Public-interest firm renews challenge of Arizona’s ‘clean-election’ plan

Monday, April 30, 2001

Editor’s note: Maricopa County Superior Court Judge Colleen McNally heard arguments against Arizona’s public election-financing system on Nov. 20, but did not say when she might rule.

When Steve May, a state representative in Arizona, got a parking ticket two years ago, his fine included a 10% surcharge to go toward the state’s Clean Elections Commission, just like every other parking ticket issued in the state.

Unlike most other people ticketed, May refused to pay.

“While politicians have a constitutionally protected right to free speech, I do not believe they have a constitutional right to make me pay for it,” May said in published reports. “Many politicians in this state espouse philosophies that I find objectionable, and I will not allow my hard-earned money to fund offensive political campaigns.”

And with the help of the Institute for Justice, May has sued the state, claiming that provisions of the state’s Clean Elections Act compel citizens to finance political campaigns.

“The dirty little secret underlying Arizona’s so-called Clean Elections Act is that it forces some citizens to pay for the campaigns of politicians,” said Clint Bolick of the Institute for Justice, a public-interest firm based in Washington, D.C. “Coerced support of political campaigns is anathema to First Amendment freedoms.”

Arizona voters narrowly approved a publicly funded campaign program in 1998, with a bare 51% voting in favor of the plan. The law created a five-member commission to oversee the public fund.

To qualify, candidates must collect $5 contributions from voters in their district. The minimum number of contributions ranges from 200 for legislative races to 4,000 for governor. Proceeds from lobbyist registration fees, surcharges on civil and criminal court fines and voluntary donations from Arizona tax returns pay for the program.

Sharlene Bozack, executive director of the Clean Elections Institute in Phoenix, said the plan offered more than $1.8 million in public monies during the 2000 election cycle. But she said the state Clean Elections Commission is expected to dole out more than $15 million next year when numerous state offices, such as governor, are up for election.

Bozack said the plan enables more candidates to consider a run for political office, particularly those who abhor the fund-raising aspects of a campaign.

“Instead of having to worry about where the money is coming from, I can worry about the issues,” she said in a telephone interview. “And I can worry about my constituents, not who gave me the most money.”

But Scott Bullock, senior attorney for the Institute for Justice, says: “Forcing Arizona taxpayers to fund the speech of politicians is not only obnoxious but unconstitutional.”

Bullock and other opponents of the plan say it would funnel state money to fringe candidates while restricting campaign donations by all Arizonans. The plan already faces a challenge from the state Chamber of Commerce and a number of lobbyists in Arizona.

A court challenge promises to be difficult, as several federal and state courts have upheld large portions of so-called “clean-election” programs.

Last August, a federal judge upheld much of Vermont’s public elections law. U.S. District Court Judge William Sessions supported the state’s limits on individual campaign contributions, although he declared restrictions on campaign spending and out-of-state contributions to be unconstitutional.

Even the Supreme Court, in its landmark decision of Buckley v. Valeo that struck down many federal campaign limits, approved awarding public dollars to presidential candidates who agree to some stipulations on their campaigning.

The Institute of Justice first filed a lawsuit against the Clean Elections Act last year in federal court, partly contending that the Clean Elections Act was legally flawed because it had a misleading title when circulated for petition signatures to put it on the 1998 ballot.

But U.S. District Court Judge Thomas Zilly last month said tax laws prevent federal courts from ruling on state tax issues in most cases. The fees, Zilly said, amounted to a tax.

Although the Institute for Justice had to refile its case in state court, Zilly’s finding cheered the group’s attorneys.

“The state cannot tax speech, and it certainly cannot tax a person’s desire not to speak through coerced contributions to political candidates,” Bolick said.

Bozack concedes that part of the law probably won’t survive constitutional muster.

“I will tell you that we will lose on the lobbyist fees,” she said. “I don’t know why the writers put that into the law. But that’s only $100,000 annually.”

But she said the rest of the act is legally sound, noting the successful defenses of such laws in Vermont and Maine, the first two states with publicly funded election programs.

“And they told us to expect lawsuits, but to go ahead and go for the gusto,” she said.

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