by Nick Dranias
The U.S. Supreme Court has sent a strong signal that it will seriously consider intervening if the fate of matching funds in Arizona’s system of publicly funded campaigns is not determined quickly by the Ninth Circuit Court of Appeals.
In January, U.S. District Court judge Roslyn Silver ruled in favor of the Goldwater Institute and struck down the matching funds portion of Clean Elections, calling it “unconstitutional under the First Amendment.” However, a three-judge panel of the Ninth Circuit voted 2-1 to put Silver’s ruling on hold until it acts on the case.
In response, the Goldwater Institute Scharf-Norton Center for Constitutional Litigation filed an emergency motion with U.S. Supreme Court Justice Anthony M. Kennedy to lift the stay from the Ninth Circuit, arguing the Ninth Circuit “defied” the principles enforced in Citizens United v. FEC by keeping alive the threat of matching funds being handed out to state-funded candidates during Arizona’s 2010 election cycle. Justice Kennedy is the author of the majority opinion in Citizens United, which struck down laws that had prohibited groups of individuals–whether corporations, unions or informal associations–from freely spending their money to express their support or opposition for political candidates.
Last week, Justice Kennedy denied “without prejudice” the Goldwater Institute’s emergency motion after referring it to the full Court for consideration. The referral to the full Court was an unusual act, signaling the possibility that Justice Kennedy considered taking more sweeping action on the case. Instead, the Court decided to give the Ninth Circuit an opportunity to rule on the pending appeals, saying if the Ninth Circuit does not decide the matching funds issue by June 1, 2010, the emergency application can be filed again.
Because the state can start handing out matching funds to taxpayer-funded candidates on June 22, 2010, this shows the Supreme Court wants candidates and their supporters to have reasonable certainty about the rules that will apply to the 2010 statewide elections.
In fact, there is a good chance that the First Amendment will be vindicated before the primary election begins; oral arguments are scheduled before the Ninth Circuit on April 12, 2010.
Nick Dranias holds the Clarence J. and Katherine P. Duncan Chair for Constitutional Government and is Director of the Joseph and Dorothy Donnelly Moller Center for Constitutional Government at the Goldwater Institute.