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

4 Ps ee Pe

Nos. 10-238 and 16-239

IN THE

Supreme Court of the Anited States

ARIZONA FREE ENTERPRISE CLUB'S

FREEDOM CLUB PAC, et al.,

Petitioners,

v.

KEN BENNETT, et al...

Respondents.

JOHN MCCOMISH, et al.,

Petitioners,

Vv.

KEN BENNETT, et al.,

Respondents.

On Writ Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

BRIEF OF AMICI CURIAE FORMER ELECTED

OFFICLALS IN SUPPORT OF RESPONDENTS

CHARLES FRIED* CLIFFORD M. SLOAN

1563 Massachusetts Ave BRADLEY A. KLEIN

Cambridge, MA 02138 GEOFFREY M. WYATT

(617) 495-4636 Cory C. BLACK

fried@law harvard.edu SKADDEN, ARPS, SLATE,

MEAGHER & FLOM LLP

*Counsel of Record 1440 New York Avenue, N.W.

Washington, DC 20005

(202) 371-7000

Attorneys for Amici Curiae

TABLE OF CONTENTS

I ls 1

Introduction And Summary Of

IIIS cccincpcentatincnascauasiiidelanibiuiboisikantinniiubenaiahandasnionds 4

aici ileaaical aia ie alien eambanuaeiinnieaantees 9

I. Arizona’s Law Expands Free

Se ticcciicauaiicusssie namnanenacinia-casilediah iidldsinicbdsbenineaiiabi 9

Il. Arizona's Law Does Not

Impermissibly Penalize, Burden,

Chill, Or Drown Out Speech........................ 15

A. Davis Does Not Compel

PIII ns cisorsieceahicassesnatisbntisicel siatsdiainiaiatdiin 16

B. The Arizona Law Does Not Force

Any Speaker To Bear Another

Speaker’s Speech...................c0c00ee00ee 18

c. The Arizona Law Does Not Lead

To Self-Censorship ...................002e0ee 21

D. The Arizona Law Does Not Lead

Some Speech To Overwhelm

Ne IR ccccitenilncounsdsaunedicnnsienancsaie 23

SEP RETELEN IAL PM FO AE ALES oie Bm OE EP EL IE tne 24

ul

TABLE OF AUTHORITIES

American Booksellers Association, Inc. v. Hudnut.

yee we te. Te 3b) |) ee 5, 21

Arkansas Writers’ Project. Inc. v. Ragland,

481 U.S. 221 (1987)

Bucklev v. Valeo,

Os Bein scnsvinickecnecscnsccs 4, a0, 11, 14, 23

Citizens United v. Federal Election Commission.

RF Bee ry Fs) ee er ee ae

City of Lakewood v. Plain Dealer Publishing Co.,

Ms Pe CI AD vv cxccsnccceneccescececesccececces 21, 22

Daggett v. Commission on Governmental Ethics

and Election Practices.

205 F.3d 445 (1st Cir. 2000) «00000000. 22

Davis v. Federal Election Commission.

BOG OFT. TEE COO qo ooo ccccesccccccccccces, we, 15, 16

Day v. Holahan,

34 F.3d 1356 (8th Cir. 1994)... 21

Harris v. McRae.

448 US. 297 C1980)... a PI cay PA ee 12

Johanns v. Livestock Marketing Association,

544 U.S. 550 (2005)

11

Leathers v. Medlock.

499 US. 439 (1991)

Maher v. Roe.

4382 US. 464 (1977

Miami Herald Publishing Co. v. Tornillo,

I Te Re ME EOE vane cada canecisiedunvconivisccoeceicis

N.C. Right to Life Commission Fund for

Independent Political Expenditures v. Leake.

524 F.3d 427 (4th Cir. 2008)...

National Endowement for the Arts v. Finley,

824 US. S569 (1998) S. 10,

Norwood v. Harrison.

4138 US. 455 (1973).

Pacific Gas & Electric Co. v. Public Utilities

Commission,

475 US. 1 (1986) S,

Regan v. Taxation with Representation of

Washington,

461 U.S. 540 (1983)... Ruginutetasteun ek

Rust v. Sullivan.

500 U.S. 173 (1991)...... eer ee G, 10,

STATUTES

L

Vv

Act of Congress, Aug. 4.1790. 1 Stat. 178

Act of Congress. Mar. 3. 1791, 1 Stat. 218

MISCELLANEOUS

Eugene Volokh, Freedom of Fypressive As-

sociation and Government Subsidies,

AS Stan. L. Rev. 1919, 1924 (LOE).

Matthew Eric Glassman, Cong. Research

Serv... RLS4AL 74, Franking Prioilege:

Historical Development and Options

for Change >t) rere

The Supreme Court, 2007 Term—Leading

‘ . ' ‘ > .

Cases: Freedom of Speech ana F: Ures-

sion—Campaign Finance Regulation.

Davis v. Federal Election Committee.

WP? Harv. L. Rev. 875. 883-84 (200s)

.

oe

*-

ae

li

BRIEF OF AMIC? CURTAFE FORMER

GOVERNORS, SENATORS, AND

REPRESENTATIVES IN SUPPORT OF

RESPONDENTS

Amici respectfully submit this bmefin support of

the respondents defending the judgment ot the Court

of Appeals C'Respondents”) !

STATEMENT OF INTEREST

Amici are former elected offierals from both po

htical parties who have extensive experience with the

reahties of electoral pohtics

Bruce Babbitt is a tormer Governor of Arivona,

a tormer Secretary of the Interior, and a former can-

didate for President of the United States

Bill Bradley is a tormer United States Senator

trom New dJdersev and a former candidate for Presi-

dent of the United States

Amory Houghton is a former United States

Representative trom New York

Pursuant to Supreme Court Rule 37.6, counsel for amici

cumae states that no counsel for a party authored this bret in

whole or in part. and no party or counsel! for a party made a

monetary contmbution intended to fund the preparation or

subnussion of this bnef No person other than amici curiae or

the:r counsel made a monetary contmbution to its preparation

or subnussion. Pursuant to Supreme Court Rule 37.3. Petition

ers and Respondents have each filed with the Clerk of the Court

a letter granting lanket consent to the filing of arircaus briefs

Naney Landon Kassebaum is a tormer United

States Senator from Kansas

Bob Kerrey is a tormer Governor of Nebraska, a

former United States Senator trom Nebraska. and a

former candidate for President of the United States

Madeleine Kunin is a tormer Governor of Ver.

mont, a former Deputy Secretary of Education, and a

former Ambassador to Switzerland

Connie Morella is a tormer United States Rep

resentative from Marviland and a tormer Ambassador

to the Organization for Economic Cooperation and

Development

Sam Nunn is a tormer United States Senator

trom Georma

John Edward Porter is a tormer United States

Representative from Llimnois

Larry Pressler is a former United States Sena-

tor from South Dakota and a former United States

Representative from South Dakota

Warren Rudman is a tormer United States

Senator from New Hampshire

Alan Simpson is a former United States Senator

trom Wvoming

Christie Todd Whitman its a tormer Governor

of New dersev and a former Administrator of the En.

vironmental Protection Agency

“-.

“-

Timothy Wirth is a former United States Sena

tor trom Colorado and a tormer Undersecretary of

State tor Global Affairs

INTRODUCTION AND

SUMMARY OF ARGUMENT

Consideration of this case should proceed from

recogmitien of a simple point. the law at issue in this

case is not, in the words of the First Amendment, a

law “abndging the freedom of speech.” Rather, it

adds voices to the political forum and thereby en-

pands speech. Itaus Petitioners — in complaining that

these additional voices are a burden on their message

Who in realty are seeking to restrict speech

It there is one fined star in the constitutional fir-

mament, itis that arguments seeking to compel a

reduction ino speech face an extraordinary hurdle

This Court's decision in Citizens United vo FEC, 130

S.Ct S76 (VOTO), has been celebrated and ermticized

as enabling corporate speech in the political arena,

but ats clear message is that arguments for shutting

down speech are constitutionally suspect. Absent the

gravest justification, demands to limit or eliminate

speech have no constitutional force

Petitioners attempt to portray Arizona's law as a

restriction on speech, when in tact it is their position

that would have a restrictive effect on political dis-

course. Thev challenge a regime that silences no one,

prohibits no speech, and only enables additional

speech. To make their counterintuitive point that

Arizona's law is nonetheless constitutionally defec

tive, Petitioners must argue that. because the

Anvona law enables more speech, it somehow has

Impermussibly interfered with ther ability to speak

as much as they want on anv subject thev choose

This objection depends on a premise that this Court

In manv Wavs and contexts has firmly rejected. Petr.

hioners’ argument depends on the premise that the

speech of others who disagree with them somehow

interferes with, silences, swamps. or untatrly com.

petes wath, their speech But, except where a

speaker quite literally shouts down another, this

Court has alwavs rejected the notion that) more

speech somehow interteres with, silences, swamps, or

unfairly competes with speech it opposes. Tt is up to

the listener to decide to whom he wants to attend, to

decide when he has heard enough trom one speaker,

to decide when one speaker is so insistent, verbose, or

annoving that he no longer chooses to hsten to him

That is not a chowe tor government to make, or tor

courts to compel

Never has this “drown out" form of argument

been more eloquently reyected than by dudge Easter.

book, whose opinion in Amencan Booksellers Ass'n,

Ince. vo. Hudnut, 771 F.2d 323 (7th Cir. 198d), aff'd

. 478 US. 1001 (19886), was affirmed by this

Court. In that case, a municipality championed a

thesis, urged bv Professor Catharine Mackinnon,

that certain speech demeaning to women so deterred,

so discouraged them from speaking that the offensive

speech — though not obscene — could be prohibited in

the name of free speech itself. dudye Easterbrook re-

jected that argument. Such screening, he said, must

be left to the listeners alone. and the danger that

they may be overwhelmed by too many messages or

Messages too strident or crafty is a danger that gov

ernment has no power to address by prohibition. Yet

Petitioners’ claim that Arivona’'s scheme deters, bur-

dens, or threatens to drown them out depends on

that reected premise

PCN

i)

This tundamental principle of First Amendment

law — that speech is not burdened by more speech - 1s

illustrated by cases as diverse as Rust vo Sullivan,

HOO LS. 173 (1991) and Johanns ov. Livestock Mar-

keting Ass'n, S44 US. 550 (2005). In quite different

contexts, the Court has turned aside claims that

more speech — there the government's own speech

somehow interfered with speech it neither sought to

regulate nor prohibit.

In Rust, the Court pointed to the absurdity of

barring the government from promoting democracy

without granting equal time to proponents of fascism,

500 US. at 194. In Johanns, the Court ruled it en.

tirely permissible for the government to) spend

government money to promote beef consumption,

even though such promotion may be thought to com-

pete with the business of pork or chicken producers,

who may beheve that they must increase their own

promotional budgets to rebut the government's mes-

sage. 544 US. at 561-62. In such cases, we are

brought back to the fundamental premise of First

Amendment jurisprudence, expheated ino Citizens

United, that listeners must be left to make their own

judgments among the myriad signals that) reach

them whoever the speaker, whatever its funding.

The permissibiluw of the Arizona law follows a

fortor: trom the teaching of cases hke Rust or Jo-

hanns or Citizens United. In contrast to government

speech cases, Arizona does not) pick from among can-

didates because of their | message as the

government favored prenatal care Gn Rus?) or beet

consumption (Qn Johanns). Instead, Arizona extends

pubhe financing to anv candidate who meets certain

quahfieations and agrees to forego fundraising from

private sources. Thus, if the government violates no

one's First Amendment rights, does not silence, sup.

press or deter anyone's speech by speaking a contrary

message in its OWN voice, so Most assuredly it bur.

dens no speech when it makes funds available to all

comers on a viewpoint neutral basis. More speech

may answer speech but it does not silence it. What

effect speech has on its audience the First Amend

ment leaves up to the audience.

In Citizens United, this Court sought to promote

robust protections for freedom of speech in the public

square. The Arizona law at issue here serves exactly

the same purpose and is entirely consistent with Cif-

izens United.

Petitioners’ contrary arguments must fail for two

reasons. First, Arizona's Citizen's Clean Elections

Act expands rather than restricts speech. Following

this Court's landmark decision in Buckley cv. Valeo,

424 U.S. 1 (1976), various states enacted laws provid-

ing for pubhe financing of political campaigns as an

appropriate Measure to promote public political dis-

course. In response to a long and well-documented

history of pohtical corruption, Arizona has done the

same. The matching funds provision is a permissible

effort to ensure that the public financing option is vi-

able.

Arizona's law is in harmony with this Court's

long line of cases approving governmental promotion

of speech. As this Court made clear in Rust, a gov-

ernment may promote certain speech, and does not

violate the First Amendment by placing conditions on

8

its funding. Consistent with that principle, the Court

later held in National Endowment for the Arts v.

Finley, 524 U.S. 569 (1998), that the mere fact that

the government might subsidize some speakers and

not others does not violate the mghts of those who do

not receive such funding. These cases, and many

others, draw a clear distinction between government

restriction and government promotion of speech.

Anzona's law clearly promotes speech — and it does

so without reference to content or viewpoint, unlike

the case in Rust and Finley. If those who saw them

selves as competitors had no free speech claim in

those cases, all the more they have none where the

government's funding scheme is by contrast com

pletely viewpoint neutral.

Second, none of the theories invoked by petition.

ers turns the promotion of speech at issue in this case

into a burden on other speakers. Petitioners main-

tain that Davis v. FEC, 554 U.S. 724 (2008), compels

invalidation of the Arizona law. But Davis concerned

a different kind of law, one that imposed asymmetri-

cal campaign contribution limits on candidates. The

result of this disparate treatment was that opponents

of self-financed candidates could raise three times

the money of their opponents from individual donors;

it was this "discriminatory" feature of the law that

made it an impermissible "penalty" on speech. Ari-

zona's law does ne such thing. It finances, rather

than hmits, campaign speech, and it thus promotes,

rather than burdens, First Amendment values.

Petitioners, relying on this Court's decisions in

Pacific Gas & Electric Co. v. Publie Utilities Commis-

ston, 475 US. 1 (1986), and Miami Herald

Publishing Co. v. Tornillo, 418 U.S. 241 (1974), con-

tend that Arizona impermissibly burdens their

speech by forcing them to subsidize speech by their

competitors. But these precedents are entirely inap-

posite. Petitioners are not, as were PG&E and the

Miami Herald, forced to subsidize unwanted mes-

sages by lending their own facilities to transmit

messages offensive to them. Nor is there the slightest

risk — as there was in those cases — that an audience

might attmbute opposing points of view to the sup-

posedly burdened speaker.

Petitioners argue that Arizona's law "chills" their

speech because candidates will self-censor to avoid

triggering funding of their opponents. But this

Court's "chilling" cases have traditionally been con-

cerned that the threat of government regulation

would suppress particular points of view ~ not that a

speaker should be shielded from speech. Here, the

"risk" from speaking is more speech — not censorship.

Just as there is no “heckler's veto" of the speech of

another, so too there should be no "speaker's veto" of

the speech of another.

Because the Arizona law permissibly expands

speech and thereby furthers First Amendment values,

Petitioners’ request that this Court invalidate the

law is unavailing.

ARGUMENT

lI. Arizona's Law Expands Free Speech.

Arizona's matching funds provision is not a re-

striction on speech. It is a permissible funding

program that promotes speech. This Court has long

10

recognized the distinction between government sub-

sidies of speech and government restrictions on

speech. See Finley, 524 U.S. 569; Rust, 500 U.S. 173;

Regan v. Taxation with Representation of Wash., 461

U.S. 540 (1983); see also The Supreme Court, 2007

Term—Leading Cases: Freedom of Speech and Ex-

pression—Campaign Finance Regulation: Davis v.

FEC, 122 Harv. L. Rev. 375, 383-84 (2008) (discuss-

ing Supreme Court cases upholding’ various

government promotions of speech).

Public financing of political campaigns has long

been upheld as an appropriate measure to promote

public discourse. In Buckley, the Court upheld public

financing of presidential campaigns. In doing so, the

Court found that the federal public financing system

for voluntary participants 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,

goals vital to self-governing people." 424 U.S. at 92-

93. This objective serves the very purpose of the

First Amendment — to secure the "widest possible

dissemination of information from diverse and an-

tagonistic sources." /d. at 49 (internal quotation

marks and citations omitted).

Arizona's public financing and matching-funds

provisions further precisely this goal. By providing a

voluntary public financing system for candidates that

is viable, the matching fund program aims to in-

crease the speech in Arizona's public discourse,

enriching the marketplace of ideas.

11

Petitioners' argument that reducing speech is

constitutionally compelled must be met with appro-

priate skepticism. Examples of litigants arguing that

speech should be reduced for an asserted laudable

purpose are legion — and usually unsuccessful. For

instance, in American Booksellers, the Seventh Cir-

cuit and this Court considered an Indianapolis

ordinance drafted by Professor Catharine MacKinnon

which prohibited "pornography" degrading women,

even though the proscribed content did not qualify as

obscenity. 771 F.2d at 329-30. The ordinance's de-

fenders argued that its anti-discrimination and anti-

subjugation goals justified the ban on otherwise per-

missible speech. Judge Easterbrook's unanimous

opinion rejected the proffered justification for reduc-

ing speech, and this Court affirmed. Although that

case involved direct viewpoint discrimination, the

core principle is applicable: arguments premised on

the desirability of reducing speech, as in petitioners'

arguments in this case and unlike the holding in

Citizens United, are inherently suspect.

This Court repeatedly has sustained governmen-

tal subsidies for speech in other contexts. Because

the government is not required to fund all constitu-

tional activities, it has the freedom to fund only

certain constitutionally protected speech while de-

clining to fund other protected speech. As this Court

recognized in Regan, a "legislature's decision not to

subsidize the exercise of a fundamental right does

not infringe the right." 461 U.S. at 549 (upholding a

law forbidding nonprofits that engage in lobbying

from receiving tax-deductible contributions because

government has no obligation to subsidize all pro-

tected speech); see also, e.g., Buckley, 424 U.S. 1

12

(upholding pubhe financing of presidential ecandi-

dates who opt in to a pubhe finance program as an

appropriate government promotion of speech). Con-

sistent with these principles. the Court held in Aus?

that “[thhe Government can, without violating the

Constitution, selectively fund a program to encourage

certain activities it beheves to be in the publhe inter-

est." 500 US. at 193. There. Congress conditioned

federal funding on the recipient's agreement not to

encourage, advocate, or promote abortion. The Court

upheld the restriction, declaring that "when the Gev-

ernment appropriates pubhe funds to estabhsh a

program it is entitied to define the limits of that pro-

gram.” Jd. at 194°

In similar fashion, the Court has held that. in se-

lecting how to award funding of art projects. the

government can pernussibly consider “general stan-

dards of decency." Finley, 524 US. at S87. The mere

fact that the government night provide funding tor

some art projects, and not others. did rot viclate the

rights of artists whose projects Were not deemed wor-

thy of funding.

Numerous other cases stand for the same propo-

sition - that the government's selective promotion of

a certain activity does not inherently constitute a

penalty on other activities not similarly promoted.

See, e.g.. Harris v. McRae. 448 U.S. 297, 317 n.19

— ae

Indeed. the Amzona law in this case impheates far fewer

First Amendment concerns than the provision upheld in Ausy,

which conditioned federal funding on the recipient's expressed

Miewpoint regarding abortion. Here. the Amzona law is com

pletely viewpoint neutral. It does not subsidize political speech

> a -_ 3 . ? ‘ . > ~ “+ a, :

based on approval or disapproval of the views OVD re ssod

13

(i980) (government medical aid programs need not

subsidize abortions because "|a) refusal to fund pro-

tected activity, without more. cannot be equated with

the imposition of a ‘penalty’ on that activitw"); Maher

vt. Roe, 482 ULS. 464. 475 (1977) (There ts a basic dit-

ference between direct) state imterference with a

protected activity and state encouragement of an al-

ternative activity consonant with legislative pohev."),

Norwood v. Harrison, 413 U.S. 4535. 462 (1973) (the

government need not fund prmvate schooling, even if

wo funds public schooling): see also Eugene Volokh,

Freedom of Expressive Association and Government

Subsidies. 58 Stan. L. Rev. 1919. 1924 (2008) (The

government need not subsidize the exercise of consti:

tutional rights. even when it) subsidizes other

analogous behavier.”). To hold otherwise would effec-

tively prohibit the government from promoting anv

speech unless 1 promotes all speech. an entirely un.

tenable position. The national marketplace of ideas

Is SO Vast, and embraces so many varied forms of ex-

pressive activity. that all) government. subsidies

necessarily must be lhmited to something less than

ail speech.

Anzona's law talls comfortably within this well.

established precedent supporting government efforts

The government has a long tradition of promoting cer

tain aspects of polttical speech, ranging from authorizing state

political committees to send mass mailings at a discounted rate.

so 329 USC. § 32 (e). to establishing the franking privilege

enjoyed by members of Congress since the nation’s founding

s 3 = .

See Act of Congrtess. Sep. 22. 1789. 1 Stat. 70: see alse Act of

Congress. Aug. 4. 1790. 1 Stat. 178; Act of Congress. Mar 3.

L791, DP Stat 2S See geteraldiy Matthew Eric Glassman, Cong

Research Serv... RI34274. Franking Priculege: Historical Deve!

am? ah Iotions tor Change (LOOT)

’

.rsee :

‘'s at an ha the ( peace ok

14

to enhance speech. In response to perceived wide

spread corruption in the state's political history,

Arizona voters passed the Citizen's Clean Elections

Act in 1998. The Act made it possible tor state can

didates. on a non-discriminatory basis. to finance

their campaigns with money from a pubhe fund. The

matching fund provisions, in turn, are intended to

ensure that the pubhe option is viable in practice.

and not hollow or iluserv. Under the Arizona statue,

pubhe funding is intended to be a genuine option, not

a ball-and-chain that hobbles participation in a vig:

orously contested election.

The pubhe finance option strikes at the root

cause of Quid pro quo corruption by eliminating, tor

all voluntary participants. the need to raise tunds

from private entities. It thereby also reduces the ap-

pearance of impropriety among participating

candidates. In advancing these goals, the Act simply

embraces the principle articulated by the Court in

Buckley, that pubhe financing of campaigns is a per-

missible “means to reform the electoral process.” 424

US. at 90.

Rv selecting which speakers to fund - i-e.. cand

dates who give up private funding in exchange for

participating in the public financing program — the

law enacts a legitimate prerogative of the govern.

ment to subsidize some speakers and not others. As

such, Arizona's law uses "pubhe funds to establish a

program” promoting speech and permussibiy “define(s]

the limits of that program.” Aust. 500 US. at 194.

Indeed, unhke Rust and other instances of govern.

ment speech that have been upheld against First

Amendment challenge. the program here defines its

ld

himaits without reference to viewpoint or content of

the message. Accordingly, anv olection that) Ar-

rona's pubhe financing and matching-fund provisions

are impernussible because they favor some speakers

over others must tail

ll. Arizona's Law Does Not Impermissibly

Penalize, Burden, Chill, Or Drown Out

Speech.

Petitioners advance numerous other theories in

support of their argument that this Court should in-

vahdate Arizona's longstanding law. None of their

arguments are persuasive, however, and none justi

fies this Court's rejection of the state's law

At the outset. 1 must be recognized that the in-

yurv asserted by petitioners is the provision of more

speech — speech in the public square on matters of

core public interest. Petitioners, of course. carry a

heavy burden in arguing the counterintuitive propo

siuon that more speech vielates the First

Amendment Petitioners nevertheless argue that

this Court must set aside Arizona's law for four rea

sons: (1) invahdation is compelled bv this Court's

precedent in Davis, 544 U.S. 724; (2) the law forces

petitioners to carry the speech of their opponents, (3)

the law leads to self-censorship; and (4) the law will

lead to state-supported speech drowning out other

speech. These arguments fall to meet petitioners’

formidable burden in asking this Court to throw out

a state law that increases speech.

lo

A. Davis Does Not Compel Invalidation.

Petitioners first argue that this Court's decision

in Dams compels invahdation because Arizona's pub

hie finance system is constitutionally

indistinguishable trom the provision at issue in Dacrs

(MeComish Br. 47; Arizona Free Enterprise Club's

Freedom Club PAC ("Freedom Club PAC") Br. 28)

Petitioners argue that the law's use of triggers for

matching funds renders Arzona's law constitution.

ally infirm, relying on this Court's reeent decision in

Davis, 554 US. 724. Petitioners’ rehance on Davis is

misplaced.

In Davrs, this Court struck down the so-called

“Milhonaire’s Amendment” to the Bipartisan Cam.-

paign Reform Act. which effectively trebled the

contribution limits on Congressional candidates run.

ning opposite self-financed milhonaires. In striking

down the statute as violating the free speech protec

tions of the First Amendment, this Court

distinguished the Milhonaire’'s Amendment from the

pubhe finaneing regime approved in Buckley. "|A]

candidate 2. . has two choiwes: abide by a limit on

personal expenditures or endure the burden that is

placed on that right by the activation of a scheme of

discriminatory contmbuthon limits. The choice im.

posed by [the Milhonaire’s Amendment} is not

remotely parallel to that in Buckley.” ld. at 740. In

other words, as petitioners recognize (see MeComish

Br. 48), the Milhonarre’'s Amendment was faulted for

its “discriminatory contmbution limits.” Davis, 5354

US. at 740. a feature present neither in the pubhe

financing options in Buckley nor here

la

That) distinctive feature ot the Milhonaire's

Amendment — contmbution limits is what made it

an impernnussible burden on speech Arizona's law is

different: at finances, rather than limits, campaign

speech, and it thus promotes, rather than burdens,

First Amendment values. See. eg. The Supreme

Court, 122 Harv. L. Rev. at 384 (noting the “clear

doctrinal line between the asvmmetrical restriction

scheme ain Davis and the asvmmetrieal tunding

schemes in many states") The fact that Arizona's

law finances only some candidates — 1e., those who

give up private financing = is not a cognizable “bur-

den” or “penalty” on speech anv more than was the

denial of tax-deductible status to lobbvist-nonprotits

In Regan; nor is wt meaningfully different than the

refusal to subsidize certain types of art at issue in

Finley. The law is “not aimed at the suppression of

dangerous ideas.” Regan, 461 US. at 550 Unternal

quotation marks and citation omitted), nor does it

penahee “disfavored viewpoints.” Finley, O24 US. at

--

OS i.

To be sure, of the government subsidies were

“mampulated” to have a “coercive effect.” the law

might be constitutionally suspect. See Ark. Writers

Prorect, Inc. v. Ragland. 481 US. 221, 237 (1987)

(Seaha, J. dissenting), see also Leathers vo Medlock,

9 US. 489, 447 (1991) CLD )iffterential taxation of

First Amendment speakers is constitutionally sus-

pect when it threatens to suppress the expression of

particular ideas or viewpoints.") But thatis not the

case here. Because candidates of all walks of hte and

political persuasions are permitted to participate in

Anvzona’s pubhe finance program, the law does not

impermissibly penalize speech,

Is

The fact that the amount of pubhe finanemng var-

ws according to the actual dvnamuc in the particular

race does not change the underlying constitutional

principle, or "penahze" anvbody. The only “penaliv’

is the burden of enduring more speech in the public

square, but such an injurv as not constitutionally

cognizable and surely not a vahd First Amendment

concern

Davis is readily distinguishable for another rea-

son as well The provision ato assue ain) Davis

distinguished between speakers — candidates — on

the basis of whether they self-financed or raised

monev from other sources This) discrimination

among speakers for contribution limits was net con

stitutionally vahd because there was no permissible

reason tor distinguishing between the two types of

privately financed candidates. Here, the Arizona law

is entirely agnostic on the souree of the privately

tunded speaker's funds. The Anzona law ts con

cerned only with ensuring that its pubhe finance

system as viable and that it has some flexibility to

address the "on the-ground” dynamic; it does not dis:

tinguish among speakers based on the source of their

tunds

B. The Arizona Law Does Not Force Any

Speaker To Bear Another Speaker's

Speech.

Petitioners also theorve that Arivona’s matching

funds provisions impermissibly burden their speech

by forcing them to bear speech from their competitors

(MeComush Br. 58-61, Freedom Club PAC Br. 32-35.)

But the precedents on which petitioners rely concern

1

risks not present here — specifteally, the rmsks that

their audience might attmbute opposing points of

view to them, and that they mav be forced to bear a

message with which thev disagree. In contrast, the

law here is alleged only to affect the amount of the

other speaker's speech, and petitioners’ cases there

fore do not apply

For example, petitioners argue that Arivona's law

chills speech in the same way as the law found to be

uneonstitutional in Pacific Gas & Electric Co. ATS

US. 1. In PG&E, this Court found an intringement

on a utility company's First Amendment rights when

a pubhe commission ordered the utilitv to insert a

newsletter from a third party — a group called To-

ward Utility Rate Normalhzation ("TURN") — in its

billing envelope. The Court concluded that PG&E's

nghts were infringed by "[t]he Commission's order

fore[ing} appellant to disseminate TURN's speech in

envelopes that appellant owns and that bear appel-

lant’s return address. Such foreed assomation with

potentially hostile views burdens the expression of

Views different from TURN's and risks foreing appel-

lant to speak where it would preter to remain silent.”

Id. at 18.

No such risk is present here. Petitioners seize on

the purported similarity of the triggering mechanism

for opposing speech: in PGOAME, the utility's decision

to speak mn its newsletter (riggered a corresponding

right to speak in the same newsletter by TURN,

whose interests were m opposition to the utility's:

here, raising or spending certain amounts of money

In connection with a political campaign triggers fund.

Ing of an opposing candidate. But this triggering

20

iInechanism — by itself - was not the critical defect in

the order scrutimzed in PG&E. Rather, it was the

requirement that the utihtvy present views with

which it disagreed in its own mailings making it a

“forced association with potentially hostile views.” Jd.

Anvona's matching-funds provision does not associ

ate traditional candidates with opposing speech at all

if anything, the resulting expansion of political

speech would likely expand the candidates’ opportu-

nities to elucidate their views and distinguish them

trom those of their opponents. That result is entirely

consistent with First Amendment principles: indeed,

as the Court cautioned in PG&E itself, there exists

no right to speak "free from vigorous debate.” Jd. at

1-4.

Similarly unavailing is petitioners’ reliance on

Miami Herald Co. v. Tornillo, 418 U.S. 241. In Torn-

illo, the Court considered a Florida statute that

required newspapers that attack the character of a

political candidate to afford free newspaper space for

a reply. The Court held that the law violated the

First Amendment guarantee of a free press. Its chief

concern was that the law “exacts a penalty on the ba.

sis of the content of a newspaper" — a penalty that

operates both in terms of economic cost to the news-

paper and, more importantly, as a_restraint on

“editorial control and judgment." Jd. at 256-58.

Again, Arizona's law does nothing like this; it fi

nances some candidates in response to fundraising or

expenditures by others; but it does not purport to re-

quire privately financed candidates to transmit any

message on behalf of opposing candidates. It thus

threatens neither to expend their resources nor to

21

torce them to carry a message with which they dis

A_Tee.

C. The Arizona Law Does Not Lead To

Self-Censorship.

Petitioners alternatively argue that Arizona's law

"chills" their speech because the knowledge that ex.

penditures bevond a certain point will cause funding

of their rivals causes them to avoid speaking beyond

that point — which they argue is akin to self-imposed

censorship. (McComish Br. 48-49; Freedom Club

PAC Br. 33.) Petitioners claim that this theory was

adopted by the Eighth Cireuit decision in Day v. Ho-

lahan, 34 F.3d 1356 (8th Cir. 1994), and implicitly

approved by this Court when it cited Dav in Davis.

This theory, too, is wrong. This Court has never

adopted Day, and the reasoning of the decision is

flawed.

Dav held that a matching-funds provision with

some similarities to the one at issue here impermis-

siblvy chilled) supporters from making campaign

contributions because such contributions had the ef-

fect of inereasing the funding of and raising the

expenditure limits on public financed candidates. /d.

at 1859-60. Day rehed on City of Lakewood v. Plain

Dealer Publishing Co., 486 U.S. 750 (1988), in reach-

ing its conclusion. But Lakewood was concerned

about an entirely different sort of chilling effect. In

that case, the City of Lakewood vested unfettered

discretion in its mayor to grant or deny permits to

place news racks on city sidewalks. The Court's con-

cern was that the lack of standards and transparency

in the system would cause newspapers to refrain

from engaging 1n anti-mavoral speech — out of fear

that the mayor could retaliate by denying permits in

an effectively unreviewable decision. Jd. at 760 (up-

holding facial challenge because “without standards

to bound the licensor, speakers denied a license will

have no way of proving that the decision was uncon-

stitutionally motivated, and, faced with that prospect,

they will be pressured to conform their speech to the

licensor's unreviewable preference").

Lakewooad's logic simply does not translate here.

Arizona's law threatens no governmental restraint on

speech in retaliation for speaking. If candidates or

their supporters are "chilled," it is only by the pros-

pect that their opponents may add their views to the

marketplace of ideas. As other courts have noted,

"the chilling effect alleged by [petitioners] is different

in kind because it stems not from any fear of direct

government censorship but rather from the realiza-

tion that one group's speech will enable another to

speak in response. In stark contrast to the licensing

scheme challenged in Lakewood ... matching funds

is likely to result in more, not less, speech." N.C.

Right to Life Comm'n Fund for Indep. Political Ex-

penditures v. Leake, 524 F.3d 427, 437-38 (4th Cir.

2008). In similar fashion, the First Cireuit found

that a similar "public funding system in no way lhm-

its the quantity of speech one can engage in or the

amount of money one can spend engaging in political

speech, nor does it threaten censure or penalty for

such expenditures." Daggett v. Comm'n on Govern-

mental Ethics and Election Practices, 205 F.3d 445,

464 (1st Cir. 2000). The same is true here. Because

Arizona's matching fund provisions only promotes

more speech, and in no way limits the quantum or

content of speech engaged in by traditional candi-

dates, it must be upheld.

D. The Arizona Law Does Not Lead Some

Speech To Overwhelm Other Speech.

Petitioners finally suggest that Arizona's match-

ing-funds provision — by expanding political speech —

somehow threatens to inhibit or drown out the

speech of others. (See Freedom Club PAC Br. 30-32.)

But this Court has never accepted the "drown out"

theory as a basis for restricting speech. See, e.g.,

Buckley, 424 U.S. at 48—49 ("[T]he concept that gov-

ernment may restrict the speech of some elements of

our society in order to enhance the relative voice of

others is wholly foreign to the First Amendment.").

The Court should likewise reject it now.

The Arizona law is carefully calibrated to ensure

that publicly financed candidates have a viable op-

portunity to compete. Petitioners have not remotely

established that the publicly financed candidates will

drown out privately financed candidates, nor could

they. While the First Amendment surely protects the

rights of all candidates to engage in political speech,

the protection does not extend so far as to prevent

their speech from being subject to a response. Pri-

vately financed candidates in Arizona remain free to

spend as much money on elections as they see fit.

24

CONCLUSION

For the foregoing reasons, and those stated by

Respondents, the judgment of the Court of Appeals

should be upheld.

Respectfully submitted,

CHARLES FRIED* CLIFFORD M. SLOAN

1563 Massachusetts Ave. BRADLEY A. KLEIN

Cambridge, MA 02138 GEOFFREY M. WYATT

(617) 495-4636 Cory C. BLACK

fried@law.harvard.edu SKADDEN, ARPS, SLATE,

MEAGHER & FLOM LLP

*Counsel of Record 1440 New York Avenue,

N.W.

Washington, DC 20005

(202) 371-7000

Attorneys for Amici Curiae

February 22, 2011