As noted earlier, on January 14, U.S. District Court Roslyn Silver, a Clinton appointee, had issued a tentative opinion holding that part of the Arizona public funding program is probably unconstitutional. On January 20 the judge issued a final opinion. She said that the unconstitutional part of the law cannot be severed from the main part of the public funding program, so she issued an injunction against the entire program for 2010. Here is the new decision. It is the same as the old, tentative opinion, except new material is added starting on page 18.
However, she stayed her own injunction, to give the state an opportunity to ask the 9th circuit to weigh in. It is possible the 9th circuit will maintain the stay. If the 9th circuit does not do so within 10 days, then the stay will be lifted, and the program can’t be in effect in 2010.
The part of the public funding law that is unconstitutional is the part that gives extra public funding to candidates who have opponents who are not using public funding and who raise a large amount of private money. In other words, public funding is fine if it gives every participating candidate public money, in accordance with a neutral formula that treats all candidates alike. But once the public program starts giving extra amounts of money because of some characteristics of the opponents of the publicly-funded candidate, that is not constitutional. Thanks to Rick Hasen’s ElectionLawBlog for the link to the new decision.
If Clean Elections aren’t in place in 2010 it will be disastrous for Green Party candidates who typically do not have a large donor base. The Arizona Clean Elections Commission also does more than just funding; they issue a candidate booklet for voter information that is very helpful and they run the debates that consistently allow third party participation. I haven’t read the opinion in full, so I’m not sure if they’ll be able to do these at least in 2010 if the injunction is issued.
This may be very bad news for third party candidates.
The decision doesn’t seem to interfere with the debates or the booklet. It just stops handing out money to candidates. There is probably a 50-50 chance that the 9th circuit will keep the funding in place for 2010.
I do not think that public funding is a bad idea, but this is one of the obvious challenges such a system will have and is often overlooked by its advocates.
Which candidates and or political parties are eligible for the public funding? If by law or result only the two major party candidates will be eligible then it does defeat the purpose of such funding, but it is equally true that not everyone who runs for office is worthy of this funding….
Arizona public funding is 100% non-discriminatory. The rules are the same for every candidate, regardless of that candidate’s partisan affiliation. Maine is like Arizona in that regard.
Does Arizona’s system have a threshold — a minimum number of dollars raised, donations received, or both — before a candidate qualifies for any public funds? That might raise concerns of indirect discriminatory impact against alternative-party and independent candidates, related to comment #1.
Does Arizona’s system have separate payouts for primary and general elections (as some bills now in Congress do)? What about separate debate/forum/etc. participation requirements or incentives for primary and general election campaigns? If so, then that may be discrimination against parties and independents who can’t participate in primaries by law.
(Mind you, any good attorney will tell you there is a difference between discrimination, unfair discrimination, and illegal discrimination. . . .)
A statewide candidate has to receive a certain number of donations of exactly $5 from different people all within their district (or statewide for statewide offices). Once they meet that number, they may elect to receive public funds. If they do, those are the only funds they’re allowed to spend during the campaign. Furthermore, if an opponent outspends what they got in public funds, they receive more in public funds so that any publicly funded candidate can spend as much as their highest spending opponent. It’s one aspect of that last point that is the subject of the lawsuit.
(When I said statewide candidate the first time, I meant running for state office. When I said it the second time, I meant elected by the voters statewide. Sorry.)
So to conclude, the threshold requirement discriminates against candidates with little or no public support. I happen to think it’s a fantastic system. There are of course some principled libertarian objections to public funding in general, but absent those I think it’s very win-win.
Ah — here’s a page with a number of the details I was looking for. . . .
http://www.azcleanelections.gov/candidates/for-candidates/running-for-office.aspx
The highest threshold for those $5 donations is 4,410 for governor . . . though it might be harder to reach the 220-donation threshold for a legislative candidate. (How many seats are there?) Newer-party and independent candidates might find reaching these thresholds somewhat harder than older-party candidates with establishments behind them — though I believe I’ve seen higher barriers than these. . . .
The amount of “early contributions” is also limited. Squinting at this table, I see it as setting the maximum “seed money” at about 2.5 times the total amount of the qualifying threshold for each office.
If you qualify, you get the whole chunk of money — well, one chunk for the primary and one for the general. (Which still does leave the question of what the law does or doesn’t do for parties and independent candidates who aren’t allowed to run in primaries. Can anyone enlighten us on that?)
Also, the chunk approach offers the possibility of equal funding among all candidates who reach the threshold and qualify — as opposed to an approach that matches actual funds directly raised, whatever upper limit (or lower threshold) there may or may not be on the matching. I can see points either way on that.