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Governor Jan Brewer and the Hypocrites of Clean Elections

Last week, the U.S. Supreme Court blocked Arizona's Clean Elections Commission from distributing "matching funds" to candidates in the 2010 election — meaning that instead of getting up to $2.1 million dollars in public money for the primary campaign, Governor Jan Brewer and challenger Dean Martin will merely get $707,000.

And so last week, of course, Clean Elections supporters went nuts.

Public Campaign, a nonprofit agency that supports government funding for elections, claimed the decision would throw Arizona's election cycle "into chaos." State Clean Elections executive director Todd Lang called it "unfair." Governor Brewer was so freaked out that she sent lawyers to the Clean Elections Commission to beg for a reprieve.

"We are in the midst of an election cycle here, and the Supreme Court drastically changed the rules," Brewer's spokesman told ABC-15 News.

Don't believe it.

Don't believe any of it.

Now, it's true that matching funds have been a key component of Arizona's Clean Elections system for its decade of existence. The idea is simple: In addition to getting a lump sum of public funding for their campaigns, participating candidates get additional money to match the spending by their wealthy opponents.

This year, Governor Brewer faces a challenge from Prescott businessman Buz Mills. When Mills announced he'd be spending $2 million of his own money on the race, Brewer asserts, a windfall of matching funds for her campaign was all but certain.

The only problem? It wasn't. In fact, the writing has been on the wall for almost two years: Matching funds are likely unconstitutional.

In August 2008, U.S. District Court Judge Roslyn Silver first indicated in a ruling that matching funds likely violate the First Amendment.

And even though it took the next year and a half to get to last week's Supreme Court smackdown, there've been plenty of indications that this was coming. Even the lowliest candidates for state representative knew that matching funds were far from certain.

Last September, in fact, according to an affidavit from one candidate, during a training session hosted by Clean Elections voter education manager Michael Becker, Becker was asked about the probability of matching funds being supplied in the 2010 cycle.

"Don't count on it," Becker said.

Yet we're supposed to believe that Governor Brewer had no idea this was coming — and no contingency plan?

Don't forget, the Clean Elections system is optional. Candidates like Brewer have to live by its limits only if they accept its money. Only about half of Republican candidates have over the years. And although that number had been on the increase prior to Judge Silver's initial ruling, I've talked to plenty of candidates who decided not to participate this year after following the court proceedings (and hearing admonitions like Becker's): They knew there was a good chance matching funds wouldn't be around.

So pardon me for doubting that Brewer's team, which includes the sharpest political consultants in town, was utterly clueless.

Far more likely? They knew there was a good chance this would happen, but they simply decided to gamble on the fact that it wouldn't.

And, what the heck: If it did happen, well, they could use their clout to change the rules. Hence last Wednesday's meeting, where Brewer's lawyer, Lisa Hauser, explained how unfair the whole thing was.

But it's interesting to note that, for all her team's bitching and moaning, Brewer wasn't trying to get out of the Clean Elections system.

As Hauser confirms, Brewer has no interest in opting out. (There's no way she can raise $2 million on her own, and I suspect she knows it.)

Instead, she wants to change the rules for staying in. Brewer's plan was to convince Clean Elections that she should be able to have her cake and eat it, too: to keep her Clean Elections money and to raise money from private donors.

"Now that matching funds are not available, something should take its place," Hauser says firmly.

But for all Brewer's conviction, it was a pretty dicey proposition: Basically, the guv was criticizing the U.S. Supreme Court for supposedly changing the rules in the middle of the election cycle — even while pushing for a major rule change of her own.

The hypocrisy is staggering.

But if Arizona's decade-long experiment with public financing for elections has taught us anything, it's that principle has a way of vanishing when money is at stake.

Witness the bizarre behavior of Dean Martin, the state treasurer and yet another Republican running for governor. In 2004, when he was still a state representative, Martin was the lead plaintiff in an Institute for Justice lawsuit, alleging that the Clean Elections system was unconstitutional.

That suit was combined with a more targeted Goldwater Institute challenge in 2008 — the very litigation that led to the Supreme Court's June 8 decision to block matching funds.

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Sarah Fenske
Contact: Sarah Fenske