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Justices Say Arizona Matching Funds Violate Political Free Speech

The Supreme Court has ruled in a close 5-4 decision that an Arizona election law is a burden on political speech and a violation of the First Amendment, overruling a Ninth Circuit Court decision that the state's matching funds law was not overly burdensome.

The decision could actually wind up taking some potential political advertising money out of the elections, since the law the court held invalid was one that matched the funds of privately financed candidates and independent expenditure groups who spent more than candidates taking public funding.

Arizona conceded that the goal of the law was to try to level the playing field between independently financed groups and candidates and those taking public funding, but the Supreme Court pointed out that it had already held in the Citizens United case that there is not a compelling interest in "'leveling the playing field' that can justify undue burdens on political speech."

The majority, in an opinion delivered by Chief Justice John Roberts, pointed out that creating a system in which an independent candidate could trigger new funding to his opponents could discourage political speech.

"That no candidate or group is forced to express a particular message does not mean that the matching funds provision does not burden their speech, especially since the direct result of that speech is a state-provided monetary subsidy to a political rival," Roberts wrote.

In their opinion, the majority also pointed out that independent expenditure groups could not get public funding for their political messages.

"Arizona's program gives money to a candidate in direct response to the campaign speech of an opposing candidate or an independent group," Roberts wrote. "It does this when the opposing candidate has chosen not to accept public financing, and has engaged in political speech above a level set by the State. This goes too far; Arizona's matching funds provision substantially burdens the speech of privately financed candidates and independent expenditure groups without serving a compelling state interest."

The majority said the decision was in line with its June 2008 decision striking down the so-called "millionaire's amendment" in federal campaign finance law. In that 5-4 decision, the court held that a federal candidate should not be allowed to start raising money beyond the cap on individual donor contributions when the opponent is rich enough to put more than $350,000 into his own campaign.

In the Davis decision, the court said that while the law "does not impose a cap on a candidate's expenditure of personal funds, it imposes an unprecedented penalty on any candidate who robustly exercises that First Amendment right, requiring him to choose between the right to engage in unfettered political speech and subjection to discriminatory fund-raising limitations."

The court said the same reasoning applied here, only that in the case of Arizona, the restriction was even more troublesome since in Davis, "the penalty consisted of raising the contribution limits for one candidate, who would still have to raise the additional funds. Here, the direct and automatic release of public money to a publicly financed candidate imposes a far heavier burden."

The Center for Campaign Politics praised the decision. "The Supreme Court got it right today -- it is not the state's business to favor some candidates by giving them additional money when they risk being criticized or outspent," said Allison Hayward, The Center's vice president of policy. "Keeping campaign and state separate is vital if our system of government is to flourish, and this ruling moves us closer to that ideal."

Sean Parnell, The Center's president, said the decision affects similar matching fund provisions in Connecticut, Maine, West Virginia and Wisconsin.