The Dirty Truth about "Clean" Elections

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But no matter what happens in the statehouse, there's a good chance we won't see shenanigans quite so obvious as Sam George's Solar Team in future election cycles. That's thanks to what's happening in the courthouse.

Last June, the U.S. Supreme Court handed down a decision on Davis v. FEC. That decision struck down the federal "Millionaire's Amendment," which allowed candidates facing wealthy, self-funded opponent to enjoy higher-than-normal contribution limits.

The Davis decision is complicated, but here's the gist. Campaign-finance law had long held that if candidates were facing an opponent who put millions of personal wealth into his own campaign, they'd be allowed to raise more money from individual donors to level the playing field.

The court found that provision unconstitutional. Spending on political campaigns is a form of free speech, it held, so the Millionaire's Amendment was unfair to, well, millionaires. Just because a candidate is rich shouldn't mean that fundraising rules change for his opponent. That's an illegal "drag" on the millionaire's free speech rights.

The court made one exception: programs in which the state could justify a compelling interest in stopping corruption.

Reading the court's decision, Nick Dran­ias, a lawyer at the Goldwater Institute who specializes in First Amendment work, quickly realized that Arizona had a problem.

If raising contribution limits to even the playing field with wealthy candidates is unconstitutional, surely so is a state system that guarantees public funding for that purpose. After all, if a candidate like Sam George spends $500,000 of his own money, Clean Elections matches that for his opponent.

Isn't that a drag on George's free speech?

And really, didn't the George case show compellingly that matching funds didn't so much stop corruption as increase it?

The Goldwater Institute filed suit in federal court in late summer. And though U.S. District Court Judge Roslyn Silver refused to issue a restraining order halting matching funds for last fall's election, she did issue a ruling suggesting that there's a substantial likelihood Goldwater will win on the merits. The matching funds, she agreed, are unconstitutional.

Lang, the Clean Elections Commission's executive director, is confident that Clean Elections can win at trial. "The whole point of the First Amendment is to ensure a robust political debate," he says. "That's what matching funds do."

But observers — some of them strong supporters of the system — are less confident. They feel Judge Silver used pretty strong language in her initial ruling and will be unlikely to change course now.

Without a matching funds provision, they say, Clean Elections is doomed.

"You won't see any incumbents using Clean Elections, that's for sure," said one prominent Democratic campaign consultant. "It would be like putting a bull's-eye on your back." After all, by accepting Clean Elections money, candidates agree to strict spending limits — making them vulnerable to attack without matching funds.

One proposal being discussed would double the amount of funding for Clean Elections candidates. Instead of needing a trigger to get more money, everybody would get more money right off the bat. But some insiders say that won't work — it doesn't matter what the limit is so much as that there is one, they say.

Clean Elections, they worry, may be dead in Arizona.

Ironically, public financing for political campaigns is taking off in other parts of the country. Thanks in part to the Arizona experiment, Connecticut voters recently approved a similar plan. Activists say a bill is about to be introduced in Congress to allow our national representatives the same financing options. They're beginning to trot out the same chestnuts as progressives promised in Arizona in 1998: cleaner politics, and a diminished role for lobbyists.

But anyone examining how this grand experiment played out in Arizona need only note one salient fact.

In 2007, the Clean Elections Commission quietly hired a new representative to push its interests at the Legislature. That man is Mike Williams, a lobbyist extraordinaire who's been haunting the halls of the Arizona Legislature for more than 15 years. His clients range from Taser to Redflex to United Healthcare.

And that means the very commission that was supposed to reduce the role of powerful lobbyists has now hired a powerful lobbyist of its own — to lobby the very lawmakers dependent on the commission for financing.

They call this reform?

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Sarah Fenske
Contact: Sarah Fenske