The U.S. Supreme Court blocked the state on Tuesday from distributing matching funds to candidates, sharply changing the rules of the game in the middle of this year’s election campaign.
Without comment, the justice accepted arguments by opponents of the funding scheme that it would be unfair to allow extra funds to be distributed while the legality of the system is unclear.
Tuesday’s decision is not the last word, as the justices said they want to hear arguments by foes of why the 9th Circuit was wrong when it upheld the constitutionality of the plan.
But Todd Lang, director of the Citizens Clean Elections Commission said the ruling effectively kills matching funds, at least for the August primary. And Lang, whose agency administers the public funding system and defended the matching funds, said he doubts the high court will have a decision before the November general election.
Clint Bolick of the Goldwater Institute which challenged the law said the justices must have found merit in arguments that the matching funds system violates the First Amendment rights of privately financed candidates. He said they’re effectively forced to limit their campaigns because they know every dollar they spend above a certain amount means an extra dollar for their publicly financed opponents.
“The Supreme Court has spoken in a way that preserves important First Amendment rights, which is to speak in a campaign context without having the government put its heavy thumb on the scale,” he said.
But Lang said the order turns the First Amendment on its head, letting candidates with resources deny their foes the resources to respond.
“The First Amendment’s always protected freedom of speech as a shield,” he said. “But now it’s being used as a sword to stifle more debate.”
The decision immediately changes the political landscape in dozens of races, starting with the campaign for governor among Republicans.
Candidates who choose to run with public funds get a set amount, a figure that for the governor’s race this year is $707,440 for the primary.
But Buz Mills, campaigning with his own cash, already has spent close to $2.3 million. And the law — at least as it existed until Tuesday — entitled Jan Brewer and Dean Martin, running with public funds, to get a dollar-for-dollar match, up to three times the original allocation.
Now they will have to live with that $707,440 base amount.
Brewer, in a prepared statement, called Tuesday’s Supreme Court action “terribly troubling.” She even held out hope the justices will have a change of heart.
But Goldwater Institute lawyer Nick Dranias said there’s no way that can happen, at least not in time for this year’s campaign.
Brewer campaign spokesman Doug Cole sought to minimize the decision.
“From a practical standpoint, we have $707,000 for the campaign, just as we had yesterday,” he said, as the state was not scheduled to give out matching dollars until June 22.
He refused to say how having the smaller amount would affect the kind of campaign the governor will be able to run. But Cole gave a hint of one tactic, saying Mills “is trying to purchase the governor’s office.”
Mills called that “ridiculous.”
He said his foes have the benefit of years in public office.
“I’ve got to catch up,” he said. “It costs a couple of buck to get there.”
Martin, for his part, said the order means he will have to “adjust” his campaign plans.
“It’s going to be a little less TV, a little more grass-roots oriented,” he said.
Martin also said all of Mills’ spending hasn’t given the Northern Arizona businessman an edge: The last Rasmussen Reports showed the pair neck and neck, though Brewer was far out front.
Technically speaking, Martin could still back out of public financing since, unlike Brewer, he has not yet submitted his required number of $5 donations to prove he has public backing. But that would require setting up an entire fundraising staff. And time is against doing that, with early voting for the primary starting July 29.
Tuesday’s ruling affects other campaigns down the line.
For example, Republican Tom Horne is raising private funds for his bid to become attorney general. But primary foe Andrew Thomas is not. And Tuesday’s decision limits him to spending just $183,311 in the race.
Jason Rose, who is running Thomas’ campaign, said he was not concerned. “We have had a plan all along to win, with or without Clean Elections,” he said.
But pollster Earl de Berge of the Behavior Research Center said the order limits the ability of Thomas — or anyone else running for statewide office short of governor — to run a successful campaign.
In the primary bid for attorney general, de Berge noted, publicly funded candidates will be limited to just $183,311.
“Money is the grease of politics these days,” de Berge said. “I know it’s not everything, but it’s a lot.”
And $183,311, he said, isn’t much for a statewide campaign.
“You’re not in the game at that level,” de Berge said. “It just takes so much money to get people aware of particularly second-level races.”
Horne clearly agrees.
“Today’s a better day than yesterday,” he said of the ruling.
The Democratic primary for attorney general features three relative unknowns. But David Lujan and Vince Rabago will be limited to that $183,311; Felecia Rotellini who is taking private cash will not.
Some statewide races will remain unaffected, at least for now.
For example, Sam Wercinski and Chris Deschene, Democrats running for secretary of state, both are using private dollars. Nothing in Tuesday’s ruling affects how much they can raise or spend against each other.
But Republican incumbent Ken Bennett, who will face off against the survivor of that primary, has chosen to accept public dollars. That means he will have to run his general election race with just $274,967, no matter how much the winner of the Democratic race spends.
The order also will affect dozens of legislative races.
Dranias said whatever the high court rules will have national implications. He said several other states have or are contemplating similar matching fund provisions to the campaign finance laws.
The decision has no immediate implications for Democratic gubernatorial hopeful Terry Goddard, who has no primary foe. That would change, though, if Mills is the GOP nominee, as Goddard would be held to $1,061,171 for the general election no matter how much Mills spends.
Tuesday’s ruling came too late to save the gubernatorial candidacy of John Munger. Running with private dollars, he pulled out of the race last week after the Supreme Court initially refused to block matching dollars, saying he couldn’t afford to face off against not just Mills but also Martin and Brewer each with $2.1 million.
“I wish they’d said this a week ago,” Munger said of the high court.