The Goldwater Institute scored a victory for free speech last week when the Arizona Attorney General abandoned a campaign finance regulation.
Responding to a cease and desist letter written by the Goldwater Institute on March 26, the Arizona
Attorney General said, "[i]n light of the Supreme Court's decision in Davis v. FEC ... our office does not intend to enforce the provisions of current A.R.S. § 16-905(f)."
The state law in question required self-financed candidates for public office who spent above a certain threshold to file reports that triggered an increase in contribution limits for their opponents.
The Attorney General's quick concession recognized the implications of the recent decision by the United States Supreme Court in Davis v. F.E.C. In Davis, the Supreme Court held that the goal of leveling electoral opportunities could not justify campaign finance regulations whereby "the vigorous exercise of the right to use personal funds to finance campaign speech produces fundraising advantages for opponents."
But the battle for free speech in elections is not over. Despite two preliminary court orders declaring the matching funds provisions of the Clean Elections Act unconstitutional under Davis, the Attorney General has not conceded in a pending federal lawsuit filed in 2008 by the Goldwater Institute.
The Arizona Clean Elections Act violates the First Amendment when it equalizes contributions raised by privately funded candidates by showering matching taxpayer dollars on candidates participating in the Clean Elections system. Davis ruled that such schemes restrict freedom of speech and cannot be justified by the goal of leveling the financial playing field between candidates.
The Goldwater Institute expects a final decision in that lawsuit within months.
Nick Dranias holds the Goldwater Institute Clarence J. and Katherine P. Duncan chair for constitutional government and is the director of the Institute's Dorothy D. and Joseph A. Moller Center for Constitutional Government.
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