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Hear from a constitutional law expert on the recent ruling on the Clean Elections Law

Ted Simons: Good evening and welcome to "Horizon." I'm Ted Simons. The U.S. Supreme Court today struck down a key part of Arizona's Clean Elections law. That's the law that provides public funding to help candidates run for office. Here to talk about how the high court ruled is attorney Dan Barr, a constitutional expert from the Phoenix law firm of Perkins-Cooey. Thanks for joining us
Dan Barr: Thanks for having me.
Ted Simons: What did the court rule and why did they decide in that fashion?

Dan Barr: Well, the court ruled exactly what people thought it was going to rule from the oral arguments back in March. You had five justices led by the chief justice, holding that the matching funds provision of the Clean Elections law violated the first amendment. The court was looking at it from the perspective of a candidate who refuses or declines to participate in the Clean Elections Public money. And saying that those candidates are faced with sort of a Hobson's choice, you reach a point where if you spend any more money on your campaign, that triggers matching funds from the state and by raising money for yourself, you're actually raising money for your opponent.

Ted Simons: And matching funds means if you and I are both running and you're private and I'm public, and I get to X. And what you spend beyond X. So what you spend beyond X I get? And the court said that's an infringement on your free speech rights?

Dan Barr: Infringement of free speech rights because I have the choice of if I spend the money then you get more money from the state up to a certain level, and I shouldn't be put to that choice. If I want to spend my own money on the campaign, I should be able to do that without fear that the state of Arizona is going to give you money and then allow you to run ads or do whatever that will harm my campaign.

Ted Simons: Basically says you would have to limit your free speech in order to not benefit my campaign?

Dan Barr: Exactly.

Ted Simons: Ok.

Dan Barr: Exactly.

Ted Simons: Is that -- is that -- does that make sense?

Dan Barr: Well, to the defense it doesn't make sense, Justice Kagan writing for the defense says wait, we're not forbidding anyone from saying anything. All that's happening are we have more speech. If someone wants to spend more money, great, but the publicly funded candidate will get to respond, get more speech. Chief Justice Roberts says, no, the state of Arizona is putting its thumb on the scale and the person who wants to speak more and spend his own money shouldn't be faced with the prospect of having then to combat other candidates. It's not just one candidate. The Supreme Court gives the example of what happened in the fourth district of Arizona. The fourth legislative district. Where you had one candidate running as a privately funded candidate against two -- two publicly funded where you get -- I forgot the term. The Multiplier Effect. In the multiplier effect - If I'm going to spend one dollar of my own money, the state is going to give one dollar to each of my opponents, therefore, increasing the opposition to me.

Ted Simons: If I get this correctly, what Justice Kagan was saying, this wasn't necessarily an infringement on free speech, its subsidizing speech and that's not the same as first amendment right or a first amendment damage, correct?

Dan Barr: Exactly. She went through a bunch of cases in the past where subsidizing speech is not a violation. You're actually promoting free speech.

Ted Simons: Independent Expenditure Groups were mentioned by Justice Roberts. Talk to us why Chief Justice Roberts said this would be a problem on speech rights on their accounts.

Dan Barr: Because the Independent Expenditure Group wants to, say, support your candidacy but put to a choice. If they say, I'm going to run an ad in favor of Ted Simons, then that will trigger the matching funds for candidates A and B who are running against him. So I have a choice. I can do that or instead of running an ad in favor of Ted Simons, I am going to run an ad supporting some position he's in favor of or I have a choice not to speak at all. And Chief Justice Roberts said when you're put to that choice that violates the first amendment. The independent expenditure group shouldn't be put to the choice of running an ad for Ted or for a cause he supports or not speaking at all.

Ted Simons: And there are limitations as well if the independent expenditure group doesn't want to donate to my ideas, whatever the situation is, that's limited. The matching funds to my opponent, those aren't limited?

Dan Barr: Correct.

Ted Simons:-- in how they're used?

Dan Barr: And chief justice Roberts also says, you know, if you're the beneficiary of an independent expenditure group, you may not want their help.

Ted Simons: Uh-huh.

Dan Barr: Ok. You may disagree with their views or view what they're doing is not assisting your campaign. The problem is with the matching funds, the state of Arizona would then give the amount the independent expenditure group to your opponent who could then use it directly for his benefit. So that goes, according to Chief Justice Robert's view, the benefit of your opponent and not you.

Ted Simons: I noticed in the dissent, Justice Kagan says it's a good and legitimate way to deal with the cancerous effect of corruption on campaigns and like Chief Justice Roberts said, maybe but that's not what we're dealing with. We're dealing with an infringement on free speech rights.

Dan Barr: And he addressed the rationales. Burdening a candidate's ability to spend his or her own money doesn't impact on corruption. If I spend my own money on my campaign, I'm not being corrupted by that.

Ted Simons: Uh-huh.

Dan Barr: He also noted that public financing does nothing to prevent politicians from taking bribes. Interesting, somebody commented today that many of the politicians caught up in the Fiesta Bowl scandal are publicly financed candidates.

Ted Simons: Mm.

Dan Barr: So Chief Justice Roberts was saying that the state hasn't really proven the matching funds help in combating public corruption.

Ted Simons: And according to Justice Kagan, and you mentioned this before we got on the air, did she refer to the Goldilocks rule?

Dan Barr: The system that the state of Arizona set up, the Goldilocks solution. That's when faced with public financing, you don't want to give too much to the candidate which would burden the state. And would be wasted money and you don't want to give too little because you don't have candidates participate. So the Goldilocks solution is where you're giving the just right amount. And Chief Justice Roberts said, the Goldilocks solution, whatever it is, can't be dependent on someone exercising their free speech rights.

Ted Simons: Last question: Obviously, Clean Elections survives the matching funds has been ruled unconstitutional and yet, if you and I are running and I'm a publicly funded candidate I can only go to X. You can go to X plus one. I can't go to X plus one at all.

Dan Barr: Or X plus 100.

Ted Simons: Yeah.

Dan Barr: Or X plus 1,000. So that's the current state of the law. You're going to get a lump sum from Clean Elections and you're stuck with that.

Ted Simons: What do you think as far as setting precedent for other laws, similar efforts around the country? Is this a biggy in terms of that?

Dan Barr: There are seven other states that have matching fund provisions like Arizona's and clearly they're laws are probably infirm now. But the future of public financing, the state is free -- public financing is that the state is free to give -- there's no Goldilocks solution. Going to have to figure out if the sum is adequate enough at the beginning of the campaign to make the candidate competitive.

Ted Simons: Dan, thanks for joining us.

Dan Barr: Thanks for having me.

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