “a

congressional effort... to use pubhe money to facih

tate and enlarge public discussion and participation

in the electoral process,” and therefore “furthers, not

abridges, pertinent First Amendment values.” Jd. at

93.4 Moreover, the Court held, “it cannot be gainsaid

that publi financing as a means of ehminating the

improper influence of large private contributions

furthers a sizmificant governmental interest.” Jd. at

Gs

* The Court explained the purposes of the presidential public

financing system as “to reduce the deletemous influence of

large contmbutions on our political process, to facihtate

communication by candidates with the electorate, and to free

candidates from the mgors of fundraising” Buckley. 424

US. at 91 (erting S. Rep. No. 93-689, 1 10 (1974))

* The Court reyected additional constitutional challenges to

the presidential pubhe financing system in Republican Natl

Comm. vo FEC, 487 F. Supp. 280 (S.DNLY) (three-yudge

court), affad, 445 ULS. 955 (1980).

13

Il. The Suecess of the Presidential Public

Financing System.

Since 1976, the first presidential election in which

pubhe funds were available, every” presidential

election has been financed tn part with public funds

From 1976 through 2004, every major party presi-

dential nominee rehed on public money for the

financing of his general election campaign, and dohn

MeCain did so in 2008; only Barack Obama in 2008

opted to dechne the general election grant, because

of his ability to raise extraordinary sums that far

exceeded the current amount of the public grant. In

every election evele since 1976, through and includ-

ing ZOOS, both the Democratic and Republican na-

tional party committees have accepted public money

to finance their presidential nominating conventions.

And the great majornty of presidential candidates

since 1976 have rehed upon the pubhe matching

grants available during the primary elections.

Indeed, from 1976 through 1996, every candidate

who won the nomination of one of the major parties

did so with the assistance of pubhe matching funds.®

Pubhe funding has provided substantial support to

a wide range of presidential aspirants. Republeans

and Democrats alhke, as well as some minor party

candidates and a minor party committee, have

© In the eyght presidential elections from 1976 through 2004,

presidential candidates and national party committees

received more than $1.3 billion in public funds. See Corrado,

Public Funding of Presidential Campaigns, supra, at 182.

Candidates seeking their party's nomination received about

$342 milhon of pubhe money in total durng this penod;

general election contenders received a total of $839 millon:

and mational party committees qualified for a total of $152

miileon. dd

14

participated in the program. Democratic contenders

and their national party committee received $646

milhon of pubhe funding through the 2004 election,

while Republican candidates and their national

party committee received $628 millon. Minor party

candidates and one minor party committee received

a total of $60 milhon. Corrado, Public Funding of

Presidential Campaigns, supra at 182.

In the first two deeades of expernence under the

pubhe funding programs, the vast majority of con.

tenders for the Repubhean and Democratic presiden-

tial nominations chose to participate in the public

matching funds program. Of all the candidates who

ran for the Democratic or Republican nomination in

the six elections between 1980 and 2000, only six

candidates, all Republicans, decided to forgo pubhe

money during the primary campaign: dohn Connally

in 1980; Malcolm “Steve” Forbes, Robert Dornan, and

Maurice Taylor in 1996; and Forbes, George W. Bush

and Orrin Hateh in 2000. Anthony Corrado, BEYOND

> Democrats have qualified for a slightly larger amount of

pubhe funding over the course of the program principally

because of the greater number of contested Democratic

presidential nomination races during this period, which led

to a greater number of candidates qualifying for primary

matching funds. In all, 91 challengers for a presidential

nomination im the elections from 1976 through 2004 quah

fied for and accepted primary campaign matching funds,

including 53 Democrats, 29 Repubhcans, and 9 minor party

aspirants. See John Co Green, Financing the 2004 Presiden-

tial Nominahon Campaigns, in’ FINANCING THE 2004

ELECTION 93, 121 (David Bo Magleby, Anthony Corrado &

Kelly Patterson eds., 2006)

15

THE Basics: CAMPAIGN FINANCE REFORM 60-61

(2000).8

Presidential aspirants embraced public funding

because the pubhe grants proved to be an invaluable

resource. The general election grants alone freed

candidates of the need to raise money and gave them

more time to make their case to the electorate. Jd.

Without public funding, candidates would have to

spend most of their time between July and November

raising funds in order to accrue the tens of millions

of dollars needed to mount a national campaign. The

public option also helped to hold down campaign

expenses, since candidates did not have to spend the

milhons of dollars needed to generate the sums

offered through pubhe funding.

Primary campaign matching funds have also proved

to be an important source of support for presidential

candidates. In each election between 1976 and 1996,

about a third of the momes raised by presidential

contenders came from the pubhe match. Corrado,

Campaign Finance, supra at 60-61. Pubhe financing

has particularly benefited candidates who challenged

their party's establishment. or lesser-known asp.-

rants. Pubhe funding has provided these candidates

with the resources to mount viable campaigns and to

present their case to the voters. This ts particularly

true in the crucial early primary states. For many

candidates, public funding was the source of sorely

needed funds at crucial points in a presidential race.

In this way, public funding has not only served to

promote competition in elections and provide more

* In addition, in 1992, independent presidential candidate H.

Ross Perot chose not to participate in publi funding in his

unorthodox campaign for the presidency. See id.

16

meaningful choices to voters, but it has also helped

to ensure that more candidates have the opportunity

to share their views with the electorate.

tor example, conservative candidates such as Re-

publicans Pat Robertson in 1988 and Patrick Bu-

chanan in 1992 received large sums of public money

in their bids for the presidency by successfully solic-

iting small contributions from a broad base of indi-

vidual donors. Robertson raised $20.6 million in

1988 and accrued $9.7 millon in matching funds.

Buchanan raised $7.2 milhon in 1992, which gener-

ated $5 million in matching funds. Jd. at 61. Simi-

larly, liberal candidates such as Democrats Jesse

Jackson in 1984 and 1988 and Jerry Brown in 1992

derived the majority of their campaign funds from

smaller donations and thus qualified for substantial

amounts of public money. Jackson raised a com-

bined $17.4 milhon from individuals in his two bids

for the presidency and accrued $10.7 milhon in

matching funds; Brown chose to accept only individ-

ual donations in small amounts in his 1992 bid for

the Democratic nomination, and raised $5.2 million

in private contributions that were matched with $4.2

million in public funds. 7d.

But no candidate benefitted from public funding

more than Ronald Reagan. Due to his broad base of

supporters throughout the nation, Reagan was able

to capitalize on his small-donor fundraising capacity

to accrue substantial sums of publee money. During

his 1976 primary challenge to incumbent President

Gerald Ford, for example, Reagan had less than

$44,000 in campaign money left at the end of Janu-

ary, while President Ford had fifteen times more

cash on hand. The $1 million in public funds that

17

Reagan received in January and the additional $1.2

million that he received in February were pivotal in

allowing Reagan to continue his campaign. See

Michael J. Malbin, Are Matching Funds Only “For

Losers’? A Post-2004 Vision for a Renewed Public

Funding System, WELFARE FOR POLITICLANS?

TAXPAYER FINANCING OF CAMPAIGNS 251, 256 (John

Samples ed., 2005). Reagan was once again short of

cash at the end of March, and was able to continue

his campaign only as a result of a further infusion of

public money. /d.

Even in 1984, when as President he was secking

reelection without significant opposition within his

own party, Reagan raised about 60 percent of the

funds for his campaign from small donors and, as a

result, received $9.7 million in matching funds. See

Anthony Corrado, The Changing Environment of

Presidential Campaign Finance, in IN PURSUIT OF

THE WHITE HOUSE: HOW WE CHOOSE OUR

PRESIDENTIAL NOMINEES 233 (William G. Mayer ed.,

1996). Notably, this was the maximum amount of

public money a primary candidate could receive in

accordance with the law at the time. To this day,

President Reagan remains the only candidate to ever

reach the public funding primary campaign makxi-

mum. See td. at 233-34.

The availability of public funding has also made it

possible for minor party candidates to share their

views with the electorate. In every presidential

election since 1984, at least one minor party candi-

date has qualified for and received public matching

funds. In the 2000 campaign, for example, three

minor party candidates — one each from the Reform

Party, the Natural Law Party, and the Green Party —

18

received public matching funds. See Green, Financ-

ing the 2004 Presidential Nomination Campaigns, at

121.

This history shows the invalidity of the claim by

the Center for Competitive Politics that there is no

evidence public financing has furthered any of its

goals. See Brief of Amicus Curiae Center for Com-

petitive Politics in Support of Petitioners at 4, 5-9.

While the presidential public financing system needs

to be updated and grant levels increased to maintain

its relevance in light of the increasing expense of

presidential campaigns, the presidential public

financing system has demonstrably increased compe-

tition and voter choice. It has provided challengers

who have grass-roots support with the resources to

mount viable and competitive campaigns. For many

candidates, public funding has been the source of

sorely needed funds at crucial points in their races,

and provided them with funding that permitted them

to continue their campaigns. Public funding has

provided important support to independent candi-

dates, increasing the diversity of voices and views

presented to the electorate. It has enabled presiden-

tial nominees to put aside the needs of fundraising

during the crucial final months of the campaign, and

allowed them to concentrate on making their case to

the electorate. Public funding has thus served to

promote competition in elections, provide more

meaningful choices to voters, and free candidates to

focus on presenting their views to the electorate

rather than raising campaign contributions. And in

so doing, it has simultaneously removed from presi-

dential campaigns the greatest source of potential

corruption and the appearance of corruption, the

19

need for candidates to solicit large contributions from

donors.

Ill. The Constitutionality of Arizona’s Match-

ing Grants.

The voters of Arizona adopted the state’s public

financing system through an initiative measure

approved in the 1998 elections. See McComish v.

Bennett, 611 F.3d 510, 514 (9th Cir. 2010). As the

Ninth Circuit noted, the “Citizens Clean Elections

Act” was passed in the wake of a long series of seri-

ous corruption scandals involving Arizona public

officials, including the indictment of two of its gover-

nors. Jd. It is readily apparent — from the historical

context in which it was adopted, from the ballot

pamphlet’s explanation of its purposes, indeed, from

the very name of the Act — that one of its principal

purposes was to prevent political corruption and to

reduce the public’s perception that Arizona politics

were irrevocably broken. Indeed, the voter informa-

tion pamphlet stated that the central goal of the

legislation was to “improve the integrity of Arizona

state government” by, among other things, “dimin-

ishing the influence of special-interest money.”

Ballot Propositions Publicity Pamphlet for the 1998

Ariz. General Election, http://www.azsos.gov/elec-

tion/1998/info/pubpamphlet/prop200.pdf. See McCo-

mish, 611 F.3d at 514-15.

The matching grant provisions of the Arizona law

are constitutional, and should be upheld. It is well

settled that the states have a sufficiently important

interest to justify adoption of campaign finance

regulations that combat corruption and the appear-

ance of corruption, see, e.g., Davis v. FEC, 554 U.S.

724, 737 (2008); McConnell, 504 U.S. at 136, and the

20

Ninth Circuit reasonably concluded that one of the

principal purposes of the Act was to reduce quid pro

quo corruption. See McComish, 611 F.3d at 515-16.

The matching grant provisions were intended to

encourage participation in the state’s public financ-

ing system, see id. at 526, and the state — having

decided to establish a public financing system — has

an equally important interest in adopting measures

to incentivize participation and attempt to ensure

that the system is successful in reaching its anti-

corruption goals. See Rosenstiel v. Rodriguez, 101

F.3d 1544, 1553 (8th Cir. 1996) (holding that the

state had “a compelling interest in stimulating

candidate participation in its public financing

scheme”); Vote Choice, Inc. v. DiStefano, 4 F.3d 26,

39-40 (1st Cir. 1993) (same).

Moreover, the challenged matching grant provisions

do not significantly burden the First Amendment

rights of non-participating candidates or independ-

ent spenders. As the Ninth Circuit found, the record

does not support petitioners’ claims that the match-

ing grant provisions created any meaningful disin-

centive against them exercising their First Amend-

ment rights to the fullest extent in support of their

campaigns. See McComish, 611 F.3d at 522-25. In

the absence of any evidence that the matching grant

provisions in fact impose a severe burden on peti-

tioners’ speech, the logical or theoretical argument

that it could conceivably have that effect does not

create a sufficient burden on First Amendment

rights to hold them unconstitutional. See McComish,

611 F.3d at 525; see, e.g., Rosenstiel, 101 F.3d at

1552-53; Vote Choice, 4 F.3d at 40.

V1

IV. The Validity of State and Local Public

Financing Systems Generally.

Even if the Court concludes that the matching grant

provisions are problematic, however, there is no

occasion for the Court to address any broader issue

involving the constitutionality of pubhe financing

systems generally, and the Court should avoid any

ruling that might call into question their constitu.

tionality.”

In the wake of Buckley, the states have adopted a

diverse array of pubhe financing statutes, which vary

considerably in their details. As of 2009, twenty-four

states operated some system of pubhe tinancing

These programs range from full pubhe financing to

qualified candidates running for certain state offices,

offered by Arizona, Connecticut, Maine, New Mexico

and North Carolina, to a tax credit to individuals

who make a pohtical contribution in their state,

provided by six states. dessica AW Levinson, Center

for Governmental Studies, State Public Financing

Charts, at 1 (2009).'°) Each state’s pubhe financing

laws take different positions on questions such as

whether funding should apply to primary elections,

* Petitioners have not challenged any other aspect of the

Anzona pubhe financing svstem

© The states which have adopted some form of publhe

financing system are: Anvona, Arkansas, Connecticut,

Florida, Hawan, lowa, Maine, Marvland, Massachusetts,

Michigan, Minnesota, Nebraska, New Jersey, New Mexico,

North Carolina, Ohw, Oklahoma, Oregon, Rhode Island.

Utah, Vermont, Virginia, and Wisconsin. Jd) The Center for

Governmental Studies report also listed ldaho among the

states with pubhe financing programs, but Idaho repealed its

program effective danuary 1. 2010

whether payment should be made im the torm of

matching funds, lump sum payments, or both: what

factors should determine the amount of the payment,

and what entity should receive the funding — the

candidate or the political party. For example, Flor

ida, Massachusetts, and Michigan each provide

matching funds to qualitving: candidates for certain

statewide offices for both primary and general elec

tions. Jd. By contrast, lowa provides funding to

political parties, and only for the general election

ld. Minnesota offers a variation on that program,

providing lump sum payments to qualifving candi

dates for certain statewide offices, to state commit.

tees of political parties, and to the state general fund

for administrative purposes. Jad.

In addition, a number of local governments have

adopted some form of public financing system. Most

notably, the City of New York has adopted a svstem

Which provides qualified candidates with matching

funds tor the first S175 in contributions received

from any donor, at a rate of $6.1n matching funds for

every Slain contributions. New York City Campaign

Finance Board, Publie Matching Funds,

http: www-enveetb info candidates candidates public

matchingfunds.aspx (last) visited Feb 7, 2011)

Sunilariv, Albuquerque, New Mexico provides sig-

uificant publhe financing to quahtving candidates

Other cities providing at least partial pubhe finane

ing to local eandidates imelude Miami, Florida:

Austin, Texas; Boulder, Colorado; and several cities

in Cahformia. See dessica Levinson & Smith Long,

Center for Governmental Studies, Mapping Public

Mnancing in American Elections, at 3 (2009).

There have been several lawsuits challenging these

pubhe financing systems, but their valditvw has

generally been sustained, against a broad variety of

constitutional claims. See NLC. Right to Life Como.

vo Leake, 524 FoSd An7 (ath Cir) YOOS) (upholding

North Carolina svstem for pubhe financing of pudicial

elections), Daggett Vv Comm'n on Governmental

Fthics and Election Practices, 205 F.3d 445 (ist Cir

2000) (upholding constitutionality of Maine's Clean

Election Act), Vote Chore, 4 FSd at 40 (upholding

provisions of Rhode Island pubhe financing system),

Rosenstiel, LOL FS at 1565 (upholding constitution

ality of Minnesota's public financing system), Wilda

son vo dones, S76 FO Supp. 916 (WoD Ky 199d)

(upholding constitutionality. of provisions of Ken

tucky’s pubhe financing system); see also Green Party

v. Garfield, G16 FSd 21S (ld Cir) 2010) (upholding

constitutionality. of Connecticut's pubhe financing

system generally, even while holding is matching

grant provisions unconstitutional),

The Court in this case should avoid anv ruling that

would call into question the validity of these diverse

state and local pubhe financing systems. The states

should have the flexibility to adopt pubhe financing

systems that are adapted to their local needs, condi

tions, and histories. See Niwon vo Shrink Missoun

Govt PAC, S28 US. 877, 393-94 (2000) (relying on

evidence of local history and conditions to support

constitutionality of state contribution limits) This ts

particularly true since pubhe financing programs are

generally intended to reduce political corruption and

to restore public confidence in the integrity of state

and local government, and are often adopted, as in

Arizona, im the wake of corruption seandals. See

Purcell vo Gonzalez, 549 US. 1, 4 (2006) CA State

4

«*

indisputably has a compelling interest in preserving

the integrity of its election process’) (internal cita

tions omitted) Absent a record demonstrating that a

particular provision has an wumpermissible impact on

First Amendment ryghts, the Court's ruling should

leave room tor the states to continue to experiment

with these pubhe financing svstems

The Court has repeatedly recognized, in a variety

of election-related contexts, that the states have

“broad power over the election process for state

offices” with which this Court should be reluctant to

interfore. Wash. State Grange vo Wash) State Repub

hiean Party, So2 US. 442. 458 (2008) Gnternal eita-

tions omitted): see Storer vo Bronwen, 415 US. 724, 730

(1974) (states have long been primarily responsible

for regulating electtons, imeluding = registration,

ehyibility, ballot and vote-counting requirements),

Crawford vo Manon County Flection Board, 553 U.S

ISl, LOS (ZOOS) (Seaha, do. concurring) (detailed

judiial supervision of the election process would

flout the Constitution's express commitment of the

task to the States’). As the Court observed in Ore

gon vo Mitchell, 400 US) TL2, 124-25 (I8TO), “no

function is more essential to the separate and inde

pendent existence of the States and their govern

ments than the power to determine within the limits

of the Constitution the quahfieations of their own

voters... and the nature of their own machinery for

filling local pubhe offices.” The Court has thus

repeatedly recognized that “the Framers of the

Constitution intended the States to keep for them

selves, as provided in the Tenth Amendment, the

power to regulate elections.” and that “leJach State

has the power to presembe the qualifications of its

oMeers and the manner in which thev shall be

> ee

-*

chosen” Gregory vo Asheroft, 501 US) 452. 461-62

(98D) Gnternal citations omitted), aecord Northwest

Austin Mun. Utihtv Dist. Noo One vo Holder. 129 8S

Ct. LOO4, POLO (LAN)

These fundamental principles of federalism sugyest

that the Court should tread cautiously before issuing

a ruling that could undermine the validity of state

pubhe financing statutes

CONCLUSION

The pudgment of the Ninth Cireuit should be af

firmed

Respectfully submitted,

TRAM. PREINEERG*

KAREN L. COURTHROUA

JANOS TD) MARTON

HOGAN LOVELILS US LLP

S75 Thard Avenue

New York, NY 1O0z2

(LILY ATS GOO

ira feinbens@hoganiovells oom

Counsel for Amici Curie

“Counsel of Reoord