# Petition for Writ of Certiorari — May v. Brewer > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1021%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2003 - **Citation:** 538 U.S. 923 ## Text “« Court U.& \) ; tLE@ No.__Q21065 JAN - 9 2009 GFL OF Th Gare, In The Supreme Court of the Anited States ¢ STEVE MAY, Petitioner, v. JANICE BREWER, as Secretary of State of the tate of Arizona, acting in her official capacity; DAVID PETERSON, as Treasurer of the State of Arizona, acting in his official capacity; the CLEAN ELECTIONS COMMISSION; and ARIZONANS FOR CLEAN ELECTIONS, Respondents. a Vv On Petition For A Writ Of Certiorari To The Supreme Court Of Arizona 7 v PETITION FOR A WRIT OF CERTIORARI , Vv INSTITUTE FOR JUSTICE INSTITUTE FOR JUSTICE ARIZONA CHAPTER WILLIAM H. MELLOR CLINT BOLICK* Scott G. BULLOCK TIMOTHY D. KELLER a 1717 Pennsylvania Ave., NW 111 W. Monroe Street Suite 200 Suite 1107 Washington, D.C. 20006 Phoenix, AZ 85022 (202) 955-1300 (602) 324-5440 *Counsel of Record COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 OR CALL COLLECT (402) 342-2831 Exo eee wie: QUESTIONS PRESENTED FOR REVIEW 1. May the State permissibly single out a discrete group of individuals to involuntarily bear the financial burden of a public campaign subsidy program? 2. In the area of compelled speech, do this Court’s decisions in Abood, Keller, and United Foods create the general rule to which Southworth is the exception, or does Southworth extend to compelled speech beyond the uni- versity setting? ii PARTIES TO THE PROCEEDING All parties to the proceeding are listed in the caption. CORPORATE DISCLOSURE As none of the parties is a corporation, Sup. Ct. R. £9.6 is inapplicable. iil TABLE OF CONTENTS Page QUESTIONS PRESENTED FOR REVIEW. ............-. i PARTIES TO THE PROCEEDING ..............::::::eess00 ii CORPORATE DISCLOSURE .............:ccccsseeeeeseeeeeeees ii TABLE OF AUTHORITIES ............:cceseeeeseeeeeeeeeeenees Vv OPINIONS BELOW ............:::cceeeeeceeeseeeeeeeneeeeereneeeees 1 BASIS FOR JURISDICTION .............cccescseeeeeeeeneeeeees 1 CONSTITUTIONAL PROVISION AND STATUTE TNIVOLVED .....ccccccceccsscccscccccvccccsccesersvescccscsssecosesees 1 STATEMENT OF THE CASB............::ccccssseeeeeeeeeeeeees 1 A. Statement of Facts............c:cccsecseeeseereeeeeeeeeees 1 B. Statement of the Case............ccccsseeseeeeeeeeeeeees 3 REASONS FOR GRANTING THE PETITION ......... 6 I. STATE COURTS OF LAST RESORT HAVE REACHED DIRECTLY CONTRADICTORY DECISIONS REGARDING THE CONSTI- TUTIONALITY OF INVOLUNTARY PO- LITICAL SUBSIDIES UNDER THE FIRST AMENDMENT; REQUIRING RESOLUTION BY THIS COURT .............::cesceeeeenceneeeeeeeeeeenens 7 Il. THE COURT BELOW MISAPPLIED THIS COURTS COMPELLED SPEECH JURIS- PRUDENCE BY REFUSING TO APPLY ABOOD, KELLER, AND UNITED FOODS, AND BY EXTENDING SOUTHWORTH BE- YOND THE UNIVERSITY SETTING............. 12 iv TABLE OF CONTENTS -— Continued Page III. THE PROLIFERATION OF PUBLIC FUND- ING SCHEMES AND THE INADEQUACY OF VOLUNTARY FUNDING MAKE IT ES- SENTIAL TO ESTABLISH CLEAR LEGAL Pa IED wap ssc ccsnichasisnonenckbeepacebaevbicmnnbinies 19 TABLE OF AUTHORITIES Page CASES Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977)......passim Bates v. Director of Office of Campaign and Political Finance, 763 N.E.2d 6 (Mass. 2002)...........s:cssscsssssssesesseeeees 8 Bd. of Regents v. Southworth, 529 U.S. 217 (2000)...... passim Buckley v. Valeo, 424 U.S. 1(1976).........cccccccessseeseseeeees 7,13 Eu v. San Francisco County Democratic Central Ceamenann., SD UB Ce ccsecittcrceneiccnssctnchitintiinicnenianns 15 Keller v. State Bar of Calif., 496 U.S. 1 (eck sinitsbscncscscinckonsaithadksaiceativaiionesneuah 9, 14, 15, 16, 20 Lavis v. Bayless, slip op., No. CV 2001-006078 (Maricopa County Super. Ct. Dec. 21, 2001).................. 4 Lavis v. Bayless, slip op., No. CIV 99-1627 PHX PGR TSZ (D. Ariz. Mar. 13, 2001)...........ccscccrrsessessoseserees 4 Lehnert v. Ferris Faculty Ass’n, 500 U.S. 507 (1991)........ 14 Libertarian Party of Ind. v. Packard, 741 F.2d 981 CRs Ce TB icisiditndtieni Gednineiiiewnn 12 May v. McNally, 55 P.3d 768 (Ariz. 2002) ...........eeeeeeeees 1,5 May v. McNally, 49 P.3d 285 (Ariz. App. 2002)............... 1,5 State of Fla. by Butterworth v. Republican Party of Fla., 604 So.2d 477 (Fla. 1992) ...............:seseeeeeeeee 9, 10, 15 U.S. v. United Foods, Inc., 533 U.S. 405 (2001)...... 9, 15, 16 Vt. Society of Ass’n Execs. v. Milne, 779 A.2d 20 (Vt. SEITE Micsscnecasbabticnsisieenomsiaibaniisiiabiaghlaselhatiseiialdazineadiaisiataeaaamiadaads 10 W.Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 CII ie ccsis sihsivniniss cc enininscaniienccancaansiiiihiseinsbadianaiiomnanicariaeesibibinen 6 vi TABLE OF AUTHORITIES -— Continued Page CONSTITUTIONAL PROVISIONS US. Gommnt: CURIE TE ccsiccnencecsiccescetersoevenceesanccnveoyeneniney passim CODES AND STATUTES 28 U.S.C. § 1257(a) ........... Saascessconssndtibegdeosainnenshataiaaunieanantte 1 Bipartisan Campaign Finance Act of 2002, 107 P.L. 115; 116 Stat. 81, tit. 3, § 310 ................cccroesserseseeerees 20 A.R.S. § 16-40, ef 20G.’ ......cccccccrcccrcccsccrcccccccccccccscesseccscsees 1,2 © 1D DOG voccerccseccccecececscrcsceccccnseesecest sonssosnsieansonedbetcensesessoen ae © 16-GEGLA)AB)...0ccccccscvescvescecvccvcrecvestovevcncvecsvosecsqnesessessees 2 © 1G -BEELC) avccicsccesesscvccessscccssorsocononosesesonscosscenosssnsensascososes 2 Fla. Stats. § 99.092.......... snsenssoconesessnessenssonenpescessunsennsoesenee 19 © OUD vveiesisneciccscncisesscscscvecticorssessnconteestduosoubssesammsashieninas 19 © TUG E vacsseccsscccscceessscsvcovsocsisonscendsteceunsesssseeenessooneventnnees 19 © BOG. oicinicecsccccrevsssecscctosbcssosceceenssenenssssotosaneeasennelansinininle 19 © VOD. cceceessesscnsrsessssossreersveretvecbeserestonencevenmiestssasunenenate 19 BOE BD vascccscsiccsioncensssannssrsesshinnssaseentiioseapnbenenebainenoananseiion 19 BR TR sci nnvesccescusscevereenssseiéeennsenniocbdneeesssenebeniavensenmaeniien 19 pe eee 19 BS BO BI ED) ccnsvecereniencsevixiirncnsocesegusousnpesommniennnanssnbanentionns 19 © SRG TOD. ncovinrsscevecanererensisssscseinotoosenconennewisbanpennnsenent 19 © GIT BA) scsevevescesevcsnsscssserasssencontcvessnenquinonnnsovinsntntelaiins 19 © COT. LGRBE RI nnn nessesisececcccccscecccscncesecnsnecatsosvasbesetavestones 19 Ind. Code $ 9-18-15-18 ........scccccccssssssscssesssccncesneceseccssvensenees 19 TABLE OF AUTHORITIES — Continued Page Bias. Laws 10 © 4B.....ccrcecccsscoccccesescevcccesscscccscccsescopeososesecees 19 Dhan, F 2 GB 6 GS .occveserevesecevccesersecconescccccnnncossopnececesreeress 19 Me. Rev. Stats. 21-A § 1020-A(4) ..........ccceceeeeeeeeeeeeeeneeeeeees 19 BG oon cocececvccsssavenseseonecenteseonesshpuonnnessosonssnocssosnsobecessoseens 19 BDI is cicicncoccnninesosrcnssenccerecsosqnanqeorsmenennincennedscenneseessnontoens 19 DIE aicnsecscvonrssncsncssrsssscensenccnscncvosonsentecensecssssesnenberecuuacens 19 De, Thar, Bie, BBS Biv. cerensccevccsacscoccscccescssssserereedccscesetensenes 19 0D... .nosnninnccbsssisesancbeseducabevsesasensesnsbossbemnotntcbenvenscovecieosessees 19 Vt. Stats. Ann. Title 11A § 1.22(a8)(16)............:ccceeeeeeeeeeeees 19 TIATED 1) vcsnsencracecccscascnsdosacccesoccooseennencsecovosontebeesensuenes 19 OTHER PUBLICATIONS Clint Bolick, “Fundraising Arizona: We’ve Just Seen the Future Of Campaign Finance Reform, and It’s Not Pretty,” The Weekly Standard (Dec. 2, 2002).......... 18 Center for Responsible Politics, www.opensecrets. org/2000elect/other/presfund/checkoff. htm ................+++ 8 Ed Hayward, “Voters Go for Change in State Bilin- gual Ed,” Boston Herald (Nov. 6, 2002) ............:sceeseeeeees 8 1 OPINIONS BELOW The decision of the Superior Court of Maricopa County, Arizona in Lavis v. Bayless, slip op., No. CV 2001-006078 (Maricopa County Super. Ct. Dec. 21, 2001), is unpublished and is set forth at App. 32a. The decision of the Arizona Court of Appeals in May v. McNally is published at 49 P.3d 285 (Ariz. App. 2002) and reproduced at App. 16a. The decision of the Arizona Supreme Court in May v. McNally is published at 55 P.3d 768 (Ariz. 2002) and reproduced at App. la. ¢ BASIS FOR JURISDICTION The final judgment in this action was entered on October 11, 2002. The basis for this Court’s jurisdiction is 28 U.S.C. § 1257(a). ¢ CONSTITUTIONAL PROVISION AND STATUTE INVOLVED The governing constitutional provision in this matter is the speech clause of the First Amendment to the United States Constitution, which provides in relevant part that “Congress shall make no law ... abridging the freedom of speech. ...” The statute at issue is Arizona Revised Statutes (A.R.S.) § 16-940, et seg., which is reprinted in the appendix (App. 39a). ¢ STATEMENT OF THE CASE A. Statement of Facts. In the 1998 general election, the Arizona voters acting by initiative enacted by a narrow margin Proposition 200, the so-called Clean Elections Act (CEA), A.R.S. § 16-940, et seq. (App. 39a), which established a system of public financing for state elections. The act created a system of subsidies for candidates choosing to receive them, and tightened restrictions and reduced the amount of permissible contr:butions for those who choose to run for state offices without government subsidies. The Act created the Citizens Clean Elections Commis- sion, which was given extensive authority to regulate state campaigns and contributions. The Commission adminis- ters the Clean Elections Fund, which provides public campaign subsidies to those candidates who choose and qualify to receive them. Under the Act, the fund is fi- nanced by four funding sources, two voluntary and two involuntary. The voluntary sources are (1) a five-dollar state income tax check-off, and (2) a dollar-for-dollar income tax credit for contributions to the fund up to $ 500 or 20 percent of taxes owed, whichever is greater. See A.R.S. § 16-954(A)-(B). (App. 59a-60a). In 2000, funding from these sources amounted to $1.94 million, or approxi- mately 29 percent of the fund’s total revenue. The remainder of the fund is earmarked from involun- tary contributions obtained from two discrete groups of individuals. The first and larger is a “surcharge of ten percent ... on all civil and criminal fines collected pursu- ant to section 12.116.01,” which includes, inter alia, “any civil penalty imposed and collected for a civil traffic violation, ... a violation of the motor vehicle statutes, ... or for a violation of the fish and game statutes.... ” See ARS. § 16-954(C). (App. 60a). In other words, a person incurring a parking or speeding ticket would be forced to pay a ten percent surcharge in addition to the amount of the fine to subsidize political campaigns, whether they 3 chose to or not and whether they support the subsidized candidates or not. In 2000, the surcharges amounted to $ 4.67 million, or 68 percent of the fund’s total revenue. The other involuntary revenue source under the Act is a $100 annual mandatory fee on “all registered lobbyists representing (a) one or more persons in connection with a commercial or for-profit entity except public bodies or (b) a non-profit entity predominately composed of or acting on behalf of a trade association or other grouping of commercial or for-profit entities.” A.R.S. § 16-944. (App. 44a). In other words, lobbyists for the Sierra Club or National Right to Life would not have to pay the fee, but lobbyists for the Chamber of Commerce or Farm Bureau would have to pay. The original plaintiffs in this action were Rick Lavis and Steve May. Lavis is a lobbyist for the Arizona Cotton Growers Association and was forced to pay the $100 lobbyist fee, which was used to subsidize political cam- paigns against his will. Petitioner May is an Arizona resident who received a parking ticket in 1999 and was fined $ 27, which included a ten percent surcharge for the CEA. He refused to pay the surcharge and has received two notices stating that the amount is still due. At the time May received his fine, he was a member of the state legislature who refused to accept involuntary funds for his campaign. However, the surcharge would have been used to finance the campaigns of candidates that May did not support, including his own opponents. The 2002 election was the first in which subsidies were available to all candidates for all state elective offices. B. Statement of the Case. A substantially identical lawsuit alleging that the coerced funding provisions of the 4 CEA violated the First Amendment was filed in federal district court in September 1999. On March 13, 2001, the court dismissed the action for lack of subject matter jurisdiction on the grounds that it challenged a state tax that must be challenged initially in state court. Lavis v. Bayless, slip op., No. CIV 99-1627 PHX PGR TSZ (D. Ariz. Mar. 13, 2001). Lavis and petitioner May filed the instant lawsuit in Maricopa County Superior Court on April 10, 2001, alleg- ing a violation of the First Amendment and the free-speech provisions of the Arizona Constitution. The original defendants, Secretary of State Betsey Bayless, and State Treasurer Carol Springer, filed an answer in which they “take no position regarding the merits of the legal issues raised in this lawsuit” and “request that this Court order such relief as it deems just and proper.” Arizonans for Clean Elections, which supports the CEA, intervened as a defendant. The parties stipulated to the facts and filed cross-motions for summary judgment. On December 21, 2001, the Maricopa County Superior Court issued an opinion striking down the lobbyist fee as an unconstitutional prior restraint on speech under the First Amendment, but upholding the surcharge. Lavis v. Bayless, slip op., No. CV 2001-006078 (Maricopa County Super. Ct. Dec. 21, 2001) (App. 32a). In sustaining the surcharge, the court applied Bd. of Regents v. Southworth, — 529 U.S. 217 (2000), and concluded that the surcharge was permissible because it was viewpoint-neutral. Id. at 3-4 (App. 34a-35a). The plaintiffs appealed the adverse decision on the constitutionality of the surcharge, but the defendants did not appeal the adverse decision striking down the lobbyist 5 fee.’ On June 17, 2002, a unanimous panel of the Arizona Court of Appeals reversed and found that the surcharge violated the First Amendment. Applying this Court’s line of cases commencing with Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977), the court concluded that the trial court had erred in applying Southworth, and that the surcharge constituted impermissible compelled speech. May v. McNally, 49 P.3d 285 (Ariz. App. 2002) (App. 16a). The court found that “the surcharge is imposed upon a specific group of individuals, placed in a special fund, and geared toward a specific purpose: political campaigns.” Id. at 291 (App. 27a-28a). The court concluded that the surcharge was unconstitutional “because it is imposed upon a discrete group of individuals who are involuntarily associ- ated and because the supported speech is not germane to the purpose of that association.” Jd. at 292 (App. 31a). On October 11, 2002, the Arizona Supreme Court reversed. May v. McNally, 55 P.3d 768 (App. 1a). The court dispensed with the “germaneness” test dictated by the Abood line of cases, id. at 772 (App. 10a), and instead applied Southworth, concluding that the surcharge was permissible because it was viewpoint-neutral. Jd. at 773 (App. 10a-11a). 5 * Hence, plaintiff Lavis is no longer a party to the proceedings. 6 REASONS FOR GRANTING THE PETITION A hallmark of a free society is that participation in election campaigns is voluntary. The State of Arizona has transformed the decision of which political candidates to support with financial contributions — or whether to contribute to a political candidate at all — from an act of individual volition into an act of compulsion. This Court traditionally has served as our nation’s ultimate guardian of free political speech, which encompasses “both the right to speak freely and the right to refrain from speaking at all.” W.Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) (Murphy, J., concurring); Wooley v. Maynard, 430 U.S. 705, 714 (1977). This case calls upon the Court to play that essential role again. As appears below, this case implicates three of the compelling reasons set forth in S. Ct. R. 10(b) and (c) as suggesting appropriate circumstances for review by this Court: 1. Astate court of last resort has decided an impor- tant federal question in a way that conflicts with the decision of another state court of last resort; 9. Astate court has decided an important question of federal law that has not been, but should be, settled by this Court; and 3. A state court has decided an important federal question in a way that conflicts with relevant decisions of this Court. 7 I. STATE COURTS OF LAST RESORT HAVE REACHED DIRECTLY CONTRADICTORY DE- CISIONS REGARDING THE CONSTITUTIONAL- ITY OF INVOLUNTARY POLITICAL SUBSIDIES UNDER THE FIRST AMENDMENT, REQUIRING RESOLUTION BY THIS COURT. In Buckley v. Valeo, 424 U.S. 1, 92-93 (1976), the Court recognized that government has an interest in facilitating “public discussion and participation in the electoral process, goals vital to a self-governing people,” which may be accomplished through the public funding of campaigns. The Court upheld against First Amendment challenge an income tax checkoff that allows federal taxpayers volun- tarily to designate a portion of their tax liability for use in a presidential campaign fund, finding that the fund “is like any other appropriation from the general revenue” except that its amount is determined by the number of voluntary check-offs. Jd. at 91. The Court noted that every congres- sional appropriation “uses public money in a manner to which some taxpayers object.” Id. at 92. However, the Court did not in that case, nor in subsequent decisions, have occasion to address the important question presented by this case: whether government permissibly may impose the financial burden of political campaigns on discrete groups of individuals, not by voluntary means but through compulsion. The courts below divided sharply on that question, as have the courts of the various other jurisdic- tions to have considered it, presenting a clarsic case requiring resolution by this Court. In devising Arizona’s campaign subsidy program, the drafters of Proposition 200 opted against funding the program exclusively through the two means for which this Court in Buckley apparently created a constitutional safe = 8 harbor: general appropriations or voluntary income tax check-offs. They did so with the obvious recognition that while the idea of campaign subsidies seems politically popular, the reality of paying for them through taxpayer dollars is not. Given competing fiscal priorities, legisla- tures and taxpayers appear to assign a very low priority to funding politicians.” However, by singling out two discrete and unpopular classes of individuals — lobbyists for for- profit causes and individuals sustaining civil or criminal fines — to involuntarily bear most of the expense of cam- paign subsidies, the initiatives proponents triggered scrutiny under this Court's compelled speech jurispru- dence. On at least four occasions so far, states have opted to fund campaign subsidy programs not exclusively through general appropriations or voluntary check-offs, but in part through involuntary assessments imposed on discrete groups of individuals. The appellate courts of last resort 7 In 2000, funds derived in Arizona from the dollar-for-dollar income tax credit, which costs taxpayers who take it nothing, and the five-dollar income tax check-off, which actually returns five dollars to the taxpayer who opts for it, comprised less than 30 percent of the Clean Elections Fund in Arizona. Likewise, at the federal level, only about 12 percent of taxpayers designate three dollars of their taxes to the presidential campaign fund. Center for Responsible Politics, www. Massachusetts, state courts had to force recalcitrant state officials to appropriate funds for its campaign subsidy program. Bates v. Director of Office of Campaign and Political Finance, 763 N.E.2d 6 (Mass. 2002). Subsequently in 2002, approximately 75 percent of the Massachusetts electorate voted in a nonbinding state-wide referendum to oppose the use of taxpayer funds for campaign subsidies. Ed Hayward, “Voters Go for Change in State Bilingual Ed,” Boston Herald (Nov. 6, 2002), at 4. 9 have split over their constitutionality, with two upholding the schemes and two striking them down. The courts below illustrate the confusion and diffi- culty inherent in applying this Court’s rules on compelled political speech in the context of involuntary campaign subsidies. The trial court struck down the annual fee imposed upon certain lobbyists, but upheld the surcharge on civil and criminal fines (App. 35a, 37a). The court of appeals unanimously struck down the surcharge (App. 31a). The Arizona Supreme Court unanimously upheld it (App. 15a). In so doing, the ‘court distinguished this Court’s compelled speech jurisprudence developed in such cases as Abood, supra; Keller v. State Bar of Calif., 496 U.S. 1 (1990); and U.S. v. United Foods, Inc., 533 U.S. 405 (2001) (see App. 6a-8a); and concluded that “[wle find the Southworth approach better suited than the Abood line of cases for analyzing the constitutionality of the Clean Elections Act.” (App. 10a). Applying Southworth, the court found the compelled subsidies constitutional because, in its view, the program is viewpoint-neutral. (App. 11a-12a). In stark and direct contrast, the Florida Supreme Court struck down under the First Amendment a law that imposed a 1.5 percent assessment on all contributions received by political parties, which was earmarked for the state’s political subsidy fund. State of Fla. by Butterworth v. Republican Party of Fla., 604 So.2d 477 (Fla. 1992). The court found that “[s]upport from the trust fund is available on a content-neutral basis, but at least a portion of that money will be given to the appellees’ adversaries, and in those cases the effect of the assessment will be to subsidize political candidates with political positions differing from those of the appellees.” Jd. at 479. Applying the “germane- ness” test of Abood and its progeny, the court concluded 10 that “singling out political parties and associations to support the fund bears no relationship to the interest advanced.” Jd. at 480. The holdings of the Arizona Su- preme Court in this case and the Florida Supreme Court in Butterworth cannot be reconciled.* Two other cases also reflect conflict in this area. In Vt. Society of Ass’n Execs. v. Milne, 779 A.2d 20 (Vt. 2001), the Vermont Supreme Court invalidated a tax imposed upon lobbyists to fund campaign subsidies. The court noted that lobbyists “were specifically targeted in an effort to redirect [funds] ... to a neutral public fund for candidates for the offices of governor and lieutenant governor.” Jd. at 28. The court rejected the defense of viewpoint neutrality, noting that this Court “has never upheld a tax that singled out First Amendment interests, irrespective of whether it suppressed particular viewpoints.” Jd. * The court below attempts to distinguish Butterworth by noting that the statute “directly burdened political contributions.” (App. 12a n.5). While that fact is true, the actual financial burden was borne by the political parties, not the contributors; and the gravamen of the court’s decision was that political parties were singled out to make contributions to a political fund whose purpose was not germane to the purpose of the association — precisely as Abood requires (see Part II, infra). 11 CONFLICTING DECISIONS ON COERCED POLITICAL SUBSIDIES Court Involuntary Fee Viewpoint Neutral? Applicable Precedent Constitutional Standard Application of Standard Result State of Fla. by Butterworth v. Republican Party of Fla. Florida Supreme Court Assessment on Contributions Yes Abood Strict Scrutiny, Germaneness Viewpoint neutral- ity insufficient; assessment is compelled political speech and not germane to associa- tion’s interests Unconstitutional May v. McNally Arizona Supreme Court Surcharge on Civil & Criminal Fines Yes Southworth Viewpoint Neutrality “[V]iewpoint neutrality in in the allocation of funds adequately safeguards First Amendment rights” (App. 10a) Constitutional 12 In Libertarian Party of Ind. v. Packard, 741 F.2d 981 (7th Cir. 1984), the Seventh Circuit upheld the use of funds derived from the sale of personalized license plates to subsidize political parties. The court applied Abood, noting that “the right not to contribute to the spreading of a political message is protected by the first amendment.” Id. at 988. However, the court found that the Abood standard was not violated because the funds were not used to support a particular partisan viewpoint. Id. at 989. But _ the court also emphasized that this statute involved no compulsion; as with the voluntary tax check-offs in Buck- ley, “each member of the public can control the amount of money distributed to qualifying political parties through his or her decision to buy or refrain from buying a person- alized license plate.” Id. at 990. It is not clear from this case whether the Seventh Circuit requires viewpoint neutrality, voluntariness, or both. Plainly, this is an area in need of doctrinal clarity: at present, whether individuals may be forced to contribute to political campaigns depends upon the jurisdiction in which they find themselves. Such an act of governmental compulsion, which touches upon the most intimate politi- cal decisions one can make in a democratic society, should not remain long an open question. ll. THE COURT BELOW MISAPPLIED THIS COURT’S COMPELLED SPEECH JURISPRU- DENCE BY REFUSING TO APPLY ABOOD, KELLER, AND UNITED FOODS, AND BY EX- TENDING SOUTHWORTH BEYOND THE UNI- VERSITY SETTING. As the divergent decisions of the Arizona and Florida Supreme Courts and the courts below illustrate, the choice of ee 13 which of this Court’s compelled speech decisions to apply — Abood and its progeny or Southworth — tends to determine the outcome in a case challenging involuntary campaign subsidies. That is because Southworth, in the limited setting of a university, dispenses with the “germaneness” test that is central to the Abood line of cases. If an involuntary campaign subsidy is imposed upon a class of individuals who have no direct relationship to the electoral process, by definition the classification cannot satisfy the germane- ness standard. Hence, a court may only hold such a subsidy permissible if it extends Southworth beyond the university setting, in apparent direct contradiction to this Court’s intentions. That is exactly the jurisprudential innovation the court below marked when it applied Southworth to the involuntary campaign subsidies at issue here. In that determination, the Arizona Supreme Court stands appar- ently alone: our research reveals not a single other re- ported appellate decision that has applied Southworth outside of the university setting, for the obvious reason that this Court made clear that its holding was unique to that setting. Only this Court can correct that error. This Court’s modern compelled speech jurisprudence began in 1977 with Abood, when the Court unanimously ruled that a public teachers union could not force teachers to fund political and other ideological activities of which they did not approve. The Covrt’s decision was not grounded in the objection by those forced to pay union dues to a particular message, as the court below asserted, but rather in the fact that the union engaged in political activities beyond those related to the collective bargaining agreement. Because the “state law ‘sanctions the use of nonunion members’ fees for purposes other than collective 14 bargaining’,” the Court ruled, “this case presents constitu- tional issues.” Id., 431 U.S. at 232 (citation omitted). As the Court declared, “The fact that the appellants are compelled to make, rather than prohibited from making, contributions for political purposes works no less an infringement of their constitutional rights.” Jd. at 234. As a consequence, the Court established a bright-line rule: the union could only “constitutionally spend funds for the expression of political views, on behalf of political candi- dates, or toward the advancement of other ideological causes not germane to its duties as a collective-bargaining representative” only through “charges, dues, or assess- ments paid by employees who do not object to advancing those ideas and who are not coerced into doing so against their will... .” Jd. at 235-36 (emphasis added).* The Court subsequently applied the principles of Abood to the context of the integrated bar in the 1991 Keller decision, again by a unanimous Court. The Court distinguished between “appropriations made to [the bar] by the legislature,” in which the government is acting as “‘representative of the people,’” as opposed to funds derived “from dues levied on its members,” specifically all California lawyers, who are required to be members of the bar. Id., 496 U.S. at 10-11 (citation omitted). As the Court noted, the bar “was created, not to participate in the general * Forbidden uses of compelled contributions included not only political contributions, but also lobbying or other union political activities outside the limited context of contract ratification or imple- mentation, programs designed to secure funds for public education, litigation unrelated to the bargaining unit, and even public relations efforts designed to enhance the reputation of the teaching profession. Lehnert v. Ferris Faculty Ass’n, 500 U.S. 507 (1991). 15 government of the State, but to provide specialized profes- sional advice to those with the ultimate responsibility of governing the legal profession.” Jd. at 13. Applying the germaneness test, the Court concluded that the state bar “may therefore constitutionally fund activities germane to those goals out of the mandatory dues of all members. It may not, however, in such manner fund activities of an ideological nature which fall outside of those areas of activity.” Id. at 14. The same test should apply here. As this Court has held, “the First Amendment ‘has its fullest and most -— urgent application’ to speech uttered during a campaign for political office.” Eu v. San Francisco County Democratic Central Comm., 489 U.S. 214, 223 (1989) (citation omit- ted). As the Florida Supreme Court observed in Butter- worth, 604 So.2d at 479, “It is well established that supporting a political candidate financially is speech and represents political expression at the core of the electoral process.” Were a court properly to apply the principles of Abood and Keller to the context of compelled political subsidies, as did the court of appeals below, it necessarily would find them unconstitutional. Those who are unfortu- nate enough to have civil or criminal fines assessed against them have no special connection to the political process. Fees related to the administration of justice might properly be assessed against them, but not political subsidies. If the germaneness test applies, the subsidies at issue here are impermissible. Only two years ago, the Court amplified further its compelled speech principles in United Foods, and extended the Abood framework outside the context of political speech, invalidating assessments imposed upon mushroom handlers to promote mushroom sales. The Court described 16 the issue in terms strikingly similar to the instant case: “The question is whether the government may underwrite and sponsor speech with a certain viewpoint using special subsidies exacted from a designated class of persons, some of whom object to the idea being advanced.” United Foods, 533 U.S. at 410. The Court reiterated that the First Amend- ment forbids government from compelling individuals to express certain views and “from compelling certain indi- viduals to pay subsidies for speech to which they object.” Id. But the Court also emphasized that “Iblefore address- ing whether a conflict with freedom of belief exists, a threshold inquiry must be whether there is some state imposed obligation which makes group membership less than voluntary; for it is only the overriding associational purpose which allows any compelled speech in the first place.” Id. at 413 (emphasis added). Construing Keller in terms markedly different than the court below, the Court declared that “[t]he central holding of Keller” was not that individual members could not be forced to subsidize beliefs with which they disagreed, but “that the objecting mem- bers were not required to give speech subsidies for matters not germane to the larger regulatory purpose which justified the required association.” Id. at 414. As if speak- ing to the present case, the Court affirmed that “[w]e have not upheld compelled subsidies for speech in the context of a program where the principal object is speech itself.” Id. at 415. The Clean Elections Act, whose “principal object is speech itself,” imposes the costs of political subsidies upon a class of individuals who are not voluntarily associated, for purposes completely unrelated to the class. Plainly, the Clean Elections Act cannot survive the test of United Foods. The court below declined to apply this Court's broad compelled speech framework, instead opting to apply 17 Southworth, ignoring that this Court made clear that its decision upholding the mandatory use of student fees was unique to the university context, where association is of course voluntary and whose broad mission, among other things, is “‘to discover and disseminate knowledge’.” Jd., 529 U.S. at 221 (quoting university’ mission). The Court observed that student organizations were prohibited from using mandatory fees for “politically partisan” activities or for organizations that have a “primarily political orienta- tion.” Id. at 225-26. Moreover, the fee was not imposed upon a distinct group of students, but upon the community as a whole in an act of self-governance. “The University’s whole justification for fostering the challenged expression is that it springs from the initiative of the students, who alone give it purpose and content in the course of their extracurricular endeavors.” Id. at 229. Here too the com- pelled subsidies spring from the initiative of the commu- nity, but with a very different effect: the fees are imposed not by the community upon itself, but by the community upon a discrete subset. It would not strain the imagination to envision a very different result in Southworth had the fees not been imposed upon the entire community, but only upon the College Democrats or the glee club. The Court concluded in Southworth that the “stan- dard of germane speech as applied to student speech at a university is unworkable. ... It is not for the Court to say what is or is not germane to the ideas to be pursued in an institution of higher learning.” Jd. at 231-32 (emphasis added). The court below did not explain why the germane- ness test, to which this Court has adhered in every other context, cannot apply here. Indeed, it would seem easier to apply the rule here than in the union or bar contexts, for- there is not even the remotest argument that the speech 18 here is germane to an association purpose (or even that there is an association purpose). If the precious constitu- tional protection against compelled political speech is to be eroded through the extension of a narrow exception, that rule should be announced not by a state supreme court but by this Court. Certainly a decision by a state supreme court doing just that necessitates review. Even if Southworth provided the applicable rule, the compelled speech here is not viewpoint-neutral, notwith- standing that all candidates may qualify for subsidies. First of all, the act of contributing to campaigns at all is an expression of political speech. An individual may choose not to vote, to contribute, or to participate in the political process at all, which is a distinguishing characteristic of a free society and surely protected by the First Amendment. Yet that decision has been removed from members of the subject class in Arizona by virtue of the Clean Elections Act. Moreover, the only candidates who are funded by the CEA are those who do not object philosophically to politi- cal subsidies generated from taxpayer or involuntary contributions. Hence the subsidies are not viewpoint- neutral, and those like petitioner May who are singled out to bear the financial burden may be asked to support candidates with whom they disagree. The recent election for governor pitted one candidate who ran with subsidies and another who was philosophically opposed to them. See Clint Bolick, “Fundraising Arizona: We've Just Seen the Future of Campaign Finance Reform, and It’s Not Pretty,” The Weekly Standard (Dec. 2, 2002), at 23. May’s coerced contribution would be funneled to one candidate but not the other. 19 Forced political participation in Arizona, occasioned by the challenged funding sources, is a chilling departure from the principles of a free society and has enormous free-speech implications that this Court should address. Specifically, it should assure that the compelled speech framework that it has steadfastly applied over the past two decades — and that so far has admitted only one narrow exception — should not be eviscerated. Ill. THE PROLIFERATION OF PUBLIC FUNDING SCHEMES AND THE INADEQUACY OF VOL- UNTARY FUNDING MAKE IT ESSENTIAL TO ESTABLISH CLEAR LEGAL PARAMETERS. At least six states so far have adopted public subsidies for election campaigns. The sources of funding vary. Florida derives funds from candidate filing fees and voluntary contributions. See Fla. Stats. §§ 106.32, 99.092, 99.093, 105.031, 106.04, 106.07, 106.29, 199.052(14), 320.02(13), 322.08(7)(a), 327.25(11), and 607.1622(1)(h). Indiana obtains funds from personalized license plate sales. Ind. Code § 9-18-15-13. Maine collects funds from voluntary donations, tax checkoffs, and fines, along with general tax revenues. Me. Rev. Stats. 21-A §§ 1020-A(4) 1124, 1125, 1127 and 36 §§3 and 8. Massachusetts pro- vides general appropriations, a tax checkoff, and fines. Mass. Laws 10 § 42 and 62 § 6C. Vermont no longer may use lobbyist fees, so relies primarily on funds derived from annual report fees by domestic corporations. Vt. Stats. Ann. Title 11A §§ 1.2%(a)(16) and (17). Some of those sources are general appropriations or voluntary contribu- tions; others are involuntary assessments imposed upon discrete groups of individuals. But the rules governing 20 them, especially in light of the Arizona Supreme Court’s decision in this case, are far from settled. Moreover, the recently enacted McCain-Feingold federal campaign finance law provides for a study of the public funding systems in Arizona and Maine. Bipartisan Campaign Finance Act of 2002, 107 PL. 115; 116 Stat. 81, tit. 3, § 310. The impetus for public campaign subsidies is strong. No matter how well-intentioned, efforts to expand political speech through campaign subsidies should not as a byproduct infringe the free-speech rights of dissenters. Given the proliferation of such schemes, the divergence in legal standards applied by lower courts, and the clear challenge to this Court's compelled speech jurisprudence, this Court should review the decision below and set forth clear constitutional parameters. Thomas Jefferson declared that “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical.” Quoted in Keller, 496 US. at 10. In a free society, political participation must be voluntary. We urge this honorable Court to reaffirm that vital principle. Respectfully submitted, INSTITUTE FOR JUSTICE INSTITUTE FOR JUSTICE ARIZONA CHAPTER WILLIAM H. MELLOR CLINT BOLICK* Scott G. BULLOCK TrmoTHY D. KELLER 1717 Pennsylvania Ave., NW 111 W. Monroe Street Suite 200 Suite 1107 Washington, DC 20006 Phoenix, AZ 85022 (202) 955-1300 (602) 324-5440 *Counsel of Record eee la SUPREME COURT OF ARIZONA En Banc STEVE MAY, ) Arizona Supreme Court Petitioner, No. CV-02-0215-PR Court of Appeals Vv. | Re degetey Division One HON. COLLEEN A. No. 1 CA-SA 02-0073 McNALLY, Judge ofthe ? SUPERIOR COURT OF __) Maricopa County Superior Court THE STATE OF ARIZONA, )2"P in and for the County of ) No. CV 2001-006078 Maricopa, OPINION Respondent Judge, ) (Filed Oct. 11, 2002) BETSEY BAYLESS, as ) Secretary of the State of Arizona, acting in her official capacity; CAROL SPRINGER, as Treasurer of the State of Arizona, acting in her official capacity; and the CITIZENS CLEAN ELECTIONS COMMIS- SION; and ARIZONANS FOR CLEAN ELECTIONS, Real Parties in Interest. Ney ee ee eee eee Special Action from the Superior Court of Maricopa County The Honorable Colleen A. McNally, Judge JUDGMENT AFFIRMED Court of Appeals, Division One 203 Ariz. 13, 49 P.38d 285 (App. 2002) OPINION VACATED a 2a INSTITUTE FOR JUSTICE ARIZONA Phoenix CHAPTER by Clint Bolick and Timothy D. Keller Thomas P. Liddy Attorneys for Petitioner THOMAS P. PROSE, Acting Arizona Phoenix Attorney General in this case and Chief Assistant Attorney General by Kathleen P. Sweeney, Assistant Attorney General and Todd F. Lang, Assistant Attorney General Attorneys for Real Party in Interest Citizens Clean Elections Commission ARIZONA CENTER FOR LAW IN THE Phoenix PUBLIC INTEREST by Timothy M. Hogan and THE BRENNAN CENTER FOR JUS- New York, NY TICE AT NEW YORK UNIVERSITY SCHOOL OF LAW by Elizabeth Daniel Attorneys for Real Party in Interest Arizonans for Clean Elections PACIFIC LEGAL FOUNDATION Sacramento, CA by Deborah J. La Fetra Attorneys for Amicus Curiae Pacific Legal Foundation BERCH, Justice. @1 Inthe 1998 general election, Arizona voters approved the Citizens Clean Elections Act to “encourage citizen participation in the political process, and ... promote 3a freedom of speech under the U.S. and Arizona Constitu- tions,” and to “create a clean elections system that will improve the integrity of Arizona state government by diminishing the influence of special-interest money.” _ Ariz.Rev.Stat. (“A.R.S.”) § 16-940(A) (Supp.2001). The Act provides public financing for the campaigns of qualifying candidates for certain elected offices. See id. §§ 16-940 to - 961 (Supp.2001). This case presents a challenge to the Act’s key funding provision. 22 The Act created the Citizens Clean Election Commission (“CCEC”), which oversees the disbursement of funds to qualifying candidates. To fund the campaigns of “clean elections” candidates, the CCEC collects funds from four sources: voluntary contributions to the fund, funds earmarked through a “check-off” provision on state income tax returns, a fee on certain registered lobbyists, and a ten percent surcharge on civil and criminal fines. Id. §§ 16- 944, 16-954(A)-(C). We are asked to determine whether the ten percent surcharge on criminal and civil fines required by A.R.S. § 16-954(C) violates the First Amendment by impermissibly compelling those who pay the fines to support the speech of political candidates whom they might not otherwise support. We hold that it does not. BACKGROUND 23 Petitioner Steve May, then an Arizona state legislator, received a parking ticket and was fined $27, on which a ten percent surcharge authorized by the Act was assessed. May refused to pay the $2.70 surcharge, claim- ing that doing so would violate his First Amendment right to free speech because the money might be used to fund 4a the campaigns of candidates whose views he opposed. He also challenged the fee on registered lobbyists. m4 May filed a federal court action, which was dismissed on the ground that the Tax Injunction Act, 28 U.S.C. § 1341, deprived the court of subject matter jurisdiction. See Lavis v. Bayless, No. CIV 99-1627 (D.Ariz. Mar. 13, 2001). He then filed his action in Maricopa County Superior Court, urging the state courts to find the Act unconstitutional. The Citizens Clean Elections Commission and Arizonans for Clean Elections, the group that sponsored the initiative, intervened in support of the Act’s constitutionality. The trial court upheld the constitutionality of the surcharge on civil and criminal fines, but invalidated the fee assessed against certain registered lobbyists. May v. Bayless, No. CV 2001-006078 (Mar. Cnty. Super. Ct. Apr. 2, 2002). The latter ruling was not appealed. 45 The court of appeals reversed, finding the sur- charge an unconstitutional restraint on free speech and enjoining the State from imposing it. May v. McNally, 203 Ariz. 13, 49 P.3d 285 (App.2002). G6 We stayed the court of appeals opinion and granted review to determine whether the surcharge provision of the Clean Elections Act impermissibly compels political speech of the surcharge payers, in violation of the First Amendment’s guarantee of freedom of speech. DISCUSSION G7 Our analysis is framed by the United States Supreme Court's opinion in Buckley v. Valeo, 424 U.S. 1, 92-93 (1976), which recognized that government may 5a properly use public funds to establish a system of campaign financing.’ In Buckley, the Court considered, among other issues, the constitutionality of the Presiden- tial Election Campaign Fund, a provision of the Federal Election Campaign Act of 1971 that allowed taxpayers a one dollar check-off on income tax returns that resulted in a dollar-for-dollar allocation out of the general fund to qualifying presidential candidates. Id. at 86-87. 18 Those opposing the Presidential Campaign Fund argued that they should be allowed to designate the candidate to whom their dollar contribution would go. But the Court disagreed, noting that the campaign fund “is like any other appropriation from the general revenue except that its amount is determined [by the number of check-offs].” Id. at 91. The fact that the contributions stemmed from a voluntary check-off “does not constitute the appropriation any less an appropriation by Congress.” Id. Rather, the “check-off is simply the means by which Congress determines the amount of its appropriation.” Id. at 91 n.124. The Court was not moved by the taxpayers’ objection to the potential use of the funds for candidates the taxpayers opposed. It noted that every congressional appropriation “uses public money in a manner to which some taxpayers object.” Jd. at 92. 9 The Court determined that the check-off provi- sion of the Presidential Campaign Fund did not implicate the First Amendment because the provision was designed ’ Accord Little v. Florida Dep't of State, 19 F.3d 4, 5 (11th Cir. 1994) (holding that financing campaigns with public funds does not violate First Amendment); Libertarian Party v. Packard, 741 F.2d 981, 989-90 (7th Cir. 1984) (same). 6a to use public money “not to abridge, restrict, or censor speech, but rather ... to facilitate and enlarge public discussion and participation in the electoral process, goals vital to a self-governing people.” Id. at 92-93. Accordingly, the Court concluded, public funding of presidential cam- paigns “furthers, not abridges, pertinent First Amendment values.” Id. at 93. G10 Buckley thus affirms the proposition that the public financing of political candidates, in and of itself, does not violate the First Amendment, even though the funding may be used to further speech to which the contributor objects.” 11 May nonetheless maintains that, despite Buck- ley’s general approval of public financing of political campaigns, three cases decided by the Court after Buckley compel a different result in the case before us. Those cases _ Abood, Keller, and United Foods — hold that discrete groups of individuals cannot be compelled to fund speech that they find objectionable unless that speech is germane to the group’s purpose. May urges that the Abood line of cases should guide our inquiry. G12 In Abood v. Detroit Board of Education, 431 U.S. 209 (1977), non-union schoolteachers were required to pay a service charge to the teachers’ union. The union used the money for several purposes, including funding ? Indeed, Buckley suggests that Congress could have funded the see 424 U.S. at 91-92, and May concedes that if the money had gone into the general fund and could not be traced to any individual, there would be no constitutional problem. 7a political and ideological activities that some non-union teachers found objectionable. Jd. at 212-13. The Court held that unions could spend union dues to support political candidates and causes, but could use only “such expenditures ... from charges, dues, or assessments paid by employees who do not object to advancing those ideas and who are not coerced into doing so against their will by the threat of loss of govern- mental employment.” Jd. at 235-36. 9113 Similarly, in Keller v. State Bar of California, 496 U.S. 1 (1990), California lawyers were required to join the state bar association and pay dues as a condition of practicing law in the state. As it had in Abood, the Court held that an organization such as a bar association, in which membership is a condition of employment, may use funds generated from mandatory membership fees for activities “germane” to the organization, but it could not use those funds to advocate or support ideological view- points “not ‘germane’ to the purpose for which compelled association was justified.” Jd. at 13. 914 Finally, in United States v. United Foods, Inc., 533 U.S. 405 (2001), the Court invalidated fees charged to mushroom handlers to fund advertisements promoting mushroom sales because the speech was not germane to a larger regulatory purpose of the association. 915 The Abood line of cases instructs that govern- ment may not condition involuntarily associated individu- als’ opportunity to receive a benefit or ply their trade or profession upon their compelled support of speech with which they disagree. We note, however, that no benefit is being conditioned upon the payment of the surcharge at issue here, nor is payment of the surcharge a precondition to employment. The opportunity to commit a crime or park 8a illegally is not deserving of the same protection as is the opportunity to participate in lawful activity contemplated by the Supreme Court in the Abood line of cases. 916 Importantly, the “germaneness test” derived from the Abood line of cases is predicated upon the exis- tence of an association. An association is a “gathering of people for a common purpose; the persons so joined.” BLACK’s LAw DICTIONARY 119 (7th ed.1999). In this case, the surcharge payers have not joined together for a com- mon purpose. At best, the group consists of tens of thou- sands of otherwise unrelated individuals who, at one time or another, paid a civil or criminal fine. Indeed, May conceded at oral argument and in his brief that “there is no association.” This stands in sharp contrast to the associations in Abood, Keller, and United Foods, whose members were linked by a common purpose. The Act, then, does not create an association of fine payers, and without an association by which to measure the germaneness of the speech, the Abood analysis is inapplicable. G17 Finally, and critically, the speech in Abood, Keller, and United Foods was viewpoint driven. In all three cases, the organization chose the funded speech based on its content. Thus, the objectors were compelled to be associated with a group message with which they dis- | agreed. Here, the Clean Elections Act allocates money to all qualifying candidates, regardless of party, position, or message, see ARS. § 16-951, and thus the surcharge payers are not linked to any specific message, position, or viewpoint. The viewpoint neutrality of the disposition of funds distinguishes this case from Abood, Keller, and United Foods. We therefore conclude that the Abood line of cases does not control the disposition of this case. 9a 9118 The Real Parties in Interest urge us instead to apply the analysis in Board of Regents v. Southworth, 529 U.S. 217 (2000), in assessing the constitutionality of the Clean Elections Act. In Southworth, a state university allocated part of a mandatory student fee, on a viewpoint- neutral basis, to various student organizations engaged in ideologically expressive activities. Jd. at 222-24. To qualify for funding, student organizations had to agree to certain accounting requirements and spending limitations. 919 The Court acknowledged that once the univer- sity conditioned the opportunity to obtain an education on an agreement to support objectionable speech, the First Amendment was implicated. Jd. at 231. But it rejected the germaneness test applied in Abood and Keller as “unwork- able” in the context of extracurricular student speech at a university. Id. Recognizing that the university's sole purpose in charging the fee was to facilitate “the free and open exchange of ideas by, and among, students,” the Court reasoned that “asking what speech is germane would be contrary to the very goal the University seeks to pursue.” Jd. at 229-32. Instead, the Court determined that “the principal standard of protection for objecting students . is the requirement of viewpoint neutrality in the allocation of funding support.” Jd. at 233. Although the Court acknowledged that some students were required to pay fees to subsidize speech they found “objectionable, even offensive,” the viewpoint neutrality requirement of the student fee program sufficiently protected the stu- dents’ First Amendment rights. Id. at 230.° * Concurring, Justice Souter observed that the relationship between the fee payer and the objectionable speech was attenuated (Continued on following page) 10a 420 In the case before us, the court of appeals did not find Southworth informative, concluding that its analysis applied only in the university setting. See May, 203 Ariz. at 18, 7 17, 49 P3d at 290. We think otherwise. While a university is certainly one venue in which the free and open exchange of ideas is encouraged, it is not the only one. Encouraging public debate in the political arena is at least as compelling a public purpose as encouraging speech on a university campus. Moreover, limiting South- worth to a university setting overlooks the thrust of the Court’s analysis: If the government seeks to facilitate or expand the universe of speech and accomplishes its goal in a viewpoint neutral way, the question whether speech is germane is simply inapposite. G21 We find the Southworth approach better suited than the Abood line of cases for analyzing the constitu- tionality of the Clean Elections Act. The university's goals in Southworth and the government's goals in funding clean elections are similar: Both seek to facilitate free speech. Moreover, both funding systems protect free speech rights by requiring viewpoint neutrality in the allocation of funds and attenuating the connection be- tween the payers of funds and the message communicated. The principles of Buckley — that government may use public funds to finance political speech — and Southworth — that viewpoint neutrality in the allocation of funds ade- quately safeguards First Amendment rights — support the conclusion that collecting a surcharge on civil and criminal because the money was distributed in a neutral manner by an agency that had “no social, political, or ideological character.” Southworth, 529 U:S. at 240 (Souter, J., concurring). The same is true in this case. lla fines to fund political campaigns does not violate the First Amendment. 122 But May counters that the Act is not viewpoint neutral in two respects. First, he contends that fine payers are forced to support the viewpoint that public financing of campaigns represents good public policy. Yet, as Buckley noted, “every appropriation made by [government] uses public money in a manner to which some taxpayers object.” 424 U.S. at 92. For example, taxes from the state’s general fund are used to pay the salaries of state legisla- tors, some of whom an individual taxpayer might support and others whom the taxpayer might not support. Yet no one would suggest that such payments violate the First Amendment. But government could not function if taxpay- ers could refuse to pay taxes if they disagreed with the government policy or function that the tax supported.‘ See United States v. Lee, 455 U.S. 252, 260 (1982); see also Southworth, 529 U.S. at 229. Second, May argues that not all candidates request and receive campaign funds. But Southworth’s insistence on viewpoint neutrality focused on the government’s method of allocating funds, not the resulting viewpoints being supported. Southworth, 529 U.S. at 233. The method of allocating funds under the Clean Elections Act is clearly neutral with regard to the * The State makes considerable use of surcharges to fund various public programs. See, eg., A.R.S. § 12-116.01(A) (criminal justice enhancement fund); A.R.S. § 12-116.02 (medical services enhancement fund); A.R.S. § 12-116.01(B) (fill the gap fund); A.R.S. § 12-116.01(C) (DNA fund). 12a ideology or message of any candidate and thus passes muster under Southworth.’ 923 In a final salvo, amicus participant Pacific Legal Foundation urges that, while “tax dollars .. . may be spent on expressive activity without violating taxpayers’ First Amendment rights,” the surcharge at issue here is a fee, not a tax, and therefore must be analyzed differently. We conclude, however, that whether the surcharge is a tax or a fee is not dispositive of the issues in this case. Gov- ernment may no more violate the First Amendment by imposing a tax than it may by imposing a fee. Moreover, * May urges that two cases that have invalidated campaign funding schemes should guide the disposition of this case. We do not find either case applicable. In Butterworth v. Florida, 604 So.2d 477 (Fla. 1992), the Florida Supreme Court struck down a 1.5% assessment on some contributions to political parties, which assessment was used to fund political campaigns. The court held that the assessment “infringes on First Amendment rights by forcing contributors to decide between contributing to a party and financing causes or persons with whom they disagree or not contributing to a party at all.” Id. at 481. The Florida statute directly burdened political contributions, -which implicated First Amendment speech and association rights that are not burdened under the Arizona law. In Vermont Society of Association. Executives v. Milne, 779 A.2d 20 (Vt. 2001), the Supreme Court of Vermont ruled that a tax on lobbyists used to fund political campaigns violated the lobbyists’ First Amend- ment rights. As indicated in 7 4 of this opinion, the tax on lobbyists formerly contained in the Clean Elections Act was held to be unconsti- tutional. That ruling has not been appealed and that issue is not before this court. Moreover, Milne does not assist in the analysis here because, unlike the lobbyists in that case, the fine payers whose surcharges funded the Clean Elections Act are a diverse, ephemeral group not “associated” in any meaningful way and not engaged in any First Amendment activity. Because of their dissimilarity to the case before us, neither Butterworth nor Milne is helpful in resolving this case. z ; i Be 3 s z : 13a we have not discovered any compelled funding case in which the outcome turned on whether the assessment was a fee or a tax. Nonetheless, we address the issue briefly. 924 Whether an assessment should be categorized as a tax or a fee generally is determined by examining three factors: “(1) the entity that imposes the assessment; (2) the parties upon whom the assessment is imposed; and (3) whether the assessment is expended for general public purposes, or used for the regulation or benefit of the parties upon whom the assessment is imposed.” Bidart Bros. v. Cal. Apple Comm’n, 73 F.3d 925, 931 (9th Cir. 1996) (citing San Juan Cellular Tel. Co. v. Pub. Serv. Comm’n of Puerto Rico, 967 F.2d 683 (1st Cir. 1992)). All three elements reveal the assessment here as a tax: It was imposed by citizen initiative on a broad range of payers for a public purpose. This conclusion does not end the inquiry, however, for even a tax may be imposed in an unconstitu- tional way or for an unconstitutional purpose. 125 May argues that if the surcharge is a tax, it is an unconstitutional “special tax” requiring strict scrutiny because “it is imposed on less than the whole” population of Arizona citizens and burdens the First Amendment rights of a narrowly defined group of taxpayers. May relies on Minneapolis Star and Tribune Co. v. Minnesota Com- missioner of Revenue, 460 U.S. 575 (1983), and Murdock v. Pennsylvania, 319 U.S. 105 (1943), to support his conten- tion that taxes on discrete groups are invalid because of the threat that “government will destroy a selected group of taxpayers by burdensome taxation.” Minneapolis Star, 460 U.S. at 585. 126 We disagree with Mays premise that the surcharge does not apply to all Arizonans. It does; any | re ee 14a person who pays 4 civil or criminal fine is subject to pay the surcharge. Just as any person choosing to purchase a new car or other non-exempt good must pay a tax, any person found to have parked illegally or committed a crime will face the surcharge. No narrow, discrete group of taxpayers is at issue in the case before us, nor are the fine payers exercising a First Amendment right. Minneapolis Star and Murdock are therefore inapposite. 927 The Clean Elections Act’s surcharge stands in stark contrast to the tax on paper and ink in Minneapolis Star and the attempted license tax on door-to-door reli- gious proselytizing at issue in Murdock. The clean elec- tions surcharge is not limited to a particular group or industry, but is assessed against all citizens who pay civil and criminal fines. Nor does the surcharge burden the exercise of a First Amendment right; there is no expressive content inherent in paying a traffic fine. To the extent that civil and criminal fine payers are compelled to fund the Clean Elections Act, the safeguard of viewpoint neutrality in the allocation of funds suffices to mitigate any First Amendment concerns. 15a CONCLUSION 9128 In summary, we hold that the surcharge fund- ing provision of the Citizens Clean Elections Act, A.R.S. § 16-940(C), is constitutional. We therefore vacate the opinion of the court of appeals and reinstate the judgment in favor of the Real Parties in Interest. Rebecca White Berch, Justice CONCURRING: Charles E. Jones, Chief Justice Ruth V. McGregor, Vice Chief Justice Michael D. Ryan, Justice John Pelander, Judge’ * Pursuant to Arizone Constitution article VI, section 3, the Honorable John Pelander, Judge of the Arizona Court of Appeals, Division Two, was designated to sit on this case. 16a IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STEVE MAY, ) 1 CA-SA 02-0073 sta ) Petitioner, ) DEPARTMENT D Vv. ) THE HONORABLE COLLEEN ) OPINION A. McNALLY, Judge of the ; SUPERIOR COURT OF THE ‘ase 6-17-02 STATE OF ARIZONA in and ‘ ) Amended by Order for the County of MARICOPA, ) filed 6-19-02 Respondent Judge, BETSEY BAYLESS, as Secre- tary of State of the State of Arizona, acting in her official capacity; CAROL SPRINGER, as Treasurer of the State of Arizona, acting in her official capacity; and the CITIZENS CLEAN ELECTIONS COMMIS- SION; and ARIZONANS FOR CLEAN ELECTIONS, Real Parties in Interest. sak east baa Sat Sat al et a et SP Petition for Special Action from the Maricopa County Superior Court Cause No. CV 2001-006078 The Honorable Colleen A. McNally, Judge REVERSED 17a Institute for Justice Arizona Chapter Phoenix By Clint Bolick Timothy D. Keller Thomas P. Liddy and Institute for Justice Washington, DC By William H. Mellor Scott G. Bullock Attorneys for Petitioner Janet Napolitano, Attorney General Phoenix By Todd F. Lang, Assistant Attorney General Attorneys for Real Party in Interest — Citizens Clean Elections Commission Arizona Center for Law in the Public Interest Phoenix By Timothy M. Hogan and Brennan Center for Justice New York, NY at New York University School of Law By Elizabeth Daniel Attorneys for Real Party in Interest — Arizonans for Clean Elections WEISBERG, Judge M1 Steve May (“Petitioner”) seeks special action review of the trial court’s decision upholding a provision of the Citizens Clean Elections Act (the “Act”), which permits certain fine surcharges to be distributed to political candidates. See Ariz.Rev.Stat. (“A.R.S.”) § 16-954(C) (Supp.2001). For the reasons set forth below, we reverse the trial court’s decision. 18a BACKGROUND AND PROCEDURAL HISTORY M2 In the 1998 general election, Arizona voters adopted the Act by approving initiative Proposition 200. The Act established a system of campaign finance whereby certain candidates could receive campaign funds in exchange for agreeing to limit campaign contributions and expendi- tures. The Act also lowered the contribution limits for non- participating candidates and imposed additional reporting requirements on all candidates. 43 The campaign funds were to be generated from four different sources: (1) a $5 state income tax check-off; (2) a dollar-for-dollar income tax credit for contributions to the fund up to $500 or twenty percent of taxes owed, which- ever was greater; (3) a $100 annual mandatory fee im- posed on certain classes of registered lobbyists; and (4) a ten percent surcharge imposed on persons paying civil and criminal fines, including those related to the stopping or standing of motor vehicles. See A.R.S. §§ 16-944, -954(A) to (C) (Supp.2001). 4 Petitioner is a state legislator who received a parking ticket and was fined $27, which included a ten percent surcharge pursuant to the Act. Petitioner refused to pay the surcharge, claiming that it violated his free speech guarantees under the First Amendment to the United States Constitution and Article 2, Sections 6 and 15 of the Arizona Constitution.’ ! The First Amendment to the United States Constitution states, “Congress shall make no law ... abridging the freedom of speech, or of the press.... ” The Arizona Constitution, Article 2, Section 6, states, “Every person may freely speak, write, and publish on all subjects, (Continued on following page) 19a 95 Petitioner originally brought an action in federal district court against the Secretary of State and Treasurer seeking a declaration of the Act’s invalidity. Citizens Clean Elections Commission and Arizonans for Clean Elections (“ACE”) intervened as defendants. In March 2001, the district court dismissed the action for lack of subject matter jurisdiction on the ground that it challenged a state tax and therefore should be initiated in state court. See Lavis v. Bayless, No. CIV 99-1627 (D. Ariz. Mar. 13, 2001). 96 Petitioner re-filed the action in state court in April 2001. The parties stipulated_to the facts and filed cross- motions for summary judgment. In December 2001, the trial court granted Petitioner’s motion in part, enjoining the collection of the lobbyist fee and severing that provi- sion from the remainder of the Act.’ Petitioner then filed a petition for special action in the Arizona Supreme Court, but the court declined to exercise jurisdiction. Petitioner therefore re-filed his special action petition in this court against ACE, the Citizens Clean Elections Commission, and the Secretary of State and Treasurer, as real parties in interest. Only ACE has filed a response. being responsible for the abuse of that right.” Section 15 states, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.” Because we conclude that the Act violates the First Amendment, we do not consider whether the Act similarly violates the Arizona Constitution. * The trial court’s order enjoining the collection of the lobbyist fee and severing that provision from the remainder of the Act has not been challenged on appeal. 20a 47 This matter involves a purely legal issue that is appropriate for resolution by special action in this court. See Univ. of Ariz. Health Scis. Ctr. v. Superior Court, 136 Ariz. 579, 581, 667 P.2d 1294, 1296 (1983) (accepting special action jurisdiction over matter of important public interest that turns entirely on legal issues). This case also presents an important constitutional issue involving the Act and is a matter of statewide importance. See State ex rel. Woods v. Block, 189 Ariz. 269, 272, 942 P.2d 428, 431 (1997). Further, there is no adequate remedy by appeal. See Elrod v. Burns, 427 U.S. 347, 373 (1976) (“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”). We therefore exercise our discretion and accept jurisdiction. DISCUSSION G8 We must decide the constitutionality of the provision of the Act that imposes a ten percent surcharge on all individuals who incur civil and criminal fines. See A.R.S. § 16-954(C). Although “the legislature need not look to an express grant of authority in order to justify an enact- ment,” “any exercise of legislative power is subject to the limitations imposed by the constitution.” Citizens Clean Elections Comm’n v. Myers, 196 Ariz. 516, 520, { 14, 1 P.3d 706, 710 (2000). A constitutional limitation on the exercise of legislative power “may be implied by the text of the constitution or its structure taken as a whole.” Jd. at 521, q 14, 1 P-3d at 711. “That [the Act] was enacted directly by the voters rather than by the state legislature does not change our constitutional analysis. ‘[VJoters may no more violate the Constitution by enacting a ballot measure than a legislative body may do so by enacting legislation.’” Serv. Employees Int'l Union v. Fair Political Practices Comm’n, 2la 955 F.2d 1312, 1314 n.1 (9th Cir. 1992) (second alteration in original) (quoting Citizens Against Rent Control uv. Berkeley, 454 U.S. 290, 295 (1981)). History of Cases 29 Beginning in 1976, the United States Supreme Court has addressed whether compelled fees similar to those imposed by the Act violate the First Amendment’s right to freedom of speech. We begin by examining those cases. 110 Buckley v. Valeo, 424 U.S. 1 (1976), involved the constitutionality of a portion of a federal act that allowed taxpayers to designate that one or two of their tax dollars be paid into a presidential election fund. Jd. at 86. The money from the fund would then be distributed to quali- fied political parties. Jd. at 87-90. Taxpayers challenged the dollar check-off provision because they were not able to designate particular candidates or parties as recipients of their money. Jd. at 91. The Court rejected the challenge, finding that the funding was “like any other appropriation from the general revenue” and that Congress always used public money in a manner to which some taxpayers objected. Id. at 91-92. The Court further commented that the provision represented an effort to “use public money to facilitate and enlarge public discussion and participation in the electoral process.” Jd. at 92-93. 111 In Abood v. Detroit Board of Education, 431 U.S. 209, 234-36 (1977), and Keller v. State Bar of California, 496 U.S. 1, 13-14 (1990), the Court considered the consti- tutionality of subsidies levied by work-related associations and whether the subsidies were germane to the purposes of the associations. In Abood, nonunion public school teachers challenged an agreement requiring them to pay a 22a service fee equivalent to union dues. 431 U.S. at 211. The objecting teachers claimed that the union’s use of the fees to engage in political speech violated their freedom of association as guaranteed by the First and Fourteenth Amendments to the United States Constitution. Id. at 213. The Supreme Court agreed. It held that requiring teachers to pay a service fee used “to contribute to political candi- dates and to express political views unrelated to its duties as exclusive bargaining representative” was unconstitu- tional. Id. at 234. G12 In Keller, the Supreme Court struck down the use of mandatory state bar dues for political advocacy. 496 U.S. at 13-14. It held that, although the state bar could fund activities “germane” to the association’s mission of “regu- lating the legal profession and improving the quality of legal services,” it could not fund activities of an ideological nature that fell outside the scope of regulating the legal profession. Id. 9713 A few years later, the Supreme Court upheld a mandatory fee imposed in a university setting. Bd. of Regents uv. Southworth, 529 U.S. 217, 229-30 (2000). Students had brought suit against their university, alleg- ing that an activity fee, which was used to support student organizations that engaged in political speech, violated their First Amendment rights. Id. at 221. The Supreme Court upheld the fee and specifically declined to engage in the germane analysis applied in Abood and Keller. Id. at 231-32. The Court explained that, In Abood and Keller, the constitutional rule took the form of limiting the required subsidy to speech germane to the purposes of the union or bar association. The standard of germane speech as applied to student speech at a university is POL WS Fite Ne ET Oe 23a unworkable, however, and gives insufficient pro- tection both to the objecting students and to the University program itself... . The speech the University seeks to encour- age in the program before us is distinguished not by discernable limits but by its vast, unexplored bounds. To insist upon asking what speech is germane would be contrary to the very goal the University seeks to pursue. It is not for the Court to say what is or is not germane to the ideas to be pursued in an institution of higher learning. Id. 9114 Determining that students in a university setting had protectable First Amendment interests, the Court found that the requirement of viewpoint neutrality in the program was sufficient to protect those interests. Jd. at 233. Thus, “[wJhen a university requires its students to pay fees to support the extracurricular speech of other students, all in the interest of open discussion, it may not prefer some viewpoints to others:” Jd. Because the univer- sity program respected the principle of viewpoint neutral- ity, the Court found the program to be consistent with the First Amendment. Jd. at 234. 115 Next, in United States v. United Foods, Inc., 533 U.S. 405, 408-12 (2001), the Supreme Court considered whether a mandatory fee imposed on mushroom handlers to fund advertisements that promoted mushroom sales in general violated the First Amendment. United Foods refused to pay the mandatory fee, claiming that it violated the First Amendment, id. at 409, and asserting that it wanted to convey a message that “its brand of mushrooms was superior to those brands grown by other producers.” Id. at 411. It complained that it was being forced to pay for 24a a message that any mushrooms were worth consuming, regardless of brand. Id. 9116 Before addressing whether the mandatory fee was constitutional, the Court stated that “a threshold inquiry must be whether there is some state imposed obligation which makes group membership less than voluntary; for it is only the overriding associational purpose which allows any compelled subsidy for speech in the first place.” Id. at 413. The Court distinguished between cases such as Abood and Keller, in which objecting members associated for purposes other than paying the subsidies, and United Foods, in which mushroom producers did not associate for any purpose other than to pay the fee. Id. at 411-12. The Court implied that the latter group was involuntary and therefore subject to a higher standard of scrutiny than the former group. Id. at 414. Ultimately, the Court declared that the mandatory fee imposed on the involuntary group of mushroom handlers was unconstitutional because the subsidizing fee was not germane to any associational purpose beyond the promoted speech itself. Id. at 415-16 (“[T]he expression [the mushroom producers are] required to support is not germane to a purpose related to an association independent from the speech itself. . . .”). Trial Court Decision 17 The trial court relied on Southworth in upholding the surcharge. The court reasoned that the surcharge, similar to the activity fee in Southworth, facilitated viewpoint neutral speech because there was no required political position that a candidate must adopt in order to qualify for funding. We, however, find that Southworth is not applicable here because it merely stated an exception 25a to the rule rather than the rule itself. That exception was that, in a university setting, “[t]he standard of germane speech as applied to student speech ... is unworkable.” 529 U.S. at 231. Accordingly, a university is treated differently because its mission is to “develop human resources, to discover and disseminate knowledge, to extend knowledge and its application beyond the bounda- ries of its campuses and to serve and stimulate society by developing in students heightened intellectual, cultural and humane sensitivities ... and a sense of purpose.” Jd. at 221 (internal quotation marks omitted). Thus, in that setting, a court must dispense with the germane analysis otherwise mandated by Abood and Keller. 118 Here, unlike Southworth, there is no equally com- pelling interest to promote speech when the individuals paying the surcharge and the political speech they fund have no connection. Unlike the students in Southworth who directly benefitted from the free speech, the surcharge payers are not directly benefitted. Thus the exception applicable in a university setting does not apply in this setting.’ We, therefore, hold that the trial court erred in applying the principles of Southworth to this case.‘ * Moreover, the activity fees in Southworth funded extracurricular speech, while here the surcharge funds political campaigns. In fact, the university policies in Southworth specifically provided that the activity fee could not be disbursed to groups having a primarily political orientation or to groups that would use such funds for politically partisan purposes, see id. at 225-26, whereas the funds here are used specifically for such purposes. * We note that, although the mandatory advertising fee in United Foods arguably benefitted some of the mushroom handlers, the Court did not apply or even discuss the holding of Southworth, which was (Continued on following page) 26a Nature of the Surcharges 419 As discussed in Buckley, our threshold question is whether the surcharge is more akin to a general tax or to a regulatory fee. The Court in Buckley implied that, if it were the former, the surcharge would be constitutional,” but not if it were the latter. 424 U.S. at 91-92 (noting that a voluntary tax check-off provision “is like any other appropriation from the general revenue’). m20 There is a significant distinction between funding a political campaign through a general tax and funding it through a surcharge. An individual who pays a general tax is paying a fee to generally benefit the community; that individual does not have an expectation as to how the funds will be used. Likewise, when the government col- lects a general tax, it is not collecting the tax for a specific purpose. If and when the government uses existing reve- nue to fund political campaigns, there is no violation of any individual's expectation — the funds already exist. 921 In contrast, an individual who incurs 4 civil or criminal fine has no expectation that he or she will incur an additional fee to support political campaigns. That individual has no choice in whether to fund or how much to fund such campaigns. In addition, unlike a general tax, the surcharge is not taken from existing government decided a year earlier. We determine that the Court omitted South- worth from its discussion because Southworth applied distinctly to a university setting that was not present in United Foods. For this reason, we similarly do not further consider Southworth here. 5 Because we do not find that the surcharges are akin to a general tax, we need not consider whether the Court in Buckley conclusively held that a general tax is constitutional under the First Amendment. 27a funds; instead, it is an additional charge imposed on a limited group of individuals. We therefore find that the surcharge is more akin to a regulatory fee than to a general tax. 122 In reaching this conclusion, we find helpful the discussion in Bidart Brothers v. California Apple Commis- sion, 73 F.3d 925, 930 (9th Cir. 1996), concerning the distinction between a general tax and a regulatory fee: [The cases] have sketched a spectrum with a paradigmatic tax at one end and a paradigmatic fee at the other. The classic “tax” is imposed by a legislature upon many, or all, citizens. It raises money, contributed to a general fund, and spent for the benefit of the entire community. The clas- sic “regulatory fee” is imposed by an agency upon those subject to its regulation. It may serve regu- latory purposes directly by, for example, deliber- ately discouraging particular conduct by making it more expensive. Or, it may serve such purposes indirectly by, for example, raising money placed in a special fund to help defray the agency’s regu- lation-related expenses. Courts facing cases that lie near the middle of this spectrum have tended (sometimes with minor differences reflecting the different statutes at issue) to emphasize the revenue’s ultimate use, asking whether it provides a general benefit to the public, of a sort often financed by a general tax, or whether it provides more narrow benefits to regulated companies or defrays the agency's costs of regulation. Id. (quoting San Juan Cellular Tel. Co. v. Pub. Serv. Comm’n, 967 F.2d 683, 685 (1st Cir. 1992)). Here, the surcharge is imposed upon a specific group of individuals, 28a placed in a special fund, and geared toward a specific purpose: political campaigns. The participating politicians directly benefit from the funds. Accordingly, the surcharge is more like a regulatory fee than a general tax.” Creation of an Association 423 We next consider whether the individuals who incur civil and criminal fines thereby become an association and, if so, whether that association is voluntary. See United Foods, 533 U.S. at 413 (“[A] threshold inquiry must be whether there is some state imposed obligation which makes group membership less than voluntary; for it is only the overriding associational purpose which allows any compelled subsidy for speech in the first place.”). United Foods required that involuntary associations be subject to a higher standard of scrutiny than voluntary associations. Id. at 414. G24 In United Foods, the mushroom handlers were not part of an organization related to growing or distributing mushrooms. However, they involuntarily became part of an association by virtue of their duty to pay the mandatory advertising fee. Id. at 412-14. We liken the situation in this case to that in United Foods and find that the indi- viduals who must pay the civil and criminal fines compose an involuntary association. Here, the surcharge is imposed upon a discrete group of individuals — those who incur civil and criminal fines — who are not otherwise associated. © We respectfully disagree with the district court’s characterization of the surcharges as a tax and not a regulatory fee. See Lavis, No. CIV 99-1627, slip op. at 4-9. 29a Thus, these persons are forced to associate by virtue of the mandatory surcharge. Germane Speech 125 Having determined that the surcharge is more akin to a regulatory fee than a general tax and that it creates an involuntary association, we engage in the next step of constitutional analysis: determining whether the speech that is being supported is germane to the purpose of the association. See Abood, 431 U.S. at 234-36; see also Keller, 496 U.S. at 13-14.’ Petitioner asserts that the trial court skipped this step and that, had it completed it, the court would have found that the individuals who are compelled to pay the surcharge have no connection to the political speech the surcharge helps fund. Also, Petitioner asserts that, because the very purpose of the Act is to promote speech, the surcharge is unconstitutional under United Foods. See 533 U.S. at 415 (“We have not upheld compelled subsidies for speech in the context of a program where the principal object is speech itself.”). 126 ACE counters that the lack of connection between Petitioner and the message his payment helps fund is an important distinguishing factor from Abood and Keller, in which the plaintiffs were compelled to pay dues to organi- zations with which they were closely associated (a teacher’s union and a state bar). However, this distinction does not address the issue of germaneness as the thrust of the germaneness test set forth in Abood, Keller, and " Our review necessarily does not consider whether the mandatory fee supports a laudable goal. 30a United Foods is that the message must be closely con- nected or “germane” to the association’s purpose. Because this standard is not met here, the surcharge is unconstitu- tional. 427 The individuals who incur a civil or criminal fine do not have anything in common except their duty to pay the fine. The political messages the surcharge enables are not related to any overriding purpose shared by these involun- tarily associated individuals. q28 Furthermore, the fee is collected for the sole purpose of supporting political speech. See Buckley, 424 U.S. at 21 (holding that cont ‘butions to political campaigns are a form of speech protected by the First Amendment because such contributions reflect an “expression of support for the candidate and his views”). Under Abood, Keller, and United Foods, such a purpose cannot be supported by a surcharge levied upon an involuntary association. 4129 We find support for our conclusion in the reasoning of the Florida Supreme Court in State ex rel. Butterworth v. Republican Party, 604 So.2d 477, 480 (Fla. 1992), which invalidated on First Amendment grounds an assessment imposed upon political organizations that was earmarked for a campaign finance fund: [Slingling out political parties and associations to support the fund bears no relationship to the in- terest advanced. There are equally effective means of supporting the trust fund without in- fringing on the appellees’ constitutional rights, such as devoting a larger percentage of the filing fees to the fund or supporting the fund through general revenues. 3la (Footnote omitted). Similarly, singling out civil and crimi- nal violators to pay the surcharge bears no relationship to the interest of funding a particular elections system. The purpose of the Act may be advanced only through other means which do not violate these individuals’ rights. 230 We therefore conclude that the surcharge violates the exercise of free speech under the United States Constitution because it is imposed upon a discrete group of individuals who are involuntarily associated and because the supported speech is not germane to the purpose of that association. CONCLUSION 231 Based on the holdings of Buckley, Abood, Keller, and United Foods, we conclude that A.R.S. § 16-954(C), author- izing a surcharge on civil and criminal fines to finance state elections, imposes an unconstitutional restraint on the exercise of free speech. Because it is severable from the remainder of the Act, the Secretary of State and Treasurer are enjoined from further implementing and performing their duties in administering and enforcing A.R.S. § 16-954(C). SHELDON H. WEISBERG, Presiding Judge CONCURRING: JON W. THOMPSON, Judge JOHN C. GEMMILL, Judge 32a SUPERIOR COURT OF ARIZONA MARICOPA COUNTY 12/19/2001 HONORABLE COLLEEN MCNALLY CV 2001-006078 FILED: 12/21/2001 RICK LAVIS, et al. TIMOTHY DAVID KELLER as THOMAS I MCCLORY BETSY BAYLESS, et al. TIMOTHY M HOGAN TODD F LAND RULING The Court heard oral argument on the parties’ cross- motions for summary judgment on November 20, 2001. The Court took the matter under advisement. The Court now rules as follows: This matter comes before the Court on cross-motions for summary judgment. Motions were filed by Plaintiffs, Defendant-Intervenor Arizonans for Clean Elections, and Defendant Citizens Clean Elections Commission. The parties agree that there are no genuine disputed issues of material fact and have filed a joint statement of facts. Plaintiffs filed suit requesting declaratory and injunc- tive relief alleging that the Citizens Clean Election Act violates the United States and Arizona Constitutions. The purpose of the act as set forth in A.R.S. § 16-940 is to: create a clean elections system that will improve the integrity of Arizona state government by di- minishing the influence of special-interest money, % . Z : 33a will encourage citizen participation in the politi- cal process, and will promote freedom of speech under the U.S. and Arizona Constitutions. The act establishes a system to provide public funding for candidates for state political offices. The system is overseen by the Citizens Clean Elections Commission. After a candidate is certified as qualifying for public funding, the Commission distributes money to the candi- date from the Clean Elections Fund. The money for the fund is generated from four different sources: 1) taxpayers may voluntarily contribute to the fund by marking a box at the time of filing state income taxes; 2) qualifying candidates must collect a certain number of $5 contribu- tions from registered voters; 3) lobbyists who work for commercial or for-profit entities must pay an annual $ 100 lobbyist fee; and 4) persons paying civil and criminal fines must pay a 10% surcharge on the fines. Plaintiffs challenge the Act based upon the third and fourth funding sources. Plaintiff Lavin is a lobbyist who challenges the lobbyist fee. Plaintiff May is a citizen who challenges the 10% surcharge on a parking ticket that he received. Plaintiffs claim that the lobbyist fees and the fine surcharges are coercive and unconstitutional. Plaintiffs - allege violations of the Arizona Constitution and the United States Constitution under the categories of com- pelled speech, viewpoint discrimination/equal protection, and prior restraint. The lobbyists’ fees are challenged on all three grounds, while the fine surcharges are only challenged on the issue of compelled speech. 34a Compelled Speech The First Amendment guarantees freedom of speech and freedom to refrain from speech. The United States Supreme Court recognized this concept in upholding the New Hampshire residents’ objections to being compelled to display the “Live Free or Die” motto on their license plates. Wooley v. Maynard, 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977). Plaintiffs contend that a compelled contribution to political campaigns equals compelled political speech. Several cases support Plaintiffs’ position that com- pelled associations and payments to support a particular political message OF viewpoint are prohibited. In each of these cases, however, the compulsory payments supported one particular viewpoint that was not germane to the purpose of the association. In Abood v. Detroit Board of Education, 431 U.S. 209 (1977) Michigan law required public school teachers to pay union dues. The teachers objected to the use of their fees to contribute to political candidates and to express political views unrelated to collective bargaining activities. In Keller v. State Bar of California, 496 U.S. 1 (1990) lawyers objected to their mandatory bar dues being used to fund ideological activi- ties outside the scope of regulating the legal profession. In United States and Dept of Agriculture v. United Foods, Inc., 121 S.Ct. 2334, 2001 W.S. LEXIS 4904 (2001), the mushroom handlers objected to mandatory payments to support the mushroom industry. The Clean Elections Act does not compel funding for a particular viewpoint or ideology. Although participating candidates certainly represent specific viewpoints and specific political agendas, there is no inquiry as to the ———————— i S PEF LENE SO BIEN 35a candidate’s position in order to qualify for funding. Nor does a contributor associate themselves with a particular viewpoint by virtue of the compulsory contribution. Board of Education v. Southworth, 529 U.S. 217. (2000) involved university students who objected to the use of their fees to support political activity. The Court held “the First Amendment permits a public university to charge its students an activity fee used to fund a program to facilitate extracurricular student speech if the program is viewpoint neutral.” Like the activity fee in Southworth, the Clean Elections Fund facilitates viewpoint neutral speech. Although Plaintiffs contend that the holding is limited to the university setting where the free expression of ideas is encouraged, the Court notes that there is a similar, legitimate government interests expressed in A.R.S. § 16-940. The Court finds that the Clean Elections Act does not compel speech to support a specific viewpoint or ideology. Viewpoint Discrimination/Equal Protection The Clean Elections Act requires commercial and for- profit lobbyists to pay the lobbyist fee, while non-profit lobbyists are exempt. Plaintiffs allege that this constitutes viewpoint discrimination and violates their rights to equal protection. There is no evidence to suggest that the lobbyist fee regulates speech based on content. The differentiation is based upon the tax status of the lobbyists rather than the character of interests promoted. There is no evidence to suggest that similarly situated persons are being treated 36a differently and that the different treatment is based on the content of their speech. Prior Restraint Plaintiffs allege that the lobbyist fee is a special tax that singles out and burdens lobbyists for engaging in protected First Amendment activities. Defendant Citizens Clean Election Commission contends that there is no prior restraint because the lobbyists are not prohibited from lobbying unless they pay the fee. Defendants also note that there has been no effort to enforce the fee or penalize lobbyists who have not paid it. Although many prior restraint cases involve the press, rather than lobbyists, petitioning the government for a redress of grievances is clearly expression that is protected by the First Amendment. Where First Amendment inter- ests are at stake, heightened scrutiny is required, regard- less of whether or not the taxation is content neutral. Like the tax at issue before the Vermont Supreme Court, the Clean Elections Act presents a “distinct, inde- pendent tax si ling out a discrete group of First Amend- ment speakers.” Vermont Society of Association Executive, et al v. Milne, 2001 Vt LEXIS 179 (Vt. June 8, 2001), at 22. Although Defendant presents compelling reasons that the tax is related to legitimate public interests, the State does not present any justification for the burden of those interests to be borne by a § ‘al tax on lobbyists. There is no claim that the tax is related to defraying the costs of administering lobbying activities. Defendant Citizens for Clean Elections contends that there is no prior constraint because lobbyists are not OCR PSUR ser begs | 37a prohibited from lobbying if they do not pay the fee, and that the only enforcement mechanism is an administrative action to collect the debt. The Court finds that the exis- tence of the law creates a prohibition for any lobbyist who respects the law. The Court finds that A.R.S. §16-944 imposes an unconstitutional prior restraint on the exercise of free speech under Article 2 § 6 and § 15 of the Arizona Consti- tution and the First Amendment of the United States Constitution. The Court finds that the remaining sections of the Clean Elections Act are Constitutional. The Court finds that the unconstitutional portion of the Act is severable from the remainder of the Act. A.R.S. § 16-960 supports the finding of severability, and the Court further finds that the purpose and function of the act is met without the lobbyist fee as a funding source. IT IS ORDERED granting Plaintiffs’ motion for summary judgment as to Counts III and VII. Accordingly, IT IS ORDERED enjoining Defendants from further implementing and performing their duties in administer- ing and enforcing A.R.S. § 16-944. IT IS ORDERED denying the remainder of Plaintiffs’ motion for summary judgment. - IT IS ORDERED granting Defendant-Intervenor Arizonans for Clean Elections and Defendant Citizens Clean Elections Commissions’ motions for summary judgment as to Counts I, II, IV, V, VI, and VIII. —___ "ae 38a IT IS ORDERED denying Defendants’ motions for summary judgment as to Counts III and VII. 39a A.R.S. § 16-940 (2002) § 16-940. Findings and declarations A. The people of Arizona declare our intent to create a clean elections system that will improve the integrity of Arizona state government by diminishing the influence of special-interest money, will encourage citizen participation in the political process, and will promote freedom of speech under the U.S. and Arizona Constitutions. Campaigns will become more issue-oriented and less negative because there will be no need to challenge the sources of campaign money. B. The people of Arizona find that our current election-financing system: 1. Allows Arizona elected officials to accept large campaign contributions from private interests over which they have governmental jurisdiction; 2. Gives incumbents an unhealthy advantage over challengers; 3. Hinders communication to voters by many qualified candidates; 4. Effectively suppresses the voices and influ- ence of the vast majority of Arizona citizens in favor of a small number of wealthy special interests; 5. Undermines public confidence in the integrity of public officials; 6. Costs average taxpayers millions of dollars in the form of subsidies and special privileges for campaign contributors; 40a 7. Drives up the cost of running for state office, discouraging otherwise qualified candidates who lack personal wealth or access to special-interest funding; and 8. Requires that elected officials spend too much of their time raising funds rather than representing the public. ——$—___— § 16-941. Limits on spending and contributions for political campaigns A. Notwithstanding any law to the contrary, a participating candidate: 1. Shall not accept any contributions, other than a limited number of five-dollar qualifying contributions as specified in section 16-946 and early contributions as specified in section 16-945, except in the emergency situation specified in section 16-954, subsection F. 9. Shall not make expenditures of more than a total of five hundred dollars of the candidate’s personal monies for a candidate for legislature or more than one thousand dollars for a candidate for statewide office. 3 Shall not make expenditures in the primary election period in excess of the adjusted primary election spending limit. 4. Shall not make expenditures in the general election period in excess of the adjusted general election spending limit. 5. Shall comply with section 16-948 regarding campaign accounts and section 16-953 regarding returning 4la unused monies to the citizens clean election fund de- scribed in this article. B. Notwithstanding any law to the contrary, a nonparticipating candidate: 1. Shall not accept contributions in excess of an amount that is twenty percent less than the limits speci- fied in section 16-905, subsections A through G, as ad- justed by the secretary of state pursuant to section 16-905, subsection J. Any violation of this paragraph shall be subject to the civil penalties and procedures set forth in section 16-905, subsections L through P and section 16- 924. — 2. Shall comply with section 16-958 regarding reporting, including filing reports with the secretary of state indicating whenever (A) expenditures other than independent expenditures on behalf of the candidate, from the beginning of the election cycle to any date up to pri- mary election day, exceed seventy percent of the original primary election spending limit applicable to a participat- ing candidate seeking the same office, or (B) contributions to a candidate, from the beginning of the election cycle to any date during the general election period, less expendi- tures made from the beginning of the election cycle through primary election day, exceed seventy percent of the original general election spending limit applicable to a participating candidate seeking the same office. C. Notwithstanding any law to the contrary, a candidate, whether participating or nonparticipating: 1. If and only if specified in a written agreement signed by the candidate and one or more opposing candidates and filed with the citizens clean elections 42a commission, shall not make any expenditure in the pri- mary or general election period exceeding an agreed-upon amount lower than spending limits otherwise applicable by statute. 29. Shall continue to be bound by all other applicable election and campaign finance statutes and rules, with the exception of those provisions in express OF clear conflict with the provisions of this article. D. Notwithstanding any law to the contrary, any person who makes independent expenditures related to a particular office cumulatively exceeding five hundred dollars in an election cycle, with the exception of any expenditure listed in section 16-920 and any independent expenditure by an organization arising from a communica- tion directly to the organization’s members, shareholders, employees, affiliated persons, and subscribers, shall file reports with the secretary of state in accordance with section 16-958 so indicating, identifying the office and the candidate or group of candidates whose election or defeat is being advocated, and stating whether the person is advocating election or advocating defeat. § 16-942. Civil penalties and forfeiture of office A. The civil penalty for a violation of any contribu- tion or expenditure limit in section 16-941 by or on behalf of a participating candidate shall be ten times the amount by which the expenditures or contributions exceed the applicable limit. ie B. In addition to any other penalties imposed by law, the civil penalty for a violation by or on behalf of any 43a candidate of any reporting requirement imposed by this chapter shall be one hundred dollars per day for candi- dates for the legislature and three hundred dollars per day for candidates for statewide office. The penaity imposed by this subsection shall be doubled if the amount not reported for a particular election cycle exceeds ten percent of the adjusted primary or general election spending limit. No penalty imposed pursuant to this subsection shall exceed twice the amount of expenditures or contributions not reported. The candidate and the candidate’s campaign account shall be jointly and severally responsible for any penalty imposed pursuant to this subsection. C. Any campaign finance report filed indicating a violation of section 16-941, subsections A or B or section 16-941, subsection C, paragraph 1 involving an amount in excess of ten percent of the sum of the adjusted primary election spending limit and the adjusted general election spending limit for a particular candidate shall result in disqualification of a candidate or forfeiture of office. D. Any participating candidate adjudged to have committed a knowing violation of section 16-941, subsec- tion A or subsection C, paragraph 1 shall repay from the candidate’s personal monies to the fund all monies ex- pended from the candidate’s campaign account and shall turn over the candidate’s campaign account to the fund. E. All civil penalties collected pursuant to this article shall be deposited to the fund. 44a § 16-943. Criminal violations and penalties A. A candidate, or any other person acting on behalf of a candidate, who knowingly violates section 16-941 is guilty of a Class 1 misdemeanor. B. Any person who knowingly pays any thing of value or any compensation for a qualifying contribution as defined in section 16-946 is guilty of a Class 1 misde- meanor. C. Any person who knowingly provides false or incomplete information on a report filed under section 16- 958 is guilty of a Class 1 misdemeanor. § 16-944. Fees imposed on lobbyists Beginning on January 1, 1999, an annual fee is imposed on all registered lobbyists representing (A) one or more persons in connection with a commercial or for-profit activity except public bodies or (B) a non-profit entity predominately composed of or acting on behalf of a trade association or other grouping of commercial or for-profit entities. The fee shall be in the amount of one hundred dollars annually per lobbyist and shall be collected by the secretary of state and transmitted to the state treasurer for deposit into the fund. § 16-945. Limits on early contributions A. A participating candidate may accept early contributions only from individuals and only during the exploratory period and the qualifying period, subject to the following limitations: 45a 1. Notwithstanding any law to the contrary, no contributor shall give, and no participating candidate shall accept, contributions from a contributor exceeding one hundred dollars during an election cycle. 2. Notwithstanding any law to the contrary, early contributions to a participating candidate from all sources for an election cycle shall not exceed, for a candi- date for governor, forty thousand dollars or, for other candidates, ten percent of the sum of the original primary election spending limit and the original general election spending limit. 3. Qualifying contributions specified in section 16-946 shall not be included in determining whether the limits in this subsection have been exceeded. B. Early contributions specified in subsection A of this section and the candidate’s personal monies specified in section 16-941, subsection A, paragraph 2 may be spent only during the exploratory period and the qualifying period. Any early contributions not spent by the end of the qualifying period shall be paid to the fund. C. If a participating candidate has a debt from an election campaign in this state during a previous election cycle in which the candidate was not a participating candidate, then, during the exploratory period only, the candidate may accept, in addition to early contributions specified in subsection A of this section, contributions subject to the limitations in section 16-941, subsection B, paragraph 1, or may exceed the limit on personal monies in section 16-941, subsection A, paragraph 2, provided that such contributions and monies are used solely to retire such debt. - 46a § 16-946. Qualifying contributions A. During the qualifying period, a participating candidate may collect qualifying contributions, which shall be paid to the fund. B. To qualify as a “qualifying contribution,” a contri- bution must be: 1. Made by a qualified elector es defined in section 16-121, who at the time of the contribution is registered in the electoral district of the office the candi- date is seeking and who has not given another qualifying contribution to that candidate during that election cycle; 2. Made by a person who is not given anything of value in exchange for the qualifying contribution; 3. Inthe sum of five dollars, exactly; 4. Received unsolicited during the qualifying period or solicited during the qualifying period by a person who is not employed or retained by the candidate and who is not compensated to collect contributions by the candi- date or on behalf of the candidate; 5. If made by check or money order, made payable to the candidate’s campaign committee, or if in cash, deposited in the candidate's campaign committee’s account; and 6. Accompanied by a three-part reporting slip that includes the printed name, registration address, and signature of the contributor, the name of the candidate for whom the contribution is made, the date, and the printed name and signature of the solicitor. 47a C. A copy of the reporting slip shall be given as a receipt to the contributor, and another copy shall be retained by the candidate’s campaign committee. Delivery of an original reporting slip to the secretary of state shall excuse the candidate from disclosure of these contributions on campaign finance reports filed under article 1 of this chapter. § 16-947. Certification as a participating candidate A. A candidate who wishes to be certified as a participating candidate shall, before the end of the qualify- ing period, file an application with the secretary of state, in a form specified by the citizens clean elections commis- sion. B. The application shall identify the candidate, the office that the candidate plans to seek, and the candidate’s party, if any, and shall contain the candidate’s signature, under oath, certifying that: 1. The candidate has complied with the restric- tions of section 16-941, subsection A during the election cycle to date. 2. The candidate’s campaign committee and exploratory committee have filed all campaign finance reports required under article 1 of this chapter during the election cycle to date and that they are complete and accurate. 3. The candidate will comply with the require- ments of section 16-941, subsection A during the remain- der of the election cycle and, specifically, will not accept private contributions. 48a C. The commission shall act on the application within one week. Unless, within that time, the commission denies an application and provides written reasons that all or part of a certification in subsection B of this section is incomplete or untrue, the candidate shall be certified as a participating candidate. If the commission denies an application for failure to file all complete and accurate campaign finance reports or failure to make the certifica- tion in subsection B, paragraph 3 of this section, the candidate may reapply within two weeks of the commis- sion’s decision by filing complete and accurate campaign finance reports and another sworn certification. § 16-948. Controls on participating candidates, cam- paign accounts A. A participating candidate shall conduct all finan- cial activity through a single campaign account of the candidate’s campaign committee. A participating candidate shall not make any deposits into the campaign account other than those permitted under sections 16-945 or 16- 946. B. A candidate may designate other persons with authority to withdraw funds from the candidate’s cam- paign account. The candidate and any person 50 desig- nated shall sign a joint statement under oath promising to comply with the requirements of this title. C. The candidate or a person authorized under subsection B of this section shall pay monies from a participating candidate’s campaign account directly to the person providing goods or services to the campaign and shall identify, on a report filed pursuant to article 1 of this 49a chapter, the full name and street address of the person and the nature of the goods and services and compensation for which payment has been made. Notwithstanding the previous sentence, a campaign committee may establish one or more petty cash accounts, which in aggregate shall not exceed one thousand dollars at any time. No single expenditure shall be made from a petty cash account exceeding one hundred dollars. D. Monies in a participating candidate’s campaign account shall not be used to pay fines or civil penalties, for costs or legal fees related to representation before the commission, or for defense of any enforcement action under this chapter. Nothing in this subsection shall prevent a participating candidate from having a legal defense fund. § 16-949. Caps on spending from citizens clean elec- tions fund A. The commission shall not spend, on al! costs incurred under this article during a particular calendar year, more than five dollars times the number of Arizona resident personal income tax returns filed during the previous calendar year. Tax reductions and tax credits awarded to taxpayers pursuant to section 16-954, subsec- tions A and B shall not be considered costs incurred under this article for purposes of this section. The commission may exceed this limit during a calendar year, provided that it is offset by an equal reduction of the limit during another calendar year during the same four-year period beginning January 1 immediately after a gubernatorial election. 50a B. The commission may use up to ten percent of the amount specified in subsection A of this section for reason- able and necessary expenses of administration and en- forcement, including the activities specified in section 16- 956, subsection A, paragraphs 3 through 7 and subsections B and C. Any portion of the ten percent not used for this purpose shall remain in the fund. C. The commission shall apply ten percent of the amount specified in subsection A of this section for reason- able and necessary expenses associated with voter educa- tion, including the activities specified in section 16-956, subsection A. _ D. The state treasurer shall administer a citizens clean election fund from which costs incurred under this article shall be paid. The auditor general shall review the monies in, payments into, and expenditures from the fund no less often than every four years. § 16-950. Qualification for clean campaign funding A. A candidate who has made an application for certification may also apply, in accordance with subsection B of this section, to receive funds from the citizens clean elections fund, instead of receiving private contributions. B. To receive any clean campaign funding, the candidate must present to the secretary of state no later than one week after the end of the qualifying period a list of names of persons who have made qualifying contribu- tions pursuant to section 16-946 on behalf of the candi- date. The list shall be divided by county. At the same time, the candidate must tender to the secretary of state the 5la original reporting slips identified in section 16-946, sub- section C for persons on the list and an amount equal to the sum of the qualifying contributions collected. The secretary of state shall deposit the amount into the fund. C. The secretary of state shall select at random a sample of five percent of the number of non-duplicative names on the list and forward facsimiles of the selected reporting slips to the county recorder for the counties of the addresses specified in the selected slips. Within ten days, the county recorders shall provide a report to the secretary of state identifying as disqualified any slips that are unsigned or undated or that the recorder is unable to verify as matching a person who is registered to vote, on the date specified on the slip, inside the electoral district of the office the candidate is seeking. The secretary of state shall multiply the number of slips not disqualified by twenty, and if the result is greater than one hundred and ten percent of the quantity required, shall approve the candidate for funds, and if the result is less than ninety percent of the quantity required, shall deny the applica- tion for funds. Otherwise, the secretary of state shall forward facsimiles of all of the slips to the county record- ers for verification, and the county recorders shall check all slips in accordance with the process above. D. To qualify for clean campaign funding, a candi- date must have been approved as a participating candi- date pursuant to section 16-947 and have obtained the following number of qualifying contributions: 1. For a candidate for legislature, two hundred. 2. For candidate for mine inspector, five hun- dred. 52a 3. For a candidate for treasurer, superintendent of public instruction, or corporation commission, one thousand five hundred. 4. For a candidate for secretary of state or attorney general, two thousand five hundred. 5. For a candidate for governor, four thousand. E. To qualify for clean campaign funding, a candi- date must have met the requirements of this section and either be an independent candidate or meet the following standards: 1. To qualify for funding for a party primary election, a candidate must have properly filed nominating papers and nominating petitions with signatures pursuant to chapter 3, articles 2 and 3 of this title in the primary of a political organization entitled to continued representa- tion on the official ballot in accordance with section 16- 804. 2. To qualify for clean campaign funding for a general election, a candidate must be a party nominee of such a political organization. § 16-951. Clean campaign funding A. At the beginning of the primary election period, the commission shall pay from the fund to the campaign account of each candidate who qualifies for clean cam- paign funding: 1. For a candidate who qualifies for clean campaign funding for a party primary election, an amount equal to the original primary election spending limit; 53a 2. For an independent candidate who qualifies for clean campaign funding, an amount equal to seventy percent of the sum of the original primary election spend- ing limit and the original general election spending limit; or 3. For a qualified participating candidate who is unopposed for an office in that candidate’s primary, in the primary of any other party, and by any opposing inde- pendent candidate, an amount equal to five dollars times the number of qualifying contributions for that candidate certified by the commission. B. At any time after the first day of January of an election year, any candidate who has met the require- ments of section 16-950 may sign and cause to be filed a nomination paper in the form specified by section 16-311, subsection A, with a nominating petition and signatures, instead of filing such papers after the earliest time set for filing specified by that subsection. Upon such filing and verification of the signatures, the commission shall pay the amount specified in subsection A of this section immediately, rather than waiting for the beginning of the primary election period. C. At the beginning of the general election period, the commission shall pay from the fund to the campaign account of each candidate who qualifies for clean cam- paign funding for the general election, except those candi- dates identified in subsection A, paragraphs 2 or 3 or subsection D of this section, an amount equal to the original general election spending limit. D. At the beginning of the general election period, the commission shall pay from the fund to the campaign account of a qualified participating candidate who has not 54a received funds pursuant to subsection A, paragraph 3 of this section and who is unopposed by any other party nominee or any opposing independent candidate an amount equal to five dollars times the number of qualify- ing contributions for that candidate certified by the com- mission. E. The special original general election spending limit, for a candidate who has received funds pursuant to subsection A, paragraphs 2 or 3 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1021%3A1. Public record. Not legal advice.