Arizona Free Enterprise Club's Freedom Club PAC v. Bennett

PETITIONER: Arizona Free Enterprise Club's Freedom Club PAC, et al.
RESPONDENT: Ken Bennett, in His Official Capacity as Arizona Secretary of State, et al.
LOCATION: Arizona State Legislature

DOCKET NO.: 10-238
DECIDED BY: Roberts Court (2010-2016)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 564 US (2011)
GRANTED: Nov 29, 2010
ARGUED: Mar 28, 2011
DECIDED: Jun 27, 2011

Bradley S. Phillips - for the respondents
William M. Jay - Assistant to the Solicitor General, Department of Justice, for the United States as amicus curiae, supporting the respondents
William R. Maurer - for the petitioners

Facts of the case

Arizona enacted a campaign finance law that provides matching funds to candidates who accept public financing. The law, passed in 1998, gives an initial sum to candidates for state office who accept public financing and then provides additional matching funds based on the amounts spent by privately financed opponents and by independent groups. In 2008, some Republican candidates and a political action committee, the Arizona Free Enterprise Club, filed suit arguing that to avoid triggering matching funds for their opponents, they had to limit their spending and, in essence, their freedom of speech.

The U.S. District Court for District of Arizona found the matching-funds provision unconstitutional. But the U.S. Court of Appeals for the Ninth Circuit overturned the case, saying it found "minimal" impact on freedom of speech.


Does the First Amendment prohibit linking the funds participating candidates receive in an election to the amount of money raised by or spent on behalf of their opponents?

Media for Arizona Free Enterprise Club's Freedom Club PAC v. Bennett

Audio Transcription for Opinion Announcement - June 27, 2011 (Part 2) in Arizona Free Enterprise Club's Freedom Club PAC v. Bennett
Audio Transcription for Oral Argument - March 28, 2011 in Arizona Free Enterprise Club's Freedom Club PAC v. Bennett

Audio Transcription for Opinion Announcement - June 27, 2011 (Part 1) in Arizona Free Enterprise Club's Freedom Club PAC v. Bennett

John G. Roberts, Jr.:

I have the opinion of the Court in case 10-238, Arizona Free Enterprise versus Bennett and the consolidated case number 10-239, McComish versus Bennett.

The Arizona Citizens Clean Elections Act created a public financing system to fund the campaigns of candidates for state office.

Under that system, candidates who choose to take public financing are given a grant of state money to operate their campaigns.

If such a publicly financed candidate faces a privately financed candidate, someone who has declined state money and is instead spending his own or raising money through contributions, the publicly finance candidate can get more state money.

The State will give the publicly financed candidate roughly one additional dollar for each dollar above the grant amount that the privately financed candidate spends on election speech.

Matching funds are also given to the publicly financed candidate, again on a dollar for dollar basis in response to spending on election speech by independent groups when that speech supports the privately financed candidate, or opposes the publicly financed candidate.

The question in this case is whether this system is permissible under the First Amendment.

Now the answer to that question largely follows from a case we decided just three years ago, Davis versus the Federal Election Commission.

In Davis, we invalidated a provision of federal law that permitted the opponent of a candidate who spent over a certain amount of his money to collect -- we permitted the publicly financed candidate to collect triple the normal contribution amount.

While the candidate who spent the personal funds remains subject to the original contribution cap.

We held that this unconstitutionally forced the candidate and "to choose between the First Amendment right to engage in unfettered political speech on the one hand and subjection to discriminatory fundraising limitations on the other".

We ruled that this "unprecedented penalty" "imposed a substantial burden on the exercise of the First Amendment right to use personal funds for campaign speech."

So in Davis, if you spent more than the said amount of your own money, your opponent could raise higher amounts in contributions.

We held that that violated the First Amendment because it inhibited the free speech rights of the candidate whose speech triggered the benefit to his opponent.

Now the burdens imposed on candidate speech by the Arizona matching funds are much more severe than the burdens imposed by the law we struck down in Davis.

The penalty in Davis consisted of raising the contribution limits for one candidate, but that candidate still had to go out and raise the additional funds.

Here, the penalty for speaking is a direct and automatic payment of state money to your political opponent depending on the specifics of the election that issue, matching funds under the Arizona law can also create a multiplier effect.

Arizona elections often keep a privately financed candidate against multiple publicly financed candidates.

In such a case, every publicly funded candidate receives the matching funds.

In such a situation, the matching funds provision forces a privately funded candidate to fight a political hydra of sorts.

Each dollar he spends generates two opposing dollars in response or even more.

And unlike the law in Davis, all of these are to some extent out of the privately financed candidate's hands spending by independent groups triggers matching funds that go directly to the publicly funded candidate to use against the privately funded opponent even though that privately funded candidate had no control over the triggering funds in the first place.

That is a substantial advantage for the publicly funded candidate.

Matching funds impose similar burdens on the independent expenditure groups themselves.

The effect of a dollar spent on election speech by any such group is a direct payout to the publicly funded candidate the group opposes spending $1 can result in the flow of dollars to multiple candidates.

And in some ways, the burdens imposed on independent groups are more severe than the burdens imposed on the privately financed candidates themselves.

Independent groups of course cannot choose public financing.

As a result, those groups can only avoid triggering matching funds by changing their message or choosing not to speak at all.

Presenting independent expenditure groups with such a choice -- trigger matching funds, change your message, or do not speak is highly coercive in contrary to basic First Amendment values.

The candidates and independent groups that brought this suit contend that the purpose of the matching funds provision was to "level the playing field" to have all candidates in a political race the same financial resources.