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

,

’

Nos. 10-238, 10-239

Supreme Court of the Anited States

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ARIZONA FREE ENTERPRISE CLUB'S

FREEDOM CLUB PAC, ef

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sali ®

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KEN BENNETT ef al.

Respondents

Se ee

JOHN MeCOMISH, ef al,

Petafroner s,

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KEN BENNETT. ef @l.,

Respondents

>______ . -—- @ ——_ _- ————__. _-

On Writs Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

——_----- - -@-

BRIEF OF AMICUS CURIAE

UNION FOR REFORM JUDAISM

IN SUPPORT OF RESPONDENTS

- —_ ¢. —

GARVEY SCHUBERT BARER

ANDREW J. GOODMAN, Esq

Counsel of Record

DAVID SAPERSTEIN, Esq

MARK PELAVIN, Esg

RELIGIOUS ACTION CENTER

100 Wall Street, 20th Floor OF REPORM JUDAISM

New York, New York LOQOS 2027 Massachusetts

(212) 965-4534 Avenue, N.W

ayoodmanegsblaw.com Washington, DC 200386

Attorneys for Amicus Union for Reform Judaism

CVECALP LAW BRAUER P PRINTING OO) S00 Jo. oe

OR CALL COLLECT @00) Mey UNA

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................0.00.00...... ne

STATEMENT OF INTEREST ...................0....... . &

SUMMARY OF ARGUMENT oo... ee

oe i aries cmieunnanmacbaastonnsesaemncas 4

NI aici ycuas cine neend «accrue odacasucaeconectosacs 19

ul

TABLE OF AUTHORITIES

Page

CASES

ere v. Michigan Chamber of Commerce, 494

8 RES ne ens annie ET 6

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

Citizens United v. Federal Election Commis-

ston, _ULS. — , 1380 S.Ct. 876 (2010) .....4, 6, 7, 18

Daggett v. Commission on Governmental Ethics

and Election Practices, 205 F.3d 445 (1st Cir.

IT din cup icaininacpiscied sinbchscouteis eneanepnacaiedesacmaaedlancanad passim

Davis v. Federal Election Committee, 554 U.S.

eM Ce Seo OY ae 12, 13, 15, 16

Day v. Holahan, 34 F.3d 1356 (Sth Cir. 1994) 20000... 12

Fed. Election Comm'n v. Colo. Repub. Fed.

Campaign Comm., 533 U.S. 431 (2001) ........0.00..... 17

Fed. Election Comm'n v. Massachusetts Cuitt-

zens for Life, Inc., 479 U.S. 238 (1986)............0..... 17

Gable v. Patton, 142 F.3d 940 (6th Cir. 1998)............ 11

Green Party of Connecticut v. Garfield, 616 F.3d

LR” ie SERSRIRSS pss Bae series Ss Sila ue 15

McComish v. Bennett, 611 F.3d 510 (2010)........ 3,4, 18

McConnell v. Federal Elections Commission,

a a adc ndaeeelamramuaaneaiene 7

Mills v. Alabama, 384 U.S. 214, 86 S.Ct. 1434,

Oe ee ee as CI, -.. ssauccubacangeneneunesevenssseet 5

Monitor Patriot Co. v. Roy, 401 U.S. 265, 91

BCR. GEE, BB Fe. Fe. BO CGT 1) on cseccsccccvesesesessccesees 5

ill

TABLE OF AUTHORITIES — Continued

Page

New York Times Co. v. Sullivan, 376 U.S. 254,

84 S.Ct. 710, 11 L.Ed.2d 686 (1964) ...0000 0. 5

Nixon v. Shrink Missouri Gov't PAC, 528 U.S.

TET TES ree a ae MC 2D an FA 17

North Carolina Right to Life Committee Fund

For Independent Political Expenditures. v.

Leake, 524 F.3d 427 (4th Cir. 2008)......00.0000..... 10, 17

Pacific Gas & Elec. Co. v. Public Utils.

Yommn, 475 U.S. 1, 106 S.Ct. 903, 89

nee an en enseineinuecuubennadbieicieiesueed 8

Republican National Committee v. Federal

Election Commission, 445 U.S. 955 (1980) ........ 7,16

Rosenstiel v. Rodriguez, 101 F.3d 1544 (8th Cir.

ac Dea a aniedanmel omneniindionnioenion 12

Roth v. United States, 354 U.S. 476, 77 S.Ct.

1904, 1 L.Ed.2d 1496 (1967) .......ccccocccccscccccccccseccssceee 4

Scott v. Roberts, 612 F.3d 1279 (11th Cir. 2010)........ 15

Vote Choice, Inc. v. DiStefano, 4 F.3d 26 (1st

SRE SD cit Ur sei ee MSE re em 18

Winters v. New York, 333 U.S. 507, 68 S.Ct.

Sa EE Mast, GUO IIIUD c.cidsccciunesconecesincovsecosenceducwents 5

STATUTES

Arizona’s Citizens Clean Elections Act, Ariz.

EG” RRR TER ate pneeetio ene hehe evo Ren err reer 2

iv

TABLE OF AUTHORITIES — Continued

Page

PUBLICATIONS

Action Alert, Feb. 1, 2010 NAACP-Supported

Public Financing of Congressional Cam-

I TIE ‘cinricnssemnoniieaeionninamiendtiehdpidanisedéanatnantininsiabnddene 15

Campaign Finance Reform 2000 Action of

Immediate Witness, Universalist Association

I cn cicasccncenicnidcmietatineneetserenmesons 14, 15

Lift Every Voice: Democracy, Voting Rights and

Electoral Reform Presbyterian Church

eae, SII A SUES sisesioncibietiodnccrneneieinemiissinenincinininionaeicondi 14

New York Times, Aug. 21, 1999, p. AQ, col. 1............. 13

Note, 122 Harv. L. Rev. 375, 381 (2008) .............. 13, 16

Politics and The Constitution: Is Money

Speech? J. Skelly Wright, 85 Yale L.J. 1001

MEE ERIS RSA AL RRS TANS is Cane ae RON aN 18

Release, April 19, 2010 ACLU Board Addresses

Campaign Finance Policy .......................cccceeeeeeee eee 15

MISCELLANEOUS

I TIT cnscccsssicsereninmnbniitnnnitineienmniieinasiaentdintti 2

General Board of Church & Society of the

United Methodist Church Resolution #5071,

BAR EAE CRE ES RES 1 28. Re ES Co 13

Resolution, Congressional Campaign Finance

Reform Board of Trustees, May, 19864 .................... 14

Talmud, Tractate Ketubot, 105b.............0.0....c cee eee eee 1

Sy SN: MIEN TD \vciceeenovcnninisionmnnsssnnionnmmenimionind passim

STATEMENT OF INTEREST

The Union for Reform Judaism (“URJ”) consists

of approximately 900 member congregations dedi-

cated to the practice of Reform Judaism in North

America. For the past tiftv vears through its Reh-

gious Action Center (“RAC”), the URJ has been, and

remains, actively engaged in many of the ethical and

moral issues confronting our country. The URJ estab-

lishes positions on these crucial questions by resolu-

tions presented to its representative bodies, including

its Mennial plenary congregational assemblies and its

Board of Trustees. Both the UR itself. and the

organization of Rabbis serving the Reform Jewish

Movement the Central Conference of American

Rabbis - have passed repeated resolutions supporting

campaign finance reform as of central importance to

the effective functioning of a democratic nation.

For amicus URJ, these resolutions reflect: pre-

scient ancient doctrine. The Talmud — a collection of

Rabbinic writings that form the basis of Jewish law -

warns that “as soon as a man receives a gift from

another he becomes so well disposed towards him that

he becomes hke his own person, and no man sees him-

self in the wrong.” Talmud, Tractate Ketubot, 105b.

Even from the days of the Pentateuch, our sages

have warned against undue influence which “blind

' This bnet is filed with the wntten consent of all parties

The letters of consent are on file with this Court. Ne counsel for

a party authored ths brnet in whole erin part, and no counsel or

party funded its preparation or submission

to

the eves of the discerning and upset the plea of the

just.” Deuteronomy, 16:19. As the ancients recognized,

any time something of value changes hands, the poten-

tial exists for those in position of power to see the

world in a tinted hue. Public financing, when volun-

tarily accepted, provides resources for candidates to

make their case to the public in a manner that is free

trom any opportunity. of unintentional distortion

Publiely financed candidates should not be penahzed

for voluntarily accepting funding that accomplishes

this aneillary good, and matching funds ensure the

means to remain competitive in a manner that tacth-

tates additional speech rather than restricting the

speech of others

SUMMARY OF ARGUMENT

As the Ninth Cireuit succinetly summarized

This ts a challenge to the constitutionality of

the “matching funds” prevision of Arizona's

Citizens Clean Elections Act, Amz. Rev. Stat

$ 16-952. The Act establishes a legal frame-

work within which the State of Arizona may

provide pubhe financing to candidates for

state pohtical offices. A candidate who chooses

to participate in the Act’s voluntary public

financing scheme relinquishes her or his right

to raise private campaign contributions.

Instead, she or he receives an initial grant of

funds from the state to spend on her or his

campaign. The challenged provision ensures

that if the participating candidate has an

opponent who is not participating in the publie

financing system and whose campaign expen

ditures or contmbutions exceed a threshold

set by the Act. she or he receives additional

matching funds trom the State.

MeComiush vo Bennett, 611 FE 38d 510, 518

But the additional matching funds are not unlim.

ited:

During both elections, matching funds, com-

bined with the imitial grant, may not exceed

three times the amount of the initial grant

Ariz. Rev. Stat. § 16-952(E). This means that

a nonparticipating candidate who is able to

raise funds in excess of three times the

amount of his or her participating candidate's

intial grant gains a potentially unhmuited

financial advantage in the campaign

ld at p. 517. Nevertheless, it is the non-participants

who are seeking to invalidate the statute.

The Ninth Cireuit rejected the challenge and

upheld the statute. As Judge Nleinteld noted in con-

currence, “Because the challenged scheme imposes no

contribution or spending limits, it does not restrict

speech at all..." Jd at p. 528. Judge Nleinfeld went

on to explain:

But the First Amendment does not protect

the candidate's interest In winning, just his

interest in being beard. There is no First

Amendment right to make one's opponent

speak less, nor is there a First Amendment

right to prohibit the government from subst-

dizing one’s opponent, especially when the

same subsidy is available to the challenger if

the challenger accepts the same terms as his

opponent,

ld. at p. 529.

From Buckley o Valeo, ALA US 11976) through

Citizens United vo Federal Election Conmimuission,

US. _—, 180 SCt. S76 (2010), the consistent core

teaching of this Courts campaign finance juris:

prudence is “to assure (the) unfettered interchange of

ideas for the bringing about of political and social

changes desired by the people” Bucklev vo Valeo, 424

US. at 14, quoting Roth vo United States, 354 U.S

476, 484 (1957). Thus, where, as here, the campaign

finance regime enhances, rather than restricts,

debate it not only passes constitutional muster, but

indeed furthers the goals and olyectives of the First

Amendment

Accordingly, and tor the reasons set torth below,

antcus respectfully requests that the decision of the

Ninth Circunt Court of Appeals be affirmed

—___—_—_—_—_—- @

ARGUMENT

In sustaining limits on campaim contributions

but not on expenditures, the Buckley Court: estab.

lished the appheable analytical framework:

The First Amendment affords the broadest

protection to such political expression in

order “to assure (the) unfettered interchange

of ideas for the bringing about of polities!

and social changes desired by the people ~

Roth vo United States, 854 US. 476, 484, 77

S.Ct. 13804, 1808, 1 L.Ed 2d lags (1957)

Although First Amendment protections are

not confined to “the exposition of ideas,” Win

ters v. New York, 333 U.S. 507, 510, 6S SC

665, 667, 92 L-Ed S40 (1948), “there is prac

tieally universal agreement that a major pur

pose of that Amendment was to protect the

free discussion of governmental affairs

of course includung) discussions of cand-

dates " Mills v. Alabama, 384 U.S. 214,

218, S86 S.Ct. 1434, 1437, 16 L.Ed.2d 48-4

(1966). This no more than reflects our “pro

found national commitment to the principle

that debate on publhe issues should be un-

inhibited, robust, and wide-open.” New York

Hermes Co. vt. Sullivan, 376 US. 254, 270, 84

S.Ct. 710, 721, 11 L.Ed.2d 686 (1964). In a

repubhe where the people are sovereign, the

atmhty of the citizenry to make intormed

choices AMOony candidates for office is essen-

ual, tor the identities of those who are clected

will inevitably shape the course that we fol-

low as a nation) As the Court observed in

Monitor Patriot Co. cv. Rov, 401 US. 265, 272,

91 S.Ct. 621, 625, 28 L.Ed.2d 35 (1971), “at

ean hardly be doubted that the constitutional

guarantee has its fullest and most urgent

appheation precisely to the conduct of cam-

pains for political office "404 US) at 14-15

es

The very purpose of the First Amendment is to

“secure the widest possible dissemination of intor-

mation from diverse and antagonistic sources ” Jd at

49-50

dust last vear in Crficens United, supra, the Court

again re-emphasized the importance of the “open mar-

ketplace of ideas protected by the First Amendment ”

130 S.Ct. at 906. Speaking for the majority, Justice

Kennedy there wrote that “it 1s inherent in the na-

ture of the political process that voters must be free

to obtain information from diverse sources in order to

determine hew to cast their votes.” 7d at S99, and

again that “itis our law and our tradition that more

speech, not less. is the governing rule” Jd at 911

Citizens United overruled Austin oo Michigan

Chamber of Comimerce, 494 US. 652 (1990), adopting

the rationale of Justice Kennedy's Ausfin dissent

which noted “we contront here society's interest im

free and informed discussion on political issues, a

discourse vital to the capacity for self government.”

494 US. 698-699.

The touchstone, then, of this Court's analysis in

each campaign finance decision is whether on balance

the restriction promotes or inhibits speech. Those

schemes that on the whole restmet speech, have been

rejected as in Crfizen’s United, while those that do not

are upheld. So, for example, this Court has uniformly

sustained “disclammer and disclosure requirements,”

even though they “may burden the ability to speak

but they ‘impose no cethng on campaign-related

activities’ and ‘do not prevent anvone from. speak

ing” Citizens United, 130 S.Ct. at 914, quoting Buck

lev, 424 US. at 64 and McConnell vo Federal Elections

Commission, 540 US. 93, 201 (2003)

Likewise, by memorandum in Repudlican Nation

al Committee v. Federal Election Commission, 445 US

955 (IYSO), this Court affirmed Judge Mansfield’s

decision on behalt of a three judge District Court, 487

Supp. 280 (S.D NY) 1980), sustaining the Presiden-

tial Election Campaign Act of 1971 OPECFA’) against

constitutional challenge There, the plaintiffs attacked

condoning elynbility for public campaign funds upon

comphance with expenditure limitations. In rejecting

that contention, Judge Mansfield, affirmed by this

Court without comment, wrote that “The Fund Act

merely provides a presidential candidate with an

additional funding alternative which he or she would

not otherwise have and does not deprive the can-

didate of other methods of funding which may be

thought to provide greater or more effective exercise

of rights of communication or association than would

pubhe funding.” 487 FSupp. at 285) Judge Mansfield

concluded that “as long as the candidate remains free

to engage in unlimited private funding and spending

instead of limited public funding, the law does not

violate the First Amendment rights of the candidate

or supporters.” Jd) at 284.

The First Cireuit Court of Appeals in Daggett v

Commusston on Governmental Ethics and Election

Practices, 205 F.3d 445 (ist Cir, 2000) applied the

rationale of Republican Natironal Committee. supra,

S

in upholding Maine's campaign finance statute. 205

F.3d at 467) Using a mechanism quite similar to

Arizona's statute, Maine provides an initial grant,

and then a dollar for dollar match of funds raised by

non-participating opponents above the initial grant,

up to double of that first grant. Plaintifs challenged

the matching funds scheme, positing, as the Ciremt

Court characterized it, “a claim of a First Amendment

right to outraise and outspend an opponent, a right

that they complain is burdened by the matching funds

clause.” 205 F3d at 464. Recognizing that the match-

ing funds provision enables response and thereby

broadens the marketplace of ideas, the First Cireunt

soundly reyected that argument in rehance on Buck

lev's holding that enhancing debate is precisely the

object of the First Amendment

Moreover, the provision of matching funds

does not indirectly burden donors’ speech

and associational rights. Appellants miscon,

strue the meaning of the First Amendment's

protection of their speech. They have no right

to speak free from response — the purpose of

the First Amendment is to “‘secure the “wid-

est possible dissemination of information from

diverse and antagomistic sources.” °” Buckley,

424 ULS. at 49, 96 S Ct. 612 (citations omit-

ted); see Pacific Gas & Elec. Co. vo. Public

Utils. Comm'n, A475 US. 1, 14, 106 S.Ct. 908,

89 L.Ed.2d 1 (1986) (there exists no myght

to speak “free from vigorous debate”). The

public funding system in no way limits the

quantity of speech one can engage in or the

amount of money one can spend engaging in

9

political speech, nor does 1t threaten censure

or penalty for such expenditures. These facts

allow us comfortably to conclude that the

provision of matching funds based on inde-

pendent expenditures does not create a bur-

den on speakers’ First Amendment rights.

In language equally appheable to the Arizona

statute, the First Circuit further explained why

matching funds do not burden the non-participant:

We cannot say, however, that the matching

funds create an exceptional benefit for the

participating candidate. Maine's Act does not

provide an unlimited release of the expendi-

ture ceiling it allocates matching funds

for the participating candidate of only two

times the initial disbursement. Thus, a non-

participating candidate retains the ability

to outraise and outspend her participating

opponent with abandon after that limit ts

reached. Further, the non-participating can-

didate holds the key as to how much and at

what time the participant receives matching

funds.

. . ~

Moreover, the participating candidate, not

having any way of foreseeing the timing or

amounts of any matching funds, is unable to

budget, to commit time for radio or tele-

vision, or to plan, produce, or distmbute

printed material.

205 F.3d 468-469.

10

In North Carolina Right to Life Committee Fund

For Independent Political Expenditures v. Leake, 524

F.3d 427 (4th Cir. 2008), the Fourth Circuit upheld an

identical North Carolina matching funds statute,

finding that matching funds further First Amend-

ment values as held in Buckley. and do not chill or

penalize the non-participant.

Our analysis must begin with the Supreme

Court’s decision in Buckley v. Valeo, 424

US. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976).

The Court made clear in Buckley that public

financing of political campaigns does not, in

itself, violate the First Amendment. 424 U.S.

at 57 n. 65, 96 S.Ct. 612. In fact, the Court

observed that the Federal Flection Campaign

Act’s (FECA’s) public financing scheme “fur-

thers, not abridges, pertinent First Amend-

ment values” because it “facilitatels] and

enlarge|s] public discussion and participa-

tion in the electoral process, goals vital to a

self-governing people.” Jd. at 92-93, 96 S.Ct.

612.

524 F.3d at 436.

. * ~

The thrust of the plaintiffs’ First Amendment

argument against the matching funds pro-

vision is that it “chill[s| and penalize|s} con-

tributions and independent expenditures

made on behalf of [nonparticipating] candi-

dates.” Appellants’ Br. at 32. The plaintiffs

argue that their political speech is chilled

because spending in excess of the specified

11

trigger results in public funds being dis-

bursed to a participating candidate whom

the plaintiffs do not support. Therefore, ac-

cording to the plaintiffs, they choose to spend

less money (and thus engage in less political

speech) in order to prevent candidates they

oppose from receiving public funds.

* » *

The plaintiffs remain free to raise and spend

as much money, and engage in as much polit-

ical speech, as they desire. They will not be

jailed, fined, or censured if they exceed the

trigger amounts. The only (arguably) adverse

consequence that will occur is the distribu-

tion of matching funds to any candidates

participating in the public financing system.

But this does not impinge on the plaintiffs’

First Amendment rights. To the contrary, the

distribution of these funds “furthers, not

abridges, pertinent First Amendment values”

by ensuring that the participating candi-

date will have an opportunity to engage in

responsive speech. See Buckley, 424 U.S. at

92-93, 96 S.Ct. 612.

524 F.3d at 437." See also Gable v. Patton, 142 F.3d

940 (6th Cir. 1998) (upholding Kentucky's post-

trigger matching statute, even though post-trigger

* Thus, contrary to the amicus brief for the Center for Com-

petitive Politics (at p. 13), matching funds do not intervene in

the debate; they in truth enable and enhance the debate.

12

public match was double the amount raised by non-

participant).

Before Davis v. Federal Election Committee, 554

U.S. 724 (2008), the one outher taking a contrary po-

sition on matching funds was Day v. Holahan, 34 F.3d

1356 (8th Cir.1994), which found a chilling effect on

the speech of the non-participant. But the First Circuit

in Daggett rejected Day, succinctly identifying the flaw

in its rationale: “We cannot adopt the logic of Day,

which equates responsive speech with an impairment

to the initial speaker.” 205 F.3d at 465. Moreover, the

Eighth Circuit’s subsequent decision in Rosenstiel v.

Rodriguez, 101 F.3d 1544 (8th Cir. 1996), ruling con-

stitutional a statute that removes participants’ expen-

diture limits when a non-participant raises private

funds in excess of a stated trigger, calls Day's vitality

into question. The Daggett Court explains:

The State, as well as amici, assert that Day

was called into question by the Eighth Cir-

cuit’s subsequent decision in Rosenstiel v.

Rodriguez, 101 F.3d 1544 (8th Cir.1996), which

held that a provision waiving the expendi-

ture ceiling for a participating candidate

once a non-participating opponent reached a

certain threshold did not burden the non-

participant’s First Amendment rights. See td.

at 1553. Although Day involved independent

expenditures while Rosenstiel regarded can-

didate expenditures, the logic of the two

cases is somewhat inconsistent. In Rosenstiel,

the fact that a candidate’s expenditure trig-

gered the release of his opponent’s spending

13

limitation did not burden his First Amend-

ment rights; yet in Day, the fact that a

non-candidate’s spending triggered matching

funds burdened the speaker’s First Amend-

ment rights. We recognize that there may

be a difference between expenditures by a

candidate and those by a _ non-candidate,

but nonetheless agree that the continuing vi-

tality of Day is open to question.

205 F.3d at 464, n.25.

Accordingly, “until Davis, [supra], these [match-

ing] schemes were generally considered constitution-

ally permissible.” Note, 122 Harv. L. Rev. 375, 381

(2008). They have also enjoyed wide-spread public

support.

Faith communities have long recognized the im-

portance of campaign finance reform. “The issue of

campaign financing is far more than a political mat-

ter. It goes to the heart of the ethical and moral life of

a nation.” General Board of Church & Society of the

United Methodist Church, Resolution #5071, 2008

BOR. In August, 1999, more than 20 Christian de-

nominations or churches, the Unitarian Universalist

Association and the amicus Union for Reform Judaism

(“URJ”) formed Religious Leaders for Campaign

Finance Reform, declaring, through Rabbi David

Saperstein of the URJ’s Religious Action Center that,

“campaign finance reform is not an esoteric technical

issue of election regulations, but one that goes to the

essence of the ethical and moral life of our nation.”

New York Times, Aug. 21, 1999, p. AY, col. 1. And so

14

in 1984, the amicus URJ* explicitly endorsed public

campaign finance through matching funds. Resolu-

tion, Congressional Campaign Finance Reform, Board

of Trustees, May, 1984.

Other faith communities reach the same con-

clusion. In 2008 the Assembly of the United States

Presbyterian Church endorsed campaign finance leg-

islation containing matching funds provisions. Lift

Every Voice: Democracy, Voting Rights and Electoral

Reform, Presbyterian Church (U.S.A.), 2008, p. 22.

The Church Assembly’s Stated Clerk recalled in

support the words of Reinhold Niebuhr that “man’s

(human) capacity for justice makes democracy possi-

ble but man’s (human) capacity for injustice makes

democracy necessary.” /d. at p. 1.

However, “The more that access to elected offi-

cials is linked to wealth, the greater the likelihood

that the civil rights of the poor and minorities will be

eroded. Without major campaign finance reforms (i.e.,

clean money reforms that provide public financing

of elections), the prospects for future public policies

that support social and economic justice are ex-

tremely limited.” Campaign Finance Reform, 2000

Action of Immediate Witness, Universalist Associa-

tion of Congregations. Consequently, both the Uni-

versalist Association and the NAACP have explicitly

endorsed campaign finance reforms in all relevant

* Then known as the Union of American Hebrew Congre-

gations.

ls

particulars simular to the Arizona matching funds

regime and the very stmular Maine statute upheld in

Daggett, supra. See Campaign Finance Reform, 2000

Action of Immediate Witness. Universalist Associa-

tion of Congregations; and Action Alert, Feb. 1, 2010,

NAACP-Supported Public Financing of Congressional

Campaigns Bill Introduced in the House and Senate.

Even so avid a guardian of First Amendment

mghts as the American Civil Liberties Union supports

voluntary public financing plans provided “they

ensure candidates have a true choice as to whether to

participate and provide sufficient and equitable fund-

ing tor all legally qualified candidates to run an effee-

live campaign.” Release, April 19, 2010, ACLU Board

Addresses Campaign Finance Pohey.

Since Davis, supra, two Circuits have felt com-

pelled by that decision to hold matching funds stat-

utes unconstitutional. Green Party of Connecticut v.

Garfield, 616 F.3d 213 (2d Cir. 2010); Scott v. Roberts.

612 F.3d 1279 (11th Cir. 2010). With all due respect.

these decisions misread Davis.

First, Davis was not a matching funds case.

Rather, there, if a candidate exceeded a hmit of per-

sonal expenditures on his her campaign. the ceiling

on contributions which his her opponent could accent

tripled, while the non-participant remained subject to

the original cap. Because this put the self-funding

candidate at a serious disadvantage, the Court held it

unconstitutionally burdened his ability to spend his

own money. The reading of Davis by the Green Party

and Scott Courts:

16

oversimplifies and overbroadens the Court's

reasoning, and if ignores fhe critical constitu

tional distinction between government restric

tions on speech and government sudsidies of

speech. While the Court may well set its

sights on asymmetrical public funding, Davrs

is hardly the warning shot these commenta-

tors think it 1s. (Emphasis added)

Note, 122 Harv. L.. Rev. 375, 381 (2008)

Davis is factually inapposite bevond this distine-

tion. Davis treated similarly situated candidates

asymmetrically. This important distinction is empha-

sized by the observation in Davis that if the “elevated

contnbution limits apphed across the board, Davis

would not have any basis for challenging those limits.”

-aOF

554 U.S. at 73%

Conversely here — as upheld by this Court in

Buckley, supra, and Repudlican National Committee,

supra — pubhe “opt-in” financing schemes create two

different groups of candidates based on the candi

dates’ own choices. Opt-in programs bear limitations

which a candidate weighs in making a determination

whether to participate. Thus, unlike in Dacis, the

non-participating candidate in Arizona is never simi-

larly situated and has a choice of various options

available to all candidates. Indeed. by not opting in,

the Arizona privately financed candidate at all mes

retains the potential to outspend the publicly funded

candidate since matching funds are capped

Neither Darrs, nor any other decision of this

Court undermines this core tenet of public campaign

ly

funding jurisprudence: so long as the statute at issue

enhances rather than limits the marketplace of politi

cal ideas it furthers, and does not run afoul of. the

First Amendment. This Court has never struck down

a matching pubhe funds program, and nor should it

start now. The First Cireuit in Daggett? 0. Compission

on Governmental Ethics and Election Practices, supra,

the Fourth Cireuit in North Carolina Right to Liufe

Committee Fund For Independent Political Expenat-

tures v. Leake, supra and the Ninth Cireuit in this

case have it right: public matching funds in the man-

ner and method of the Arizona statute only enhance

and improve the public political debate, for the bene-

fit of us all.

The thrust of Petitioner's contrary argument is

that assured pubhely funded responsive speech bur-

dens contributions to non-participant candidates. But

even if this were true. this Court has never subjected

any restraints on contributions to strict scrutiny.

Fed. Election Comm'n v. Colo. Repub. Fed. Campaign

Comom., S533 US. 431 (2001) (observing that ever

since Buckley the Court has understood that limits on

expenditures deserve closer scrutiny than restmetions

on contrmbutions); Nawon ov. Shrink Missouri Govt

PAC, 528 U.S. 377 (2000) (construing Buckley as

providing that contmbutien limitations warrant less

compelling justification than expenditure limitations);

Fed. Election Comm'n vo. Massachusetts Citizens for

Life, Inc., 479 US, 238 (1986) “We have consistently

held that restrictions on contmbutions require less

compelling justification than restmetions on = inde-

pendent spending”)

1s

Rather, from Buckley through Cifirzen’s United,

this Court has repeatedly and consistently held any

shght burden on adverse party contributions because

of pubhe funding does not, and should not, outweigh

the important public value of the fullest possible open

and free political discourse, an objective only fur-

thered by the Anmzona statute. and matching funds

statutes like it. As the late dudge Skelly Wright

or - - y

recosmized 35 vears ago,

Nothing in the First Amendment prevents

us, as a political community, from making

certain modest but important changes in the

kind of process we want tor selecting our po-

htical leaders. Nothing bars us from choosing

to move closer to the kind of community pro-

cess that hes at the heart of the First

Amendment conception — a process wherein

ideas and candidates prevail because of their

inherent worth, not because prestigous or

wealthy people line up in favor, and not be.

cause one side puts on the more elaborate

show of support

SS Yale LJ. LOOL, 1005 (1976)

—_---— °

“ Lest there be any doubt. the Ninth Cireuit majonty

details a leng and sordid history of guid pro Quo corruption in

Arizona polities 611 F3d at 514-515) This, of uself. is a suft-

cently compelling state interest to survive even stmet serutiny

Bucklev, supra, Vote Choi, Inco ov DiStefanc, 4 F 3d 26, 39-40

(ist Cir, 1998) A fortor: at suffiews here

19

CONCLUSION

WHEREFORE arnicus Umon tor Reform duda-

ism respectfully requests that the Decision and Order

of the Ninth Cireuit Court of Appeals be affirmed in

all respects

Dated: February 18, 2011

Respectfully submitted,

GARVEY SCHUBERT BARFR

ANDREW J. GOODMAN, Esq

Counsel of Record

100 Wall Street, 20th Floor

New York, New York LOOQOS

(212) 965-4534

agoodmanegsblaw com

DAVID SAPERSTEIN, Esg.

MARK PRLAVIN, EsQ

ReEtictous AcTION CENTER

OF REPORM JUDAISM

2027 Massachusetts Avenue, NW.

Washington, DC 20086

Atiornevs for Amicus

; hdrageaggr

. - . . .

Union for Reform Judaism