On April 12, the 9th circuit heard oral arguments in McComish v Bennett, the case over Arizona’s public funding law for candidates for state office. The basic concept of public funding for candidates is not under attack in this case. Instead, the case is about the constitutionality of the part of the Arizona law that gives additional public funding to candidates who have privately-funded opponents, and those privately-funded opponents raise lots of money, or are the beneficiaries of substantial independent expenditures.

The three judges were Andrew Kleinfeld, A. Wallace Tashima, and Sidney Thomas. Kleinfeld is generally a conservative and the other two are generally considered liberals, although these words are very inexact for judges and should not be taken too seriously. Judge Kleinfeld was by far the most active questioner. As any good judge does at oral argument, he asked questions of both sides that stressed and challenged each side.

It appears that the panel will be influenced by the fact that the U.S. Supreme Court decision in Davis v Federal Election Commission (the 2008 case that said Congress cannot give higher exemption limits for candidates with wealthy opponents) seems to mention favorably the 8th circuit opinion Day v Holahan. Day v Holahan is a 1994 decision that struck down a portion of Minnesota’s public funding law that is similar to the challenged part of the Arizona law. If the 9th circuit panel thinks that the U.S. Supreme Court’s Davis decision indeed approves of the 1994 Minnesota decision, they will probably agree with the U.S. District Court that part of the Arizona public funding law cannot stand.

The panel was also interested in the 1986 U.S. Supreme Court decision Pacific Gas & Electric Co. v Public Utilities Commission of California, which ruled that California could not force a private utility company that was sending literature to its customers to include in the same envelope a statement from opponents of PG&E that contradicted some of the statements that PG&E was saying to the customers. Opponents of the Arizona public funding law said the message of the PG&E decision is that California’s policy was unconstitutional because it was giving an incentive for PG&E not to speak (i.e., spend money to print up literature and mail it). The opponents said that, similarly, the Arizona law creates an incentive for privately-funded candidates not to speak (i.e., raise or spend even more money), because if they do, they know that the result will be that their opponent gets additional public funding.