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

[Serene ea TS —

JAN 19 2011

No. 10-238. ving 10-239 08ct of ret cures |

In The

Supreme Court of the Tnited States

Anizona FREE ENresprise Crun’s Fasepom Cron PAC, et al

,

clitioners,

\

Ken Bennerr. in His Orriciat Caraciry

AS ARIZONA SPCRETARY OF STATE. Er Al

Re ‘o> ape set ee ee

\e Nee cad ia

Houn MeCosusn. er at

Petiliowrs.

-

Ken Besnnerr. in His Orrician Capacity

AS ARIZONA SECRETARY OF STATE. ET AL.

Resp .* J.-erfe

VN OM eae TIS

‘

On Writ of Certzonan to the United States

Court of Appeals for the Ninth Circiat

BRIEF OF JUSTICE AND FREEDOM

FUND AS AMICUS CURIAE

SUPPORTING PETITIONERS

Drnonan ed Dewanr danes L. Himses

620 EF. Sagispon Drive Counsel of Record

Swansboro, NC YS5SS4 505 S. Viewa Rea Dave

(LOIS V6 4554 Surre 2OS

debcpalaweearthhink net Ananeim Hiuis, CA 22807

(714) 2S83-SSS0O

hirsen@Cwarthiink net

January 19, 2011 Counsel for Amicus Curiae

ee — - eee ee! —

Rover Gallagher - Ciera, OH Washiygien, OC RW SW No)

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TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTEREST OF AMICUS

INTRODUCTION AND SUMMARY OF THE

ARGUMENT

ARGUMENT

3

II.

IL.

PUBLIC FUNDING SCHEMES ARE

PATENTLY UNCONSTITUTIONAL AS

APPLIED TO INDEPENDENT GROUPS

THE STATUTE BURDENS THE

ASSOCIATION RIGHTS OF

INDEPENDENT ADVOCACY GROUPS

THIS CONTENT-BASED STATUTE Is

FATALLY OVERBROAD BECAUSE IT

ENCOMPASSES INDEPENDENT

EXPENDITURES THAT POSE NO

THREAT OF CORRUPTION,

A. The Statute Is Content-Based Because It

Burdens Only One Side Of The Political

Debate. .

Bo Independent) Expenditures Pose No

Threat OF Corruption

C. Extending The Matehing Funds Trigger

To Independent Expenditures Renders

The Statute Fatally Overbroad

i

11

1]

13

n

IV THE STATUTE ATTEMPTS TO LEVEL

THE ELECTORAL PLAYING FIELD. .

Vo THE STATUTE THREATENS ‘PO CHILE,

GENUINE ISSUE ADVOCACY ONE OF

THE MAJOR PURPOSES OF MANY

INDEPENDENT GROUPS.

VIETTHE STATUTE COMPELS

INDEPENDENT GROUPS TO

FACILITATE THE SPEECH OF

OPPONENTS AS A CONDITION OF

MAKING INDEPENDENT POLITICAL

EXPENDITURES. ......:000.eeue

A The Matching Funds Trigger Is Not

Merely A Subsidy To Amplify The Voices

Of Pohtical Opponents Or Express ‘The

Government's Perspective—But A

Penalty On The Exereise Of Core First

Amendment Rights

B. The Indirect Nature Of The Burden Does

Not Fase The Statute’s Constitutionsl

Deficiencies. .

C. Independent Groups Have The Right To

Be Free From Government Restrictions

That Abridge Their Own Rights In Order

To “Enhance The Relative Voice” Of

Opponents. .

Dy Unlike Participating Candidates,

Independent Groups Have Not

Voluntarily Agreed To Restrictions On

*y*)

PO

30

31

Hi

Their Rights In Order To Receive A

Government Benefit. 00000000000... 32

CONCLUSION ...... + PB ee aaa 33

iv

TABLE OF AUTHORITIES

‘

Case

Ashcroft v. Am. Civd Liberties Union,

535 US. 564 (2002) .. 2. ... Saleen etnean 12

/

Ass'n of Am. Physicians & Surgs. v. Brewer,

363 F. Supp. 2d 1197 (D. Ariz. 2005) 2.02... 31

Austin v. Mich. Chamber of Commerce,

494 U.S. 652 (1990) —..... .... 8,9, 20, 21, 25

Buckley v. Valeo,

Goo we. SER T) occ cass we

Cal. Med. Ass'n v. FEC,

LE i a 15

Canyon Ferry Rd. Baptist Church of FE. Helena, Ine.

v. Unsworth,

556 F.3d 1021 (9th Cir. 2009) ............ oe

Citizens Against Rent Control / Coal. for Farr Hous

v. City of Berkeley, Cal.

454 U.S. 290 198)... .. PNA eka 6,138

Citizens United v. FEC,

130 S. Ct. 876 (2010) ................. passim

Daggett vo Comm'n on Governmental Ethics &

Election Practices,

205 F.8d 445 (ist Cir. 2000) 22...) 10,11, 21, 31

Davis v. FEC,

Fae Ge. SEG cnc ei ewes nies passim

Day v. Holahan,

34 F.3d 1356 (8th Cir. 1994) . 5, 7, 12, 28, 29, 30

Elrod v. Burns,

once oF aes th ees 7

FEC v. Beaumont,

a Ae et Pa a ge 8

FEC v. Colo. Republican Fed. Campaign Comm.,

Se Ste ED on ha bak cke eb eseaca cs 15

FEC v. Mass. Citizens for Life,

Gre ee PD 568 Sods ow caasens passim

FEC v. Natl Conservative PAC.,

og Re perce ea oer passim

FEC v. Wis. Right to Life,

ie ree 22, 23, 24, 25

First Natl Bank of Boston v. Bellotti,

Ce Gr POND 5 os Ske beeen cas passim

Gable v. Patton,

og ge 1 le RE ee oR oe 3

Green Party of Conn. v. Garfield,

616 F.3d 213 (2d Cir. 2010) ......... 15, 21, 29

Grosjean v. Am. Press Co.,

IED sc ik 0 owes bas ele Ve eu 22

Laird v. Tatum,

Pe I? ect Se 30

V1

Lemon v. Kurtzman,

SNES BRP Bs Papelera tears eng 4

McConnell v. FEC,

540 U.S. 93 (2003) ............ 8, 9, 23, 24, 25

Members of City Council of L.A. v. Taxpayers for

Vincent,

I, I es og SNS gies ek gi ee 18

Miami Herald Publ’g Co. v. Tornillo,

EOE Vokes aasesce thee euen 28

Mills v. Alabama,

a Ie eT BA 28

Monitor Patriot Co. v. Roy,

I a gir aa hia aaa ang l

NAACP v. Alabama,

ee ee oe 6,7.8

N.C. Right to Life Comm. Fund for Indep. Political

Expenditures v. Leake,

524 F.3d 427 (4th Cir. 2008) ........... 30, 33

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

525 F.3d 274 (4th Cir. 2008) .... 3.6, 13,17, 24

Orloff v. Willoughby,

EE eS hae hans bn eee wR 4

Pac. Gas & Elec. Co. v. Pub. Util. Comm'n of Cal.,

no 2G. SG eis se wa eas WE passim

Vil

Police Dep't of Chi. v. Mosley,

ee EE tS bv 6 ove sae ee pene 10

R.A. V. v. St. Paul,

a aa ee blew een 12

Regan v. Taxation With Representation of Wash.,

— 8 ge ORT eee re ee 12, 27

Rosenberger v. Rector & Visitors of Univ. of Va.,

en IE oc vos. ccbesuves seen ces 27

Rosenstiel v. Rodriguez,

101 F.3d 1544 (8th Cir. 1996) cert denied, 520

of § +, ere ae 32

Rust v. Sullivan,

RS EER Aes eng a GEAR eS 27

Rutan v. Republican Party,

I oes Geo Ge wo aoe 7, 30

Scott v. Roberts,

612 F.3d 1279 (1lith Cir. 2010) ....... 5, 15, 21

Shelton v. Tucker,

EI, SI 8 Soin nts he ae 7

Spetiser v. Randall,

EE ee ee Say goa San 28

Thomas v. Collins,

TOR it ty eae eke epee 24

l/nited States v. Auto. Workers,

I I ober ore) de se ear Te et 5

Vill

United States v. Playboy Entm’t Grp., Inc.,

fk ef, eer errr rr eee 12, 30

United States v. Stevens,

og ee Be Peer ee 12,17

Vote Choice, Inc. v. DiStefano,

4 P26 26 (ist Cir. 1903) .. 1... ec c cece 3

Wash. State Grange v. Wash. State Republican

Party,

Ee Rr rrr crete en ie 17

Williams v. Rhodes,

Ne ee ry 2,11

Wooley v. Maynard,

SS NOE ac okt xe een cn ce ee 32

Constitutional Provisions

ae SI SS eat ecu ek ces passim

Statutes

Ariz. Rev. Stat. § 16-901(14) .............. 18, 22

Ariz. Rev. Stat. § 16-901(19) ................. 23

Ariz. Rev. Stat. § 16-952 ........... 11, 12, 17, 18

Other Authorities

120 Cong. Rec. S8202 (1974) (statement of Sen.

I aga al cS eb aia ee Rite ae eas 4

ix

Esenberg, Richard M., Article: The Lonely Death of

Public Campaign Financing, 33 Harv. J.L. &

Pub. Pol’y 283 (2010) ................. passim

Fisch, Jill E., Frankenstein’s Monster Hits the

Campaign Trail: An Approach to Regulation of

Corporate Political Expenditures, 32 Wm. &

Mary L. Rev. 587(1991) .................. 20

Gedge, Samuel, Recent Development: “Wholly

Foreign to the First Amendment”: The Demise of

Campaign Finance’s Equalizing Rationale in

Davis v. Federal Election Commission, 128 S.

Ct. 2759 (2008), 32 Harv. J.L. & Pub. Pol’y 1197

accra eer ey yee eee a ee Sees 19, 20

Strauss, David A., Corruption, Equality, and

Campaign Finance Reform, 94 Colum. L. Rev.

Es ksh oak See MRS VEN ORE ao ORS S 20

INTEREST OF AMICUS'

dustice and Freedom Fund. as amicus curiae,

respectfully submits that the decision of the Ninth

Cireuit Court of Appeals should be reversed

Justice and Freedom Fund ts a California non-

profit, tax-exempt corporation formed on September

24. 1998 to preserve and defend the constitutional

hberties guaranteed to American citizens, through

education and other means. dJFF's founder is James

L. Hirsen, professor of law at Trinity Law School (14

years) and Biola University (7 vears) in Southern

California and author of New York Tymes bestseller.

Tales from the Left Coast, and Hollywood Nation. Mr

Hirsen has taught law school courses on constitutional

law. Co-counsel Deborah J. Dewart is the author of

Death of a Christian Nation, released in 2010

INTRODUCTION AND

SUMMARY OF THE ARGUMENT

The First Amendment has rts “fullest and most

urgent application” to speech uttered during a politica!

campaign. Monitor Patriot Co. v. Roy, 401 ULS. 265.

272 (A971). This core political speech embraces both

issues and candidates. “Discussion of publhe issues

and debate on the qualifications of candidates are

integral to the operation of the system of government

* The parties have consentad to the filing of this brief Arucus

cure certifies that no counse! for a party authored this brief in

whole or in part and no person or entity, other than anmucus, its

members, or its counsel, has made a monetary contnbutien to its

preparation or submission

+)

-

established by our Constitution.” Buckley v. Valeo, 424

US 1,14 (1976) (“Buckley")

Independent groups are often passionate about

particular issues and werk to help elect candidates

who share their positions When the government

squelches independent expenditures, even without

Imposing a direct ceiling on what may be spent. it ts

hike leaving someone “free to drive an automobile as

far and as often as one desires on a single tank of

gasoline.” Buckley 424 US. at 19 n 18 For

independent advocacy groups as well as candidates,

Anzona’s matching funds trigger “necessarily reduces

the quantity ofexpression by restricting the number of

issues discussed, the depth of their exploration, and

the size of the audience reached.” Jd. at 19) In spite of

viewpoint neutrality, the program stifles speech “at

the core of our electoral process and of the First

Amendment treedoms.” Willrams v. Rhodes, 393 US

23, $2 (1968). The law also burdens the mght to

associite—and even issue advocacy may fall within its

clutches.

As apphed to independent assoc:ations, the

matching funds provision serves no legitimate state

interest—let alone the compelling purpose mandated

by strict scrutiny. These groups pose no threat of quid

pro que corruption—they are independent. And this

Court has found it improper for government te

equalize campaign speech and thus “level the playing

held.”

ARGUMENT

lL PUBLIC FUNDING SCHEMES ARE

PATENTLY UNCONSTITUTIONAL AS

APPLIED TO INDEPENDENT GROUPS.

Small independent groups can inadvertently fail

prey te complex campaign finance regulations. Cariven

Ferry Rd. Baptist Church of FE. Helena, Inc. v

Unsworth, 556 F.8d 1021 (eth Cir, 2009) (small chureh

in Montana had to engage in protracted htigation to

escape reguiation as political committee), NOC) Aish

to Life. Inc. v. Leake, 525 F.3d 274, 284-285 (4th Cir

ZOOS) CNCRTL vo Leake”) (wague. overly broad

“political committee” definition threatened to chill

issue advocacy), ia. at 2ZAl (stmking down hmits en

contributions to independent groups). The “matching

funds” trigger is the latest hnk ina chain of challenges

to the First Amendment rights of independent groups

Public funding programs strangle independent

speech These schemes raise grave constitutional

concerns even tor candidates--who may choose

whether to participate. Although seme courts have

upheld public funding, “such benefits could conceivably

snowball into a coercive measure upon a non.

participating candidate. See Vote Choice, Inc. v.

DiStefano, 4 F.3d 26. 38 (ist Cir. 1993) (There is a

point at which [pubhe financing) incentives stray

bevond the pale, creating disparities so profound that

they become impermissibly coercive)” Gadle vu

Patton, 142 F.3d 940, 948 (6th Cir, 1998) Unternal

quotation marks omitted)

The Buckley dissent highlighted senous deficiencies

in public campaign funding, including the long

4

standing concern that “the use of funds from the pubhe

treasury to subsidize political activity of private

individuals would produce substantial and profound

questions about the nature of our democratic society.”

Buckley, 424 US. at 247 (Burger, C.d., dissenting) It

may not be appropriate for the government “to finance

a segment of the political debate itself" Jd at 248

(Burger. C.J, dissenting). It may even be “politically

incestuous’ for government to finance and eventually

regulate the procedures by which its) own

representatives are selected) Jd. quoting Senator

Howard Baker's remarks during debate on the

lemsiation at stake in Buckley 120 Cong Ree SS202

(1974) The “inappropriateness of subsidizing. .the

actual political dialogue of the people” mav be “as basic

to our national tradition as the separation of church

and state” [Lemon v. Aurtzman, 403 US. 602, 612

(1971 or “the separation of ewihan and miltary

authority” (Orloff v. Willoughby, 345 US. S38, 93-94

(IMSS). Buckley, 424 US. at 248-249 (Bunzer, Cd.,

dissenting)

When the government funds political speech, it

“takles! the ryght to speak from some and givles] it to

others.” Citizens United vo FEC, 130 8S. Ct. S76, S99

(2010). Ifan independent group spends money during

a campaign, its voice is muffled by state funding of

oppesing voices. That financing “deprives the [group]

ot the right to use speech to strive to establish worth.

standing, and respect for [its] voice” and “deprive(s]

the pubhe of the mght and privilege to determine for

itself what speech and speakers are worthy of

consideration.” ld

The matching funds provision “imposes an

unprecedented penalty on any [association that!

robustly exercises [its] First Amendment right{s}”

Davis v. FEC, 128 S. Ct. 2789, 2771 (2008). Speech

requires money. Arivona’s law deters independent

spending—a form of protected speech Day v

Holahan, 34 F.3d 1856, 1360 (Sth Cir, 1994), Scott o

Roberts, 612 F.3d 1279, 1284 (Lith Cir. 2010) (“Seott

explains that he has a constitutional night to avoid

providing his opponents ‘with a competitive advantage

and m= turn pernutting them to counteract and

diminish [his] campayrn speech”)

When speakers spend money to persuade voters,

they “presupposle] that the people have the ultimate

influence over elected oMeials.” Citizens United, 130

S.Ct at 9100 In Citizens United, this Court affirmed

that “We The People. are sovereign” and thus it is

“vitally oimpertant that all channels of

communications be open tothem dunngevery election,

that no point of view be restrained or barred, and that

the people have access to the views of every group in

the community.” Jd at 901, eiting United States ¢

Auto. Workers, 352 US. 467, 493 (1957) (dissenting

opinion of Douglas, J, jomed by Warren, C. J), and

Black, J). Citizens United catalogued hypothetical

examples of nonprofit advocacy groups whose speech

would be restrained by the broadcast clectioneering

restraints at issue) Sierra Club (disapproving of

Congressman who favors logging), National Rifle

Association (urging vote against incumbent senator

who supports handgun ban), Amenecan Civil Liberties

Union (website unnng vote for candidate who defends

free speech) Cifizens United, 130 S. Ct. at 897

Groups hke these need breathing space to reach the

voting public with their concerns

,.

ty

U.THE STATUTE BURDENS THE

ASSOCIATION RIGHTS OF INDEPENDENT

ADVOCACY GROUPS.

Independent groups emerge when people band

together to pool their resources and amplity the ettect

of their individual voices — Association enhances

effective advocacy. Buckley, 424 US. at 15; NAACP &

Alabama, 357 US. 449, 460 (1958). It amplifies “the

voices of those of modest means” that might otherwise

be drowned oat by wealthter speakers who can aflord

expensive media. FEC v. Nat? Conservative PAC, 470

US. 480, 495 (1985), see also NCRTL v. Leake, 525

F fd at 295 Cll] ndependent expenditure political

committees offer an opportunity for ordinary citivens

to band together to speak on the issue or issues most

important to them. they allow ordinary citizens to

receive the benefits that result from economies of scale

in trying to cenvince the electorate of a pohtical

message "), Citizens Against Rent Control / Coalition

for Fair Hous. v. City of Berkeley, Cal, 454 US. 290,

294 (A981) CBy collective effort individuals can make

their views known, when, individually, their voiwes

would be faint or lost”).

Political association encompasses the right to pool

money “The mght to join) together ‘for the

advancement of behefs and ideas’...1s diluted if it does

not include the mght to pool money through

contributions, for funds are often essential fadvocacy’

is to be truly or optimally ‘effective ” Buckley, 424

US. at 65-66. Arizona’s statutory scheme muftes

speech and infringes the rights of associations because

their political expenditures will trigger pubhe funding

of candidates and views they oppose. The North

Carolina Right to Life would not wish to tngyer

i

funding for a pro-choice candidate--nor would an

abortion nghts group want to facilitate financing fora

pro-life candidate’s campaign. The matching funds

provision silences independent voices. As in Buckley,

“Itlhe Act's constraints on the ability of independent

associations..to expend resources) on political

expression ‘is sunultaneously an interference with the

freedom of [their] adherents,” Sweery vo New

Hampshire, 354 US. 2384, 250 (1987) (plurality

opimon).” Buckley, 424 US. at 22, see also Day v.

Holahan, 31 F 3d at L360 n 3

Pohtieal association is a core First Amendment

right (Rutan vo Republican Party, 497 US. 62, 69

(1990)), as this Court has recognized for decades

“There can no lenger be any doubt that freedom

to assocate with others for the common

advancement of political behets and ideas ts a

form of ‘orderly group activity’ pretected by the

First and Fourteenth Amendments. NAACP v

Button, 371 US. 418, 480, Bates ov Little Rock,

861 US. 516, 522-523 (1960), NAACP v

Alabama, 357 US. 449, 460-461. The mght to

associate with the political party of one’s choice

is an integral part of this basic constituhional

freedom.” Ausper v. Pontikes, 414 US. 51, 56-57

(1973)

Elrod vo Burns, 427 U.S. 347, 356-357 (1976)

Association ts “closely alhed to freedom of speech” and

is “a right which, lke free speech, hes at the

foundation of a free somety.” Shelton vo Tucker, 364

US. 479, 486 (1960).

_ »

S

Arizona’s interference with association rights must

be strictly serutimized. “In view of the fundamental

nature of the right to associate, governmental ‘action

which may have the effect ef curtaihng the freedom to

associate 1s subject to the closest scrutiny” NAACP v

Alabama, supra, at 460-461." Buckley, 424 US. at 25.

This 1s even true for contributions limits, which are

more easily sustained than restrictions on

expenditures. These must be “closely drawn” to serve

a“suffheiently important interest” ifthey significantly

interfere with associational rights. Davis, L288. Ct at

2772, citung MeConnell v. FEC, 540 U.S. 93 (2003). In

the sphere of contributions, individual association

members at least remain free to make their own

contributions even if the corporation cannot do so

FEC v. Beaumont, 539 US. 146, 163 n. 8 (2008). But

when expenditures are at stake, effective advocacy

mandates the ability to pool resources.

In the past, this Court restricted the ability of

corporations to participate in the political process,

“recognizting] a state interest in combating a broader

form of corruption”’—“the corrosive and distorting

effects of immense aggregations of wealth that are

accumulated with the help of the corporate form and

that have little or no correlation to the public's support

for the corporation's political ideas.” Esenberg, Richard

M., Article: The Lonely Death of Publie Campaign

Financing, 33 Harv. J.L. & Pub. Pol'y 283, 302 (2010)

(“Lonely Death”), quoting McConnell vo FEC, 540 US.

93 (quoting Austin v. Mich. Chamber of Commerce, 494

US. 652, 660 (1990)). The Court carved out a narrow

exemption for certain nonprofit organizations in FEC

v. Mass. Citizens for Life, A79 US. 238, 263-264 (1986)

(FEC vo MCFL”). MCFL successfully brought an as

apphed challenge, because it was formed solely to

9

advocate political tdeas and not to accumulate wealth,

Its resources reflected the support of its own donors

rather than economic success in the marketplace.

Lonely Death, 33 Harv. J.L. & Pub. Pol'y at 295; FEC

vu. MCFL, 479 ULS. at 260-261. But in spite of the

exemption crafted for MCFL-type corporations, this

Court in Austin upheld a Michigan statute that

prohibited the use of corporate funds for express

advocacy—even as applied to a nonprofit membership

corporation. The Chamber of Commerce, unlhke

MCFL, was not formed for strictly political purposes

and it accepted contributions from — for-profit

corporations. Lonely Death, 38 Harv. dL. & Pub. Pol'y

at 295-296.

But just months age, this Court loosened the

stranglehold on corporations, overruling Austin and

portions of AfeConnell. “First Amendment protection

extends to corporations.” Cifizens United, 1380S. Ct. at

S99. In making this decree, the Court revived its

judicious reasoning of prior vears:

Corporations and other associations, lke

individuals, contribute to the “discussion,

debate, and the dissemination of information

and ideas” that the First Amendment seeks to

foster.

Pac. Gas & Elec. Co. v. Pub. Util. Comm'n of Cal., 475

US. 1,8 1986) (PG&E), quoting First Natl Bank of

Boston v. Bellotti, 435 U.S. 765, 783 (1978) “Bellottr’).

Bellotti’s restatement of the issue is worth repeating:

We believe that the court posed the wrong

question. The Constitution often protects

interests broader than those of the party

10

seeking their vindication. The First

Amendment, in particular, serves significant

societal interests. The proper question

therefore is not whether corporations “have”

First Amendment rights and, if so, whether

they are coextensive with those of natural

persons. Instead, the question must be whether

[the statute] abridges expression that the First

Amendment was meant to protect. We hold

that it does.

Id. at 776. Ifthe speakers had been individuals rather

than corporations, “no one would |have] suggestled]

that the State could silence their proposed speech.” Jd.

No matter who the speaker is—individual or

association—the government may not dictate the

appropriate subjects or the speakers who may address

the public. Jd. at 784-785; Police Dept of Chi. v.

Mosley, 408 U.S. 92, 96 (1972). “If a legislature may

direct business corporations to ‘stick to business,’ it

also. may limit) other corporations—religious,

charitable, or civic—to their respective ‘business’ when

addressing the public.” Bellotti, 435 U.S. at 784-785.

The First Amendment forbids such censorship, which

could squelch “an informal neighborhood group that

solicits contributions and spends money on a

Presidential election” as easily as it could regulate a

wealthy, professionally managed corporation. FEC v.

Nat? Conservative PAC, 470 US. at 496.

Association, like most other comstitutional nghts,

is “not absolute.” Daggett v. Comm'n on Governmental

Ethics & Election Practices, 205 F.3d 445, 454 (st Cir.

2000) (“Daggett”). But it is short-sighted to. claim that

the association rights of independent groups are “not

burdened” merely “because their names and messages

11

are not associated—in any way indicative of

support—with the candidate they oppose.” Jd. at 465.

Although not as direct as a ceiling on expenditures or

a fine or criminal sanction, the matching funds trigger

deters vigorous advocacy—it “abridges expression that

the First Amendment was meant to protect.” Bellotti,

435 U.S. at 776. Independent groups expend funds at

their peril, knowing that every dollar spent to advocate

for their side of a campaign will result in a dollar—or

two or three—to fund the opposition.

Il. THIS CONTENT-BASED STATUTE IS

FATALLY OVERBROAD BECAUSE IT

ENCOMPASSES INDEPENDENT

EXPENDITURES THAT POSE NO

THREAT OF CORRUPTION.

Independent advocacy is “expression ‘at the core of

our electoral process.” FEC v. MCFL,479 U.S. at 251,

quoting Buckley v. Valeo, 424 U.S. 1, 39 (1976)

(quoting Williams v. Rhodes, 393 U.S. at 32); see also

FEC v. National Conservative PAC, 470 U.S. at 493.

Arizona has imposed a content-based restriction on

this core speech that captures only one side of a

pending campaign and is far too broad in scope—even

if it did serve the asserted government interest in

eliminating corruption.

A. The Statute Is Content-Based Because It

Burdens Only One Side Of The Political

Debate.

Ariz. Rev. Stat. § 16-952 singles out political

expression that supports a privately financed

candidate or opposes aé_ publicly financed

candidate—contrary to this Court’s recent edict “that

12

government has no power to restrict expression

because of its message, its ideas, its subject matter, or

its content.” United States v. Stevens, 1308S. Ct. 1577,

1584 (2010), quoting Ashcroft v. Am. Civil Liberties

Union, 535 U.S. 564, 573 (2002). Content-based

restrictions are “presumptively invalid.” United States

v. Stevens, 1308. Ct. at 1584; United States v. Playboy

Entm't Grp., Inc., 529 U.S. 803, 817 (2000); R. A. V. v.

St. Paul, 505 U.S. 377, 382 (1992). The government

must show that the law is “narrowly tailored to

promote a compelling Government interest”—even if it

can be “described as a burden rather than outright

suppression.” United States v. Playboy Entm't Grp.,

Inc., 529 U.S. at 826.

These principles are even more compelling where

core political speech is involved. As the Eighth Circuit

observed in stnking down a similar law, the statute

“singles out particular political speech...for negative

treatment that the state applies to no other variety of

speech.” Day v. Holahan, 34 F.3d at 1360-61. The Day

Court noted that “liJndependent expenditures of any

other nature, supporting the expression of any

sentiment other than advocating the defeat of one

candidate or the election of another, do not trigger the

statute’s limit-increasing and money-shifting

provisions.” Jd. at 1361. The same is true of Ariz. Rev.

Stat. § 16-952. “This kind of favoritism goes well

beyond the fundamentally content-neutral subsidies

that [this Court] sustained in Buckley and in Regan v.

Taxation With Representation of Wash., 461 U.S. 540

(1983).” PG&E, 475 US. at 14-15.

Content-based restrictions on political speech

violate the established principle that “the State cannot

advance some points of view by burdening the

13

expression of others.” PG&E, 475 U.S. at 20. See also

Buckley, 424 U.S. at 48-49; Bellotti, 435 U.S. at 785-

786. Arizona advances the campaign speech of

publicly financed candidates by burdening the

expression of privately financed candidates and the

independent groups that support them. As one of the

Petitioners observes, an independently financed ad

against a privately financed candidate will trigger

matching funds—but an ad in favor of that same

candidate will not. Opening Bricf of Petitioner

Arizona Free Enterprise Club’s Freedom Club PAC,

43. The content—opposing or favoring a particular

candidate— is the critical factor.

B. Independent Expenditures Pose No Threat

Of Corruption.

Far from generating corruption, independent

advocacy may actually help guard against it:

[Gleneral evidence of corruption hardly justifies

the specific regulation of independent

expenditure committees. In fact, some may

argue that free political speech is the best

remedy for, rather than a cause of, corruption.

Indeed, independent expenditure committees

may be the very ones to take up the lance

against corrupt public practices.

NCRTL v. Leake, 525 F.3d at 306.

This Court “held in Buckley and reaffirmed in

Citizens Against Rent Control that preventing

corruption or the appearance of corruption are the only

legitimate and compelling government interests thus

far identified for restricting campaign finances.” FEC

14

v. Natl Conservative PAC, 470 U.S. at 496-497. In

Buckley, that solitary state interest could not salvage

a ceiling on independent expenditures—which “heavily

burden{ed] First Amendment expression.” Buckley,

424 US. at 45, 48.

Buckley’s ruling applies with equal force to

independent associations. This Court confirmed “that

independent expenditures, including those made by

corporations, do not give rise to corruption or the

appearance of corruption”—rejecting dicta in a Bellotti

footnote suggesting that “a corporation’s right to speak

on issues of general public interest implies no

comparable right in the quite different context of

participation in a political campaign for election to

public office.” Citizens United v. FEC, 130 S. Ct. 876,

909 (2010), citing Bellotti, 435 U.S. at 788 n. 26.

Restricting independent expenditures does not

serve the government’s interest in halting corruption

because “an exchange of political favors for

uncoordinated expenditures remains a hypothetical

possibility and nothing more.” FEC v. Nat!

Conservative PAC, 470 U.S. at 498. The connection is

too tenuous. Since there is neither prearrangement

nor coordination with a candidate or campaign agent,

there is “substantially diminished potential for abuse”

and little danger that the expenditures will be paid “as

a quid pro quo for improper commitments from the

candidate.” Citizens United, 1308S. Ct. at 908, quoting

Buckley, 424 U.S. at 47.

This Court’s analysis of expenditures differs from

its treatment of political contributions. Citizens

United, 130 S. Ct. at 909. (“(Cjontribution

limits...unlike limits on independent expenditures,

lo

have been an accepted means to prevent guid pro que

corruption”); Buecklev, 424 US. at 47 CUnhke

contributions, such independent expenditures may

well provide little assistance te the candidate's

campainn and indeed may preve counterproductive.”),

FEC v. MCFL, 479 US. at 259-260 CWe have

consistently held that restrictions on contmbutrons

require less compelling justification than restrictions

on dependent spending.”), Cal Med Ass'n io PEC,

4938 US. 182,195 CYST) CUP he ‘speech by proxy’ that

CMA seeks to achneve through its contributions to

CALPAC {a multicandidate political committee

receiving contributions trom multiple sources] is not

the sort of political advocacy that this Court mn Buckley

found entitled to full First Amendment protection.”

The constitutionalhty of expenditure huntations

varies depending on the source and circumstances In

Davis, (us Court rejected limits ou a candidate's own

funds, “reason{ing} that rehance on personal funds

reduces the threat of corruption, and therefore [the

statute], by discouraging use of personal funds,

disserves the anticorruption interest.” Davis, 128 8.

Ct. at 27738; see also Scott v. Roberts, 612 F.3d at 1292

(aceord), Green Party of Conn. vo Garfield, 616 F.3d

21S, 245 (ld Cir. LOW) (accord) However,

expenditures of a political party, coordinated with a

candidate, are not truly independent and may be

linited even though “hmits on political expenditures

deserve closer scrutiny than restrictions on pohtical

contributions.” FEC ve. Colo. Republican Fed

Campaign Comm, 583 US. 431, 440 (2001)

But truly independent expenditures even for

express advocacy—<annot jump the constitutional

hurdle. In the case of a PAC supporting Reagan's

lo

presidential campaign, this Court struck down limuts

on independent group expenditures—even those of a

Nonprofit corporation formed primarily to intluence

elections. FEC vo Natl Conservative PAC, ATO US. at

493. “The tact that candidates and elected oMerals

may alter or reaffirm their own positions on issues in

response to political messages paid tor by the PACs

can hardly be called corruption, tor one of the essential

features of democracy is the presentation to the

electorate of varying points of view ” Jd at 49s) The

Court explained that the ermminal sanctions in

question apphed only where politteal views were

propagated usin money —“much like allowing a

speaker in.a pubhe hall to express his views while

denving him the use of an amphtving system.” Jd) at

493

A particular burden falls on independent groups

In FRC oe MCFRL, A729 US. 238, this Court sustained

as-apphed challenge to the “Spectal Newsletter” of a

non-protit group that did not accept contributions trom

business corporations, even though it tell within the

statutory definition of “express advocacy.” The Court

noted the integral relationship between candidates

and the issues independent groups typically advocate

[The] distinction between discussion of issues

and candidates and advocacy of election or

defeat of candidates may often dissolve i

practical appheation. Candidates, especially

incumbents, are intimately tred to public issues

involving legislative proposals and

governmental actions Not onty do candidates

campaign on the basis of their positions on

various issues, but campaigns themselves

generate issues of public interest

li

FEC uv MCKL. ATI US. at 249. quoting Buckley, 424

US. at 42

The Fourth Cireurt explained that “independent

expenditure political committees do not serve as

mouthpieces for political candidates” but rather “otter

an opportunity tor ordinary e:ntizens to band together

to speak on the issue or issues most important to

them” NCRTL © Leake S25 F 8d at 295) The Crreuit

Court ectted the example of a hypothetical group,

“Farmers for Fairness,” sponser an ad tor the hog

industry financed by hog producers and supphers It

that ad “was successful tn convincing voters to oust

their targeted candidates at can hardly be termed

corruptive” Jd at 294) In fact, “Lf rebust advocacy

alone [were) sufficrent to demonstrate corruption, the

term corruption would cease to have meaning” ld

C. Extending The Matching Funds Trigger To

Independent Expenditures Renders The

Statute Fatally Overbroad.

Arizona’s matching funds statute (Anz. Rev. Stat

§ 16-952) is overbroad because “a substantial number

of its appheations are unconstitutional, pudged in

relation to the statute’s plainly legitimate sweep.”

United States vo Stevens, 1380S Ct. at 1587, quoting

Wash State Grange oo Wash State Republican Party,

O52 US 442, 449, n 6 (LOOS) Unternal quotation

marks oniutted) Even af the statute were

constitutional as apphed tocandidates a questionable

assumption -its inclusion of independent expenditures

fails to serve the state's interest in) preventing

corruption—the ondy interest this Court has recognized

as legiutumate. Even if some large associations held

multimilhon dollar war chests and perhaps posed a

Is

potential for corruption, the statute as “a ftatally

overbroad response to that evil” because “its terms

[Arnie Revo Stat. § 16: 901014)] apply equally to

intormal discussion proups that sohert neyhborhood

contributions toe publiewe their views about a

particular Presidential candidate" FEC ov Nati

Conservative PAC, ATOUS at 49S) Moreover, there ts

a “veahstie danger” the statute “will syznifieantly

compromise reoosmived First Amendment protections

of parties not before the Court™ (Meribers of City

Councidlof lL Av Taapavers for Vincent, 466 US. 789,

SOL(19S4))—the many nonprofit advocacy proups that

participate i political campaign debates i order to

advance particular issues

IV. THE STATUTE ATTEMPTS TO LEVEL

THE ELECTORAL PLAYING FIELD.

Anvona law unpermissibly pestricts Che speech of

independent proups in order to equalive the vores of

the candidates -a purpose this Court has soundly

rejected. “Most such faswmmetrical publte tinancing|

systems cannot be reconciled with Dacrs’s suggestion

that measures designed te ‘counter’ the

constitutionally protected speech of one side of a

campaign are unconstitutional burdens upon that

speech” Lonely Death, 33 Harv dL & Pub. Polly at

vSo Even the title of Ariz Rev. Stat. §) Le.

852 "Equal Funding of Candidates” exposes its

heat purpose

* The purpose of the Act is transparent See Opening Brief of

Petitioner Arizona Pree Enterprise Clab’s Preedom Club PAC, 3s,

eMing JA Ss, 106, DIS-29, DAG, 240, 248, 2E3-4, SOS, 457, SO9-D4,

S40, 854 55, Opening Brief of Petiboner MeComush, 66) citing: FA

95, 106, 107, 109, 110, 218, 228-29, 236, 240, 248, 257, 263-64,

19

Buckley long age reected the equalization of

political vores as a rationale tor restrmeting

expenditures. “(The concept that government may

restrict the speech of some elements of our society im

order to enhance the relative voice of others is wholly

foreuzn tothe First Amendment ” Buckley, 4240S. at

48-49) In Davis, this Court “reasserted Buckley's long

neglected declaration that equalizing interests are

‘wholly foreign’ to the First Amendment.” Gedge,

Samuel, Recent Development: “Wholly Forcugn to the

First Amendment” The Demise of Campaurn Finance's

Fgualizing Rationale in Davis vo FEC. I2S8 S.Ct 279

(POOS), 82 Harv JL & Pub Pol'y 1197, 1209 (2009)

“Wholly Foreign”), see Davis, WSS Ct at W778 Co

Buckley, we held that ‘(the interest in equaling the

financial resources of candidates’ did not provide a

ustification foro restrreting’ candidates’ overall

campaign expenditures, particularly where

equalization ‘mught serve te handicap a candidate

who lacked substantial name reeegmition or exposure

of his views before the start of the campayrn | Buckley,

424 US, at 56-57")

Between Buckley and Dacrs, scholars and ltyants

have proposed ao variety of equahlving theories

sugyesting Ghat the anti corruption rationale is not the

only state interest that justifies campaign finance

regulations Wholly Fonuen, 32 Harm JL & Pub Pol'y

at 1197 mn 4. Beynoning in the mid- 1980s, the Court

“appeared amenable to stretching the anticorruption

rationale almost) bevend reecoymition, at times

-

SOS, 457, S09 54, S885 Respondent CCFC, Clean Fleetions

propenents, and an administratiwe law judge all openly

acknowledye that the Act was desymed te “level the playing field ”

“0

mmpheitly acknowledging an equaliing interest. in

campaign finance purisprudence ” Jd at 119s

Shortly aftler Buckley, the Bel/ott: Court expressed

alarm that a statute’s suppression of speech

“suggestled] an attempt to give one side of a debatable

pubhe question an advantage tn expressing its views

tothe people” Bellotti, 485 US at 785) This concern

“plavled] a central role in the outcome of Doors three

decades later.” Wholly Foreurn, 32 Harv JL & Pub

Pol'y at 1204.) Meanwhile, the Court straved from

Bucklevs decree an FFC ve MCFL, 479 US

J3S8——sustaming the as-apphed challenge of a nonprotit

corporation vet finding that “concern over the corrosive

Influence of concentrated corporate weal reflects the

conviction Chat itis important to protect the riteyrrity

of the marketplace of political ideas” FEC o MCF,

479 US at LO Four vears later, the concentrated

wealth rationale reached its apex i the now-overruled

Austin, a case that seems to endorse an equalizing

rationale. David A Strauss, Corruption, Equality, and

Campaign Finance Reform, 94 Colum lL. Rev 1369,

L309 nob (1994) Casserting: that the Court in Austin

“detined ‘corruption’ toa wav that made it essentially

equivalent to mequahty”), dub Re. Fisch, Frandenstein’s

Monster Hits the Campaign Trad An Approach to

Regulation of Corporate Political Expenditures, 3°

Win & Marv L Rev. S587, 628 (199) CLP he rationale

tor the Court's holding...bouls down to a determination

that chiminating corporate speech will tend to level the

plaving field. ”)

But the equalization rationale came toa screeching

halt in Dacis--and at that case lett anv doubt, Citisens

United cut through the fog, overruling Austin and

rejecting uts “antidistortion rationale as a means to

ol

prevent corporations from. obtaining ‘an untair

advantage ino the pohtical marketplace “ Cilizens

United, 130 S. Ct. at 904, erting Austin, 494 US. at

659 ‘This Court restored Buckley's proclamation that

the government has no interest “in equalizing the

relative ability of individuals and groups to influence

the outcome of elections.” Citicens United, 1830S. Ct

at M4, oting Buckley, 424 US. at 48

The Second and Fleventh Cireuits followed this

Court's precedents, acknowledpyinmy: that the state

cannot lawtully level the campayrm playing teld

Green Party of Conn oo Garfield, 616 F 3d at 245

Cil}nsetar as the excess expenditure provision is the

result of a desire ‘to level electoral opportunities, they

are, under Devis, clearly unconstitutional"), Scott o

Roberts, 612 F 3d at W938 ClThe Flornda pubhe

campainn financing levels the electoral playing field,

and that purpose is constitutionally problematic)

Several years betore Dacis, the First Circuit upheld

the Manne Clean Election Act, which provided a

roughly proportionate combination of benefits and

detmments to candidates seeking publi funding The

Court upheld the inclusion of independent

expenditures in the scheme, reasonimy: that “it the

state structured puble funding wath a bhod eve to

independent expenditures, such expenditures would be

capable of defeating the state's goal of distributing

roughly propertionate funding te publicly funded

candidates" Dagkwett, 205 F 8d at 469-470 0° But in

heht of Doors and Crlicens United, the state's goal

cannot be sustamed

The anrument that a candidate's speech may be

restricted ino order to “level electoral

opportumities’ has ommneus inpheations

because it would permit Congress to arrogate

the voters’ authority to evaluate the strengths

of candidates competing tor office

Das, WSS Ct at L773 V7T7A. This declaration

about candidates is even more germane — to

independent expenditures, which are only loosely

linked to any legitimate government interest and

certainly cannot be sustained as a means to equalize

political speech

V. THE STATUTE THREATENS TO CHILL

GENUINE ISSUE ADVOCACY--ONE OF THE

MAJOR PURPOSES OF MANY

INDEPENDENT GROUPS.

The First Amendment does not merely protect

against outright censorship, but “any action of the

government by means of which it might prevent such

free and general discussion of public matters as seems

absolutely essential to prepare the people tor an

intellazent exercise of their mghts as citivens’ 2

Cooley's Constitutional Limitations, Sth ed, p Sse”

CFrasjean vr Am Press Co, VOT US O83, 248-249

(1936). The Constitution protects the mht to discuss

pubhe ossues, and that) discussion “eannot be

suppressed simply because the issues may also be

pertinent im aneleetion Where the First Amenudrnie nt

is npheated, the tle poes to the speaker, not the

censor” FEC o Wis Rught to life, 550 US 449, 474

LOOT CREC & WRILT) WREL's ads addressed the

fhbuster of Bush administration padi! nominees)

Arnvona detines “independent expenditures” on

terms of express advocacy (Ariz Rev. Stat) § 16

MOLLY rather than issue advocacy, which “conveys

a3

information and educates " FECo WATL S5SS1US at

470) Issue ads typieally “toeus on a legislative issue,

take a position on the issue, exhort the public to adopt

that position, and urge the public to contact pubhe

offcrals wath respect tothe matter” [ad at 470) Voters

may later factor the information inte their voting

decisions da

But “[w]hat separates issue advocacy and political

advocacy is a nein the sand drawn on a windy day’

ld at 499 (Seaha, J. concurring), quoting MeConne!!

VD RRCL SAU S at Len 16) Political candidates “are

mtimately treed to public issues involving legislative

proposals” and “campaigns themselves generate issues

of public interest ” Buckley, 4240S. at 42. “[])t would

be an extraordinarily cramped view of an issue ad that

limated it to calling for advocacy without setting forth

the positron of the officeholder to whom that advocacy

is to be directed ” Lonely Death, 33 Harv IL & Pub

Poly at 8120 Lines drawn in sand are easily washed

away, and the result can be devastating for

independent groups formed primanly for issue

advocacy

Independent associations face a variety of dangers

that their speech wall be suppressed even af at

concentrates on issues rather than naming candidates

Anzonas broad definition of “political committee”

brings within ats clutches “any association or

combination of persons that is onzanied, conducted or

combined for the purpose of influencing the result of

any election” even if the group is “part of a larger

association not primarily organized . for the purpose

of influencing: the result of any election —” Ariz. Rev

Stat §$ 16-901019)) The Fourth Circuit sustained a

challenge to a similar statute, finding that it

a |

“threatenled] to regulate the ordinary political speech

that is democracy’s lifeblood ” NCRTL vo Leake, 525

Fo Sdat 284. The detective North Carolina statute was

too broad because it burdened organizations that had

only “a” major purpose of influencing elections, not

“the” major purpose /d. at 288-189 (“Permitting the

regulation of organizations as political committees

when the goal of influencing elections is merely one of

multiple ‘major purposes’ threatens the regulation of

too much ordinary political speech <u be

constitutional”) Moreover, this Court has rejected the

use of a subjective, intent-based test to ascertain a

speaker's purpose “An intent- based standard ‘blankets

with uncertainty whatever may be said, and ‘otlers no

security for free discussion " FEC o WRTL,SSLUS

at 468, citing Buckley, 424 US at 43. “It compels the

speaker to hedge and trim” Thornas vo Collins, 323

US 516, 835 (1945)

Another grave danger is) that) these broad

defimitions will engender extensive as apphed

challenges, leaving “political speakers. at sea” in the

meantime NCARTL vc Leake, S25 F Sd at 2384

Nothing ion MeConnedl, WARTL, or any First

Amendment tradition that we know of forees political

speakers to incur these sorts of protracted costs to

ascertain nothing more than the scope of the most

basic right inademocratic society the right toengage

in discussion of issues of unquestioned pubhe

importance") The danger here is not that express

advocacy will masquerade as issue advocacy, but that

core political speech will be chilled because some

regulator fears it might possibly relate to a campayrn

Id at 306. See FEC cv. WRTL, 551 US. at 479

(reyecting the idea that “an expansive definition of

‘functional equivalent’ is needed to ensure that issue

yr,

«)

advocacy does not circumvent the rule against express

advocacy, which ino turn helps) protect against

circumvention of the rule agaimst contmbutions”)

In McConnell, the majornty reasoned that there was

“httle difference between an ad that urged viewers to

‘vote against dane Doe and one that condemned Jane

Doe's record on a particular issue before exhorting

viewers to ‘call Jane Doe and tell her what vou think ”

McConnell vo FEC, 540 US.) at 193.) But WATL

sigmificantly narrowed the scope of regulable express

advocacy, finding that the restrictions at issue could

only be apphed to ads that are “susceptible of no

reasonable interpretation other than as an appeal to

vote for or against a specific candidate ” FEC

WATL, 5S US. at 469-4700 The Court affirmed a

First Amendment rmght to communicate with the

publhe about issues, even during election time andeven

if a political candidate is named. Jd. at 481-482. This

landmark dectsion seems to create a “rather large safe

harbor for independent expenditures mentioning

candidates but purperting to focus on issues.” Lonely

Death, 33 Harv JL & Pub. Pol'y at 3100 Now that

Citizens United has overruled Austin, that “sate harbor

Ishould) include not) only issue advocacy but

uncoordinated express advocacy” as well) Jd at 315

This) Court recently affirmed Buckley's

pronouncement that “the distinction between

discussion of tssues and candidates and advocacy of

election or defeat of candidates may often dissolve in

practical application” Buckley v Valeo, A424 US 1, 42

(IYTO"” Citizens United, 1808. Ct at 909. This

inherent imprecision jeopardizes the ability of

independent associations to educate and persuade the

people about public issues—-and “nto ais not the

2b

government but the people—individually as citizens

and candidates and collectively as associations and

polttical committees» -who must retain control over the

quantity and range of debate on public issues in a

political campaign.” Buckley, 424 U.S. at 57 (emphasis

added) Citizens United reversed the ban on

independent corporate expenditures-—even for what

was admittedly express advocacy (documentary film

regarding the qualifications of candidate Hillary

Clinton). Arizona’s matching funds scheme threatens

to wind back the clock —and because of the often

murky hne between candidates and issues, it may

unwittingly deter issue advocacy in spite of statutory

language that identifies “independent expenditures”

only with “express” advocacy

Vil. THESTATUTE COMPELS INDEPENDENT

GROUPS TO FACILITATE THE SPEECH

OF OPPONENTS AS A CONDITION OF

MAKING INDEPENDENT POLITICAL

“XPENDITURES.

“Laws enacted to control or suppress speech may

operate at different points im the speech process ~

Citizens United, 1380S. Ct. at 896. Arizona's statutory

scheme has a negative unpact on independent groups

at multiple points. It deters the spending of

independent associations that have not voluntanly

agreed to participate in the program— and the indirect

nature of the burden fails to cure the defect. It

imposes harsh penalties on associations that do make

expenditures by subsidizing one or more political

Opponents

27

A. The Matching Funds Trigger Is Not Merely

A Subsidy To Amplify The Voices Of

Political Opponents Or Express The

Government's Perspective—But A Penalty

On The Exercise Of Core First Amendment

Rights.

Under certain circumstances, the government may

use its Own resources to subsidize speech. Regan v.

Taxation With Representation of Wash., 461 U.S. 540.

The government can disseminate its own message,

express indirect support through selective funding, or

fund a viewpoint neutral forum for speech. Rust v.

Sullivan, 500 U.S. 173, 194 (1991); Rosenberger v.

Rector & Visttors of Univ. of Va., 515 US. 819, 833

(1995).

The language of penalty and subsidy is one way to

“characternzle] the impact of a selective subsidy or a

different set of rules on the disfavored party.” A

speaker has no absolute right to a subsidy but does

have the right to be free from government-imposed

penalties on the exercise of free speech. Lonely Death,

33 Harv. J.-L. & Pub. Pol'y at 324. Subsidization

“cannot justify interference with the speech of others.”

PG&E, 475 US. at 24 (Marshall, J., concurring); see

Buckley, 424 U.S. at 48-49, Bellottt, 435 U.S. at 790-

792. Arizona selectively subsidizes the speech of

candidates who elect to participate in its program and

apphes a different set of rules to candidates who opt

out. Those rules penalize non-participants—candidates

and independent associations.

Arizona’s program, like the “Millionaire's

Amendment” struck down in Davis, imposes an

“unprecedented penalty” on any association that

28

“robustly exercises [its] First Amendment right” to

make political expenditures. Davis, 1288S. Ct. at 2771.

Associations must “shoulder a special and potentially

significant burden” if they choose to exercise their

rights. Id. at 2772. See Day v. Holahan, 34 F.3d at

1359-1360 (concluding that a Minnesota law that

increased a candidate’s expenditure limits and

eligibility for public funds based on independent

expenditures against her candidacy burdened the

speech of those making the independent expenditures).

Arizona’s penalty parallels the unconstitutional

burdens struck down in Mills v. Alabama, 384 U.S.

214 (1966) and Miami Herald Publ’g Co. v. Tornillo,

418 U.S. 241 (1974). These two cases “held that

legislative restrictions on advocacy of the election or

defeat of political candidates are wholly at odds with

the guarantees of the First Amendment.” Buckley, 424

U.S. at 50. In Mills, a newspaper editor was arrested

for publishing an editorial—on election day-——urging

the people to vote a certain way. “It is difficult to

conceive of a more obvious and flagrant abridgment of

the constitutionally guaranteed freedom of the press.”

Mills v. Alabama, 384 U.S. at 216. In Miami Herald,

newspaper editorials triggered a right-of-reply statute.

“The statute purported to advance free discussion, but

its effect was to deter newspapers from speaking out in

the first instance: by forcing the newspaper to

disseminate opponents’ views, the statute penalized

the newspaper’s own expression.” PG&E, 475 U.S. at

10. This Court also found an unconstitutional penalty

where a tax assessor denied a veterans’ property tax

exemption to claimants who refused to execute an oath

on the exemption form. Spetser v. Randall, 357 U.S.

513, 518 (1958) (“To deny an exemption to claimants

who engage in certain forms of speech is in effect to

29

penalize them tor such speech. Its deterrent effect 1s

the same as tf the State were to fine them tor this

speech”)

The Second and Fighth Circuits tollowed this

Courts rationale mo striking down matching fund

triggers for independent expenditures. Green Party of

Conn. v. Garfield, 616 F.3d at 246 (The independent

expenditure provision clearly acts as a ‘penalty. [als

the resident spends more and more money advocating

against the candidate he opposes the state will give

more and more money to that candidate “), Day v

Holahan, 34 F.3d at 1359-62 (striking down a simular

law penalizing independent expenditures).

The distinetion between government subsidies and

penalties cannot salvage Arivona’s asymmetrical

funding scheme. Arizona has neither created a

Viewpoint neutral forum nor engaged in government

speech that it may subsidize. The subsidy to

participating candidates and the corresponding

penalty imposed on political opponents are both

“triggered. by the decision to speak.” Lonely Death, 33

Harv. JL. & Pub. Pol'y at 825. The state subsidizes

private speech only ino response to the speech of

opposing candidates and associations. “Particularly m

the context of an election, the effect and intent of such

a scheme is to dissuade constitutionally protected

speech and te do so in a way that the Davis majority

regarded with extreme skepticism ” Jd

30

B. The Indirect Nature Of The Burden Does

Not Ease The Statute’s Constitutional

Deficiencies.

Decades ot precedent econtirm that

When the purpose and desayyn of a statute is to

regulate speech by reason of tts content, special

consideration or latitude is not accorded to the

Government merely because the laws can

somehow be deserbed as a burden rather than

Outright suppression

United States &) Playvdbov Entm?t Grp. Ine. 5290S. at

Slo

The Fourth Circuit found the Fight Ciremts Day

decision flawed because “it equateld] the potential tor

self-censorship created by a matching tunds scheme

with ‘direct government censorship” NOC. Rught to

Life Comm, Fund for Indep. Political Expenditures v

Leake, 524 F 3d 427, 438 (ith Cir, 2008), citing Day v

Holahan, 34 F 3d at 1360. But the Fourth Cireuit’s

dismissive treatment of the burden departs trom this

Court's precedents. The First Amendment torecloses

government attempts to accomplish indirectly what it

is constitutionally prohibited) from commanding

directly. Rutan vu. Republican Party, 497 US at 77-78,

Laird v. Tatum, 408 U.S. 1, TI (1972

CiClonstitutional violations may arise trem. the

deterrent, or ‘chilling, effect of governmental

regulations that fall short ef a direct) prohibition

against the exercise of First Amendment rghts. Bus,

Baird vo State Bar of Arizona, 401 U.S. 1 (1971);

Kevishian v. Board of Regents, 385 US. 589 (1967),

31

Lamont vo Postmaster General, 83881 US) 301 (1965).

Basset? vo Bullitt, 377 US. 860 (1964).7)

Although Arizona’s matching funds provision does

not eliminate all opportunities for mdependent

spending, its “practical effect fis] to discourage

protected speech” and thatis “sufficient tocharacterie

Ithe law] as an intringement on First Amendment

activities " FEC o MCFL, ATI US at DAS

C. Independent Groups Have The Right To Be

Free From Government Restrictions That

Abridge Their Own Rights In Order To

“Enhance The Relative Voice” Of

Opponents.

The First Cireuit: straved off course with its

assertion that a matching funds subsidy imposes no

burden because speakers “have no meht to speak free

trom response” Dassett, 205 F.3d at 464. The same

loge emerged ina case upholding Arizona's matching

funds previston Ass'n of Am Physicians & Surgs v

Brewer, 863 F Supp 2d L197 CD Arie 2005) (nonprotit

physicians assocuition challenged the scheme because

wohad ao chithng impact on its independent

expenditures) The Court relied on Daseett, 205 F Sd

at 465. “We cannot adopt the logic of Daw, which

equates responsive speech with an impairment to the

umtial speaker.” Jd at) 1202 The Court) thus

concluded that the law was not coercive and did not

burden the association

No speaker has “the right to be free from vigerous

debate”—to be tree of responsive speech) PG&E, 475

US at i. But every speaker does have “the right to

be free from government restrictions that abridse tts

"ye

0.

own rights in order to enhance the relative voice’ of its

opponents.” ld, citing Buckley, 424 US. at 49 and n

95 (emphasis added) There may be no ryght to

TNT ee ‘ Iyye TT Otis fir nocd rpirsr fe wel {

escape the privafeidy financed private speech 0

opponents but there is ai oriytht to be tree from

government? funding of that speech. The government

has no business beconung entangled in funding one

side ofa political debate

D. Unthke Participating Candidates,

Independent Groups Have Not Voluntarily

Agreed To Restrictions On Their Rights In

Order To Reeeive A Government Benefit.

Arona violates the wellestablished principle that

“[Ia]l system which secures the right to proselytire

relynous, political, and ideological causes must also

guarantee the concomitant rysht to dechne to toster

such concepts — POGAER 475 US at 16 n 18, quoting

Wooley co Maynard, ASQ US 708, 714 (1987)

Although neither a candidate nor an association is

forved to directly sponser oppesing,s speech, the

deterrent impact of the matching: funds provision has

exactly that eflect | advancing concepts the speakers

decline to foster) The asvimmetmeal tanding program

collides with this Court’s precedents concerning

compelled speech

Buckley approved the concept that Congress “may

engage im pubhe financing of election campaigns”

because of the voluntary nature of the program. Pubhe

funds can be conditioned on a candidate's agreement

to certain monetary limitations Buckley, 424 US at

Sin 65) Although a mandatory limit on a candidate's

own expenditures violates the First Amendment, a

voluntary system does not) Rosenstiel vo Rodrigues,

101 F.8d 1544, 1549 (Sth Cir, 19896) cert denied, 520

US. 1229 (1997), citing Bucklev, 424 US. at 85.109

Independent asseciuitions are ain an) entirely

different position The Fourth Cireuit rejected

challenges to matching tunds provisions brought by

independent entities, reasoning that “[t]hev will not be

yuled, fined, or censured if they exceed the trygger

amounts The only CGirguabliv) adverse consequence

that wall occur is the distmbution of matching: tunds to

any candidates partictipatiig un the pubhe financing:

system” NOC Rushkt to Life Comm Fund for Indep

‘olitionl Expenditures ¢ Leake, S24 F 8d at AST) This

truncated rationale highbyhts the lack of outriyrht

censorship but eschews the mnveluntary nature of the

scheme for independent entities that cannot opt out of

the program These associations can only avoid

facthtating opposing speech by muting their own

vorces) The statute “lorees speakers to alter their

speech to contorm with an agenda they do not set ”

PG&E, ATAU S at 9

CONCLUSION

Arvona has created a statutory scheme that is

constitutionally suspect as applied to candidates—and

patently unconstitutional mothe way to mnpacts

independent advocacy groups As a consequences of

exercising the most baste maghts to political speech in

a democratic society, these associations are forced to

assist candidates and concepts they oppose The

state's curtailment of their ryzhts serves no legitimate

yrovernment interest) There is virtually no connection

to the anticorruption interest that justifies valid

campaign finance laws, and the interest in “leveling

the playing: feld™ aus Ulegatimate under this Court's

aA

precedents. This Court should reverse the Ninth

Circuits deetsion and reaftirm the right: of the

people unencumbered by chilling government

regulations—to evaluate the candidates and issues

Respectfully Submitted,

James lL. Hirsen

Counsel of Record

SOD S) Valla Real Drive

Suite LOS

Anaheim Hills, CA 9°S07

(7/14) VS2 SSSO

hirsen@vearthhnak net

Deborah d Dewart

OL0O KF Satuston Drive

Swansboro, NC LSos4

WVTOY 826 4554

debcpalawe@varthiink net

.

.

Con nse ~AMrmicus Curiae

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