Opponents of Arizona’s Clean Elections system won a big round in court last week when federal Judge Roslyn Silver said that the campaign-finance program’s matching-funds provision could be unconstitutional.
In a case brought by the Goldwater Institute on behalf of various GOP candidates, Silver didn’t rule against the Clean Elections system itself, which provides qualifying candidates for state office with campaign dollars.
But Silver said the Goldwater Institute folks have a point when they say that giving some candidates more money if their privately funded opponents break certain spending limits could violate the First Amendment.
For example, most candidates for the Arizona Legislature get $12,921 if they can collect 220 $5 contributions for residents of their district. But if a traditionally funded candidate spends more money than that, then Clean Election gives participating candidates a dollar-for-dollar match. The match tops out at three times the original Clean Elections funding for the campaign.
That leads to some privately funded candidates getting hosed. We’ve reported in recent week on the twists in the four-way GOP primary in Legislative District 30, which pitted two Clean Elections candidates, Sharon Collins and David Gowan, against two candidates who were raising money from private contributors—Doug Sposito and Frank Antenori.
By raising a respectable amount of money and lending his campaign $12,000, Sposito was able to spend $42,281, as of his most recent report.
That meant his publicly funded opponents, Gowan and Collins, got a bundle in matching funds from the state.
Plus, Collins and Gowan benefited from a variety of independent committees that were spending money on Sposito’s behalf. The Arizona Association of Realtors and the Arizona Cattlemen’s Association spent a combined $14,239, so Gowan and Collins got checks for that amount.
On top of that, Gowan got about $5,000 to match spending by a new independent committee, the Southern Arizona Government Action Committee, that was funded by a weird mix of homebuilders and payday lenders. The shadowy committee made phone calls on behalf of Sposito and Collins.
Antenori, who reported raising about $15,000 in his most recent report, was left out in the big cash giveaway. That means his opponents have had a lot more money to get introduce themselves to voters.
“My supporters now have had their voice reduced by the amount of money funneled to my opponents,” Antenori says. “That’s not fair.”
As it worked out, Antenori appears to have won the Legislative District 30 race. (He leads Sposito by just 224 votes and we’re still trying to find out how many provisional and early ballots remain to be counted in Pima County.) But both Antenori and Sposito, who sparred on the campaign trail over the sources of private funding, are among the plaintiffs in the suit against the matching funds provision in Clean Elections.
Antenori, who says he didn’t use Clean Elections as a matter of principle, says the lawsuit only targets the matching funds provision.
“If you want to run on government funding and you want to be a welfare candidate, that’s fine, but that’s all you’re getting, regardless of what your opponents raise,” Antenori says.
The matching funds program has been a big source of mischief this election season. In one noteworthy example that was reported in the Phoenix New Times, Sam George, a Democrat running for the Arizona Corporation, gamed the system by spending his own money in the Democratic primary. That meant his fellow Democrats got matching funds that they could all use to boost their name ID—an advantage because three of the four Democrats running for ACC seats will continue to the general election.
Silver ruled that Clean Elections would continue to provide matching funds through the primary, but left the door open to halting the additional funds for the upcoming general.
If her ruling stands, it poses some serious questions for the future of Clean Elections.
It would be bad enough to be limited to spending just $20,000 as a legislative candidate while a well-financed opponent spends $50,000 or even $100K. But a candidate could still be competitive with that kind of money in a small legislative district.
Most statewide candidates, however, don’t even start out with enough money to reach all of the voters in Arizona. This year, candidates for the Arizona Corporation Commission got an initial check for only $82,680 for their primaries. (Those who go on to the general election get an additional $124,020.) That’s barely enough for a statewide mailer.
There’s more money for higher offices, particularly for gubernatorial candidates. And the matching funds provision has proved a powerful disincentive for statewide candidates to go the traditional route of raising money from private donors; after all, anything that they raise ends up getting matched for their opponent.
But if you knew that a gubernatorial candidate wasn’t going to have more than $800K or so, you might be tempted to raise $1.5 million for the race.
Whether Silver’s ruling kills Clean Elections remains to be seen. But if it stands, the program will certainly be wounded by it.