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

Nos. 10-238, 10-239

An The

Supreme Court of the United States

2@ a=

ARIZONA FREE ENTERPRISE CLUBS

PREEDOM CLUB PAC, et al,

; cfitiomers

KEN BENNETT, et al,

Respondents

iii caalcsilas laces =

JOHN MCCOMISEL ct al,

$). , ‘

\

KEN BENNETT, of al

_ .

Dam hs bee a? OS

ACSP’UTENIS

_ ——_—t-—

On Writs Of Certiorari To The

United States Court Of Appeals

For The Ninth Cireuit

~_—_—_—_-_—_-—_—-— @ —

BRIEF OF THE STATES OF LOWA,

CONNECTICUT, MARYLAND, NEW MEXICO

AND VERMONT AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

—— eee

Orrick OF THE Lowa PHOMAS J. MILLER

APDORNEY GENERAL Attorney General of Lowa

L305 EF. Walnut Street MAkKK E ScHANT

Des Momes, TA 50819 Sohoiter General

Vel 815) 281-5164 MPGHAN Lek GAVIN

Mark Schantze@lowa gov Assistant Attorney General

’ . | “) ~\ > .

4 Ol MSee cof Acre ae

.

. -

. of és re Neste

QA OPIS SP797CF QTRQICS

| Additional Counsel Listed On Inside Cover)

“S ADD) LAW ROE PF PRINT UNG OOo Se CTS ee

OR COLL CUE LEAT ee 4 EN.

ADDITIONAL COUNSEI

GEOKGE JPPSEN

Attorney General

State of Connecticut

DOUGLAS F GANSLES

Attorney General

State of Marvland

GARY KOORING

Attorney General

State of New Merico

WitltaM Ho Sore.

Attorneys General

State of Vermont

TABLE OF CONTENTS

Page

Interests af the Amro: States l

Summary of the Argument 3

Argument , 4

Lo Arveona’s Citizens Clean Elections Act 4

Il Amzena’s System of “Matching-Fund” Pub-

he Financing Presents No First Amend

ment Issues ....... “ys 8 AES AS

I] Were the Matehing Funds Provision to be

Considered a “Burden” on Plaintifts’ Speech,

It Does Not Violate the First Amendment 1.

A. Exacting Serutinv Apphes to the

Matehing Funds Provision of Anzona’s

Citizens Clean Elections Act as it us at

Most an Indirect Barden On Fully-

Protected Speech ........0..0..........0.66.6.. 12

Bo Arvzena’s Interest in Preventing Cor-

ruption and the Appearance of Corrup

tion as Substantially Related to the

Act's Matching Funds Provision me

Conclusion | oy

il

TABLE OF AUTHORITIES

Page

CASES

Buckley v Valeo, 424 US. 1, 96 S Ct. 612

(1976) | aaued | | passim

Caperton vo AT Massev Coal Co, Us

129 S. Ct. 2252 (2009)... 2

Citizens United v. Fed. Election Comonn,

U.S. ___, 180 S. Ct. 876 (2010)...................55.. nee

Daggett v. Commussion on Govern. Ethie and

Blec., 205 F.3d 445 Uist Cir, 2000)... ..6, 11, 19

Davis v. Fed. Election Comm'n, 554 US. 724,

128 S. Ce. F775 (BOOB)... vcvcsiccccccnsssectessseeeeee 18, 19

Dav v. Holahan, 34 F.3d 1356 (Sth Cir, 1994). Ls

Fed. Election Comm'n ov Colorado Republican

Fed. Campaign Comm , 5383 U.S. 431, rol

S. Ct. 2953 (BOOK). .....0sccccesssossenennsenanenee one

Gitlow o New York, 268 US 652, 45 8. Ct. 625

(1925). a

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

(2d Cir. 2010).......... oveuboana’ PORE E Sn 13

Kassel v. Consolidated Freighiways Corp., 490

U.S. 662, 101 S. Ct. 1908 (1GBD).......:.ccscessasssconssesseree

Lincoln Club of Orange County v. Crty of Irvine,

292 F.3d 934 (9th Cir, 2002). -cxedaheninne

MecComush vo Bennett, 611 FS3d 510 (oth Cir

BR ccsccececsectnat sexeceuscewsesioswequdelesietlesaiiaaltnnnnn

McComush v. Bennett, U.S. . 190 S&S. ot.

34GB (BD ID) «onc cnsex.csistanlceeee 8

ih

TABLE OF AUTHORITIES Continued

Page

McComish vo Bennett, US ; ion ie. <2

644 (2010).............. ; a one teee 6

McConnell vo Federal Election Comm'n, 540

Us 88 (.po0s) Ss

N.C. Right to Life Comm Fund jor Indep

*olitical Expenditures g’ Leake, 5D F 3d 427

(4th Cir. VOOS) bu Eat aa a wh Et ole 6,19

Nixon v. Shrink Mo. Gov't PAC, 528 US. 377,

120 S. Ct. 897 (2000)... 000... 13, 20

Pacific Gas & Elec. Co. ve Public Utals

Comm'n, 475 US. 1, 1086S. Cr. 908 (1986)... 12

Rosenstiel v Rodriguez, LOL F.3d 1544 (Sth Cir.

ee cuoupedveuccccccvecseces tt

Roth v. United States, 354 US. 476, 77 S.Ct

1304 (1957)............ Tle re m € 10

Whitney v California, 274 US. 357, 47 SO Ce

641(1927)..... _.8

STATUTES

EE SEE SS

ES EE

EES OE

ES EE

EE DE. LISS

Ariz. Rev. Stat. § 16-952( A) 0000000... see

TABLE OF AUTHORITIES — Continued

Page

Ariz. Rev. Stat. § 16-952\.C) 5

Ariz. Rev. Stat. § 16-952( EF)... 5

CONSTITUTIONAL PROVISIONS

U.S. Const. Amend. 1........... PR aS Passim

OTHER AUTHORITIES

American Bar Association, Report of the Com

misston on Pubhe Financing of Judicial

Campaigns (2002) ................, aca dudaedeneetenduamiaas aeenre 3

Deborah Goldberg, Brennan Center for Justice,

Public Funding of Judicial Elections: Fi

nancing Campaigns for Farr and Impartial

CE CID sntaventsescachscecescnssnies ST Sanh Oe eae een

Henry M. Hart, The Relations Between State

and Federal Law, 54 Col. L. Rev. 489 (1954)... 10

John Grisham, The Appeal (ZOOS) .............ccseesesseerseeees ys

Martin H. Redish, The Proper Role of the Prior

Restraint Doctrine in First Amendment Theory,

Fae Ci I et eis tis Rcsetandnersncrcstemeen Sane’ 7

INTERESTS OF THE AMICI STATES

Amici states confront signiticant issues of citizen

confidence in both state and national governments.

We wish to share our view that puble financing of

state elections should remain available as a tool to

restore pubhe confidence.

While specific sources of discontent vary from

state to state, at the root of the problem is a sense of

powerlessness among the citizenry, powerlessness in

the face of large governments and other ever larger

financial and business institutions. Whatever one

may think of changes proposed by the Tea Party

movement, its existence may be traced rather directly

to the frustration of ordinary people concerning the

sources of and responses to the recent financial crisis.

In Arizona, a number of well-documented cases of

corruption in government spurred its citizenry to

initiate this matching fund form of pubhe financing to

address a central source of pubhe discontent. Such

problems have not been unique to Arizona.

In lowa and other states whose judiciary tace one

form of election or another, the courts may confront a

similar lack of confidence. In states with elected

judges, campaigns heavily financed by the plaintiffs’

bar on the one hand, and the defense bar, insurance

companies and other large organizations with im-

portant business before the courts on the other, have

surely eroded public confidence in the fundamental

concept of equal justice before the law. See, e.g.,

Caperton v. A.T) Massey Coal Co., _— USS. , 129

S.Ct. 2252 (2009); John Grisham, The Appeal (2008)

lowa is among the states with a nonpartisan,

merit system of judicial selection and the justices of

the lowa Supreme Court stand for periodic retention

elections. From the 1960s until 2010, no lowa justice

had been voted off the high court. Indeed, there had

never been what one could consider a “campaign.”

In 2010, all three justices standing for retention were

ousted by a campaign with the latest versions of

negative attack ads, financed by well over one million

dollars, largely from non-lowa sources. The response

to the campaign by the orgamzed bar and other

citizens in support of the justices was clearly too little

and too late. While lowa’s judges do have the First

Amendment right to speak out in support of their

record, solicitation of funds to spend on such speech is

not only troubling as a matter of judicial ethies, it can

only further erode citizen confidence in equality

before the law.

Whether lowa will follow the lead of other states

that provide public financing in judicial elections is

unclear, but some form of it might well be considered

an appropriate means of restoring confidence. Iowa

and other states with concerns about judicial elec-

tions should retain some flexibility to generate consti-

tutional solutions to these substantial problems. See

cf. Deborah Goldberg, Brennan Center for Justice,

Public Funding of dudictal Elections: Financing

Campaigns for Fair and Impartial Courts (2002);

American Bar Association, Report of the Commission

on Public Financing of Judicial Campaigns (2002).

Beyond the problems of the current era and the

specific issue of public financing for state elections,

amici states are concerned for the larger implications

for federalism presented here. This case plainly

involves the citizens of a state addressing the basic

structure of their government. If federalism means

anything, it surely means the judgment of a state's

people about how they are to be governed ought to be

heard and considered by the courts of our nation.

¢

SUMMARY OF THE ARGUMENT

Numerous states, including Arizona, have enacted

schemes to publicly finance elections in order to

combat the threat of actual or apparent corruption in

the political process. As part of that effort, Arizona's

statute provides for matching funds triggered upon

an opponent's or a third party's independent expen-

ditures. This prevision does not implicate First

Amendment concerns. The statute does not curtail

the right of a nonparticipating candidate to solicit

contributions or make expenditures. Nor does the

statute place a ceiling on the amount of independent

expenditures allowed by or in favor of nonpartici-

pating candidates. Assuming a nonparticipating can-

didate’s First Amendment right to free speech is im-

plicated, any burden placed on the nonparticipating

candidate is highly indirect and minimal. As a result,

the Act should be analyzed under the exacting scru-

tiny standard of review. Amici agree with the Ninth

Circuit that the Act does not offend the First Amend-

ment as Anzona’s interest in combating corruption or

the appearance thereof is substantially related to its

public financing scheme.

ARGUMENT

I. Arizona's Citizens Clean Elections Act.

In the wake of numerous political scandals, the

people of Arizona adopted the Citizens Clean Elec-

tions Act in 1998 by statewide referendum. Ariz. Rev.

Stat. §§ 16-940-16-961 (2009). The Act’s stated pur-

pose is “to create a clean elections system that will

improve the integrity of Arizona state govern-

ment... .” Jd. § 16-940.

The Arizona Act, like many other similar acts,

creates a multi-tiered system of public financing. A

candidate who wishes to participate in the system

must collect a threshold number of $5 contributions

during a specified period in order to demonstrate his

or her electoral viability. Jd. § 16-946. The threshold

necessarily changes depending upon the office the

candidate is seeking. Jd. § 16-950(D). Upon reaching

the threshold, the participating candidate will receive

a lump sum grant of funds for use in the primary

campaign. Id. § 16-951. The amount of the lump sum

is again dependent on the office sought. /d.

5

Another round of funding is available to a partic-

ipating candidate if (1) his or her nonparticipating

opponent spends more in the primary than the initial

grant, or (2) the opponent’s expenditures combined

with the value of independent expenditures in opposi-

tion to his or her candidacy, or in support of his or her

nonparticipating opponent, exceed the amount of the

initial grant. Jd. §§ 16-952(A), (C). If eligible, the

participating candidate receives “matching funds” in

the amount of the opponent’s combined spending,

plus the value of independent expenditures, reduced

by six percent and reduced by the amount of “early

contributions” raised by the nonparticipating candi-

date during the preprimary fundraising period. Jd.

§ 16-952.

This process — the initial lump sum plus the

possibility for future matching funds —- is repeated

during the general election. Jd. In both the primary

and general election, however, the amount of the

matching funds is strictly capped. Jd. § 16-952(E).

“Matching funds” cannot exceed three times the

amount of the initial grant. /d. In exchange for the

initial lump sum and the possibility of future match-

ing funds, participating candidates agree to forego

the right to finance their campaign through private

contributions. Candidates who choose not to partici-

pate in the system remain free to raise unlimited

contributions from private sources, subject only to

individual limits on contributions and disclosure

requirements, which existed prior to the Act. Non-

participating candidates, therefore, are free to raise

6

contributions far exceeding those available to partici

pating candidates through matching fund contnbu-

tions.

Six past and future candidates tor political office

in Anzona, who have or plan in the future to run

privately-financed campaigns, along with two politi

cal action committees who fund such candidates, sued

to enjoin operation of the Act’s matching funds provi

sion. The plaintiffs alleged the Act violated their

rights under the First Amendment and the Equal

Protection Clause of the Fourteenth Amendment.

Although the district court made factual findings

adverse to the plaintiffs, the distmet court granted

the plaintiffs’ motion for summary judgment, issued a

declaratory judgment that the matching funds provi-

sion of the Act violates the First Amendment, and

enjoined its enforcement. The State of Arizona ap-

pealed. The Court of Appeals for the Ninth Circuit

joined the prevailing circuit view and reversed the

decision of the district court. finding no First

Amendment violation. MeComush vo. Bennett, 611 F.3d

510 (9th Cir. 2010); see also N.C. Right to Life Comm

Fund for Indep. Political Expenditures v. Leake, 524

F.3d 427 (4th Cir. 2008); Daggett vc. Comm'n on Gov-

ern. Ethtes & Elec., 205 F.3d 445, 455 (ist Cir. 2000).

This Court granted certiorari and staved enforcement

of the Act pending appeal. MeCorirsh vo Bennett, -

U.S. __. 180 S.Ct. 3408 (2010); MceComish v. Ben-

nett, ULS._. 131 S. Ct. 644 (2010).

-

ll. Arizona's System of “Matching-Fund” Pub-

lic Financing Presents No First Amend-

ment Issues.

The First Amendment precludes Congress from

making laws “abridging” the freedom of speech US

Const. amend. T. Since the Civil War, one or another

provision of the Fourteenth Amendment has re

stricted state laws in a similar manner. See, e.g...

Gitiow v. New York, 268 ULS. 652, 666, 45 S.Ct. 625,

630 (1925).

Neither the text of the First Amendment nor the

histeryv surrounding its adoption provides a compre

hensive suide to its interpretation. We do know, how-

ever, that the amendment, ike many other provisions

of the Constitution, was designed to remedy problems

or concerns presented by the colomal expenence

Forms of “pmor restraint.” such as the lheensing

regimes operating for several centumes in England,

were not to be utilized bv the United States. See

generally Martin H. Redish, The Proper Role of th.

Prior Restraint Doctrine in First Amendment Theory,

70 Va. L. Rev. 53 (1984). Persuasive evidence indi-

cates that the founders also objected to sedition laws,

which enforced by criminal punishment the notion

that the monarch was bevond criticism. In short, the

central concern was censorship of views critical

these tn positions of power. Censerial intent. then,

would seem to be a kev to the concept of “abmdging-

There is nothing in the Arizona law that serves to

suppress ary viewpoint, much less criticism of state

government) There are no criminal laws, no heensing

schemes, no authorvation of injunctive relief or other

civil remedies that might “chill” expression, and no

restmetions on the independent expenditures of pri

vate funds in the political arena. Not directly, not

indirectly. As Judge Kleinfeld so clearly stated below,

“Since this law does not limut speech, it does not

violate the First Amendment.” MoeCorust. 611 F 3d at

529 (Nleinfeld, J., concurring’

On the contrary, pubhie financing will generally

make more funds available tor speech and thus create

more speech. As dustice Scalia concludes, “Given

the premises of democracy, there is no such thing as

foo much speech.” McConnell cv. Federal Election

Common, 540 U.S. 938, 259 (2003) (Seaha, J... dissent

ing im part). Or, as the first great champion of First

Amendment rights, dustice Louis Brandeis, put

the point, “If there be time to expose through discus

sion the talsehood and fallacies, to avert the evil bw

the process of education, the remedy to be apphed

is more speech, not entorced silence.” Whitney v

California, 274 U.S. 357, 3877, 47 S.Ct. 641, 649

(1927) (Brandeis, J. concurring).

Plaintifts below sought te invoke the First

Amendment by claiming Arizona's pubhe financing

law “burdens” their exercise of protected political

speech by “pumshing them for making, recenving or

spending campaign contributions ” Amici states will

demonstrate that claim is both insubstantial and

unsubstantiated

0

Before coming to that, however, amie: would like

to share their perhaps larger concern about the use of

the term “burden” as a surrogate tor “abridge ” There

are compelling reasons to beheve the term “burden” is

rather too squishy to perform good analytic service

Since this Court's decision in Cificens United

Federal Election Comimission, U.S. . 1808. Ct

S76 (2010), many states have in good taith revised

their campaign financial laws, including provisiens

relating to disclosure. A flurry of lawsuits, many trom

the same source, have challenged these revised laws

claiming, for example. that requiring completion of

a one-page disclosure form — a 10-minute task -

imposes “PAC-like burdens.” Such challenges have

generally been rejected bw the district courts, but

they ulustrate the diMieulties in using an analytie

tool that can range from spurious to serious

; $

It perhaps bears recalling another context tn

which this Court once utihzed the “burden” concept -

bat now has largely abandened it - namely. in

dormant Commerce Clause jurisprudence. In Aasse?

v. Consolidated Freightways Corp , 450 US. 662, 671

76. LOLS Ct. 1809, 1816-19 (LOST). for example, the

Pluraht{y opinion purperted to engage ino ad hoc

balancing of incommensurates, safety and efficiency

Five justices, led by Justice Rehngurst. abandoned

that approach. Aasse/, 450 US. at OS7-7T0G, LOTS. Ct

at 1325-34 (Rehnquist. J. dissenting). There. as here,

ad hoe balancing fails to vield “yudicially manageable”

standards, principles, or rules of decision, that pro-

duce reasenable comsistency of results or helpful

10

muidance to state lawmakers. Federalism will not

thrive in such an environment. It may be useful to

recall the words of Justice Harlan,

It has often been said that one of the great.

est strengths of our federal svstem is that

we have, in the forty-eight states, forty-erz tit

experimental social laboratomes “State statu-

tory law reflects predominantly this capacity

of a lemslature to introduce novel techniques

of social control. The federal svstem has the

immense advantage of providing forty-eight

separate centers for such experimentation ”

Roth vo. United States, 354 ULS. 476, 505, 77 S.Ct

1304, 1820 (1957) Harlan, Jo. concurring in part and

dissenting i part) (quoting Henry M. Hart, Ve

Relations Betiveen State and Federal Law, 54 Colo &

Rev. 489, 493 (1954)

Piainufts’ claim that the Arizona law “punishes”

them is empty rheteme, unsupported by either logic or

evidence. There is nothing in the statute that pur

ports to regulate independent expenditures and no

basis for thinking that was the lawmakers’ — the peo

ple of Arizona -— intention. Intent would be required to

make “punish” a remotely apt verb) Plaintats’ evi

dence also talls short of demonstrating anv “unin-

tended consequence” of the law that negatively affects

independent expenditures. Indeed, what evidence was

produced tended to support the intuition that adding

public funds to some campaigns would increase the

total money available for political speech.

11

As Judge HKleinteld so perceptively noted, the

plaintiffs’ claims reduce to a concern that their elec-

tion stratemes nught need revision. MeCoriish, 611

F.3d at 528 (Rleinfeld, J., concurring). But that is not

a First Amendment problem. Jad. The First Amend-

ment protects the expression of ideas: First Amend.

ment jurisprudence is and ought to be entirely

neutral concerning which candidates win clections

Amici would also eall this Court's attention to

Judge Coflin’s well-reasoned conclusion in Daggett

Judge Coftin determined:

Moreover, the provision of matching

funds does not indirectly burden donors’

speech and associational rights. Appellants

misconstrue the meaning of the First

Amendment's) protection of their speech.

They have no myht to speak free from re

sponse - the purpose of the First Amend-

ment is “‘to secure the “widest possible

dissemination of information from diverse

and antagonistic sources.”'" ©... The public

funding system in no way limits 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 pen-

alty for such expenditures. These facts allow

us comfortably to conclude that the provision

of matching funds based on independent

expenditures does not create a burden on

speakers’ First Amendment rights.

Daggett, 205 F.3d at 464 (quoting Buckley ¢. Valeo,

424 US. 1, 49, 96 S.Ct. 612, 649 C19YTE)): see also

l2

Pacific Gas & Elec. Co. v. Pudblie Utils. Commin, 475

Us. 1, 14, 106 S. Ct. 903, 9LO (L986) (holding there

exists no right to speak “tree from vigorous debate”).

lll. Were the Matching Funds Provision to be

Considered a “Burden” on Plaintiffs’ Speech,

It Does Not Violate the First Amendment.

Assuming, arnguendo, that Arizona’s law does

tmpheate First Amendment concerns, the Court must

first determine what level of scrutiny apphes to the

Act's matching funds provision. Anneci assert that

the proper standard is “exacting” or imtermediate

serutiny

A. Exacting Scrutiny Applies to the

Matching Funds Provision of Arizona’s

Citizens Clean Elections Act as it is at

Most an Indirect Burden on Fully-

Protected Speech.

Determining which level of scrutiny apphes to a

law which imphicates the First Amendment involves a

two-step analysis, dictated by the type of speech

implicated and the degree of burden placed on that

speech. The result ts three-fold: (1) laws that place a

severe burden on fully protected speech are subject to

strict scrutiny; (2) laws that place a minimal burden

on fully protected speech are subject to intermediate

scrutiny; and (3) laws that apply to speech and asso

ciaational freedoms that are not fully protected are

subject to intermediate scrutiny regardless of the

13

level of burden. Lincoln Clud of Orange County v. City

of Irvine, 292 F.3d 934, 9388 (Mth Cir, 2002), see

also Ctlieens United, —— U.S. __, 180 8. Ct. at 914

(applying intermediate or “exacting” scrutiny to

disclaimer and disclosure provisions even though the

act infringed upon fully protected speech because

such provisions “impose no ceiling on campaign-

related activities” and “do not prevent anyone from

speaking”); Niven vo. Shrink Mo. Govt PAC, 528 U.S.

377, 386-89, 120 S.Ct. S97, 903-05 (L000), Buckley,

424 US. at 20-21, 96S. Ct. at 635-36.

Where no one’s speech is curtaaled, the standard

for constitutionality is one of “exacting” or intermed-

ate serutiny. The standard is whether the public

financing scheme burdens the political opportunity of

a candidate in a way that is unfair or unnecessary.

Green Party of Conn. v. Garfield, 616 F.3d 213, 228

(2d Cir, 2010). The substantive question in this

appeal, therefore, is whether the Act’s matching funds

provision amounts to an undue burden. Amici asserts

that even under the most robust interpretation it

does not.

First, any infringement or burden on the nen

participating candidate’s mght to free expression is

highly indirect. Contrary to Plaintiffs’ assertions, the

Act does not directly limit) or curtail a nonpar-

uicipating candidate's speech. In fact, it places no re

strictions on the nonpartucipating candidate's speech.

Nonparticipating candidates are free to raise by con-

tributions as many funds as they can and expend

Whatever funds they deem necessary throughout the

LA

course of the primary and general election. At most,

such candidates are indirectly affected — the Act pro-

vides for more funds and presumably more speech by

someone other than the nonparticipating candidate.

See Buckley, 424 U.S. at 21, 96S. Ct. at 636 (applying

intermediate scrutiny to campaign contributions in

part because “the transformation of contributions into

political debate involves speech by someone other

than the contributor”) (emphasis added).

At its root, therefore, Petitioners are claiming

that the potentia] exercise of another’s First Amenda-

ment mght chills the exercise of their own right to

free speech. See infra part Il. Such a claim is both

unprecedented and highly attenuated. See Citizens

United, US.at , 1308S. Ct. at 914 (“Disclaimer

and disclosure requirements may burden the ability

to speak, but they ‘impose no ceiling on campaign-

related activities, ... ‘and do not prevent anyone

from speaking.... The Court has subjected these

requirements to exacting serutiny, which requires a

‘substantial relauion’ between the disclosure require-

ment and a ‘sufficiently important’ government

interest.”) (nternal citations omitted).

This attenuation is illustrated in Buckley In

Buckley, the Court analyzed whether the denial of

public financing violated Equal Protection. Buckley,

424 US. at 94, 96S. Ct. at 670. The Court reasoned

that access to public financing need only serve an

important governmental interest and not unfairly or

unnecessarily burden the pohtical opportumity of any

party or candidate. Ja. at 95, 96 S.Ct. at 671. Less

15

searching scrutiny was justified as the denial of

public financing was merely a “denial of the enhanced

opportunity to communicate with the electorate” and

is not an undue burden per se — as potential candi-

dates remained free to raise money from private

sources. /d. at 95-96, 96 S.Ct. at 671 (emphasis

added). Applying that same analysis to the Petitioners’

First Amendment claim, it is evident that Petitioners’

claim does not amount to a severe burden on their

First Amendment rights. If the direct denial of access

to a public financing scheme is not a severe burden,

the indirect grant of access to another cannot consti-

tute a severe burden. In other words, granting the

opportunity for enhanced speech to your opponent

because your speech has already been enhanced is

not an undue burden.

Second, any burden on the nonparticipating can-

didate stemming from the matching funds provision

is minimal. Petitioners make no allegation that the

allocation of the initial lump sum chills their First

Amendment rights. Such an assertion is foreclosed by

Buckley. Nor have Petitioners challenged the amount

of the initial lump sum payment. Arizona remains

free to increase the amount of the initial lump sum

and could increase said amount to the current total

cap of initial plus matching funds without offending

the First Amendment. Petitioners’ argument, there-

fore, can be distilled to a challenge of the timing of

the State's public financing and not a challenge to the

financing itself. The timing of the matching funds

16

is not unduly burdensome to the nonparticipating

candidate.

Under Arizona's scheme, it is the nonparticipat-

ing candidate who is empowered, not the participat-

ing candidate. Unlike the initial lump sum grant, a

participant's access to and the timing of matching

funds is wholly beyond their control. It is the non-

participating candidate who decides whether to ex-

ceed the contribution/expenditure threshold. It is also

the nonparticipating candidate who decides when to

exceed the contribution/expenditure threshold. Pre-

sumably, nonparticipating candidates could use this

empowerment for their own benefit and to the detri-

ment of their participating opponents.

Simply because the Arizona scheme provokes a

strategic decision on the part of the nonparticipating

candidate, however, does not make the Act unduly

burdensome. If that were enough, all public financing

schemes would contravene the First Amendment

because their very existence provokes a_ strategic

decision. This Court, however, has declared that this

type of decision does not offend the First Amendment.

In Buckley the Court noted, “Just as a candidate may

voluntarily limit the size of the contributions he

chooses to accept, he may decide to forego private

fundraising and accept public funding.” Buckley, 424

U.S. at 57 n.65, 96 S. Ct. 653 n.65. Furthermore, the

plaintiffs’ claim assumes that the nonparticipating

candidate's decision to accept contributions or make

expenditures is not already a strategie decision

regardless of the existence of the matching funds

17

provision. When and how a candidate speaks during

the course of an election is always a strategy decision.

At most, the Arizona Act informs this decision, it does

not dictate it.

The record developed before the district court

substantiates this claim. Although the plaintiffs

assert that the scheme has a “chilling effect” on the

exercise of their First Amendment rights, the district

court found the opposite. The district court concluded

that it was “illogical to conclude that the Act creating

more speech is a constitutionally prohibited ‘burden’

on Plaintiffs.” The district court based this determi-

nation in large part on the Plaintiffs’ own testimony,

which failed to reveal a single instance where a

candidate or PAC had refused to accept a contribution

or expend funds. The mere fact that the Plaintiffs

were aware of the matching funds scheme is not

enough of a burden to invalidate the statute.

This Court, moreover, has already rejected the

notion that facilitating the speech of some will neces-

sarily curtail the speech of others. In Citizens United,

Justice Kennedy noted, “This [idea] is inconsistent

with any suggestion that the electorate will refuse ‘to

take part in democratic governance’ because of addi-

tional speech made by a corporation or any other

speaker.” Citizens United, __. U.S. at __., 130 S. Ct.

at 910 (internal citations omitted). Any claim of a

chilling effect without supporting evidence, there-

fore, is purely speculative. Speech is not finite. See

Daggett, 205 F.3d at 464 (noting there is “no right to

speak free from response — the purpose of the First

18

Amendment is to secure the widest possible dissemi-

nation of information from diverse and antagonistic

sources’ ).

Third, in evaluating the degree of burden impli-

cated by the Act it is important to remember what the

Act is not. It is not an outright or categorical ban on

speech based on the speaker’s identity. See Citizens

United, __ U.S. at __, 1380 S. Ct. at 876. It is nota

discriminatory scheme of campaign financing. See

Davis v. Fed. Election Comm'n, 554 U.S. 724, 128

S. Ct. 2759 (2008). It is not a direct limitation on the

nonparticipating candidate’s right to speak or make

expenditures. Buckley, 424 U.S. at 1, 96S. Ct. at 612.

As a result, the challenged Act does not create a

preferential system under which the right to speak is

taken from some so that it may be given to others.

The Act is designed to maximize potential speech.

Contrary to the district court’s view, the Ninth

Circuit correctly distinguished Davis. In Davis, this

Court invalidated the so-called Millionaires’ Amend-

ment of the Bipartisan Campaign Reform Act (BCRA),

which increased campaign contributions based on an

opponent’s expenditure of his or her personal finances.

Davis, 554 U.S. at 724, 128 S. Ct. at 2759. First, the

Millionaires’ Amendment served no government

interest. Jd. at 738, 128 S. Ct. at 2771; see also Day v.

Holahan, 34 F.3d 1356, 1361 (8th Cir. 1994) (invalidat-

ing Minnesota’s campaign financing scheme because

it served no governmental purpose). As the Court

recognized in Buckley, a candidate’s expenditure of

personal funds actually furthers, not hinders, the

19

government's interest in preventing corruption or the

appearance of corruption. Buckley, 424 U.S. at 52-53,

96 S. Ct. at 651. Attaching a statutory consequence to

“the vigorous exercise of [Davis’] right to use personal

funds to finance campaign speech,” therefore, pre-

sumably would have failed even under rational basis

review. Davis, 554 at 739, 128 S. Ct. at 2772. Unlike

Davis, it is undisputed that public financing schemes,

like the one at issue here, serve the government’s

compelling interest in preventing corruption.

Second, the statutory choice presented in Davis

was illusory. Davis had the option either (1) to curtail

his First Amendment privileges and be treated equi-

tably, or (2) to exercise his First Amendment rights

and consent to a discriminatory contribution scheme.

The choice presented by the Act at issue here is not

illusory. The Act does not ask nonparticipating candi-

dates to make Solomon’s choice — plaintiffs are not

asked to forego certain constitutional privileges in

order to exercise others. Instead, like the system at

issue in Buckley, candidates in Arizona have the right

to accept or reject public financing. Those that reject

public financing retain the right to raise and spend as

much money as they desire.

Because the Act does not place a ceiling on a non-

participating candidate’s expenditures or otherwise

amount to an undue burden, the Act is subject only to

intermediate scrutiny. See Leake, 524 F.3d at 427

(applying intermediate scrutiny to matching funds

statute); Daggett, 205 F.3d at 455 (same).

20

B. Arizona's Interest in Preventing Cor-

ruption and the Appearance of Cor-

ruption is Substantially Related to the

Act’s Matching Funds Provision.

In order to survive intermediate scrutiny there

must be a substantial relation between the Act's

matching funds provision and a sufficiently important

government interest. Amici asserts that the Ninth

Circuit correctly determined that the Act’s matching

funds provision survives intermediate seruuny.

This Court has repeatedly “recognized a ‘sufh-

ciently important’ governmental interest in ‘the

prevention of corruption and the appearance of cor-

ruption” in the political process. Citizens United,

U.S. at. 180 S.Ct. at 901 (quoting Buckley, 424

U.S. at 25. 96 S. Ct. at 638; Fed. Election Comm'n v

Colorado Republican Fed. Campaign Come.. 333

ULS. 431, 456, 121 S.Ct. 2351, 2366 (2001); Niven

528 U.S. at 387-SS, 120 S. Ct. at 905. This Court has

also recognized that public financing schemes are

substantially related to achieving this end. In Buck

lev, the Court reasoned that a candidate lacking

immense personal or family wealth would necessarily

be dependent on private contmbutions in order to

offecuvely cmenanEn his or her message to the

electorate. Buck/ev. 424 U.S. at 26, 96 S.Ct. at 63s.

“To the extent that large contributions are given to

secure a political guid pro quo from the current and

potential office holders. the integrity of our system

of representative democracy is undermined.” Jd. at

26-7, 96 S.Ct. at GSS. So. too, the appearance of

21

impropriety associated with large contributions. J

Public financing of elections negates the potential for

actual or apparent corruption by eliminating the

participating candidate's dependence on large, pri

vate contributions. J/@. at 96, 96 S. Ct. at 671 Cholding

{it cannot be gainsaid that public financing as a

means of eliminating the improper influence of large

private contmbutions furthers a significant govern-

mental interest”).

As a result, states have a substantial interest, if

not a compelling one, in enticing candidates to partic-

ipate in public financing. See Rosenstre] vo Rodrigues.

101 F.3d 1544, 1553 (Sth Cir. 1996). The Act achieves

this end while maintaining fiscal prudence bv balane-

ing the need to provide incentives for participation

with the need to make the svstem affordable. If An-

zona limited its public financing scheme to an initial

lump sum payment, the Act could potentially overly

finance some participating candidates making the

scheme less financially-viable. Without a tie to the

expenditures in a given race, moreover, the state could

potentially underfund participating candidates thereby

undercutting the candidates’ electoral viability. The

latter result would Likely deter participation by other

candidates in the future. The existence of public

financing is of httle use unless it is affordable and the

state makes participation reasonably attractive

Because Arizona has a compelling interest in

eliminating corruption and the appearance of corrup-

tion, which is furthered by its public financing

*>*)

scheme and matching tunds provision, the Act does

not offend the First Amendment

ee

CONCLUSION

he Court should affirm the decision below

Respectfully submitted,

THomas Jd. MILLer

Attorney General of lowa

MakkK FE. ScHANT?*

Sohciter Genera!

MEGHAN LE® GAVIN

Assistant Attorney General

*Coxu nse] of Record

> . ° >

sestecunt tras A sossces —

( Ole eSOe i? A eau states