Clean Elections Lawsuit Update: Governor Jan Brewer Objects to Matching Funds Injunction

We predicted nearly a year ago that -- thanks to a lawsuit from those principled conservatives over at the Goldwater Institute -- matching funds could be history for this year's state elections.

But either Governor Jan Brewer didn't read the story, or she doesn't buy our legal analysis. According to a declaration her legal team filed in the lawsuit, she's basing her whole strategy on the idea that matching funds will be available.

Seriously, not a good idea, Jan!

A little background for all you non-political-junkies out there. For nearly a decade, Arizona politicians have enjoyed a Clean Elections system that gives them the cash to run their campaigns, in exchange for meeting some basic requirements. And it's not just a set amount to cover the basics: if their opponents choose to run as "traditional" candidates and raise money from donors, "clean" candidates are given matching funds to level the playing field.

The matching funds are given, too, if a special-interest group spends money to oppose a "clean" candidate. They get money to level that playing field, as well.

The Goldwater Institute filed suit in federal court in summer, 2008, arguing that -- thanks to a new decision from the U.S. Supreme Court -- matching funds were unconstitutional. After all, if the Clean Elections Commission gives a politician $1 for every $1 that I spend fighting their candidacy, the Commission is chilling my free speech in a big way. My dollar simply isn't worth a dollar if it generates a matching dollar for my opponent.

U.S. District Court Judge Roslyn Silver issued an opinion suggesting that she agreed: matching funds may well be unconstitutional.

But that was more than a year ago. Everything has been on hold since, waiting for Silver's final decision.

And -- whether or not they realize it -- that means a bunch of candidates are in limbo.

The Goldwater Institute is trying to speed things up a bit. They've filed for summary judgment. They've also filed a request for a preliminary injunction -- asking Judge Silver to disallow matching funds for the 2010 political cycle.

Judge Silver responded by setting oral arguments on the summary judgment issue for this Friday. That will be a huge, important hearing. It may also make Goldwater's request for an injunction moot -- if Judge Silver tosses out the whole case, or tosses out matching funds, the problem will be solved one way or another, at least 'til the appellate court digs into it.

Like we said, huge consequences here...

But meantime, it's an interesting note that so far only one politician has risen to oppose Goldwater's request for an injunction. Governor Jan Brewer says, despite being aware of the lawsuit, she decided to run clean. She's already poured lots of time and money into meeting its requirements.

And if matching funds are struck down, or even enjoined... well, she's in a pickle.

"Matching funds are an integral component of the existing program," Brewer's campaign co-chairs, Grant Woods and Mary Peters, state in an affidavit. "At the time the Committee opted into the Clean Elections program, it reasonably relied on the scope of the Clean Elections program remaining intact, at least through the completion of the 2010 cycle ... The Committee will be irreparably harmed if the scope of the program is changed at this late date."

On one hand, we don't blame her. If matching funds are struck down, "clean" candidates will be left with a huge bullseye on their backs.

Say, for example, someone like Russell Pearce challenges Brewer as a traditional candidate -- so long as he had wealthy donors, he could spend millions attacking her record, and there would be nothing Brewer could due to get more cash to fight back. Special interest groups, too, could have a field day trashing her.

On the other, though... Jan, we told everybody this could well happen a full year ago. You should have read your New Times more carefully!

Interestingly, some guy we've never heard of named Buz Mills has already indicated that he has $2 million on hand for a traditional campaign. That surely had "clean" candidates like Brewer and Paradise Valley Mayor Vernon Parker salivating: It meant they'd get at least $2 million to throw around just for the primary.

But guys, seriously, don't go counting your money yet. Judge Silver has suggested serious concerns with matching funds, and the lawyers at the Goldwater Institute don't mess around. You'd be foolish to count on anything at this point.

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