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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0642%3A23

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2010
- **Citation:** 562 U.S. 1060

## Text

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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

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0642%3A23. Public record. Not legal advice.