Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett (2011)

564 U.S. _____ (2011)
Oral arguments are available at:

Vote: 5 (Alito, Kennedy, Roberts, Scalia, Thomas)
4 (Breyer, Ginsburg, Kagan, Sotomayor)

Opinion of the Court: Roberts
Dissenting opinion: Kagan


The Arizona Citizens Clean Elections Act of 1998 created a public financing system to fund the primary and general election campaigns of candidates for state office. Candidates who opt to participate, and who accept certain campaign restrictions and obligations, are granted an initial outlay of public funds to conduct their campaign. They are also granted additional matching funds if a privately financed candidate’s expenditures, combined with the expenditures of independent groups made in support of the privately financed candidate or in opposition to a publicly financed candidate, exceed the publicly financed candidate’s initial state allotment. Once matching funds are triggered, a publicly financed candidate receives from state funds approximately 94 cents for every dollar raised or spent by the privately financed candidate. This includes any money of his own that a privately financed candidate spends on his campaign and every dollar spent by independent groups that support the privately financed candidate. When there are multiple publicly financed candidates in a race, each one receives matching funds as a result of the spending of privately financed candidates and independent expenditure groups. Matching funds top out at two times the initial grant to the publicly financed candidate.

Under Arizona law, a privately financed candidate may raise and spend unlimited funds, subject to state-imposed contribution limits and disclosure requirements. Contributions to candidates for statewide office are limited to $840 per contributor per election cycle and contributions to legislative candidates are limited to $410 per contributor per election cycle.

Two independent expenditure groups that spend money to support and oppose candidates for office and five past and future Arizona candidates sued Arizona Secretary of State Ken Bennett and other state officials, challenging the constitutionality of the matching funds provision. They argued that the law penalizes their speech and burdens their ability to exercise fully their First Amendment rights. The District Court entered a permanent injunction against the enforcement of the matching funds provision. The Ninth Circuit reversed, concluding that the provision imposed only a minimal burden and that the burden was justified by Arizona’s interest in reducing quid pro quo political corruption.



We hold that Arizona’s matching funds scheme substantially burdens protected political speech without serving a compelling state interest and therefore violates the First Amendment.

“Discussion of public issues and debate on the qualifications of candidates are integral to the operation” of our system of government. Buckley v. Valeo (1976). As a result, the First Amendment “‘has its fullest and most urgent application’ to speech uttered during a campaign for political office.” Eu v. San Francisco County Democratic Central Comm. (1989). “Laws that burden political speech are” accordingly “subject to strict scrutiny, which requires the Government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest.” Citizens United v. Federal Election Comm’n (2010); Federal Election Comm’n v. Massachusetts Citizens for Life, Inc. (1986).

Applying these principles, we have invalidated government-imposed restrictions on campaign expenditures, Buckley, restraints on independent expenditures applied to express advocacy groups, Massachusetts Citizens for Life, limits on uncoordinated political party expenditures, Colorado Republican Federal Campaign Comm. v. Federal Election Comm’n(1996), and regulations barring unions, nonprofit and other associations, and corporations from making independent expenditures for electioneering communication, Citizens United.

At the same time, we have subjected strictures on campaign-related speech that we have found less onerous to a lower level of scrutiny and upheld those restrictions. For example, after finding that the restriction at issue was “closely drawn” to serve a “sufficiently important interest,” see, e.g., McConnell v. Federal Election Comm’n (2003), Nixon v. Shrink Missouri Government PAC (2000), we have upheld government-imposed limits on contributions to candidates, Buckley, caps on coordinated party expenditures, Federal Election Comm’n v. Colorado Republican Federal Campaign Comm., and requirements that political funding sources disclose their identities, Citizens United.

Although the speech of the candidates and independent expenditure groups that brought this suit is not directly capped by Arizona’s matching funds provision, those parties contend that their political speech is substantially burdened by the state law in the same way that speech was burdened by the law we recently found invalid in Davis v. Federal Election Comm’n(2008). In Davis, we considered a First Amendment challenge to the so-called “Millionaire’s Amendment” of the Bipartisan Campaign Reform Act of 2002. Under that Amendment, if a candidate for the United States House of Representatives spent more than $350,000 of his personal funds, “a new, asymmetrical regulatory scheme [came] into play.” The opponent of the candidate who exceeded that limit was permitted to collect individual contributions up to $6,900 per contributor—three times the normal contribution limit of $2,300. The candidate who spent more than the personal funds limit remained subject to the original contribution cap. Davis argued that this scheme “burden[ed] his exercise of his First Amendment right to make unlimited expenditures of his personal funds because” doing so had “the effect of enabling his opponent to raise more money and to use that money to finance speech that counteract[ed] and thus diminishe[d] the effectiveness of Davis’ own speech.”

In addressing the constitutionality of the Millionaire’s Amendment, we acknowledged that the provision did not impose an outright cap on a candidate’s personal expenditures. We nonetheless concluded that the Amendment was unconstitutional because it forced a candidate “to choose between the First Amendment right to engage in unfettered political speech and subjection to discriminatory fundraising limitations.” Any candidate who chose to spend more than $350,000 of his own money was forced to “shoulder a special and potentially significant burden” because that choice gave fundraising advantages to the candidate’s adversary. We determined that this constituted an “unprecedented penalty” and “impose[d] a substantial burden on the exercise of the First Amendment right to use personal funds for campaign speech,” and concluded that the Government had failed to advance any compelling interest that would justify such a burden.

The logic of Davis largely controls our approach to this case. Much like the burden placed on speech in Davis, the matching funds provision “imposes an unprecedented penalty on any candidate who robustly exercises [his] First Amendment right[s].” Under that provision, “the vigorous exercise of the right to use personal funds to finance campaign speech” leads to “advantages for opponents in the competitive context of electoral politics.”

Once a privately financed candidate has raised or spent more than the State’s initial grant to a publicly financed candidate, each personal dollar spent by the privately financed candidate results in an award of almost one additional dollar to his opponent. That plainly forces the privately financed candidate to “shoulder a special and potentially significant burden” when choosing to exercise his First Amendment right to spend funds on behalf of his candidacy. If the law at issue in Davisimposed a burden on candidate speech, the Arizona law unquestionably does so as well.

The penalty imposed by Arizona’s matching funds provision is different in some respects from the penalty imposed by the law we struck down in Davis. But those differences make the Arizona law more constitutionally problematic, not less. First, the penalty in Davis consisted of raising the contribution limits for one of the candidates. The candidate who benefited from the increased limits still had to go out and raise the funds. He may or may not have been able to do so. The other candidate, therefore, faced merely the possibility that his opponent would be able to raise additional funds, through contribution limits that remained subject to a cap. And still the Court held that this was an “unprecedented penalty,” a “special and potentially significant burden” that had to be justified by a compelling state interest—a rigorous First Amendment hurdle. Here the benefit to the publicly financed candidate is the direct and automatic release of public money. That is a far heavier burden than in Davis.

Second, depending on the specifics of the election at issue, the matching funds provision can create a multiplier effect. . . . [I]f the spending cap [is] exceeded, each dollar spent by the privately funded candidate … result[s] in an additional dollar of campaign funding to each of that candidate’s publicly financed opponents. In such a situation, the matching funds provision forces privately funded candidates to fight a political hydra of sorts. . . . Again, a markedly more significant burden than in Davis.

Third, unlike the law at issue in Davis, all of this is to some extent out of the privately financed candidate’s hands. Even if that candidate opted to spend less than the initial public financing cap, any spending by independent expenditure groups to promote the privately financed candidate’s election—regardless whether such support was welcome or helpful—could trigger matching funds. What is more, that state money would go directly to the publicly funded candidate to use as he saw fit. That disparity in control—giving money directly to a publicly financed candidate, in response to independent expenditures that cannot be coordinated with the privately funded candidate—is a substantial advantage for the publicly funded candidate. That candidate can allocate the money according to his own campaign strategy, which the privately financed candidate could not do with the independent group expenditures that triggered the matching funds….

The burdens that this regime places on independent expenditure groups are akin to those imposed on the privately financed candidates themselves. Just as with the candidate the independent group supports, the more money spent on that candidate’s behalf or in opposition to a publicly funded candidate, the more money the publicly funded candidate receives from the State. And just as with the privately financed candidate, the effect of a dollar spent on election speech is a guaranteed financial payout to the publicly funded candidate the group opposes. Moreover, spending one dollar can result in the flow of dollars to multiple candidates the group disapproves of, dollars directly controlled by the publicly funded candidate or candidates.

In some ways, the burden the Arizona law imposes on independent expenditure groups is worse than the burden it imposes on privately financed candidates, and thus substantially worse than the burden we found constitutionally impermissible inDavis. If a candidate contemplating an electoral run in Arizona surveys the campaign landscape and decides that the burdens imposed by the matching funds regime make a privately funded campaign unattractive, he at least has the option of taking public financing. Independent expenditure groups, of course, do not.

Once the spending cap is reached, an independent expenditure group that wants to support a particular candidate—because of that candidate’s stand on an issue of concern to the group—can only avoid triggering matching funds in one of two ways. The group can either opt to change its message from one addressing the merits of the candidates to one addressing the merits of an issue, or refrain from speaking altogether. Presenting independent expenditure groups with such a choice makes the matching funds provision particularly burdensome to those groups. And forcing that choice—trigger matching funds, change your message, or do not speak—certainly contravenes “the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message.” Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. (1995).

Arizona, the Clean Elections Institute, and the United States offer several arguments attempting to explain away the existence or significance of any burden imposed by matching funds. None is persuasive. . . .

The State argues that the matching funds provision actually results in more speech by “increas[ing] debate about issues of public concern” in Arizona elections and “promot[ing] the free and open debate that the First Amendment was intended to foster.” In the State’s view, this promotion of First Amendment ideals offsets any burden the law might impose on some speakers.

Not so. Any increase in speech resulting from the Arizona law is of one kind and one kind only—that of publicly financed candidates. The burden imposed on privately financed candidates and independent expenditure groups reduces their speech; “restriction[s] on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression.” Buckley. Thus, even if the matching funds provision did result in more speech by publicly financed candidates and more speech in general, it would do so at the expense of impermissibly burdening (and thus reducing) the speech of privately financed candidates and independent expenditure groups. This sort of “beggar thy neighbor” approach to free speech—“restrict[ing] the speech of some elements of our society in order to enhance the relative voice of others”—is “wholly foreign to the First Amendment.”

We have rejected government efforts to increase the speech of some at the expense of others outside the campaign finance context. In Miami Herald Publishing Co. v. Tornillo (1974), we held unconstitutional a Florida law that required any newspaper assailing a political candidate’s character to allow that candidate to print a reply. We have explained that while the statute in that case “purported to advance free discussion, … its effect was to deter newspapers from speaking out in the first instance” because it “penalized the newspaper’s own expression.” Such a penalty, we concluded, could not survive First Amendment scrutiny. The Arizona law imposes a similar penalty: The State grants funds to publicly financed candidates as a direct result of the speech of privately financed candidates and independent expenditure groups. The argument that this sort of burden promotes free and robust discussion is no more persuasive here than it was in Tornillo.

Arizona asserts that no “candidate or independent expenditure group is ‘obliged personally to express a message he disagrees with’” or “‘required by the government to subsidize a message he disagrees with.’” True enough. But that does not mean that the matching funds provision does not burden speech. The direct result of the speech of privately financed candidates and independent expenditure groups is a state-provided monetary subsidy to a political rival. That cash subsidy, conferred in response to political speech, penalizes speech to a greater extent and more directly than the Millionaire’s Amendment in Davis. The fact that this may result in more speech by the other candidates is no more adequate a justification here than it was in Davis. . . .

The State also argues, and the Court of Appeals concluded, that any burden on privately financed candidates and independent expenditure groups is more analogous to the burden placed on speakers by the disclosure and disclaimer requirements we recently upheld in Citizens United than to direct restrictions on candidate and independent expenditures. This analogy is not even close. A political candidate’s disclosure of his funding resources does not result in a cash windfall to his opponent, or affect their respective disclosure obligations. . . .

Because the Arizona matching funds provision imposes a substantial burden on the speech of privately financed candidates and independent expenditure groups, “that provision cannot stand unless it is ‘justified by a compelling state interest,’”Massachusetts Citizens for Life.

There is a debate between the parties in this case as to what state interest is served by the matching funds provision. The privately financed candidates and independent expenditure groups contend that the provision works to “level electoral opportunities” by equalizing candidate “resources and influence.” The State and the Clean Elections Institute counter that the provision “furthers Arizona’s interest in preventing corruption and the appearance of corruption.” . . .

There is ample support for the argument that the matching funds provision seeks to “level the playing field” in terms of candidate resources. The clearest evidence is of course the very operation of the provision: It ensures that campaign funding is equal, up to three times the initial public funding allotment. . . .

We have repeatedly rejected the argument that the government has a compelling state interest in “leveling the playing field” that can justify undue burdens on political speech. See, e.g., Citizens United. In Davis, we stated that discriminatory contribution limits meant to “level electoral opportunities for candidates of different personal wealth” did not serve “a legitimate government objective,” let alone a compelling one. And in Buckley, we held that limits on overall campaign expenditures could not be justified by a purported government “interest in equalizing the financial resources of candidates.” . . .

“Leveling the playing field” can sound like a good thing. But in a democracy, campaigning for office is not a game. It is a critically important form of speech. The First Amendment embodies our choice as a Nation that, when it comes to such speech, the guiding principle is freedom—the “unfettered interchange of ideas”—not whatever the State may view as fair.Buckley.

As already noted, the State and the Clean Elections Institute disavow any interest in “leveling the playing field.” They instead assert that the “Equal funding of candidates” provision serves the State’s compelling interest in combating corruption and the appearance of corruption. But even if the ultimate objective of the matching funds provision is to combat corruption—and not “level the playing field”—the burdens that the matching funds provision imposes on protected political speech are not justified.

Burdening a candidate’s expenditure of his own funds on his own campaign does not further the State’s anticorruption interest. Indeed, we have said that “reliance on personal funds reduces the threat of corruption” and that “discouraging [the] use of personal funds disserves the anticorruption interest.” Davis. That is because “the use of personal funds reduces the candidate’s dependence on outside contributions and thereby counteracts the coercive pressures and attendant risks of abuse” of money in politics. The matching funds provision counts a candidate’s expenditures of his own money on his own campaign as contributions, and to that extent cannot be supported by any anticorruption interest.

We have also held that “independent expenditures … do not give rise to corruption or the appearance of corruption.”Citizens United. “By definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate.” Id. The candidate-funding circuit is broken. The separation between candidates and independent expenditure groups negates the possibility that independent expenditures will result in the sort of quid pro quocorruption with which our case law is concerned. Including independent expenditures in the matching funds provision cannot be supported by any anticorruption interest. . . .

We do not today call into question the wisdom of public financing as a means of funding political candidacy. That is not our business. But determining whether laws governing campaign finance violate the First Amendment is very much our business. . . .

“[T]here is practically universal agreement that a major purpose of” the First Amendment “was to protect the free discussion of governmental affairs,” “includ[ing] discussions of candidates.” Buckley. That agreement “reflects our ‘profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.’” Ibid. True when we said it and true today. Laws like Arizona’s matching funds provision that inhibit robust and wide-open political debate without sufficient justification cannot stand.

The judgment of the Court of Appeals for the Ninth Circuit is reversed.

It is so ordered.


. . . The First Amendment ’s core purpose is to foster a healthy, vibrant political system full of robust discussion and debate. Nothing in Arizona’s anti-corruption statute, the Arizona Citizens Clean Elections Act, violates this constitutional protection. . . .

The people of Arizona had every reason to try to develop effective anti-corruption measures. Before turning to public financing, Arizonans voted by referendum to establish campaign contribution limits. But that effort to abate corruption, standing alone, proved unsuccessful. Five years after the enactment of these limits, the State suffered “the worst public corruption scandal in its history.” In that scandal, known as “AzScam,” nearly 10% of the State’s legislators were caught accepting campaign contributions or bribes in exchange for supporting a piece of legislation. Following that incident, the voters of Arizona decided that further reform was necessary. Acting once again by referendum, they adopted the public funding system at issue here.

The hallmark of Arizona’s program is its inventive approach to the challenge that bedevils all public financing schemes: fixing the amount of the subsidy. For each electoral contest, the system calibrates the size of the grant automatically to provide sufficient—but no more than sufficient—funds to induce voluntary participation. In effect, the program’s designers found the Goldilocks solution, which produces the “just right” grant to ensure that a participant in the system has the funds needed to run a competitive race. . . .

Arizona’s statute does not impose a “restriction” or “substantia[l] burde[n],” on expression. The law has quite the opposite effect: It subsidizes and so produces more political speech. We recognized in Buckley that, for this reason, public financing of elections “facilitate[s] and enlarge[s] public discussion,” in support of First Amendment values. And what we said then is just as true today. Except in a world gone topsy-turvy, additional campaign speech and electoral competition is not a First Amendment injury.

At every turn, the majority tries to convey the impression that Arizona’s matching fund statute is of a piece with laws prohibiting electoral speech. The majority invokes the language of “limits,” “bar[s],” and “restraints.” It equates the law to a “restrictio[n] on the amount of money a person or group can spend on political communication during a campaign.” It insists that the statute “re-strict[s] the speech of some elements of our society” to enhance the speech of others. And it concludes by reminding us that the point of the First Amendment is to protect “against unjustified government restrictions on speech.”

There is just one problem. Arizona’s matching funds provision does not restrict, but instead subsidizes, speech. The law “impose[s] no ceiling on [speech] and do[es] not prevent anyone from speaking.” Citizens United v. Federal Election Comm’n (2010); see Buckley. The statute does not tell candidates or their supporters how much money they can spend to convey their message, when they can spend it, or what they can spend it on. Rather, the Arizona law, like the public financing statute in Buckley, provides funding for political speech, thus “facilitat[ing] communication by candidates with the electorate.” By enabling participating candidates to respond to their opponents’ expression, the statute expands public debate, in adherence to “our tradition that more speech, not less, is the governing rule.” Citizens United. What the law does—all the law does—is fund more speech.

And under the First Amendment, that makes all the difference. …

No one can claim that Arizona’s law discriminates against particular ideas, and so violates the First Amendment’s sole limitation on speech subsidies. The State throws open the doors of its public financing program to all candidates who meet minimal eligibility requirements and agree not to raise private funds. Republicans and Democrats, conservatives and liberals may participate; so too, the law applies equally to independent expenditure groups across the political spectrum. Arizona disburses funds based not on a candidate’s (or supporter’s) ideas, but on the candidate’s decision to sign up for public funding. So under our precedent, Arizona’s subsidy statute should easily survive First Amendment scrutiny. . . .

. . . [T]he Court errs in holding that the government action in this case substantially burdens speech and so requires the State to offer a compelling interest. But in any event, Arizona has come forward with just such an interest, explaining that the Clean Elections Act attacks corruption and the appearance of corruption in the State’s political system. The majority’s denigration of this interest—the suggestion that it either is not real or does not matter—wrongly prevents Arizona from protecting the strength and integrity of its democracy. . . .

This case arose because Arizonans wanted their government to work on behalf of all the State’s people. On the heels of a political scandal involving the near-routine purchase of legislators’ votes, Arizonans passed a law designed to sever political candidates’ dependence on large contributors. They wished, as many of their fellow Americans wish, to stop corrupt dealing—to ensure that their representatives serve the public, and not just the wealthy donors who helped put them in office. The legislation that Arizona’s voters enacted was the product of deep thought and care. It put into effect a public financing system that attracted large numbers of candidates at a sustainable cost to the State’s taxpayers. The system discriminated against no ideas and prevented no speech. Indeed, by increasing electoral competition and enabling a wide range of candidates to express their views, the system “further[ed] … First Amendment values.” Buckley. Less corruption, more speech. Robust campaigns leading to the election of representatives not beholden to the few, but accountable to the many. The people of Arizona might have expected a decent respect for those objectives.

Today, they do not get it. The Court invalidates Arizonans’ efforts to ensure that in their State, “‘[t]he people … possess the absolute sovereignty.’” (quoting James Madison in 4 Elliot’s Debates on the Federal Constitution (1876)). No precedent compels the Court to take this step; to the contrary, today’s decision is in tension with broad swaths of our First Amendment doctrine. No fundamental principle of our Constitution backs the Court’s ruling; to the contrary, it is the law struck down today that fostered both the vigorous competition of ideas and its ultimate object—a government responsive to the will of the people. Arizonans deserve better. Like citizens across this country, Arizonans deserve a government that represents and serves them all. And no less, Arizonans deserve the chance to reform their electoral system so as to attain that most American of goals.

Truly, democracy is not a game. I respectfully dissent.