The Supreme Court on Tuesday morning blocked the state of Arizona from releasing further subsidy payments to candidates who are running for state offices this year with public financing. The order was issued without any noted dissent. The Court specified that the order would stay in effect until the Court acts on a coming appeal by challengers to the subsidy scheme. If review is granted, the order will stay in effect in the meantime, until a ruling emerges.
For state candidates running with subsidies, the ruling means that they will be eligible for only one third of the amount of public money that they had been eligible to receive. That situation is expected to continue through the primary election in August and the general election in November, since the Court is unlikely to finally resolve the test case before its next Term, starting Oct. 4. The general election is on Nov. 2 this year.
The Arizona candidate financing system had been struck down by a federal District judge in Arizona, but that ruling has been on hold during an appeal to the Ninth Circuit Court. The Ninth Circuit on May 21 upheld the system. But, in Tuesday’s order, the Supreme Court barred the Circuit Court from putting its ruling into effect (by staying the mandate), and ordered the Circuit Court to lift a February order that had blocked the District Court decision against the subsidies.
The District judge had ruled that the subsidies would put an unconstitutional burden on state candidates who are running with only private funds, because increasing fund-raisiing and campaign spending by the privately financed candidates to get out their message would trigger added subsidies for the publicly financed candidates.
The challengers to the system, including some privately funded candidates, took the issue to Justice Anthony M. Kennedy, Circuit Justice for the Ninth Circuit, after the Circuit Court’s may decision upholding the system. After some procedural missteps by the challengers, their latest plea to Kennedy was granted by the full Court after Kennedy shared it with his colleagues.
The order was issued in a standard format for such actions: delaying the Circuit Court ruling pending filing of a petition to review it, and disposition of that petition, with the order to dissolve automatically if review were denied, but stay in effect if review were granted. While the order contained no notations of dissent, that fact does not necessarily mean that no members of the Court were opposed to the action; if they were, they simple refrained from public mention.
(NOTE: Rick Hasen of Election Law blog has this report on the Court’s order. Rick’s post includes this link to a law review article last year by one of his students, Emily C. Schuman, discussing the constitutional questions that now surround so-called “Clean Elections” laws like Arizona’s. Ms Schuman’s article concludes that the Supreme Court’s 2008 decision in Davis v. Federal Election Commission, striking down the so-called “Millionaire’s Amendment” in federal campaign finance law, “undermines the legal foundation supporting the crucial trigger mechanism in Clean Money funding.” She discusses the District Court ruling against the Arizona law — the ruing that the Supreme Court on Tuesday agreed to allow to take effect.)
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