Clean Elections: Bloodied but Unbowed

The sky hasn’t fallen quite yet, but it is in poor repair.

It’s tortured metaphor day. I just declared it.

You all have, no doubt, read the articles claiming that the US Supreme Court “struck down” Arizona’s Clean Elections system. They invalidated an important part of it, but the law still stays in place.

Supporters here in Arizona are quick to point out that the foundations of the system are still intact and that the court, even though they had an opportunity to, did not ditch the entire system. A candidate can still participate in Clean Elections. Under that system, if a participating candidate can collect a certain number of $5 qualifying contributions from their district, the state will write the candidate a check to run his or her campaign. The agreement is that the candidate will solicit no further contributions for their campaign.

What the Supreme Court invalidated was the matching funds provision of the law. Let’s say in your legislative race you get a check for $18,000. If your traditionally funded opponent raises and spends $20,000, it triggers matching funds from the state. Your campaign gets a check for $2,000. Privately funded candidates are thus unable to monopolize the airwaves and mailboxes by outspending their opponents.

The argument from their side is that this violates the First Amendment by forcing a privately funded candidate to provide room for their opponent’s speech, since extra speech (from going over the limits) makes more speech from the other side possible. Yep, it made my head spin writing that too. More speech from your opponent apparently violates your own free speech rights.

It sounds suspiciously like, I don’t know, if we let those two men marry it somehow makes someone else’s marriage not as nice.

The provision kept legislative races relatively cheap and kept corporate money out, since it became pointless to try to outspend an opponent with corporate PAC checks. More than pointless, it was impossible given how many candidates ran “clean” and couldn’t take corporate money.

I have friends on the Republican side who argue that ditching Clean Elections will go a long way to making the legislature less in the thrall of the wing-nut faction in the Republican Party. Their argument is that groups like the Chamber of Commerce served as a check on the wilder instincts of their party’s members, a check that is gone since so many of the most conservative members were elected through, guess what, Clean Elections. I look at how rarely the Chamber and like minded groups have been willing to weigh in on some of the nuttier and damaging legislation up on West Washington over the last couple of years and it leads me not to buy the argument.

Elena Kagan deserves high praise for her dissent. She recognized why a state like Arizona needed the Clean Elections system. It was passed as an initiative by voters who still had the memories of AzScam fresh in their minds. Our recent Fiesta Bowl scandal, the full depth of which is still being plumbed, reminds us why we have restrictions on campaign donations. One conservative scholar interviewed on NPR yesterday said that bribery is still possible. Yes, but under a public financing system, it isn’t possible to call that bribe a campaign donation.

Clean Elections supporters have already been at work on reforms to the system. The main one being pushed for by groups like the Arizona Advocacy Network would replace the “qualifying contributions” system with a matching funds system. The goal would still be to keep the eligible contributions low, and more importantly, from a candidate’s own district. The system would resemble that used in the City of Tucson since the late 1980’s. Given the history there, such a system would be more likely to survive a legal challenge. It would have to go to the ballot, and would probably be listed along side a planned Clean Elections repeal referendum.