Wednesday, June 9, 2010

Supreme Court Reinstates Injunction Against Arizona Campaign Finance Law

The Supreme Court on Tuesday issued an order reinstating the trial court's injunction against Arizona's campaign finance law and staying the Ninth Circuit's mandate overturning that injunction.  Tuesday's order means that Arizona's law will not apply until the Supreme Court grants cert. (as is now likely) and rules on the case--almost certainly sometime after the mid-term elections in November.  We posted on the Ninth Circuit case, McComish v. Bennett, here.

The Arizona law, a voter initiative enacted in the wake of a rash of political scandals in the state, allows any candidate to participate in the state's public campaign finance scheme and receive a state grant for campaign expenditures.  Participating candidates relinquish their right to raise and spend private donations.  But when a participating candidate faces a non-participating candidate who spends more than a threshold amount under the law, the participating candidate qualifies for additional state matching funds. 

The law moves to equalize--or at least control inequalities in--campaign expenditures between participating candidates and non-participating candidates.

The trial court ruled that the law violated the First Amendment and issued an injunction, but the Ninth Circuit overruled in the third significant circuit court decision applying Citizens United v. FEC.  The Supreme Court's order today seems to suggest Supreme Court review next term, but probably not in time for November's elections.  In the meantime, Arizona may not grant matching funds to candidates who participate in the program and who are outspent by the threshold amount by non-participating candidates. 

The case will give the Court a chance to rule on several issues, including the treatment of expenditures (which were the subject of Citizens United) versus contributions (to which the D.C. Circuit already extended Citizens United), the appropriate level of scrutiny for public campaign finance laws like Arizona's (the Ninth Circuit applied intermediate scrutiny), acceptable state interests (the Ninth Circuit ruled Arizona's interests in preventing corruption and the appearance of corruption and encouraging participating in the public funding scheme sufficient), and whether Arizona's law is appropriately tailored to meet these interests.


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