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

Nos. 10-238 and 10-239

IN THE

Supreme Court of the United States

ARIZONA FREE ENTERPRISE CLUES

FREEDOM CLUB PAC, ef al,

Peutioners,

e

KEN BENNB#TT, ef al,

Respondenis

JOHN MCCOMISH, ef al,

euitioners,

we

KEN BENNETT, ef al,

Respondents

On Writs of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF FOR AMICI CURTAF PROFESSORS OF

CONSTITUTIONAL AND ELECTION LAW

IN SUPPORT OF RESPONDENTS

DANIEL F. KOLB

Of Counsel: Counsel of Record

RICHARD BRIFFAULT DOUGLAS K. YATTER

435 West 116th Street ANDREW DITCHPIELD

New York, NY 10027 BENEDICT J. SCHWEIGERT

DAVIS POLK & WARDWELL UL?

150 Lexington Avenue

New York, NY 10017

(212) 450-4000

damel kolbedavispolk com

Counsel for Amici Curiae

WasSOnE res PRNTDNG Cc) INC (202) T8S-OOSS - Was ncTan. 0D C 2000)

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ......................:. 1

INTEREST OF AMICI] CURIAF | l

SUMMARY OF ARGUMENT l

ARGUMENT... |. 3

THE COURT SHOULD PERMIT STATES

TO CONTINUE DEVELOPING PUBLIC

CAMPAIGN FINANCE SYSTEMS USING

SUPPLEMENTAL FUNDING TRIGGERS 3

A. States Have Recognized that

Supplemental Funding Triggers in

Public Financing Systems Serve

Important and Compelling Interests. 4

B. States and Local Governments Have

Adopted a Vanety of Supplemental

Funding Triggers as Part of Their

Efforts to Create Viable and Cost-

Effective Publhe Financing Svstems G

C. Absent Clear Evidence of

Constitutional Harm, the Court

Should Allow States Space to

Continue Using Supplemental

Funding Triggers as They Develop

Their Public Financing Systems......... 10

LD. There Is No Clear Evidence

that Supplemental Funding

Triggers Burden Speech li

TEI ck cicese ves cacvses cats senversatensencecemys 19

APPENDIX: LIST OF AMIC7] CURIAE 0000... la

i

TABLE OF AUTHORITIES

Page

Cases

Rucklev vc. Valeo.

Aa US. Lasso) : | nee 406

Burdick vo. Takushia,

604 U.S. 428 (1902) .... ea tiet 10

Rurson vo. Freeman,

504 U.S. 191 (1992) ........ reaveest a

Chanaler v. Florida,

449 US SGO CI9ST) cocwnsvn Dy

Citizens Clean Elections Commin vu. Myers,

Oe ee ne onc ssc eusdcenddncnbndevctsicessenste

Citizens United v. Federal Election Common,

h) Bee y 7) Ber Tes 5

Clingman uv. Beaver,

544 U.S. 581 (2005) ............ aioe

Crawford v. Marion County Flection Ba.,

Ee i i b. ) ee : 11

Daggett vo Commission on Governmental

Kthics & Election Practices,

205 F.3d 445 (ist Cir. 2000)............ sed tink ATER de ofr 3

Doe v Reed,

a ee ME CIID 5c ccaccnecovsecccccsvasecensiccas Oy OT

Ba

TABLE OF AUTHORITIES

Jenness v. Fortson,

408 US, 481 (1971)

Marston vo Lewats,

41OUS B79 C1973)

May vu. MeNaliy,

55 PoSd 768 (Ariz. LOOR) |

New State lee Co. v. Laebmann.

YRS ULS. BOr (193)

Oregon vo lee,

WIS Ce TILE (2009) .

Rosario v. Rockefeller.

410 US. 752 (1973)

Storer v. Brown,

ANS US. 724 C1974)

(

‘ontinued

Timmons v. Thoin Cittes Area New Party,

AZO ULS. 351 (1997)

U'nited States v. Lopes,

S14 US. 549 C1995)

Washington State Grange v. Washington State

Republican Party, 552 US 442 (2008)...

Williams v. Rhodes,

39S LLS. 2S (1968).

LQ,

11,

14

4)

i

lt

lo

iv

TABLE OF AUTHORITIES — Continued

Statutes

L89l Fla Sess. Laws Serv. 22ST (West)

L997 G4 Vt. Adv. Legis Serv. 1 (LexisNexis)

YOO! NOC. Lays. Serv. 1768 (West).

2003 NUM. Legis. Serv. 1/63 (West)

Albuquerque, NM, Charter of the

City of Albuquerque, art. NVI, § 16

Anz. Rev. Stat. Ann. § 16 940° A)

Anz. Rev Stat. Ann. § 16-952

Austin, Pex., Code of the City of Austin

2-217

Chapel Hill, NCL, Gen. Code of

Ordinances §§ 2-95...

Fla. Stat. § 106.31

Fla. Stat. § 106.355...

LA, Cal. Mun. Code § 49.7.14...

L.A., Cal., Mun. Code § @8.7.22...::cssseeee

’

l Mate

~)

t

\

TABLE OF AUTHORITIES Continued

Me Rev. Stat. tit. JIA. § 1125)

Mich Comp.) Laws § 169 269.8) |

Minn. Stat. § TOAL25 C10).

N.C. Gen. Stat. § 163-278.67..

NM Stat Ann. § 1-1I9A-14

NYC NY. Admin Code § 3. 706(3)

Neb. Rev. Stat. § Jv. 1602

New Haven, Conn . Code of Gen

Ordinances § 2-825

Oakland, Cal, Mun. Code § 3.12 220

Rol. Gen. Laws § 17-25-18...

RL. Gen. Laws § 17-25-24...

Sok. Cal, Campaign & Governmental

Conduct Code § L143...

Sacramento, Cal, City Code § 2.14 060

Wis. Stat. Ann. § 11.512...

L£

os

‘1

TABLE OF AUTHORITIES — Continued

Pare

Other Authorities

“An Act to Reform Campaign Finance.”

LD. 1823, Initiated Ball 5, 1996 117th

Lag., Sec. Reg. Sess. (Me. 1996) 3

US. Gov't Accountability Office, GAO. 10 390,

Campaign Finance Reform: Experiences of Two

States that Offered Full Pubhe Funding

for Polatical Candidates (2010) Sees

INTEREST OF AMICI CURIAE'

Amict curiae listed in the Appendix are law

professors and scholars with expertise im

constitutional and election law. Although they hold

divergent views on many issues, amicr have a

common interest in the applheation of constitutional

principles to campaign finanee regulation, Aric:

have a shared belief that) state regulation of

campaign finance can promote important public

interests in government integrity, competitive

elections, and robust debate from different

perspectives, and that, absent clear evidence of

infringement on constitutional mghts, states should

be given space to expermment with and develop such

regulations.

SUMMARY OF ARGUMENT

Public funding of campaigns serves states

compelling interests in combating corruption and the

appearance of corruption, as well as other speech-

enhancing goals that have been recogmzed by the

Court as important interests. Aryzona’s supplement-

al funding trigger is a helpful and appropriate tool

for ensuring the viability and cost-effectiveness of its

publhe funding svstem. Available data indicate that

supplemental funding triggers in Arizona and other

states provide more funding for campaign speech,

Increase electoral competition, reduce dependence on

private contributions, and amehorate the rigors of

' The parties have consented to the filing of thas brmef. No

counsel] for a party authored this bnef in whole or in part, and

no counsel or party made a monetary contmbution intended to

fund the preparation or submission of this bmef No person

other than amici cunae or their counsel made a monetary

contribution to its preparation or submission

>

fundraising, without burdening political participa-

tion bv other campaign actors. Supplemental

funding triggers play important roles im providing

appropriate levels of funding to the most competitive

vleclions, without wasting scarce state resources mm

elechions where additional public funds are not

needed. In the absence of evidence of any actual

burden on constitutional mghts, the Court should

continue to allow states and local governments to

regulate campaign finance and experiment with

innovative means to further their legitimate

governmental interests, much as it has allowed

states to experiment with a variety of other election

laws.

Amict belheve that there is no one clearly correct

method of financing elections, nor that there is one

clearly correct form of pubhe funding. Supplemental

funding triggers, however, are a significant feature

in the development of pubhe funding systems at the

state and local level. Their abihty to advance core

goals of campaign finance regulation — to amehorate

the potentially corrupting effects of campaign

contnmbutions and promote Vigorous election

competition, without curbing campaign speech —

make them worthy of close examination and possible

emulation by other states and, potentially, the

federal government. Such state and local innovation

is a Valuable source of learning in our federal system.

Amtct therefore respectfully submit that the Court

should allow Arizona and other states to continue

using supplemental funding triggers in their ongoing

efforts to umprove their campaign finance laws.

3

ARGUMENT

THE COURT SHOULD PERMIT STATES

TO CONTINUE DEVELOPING PUBLIC

CAMPAIGN FINANCE SYSTEMS USING

SUPPLEMENTAL FUNDING TRIGGERS

In November 1998, in response to a widespread

series of campaign corruption scandals, the voters of

Arizona approved an inmitiative adopting a= public

campaign funding s. stem to regulate their state's

elections. In doing so, they added Arizona to the

growing group of state and local jurisdictions, now

numbering thirty-nine, see Br. of Amicus Curiae

Center for Governmental Studies at 1-3 & n.4, which

have adopted some form of public campaign

financing.

The supplemental funding trigger in Arizona's

Citizens Clean Elections Act is part of the ongoing

effort by states to design and implement cost-

effective campaign regulations that serve their

important and compelling interests. Many states

and local governments that have implemented public

funding programs have included some form of trigger

mechanism in their systems. Some of those

measures — including Arizona's Citizens Clean

Elections Act — were adopted by voter initiative,

reflecting strong grassroots support for this reform.

See, e.g. “An Act to Reform Campaign Finance,” L.D.

1823, Initiated Bill 5, 1996 117th Leg., Sec. Reg.

Sess. (Me. 1996); Daggett v. Commission on

Governmental Ethics & Election Practices, 205 F.3d

445, 450, 458 (ist Cir. 2000). Although the design of

trigger mechanisms varies considerably from

4

jurisdiction to jurisdiction, each seeks to provide a

cost-effective means of ensuring that more funding is

available in the most competitive elections, without

wasting public funds in elections where additional

funds are not needed.

In its prior election law cases, this Court has

frequently indicated its respect for the value of state

experimentation and the importance of states having

discretion to determine which laws, in varying ways,

advance their interest in self-government. The Court

should not curtail such experimentation in an area of

core local concern absent clear evidence’ of

constitutional harm. Given the lack of any showing

that supplemental funding triggers have curtailed

speech, discriminated against particular political

views, or interfered with electoral competition, the

Court should allow Arizona and other states to

continue employing public campaign financing with

supplemental funding triggers in their election laws.

A. States Have Recognized that

Supplemental Funding Triggers in Public

Financing Systems Serve Important and

Compelling Interests

Arizona, like other jurisdictions, adopted its

system of public campaign funding for the express

purpose of combating real and apparent corruption.

See Ariz. Rev. Stat. Ann. § 16-940(A); see also, e.g.,

Neb. Rev. Stat. § 32-1602(2); 1997-64 Vt. Adv. Legis.

Serv. 1 (LexisNexis). States have found that public

funding systems also serve several important speech-

enhancing purposes, such as increasing political

discussion and debate, encouraging potential

5

candidacies, improving voter participation, and

improving access to information. See, e.g., Ariz. Rev.

Stat. Ann. § 16-940(A); Fla. Stat. § 106.31; Neb. Rev.

Stat. § 32-1602(1)-(2); R.I. Gen. Laws § 17-25-18;

1997-64 Vt. Adv. Legis. Serv. 1 (LexisNexis). As the

Court observed in Buckley v. Valeo, 424 U.S. 1 (1976)

(per curiam), in addition to reducing “the deleterious

influence of large contributions on our political

process,” public funding “facilitate[s}] communication

by candidates with the electorate” and helps “to free

candidates from the rigors of fundraising.” Id. at 91.

Public funding is a laudable “effort, not to abridge,

restrict, or censor speech, but rather to use public

money to facilitate and cnlarge public discussion and

participation in the electoral process, goals vital to a

self-governing people.” Jd. at 92-93 (concluding that

public funding therefore “furthers, not abridges,

pertinent First Amendment values”). Public funding

programs provide funds so that all candidates may

speak, “entrusting the people to judge what is true

and what is false.” Citizens United v. Federal

Election Comm'n, 130 S. Ct. 876, 907 (2010).

As explained in Respondents’ briefs, Arizona's

supplemental funding trigger serves a critical role in

ensuring that the Citizens Clean Elections Act meets

the vital goals that Arizona voters intend it to

achieve. See Br. of Resp. Clean Elections Inst., at 40-

58; Br. of State Resps., at 46-47. By providing

additional funds to a participating candidate only

after his or her opposition has exceeded certain levels

of contributions or expenditures, the supplemental

funding trigger allows Arizona to _ allocate

appropriate levels of public funds to the most

competitive races. In this way, it balances the state’s

o

need to conserve limited public resources with its

goal of enabling robust public debate and competition

in state election campaigns. See Buckley, 424 U.S. at

96-98 (upholding certain provisions in the federal

presidential pubhe financing system on the ground

that they conserve federal resources and prevent

“raid[s on] the Umited States Treasurv’) (internal

quotation marks omitted).

B. States and Local Governments Have

Adopted a Variety of Supplemental

Funding Triggers as Part of Their Efforts

to Create Viable and Cost-Effective

Public Financing Systems

Over the past twenty vears. most states and local

governments that have adopted pubhe campaign

financing have included trigger mechanisms in their

systems. Although the specific mechanisms vary

from jurisdiction to jurisdiction, each seeks to ensure

that candidates in the most competitive elections will

be adequately funded. without wasting scaree publhe

resources 1n elections where additional funds are not

needed. This makes public funding more attractive

to more candidates and promotes a core public

funding goal of reducing candidates’ dependence on

private donations that may give rise to corruption or

the appearance of corruption.

Supplemental funding triggers make additional

funds available only in those elections where high

levels of spending by other campaign participants

indicate that those elections are particularly

competitive. It would be impossible in advance to

determine which specific elections in a particular

‘

election vear will be more competitive than others.

and it would be wasteful to pump more public funds

into all elections just to ensure that more money 1s

available in those elections where it is most needed.

Triggers address this difficulty with appropriate

flexibility by allowing the level of pubhe funding, or

the mix of public and pmvate funds, to respond to

specific electoral conditions

The vanety of trigger mechanisms testifies to the

vibrancy of our federal svstem, demonstrating the

differences in political preferences, resources. or

circumstances across states and locahties as they

grapple with this common problem. A sigmificant

number of jumsdictions, hke Arizona, employ

supplemental funding triggers to provide additional

funds to candidates who participate in the public

funding system if statutory critema are met. The

events that trigger supplemental funding vary by

jurisdiction, with some looking to spending of both

non-participating candidates and opposing independ-

ent entities, and some just to spending of non

participating candidates. See, e.g. Ariz. Rev. Stat

Ann. § 16-952(A)-(B); L.A. Cal. Mun. Code

§ 49.7.22(C)-(D); New Haven, Conn., Code of Gen

Ordinances § 2-825; Fla. Stat. § 106.355; Me. Rev

Stat. tit. 21-A, § 1120 19): NM. Stat. Ann. § 1-19-14:

Albuquerque, N.M., regen _of the City of

Albuquerque, art. XVI, § 16: . Gen. Stat. § 163-

78.67; Chapel Hill, N.C, a 7 ‘ode of Ordinances

§ 2-95(a)-(b); Wis. Stat. § 11.512.

Other jurisdictions have implemented triggers

that increase or remove voluntary contribution or

expenditure limits, which imitially applv to

S

eandidates who receive public funding. uf 2 non-

partiapating opponent receives or spends funds

above a designated limit. These measures also vary

in their specifics from one jurisdiction to another.

See, eg. LA. Cal. Mun. Code § 49.7.14: Oakland,

Cal. Mun. Code § 3.12 220: Sacramento, Cal. City

Code §2.14.060; SF. Cal. Campaun§ &

Governmental Conduct Code § 1.143; Fla. Stat.

§ 106.355; Mich. Comp. Laws § 169.269(8); Minn.

Stat. § LOA.25(10); NYC. NY. Admin. Code § 3

TOB(3); R.L. Gen. Laws § 17-25-24) Austin, Tex., Code

of the City of Austin § 2-20-17

States have been experimenting with such trigger

mechanisms in public funding systems for more than

twenty vears. See. eg. Minn Stat § LOA Y2SC1O)

(1988) Cifting expenditure limits of participating

candidates); Rol. Gen. Laws § 17-25-24 (1988) (lifting

contribution and expenditure limits for participating

candidates); see also 1991 Fla. Sess. Laws Serv. 2281

(West) (amending law to allow hfting of expenditure

limits for participating candidates). The pubhe

funding program enacted by Arizona voters in 1998

Was among the first to adopt its particular form of

supplemental funding trigger. and other states have

adopted similar measures in the vears since then.

See, e.g., 2003 NOM. Lems. Serv. 1763 (West), 2002

N.C. Legs. Serv. 1768 (West) States have also

revised their approaches as they have gained

experience with their trigger mechamisms. Arizona's

law, for example, has been refined both by the state

commission responsible tor administering it, see Br.

of Resp. Clean Elections Inst., at 62 n.12 (noting

amendment of commission rules to prevent distribu-

tion of supplemental funds when candidates engage

4)

‘

in coordinated conduct), and by state courts

interpreting the law, see Crfizens Clean Elections

Comm'n oo Myers, 1 P.Sd 706, 712-15 (Ariz. 2000)

(excising portions of the law that impermissibly

expanded the authornty of the judicial branch by

involving mw om nominating candidates for, and

appointing members to, the commission), see also

May uv. MeNaliy, 55 P.Sd 768. 774 (Ariz. 2002)

(upholding surcharge funding provision of Arizona's

law against First Amendment challenge because the

act expands rather than burdens speech and the

allocation of funds is viewpoint neutral)

In these ways. states are engaged in an ongoing

effort to develop the most cost-effective means of

using pubhe campaign funding to combat corruption,

promote competition, and enhance speech in their

elections It as worth noting that, although the

presidential public funding system pioneered publi

funding m the United States. in recent: clections

fewer major candidates have chosen to partreipate im

that svstem. Presidential pubhe funding does not

use a trigger: uf one major candidate opts out and

raises more money in private funds, the other

candidates who take pubhe funding still receive the

same limited funds and remain subject to the same

spending hmit as before. This has increasingly led

the candidates who beheve they are most able to

finance their campaigns with private funds to opt

out, so that the program has begun to turn into one

that funds only the more marginal candidates. The

spread of trigger mechanisms at the state and local

levels reflects an awareness of the shorteomings of

pubhe campaign financing systems that lack a means

10

of enabling pubhely funded candidates in the most

competitive races to raise and spend more money

Amici do not believe there is one ideal trigger

mechanism or, indeed, one best campaign finance

svstem We do. however. beheve that it is very

valuable to take advantage of the genius of the

federal system bv letting = states and local

governments, in some instances acting bv grassroots

voter initiatives, implement and thereby learn from

these laws

C. Absent Clear Evidence of Constitutional

Harm, the Court Should Allow States

Space to Continue Using Supplemental

Funding Triggers as They Develop Their

Public Financing Systems

As the Court has repeatedly recognized, states

have broad power to regulate their own elections

See, Cw... Burdick Takushi, 504 ULS. 428, 433

(1992). Indeed. “as a practical matter, there must be

a substantial regulation of elections if they are to be

far and honest.” Storer ov) Broton, ALS US. 724. 730

(1974). This Court's preeedents have recogmved that

regulation of elections is an area of core local interest

and expertise, entitling states to exercise their own

judgment where there is no clear evidence of

constitutional harm.

The Court recently recognized the importance of

allowing states latitude in administering their own

elections. In Doe v. Reed, 1380S. Ct. 2811 (2010), the

Court reyected ai First Amendment challenge to

Washington State's law permitting private parties to

11

obtain the names of referendum surnatories. di at

Ys2l. The Court exphaned that. although “[pletition

Ssymning remams expressive even when at has legal

effect in the electoral process], ] that is not to sav

that the electoral content is irrelevant to the nature

of our First Amendment review We allow States

syzmificant flexibility, in implementing their own

voting svstems.” Jd. at 2818.

Numerous other cases have upheld state election

regulations and = state experimentation with now

means of achieving legitimate state purposes, cven

when those regulations have had potential

impheations for constitutional ryghts. where no clear

evidence existed that the regulations actually

burdened protected ryhts Thus, in Crawford v

Marton County Election Board, 553 U.S. 181 (2008).

the Court reeognived that a state voter identification

requirement could potentially affect the ability of

elimble voters to cast ballots, but upheld the measure

because wo had been adopted to advance the

important state imterest in preventing voter traud

and the evidence of a burden on. voting) was

inadequate to displace the state’s choice. Jd at 191,

197-203.

Suntlarly, an Washington State Grange v

Washington State Republuacan Party, 552 U.S. 442

(2OOS), the Court upheld the provision of

Washington's “top-two° primary law allowing a

candidate to list a party preference below his or her

name on the ballot, against the assertion that this

provision burdened the parties’ freedom of

assocration Jd. at 45/7. Under the “top-two” law, the

two candidates receiving the most votes ino the

}.

prmary would advance to the general election,

regardless of their party affthations. /d at 447-48

The law was a novel measure intended to broaden

participation om the process of nominating

candidates. while focusing the general election

decision on the “top two” candidates. The party-

preference oo designation was an innovative

compromise provision intended to enable a candidate

to inform voters about the candidates party

preference without imposing that candidate as the

nominee of that party absent the party's consent

The Court held that Washington could try this new

system, finding that enabling a candidate to list a

party preference advanced the states “interest in

providing voters with relevant information about the

candidates on the ballot” Jd. at 458.) By the same

token, there was no evidence that voters would be

contused into thinking that the party-preference

designation constituted a party's endorsement. Jd. at

454-55. The Court emphasized that granting such a

facal challenge, in the absence of a showing of actual

harm, “threaten[s}] to short circuit the democratic

process by preventing laws embodying the wall of the

people from being implemented ino a manner

consistent with the Constitution” Jd. at 451.

In other areas of eclection law, the Court) has

hkewise upheld regulations potentially impheating

constitutional rights, so long as they are reasonable

measures advancing legitimate state interests. ‘The

Court has recognized the interest of voters in being

able to put forward and have a range of choices

among candidates by striking down laws that require

new parties to obtain so many signatures to get on

the ballot that it as virtually impossible for any party

13

Other than the Democrats and Republicans to do so

See Williams vu. Rhodes, 393 US. 28, 32-34 (1968)

At the same time, the Court has permitted states to

adopt) more modest restrictions that advance

legitimate state interests in ballot integrity, political

stability, and focusing electoral choice on more

serious candidates. See Timmons vo Twin Cities Area

New Party, 520 US. 351, 353-54, 369-70) (1997)

(upholding Minnesota law that prohibited a

candidate from appearing on the ballot for two

different parties, because the burdens on party

assocmional rughts were ‘yustified by

‘correspondingly weighty) valid = state interests in

ballot integrity and politreal stabilitw’), -/enness ¢

Fortson, 403 US. 481, 482, 488 39, 442° (1971)

(upholding Georgia statutory scheme that mmposed

sizmificant ballot access requirements on candidates

who did not win a party primary. because even

though requirements were in some respects more

onerous than provisions in other states, they were

less burdensome in other ways, such that “Georgia in

no way freezes the status quo, but impheitly

recognizes the potential fluidity of Amenean political

hfe’)

Samilarly, the Court has invahdated lengthy

duratvional residency requirements that) seriously

burden the right to vote, while upholding more

himtted measures to advance what it has considered

to be legitimate state goals See Rosario v

Rockefeller, ALO US. 752, 753, 761 (1973) (upholding

New York party enrollment rule that allowed voters

to participate in primanies only if they enrolled in a

party at least 30 days before previous general

election, because requirement was “an integral part’

14

of a scheme that preserved the integrity of the

electoral process by preventing party” raiding):

Marston cv. Lewis, 410 US. 679, B79-81T (1973) (per

cumnam) (upholding Arizona’s 50-day voter residency

and remstration requirements for state elections

because af represented “an amply justifiable

legslative judgment that 50 days rather than 30 1s

necessary to promote the State's important interest

in accurate voter lists,” and “[t}he Constitution is not

so rund that that determination and others hke it

may not stand’)

Embedded in the Courts approach to examining

states’ regulation of elections is an appreciation for

the value of expermmentation within and across

purisdictions. In Burson v. Freeman, 504 US. 191

(1992), the Court considered First and Fourteenth

Amendment challenges to Tennessee's — law

prohubiting solicitation of votes and display of

campaign materials within 100 feet of the entrance

to a polling place. /d. at 193. Acknowledging the

long history behind such restrictions, the Court

explained that states (and other countries) had

experimented with several different ways to

eliminate election fraud and voter intimidation at

the polls, before setthng on geographic hmitations on

vote solicitation and campaigning. Jd. at 199-206.

The Court noted that a handful of yurisdictions’ early

measures to restrict electioneering within a certain

distance of polling places served as a springboard for

other jurisdictions to adopt similar laws. Id. at 203-

06. Upholding Tennessee's restriction, the Court

noted that while some rules could be so restrictive as

to create an impermissible burden, it would not

employ a “htmus-paper test” in “reviewing challenges

15

to specific provisions of a State’s election laws.” dd.

at 210-11.

The Court's approach in these cases accords with

its longstanding recogmition of the vital function

states serve as laboratories for developing solutions

to difficult legal and policy issues. See, e.g., Oregon

ve. dee, 129 S. Ct. 711, 718-19 (2009) Unvoking states’

role “as laboratones for devising solutions to difficult

legal problems” as one reason for upholding state

pohcy granting judges suthority to determine

whether criminal sentences run concurrently or

consecutively); United States v. Lopes, 514 U.S. 549,

581 (1995) (Kennedy, J... concurring) (noting that

“the theory and utility of our federalism are revealed

[when} the States may perform their role as

laboratories for experimentation to devise various

solutions where the best solution is far from clear’);

New State Tee Co. v. Liebmann, 285 U.S. 262, 311

(1932) (Brandeis, J., dissenting) (observing that “[i)t

is one of the happy incidents of the federal system

that a single courageous State may, if its citizens

choose, serve as a laboratory” seeking new solutions

on issues of public concern).

The Court has recognized that allowing state

experimentation is) particularly appropriate when

there is no evidence of constitutional harm. For

example, in Chandler vu. Florida, 449 U.S. 560 (1981),

the Court upheld a Florida policy allowing cameras

in criminal trials, noting that because “no one has

been able to present empirical data sufficient to

establish” constitutional harm, “the admonition of

Justice Brandeis ... is relevant” and the “concept of

16

federalism, echoed by the states favoring Florida's

experiment, must guide our decision.” Jd. at 578-80.

The value of state experimentation in regulating

elections — and the need for clear evidence of

unconstitutionality before foreclosing such

experimentation also found expression in Storer v.

Brown, 415 U.S. 724 (1974). In Storer, the Court

first upheld a California law requiring a candidate

wishing to run as an independent to disaffiliate from

his or her party at least twelve months prior to its

primary election. Jd. at 733. The Court explained

that this rule protected the direct primary process

that Cahfornia had come to employ after vears of

unfortunate expemence with a pmor nominating

system that allowed candidates to run in multiple

parties’ primaries. Jd. at 735-36.

At the same time, the Court in Storer remanded a

challenge to a second Califorma law, which required

that independent candidates seeking ballot access

file a petition with signatures constituting at least

five percent of total votes cast in the last general

election. Jd. at 738. Although the Court speculated

that this rule could require an impermissibly high

percentage of signatures from the available pool of

eligible signatories, it concluded that it did not have

enough evidence to determine if the rule actually

placed an unconstitutional burden on ballot access.

ld.; cf. Clingman v. Beaver, 544 U.S. 581, 586-88

(2005) (upholding Oklahoma's “semiclosed primary”

law, which existed in similar form in 23 other states,

because any burdens imposed on associational rights

were minimal when voters could elect to change

party affihation in order to vote in a primary).

17

D. There Is No Clear Evidence that

Supplemental Funding Triggers Burden

Speech

In this case, there is no evidence of constitutional!

injury to warrant shutting down Arizona's and

others states’ development of public funding systems

using supplemental funding triggers. Instead, the

existing data support the conclusion that Arizona's

measure enhances overall speech without burdening

the speech of any campaign participants. The Court

should, therefore, permit Arizona and other states to

continue experimenting with campaign finance

regulations, including public funding systems that

utiahze the kind of trigger mechanism that Arizona

employs.

As Respondents’ bnefs show, Arizona's law has

been accompamied by an increase in overall speech in

state elections. See Br. of Resp. Clean Elections

Inst., at 58; Br. of State Resps., at 40. Rather than

chilling speech, the evidence presented to the District

Court demonstrated an increase in both candidate

and independent expenditures since the enactment of

the Citizens Clean Elections Act. Candidate expend-

itures increased between twenty-nine and _ sixty-

seven percent, and independent expenditures

increased by over 250 percent. The most robust

published analysis of Arizona's system, conducted by

the U.S. Government Accountability Office in 2010,

found that candidate expenditures in state legislative

elections have generally increased since passage of

the Citizens Clean Elections Act. See U.S. Gov't

Accountability Office, GAO-10-390, Campaign

Finance Reform: Experiences of Two States that

18

Offered Full Public Funding for Political Candidates

(2010), at 52-53, 59-60. Independent expenditures in

Arizona have also increased since 2000. Id. at 63-64.

Moreover, expert evidence before the District

Court showed that contested state Senate elections

increased by twenty percent, and that the number of

competitive state Senate’ elections involving

incumbents increased by 300 percent. Br. of Resp.

Clean Elections Inst., at 6. The District Court also

received evidence that the public funding offered

under Arizona law allowed candidates to seek

election who otherwise would not have been able to

do so. J.A. 541-42, 591.

The additional campaign funds that Arizona's

supplemental funding trigger provides further First

Amendment values by enabling participating

candidates to speak, and voters to hear, more

campaign communications. There is no evidence

that non-participating candidates or independent

committees have reduced their campaign speech in

response. Quite the contrary — since Arizona

adopted public funding with its supplemental

funding trigger, electoral debate in the state has

been more robust than ever.

19

CONCLUSION

For the foregoing reasons, this Court should

affirm the judgment of the Court of Appeals.

Supplemental funding triggers are an important

means by which states ensure the effectiveness and

viability of the public funding systems that they have

adopted to prevent corruption, promote competition,

and enhance speech in their elections. There being

no clear evidence that such measures infringe on

constitutional rights, the Court should allow states to

continue to develop their regulations in this

traditional area of local control.

Respectfully submitted,

DANIEL F. KOLB

Of Counsel: Counsel of Record

RICHARD BRIFFAULT DOUGLAS K. YATTER

435 West 116th Street ANDREW DITCHFIELD

New York, NY 10027 BENEDICT J. SCHWEIGERT

DAVIS POLK & WARDWELL LLP

450 Lexington Avenue

New York, NY 10017

(212) 450-4000

daniel. kolb@davispolk.com

Counsel for Amici Curiae

February 2011

APPENDIN

la

APPENDIN

LIST OF AMICI CURIAE

PROFESSORS OF CONSTITUTIONAL

AND ELECTION LAW

Mark C. Alexander

Professor of Law

Seten Hall Uniwersity Law Schoo!

One Newark Center

Newark, New dersey 07 102

Richard Briffault

Joseph P. Chamberlain Professor of Legislation

Columbia Law School

435 West 116th Street

New York, New York L002?

Guy-Uriel Charles

Protessor of Law and Co-Director of the Duke Law

Center on Law, Race and Politics

Duke University School of Law

210 Sctence Drive

Durham, North Carolina 27708

dames A. Gardner

Viee Dean for Aeademic Affairs: Joseph W) Belluck &

Laura L. Aswad Professor of Civil dustice;: Director of

the Edwin F. daeckle Center for Law and Democracy

State University of New York

University at Buffalo Law Schoo!

514 O Brian Hall

Buffalo. New York 14260

* Afflhations of aici are hsted for identaficatuon purposes only

2a

Heather K. Gerken

J. Skelly Wright Professor of Law

Yale Law School

27 Wall Street

New Haven, Connectrout 06511

Frances R. Hill

Professor of Law

University of Miami Schoo! of Law

1311 Miller Drive

Coral Gables. Florida 33146

Michael S. Kang

Associate Professor of Law

Emory University School of Law

1301 Clifton Read

Atlanta, Georgia 30322

Ellen D. Katz

Professor of Law

University of Michigan Law Schoo!

625 South State Street

Ann Arbor, Michigan 48109

Lloyd Hitoshi Mayer

Associate Professor of Law

University of Notre Dame Law School

P.O. Box 780

Notre Dame, Indiana 46556

William MceGeveran

Associate Professor of Law

University of Minnesota Law School

229 19th Avenue South

Minneapolis. Minnesota 55455

Gene R. Nichol

Professor of Law and Director of the Center on

Poverty. Work & Opportunity

University of North Carohna School cf Law

160 Ridge Road

Chapel Hill, Nerth Carolina 27599

Daniel R. Ortiz

John Allan Love Protesser of Law

Edward F. Howrey Professor of Law

University of Virginia School of Law

S80 Massie Road

Charlottesville, Virgimia 22908

Spencer A. Overton

Professor of Law

The George Washington University Law School

2000 H Street, NW

Washington, DC 20052

Richard H. Pildes

Sudler Family Professor of Constitutional Law

New York University Schoo! of Law

40 Washington Square South

New York, New York LOO12

Daniel P. Tokaji

Protessor of Law

The Ohio State Universiy Morte College of Law

SA West th Avenue

Columbus, Ohio 43210