Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett


SEIU, Obama Administration, Public Citizen and Rep. Alan Grayson (Ret.) filed briefs opposing AZ Free Enterprise Club’s free speech position in case.

Phoenix, AZ – The U.S. Supreme Court on Monday March 28, 2011 will hold oral arguments in an important first amendment case that implicates public campaign financing schemes in jurisdictions across the country. Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett concerns the “matching funds” provision in Arizona’s “Clean Elections” law.

Arizona’s matching funds provision burdens the exercise of political speech that is at the core of what the first amendment to the Constitution protects,” said Steve Voeller, president of the Free Enterprise Club (“AZFEC”). “The matching funds provision has forced the Club’s PAC to reconsider its support of candidates because we know our participation will result in additional government funds for those candidates’ publicly-funded opponents. We look forward to making our case before the Supreme Court.


The Court has consolidated two Arizona cases for Monday’s 10 a.m. argument. The Obama Administration, SEIU, Public Citizen and Rep. Alan Grayson (Ret.) have all filed amicus briefs against the AZFEC’s free speech position.


The “Matching Funds” Provision

Arizona’s “Clean Elections” law permits government financing of political campaigns. Candidates are permitted to decline the public financing and raise money from willing donors and spend their own money on their campaigns. The law includes a “matching funds” provision that provides additional government funds to all opponents of a candidate, when that candidate, or independent groups supporting that candidate, spend more than a government-set threshold.


This punishes candidates and groups for robustly expressing their views because it provides government handouts to these speakers’ political opponents specifically in response to their amount of political speech. Thus it tries to do indirectly what it obviously could not do directly: punish speakers who speak in amounts or at times the government disapproves of.


Where the case and the law stand

The Circuit Courts of Appeals are split on whether the first amendment prohibits these “matching funds” provisions. Several Circuits, as well as many commentators, believed that the U.S. Supreme Court effectively banned such provisions in its Davis and Citizens United decisions discussed below. But the 9th Circuit ruled otherwise, overturning the Federal District Court in Arizona that had ruled the matching funds provision unconstitutional.


AZFEC et al. appealed to the Supreme Court, with oral arguments in the case to occur Monday.


The Supreme Court, in Davis v. Federal Election Commission (2008), struck down part of federal campaign finance law known as the “Millionaire’s Amendment.” Federal campaign finance law limits how much individuals can contribute to candidates, but the Millionaire’s Amendment tripled these limits when a candidate’s opponent spent more than $350,000 of their own money on their campaign. In striking down the provision, the Court noted that “it imposes an unprecedented penalty on any candidate who robustly exercises that First Amendment right.” The Court also strongly rejected the government’s argument that the restrictions on speech were justified by a compelling state interest: “The argument that a candidate’s speech may be restricted in order to ‘level electoral opportunities’ has ominous implications because it would permit Congress to arrogate the voters’ authority to evaluate the strengths of candidates competing for office.”


Then, in last year’s Citizens United v. Federal Election Commission (2010), the Court ruled that government may not infringe on corporate speech in the form of independent campaign expenditures.


Davis and Citizens United, then, obliterate Arizona’s effort to punish the speech of candidates and independent groups by funding these speakers’ opponents if the government decides the amount of speech has been excessive. Arizona’s “matching funds” provision violates the first amendment and must be struck down.


What it means for AZFEC

As the law currently stands, the AZFEC’s political speech is burdened because it knows that speaking in certain ways or amounts means the government will step in and further directly fund its opponents. (Note that in Davis, the law found unconstitutional merely permitted additional fundraising; in Arizona, the government actually hands preferred candidates additional funds.) The government cannot permissibly punish AZFEC for robustly exercising its free speech rights.



The AZFEC is a 501(c)(4) advocacy group not affiliated with any other organization.