# Amicus Curiae Brief — Arizona Free Enterprise Club's Freedom Club PAC v. Bennett > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0642%3A34 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2010 - **Citation:** 562 U.S. 1060 ## Text , e ‘ ' Nos. 14238 and 10-289 oe a In The Supreme Court of the United States e oe ARIZONA FREE ENTERPRISE CLUBS FREEDOM CLUB PAC, et al, \ KEN BENNETT, et al. Respondents —— — -----@ JOHN McCOMISH, et al. \ KEN BENNETT, et al, Respondents oe 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 a THOMAS BENNIGSON Counsel of Reeord SeTrHh E Merain PUBLIC Goop LAW CENTER 3130 Shattuck Avenue Berkeles, CA 94705 Sl A {S. 1004 ~ 1 2 . thennigsonepubleogoodlaw org . . . * > 50 & os: .-* - Q ia Sey { A rene ( ae scat TABLE OF CONTENTS TABLE OF AUTHORITIES.......:.cccccsscousnetucetaeel NV INTEREST OF AADTICT. .....5:i 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 vl 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 od 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 IN 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 “-. Fd 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 OG 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. x 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 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’ os ae 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. a) ¢* 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 © Lass of employment or professional status or 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) © Loss of monev or forgone earnimas U'rnrted States 0. Treasury: Emplovees, OVA US 454. 468-69 (1995), Minneapolis Star & Tribune Co t. Minn. Comer of Revenue. 4860 US ATH, 4a” (18s) © State withholding of benetits Barrd oo State 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 1) * 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. ve To 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 39 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0642%3A34. Public record. Not legal advice.