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

Supreme Court brief2010

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Nos. 14238 and 10-289

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In The

Supreme Court of the United States

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ARIZONA FREE ENTERPRISE CLUBS

FREEDOM CLUB PAC, et al,

KEN BENNETT, et al.

Respondents

—— — -----@

JOHN McCOMISH, et al.

KEN BENNETT, et al,

Respondents

On Writs Of Certiorari To The United States

Court Of Appeals For The Ninth Circuit

- . ——

BRIEF OF SELF-FINANCING CANDIDATES

CONGRESSMAN BILL FOSTER (RET.),

CONGRESSMAN ALAN GRAYSON (RET),

CONGRESSMAN STEVE KAGEN (RET),

GOVERNOR ANGUS KING (RET.), NED LAMONT,

CONGRESSMAN WALT MINNICK (RET),

CONGRESSMAN JARED POLIS, AND

CONGRESSMAN JOHN YARMUTH AS AMICI]

CURIAE IN SUPPORT OF RESPONDENTS

THOMAS BENNIGSON

Counsel of Reeord

SeTrHh E Merain

PUBLIC Goop LAW CENTER

3130 Shattuck Avenue

Berkeles, CA 94705

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TABLE OF CONTENTS

TABLE OF AUTHORITIES.......:.cccccsscousnetucetaeel NV

INTEREST OF AADTICT. .....5:i<....cccceucestanueeeeaee l

INTRODUCTION AND SUMMARY OF

PABOLSU EIEN To 0ss'csscvesecsssbeepnn ese anenninannnnnnnnEEE 5

ARGUMENT. .....0s0ssceccescvcnssassauneetanneennelnennna nnn 9

| THE ARIZONA STATUTE EMPLOYS

CONSTLTPUTIONALLY PERMISSIBLE

MEANS TO ENHANCE THE FREE

EACHANGE OF BDBAS.....<...<:s<cccsccsanuieeueee a

A The Exposure Of The Pubhe To Various

Points Of View Is A Primary First

Amendment Value........:..<sssssssssassetens a

13 The Arizona Statute Promotes The Pubhe’s

Interest In Debate Among Multiple

Viewpomts Through the Constitutionalls

Preterred Means Of “More Speech, Not

Less ” abbed eh ewes anhalt ee mbnn Rainn 14

ie, The Statute Enhances Debate Without

Compelling Speech. .................ccccceeeeees 17

I] THE ARIZONA LAW DOES NOT CHILL

tS bs, SRT 20

LU.

A Petitioners’ First Amendment Concerns

Are Based On An Unrealistic View Of

Actual Campaign Behavior................. 20

l. Candidates Do Not Refrain From

Speech to Avoid Trggering Matching

ES ee 20

2 Delaved Spending Is Neither Factually

Nor Legally Likely to Constitute

Evidence of a Chilling Effect on

eee aul I cc enceunvesesace 23

3 Neither Anizona’s Pubhe Financing

System as a Whole Nor the Triggered

Matching Funds Provision

Discriminates Against Privately

Financed Candidates....................... 26

1} The Fear Of Opposing Speech Does Not

Constitute A “Chill? On Speech As That

Term ls Understood Under The

TEI Ge ear CE 2 28

BECAUSE THE CCEA EMPLOYS NON-

DISCRIMINATORY MEANS TO ACHIEVE

IMPORTANT ENDS, DAVIS DOES NOT

CONTROL THE OUTCOME OF THIS

re ice cas cGy cdciviexsanvdesshsveseuess )

\. The Arizona Statute Calls For A Lower

EE 32

1. The CCEA Serves Important 9 State

EESTI Es Sa 35

CONCLUSION

The Statute Reduces Corruption and

the Appearance of Corruption............85

That the Act May Also Serve the

Purpose of Enhancing the Variety of

Pubhe Debate Does Not Render It

Constitutionally Suspect ..................907

TABLE OF AUTHORITIES

Cases

44 Liquormart v. Rhode Island.

wg ek ME REARS CSRS EMA Rioe evenng risen ere re. 15

Abrams v. United States, 250 U.S. 616 (1919)........ 11

AMSAT Cable v. Cablevision Ltd. P’ship.

ee re ee in buicccucteniecdsdencdcastatens 13

Asheroft v. Free Speech Coalition,

Se I aoe i itidadidcdacsadadevabscicedatuis 30

Associated Press v. United States.

eg eet a EEE fod Ot Sia 11

Baird v. State Bar, 401 U.S. 1 (1971)....................00

Banzhaf v. Fed’ Communications Comm'n,

405 F.2d 1082 (D.C. Cir. 1968).............. 11, 13, 14

Bates v. State Bar, 433 U.S. 350 (1977)................. 16

Brown v. Hartlage, 456 U.S. 45 (1982).................. 15

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

CBS, Inc. v. Fed? Communications Comm n,

ee Ee Ge EE caseixciavadaudenidcadesnusubansuasess 13

Central Hudson Gas & Elec. Corp. v. Public Serv.

CE TE Se ru ee Bi ivabeccukdccuassddinndascen 16

Citizens United v. Fed? Elections Comm'n,

hy Be so | ere 7. 15, 30, 33, 34

Columbia Broad Sys., Inc. v. Democratic Nat!

‘oe at Oh > eeeererrenrrme rT 13

Curtis Publ'g Co. v. Butts, 388 U.S. 130 (1967)...... 1]

Daggett v. Webster,

74 F. Supp. 2d 53 (D. Me. 1999)............ seers eee 36

Davis v. Fed? Election Comm'n,

FEE Sey yee 8 32 33. 35, 3%

Denver Area Educ. Telecoms. Consortium v. Fed 7

Communications Comm'n,

ATG! &, 6). Saeepeerrrrrr errr Tre 31

Doe v. Reed, 130 S. Ct. 2811 (2010).............06.. 30, 37

Fed1 Elections Comm'n v. Mass. Citizens for Life,

479 U.S. 238 (198G)..........cccccccsccccccccccesccccececes 13

Fed? Elections Comm'n v. Natl Conservative

Political Action Comm..,

ry Die Lh, Seer errr rr rer cr. 35

Fed] Elections Comm'n v. Wis. Right to Life, Inc.,

OS BE, Ge ee ievcininss bu ssinncessscodsecessascctesices 31

First Nat'l Bank of Boston v. Bellottt,

BSB UTD. FOB (IGT Shan nivccavesscciccccssccccccescscccsces 12

Gibson v. Fla. Legislative Investigation Comm.,

372 U.S. BSG C1GGSS)......ccccrcccccccccccccccccccccsccsssees 30

Grosjean v. American Press Co.,

ee io. ode teec nen dunce enuuepenmsans 10

Hynes v. Oradell, 425 U.S. 610 (1976).............02..5. 30

Laird uv. Tatum, 406 U.S. 1 (1G7E).....6cccccecseccccsscss 31

Lamont v. Postmaster General,

Re ey HE Is dein cconscccesusscussouncecsasuonecs 31

Lorillard Tobacco Co. v. Reilly,

ee ED i opdccivocnsccnacckccisseusssedeocaness 16

Meese v. Keene, 481 U.S. 465 (1987)

or)

Miami Herald Publ. Co. v. Tornillo,

rr eee 18

Minneapolis Star & Tribune Co. v. Minn. Comm of

mevenue, 460 U.S. 575 (19B3B)........0ccccceccccsceseess 30

NA AACP v. Alabama ex rel. Patterson,

ee RE A Rak teense ssevepcoudscncdevcseviee 29, 30

NAACP v. Button, 371 U.S. 415 (1963).................. 30

New York Times Co. v. Sullivan,

ee ee ee aia cas erc se searccntiusbcukidcesamaas 11

Pacific Gas & Elec. v. Pub. Utils. Comm'n,

eB at sacincksccnestnciapispaainndidnssvents 18

Perry v. Sindermann, 408 U.S. 593 (1972).............. 30

Pruneyard Shopping Ctr. v. Robins,

ly Me RD ea a pee ee ae ae le 18

R.J. Reynolds Tobacco Co. v Shewry,

423 F.3d O06 (Oth Cir. 2005)...........cccccccccccceses 13

Randall v. Sorrell, 548 U.S. 23 (2006)..............0.... 34

Red Lion Broad. Co. v. Fed’l Communications

Comm n, 395 U.S. 367 (1969)............... 11, 12, 31

Regan v. Taxation with Representation,

OF OR A SS, do tal ae a I eet 34

Reynolds v. Sims, 377 U.S. 533 (1964)...............065 33

Riley v. Natl Fed'n of Blind,

Ce ec ceeaall 31

Rosenbloom v. Metromedia,

kg, | SARE Rep veminare ears 10,15

St. Amant v. Thompson, 390 U.S. 727 (1968)......... 11

Sheet Metal Workers’ Intl Ass'n v. Lynn,

BREEN SEE NE ASR tS Ae se 30

Stanley v. Georgia, 394 U.S. 557 (1969)................. 12

Talley v. California, 362 U.S. 60 (1960)................. 29

Texas v. Johnson, 491 U.S. 397 (1989).............000.. 15

Turner Broad. Sys. v. Fed. Communications

CURIE Te, HER UF. Gare Ce av vincccscccscrsccceccsccecs 38

Vil

United States v. Treasury Employees,

ee Se SE enncndadimiciennasncesstiesnsenienenass 30

Virginia v. Black, 538 U.S. 34 (2003).................... 30

Virginia v. Hicks, 539 U.S. 113 (2003)................... 30

Warner Cable Communications v. Niceville,

911 F.2d 634 (11th Cir. 1990).......000000 12

Washington State Grange v. Wash. State Republican

Party, 552 U.S. 442, 446 (2008).....................00 37

West Virginia State Bd. of Educ. v. Barnette,

ee rs I I patniensssinnsecnssenepanssnessscesm 17

Whitney v. California, 274 U.S. 357 (1927)....... 11, 15

Constitutional Provisions

rr rr Se seibesenoanediooeneds passim

Statutes

Arizona Citizens Clean Elections Act,

Ariz. Rev. Stat. §§ 16-940 et seq................. passim

FE. TOG. OE, Bec cecsscesscrsessecessevicns passim

Se, SR: TE, Te iii cktnscacesvaciitecensaceutepsssons 23

Bipartisan Campaign Reform Act of 2002,

He i niicindcadccdecenesenncusasnoeneinences 8

vill

Cal. Gov. Code IIE 24:5 derv'sacieeun wensigaceacncsbecuciass. 19

“Milhonaire’s Amendment.”

> i ~ + . eVe > > | ‘ -~ ‘ .

2U.S.C. § 441a-1(a)....................8 32. 33. 35. 36

Other Authorities

Denise Baer. Contemporary Strategy and Agena

Setting, in Congress and Elections American

Stvle (lames Thurber ed. 1995)... Bree 4

Tobe Berkovitz, Political Media Buying (1998), at

http: www ehks harvard.edu case 3pt

SIMI I hoon. co erucsuacunsauacecucasencecktick: 25

Election Summary Report. Pima County. af

http: www.pima.gov elections results. htm...... 24

GAQ, Campaign Finance Reform: Additional

Information, GAQ- 10-39 iSP, «

http: www_egao gov new items siden pdf

(2010) 21.

doe Garecht. 5 More Seereis for Winning a Political

Campaign, at http: www localvictory.com

Strategy secrets-for-winning-a-political-

I See reee ee he > +

Anne Kornblut, G.O.P. Deserts One of Its Oven mn for

Lieberman, N.Y. Times, iad 19, 2006,

http: wwwenytimes.com 2006 08 19 nyvregion

IRANI eee ee fer rt 27

David Leventhal, January Fund-Raising Mania .

http) Www oopnensecrets Wg news LULL OL ceo-1-

EAE LOE PEIN: ry UPR Pics csnnieccnuaccnsecesen: 29

Long Distance Voter. Fariv Voting Rules, at

http: www longdistancevoter org

early_voting_rules#arizona........................000. 2

Alexander Met&lejonn, Free Speech and lis Relation

to Selt-Governmment. in Poltical Freedom

Uo RIG RASS Er Ce Serle 8 5 Ei La BS cote Ne 10, 12, 14

dohn Stuart Mill, On Liber?

(David Bromwich ef a]. eds. 2009)......... 10, 11, 17

doseph Napoht an, Napolitan :

ts Rules: 112 Lessons

Learned From @ Career in Politics. in Winning

Elections (Ronald Faucheunx, ed. 2008)............ }

Natl Conf. of State Legislatures. Absentee and Earls

Voting. af http: www.eneslLorg

default.aspx “tabid=16604................ Fives eae

Gary a. Early Voting

ia. Impact o

» . °

Strate . Training. Budgets, in \

‘

Elec Pe s Ronald Faucheux, ed

-1

¢ UMP "

Lisa Rosenberg. Impotent FEC Fi

Disciosure Rules. at

http:

.* soem “? we

aad af ~ a 6 on

sunhghtfoundation.com blog taxonomy

term/Transparenev (Jan. 21, 2011)

. @aes\s 8 &B Fe eee eee eee eee eee

Stuart Rothenberg, Final Stretch Notas Important

as You Think, available ai

http: rothenbergpoliticalreport.com news article

fin eagle stretch-not-as-important-as-vou-think

Judith Trent & Robert Frnedenberg. Politica!

Campaign Communication (2008), ............... 25

don Walker, NY-23) Dem Owens Catches a Lucky

Break — Another Three-Way Race. at

http: elections firedoglake com 2010 09 23 nv-

23-dem-owens-catches-a-lucky-break-another-

three-way-race (Sept. 23, 2O10)................ cieh cae

Rath Ann Weaver \. arisey & Spencer Tinkham, Tie

Inji ide Ree a i Med aig Ex: ry Riiture a na Allveation

Ss! fraic Lics iM 2 ¢ “ONEPESSIO? 2a/ Adv CTUSI ws

Can ix erry rs,

16d. of Advertising No. 3 (1987)... is 21

“NI

INTEREST OF AMICI

Amier are current and former Members of the

United States Congress, a former Governor, and a

former candidate tor Senator and Governor, all

whom have at some time funded their own

cCAMpaigns in significant part. Amict beheve that a

mbust pubhe financing svstem ais) vital for

democracy, so that) candidates’ dependence on

private funders does not render government

beholden to those with the deepest pockets, so that a

variety of voices mav be heard by the public. and so

that pubhe service and participation in pubhe debate

go not become inaccessible for all but a sheng

few. Amici range from individuals able to spe ws

milhons in a campaign to others able to well fur

only at relatively moderate levels. One amicus

oversaw as Governor the umplementation of a pubhe

financing svstem simular to the one challenged in

Anvona. Another amicus triggered matching funds

to opponents through his spending under a system

hke Arizona's; five amict triggered the asvmmetneal

contmbution limits of the Milhonaire’s Amendment,

before it was struck down. None was ever deterred

In anyY Measure from broadcasting his own speech bv

concern that tis) spending would increase the

resources of hts opponents. '

Congressman Bill Foster. a prize-winning

research physicist and entrepreneur. represented

' No counsel for a party authored this bnef im whole or in

part, and no person, other than amie and their counsel.

made a monetary centribution to the preparation or

subrmussior of this briet All PATLIES have granted Nanket

consents to the filing of amicus brief

Iinois’ 14th Dastrnet im the US. House of

Representatives from 2008 to 2011. He won office in

a special election in March 2008, following a narrow

primary victory in February, and was handily re-

elected in November in a race attracting almost $2

milhon ain outside expenditures Congressman

Foster contmbuted significantly to both his ZOOS

campaigns. His spending in the special election

triggered the “Mulhonaire’s Amendment.” then still

in effect. allowing his) oppenent to accept

contnbutions up to triple the ordinary limit. His

political spending was not deterred to anv extent

Congressman Alan Gravson represented

Florida’s Sth — Dhistme in the House of

Representatives from 2009 to 2O11L He ran for the

Democratic nomination for the same seat in 2006,

contributing over $600,000 to his own campaign,

triggering the Milhonaire’s Amendment, then in

effect, without being deterred. After financing S0*>

of us own 2008 campargn, in 2010 he raised more

tunds from individual contributors than anv other

Democratic House candidate) Congressman Grayson

is a distinguished attorney, and was the = first

president of a telecommunications company now

among the Fortune 1000

Congressman Steve Kagen, a prominent

physician speciahzing in allergies. represented

Wisconsin's Sth Thstmet in the House of

Representatives from 2007 to 2011, championing

transparency m government and in- health care

costs. Dro Ragen contmbuted over $2 milhon to his

2006 election campaign. He was not deterred by the

“Milhonaire’s Amendment” then in effect. which was

’

triggered bv selffunding of over $3850.000

Approximately $1.5 milhon was spent by outside

groups in each of his races. e

Governor = Angus King, oan attorney,

alternative energy entrepreneur, and former

television host, was elected as an Independent to two

terms as Governor of Mame, one of only two

governors mn the nation at that time not atthhated

with either major party. First elected in 1994 in a

hotly contested four-way election, he won re-election

ina landshde in 1998. Governor King contributed

symificantly to both his campaigns, funding shehth

over 50° of the first. Maine's Clean Elections Aet.

Which is) very similar to Arizona's. including a

matching provision similar to the one challenged

here, was passed by referendum during his first

term, going into effect during his second. Governor

King anitially had some concerns about taxpaver-.

tunded pubhe financing. However. having had a

close-up view of its effectiveness, and having seen no

chilling effect on political speech, he has come to

beheve that itis one of the most important wavs to

protect democracy from the power of special

interests

Ned Lamont, a successful telecommunieations

entrepreneur and exeeutive, was the Democratic

nominee for Senator from Connecticut in 2006, after

upsetting the incumbent in a nationally watched

primary election. Mr. Lamont ran for Governor of

Connecticut in 2010, losing in a_ hoetly contested

primary to the eventual general election winner.

Mr. Lamont’s contributions to his 2010 gubernatorial

campaign tmggered the maximum — available

“-.

matching public funds to his opponent (doubling the

base grant) under the matching prevision of

Connecticut's Citizens Election Program, which

works similarly to Arizona's In 2006 his

contributions to tus Senate campaign tmggered

higher contribution limits for opponents under the

Milhonaire’s Amendment. His prineipal opponent

consequently raised over $20 milhon. In neither

race Was Mr. Lamont’s spending deterred by the

prospect of tmgvering increased funding for his

opponent

Congressman Walt) > Minnick © represented

Idaho's First) Ihstmet im the House © of

Representatives from 2O0O9 to ZOlL. His voting

record was labeled the most independent = in

Congress by the Washington Post. He served in the

Nixon White House in the early 1970s, and later

became a prominent leader of forestry and nursery

businesses in Idaho. In 2008 Congressman Minnick

contributed about S800.000 to his campaign, and

raised twice that from other sources. He ran for

Senate in 1996, and contributed a similar sum,

Congressman dared Pohs represents

Colorado's Second Dhistmet in the House of

Representatives. A successtul entrepreneur and

philanthropist, Congressman Polis was first elected

to Congress in 2008, after a closely contested three-

way primary election. He previously served on the

Colorado State Board of Education, defeating an

Incumbent in one of the closest elections in Colorado

history. He has long been active in working to

ensure integrity in government, having served as Co-

Chair of Coloradans tor Clean Government and

championed aio state measure to ban gifts) from

lobbyists to government officials.

Congressman dohn Yarmuth is a third-term

Member of Congress, representing Kentucky s Third

District. A respected businessman and publisher,

Congressman Yarmuth was first elected to Congress

in ZOO, after winning a three-way primary election

and then defeating a five-term incumbent. In the

2006 primary and general elections, he contributed

more than $700,000 to his campaign, undeterred by

triggering the Milhonaires Amendment, and raised

more than $1.5 milhon in private contributions. His

general election opponent spent nearly $3.5 millon.

Since his) electton, Congressman Yarmuth = has

donated his post-tax congressional salary to various

charities every vear.

INTRODUCTION AND SUMMARY OF

ARGUMENT

This Court has long recogmved that) the

Increasing centrahty of tundraising to an ever more

expensive campaign svstem creates expanded

opportunities for pohtical corruption. Buckley v.

Valeo, 424 US. 1, 26-27 (1976). The real or apparent

indebtedness of elected leaders to those who have

funded their campaigns tosters mistrust of

government and the political process. /d@. at 27. The

Anzona Citizens Clean Elections Act, Anz. Rev.

Stat. §$§ 16-940 ef seg. [CCEA] serves to lessen the

incentives for — and pubhe perceptions of — political

corruption, bv offerimg candidates aiewmable

alternative to dependence on private funding. See

Buckley, 424 UlS. at 96 (pubhe financing as a means

of ehminating the improper influence of large

private contmbutions furthers a sigmificant

governmental interest’).

The provision challenged in this case, Ariz.

Rev. Stat. § 16-952, which offers additional matching

funding to publicly financed candidates when their

opponents exceed designated spending or funding

thresholds, is simply a further refinement of the

pubhe financing approach to addressing corruption,

The fund-matehing provision stmkes a balance

between, on the one hand, the poltical and fiscal

reahty that the funds available tor pubhe financing

are not hmitless and, on the other, the importance of

minimizing the possibility. that the speech of a

publicly financed candidate wall effectively be

drowned out by that of an opponent with far greater

resources. That possibilty would otherwise be likely

to deter many candidates from participating in the

public financing system, thereby thwarting its

purpose of lessening corruption and the appearance

of corruption,

The fund-matching provision achieves this

balance in a manner that promotes the First

Amendment values of vigorous debate, without

infringing the First Amendment rights of any

individual or of the pubhe. The increasing expense

of the traditional campaign system, — besides

increasing opportunities for corruption, makes it

harder for multiple perspectives to be heard. The

fund-matching provision makes it possible for a

variety of voices to be heard, thereby contributing to

that robust exchange of ideas about issues of pubhe

coneern which the First Amendment was intended to

protect.

The matching provision helps to promote

wide-ranging pubhe debate without violating the

stricture that the government may not “restrict the

speech of some elements of our society in order to

enhance the relative voice of others.” Buckley v.

Valeo, 424 ULS. at 48-49. Rather than restricting

any speech, the provision hews to the guidance of

this Court that in cases where one-sided speech may

be problematic, the constitutionally — preterred

remedy is “more speech, not less.” Citizens United v.

Fed7 Elections Comm'n, 130 S.Ct. 876, 911 (2010). It

enables more speech without compelling any speech,

and without favoring any content, viewpoint, or

speaker.

Above all, the CCEA accomplishes its salutary

purposes without chilling any speech. Ammer can

attest from their own experience to the robustness of

political speech. Candidates are principally focused

on getting their message out, to the exclusion of

other concerns. And because it is critical for them to

do so before their opponents can define the issues or

the candidates, 1t would not make sense for them to

refrain from or postpone broadcasting their message

in order to make it harder for their opponents to

respond later.

In any event, a candidate's decisiom to abstain

from or postpone some campaign spending for

tactical advantage does not resemble anything

recognized by this Court as a “chill” om speech. An

examination of this Court’s decisions makes clear

that it is the threat of coercive non-speech retahation

that gives rise to a “chilling effect.” The Arizona

statute, by contrast, presents no danger of

government or private reprisals, of legal or financial

repercussions, or of any other sort of consequence

that would remove the electoral contest from the

sphere of debating ideas to the sphere of non-speech

retahation. The threat of rebuttal by another

speaker (that is, of provoking more speech) is not the

sort of consequence that chills speech in the

Constitutional sense. While a candidate in a

contested election may prefer that opposing views

not be heard, that is not an interest protected by the

First Amendment.

Finally, Arizona's) matching provision — is

materially different from the so-called “Millionaire's

Amendment” to the federal Bipartisan Campaign

Reform Act of 2002, struck down by this Court in

Davis v. Fedl Election Comm'n, 534 U.S. 724 (2008).

The Arizona statute is not subject to the strict

scrutiny triggered by the Millionaire’s Amendment,

because it does not discriminate among similarly

situated candidates or among members of the public

who might wish to contribute to political campaigns.

The Arizona statute is better situated to withstand

the appropriate level of scrutiny, because it acts to

lessen the danger of political corruption and the

perception of corruption, interests repeatedly

recognized by this Court as important, indeed

compelling. And it does so in full concordance with

the First Amendment.

ARGUMENT

I. THE ARIZONA’ STATUTE EMPLOYS

CONSTITUTIONALLY PERMISSIBLE

MEANS TO ENHANCE THE FREE

EXCHANGE OF IDEAS.

By enhancing the public’s ability to be

informed by debate among a variety of speakers

representing a variety of viewpoints, the CCEA in

general, and the matching provision in particular,

serve the purposes of the First Amendment. Unlhke

measures found unconstitutional by this Court, they

do so without restricting any speech and without

compelling any speakers to disseminate speech to

which they are opposed.

A. The Exposure Of The Public To Various

Points Of View Is <A Primary First

Amendment Value.

The premise of the First Amendment is that

genuine democratic self-governance depends on an

informed public exposed to various perspectives. By

providing public financing to candidates who might

otherwise have difficulty raising sufficient funds to

mount a campaign, the CCEA makes it possible for a

variety of voices to be heard. The matching

provision makes an important contribution to the

goal of wide-ranging debate, not only because the

CCEA would promote debate less effectively if

candidates did not participate for fear of being

drastically outspent by their opponents, but also

because debate is impeded when a few voices are

able to drown out others.

The democratic promise of government by the

people depends on vigorous debate. In a system of

“political self-government,” voters “must know what

they are voting about. And this, in turn, requires

that so far as time allows, all facts and interests

relevant ... shall be fully and fairly presented....

That is why freedom of discussion ... may not be

abridged.” Alexander Meiklejohn, Free Speech and

Its Relation to Self-Government, in Political Freedom

26 (1965). The First Amendment reflects this

understanding. Because “|dJemocracy depends on a

well-informed electorate,” Buckley, 424 U.S. at 49,

“[djiscussion of public issues and debate on the

qualifications of candidates are integral to the

operation of the system of government established by

our Constitution.” /d. at 14. See also Rosenbloom v.

Metromedia, 403 U.S. 29, 41 (1971) (self-governance

presupposes knowledge and debate). The First

Amendment protects “such free and _ general

discussion of public matters as seems absolutely

essential to prepare the people for an intelligent

exercise of their rights as citizens.” Grosjean uv.

American Press Co., 297 U.S. 233, 250 (1936). The

CCEA promotes just such “free and_ general

discussion of public matters.”

Underlying the foregoing understanding of the

relation between democracy and free debate is the

premise, championed famously by John Stuart Mill,

that truth is most likely to emerge from vigorous

debate. Mill, On Liberty, 86-120 (David Bromwich et

al. eds. 2003). The First Amendment is based on

this understanding. The “theory of our Constitution”

is “that the best test of truth is the power of the

thought to get itself accepted in the competition of

the market.” Abrams v. United States, 250 U.S. 616,

630 (1919). “It is the purpose of the First

Amendment to preserve an uninhibited marketplace

of ideas in which truth will ultimately prevail.” Red

Lion Broad. Co. v. Fedl Communications Comm'n,

395 U.S. 367, 390 (1969). The First Amendment

serves “to insure the ascertainment and publication

of the truth about public affairs.” St. Amant v.

Thompson, 390 U.S. 727, 732 (1968) (in context of

political campaign publications). Freedom of

discussion is “indispensable to the discovery and

spread of political truth.” Whitney v. California, 274

U.S. 357, 375 (1927) (Brandeis, J., concurring).

But for truth to emerge from debate it is

important that a wide variety of voices be heard.

“(O]nly through diversity of opinion is there ... a

chance of fair play to all sides of the truth.” Mi£ill,

supra, at 90. This tenet too informs the First

Amendment. “The First Amendment ... presupposes

that right conclusions are more likely to be gathered

out of a multitude of tongues.” New York Times Co.

v. Sullivan, 376 U.S. 254, 270 (1964). See also Curtis

Publ’g Co. v. Butts, 388 U.S. 130, 151 (1967) (First

Amendment protects “the stimulating benefit of

varied ideas”); Associated Press v. United States, 326

U.S. 1, 20 (1945) (the First Amendment “rests on the

assumption that the widest possible dissemination of

information from diverse and antagonistic sources is

essential to the welfare of the public”). For this

reason, “A primary First Amendment policy has

been to foster the widest possible debate ... on

matters of public importance.” Banzhaf v. Fedi

Communications Comm'n, 405 F.2d 1082, 1102 (D.C.

Cir. 1968) (Bazelon, J.). By providing funds for any

quahlitving candidate to disseminate his views, the

CCEA allows wider ranging political debate among a

greater variety of voices than uf effective political

participation were hmuited to those who could aftord

to broadcast their views with private funds alone

Most crucially, the pubhhe funding provided by

the CCEA and the matching provision allow a

variety of voices not only to speak, but also to be

heard. For self-government, “the point of ultimate

Interest is... the minds of the hearers.” Meiklerohn,

supra, at 26. “Itas the right of the pubhe to receive

suitable aceess to ... political ... and other ideas ...

which is crucial” Red lion, 398 US. at 390

(discussing broadeast media). The “right to receive

information and ideas ... is fundamental to our free

society.” Stanley ov. Georgia, 394 US. S57, 564

(1969), Speech is protected for “its capacity. for

informing the pubhie” First Natl Bank vo. Bellott,

435 US. 765, 777 (97S)

The CCEA’s matching prevision not) only

makes Arizvenas pubhe tinancing system more

inviting to candidates who oight otherwise be

deterred bv the prospect of being drastically

outspent, the matching provision itself makes a

contribution to the goals undergirding the First

Amendment. Vigerous debate among various

Viewpoints may actually be impeded when one voice

is able to drown out others. This point has been

recognized with respect to speech by the government

itself. See Warner Cable Commiuoneations tv

NMreeville, 911 F.2d 684. 68S Clith Cire 1990) ("the

government mav not speak so loudly as to make it

unpossible for other speakers to be heard bw their

audience’); accord Rd Revnolds Tobacco Co. v

Shewry, 423 F.8d 906, 928 (Ath Cur, 2OOS), AMSAT

Cable v. Cablevision Ltd. Pship, 6 F.3d S867, 872 (2d

Cir, 1993).

In an age in which eitivens get most of their

information from expensive broadcast media, “a

debate in which only one party has the financial

resources ... to purchase sustamed access to the

Mass commumeations mediaiius not oa fair test of

either an argument’s truth or ats innate popular

appeal.” Banzhaf, 405 F.2d at T1a2. “LE Phe pubhe

Interest im providing access to the marketplace of

ideas and expenences’ would scarcely be served by a

system ... heavily weighted in favor of ...those with

aveess to wealth.” Columbia Broad Svs. Ine. v

Democratic Natl Comm... 412 U.S. 94, 123 (1973)

See also id. at 196 (Brennan, Jd. dissenting) (in hight

of the current dominance of the eleetrome media as

the most effective means of reaching the pubhe at

only a few mdividuals can aftord to broadcast their

Messages, this “renders even the concept of ‘full and

free discussion’ practically meaningless’)

The CCEA’s matehing provision makes “a

significant contribution to freedom of expression by

enhancing the ability of candidates to present, and

the pubhe to receive, information necessary tor the

effective operation of the democratic process.” CBS,

Inc. vo. Kea l Communications Commun, 4a3 ULS. 867,

396 (1981) By furthering the puble’s interest in

being exposed to all sides of pubhe debate. at helps to

“ensure that) competition among actors ino the

political arena is teulw competition among ideas,”

bs] ” ae J ‘ . » .

Fed? Elections Comm'n cv. Mass. Citizens for Life,

479 US. 28s, 258 (L886), rather than a melee in

which “suceess ... may go to the advocate whe can

shout loudest or most often” Banshat, 400 F Ld at

L1e2

Petitioners view “the context of competitive

electoral polities” as a zero-sum game, “in which one

eandidate’s gain ois) another's loss” | (MeComush

Petitioners’ Merts Brief [MeComish Br O70.) Phat

description betrays a blinkered perspective that Carls

to consider “a primary First Amendment) pelev,”

Banzhaf, 408 Fld at L102: the pubhe interest ina

debate in which a variety of views may be heard

8. The Arneona Statute Promotes The Public's

Interest In Debate Among Multiple

Viewpoints Through the Constitutionally

Preferred Means Of “More Speech, Not

Less

Unhke constitugheonally problematic efforts to

foster mereased public exposure to varied

viewpoints, Arivona’s approach recogmives that, even

in service of that essential goal, government may not

“restrict the speech of some elements of our socrety

in order to enhance the relative vorce of others”

Bucklev, 424 US. at 48-49") Far trom restmeting or

constramime anv speech, the Arivena statute is

cratted with aneve to the principle that “iis our haw

But see Meiklejohn, supra, at YEO (comparing free

speech im democratic socrety to discussion at town

meeting, whose rules regulate speech to make possible

effective discussion, bw allowing different views to be

heard)

and our tradition that more speech, not less. is the

govern rule. Cifticens United, L808 Ct at 911

For many decades, when speech of some sort

has been deemed problematic. this Court has

counseled that “the remedy to be apphed is) more

speech, not enforved silence” Wiitneyv, 274 US at

377) (Brandeis. do. coneurrimy) Since dustice

Brandeis first proposed this principle im the content

of advocacy of violent revolution, it has been apphed

in striking down restrictions seeking te avert ia

vanety of anticipated harms. See Broton oo Hartlage,

456 US. 45, 61 GYSD) Cln a polttical campaign, a

eandidate’s factual blunder is unhkely to escape

notice... and correction The preterred First

Amendment remedy of ‘more speech, not entorced

sence’ thus has special foree™) Rosenbloom &

Metromedia, 408 US. 29, 47 (1971) (plurality

opinion) (when hability for defamation might unpede

Vigorous discussion, “the solution hes in the direction

of ensuring feitizens') ability to respond. rather than

wy ostifling pubhe discussion of matters of pubhe

concern’), See also Tevas v. Johnson, AM US. ony,

419 (1989) (Othe wav to preserve the flag’s special

role” is not to prohibit flag burning, but “to persuade

[ag burners) that they are wrong’) The CCEA

promotes wide ranging debate preeisely by tunding

“more speech” rather than by legoslating “enforced

silence”

When this Court has struck down lmaitations

on speech as more extensive than necessary, it has

often suggested more speech. representing oa

different point of view, as a less speech restrictive

remedy to the perceived problem See 44 Liquormart

vw Rhode Island, 517 US. A8a, O07 C1898) (plurality

opimon) anstead of banning price advertising for

aleohol, state could achieve “goal et promoting

temperance” through “educational campaigns

focused on the problems of ... drinking), Lorn lard

lobacee Co. 4 Redlv, S88 ULS. SBA, bS6 (2001)

(Thomas, J. concurring) (instead of limiting tobacce

advertising unduly, state “could seek to counteract

that message with ‘more speech”) See asso Central

Hudson Gas & Elec. Corp. co. Public Serv. Comm'n,

47 US. 557, 571 GYSO) CGinstead of banning

promotional advertising bv electrie utilitw, state

could “further ats pohev of comservation® by “tor

example, requir[ing] that the advertisements include

information about the relative effioeneyv and expense

of the offered service’) More speech. rather than

enforced silence, has hkewise often been held to be

the constitutionally preferred remedy tor potentially

musteading speech See Meese vo Aeene, 481 US 465,

481 (i887) the best remedy for musleading or

inaccurate speech contamed within materials

dabeled ‘pohtical propaganda’) is torr, truthtal, and

accurate speech”), Bates oo State Bar, 4838 US) 350,

375 GANT?) Cthe preferred remedy [fer potentially

nusleading speech} is more disclosure, rather than

less)

The challenged provision of Arivona’s Clean

Elections Act accords with this directive. The state

faced serious concerns about the potential tor

political corruption uf candidates were deterred from

participating inthe pubhe financing svstem for fear

of being drowned out by their opponents’ spending

It addressed those concerns without restricting any

speech, but through the constitutionally preferred

remedy of “more speech” Vhe state does not

advocate anv particular position on anv issue, and

does not weight the scales for or agaist the speech

of any candidate. Thus, Arivona’s remedy is an

appropriate appheation oof foundational — First

Amendment doctrine

Thirty-five vears ago this Court found that a

tederal pubhe financing svstem was “a congressional

effort, not to abmadge, restrict, or censor speech, but

rather to use pubhe money to facihtate and enlarge

pubhe discussion and participation in the electoral

process, goals vital to a. self-governing people”

Buckley, 424 US at 92-93. Neither the matching

funds trigger nor the passage of time has called that

conclusion into question

C The Statute Enhances Debate Wathout

Compelling Speech

The matching provision of Arzona’s pubhe

financing svstem does not compel speech anv more

than it suppresses it) To the contrary, im every wavy

woorespeets the “madavidual freedom of mind”

protected by the First Amendment | West Virgina

State Bao of Educ. vo Barnette, 319 US) 624, 637

(I94an)-

Besides violating the rights of the compelled mudiuwadual,

compelled speech does mot further society's interest im

open debate It tends, rather, te iamhibat aut. both by

preventing the speaker from presenting tis actual views,

and because Viewpotnts are fairly represented only when

presented by “persons whe actually belreve im them, who

defend them im earnest ~ Mill) supra. at 104

Relving on the principle that) compelled

dissemination of speech one distavors amounts to

compelled speech, Pacific Gas & Elect, Co oo Pub

Utils. Comm'n, 475 US. 1 (i988), Mia: Herald

Al Coole. Tornillo 418 US 241 (1974), Petrooners

argue that being required to report: spending and

fund raising data, which wall (rigger matehing funds

to pubhely financed opponents i certain thresholds

are surpassed, ois) comparable to compelled

dissemination of opponents speech (Aus) MeComuish

Bro 54) “[Phe financial reporting requrrements of

Arizona's system hterally toree [candidates] to press

a butten on their computer that wall trigger the

payment oof subsidies to the verv partirpating

candidates thev oppose” thereby compelling them

“to help disseminate private polttical speech, which

thev abhor” (/d at 24)

The matching provision cannot plausibly be

viewed as compelling dissemination of opponents’

speech, even accepting Petitioners’ questionable

assertions that Poetic Gas and JTorno govern

scenarios not involving the conscription of private

property, and that Torniilo apphes to scenartos not

impheating freedom of the press! Essentially,

Petitioners complaint amounts to no more than that

a candidate is required to perform an act (inaneial

reporting) that mav. uf other conditions obtain (he

has spent above the threshold, he has ao pubhels

‘The Court explained that JorniJlo was more specifically

about “the principle that the State cannot tell a

newspaper whatat must print” for fear of “dampentiny]

the vagor and dimatiing) the variety of puble debate”

Prunevard Shopmnge Ctr. vo Robins, 447 US. 74, 8S

(ieso)

financed opponent), constitute one hnk im a causal

chain leading to matching funds being disbursed to

his opponent

A causal link of this sort cannot be sutYheent

to constitute dissemination It at were, anv

candidate who agrees to participate in a debate in

which his opponent gets equal time is voluntarily

disseminating his opponent's speech. By Petitioners’

reasoning, Calhtorma’s “eiwil Gideon” = statute,

providing pubhely funded attornevs to low-income

defendants im certain cival suits, Cal. Gov Code

$GBSGSL (operative July 1, 2011), compels plaintitts

in such cases to disseminate speech they oppose, mn

that at as plaintiffs’ action that causes defense

counsel's speech to be funded) Oraf the Department

of Health shuts down or gives an untavorable

health rating to A restaurant on the basis of

reports the owner is required to file. and. the

Department pubhemes that fact, then, 9 on

Petitioners’ analvsis. the restaurant owner was

compelled to disseminate speech he disfavored

Indeed, there is no end to what could be considered

compelled dissemination on Petitioners’ reasoning

If a socrahst worker in Indonesia taps the rubber

that is used to manufacture the tires on trucks used

to deliver the Wall Street Journal, the worker could

complain that as a condition of employment he as

compelled to help disseminate speech he abhors

Petitioners’ contention that the Clean Elections Act

compels high-spending privately funded candidates

to disseminate their opponents’ speech as no more

plausible

I] THE ARIZONA LAW DOES NOT CHILL

SPEECH

Petitioners) speculation that) debate might

somehow be chilled by a tunding mechanism that

makes it possible for more than one candidate to be

heard has no support in observable fact, common

sense, or the law

\ Petitioners’ First Amendment Concerns

Are Based On An Unrealsti View Of

Actual Campaign Behavior

Petitioners’ claims that speech is deterred or

postponed by fear of triggering matching funds to an

opponent, or that Arizona's pubhe financing scheme

discriminates against privately funded candidates,

reflect a view divorced from the reahltves of actual

campaign behavior

l Candidates Do Not Refrain From

Speech to Avoid Triggering Matching

Funds

PetiQioners central complaint that candidates’

speech is deterred by the prospect of triggering the

release oof matching funds is unsupported by

evidence, and defies baste principles of campaigning

tor office. As made clear by the Court of Appeals,

O11 Fodd O10, 6238-24 (8th Cir, VOLO), the reeord does

not suppert anv such claims, even with respect: to

Petitioners themselves. To the contrary. there ts

ample evidence that) concerns about triggering

matching funds plaved mo part in Petitioners’

strategizing. Jd (See also Clean Elections Institute

Respondents’ Menmts Brief [Institute Br.) 6 7)

That evidence accords with what a modicum

of famiharty wath) political campaigning would

suggest. A candidate’s top) pmorty is) almost

Invariably to get his message out. See Joseph

Napohtan, Napolttan’s Rules: 112 Lessons Learned

From a Career in Politres, in Winning Elections 29

(Ronald) Faucheux, ed. 2003) Particularly tor

candidates who are not already well known to voters,

spending heavily is not a choice, but a necessity

Ruth Ann Weaver-Larisevy & Spencer Tinkham,. Jhe

Influence of Media’ Expenditure and Allocation

Strategies tn Congressional Advertising Campaigns,

16 do of Advertising No. 3, at 13 (1987). Moreover,

according to generally accepted political campaign

strategy, atas cracial for a candidate to get his

Message out first, so that he, and not his opponents.

ean frame the issues in the race, and define who the

eandidates are and what thev stand for. See Demise

Baer, Contemporary Strategy and Agenda Setting, in

Congress and Elections American Stvle 55 (James

Thurber ed) 1995), Joe Garecht, 3 More Secrets for

Winnings a Political Campargn, at

http: www localvictory com strategy secrets-for-

winning-a-polhtical-campaign html Consequently, it

would be unusual — and hkely self-defeating — for a

candidate to refrain) from spending to get his

Message outoin order to prevent an opponent from

getting her message out later

Privately financed candidates cannot know in

advance how much money thev wall raise. his tact

makes atoall the more implausible that they might

somehow plan to raise the maximum amount

possible while remaining pust below the fundraising

threshold that would trigger matching funding

Presumably they opted for private financing because

they thought doing so would be to their advantage,

because they beheved either (1) thev could raise

more funds than the maximum level matched under

the CCEA, see Ane Rev Stat. § 16 952CR), (2) they

would be advantaged by having funds in hand

earher, or (3) they would benefit from ai race in

Which both they and their opponents were able to

spend more It would defeat any of these stratemes

tor privately financed candidates not to maximize

their fundraising And once the funds are in hand.

there would be no incentive not to spend them, for

raising the money is already enough to tmgger the

matching funds. § 16-942 CB)

In general a candidate would not run for office

if she did not beheve that her message Was superior

to that of her opponents, and hence likely more

appealing to voters A candidate who beheves this

would have no reason to refrain from broadcasting

her message in order to prevent her opponent from

acquiring the means to broadcast his message to an

equalbextent°

> Tromeally, Petitioners argue that “[alnvone who takes

ideas sermously will be chilled by the prospect of bene

instrumental im funding the dissemination of ideas one

opposes” (MeComish Br 41) But a candidate who tukes

ideas seriously is precisely one who would mot shrink

from presenting bis ideas sumply because the cost was

that his opponent could do the same He would welcome

the opportunity to debate

4 Delayed Spending Is Neither Factually

Nor Legally Likely to Constitute

Evidence of a Chilling Effect on Speech.

Even less plausible is Petitioners’ argument

that the speech of privately financed candidates is

chilled because the trigger) provision allegedly

provides an incentive for candidates to delay

spending. (MeComish Br. 36, 42. 56: Arizona Free

Enterprise Club’s Freedom Club PAC. Petitioners’

Merits Brief [AFEC Br] 16-17, 34.) The only

incentive for delay alleged by Petitioners is an

attempt to thwart the law Moreover, it) is

implausible that the law in fact causes candidates to

defer spending, and it would not constitute a chilhng

effect ifit did so.

Petitioners assert that the trigger provision

causes candidates to delay political activity. until

close to the election “so that matching funds arrive

too late to be used by the pubhely financed

candidate.” (AFEC Br. 16.) This is a remarkable

argument. The only incentive alleged tor a privately

financed candidate to postpone spending is as an

effort to crreumvent the pubhe financing system, so

that opponents will not receive the funds to which

they are entitled under law. Itais peculiar to regard

such efforts to cheat the system as a burden imposed

by the system. Even omore remarkably, as

Petitioners admit, (MeComish Br. 36), ) such

manipulations are legal under the Clean Elections

Act. Ariz. Revo Stat. § 16-958(C)) (prohibiting

Conspiracies to postpone campaign donations in

order to postpone reporting that will) trigger

matehing funds to opponents) Petitioners’

argument therefore amounts to a claim that the

Clean Elections Act burdens candidates’ speech by

providing an incentive to defer spending in ways

that the Act itself expheitly prohibits. That is not a

coherent objection.

In any event, deferring spending to deprive

opponents of matching funds would be self-defeating.

First, as noted supra, see sec. PLA, it is critical to

speak early, in order to define the issues and

candidates in a campaign. Second, late spending is

unproductive, because many voters will already have

voted. In Anzona voting begins 33 days before

Election Day.® Long Distance Voter, Early Voting

Rules, at http://www. longdistancevoter.org’

early voting _rules#arizona, and many voters avail

themselves. For example, of 315.879 total votes cast

in Pima County in the 2010 gubernatorial general

election, 200,158 ballots were submitted before

Election Day. Election Summary Report, Pima

County, af http://www.pima. gov elections/results.

htm. Consequently, “media needs to be up, and

running heavy, when the ballots go out.” Gary

Nordlinger, Farly Voting: Impact on Campaign

Strategies, Training, Budgets, in Winning Elections,

supra, at 124. Third, late spending is ineffective,

because most voters choose their candidates well

before Election Day. Jd. at 122; see also Stuart

Rothenberg, Final Stretch Not os Important as You

Think, available at http://rothenbergpoliticalreport.

com/news/article/final-stretch-not-as-important-as-

* Most states now offer early voting. Nat'l Conf. of State

Legislatures, Absentee and Early Voting, at

http: www oneslorg/default.aspx?’tabid= 16604.

you-think (2010). In reality, candidates try to spread

their media advertising — their greatest expense,

Judith Trent & Robert Friedenberg, Political

Campaign Communication 372 (2008) — over as

many weeks as they can afford while achieving a

heavy enough media presence to make an impact.

Tobe Berkovitz, Political Media Buying (1996), at

http://www.hks.harvard.edu/case/3pt/berkovitz. html.

Even if the matching provision did on occasion

affect the timing of a candidate’s spending, it would

be incorrect to conclude that the state is thereby

chilling speech. After all, many decisions concerning

when to spend campaign funds are influenced in

some way by state action. For example, federal

candidates regularly make a big fundraising push

shortly before the end of an F.E.C. reporting period,

in order to demonstrate momentum. See David

Leventhal, January Fund-Raising Mania , at

http://www.opensecrets.org/news/2011/01/ceo-1-31-

ll.html (Jan. 31, 2011). Candidates may avoid

advertising on holiday weekends, when _ voters’

attention is likely to be elsewhere: most holidays are

scheduled by state action. The state action of

allowing early voting influences the scheduling of

campaign spending. In fact, Election Day itself is

scheduled by the government. By Petitioners’

reasoning, the fact that candidates are unlikely to

spend heavily too far before Election Day — or for

that matter, after Election Day — is equally an

example of state action chilling political speech. It

would be far-fetched to maintain that the scheduling

of Election Day (or holidays or a deadline for

disclosing funding) exerts a chilling effect on speech.

It is equally far-fetched to maintain that the alleged

incentive to delay campaign spending provided by

the matching provision exerts a chilling effect

3 Neither Arivona’s Pubhe Financing

Svstem as a Whole Nor the Trhyyered

Matehing Funds Provision) Discrim.

inates Against Privately Financed

Candidates.

There is equally little ment to Petitioners’

complaints that the matching provision

discriminates agamst privately financed candidates

There is nothing discriminatory im the

appheation of the Arizona statute to multr-candidate

races. Vetitioners object to the possitihty that one

eandidate’s high spending could trigger additional

funds to more than one rival candidate, thereby

allegedly weighting the seales untairly against the

hugh spending candidate. But it is plain that

additional funding at an equal level all around does

not in itself worsen the odds of any given candidate

In fact, candidates often benefit when voters opposed

to them are spht between more than one candidate

See, e.g... don Walker, NY 23: Der Otoens Catches a

Lucky Break —- Another Three-Wav Race. ai

http: elections. firedoglake com 201009 23 nv-23-

dem-owens-catches-a-lucky-break-another-three

Wav-race (Sept. 238, YOO) To avert just such a

scenarto, the national Repubhean Party refrained

from funding the campaign of the Repubhean

nominee in amicus curiae Ned Lamont’s 2006 Senate

race in Connecticut, for fear of splitting the anti:

Democratic vote. after Mr. Lamont deteated

incumbent Senator doseph Laeberman oin- the

primary, and Sen. Laeberman sought re-election as

an Independent. Anne Kornblut, GOP Deserts One

of Its Quon for Lieberman, NY. Times, Aug. 19. 2006,

http. www nvtimes com 2006 US Te nvregion T8eEnn

Atm,

Nor does the Clean Elections resmme

discrimimate against privately financed candidates

when it counts independent expenditures against a

publicly financed candidate, as well as opponents

spending, for purposes of caleulating matehing

funds. From the perspective of a candidate, as arc

can attest, independent advertising against the

candidate has the same impact as advertising by an

opposing candidate. Given the proportion of election

expenditures omade by entities other than

candidates, see GAO, Campaign Finance Reform

Additional Information, GAQ-10-391S8P 4o thhal. a7

thh 44 (lOO), af http www gao gov new items

dlO89isp. pdt (S22 omihon om independent

expenditures reported im YOOS Arizona legislative

olections compared to $2.1 mailhon spent by privately

financed candidates), candidates would be less Likely

to participate in-a public tinaneing system that did

not provide funds to respond to adverse independent

expenditures The diffieultw of veritving that

nominally undependent expenditures are truly

independent only strengthens the case for counting

them in the matching funds calculation

That difticultw ous exacerbated bv the lack of

transparency surrounding the sources of funding for

independent expenditures. See Laisa Rosenberg, Impotené

FEC Fails to Act on Disclosure Rules. at

http: sunhyehtfoundation com blog taxonomy term

Finally, the ebvieus reminder te all of

Petitioners’ allegations of disadvantages to privately

financed candidates is that many candidates

continue to opt for private funding. See rd ato tbl.

(o1.2 So of Ameena lemslative candidates chose

private funding in 2OOU-2008) Candidates would

not choose private funding unless thev expected to

benetit from dome, so

In sum, there is ne evidence that the matching

provision of the CCEA deters speech, discriminates

against: privately financed candidates, or ain any

other way infringes expressive rights

is The Fear Of Opposing Speech Does Not

Constitute A “Chill? On Speech As That

Term Is) Understood Under he

Constitution

Even im ano umaginarv world ino which the

matehing funds trigger provision deterred many

privately tinanced candidates trom broadcasting

their messages as widely as they otherwise would,

this would not constitute a “chilling effect” in the

constitutional meaning oof that phrase An

examination of the contexts in which this Court has

found debate to be chilled reveals that itis non

speech retahation (or threats or the possibilty

thereof which give rise toa “chilling efYeet”

The ecrucial distinetion ous between two

quahtatively different wavs in which ome mav seek

Transparency (dan 21, VOR) Qonly 41%o of groups making

independent expenditures im LOLO federal elections

reported funding sources)

to “defeat” speech with which one disagrees. through

persuasion or through coercion, One may seek to

persuade bv countering the speakers ideas with

other ideas, re. through the classic remedy of “more

speech” Alternatively, one omav take the

disagreement out of the realm of words and ideas

altogether and into the realm of coercion, through

crude violence oor, for example, through = the

possibility of “econonne reprisal, loss of emploviment,

threat of physical coercion” NAACP & Alabama ea

rel. Patterson, 3857 US. 449, 462 (i958), It is the

latter sort of response that chills debate, directly or

incidentally. By contrast, the threat that speech wall

be responded to wath speech im taver of another

Miewpornt othe only threat posed by the matching

provision does mot chill debate To the contrary,

such a response is debate

A survey of reeogmized chilling effects reveals

that they all involve some degree of coercion,

through the Chreat of some sort harmon the material

world. The following situations have repeatedly

been found to chill speech *

* Other factors may chill speech insetar as thev lead to

the listed sorts of outcomes Requirements to identity the

author of a leaflet or te disclose membership lists, tor

example, mavo chill speech. or asseciation fer speech,

when they could plausibly expose the author or member

to wovernment oor community reprisals Jade

California, 8362 US) 60, 64-65 (1980), Patterson, 857 US

at 46.

¢* Criminal penalties, or threats or the possibility

of prosecution” Virginiaio) Black, S88 US) 843,

365 (L008) (plurality opimon), Ashcroft oo Free

Speech Coalition, 5385 US. 234, 244 (2002)

* Government or private threats, harassment, or

reprisals. Doe v. Reed, 130 8S) Ct. 2811, 2821

(L010) (cating Buckley, 424 US. at 74). Hynes:

Oradell, 425 US. 610, B26 ULYTO) (Brennan, df.

concurring)

¢ Pubhe bostilitv and threats of violence Grbson

’

ve Fla’ Legislative Investigation Comm. 3

US. 539, 557 (1983), Patterson, 857 US. at 462

threats thereot) Sheet Metal Workers’ Int] Assn

to dynam, 488 US) 347, S55 (I9S2) (regarding

statutory tree speech oo rights) Lerry it

Sindermann, 408 US. 5938, 597 (aT L)

States 0. Treasury: Emplovees, OVA US 454.

468-69 (1995), Minneapolis Star & Tribune Co

t. Minn. Comer of Revenue. 4860 US ATH, 4a”

(18s)

Bar, 4OLrues 7 qia7y

The doctrine that speech is chilled bw laws that are

varue, amburuous. or difficult to understand, Cruces

United, 180 S Ct at S89, 894-96; NAACP ¢ Button, 371

US. 418, 482-88, 487-88 (1963), OF overbroad, Virginia :

Hicks, SBM US LES 118 (LOR) as based on the attendant

possibility of prosecution

* Risk of cwal ht:gation Gnecluding risk of lability

and the costs and burdens of litigation itself)

kedl Elections Commin vo Wis. Right to Life.

Ine, S51 US. 449, 468 (2007). Arlevw vo Nat?

bean a Blind, AST US 781, 794 (19ss)

°* Harm to reputation or community standing

Denver Area Educ. Telooms. Consortium oo Fed l

Communications Commm, S18 US 727, Toa

(189B). Lamont oo Postmaster General, G81 US

301, 307 (196A)

Unhke the foregoing examples, the “threat”

alleged in this case | that opposing viewpoints wall

be aired ino response fo one’s own Involves No

coercion. Ttas wholly different in Kind from anything

that has ever been found to chill speech, and ts not a

threat of anv legally comnizable harm !® A candidate

has the right to shrink from such debate But his

speech is not being chidled in the constitutional sense

when he does so. His interest in having his speech

unanswered is not an interest protected bv the First

Amendment. Cf Red Lion, 395 US at 3s7 (C[dhe

right of free speech o.. does not embrace a right to

snl out the free speech of others”)

In sum, Petitioners’ argument that § 16-052

chills speech is empimeally unsupported candidate

Indeed, given that the possibility: of opposiiuar speech

does not threaten anv legally cogniable harm to

Petroners, there is some doubt whether they even have

standing to bring this case See laird oo Vata, iOS US

1, 13-14 CaN 72) CAMerations of a sulbvective ‘chill are not

an adequate substitute for a claum of specific present

Obective harm ora threat of specifie future harm)

speech is highly unhkelv to be deterred) And it 1s

Incorrect as a matter of law | af the speech of some

candidates were deterres by the prospect of opposing

speech, that) would not) be oa constitutionally

commivable chilling effect

lit BECAUSE THE CCEA EMPLOYS NON

DISCRIMINATORY MEANS TO ACHIEVE

IMPORPANT ENDS. DAVIS DOKS NOT

CONTROL THE QUTCOME OF THIS CASE

The Arizona trigger provision fundamentally

ditters trom the “Milhonaire’s Amendment.” 2 USC

8 441a-I(a), struck down in Jars, 554 US 724) 1n

both ats ends and means, making Petitioners’

rehance on Daorw unavailing

A Phe Arizona Statute Calls For A> Lower

Level Ot Serutins

The strict serutinv apphed wa JAarrs os

inapplroable to Chis case, because the Arizona statute

does not discriminate in anv ot the wavs that made

the Mbilhonare’s Amendment constitutionally

suspect. This Court apphed striet serutiny in JRrors,

because “the activation of a scheme of diseruminators

contribution linuts ... umposeld] a substantial burden

on the exereise of the First Amendment rusht to use

personal funds for campaign speech” T28 S.Ct at

) keen } |

YIT2 Amvona’s hiw imposes no comparable burden

The scheme struck down ain 7Macis) was

discriminatory in several sigmificant wavs Furst. it

mmposed unequal contrmbution limits on diferent

privately funded candidates seeking the same office

In this wav at was unlike svstems, such as Arivona’s,

in Which candidates may voluntarily agree to accept

lower contribution himits or to refrain) from

acvepting: contmbutions at all after qualifving in

exchange for other advantages. See ido at Y772

(iting Buckley, 424 US at O7 ned) Second. it

discriminated even among high spending candidates

In a Wav that served no legitimate government

purpose one candidate could spend anv amount

without tmggermng higher contmbution limits tor his

opponent, as long as he spent funds raised trom

other contributors, while ao selt-fundine candidate

could otrizger otruple contribution lumits for his

opponent by spending that same amount Such

discrimination violated the precept that) “speech

cannot be limited based on a speakers wealth”

Citizens United, 1380 S.Ct) at 90d Third, 1

discriminated among members of the pubhe,

allowing some to make political contributions three

times as great as other were allowed to make. based

solely oon their pohtical preterences Such

discrimination Violated the constitutional demand

that “each citizen have an equally effective voice

the election” of office holders ARevrolds co Sirs, 3

US SSS. SBS (1964)

By contrast, the pubhe financing system at

issue in this case is mot discriminatory in this or any

other wav As explained by Respondents, (Institute

Br S287), the CCEA does not discriminate

aceurding to speaker, content. or viewpotnt | Nor,

"To Respondents’ discussion of the statute’s viewport

neutrality, arici wish only to add that pust as Arivona

will provide matching funds equally to “pro lite’ and “pro

chore’ candidates, (institute Broa) so too wall at provide

funds equally to candidates who taver puble financing

does the CCEA burden speech ino anv significant

wav, as exphiuned in seetion T, suprao Therefore, it

Is not subject to stmet scrutiny anv more than was

the publhe campaign finaneing svstem this Court

upheld in Bucklev. 424 US. at 90-108, see also Regan

tv Lawation worth Representation, 461 US) 540, 549

(1983) CWe revectec First Amendment challenges

to [the pubhe financing provision in Buckley] without

applying strict scrutiny”)

Indeed, mmven that the Arizona statute does

not impose amy constitutionally recognized burden

on speech whatsoever, see supra, at LIB. it ois not

clear that at should be subject even to intermediate

scrutiny. The only point at which the Buckley Court

indicated that anv degree of heimghtened scrutiny of

pubhe finaneing might be ano order was when

considering an equal protection challenge to) the

demiaal of pubhe financing to minor party candidates

424 US at 93-96. No such equal protection issues

arise in the current case

The CCEA Goes not impose ever incidental

burdens on speech hke the ones potentially imposed

by regulations to which the Court has) apphed

Intermediate scrutinv in the context ef campaiy

finance regulation. Those regulations have been of

two kinds) contribution limits, Randall co Sorrell,

S48 US. 280, 246-48 (L008), Buckley, 424 US at 25,

and disclosure requirements. Cificens United, 13038

Ce at 914, Bucklev, 424 US. at 64-66. Contmbution

himits entail ao “restmetion upon the contmbutors

and those who don't Candidates opposed to public

finanemy: may accept and have accepted publre

campaign funds (See AFEC Br 13-14)

abuhtyv to engage im tree communication, even af

“only a marginal” one, Buckley, 424 US) at 20. and

they constrain “one aspect of the contributor’s

freedom of political association” Jd at 21. The

Arnivona statute imposes noo such restriction. or

constraint. Disclosure requirements “mav burden

the abrlityv to speak” in some cireumstances, such as

When disclosing the identity of a speaker mav lead to

“threats, harassment, or reprmsals” against the

speaker. Citizens United, 180 8S) Ct. at 9140 The

Arigona statute imposes no such potential burden.

It as not clear, therefore, that the Clean

Elections Act impheates mehts protected bv the First

Amendment in a wav serious enough to warrant ary

torm of heaghtened scrutinv. But two things at least

are certain first, the strict) scrutiny: exvereised in

Davis is mappheable, and seeond, the Act readily

withstands intermediate review

th The CCEA Serves Important State

Interests

l The Statute Reduces Corruption and

the Appearance of Corruption

This Court) has repeatedly recognized

preventing: corruption and the appearance thereof as

not pust important, but compel/itsg. state interests in

campaign finance regulation Fig, Beal Election

Commn ov. Natl Conservative Political Action

Comm, 470 US.) 480, 496-497 (19S) Cpreventing

corruption or the appearance of corruption are the

only... compelling government interests thus far

identified for restricting campaign finances’), accord

Devis, (IS S.Ct. at 2773. The Mblhonaire’s

Amendment was found to disserve that interest, both

because it discouraged use of personal funds, thereby

increasing rehance on outside contmbutors, and

because In some cases it raised contribution limits,

thereby increasing contmbutors’ potential intluence.

Dos, 128 SCt at 2778.) By contrast, the Anvona

statute provides candidates an alternative to relving

on private contmbutions. Cf Buckley, 424 UlS. at 96

Cpubhe financing as a means of ehminating the

improper influence of large private contmbutions

furthers a significant governmental interest’). The

challenged matehing provision makes it more

attractive for candidates to take advantage of this

alternative,’ by assuring that they will be able to

remain competitive even against highly funded

opponents

Petitioners back handedly coneede this point in

obyecting that the provision provides foo muck incentive

to participate, alleging that ome Petitioner “was coerced

Into runmng as aoopublicly financed candidate.”

(MeComish Br. 45) The claim of coereiveness is far-

fetched so In reahtv, as was found regarding Manne’s

nearly adentical publ financing system, the CCEA

“provides incentives to candidates to make the pubhe

financing route attractive, but the incentives hardly are

overwhelming or of an order that can be said to creats

profound disparities ” Dagvert oo Webster, 74 F Supp 2d

53,57 (DD Me. 1999), affd sub nom Daggett o. Stearns,

20S F Sd 445 (Ist Cir ZOO)

2. That the Act May Also Serve the

Purpose of Enhancing the Variety of

Pubhe Debate Does Not Render It

Constitutionally Suspect.

Petitioners’ argument that the rea/ interest

served by the Clean Elections Act is to “equalize

electoral opportunities, resources, and influences” or

“levell] the plaving field.” (e.g. MeComuish Br. 64), is

a misleading distraction.

As the dectsion below makes clear, it can

hardly be demed that the Arizona statute serves the

anti-corruption purpose. 611 F.3d at 525-27. If it

also serves another interest, that does not detract

from the Act's principal purpose or somehow render

it constitutionally suspect. When more than one

interest is prottered by the state. itis suffleent that

one of those interests is weighty enough to meet the

requirements of heightened scrutiny, whether

intermediate or strict scrutiny is applicable. See

Doe, 1380 8. Ct. at 2819 (because the State's interest

In preserving the integrity of the electoral process

was “undoubtedly important,” there was no need “to

address the State's ‘informational’ interest” in the

Public Records Act) (Gntermediate — scrutiny);

Washington State Grange v. Wash. State Republican

arty, 552 US. 442, 446 (2008) (after “rejectling] as

legitimate three of the (state’s] asserted interests”

for Cahforma’s blanket) primary, proceeding to

consider whether “the remaining interests ... were ...

compelling”) (strict scrutiny).

Moreover, notwithstanding Petitioners’

objections to an “illegitimate” government interest at

play, (AFEC Br. 60), this Court has never indicated

that the public’s exposure to more wide-ranging

political discourse — or expanded opportunities for

political participation — are not worthy purposes.

Rather, the Court has held that certain means of

achieving those goals are illegitimate, in particular

the means of “restrictling] the speech of some

elements of our society in order to enhance the

relative voice of others.” Buckley, 424 U.S. at 48-49.

What Petitioners describe as an interest in

equalizing electoral influences could more accurately

be described as interest in assuring that a variety of

voices is heard, a government interest recognized as

important by this Court. See supra, at sec. LA. See

also Turner Broad. Sys. v. Fed. Communications

Comm'n, 512 U.S. 622, 663 (1997) Cassuring that

the public has access to a multiplicity of information

sources is a governmental purpose of the highest

order, for it promotes values central to the First

Amendment’).'5

That interest underlies the First Amendment

itself, and could be sufficient on its own to justify §

16-952. But it does not need to be, as the statute

serves the important interest of lessening

opportunities for —- and perceptions of — corruption.

If the statute is also motivated in part by an interest

'S Turner Broadcasting concerned regulation of broadcast

media, a context in which more government regulation

may be appropriate than elsewhere. Buckley, 424 U.S. at

49. But assuring that a variety of voices is heard about

issues of public concern remains an important interest,

even if it does not, in non-broadcast contexts, justify

measures that limit freedom of expression.

in promoting more wide-ranging debate, that in no

way undermines its legitimacy.

CONCLUSION

Because the Arizona statute addresses the

compelling problems of government corruption and

the appearance thereof in a way that promotes the

values of the First Amendment, without infringing

any protected liberties, the judgment of the Court of

Appeals should be affirmed.

Respectfully submitted,

THOMAS BENNIGSON

Counsel of Record

SETH E. MERMIN

PUBLIC GOOD LAW CENTER

3130 Shattuck Avenue

Berkeley, CA 94705

(510) 548-4064

tbennigson@publicgoodlaw.org

Counsel for Amici Curiae

February 21, 2011

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