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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0642%3A29

## Record

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

## Text

[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—
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~
*

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0642%3A29. Public record. Not legal advice.