McComish v. Bennett ( 2010 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN MCCOMISH; NANCY MCLAIN; 
TONY BOUIE,
Plaintiffs-Appellees,
ROBERT BURNS,
Plaintiff-Intervenor-Appellee,
ARIZONA FREE ENTERPRISE CLUB’S
FREEDOM CLUB PAC; ARIZONA
TAXPAYERS ACTION COMMITTEE,
agent of Taxpayers Action
Committee; DEAN MARTIN; RICK
MURPHY,
Plaintiffs-Intervenors-Appellees,
No. 10-15165
v.
 D.C. No.
KEN BENNETT, in his official CV-08-1550-ROS
capacity as Secretary of State of
the State of Arizona; GARY
SCARAMAZZO; ROYANN J. PARKER;
JEFFREY L. FAIRMAN; DONALD
LINDHOLM; LORI S. DANIELS, in
their official capacities as
members of the Arizona Citizens
Clean Elections Commission,
Defendants-Appellants,
and
CLEAN ELECTIONS INSTITUTE, INC.,
Defendant-Intervenor.

7319
7320 MCCOMISH v. BENNETT
JOHN MCCOMISH; NANCY MCLAIN; 
TONY BOUIE,
Plaintiffs-Appellees,
DEAN MARTIN; ROBERT BURNS;
RICK MURPHY; ARIZONA FREE
ENTERPRISE CLUB’S FREEDOM CLUB
PAC; ARIZONA TAXPAYERS ACTION
COMMITTEE, agent of Taxpayers
Action Committee,
Plaintiffs-Intervenors-Appellees,
v. No. 10-15166
KEN BENNETT, in his official
capacity as Secretary of State of
 DC No.
CV 08-1550 ROS
the State of Arizona; GARY OPINION
SCARAMAZZO; ROYANN J. PARKER;
JEFFREY L. FAIRMAN; DONALD
LINDHOLM; LORI S. DANIELS, in
their official capacities as
members of the Arizona Citizens
Clean Elections Commission,
Defendants,
and
CLEAN ELECTIONS INSTITUTE, INC.,
Defendant-Intervenor-Appellant.

Appeals from the United States District Court
for the District of Arizona
Roslyn O. Silver, District Judge, Presiding
Argued and Submitted
April 12, 2010—San Francisco, California
Filed May 21, 2010
MCCOMISH v. BENNETT 7321
Before: Andrew J. Kleinfeld, A. Wallace Tashima, and
Sidney R. Thomas, Circuit Judges.
Opinion by Judge Tashima;
Concurrence by Judge Kleinfeld
MCCOMISH v. BENNETT 7323
COUNSEL
Nicholas C. Dranias, Goldwater Institute, Phoeniz, Arizona,
for the plaintiffs-appellees.
William R. Maurer, Institute for Justice, Seattle, Washington,
for the plaintiffs-intervenors-appellees.
Mary R. O’Gracy, Solicitor General of Arizona, Phoenix, Ari-
zona, for the defendants-appellants.
Bradley S. Phillips, Munger, Tolles, & Olson, Los Angeles,
California, for the defendant-intervenor-appellant.
Stephen M. Hoersting, Center for Competitive Politics, Alex-
andria, Virginia, for amicus curiae Center for Competitive
Politics.
7324 MCCOMISH v. BENNETT
OPINION
TASHIMA, Circuit Judge:
This is a challenge to the constitutionality of the “matching
funds” provision of Arizona’s Citizens Clean Elections Act,
Ariz. Rev. Stat. § 16-952. The Act establishes a legal frame-
work within which the State of Arizona may provide public
financing to candidates for state political offices. A candidate
who chooses to participate in the Act’s voluntary public
financing scheme relinquishes her or his right to raise private
campaign contributions. Instead, she or he receives an initial
grant of funds from the state to spend on her or his campaign.
The challenged provision ensures that if the participating can-
didate has an opponent who is not participating in the public
financing system and whose campaign expenditures or contri-
butions exceed a threshold set by the Act, she or he receives
additional matching funds from the State.
Six past and future candidates for Arizona political office
who have, or plan to, run privately-financed campaigns, as
well as two political action committees who fund such candi-
dates, brought suit to enjoin the Act’s matching funds provi-
sion, alleging that it violates their rights under the First
Amendment and the Equal Protection Clause of the Four-
teenth Amendment of the U.S. Constitution. These Plaintiffs
claim that the matching funds provision severely burdens their
exercise of protected political speech by punishing them for
making, receiving, or spending campaign contributions. As
nonparticipating candidates, if they exceed the Act’s matching
funds threshold, they will trigger the disbursement of match-
ing funds to their opponents. They allege that their fear of
triggering matching funds to their opponent causes them to
curb their campaign fundraising or spending, thereby chilling
their speech. They also claim that because the Act treats can-
didates differently based on whether or not they participate in
the public financing scheme, it denies them the equal protec-
tion of the law.
MCCOMISH v. BENNETT 7325
The district court held that the matching funds provision of
the Act violated the First Amendment. It did not reach Plain-
tiffs’ equal protection claim. After determining that the
matching funds provision of the Act could not be severed
from the Act as a whole, the district court granted Plaintiffs’
motion for summary judgment, issued a declaratory judgment
that the Act violates the First Amendment, and enjoined its
enforcement.
Applying Supreme Court precedent analyzing campaign
finance laws under the First Amendment, see Citizens United
v. FEC, 130 S. Ct. 876 (2010); Davis v. FEC, 128 S.Ct. 2759(2008); Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), we
conclude that the matching funds provision of the Act
imposes only a minimal burden on First Amendment rights.
It survives intermediate scrutiny because it bears a substantial
relation to the State’s important interest in reducing quid pro
quo political corruption. Because the Act conforms to the
requirements of the First Amendment and must be upheld, we
reverse. We decline to address Plaintiffs’ equal protection
claim in the first instance; instead, we remand to the district
court so that it may consider the issue.
I. Statutory Background
Prior to the passage of the Citizens Clean Elections Act (the
“Act”), Arizona had already adopted campaign contribution
limits. Ariz. Rev. Stat. § 16-905 (historical and statutory
note). In 1986, the State’s voters passed an initiative measure
establishing individual contribution limits of $200 for legisla-
tive candidates and $500 for statewide candidates, per elec-
tion. See id. Even with these campaign contribution limits in
place, Arizona experienced a series of massive political cor-
ruption scandals.
In 1988, Governor Evan Mecham was indicted on multiple
criminal charges, including perjury and fraud for allegedly
hiding a campaign loan. He was later impeached on charges
7326 MCCOMISH v. BENNETT
of misuse of public funds and obstruction of justice, and
ousted from office. Next, the “Savings and Loan Scandal” led
to a United States Senate Ethics Committee investigation of
certain activities of both U.S. Senators from Arizona, who had
received contributions and favors from Arizona savings and
loan tycoon Charles Keating.
Then, in 1991, AzScam erupted. A sting operation caught
state legislators on videotape accepting campaign contribu-
tions and bribes in exchange for agreeing to support gambling
legislation. The video footage was generally seen as outra-
geous. For example, Representative Don Kenny was seen
stuffing a $55,000 cash bribe into a gym bag after joking, “are
you sure there are no hidden cameras up there?” AzScam
resulted in the indictment of twenty-one individuals, including
lobbyists, political activists, and seven state legislators. Two
additional state legislators were named in a civil racketeering
suit. In total, nearly ten percent of the Arizona Legislature at
the time faced civil or criminal charges related to AzScam.
Former Arizona Governor J. Fife Symington testified that the
scandal was highly publicized around the state.
In the late nineties, Governor Symington himself was
embroiled in scandal and indicted on twenty-three counts,
including using the power of his office to extort concessions
from a pension fund to which he owed $10 million. He
became Arizona’s second governor in a row to leave his
office in disgrace when he resigned in 1997, after being con-
victed on seven counts of filing false financial statements.1
In the wake of these scandals, the voters of Arizona passed
the Citizens Clean Elections Act, Ariz. Rev. Stat. §§ 16-940- 16-961, an initiative measure, in the 1998 statewide election.
1
After serving two and one-half years in prison, Governor Symington’s
conviction was reversed. See United States v. Symington, 195 F.3d 1080(9th Cir. 1999). He was then granted a presidential pardon just as his
retrial was set to commence.
MCCOMISH v. BENNETT 7327
Ariz. Rev. Stat. § 16-940 (historical and statutory note). There
is no evidence that the Act was intended solely to remedy Ari-
zona’s apparent susceptibility to political corruption. Plain-
tiffs, however, introduced ample evidence indicating that
when the Act was adopted, voters were aware of, and con-
cerned about, continuing and repeated political corruption in
Arizona.
The voter information pamphlet for the 1998 election
argued that the Act should be approved because it would free
politicians “to represent the best interests of all the citizens,
not just the large financial contributors who can trade their
cash for political support.” Ballot Propositions Publicity Pam-
phlet for the 1998 Arizona General Election, at *87, available
at http://www.azsos.gov/election/1998/info/pubpamphlet/
prop200.pdf. One justification for the Act was that it would
change Arizona’s “reputation [as] a state rife with corruption
and the abuse of money in politics . . . . [and] restore confi-
dence in our political system.” Id. at *88. The pamphlet fur-
ther noted that under the existing election law regime, “[o]ur
elected officials are going to jail and this cycle of abuse seems
endless.”2 Id.The Act’s findings state that the State’s previous election
financing system, “[u]ndermine[d] public confidence in the
integrity of public officials,” because it “[a]llow[ed] Arizona
elected officials to accept large campaign contributions from
private interests over which they have governmental jurisdic-
tion.” Ariz. Rev. Stat. § 16-940. The Act’s stated purpose is
to “create a clean elections system that will improve the integ-
rity of Arizona state government by diminishing the influence
of special-interest money, will encourage citizen participation
in the political process, and will promote freedom of speech.”
Id.2
One of the Act’s original supporters testified that another one of its
goals was to “promote freedom of speech because . . . [under the Act,]
more candidates would have more opportunity to speak.”
7328 MCCOMISH v. BENNETT
Plaintiffs argue that the Act was not aimed at reducing cor-
ruption, and that legislative reforms designed to prevent
another AzScam had already been adopted at the time the Act
was passed. Instead, Plaintiffs contend that the Act’s true pur-
poses were to level the political playing field and reduce cam-
paign spending.3 Voters are motivated by varied and
conflicting motivations. Generally, a diverse electorate cannot
be said to share one true intent in adopting an initiative mea-
sure. More specifically, the extent to which Arizona’s various
corruption scandals led to the passage of the Act cannot be
precisely determined. Based on the record before us, however,
3
We recently recognized in Long Beach Area Chamber of Commerce v.
City of Long Beach, that in light of Supreme Court precedent, “ ‘prevent-
ing corruption or the appearance of corruption are the only legitimate and
compelling government interests thus far identified for restricting cam-
paign finances.’ ” Long Beach, No. 07-55691, __ F.3d __, 2010 WL
1729710 at *7 (9th Cir. April 30, 2010) (quoting FEC v. Nat’l Conserva-
tive Political Action Comm., 470 U.S. 480, 496-97 (1985)). In particular,
we observed that the so-called “anti-distortion rationale,” under which the
government claims an “interest in combating ‘the corrosive and distorting
effects of immense aggregations of wealth,’ ” is not a legitimate basis for
campaign finance restrictions after the Supreme Court partially overruled
Austin v. Mich. State Chamber of Commerce, 494 U.S. 652 (1990), in its
Citizens United decision. Id. at *6 (quoting Austin, 494 U.S. at 660 and
discussing Citizens United, 130 S. Ct. at 904, 912-13). Likewise, the “time
protection rationale,” under which the government claims an interest in
“ ‘protect[ing] candidates from spending too much time raising money
rather than devoting that time to campaigning among ordinary voters’ ”
may not serve as the basis for restricting campaign finance activity. Id. at
*7 (quoting Randall v. Sorrell, 548 U.S. 230, 243-45 (2006)).
We need not, however, address the potential legitimacy of arguments
that the State has not raised before us in defense of the Act. Further, even
if the State had raised these arguments, “[i]t is unnecessary to look beyond
the Act’s primary purpose to limit the actuality and appearance of corrup-
tion resulting from large individual financial contributions in order to find
a constitutionally sufficient justification” for the matching funds provi-
sion. Buckley, 424 U.S. at 26. Because the Act is justified by the State’s
legitimate and non-illusory interest in reducing quid pro quo corruption,
we need not consider the constitutional legitimacy of other potential ratio-
nales that might support it. See id. at 24-27.
MCCOMISH v. BENNETT 7329
we conclude that one of the principal purposes of the Act was
to reduce quid pro quo corruption.
The Act created a system of public financing for political
campaigns. A candidate who chooses not to participate in this
system may raise unlimited funds from private donations,
subject to contribution limits and disclosure requirements,
which existed before the Act. If a candidate opts to participate
in the public financing system, she or he agrees to forfeit her
or his right to fund her or his campaign with private contribu-
tions. Instead, she or he must collect a required number of
five-dollar “qualifying contributions” during a specified time
period to demonstrate that she or he has the voter support to
be a viable candidate. Ariz. Rev. Stat. § 16-946. The number
of required qualifying contributions varies between two hun-
dred and four thousand, depending on the office that the can-
didate is seeking. Ariz. Rev. Stat. § 16-950(D).
If the candidate qualifies for public financing, she or he
will then receive a lump-sum grant for her or his primary
campaign, which varies depending on whether she or he is
running opposed or unopposed in a party primary, or whether
she or he is an independent candidate. Ariz. Rev. Stat. § 16-
951. If the participating candidate has a nonparticipating
opponent in the primary who spends more than her or his ini-
tial grant, or whose expenditures, combined with the value of
independent expenditures in opposition to her or his candi-
dacy or in support of her or his nonparticipating opponent,4
exceed the amount of her or his initial grant, the participating
candidate will receive “matching funds” in the amount of the
combined spending of her or his nonparticipating opponent,
4
An independent expenditure is a campaign expenditure made by a third
party that “expressly advocates the election or defeat of a clearly identified
candidate, that is made without cooperation or consultation with any can-
didate or committee or agent of the candidate and that is not made in con-
cert with or at the request or suggestion of a candidate, or any committee
or agent of the candidate.” Ariz. Rev. Stat. § 16-901(14).
7330 MCCOMISH v. BENNETT
plus the value of independent expenditures against her or him
or in support of her or his nonparticipating opponent, reduced
by six percent and reduced by the amount of “early contribu-
tions” raised by the nonparticipating opponent during the pre-
primary fundraising period.5 Ariz. Rev. Stat. §§ 16-952, 16-
945.
If the participating candidate wins her or his primary and
continues on to the general election, she or he receives a sec-
ond initial lump-sum grant. Ariz. Rev. Stat. § 16-952. If she
or he has a nonparticipating opponent in the primary whose
contributions received, combined with the value of indepen-
dent expenditures in supporting him or her and opposing the
participating candidate, less his or her expenditures during the
primary campaign, exceed the amount of the participating
candidate’s second initial grant, the participating candidate
will receive matching funds, calculated in the same manner as
in the primary campaign. Ariz. Rev. Stat. § 16-952(B). During
both elections, matching funds, combined with the initial
grant, may not exceed three times the amount of the initial
grant. Ariz. Rev. Stat. § 16-952(E). This means that a nonpar-
ticipating candidate who is able to raise funds in excess of
three times the amount of his or her participating candidate’s
initial grant gains a potentially unlimited financial advantage
in the campaign.
5
The matching funds that the participating candidate receives are
reduced by six percent to take into account the fact that nonparticipating
candidates incur expenses in order to raise money. The assumption under-
lying this provision is that a nonparticipating candidate must spend six
dollars (on postage, event costs, etc.) in order to raise one hundred dollars,
while a participating candidate has no fundraising costs. Therefore, in
order for both candidates to have the same net amount available to spend
on non-fundraising campaign expenses, the matching funds that the partic-
ipating candidate receives are reduced by six percent.
MCCOMISH v. BENNETT 7331
II. Factual Background
Plaintiffs are John McComish and Nancy McLain, current
members of the Arizona House of Representatives who are
seeking reelection in 2010, Tony Bouie, a non-incumbent can-
didate for the Arizona House of Representatives, and Robert
Burns, an Arizona State Senator seeking reelection in 2010.
Joining them in this challenge to the Act are plaintiffs-
intervenors, Dean Martin, a former Arizona State Senator,
current State Treasurer, and candidate for Governor in 2010,
Rick Murphy a member of the Arizona House of Representa-
tives seeking reelection in 2010, the Arizona Free Enterprise
Club’s Freedom Club PAC (“Freedom Club PAC”), a politi-
cal action committee (“PAC”) which makes contributions to
Arizonans for a Sound Economy, an independent expenditure
committee that funds independent expenditures in races sub-
ject to the Act, and the Arizona Taxpayers Action Committee
(“Arizona Taxpayers”), an independent expenditure commit-
tee that makes independent expenditures in races subject to
the Act. All candidate-plaintiffs have declined to participate
in the Act’s public funding program and will be running in the
2010 election as privately-financed candidates.
Plaintiffs sued Jan Brewer, in her official capacity as Ari-
zona Secretary of State,6 and Gary Scaramazzo, Royann Par-
ker, Jeffrey Fairman, Donald Lindholm, and Lori Daniels, in
their official capacities as members of the Arizona Citizens
Clean Elections Commission (collectively, the “State”). The
Clean Elections Institute, Inc., a nonprofit organization
formed to continue the work of Arizonans for Clean Elec-
tions, the campaign committee that sponsored the initiative
that created the Act, intervened as a defendant.
Since 2002, between fifty-two percent and sixty-seven per-
cent of candidates for state office during general elections
6
Ken Bennett has succeeded Jan Brewer as Secretary of State since the
commencement of this action.
7332 MCCOMISH v. BENNETT
have chosen to participate in the Act’s public funding pro-
gram. Plaintiffs contend that matching funds have dampened
overall campaign spending in Arizona. It is undisputed, how-
ever, that overall campaign spending in Arizona has increased
since the Act’s passage.
Plaintiffs also allege that matching funds have specifically
deterred them from engaging in political expression through
monetary expenditures. They argue that the fear of triggering
matching funds causes privately-funded candidates to refrain
from or delay raising and spending money in support of their
campaigns. They contend that matching funds burden the
speech of independent expenditure committees by causing
them to delay making independent expenditures in order to
avoid triggering matching funds until later in the campaign,
when the publicly-financed candidate will have less time to
use them, in an attempt to minimize the competitive benefit
of the matching funds to the publicly-financed candidate.
We agree with the district court’s observation that “Plain-
tiffs’ testimony is somewhat scattered and shows only a vague
interpretation of the burden of the Act.” John McComish testi-
fied that in his 2008 campaign for the House of Representa-
tives, he triggered matching funds to his opponents. In order
to avoid triggering additional matching funds to his opponents
until later in the campaign, he “deci[ded] to wait and not
make any substantial expenditures until September 2, 2008.”
McComish describes this as an act of “self-censorship” in
order to avoid the consequence of “disseminat[ing] view-
points hostile to my campaign.”
Nancy McLain testified that during her 2008 campaign for
House of Representatives she “made a conscious decision to
not raise or spend a significant amount because it could not
be spent without resulting in ‘equalizing funds.’ ” Although
she avoided triggering matching funds in the general election,
she triggered matching funds in the primary. She claims that
her “reluctance to fundraise and spend money during the pri-
MCCOMISH v. BENNETT 7333
mary election meant that [she] was not able to broadcast [her]
message either on air or in newspapers as often as [she]
thought necessary to win the election,” although she was vic-
torious. She describes matching funds as imposing a “compet-
itive disadvantage” on her campaign, which her fundraising
and spending choices “seek to minimize.”
Tony Bouie also triggered matching funds during his 2008
campaign for House of Representatives. He testified that
because he had “no control over independent expenditures
that the Commission deems [to] benefit him” he “fe[lt] com-
pelled to conserve money for damage-control in anticipation
of poorly-conceived independent expenditures backfiring
after they trigger matching funds” to his opponents. As a
result he “change[d his] campaign strategy” by “holding [his]
campaign speech until [his] expenditures could be timed to
minimize the impact of the matching funds.” He believes that
matching funds thereby “placed [him] at a continuous tactical
disadvantage.”
Robert Burns “believe[s] that the existence of matching
funds coerces traditionally funded candidates into changing
their message and the timing of getting out their message,
even if ultimately the amount of messaging a traditional can-
didate chooses to engage in does not change.” His deposition
testimony indicated that matching funds had not actually
chilled his speech during his most recent 2008 election for
State Senate. He admitted that he was willing to trigger
matching funds. Further, he also indicated that despite the
matching funds provision, he simply communicated his mes-
sage to the extent he felt was necessary to win, stating “[i]f
I had to spend X number of dollars to get out a — a mailer,
and I had that amount of money, I would go ahead and do the
mailer.”
Dean Martin stated that “the matching funds provision of
the Act forced [him] to self-censor” in his most recent race for
State Treasurer in 2006. He reasoned that the “only way [he]
7334 MCCOMISH v. BENNETT
could avoid being massively outspent by [his] opponent was
to prevent the triggering of additional matching funds to her
campaign” and “was thus coerced into accepting the same
limits as [his] government-funded opponent . . . [without]
receiv[ing] any of the benefits of being a government-funded
candidate, such as the receipt of matching funds for indepen-
dent expenditures that opposed [his] candidacy and the label
‘participating’ or ‘clean’ candidate.” Despite Martin’s testi-
mony that he felt matching funds severely burdened his
speech, he curiously could not even recall whether he had
ever triggered matching funds to an opponent. The record
indicates that Martin is fundamentally opposed to the policy
of publicly financing political campaigns, regardless of
whether a given public financing scheme includes a provision
for matching funds.
Rick Murphy ran successfully for House of Representatives
as a participating candidate in 2004. He later ran for reelec-
tion in 2006 and 2008 as a nonparticipating candidate. He tes-
tified that he attempted to not trigger matching funds during
his 2006 campaign because, since his opponent would receive
additional matching funds once he surpassed the threshold
amount, “[i]t didn’t seem like it made a lot of sense for me
to do that, so I curtailed my speech and curtailed my fundrais-
ing in order to prevent it.” Still, Murphy testified that match-
ing funds have never prevented him from accepting a political
contribution. Murphy’s testimony that he curtailed his fun-
draising for fear of triggering matching funds was directly
contradicted by his own campaign consultant, who testified
that he advised Murphy to “raise as much money” as he could
from “everywhere,” that he never advised Murphy to stop
raising money, and that Murphy never curtailed or stopped his
fundraising efforts.
The treasurer of the Freedom Club PAC testified that the
PAC has never been prevented from making an independent
expenditure for fear of triggering matching funds. He further
stated that he takes into account various campaign finance
MCCOMISH v. BENNETT 7335
“reporting requirements, notifications and filings” upon which
matching funds disbursement determinations by the Citizens
Clean Elections Commission are based, in determining when
to spend money.
Arizona Taxpayers stated that it “decided not to speak in
opposition to [a] participating candidate . . . in the 2006 pri-
mary election because such speech would have triggered
matching funds.” However, the groups’s founder admitted
that it had never decided against making an expenditure
because it would trigger matching funds. Further, the evi-
dence demonstrates that Arizona Taxpayers could not afford
to make expenditures during the 2006 primary election,
because it had only $52.72 in cash on hand.
III. Standard and Scope of Review
We review the district court’s grant of summary judgment
to Plaintiffs and denial of summary judgment to the State de
novo.7 See Block v. City of L.A., 253 F.3d 410, 416 (9th Cir.
2001). This means that we will look at the case “anew, the
same as if it had not been heard before, and as if no decision
previously had been rendered,” and “giving no deference to
the district judge’s determinations.” Freeman v. DirecTV,
Inc., 457 F.3d 1001, 1004 (9th Cir. 2006); Ditto v. McCurdy,
510 F.3d 1070, 1075 (9th Cir. 2007).8 We apply the same
7
“Ordinarily a denial of a motion for summary judgment is not a final
order and thus not appealable. 28 U.S.C. § 1291. However, the district
court’s grant of summary judgment was a final decision giving us jurisdic-
tion to review its denial of [the State’s] motion for summary judgment.”
Abend v. MCA, Inc., 863 F.2d 1465, 1482 n.20 (9th Cir. 1988).
8
We reject Plaintiffs’ argument that Brown v. Cal. Dep’t of Transp., 321
F.3d 1217, 1221 (9th Cir. 2003), requires us to review the district court’s
findings of fact for clear error because its opinion was one which struck
down a restriction on speech. Brown, and the line of cases that it follows,
apply to this Court’s review of cases in which the district court made find-
ings of fact in the process of issuing a preliminary injunction or holding
a bench trial, or when questions of fact were submitted to a jury. See
Planned Parenthood v. Am. Coalition of Life Activists, 290 F.3d 1058,
1066-1070 (9th Cir. 2002) (en banc). This case, arising from a grant of
summary judgment, is in an entirely different procedural posture to which
these cases do not apply.
7336 MCCOMISH v. BENNETT
legal standard that the district court did, “[v]iewing the evi-
dence in the light most favorable to the nonmoving party,”
and granting summary judgment “only if no genuine issues of
material fact remain for trial and the moving party is entitled
to judgment as a matter of law.” Block, 253 F.3d at 416. We
“may affirm on any ground supported by the record.” N. Mar-
iana Islands v. United States, 399 F.3d 1057, 1060 (9th Cir.
2005). Because the district court did not rule on the parties’
evidentiary objections and did not strike any evidence from
the record, all of the evidence adduced below remains a part
of the record before us on appeal. See Vinson v. Thomas, 288
F.3d 1145, 1152 & n.8 (9th Cir. 2002).
IV. Analysis
First, we must determine what level of constitutional scru-
tiny applies to the Act’s matching funds provision. The level
of scrutiny that applies to a law which implicates First
Amendment concerns is “dictated by both the intrinsic
strength of, and the magnitude of the burden placed on, the
speech and associational freedoms at issue.” Lincoln Club v.
City of Irvine, 292 F.3d 934, 938 (9th Cir. 2002). We must,
therefore, engage in a two-step inquiry. First, we determine
whether the type of speech the law affects is fully protected
by the First Amendment. Next, we determine the type of bur-
den, if any, that the law places on that speech. Laws that place
severe burdens on fully protected speech are subject to strict
scrutiny. Laws that “place[ ] only a minimal burden on fully
protected . . . freedoms” or that apply to “speech and associa-
tional freedoms [that] are not fully protected by the First
Amendment” receive intermediate scrutiny. Id.[1] Buckley, the Supreme Court’s landmark case on the
constitutionality of campaign finance laws under the First
Amendment, provides guidance in determining whether the
Act affects fully protected speech. Buckley held that campaign
contributions are not fully protected political speech. 424 U.S.
at 21-22; see also Lincoln Club, 292 F.3d at 938-39. The
MCCOMISH v. BENNETT 7337
Supreme Court reasoned that a “contribution serves as a gen-
eral expression of support for the candidate and his views, but
does not communicate the underlying basis for the support.
. . . [T]he transformation of contributions into political debate
involves speech by someone other than the contributor.”
Buckley, 424 U.S. at 21. By contrast, campaign expenditures
are fully protected speech because a “restriction on the
amount of money a person can spend on political communica-
tion during a campaign necessarily reduces the quantity of
expression by restricting the number of issues discussed, the
depth of their exploration, and the size of the audience
reached.” Id. at 19.
[2] Following Buckley, a law that has a hybrid effect on
both contributions and expenditures is interpreted as though
it affects fully protected speech. See Lincoln Club, 292 F.3d
at 939. The matching funds provision of the Act affects both
contributions and expenditures. During primary elections, the
Act explicitly ties participating candidate’s matching fund
disbursements to nonparticipating candidates’ expenditures.
Ariz. Rev. Stat. § 16-952. During a general election, the Act
bases matching fund calculations on contributions received by
nonparticipating candidates. Id. This includes contributions
that come from a nonparticipating candidate’s personal funds,
which, under Buckley’s framework, are considered expendi-
tures, and fully protected speech. See 424 U.S. at 51-55.
Because the Act affects both contributions and expenditures,
we analyze it as though it affects fully protected speech.
Next, we determine what level of burden, if any, the Act
imposes on that speech. Plaintiffs argue that the Supreme
Court’s recent decision in Davis, 128 S. Ct. 2759, controls
this case, and compels the conclusion that the Act places a
severe burden on their speech triggering the application of
strict scrutiny. The State and Defendant-Intervenor counter
that the Act places only a minimal or indirect burden on
Plaintiffs’ speech and that the Supreme Court’s latest cam-
7338 MCCOMISH v. BENNETT
paign finance decision, Citizens United, 130 S. Ct. 876, reaf-
firmed that intermediate scrutiny applies to such laws.
[3] In Buckley, the Supreme Court evaluated the constitu-
tionality of provisions of the Federal Election Campaign Act
of 1971, and related provisions of the Internal Revenue Code
of 1954, as amended, which allowed for the public financing
of presidential elections. See 424 U.S. at 6, 85-109. The Court
found that the public financing scheme in that case was “a
congressional effort, not to abridge, restrict, or censor speech,
but rather to use public money to facilitate and enlarge public
discussion and participation in the electoral process, goals
vital to a self-governing people. Thus [it] furthers, not
abridges, pertinent First Amendment values.” Id. at 92-93(footnote omitted). Therefore, the public financing of elec-
tions itself does not create any burden on speech.
In Davis, the Court struck down the Millionaire’s Amend-
ment to the Bipartisan Campaign Reform Act of 2002
(“BCRA”), 2 U.S.C. § 441a-1(a). The Millionaire’s Amend-
ment applied to campaigns for the United States House of
Representatives, in which all candidates are privately financed
and there is no public funding. But if one candidate financed
his campaign with personal funds in excess of a threshold
amount, “a new, asymmetrical regulatory scheme c[ame] into
play.” 128 S. Ct. at 2766. While the self-financing candidate
continued to be subject to the normal contribution limits, his
opponent, the ‘non-self-financing’ candidate became eligible
to “receive individual contributions at treble the normal limit
. . . even from individuals who may have reached the normal
aggregate contributions cap, and [could] accept coordinated
party expenditures without limit.” Id. The Davis Court held
that this “scheme of discriminatory contribution limits,” “im-
poses a substantial burden on the exercise of the First Amend-
ment right to use personal funds for campaign speech.” Id. at
2772. Having found the Millionaire’s Amendment to be a
substantial burden on fully protected speech, the Court
applied strict scrutiny. Id.MCCOMISH v. BENNETT 7339
Plaintiffs urge us to adopt the rationale of the district court
and conclude that, under the logic of Davis, they have “estab-
lished a cognizable burden” under the First Amendment. The
district court reasoned that “[i]f the mere potential for your
opponent to raise additional funds is a substantial burden, the
granting of additional funds to your opponent must also be a
burden.” We disagree. As discussed below, we conclude that
Davis is easily and properly distinguished from the case at
bench.
The regulatory framework the Supreme Court examined in
Davis is different from the one we confront under the Act.
Davis says nothing about public “funding schemes and there-
fore says nothing about their constitutionality.” Comment,
122 Harv. L. Rev. 375, 383 (Nov. 2008). All of the candidates
in Davis were subject to the same scheme regulating privately
financed candidates. “Under the usual circumstances, the
same restrictions apply to all the competitors for a seat and
their authorized committees.” Davis, 128 S.Ct. at 2765. But
if one candidate heavily self-funded his campaign, it triggered
an entirely new “asymmetrical regulatory scheme” that
required him to file three additional types of campaign
finance disclosures not required of his opponents. Id. at 2766-
67. “Failure to comply with the reporting requirements may
[have] result[ed] in civil and criminal penalties.” Id. at 2767.
It also triggered new, more generous campaign contribution
limits, but only for the self-financing candidate’s opponents.
Id. at 2771.
In striking down the Millionaire’s Amendment, the
Supreme Court noted that had the law “simply raised the con-
tribution limits for all candidates, Davis’ argument would
plainly fail.” Id. at 2770; see also id. at 2771 (“Consequently,
if § 319(a)’s elevated contribution limits applied across the
board, Davis would not have any basis for challenging those
limits.”). Instead, the law constituted a burden on Davis’
speech only because it treated candidates running against each
other under the same regulatory framework differently based
7340 MCCOMISH v. BENNETT
on a candidate’s decision to self-finance his or her campaign,
which is a manner of engaging in fully protected speech. Id.
at 2771.
In contrast, the Supreme Court has held that it is constitu-
tional to subject candidates running against each other for the
same office to entirely different regulatory schemes when
some candidates voluntarily choose to participate in a public
financing system. Buckley, 424 U.S. at 97. “[T]he Constitu-
tion does not require Congress to treat all declared candidates
the same for public financing purposes.” Id. “Sometimes the
grossest discrimination can lie in treating things that are dif-
ferent as though they were exactly alike.” Id. at 97-98.
In Davis, the Millionaire’s Amendment was an attempt to
“level electoral opportunities for candidates of different per-
sonal wealth.” 128 S. Ct. at 2773. This was problematic
because Buckley had held that “the First Amendment simply
cannot tolerate [a] restriction upon the freedom of a candidate
to speak without legislative limit on behalf of his own candi-
dacy.” 424 U.S. at 54. In Citizens United, the Supreme Court
elaborated on its decision in Davis, indicating that the Mil-
lionaire’s Amendment was unconstitutional because it specifi-
cally sought to disadvantage the rich. “The rule that political
speech cannot be limited based on a speaker’s wealth is a nec-
essary consequence of the premise that the First Amendment
generally prohibits the suppression of political speech based
on the speaker’s identity.” Citizens United, 130 S. Ct. at 905.
Under the Act, while matching funds are calculated based on
the total contributions received and expenditures made by a
nonparticipating opponent, they are not distributed specifi-
cally to the opponents of wealthy candidates. Matching funds
do not distinguish between different sources of nonparticipat-
ing candidates’ financing at all. The law in Davis was prob-
lematic because it singled out the speakers to whom it applied
based on their identity. The Act’s matching funds provision
makes no such identity-based distinctions.
MCCOMISH v. BENNETT 7341
[4] Plaintiffs, perhaps recognizing that they have not dem-
onstrated any actual chilling of their speech by the Act, argue
that under Davis, we could strike down the matching funds
provision without any proof that their speech has been
deterred or punished. But Davis does not require this Court to
recognize mere metaphysical threats to political speech as
severe burdens. We will only conclude that the Act burdens
speech to the extent that Plaintiffs have proven that the spec-
ter of matching funds has actually chilled or deterred them
from accepting campaign contributions or making expendi-
tures.
[5] Based on the record before us, we conclude that any
burden the Act imposes on Plaintiffs’ speech is indirect or mini-
mal.9 Since the Act’s adoption, campaign spending in Arizona
9
Prior to, and without the benefit of, the Supreme Court’s recent deci-
sions in Citizens United and Davis, three of our sister circuits considered
the constitutionality of state public financing schemes with matching
funds provisions similar to the one we now confront. See N.C. Right to
Life Comm. Fund for Indep. Political Expenditures v. Leake, 524 F.3d 427(4th Cir. 2008); Daggett v. Comm’n on Gov’tal Ethics and Election Prac-
tices, 205 F.3d 445 (1st Cir. 2000); Day v. Holahan, 34 F.3d 1356 (8th
Cir. 1994). The Fourth and First Circuits concluded that the respective
statutes imposed no First Amendment burden at all. See N.C. Right to Life,
524 F.3d at 437-49; Daggett, 205 F.3d at 464-65. The Eighth Circuit,
however, concluded that the Minnesota law at issue imposed a substantial
burden on fully protected political speech and, because it could not survive
strict scrutiny, struck it down. See Day, 34 F.3d at 1360, 1363.
Plaintiffs argue that because the Supreme Court’s decision in Davis
cites Day, Davis somehow transformed the decision of one of our sister
circuits into controlling precedent. Davis cites Day only once for a single,
limited proposition. See Davis, 128 S. Ct. at 2772 (“Many candidates who
can afford to make large personal expenditures to support their campaigns
may choose to do so despite [the Millionaire’s Amendment], but they must
shoulder a special and potentially significant burden if they make that
choice. See Day v. Holahan, 34 F.3d 1536, 1359-60 (C.A.8 1994) (con-
cluding that a Minnesota law that increased a candidate’s expenditure lim-
its and eligibility for public funds based on independent expenditures
against her candidacy burdened the speech of those making the indepen-
7342 MCCOMISH v. BENNETT
has increased. Several Plaintiffs testified that they would have
made increased expenditures or undertaken increased fun-
draising but for the matching funds provision. No Plaintiff,
however, has pointed to any specific instance in which she or
he has declined a contribution or failed to make an expendi-
ture for fear of triggering matching funds. The record as a
whole contradicts many of Plaintiffs’ unsupported assertions
that their speech has been chilled. Robert Burns admitted he
dent expenditures)”). In so citing Day, Davis did not affirm or adopt the
Eighth Circuit’s approach, nor did it overturn sub silento the decisions of
the First and Fourth Circuits. It merely cited Day for what it is — a deci-
sion in which our sister circuit found that a law chilled protected speech
and held that such a burden could not survive strict scrutiny. Our decision
is not controlled by Day, nor are we persuaded by it.
In Day, plaintiffs demonstrated that the Minnesota statute they were
challenging had a “chilling effect” on political speech and that its “mere
enactment . . . ha[d] prevented many if not most potential political expen-
ditures from ever being made.” 34 F.3d at 1360. As discussed infra, Plain-
tiffs have not established the existence of such a chilling effect in the
instant case. Having found that the Minnesota law imposed a substantial
burden on fully protected political speech, the Eighth Circuit proceeded to
apply strict scrutiny. Id. at 1361. The court concluded that the law could
not survive that test because it found that the state’s professed interest sup-
porting the law, that of encouraging participation in the public financing
program, was “not legitimate,” “no matter how compelling in the
abstract,” because it was not based in fact, but was rather “contrived for
purposes of [ ] litigation.” Id. The record there demonstrated that the chal-
lenged provision was “not necessary to encourage candidates’ involve-
ment in public campaign financing, as participation was approaching
100% before the new campaign finance laws were passed.” Id.Two years after it decided Day, the Eighth Circuit, recognizing the
unusual factual background of that case, declined to extend its reasoning
and upheld other provisions of Minnesota’s campaign finance law under
strict scrutiny. See Rosenstiel v. Rodriguez, 101 F.3d 1544, 1555 (8th Cir.
1996). In the case at bench, because the interest Arizona asserts in support
of the Act is not “contrived for purposes of this litigation,” Day, 34 F.3d
at 1361, even under current Eighth Circuit law “the circumstances sur-
rounding the enactment of the [Act] make Day inapposite.” Rosenstiel,
101 F.3d at 1555. We decline to follow the Eighth Circuit down a road
that even it refused to follow.
MCCOMISH v. BENNETT 7343
was willing to trigger matching funds and spent as much
money as he needed to in order to communicate his message.
Dean Martin claimed his speech was chilled by matching
funds, but could not even recall whether he had triggered
them in the past. Rick Murphy admitted he had never turned
a contribution away, and his political consultant testified that
he never slowed his fundraising. The Freedom Club PAC’s
treasurer testified that he has never been dissuaded from mak-
ing an independent expenditure by the possibility of triggering
matching funds. Arizona Taxpayers’s claim that it declined to
speak in the 2006 primary for fear of triggering matching
funds seems disingenuous in light of the fact that it only had
$52.72 cash on hand. Plaintiffs have not demonstrated that
any chilling effect exists. Their own experiences campaigning
under the Act highlight that it “in no way limits the quantity
of speech one can engage in or the amount of money one can
spend engaging in political speech, nor does it threaten cen-
sure or penalty for such expenditures.” Daggett, 205 F.3d at
464.
Plaintiffs bemoan that matching funds deny them a compet-
itive advantage in elections. The essence of this claim is not
that they have been silenced, but that the speech of their oppo-
nents has been enabled. We agree with the First Circuit that
the First Amendment includes “no right to speak free from
response — the purpose of the First Amendment is to secure
the widest possible dissemination of information from diverse
and antagonistic sources.” Id. (internal quotations omitted).
Plaintiffs’ assertions that they have delayed making certain
expenditures in order to avoid triggering matching funds to
their opponents until later in the campaign cycle is evidence
that they continue to seek strategic advantages under the Act,
but does not support the argument that their speech has been
chilled. Many campaign finance regulations, particularly dis-
closure requirements, lead candidates to engage in such strate-
gic behavior, but this does not make them unconstitutional.
As the Court has observed, “the public begins to concentrate
7344 MCCOMISH v. BENNETT
on elections only in the weeks immediately before they are
held.” Citizens United, 130 S. Ct. at 895. Consequently, wait-
ing until that time to make campaign expenditures would not
necessarily be evidence of coerced behavior. Rather, such
decisions likely reflect a rational strategy of maximizing the
impact of one’s campaign funds.
[6] Although Plaintiffs cannot point to any specific
instances in which their speech has been chilled because of
the Act, we recognize that under the Supreme Court’s juris-
prudence, even laws that create only potential chilling effects
impose some First Amendment burden. For example, the
Supreme Court has held that campaign contribution disclosure
requirements and campaign advertisement funding disclosure
and disclaimer requirements impose a minimal burden on
speech and are therefore subject to intermediate scrutiny. See
Buckley, 424 U.S. at 64 (disclosure requirements); Citizens
United, 130 S. Ct. at 914 (disclosure and disclaimer require-
ments). In Buckley, the law at issue required candidates and
PACs, as well as some other individuals or groups making
political contributions or expenditures, to file disclosure
reports with the FEC. 424 U.S. at 63. The Court recognized
that these reporting requirements “can seriously infringe on
privacy of association and belief guaranteed by the First
Amendment.” Id. at 64. The Court also realized that the pub-
lic disclosure of political contributions “will deter some indi-
viduals who otherwise might contribute. In some instances,
disclosure may even expose contributors to harassment or
retaliation.” Id. at 68. Even though these were “not insignifi-
cant burdens on individual rights,” the Court analyzed them
under intermediate scrutiny rather than strict scrutiny because
the disclosure laws “impose no ceiling on campaign-related
activities.” Id. at 64, 68.
Recently, in Citizens United, the Court applied the same
type of analysis to the BCRA’s requirement that political
advertisements must state who “is responsible for the content
of [certain] advertising.” 130 S. Ct. at 913-14. The Court reaf-
MCCOMISH v. BENNETT 7345
firmed Buckley’s reasoning that such requirements may
impose a cognizable burden under the First Amendment even
though they “do not prevent anyone from speaking.” Id. at
914.
The Court rejected the plaintiffs’ arguments that the
requirement “decreases both the quantity and effectiveness of
the group’s speech by forcing it to devote four seconds of
each advertisement to the spoken disclaimer.” Id. at 915.
Notably, in the absence of any evidence “of harassment or
retaliation,” the Court also dismissed the plaintiffs’ arguments
that the disclosure requirements would “chill donations to an
organization.” Id. at 916.
[7] In this case, as in Buckley and Citizens United, the bur-
den that Plaintiffs allege is merely a theoretical chilling effect
on donors who might dislike the statutory result of making a
contribution or candidates who may seek a tactical advantage
related to the release or timing of matching funds. The match-
ing funds provision does not actually prevent anyone from
speaking in the first place or cap campaign expenditures.
Also, as in Buckley and Citizens United, there is no evidence
that any Plaintiff has actually suffered the consequence they
allege the Act imposes. We conclude that the burden created
by the Act is most analogous to the burden of disclosure and
disclaimer requirements in Buckley and Citizens United. Fol-
lowing the Supreme Court’s precedents in those cases,
because the Act imposes only a minimal burden on fully pro-
tected speech, intermediate scrutiny applies.
[8] Examining the matching funds provision under inter-
mediate scrutiny, because there is a “ ‘substantial relation’ ”
between the Act’s matching funds provision and a “ ‘suffi-
ciently important’ governmental interest,” we conclude that it
does not violate the First Amendment. See Citizens United,
130 S. Ct. at 914 (quoting Buckley). The State has a suffi-
ciently important interest in preventing corruption and the
appearance of corruption. See Citizens United, 130 S. Ct. at7346 MCCOMISH v. BENNETT
909. The record demonstrates that Arizona has a long history
of quid pro quo corruption. AzScam, in which legislators lit-
erally sold their votes for cash bribes, was just one of many
substantial, wide-spread, and highly-publicized political scan-
dals that Arizona experienced in the late 1980s and 1990s.
These incidents occurred despite the contributions limits in
place prior to the Act. Regardless of whether quid pro quo
corruption continued to be a problem at the time of the Act’s
passage, the appearance of quid pro quo corruption to the
electorate was undeniable. Arizona voters were justified in
concluding that contribution limits alone were not sufficient
to combat corruption and its appearance. As the Supreme
Court has recognized, the State’s interest in eradicating the
appearance of quid pro quo corruption to restore the elector-
ate’s confidence in its system of government is not “illusory,”
it is substantial and compelling. See Buckley, 424 U.S. at 26-
27.
Furthermore, the State has an interest in providing match-
ing funds to encourage participation in its public funding
scheme. Because Buckley held that public financing of elec-
tions furthers First Amendment values, federal courts have
found that states may structure them in a manner which will
encourage candidate participation in them. See, e.g., Rosen-
stiel, 101 F.3d at 1553 (“the State has a compelling interest
in stimulating candidate participation in its public financing
scheme”). The Eighth and First Circuits have found this inter-
est to be so compelling as to withstand even the strictest scruti-
ny.10 See id.; Vote Choice, Inc. v. DiStefano, 4 F.3d 26, 39-40
(1st Cir. 1993) (finding that the state has a “compelling” inter-
est in “having candidates accept public financing”).
The district court misapprehended how the Act functions to
10
Because we hold that the Act is subject only to intermediate scrutiny,
we need not decide whether the Act would survive strict scrutiny, as the
First and Fourth Circuits have held with respect to public financing
schemes similar to the Act.
MCCOMISH v. BENNETT 7347
reduce corruption. It assumed that the Act works by reducing
nonparticipating candidates’ incentive to fundraise private
contributions, thereby reducing the appearance of corruption
among nonparticipating candidates. Thus, it concluded that
the Act did not further an anticorrpution interest by providing
matching funds to participating candidates triggered by non-
participating candidates making contributions to their own
campaigns from their own private funds. In doing so, it relied
on the Court’s holding that “discouraging use of personal
funds[ ] disserves the anticorruption interest.” Davis, 128 S.
Ct. at 2773.
The fact is, however, that the Act is aimed at reducing cor-
ruption among participating candidates. The relevant inquiry
thus is whether matching funds bear a substantial relation to
reducing corruption among participating candidates. In
exchange for public funding, participating candidates relin-
quish their right to raise campaign contributions from private
donors. They therefore have both reduced opportunities and
reduced incentives to trade legislative favors for financial
favors. The Supreme Court has held “[i]t cannot be gainsaid
that public financing as a means of eliminating the improper
influence of large private contributions furthers a significant
governmental interest.” Buckley, 424 U.S. at 96.
Viewing the Act from this perspective, it is clear that the
Act’s anticorruption interest is further promoted by high par-
ticipation in the program. The more candidates that run with
public funding, the smaller the appearance among Arizona
elected officials of being susceptible to quid pro quo corrup-
tion, because fewer of those elected officials will have
accepted a private campaign contribution and thus be viewed
as beholden to their campaign contributors or as susceptible
to such influence.
It is not relevant under this analysis what the source of a
nonparticipating candidate’s campaign contributions is when
he or she triggers matching funds. In order to promote partici-
7348 MCCOMISH v. BENNETT
pation in the program, and reduce the appearance of quid pro
quo corruption, the State must be able to ensure that partici-
pating candidates will be able to mount competitive cam-
paigns, no matter what the source of their opponent’s funding.
If matching funds were not triggered by independent expendi-
tures or expenditures from a nonparticipating candidate’s own
funds, the Act’s public funding plan would not attract partici-
pants. It would be an enormous political risk to participate in
such a system.
In this way, matching funds bear a substantial relation to
the State’s anticorruption interest. A public financing system
with no participants does nothing to reduce the existence or
appearance of quid pro quo corruption. If participants were
not given matching funds, they would not join the program
because they would not be viable candidates in their elections.
If the State were to adopt the district court’s recommendation
of structuring matching funds by tying them “solely to contri-
butions made by third parties to a candidate,” it would have
the effect of deterring the participation of any candidate who
feared she or he might have an opponent who was able to self-
finance or would be the beneficiary of large independent
expenditures. This would substantially diminish the Act’s
ability to attract participants, thereby undermining its ability
to prevent corruption.
[9] In contrast, if the Act were to raise the amount of its
lump-sum grants and do away with matching funds alto-
gether, it would make the Act prohibitively expensive and
spell its doom. By linking the amount of public funding in
individual races to the amount of money being spent in these
races, the State is able to allocate its funding among races of
varying levels of competitiveness without having to make
qualitative evaluations of which candidates are more “deserv-
ing” of funding beyond the base amounts provided to all
publically-funded candidates. The State must walk a fine line
between providing too much and too little funding to partici-
MCCOMISH v. BENNETT 7349
pating candidates, and we cannot conclude that the Act’s
matching funds provision has failed in this effort.
V. Conclusion
[10] For the reasons set forth above, we conclude that the
matching funds provision of the Act does not violate the First
Amendment. We decline to reach the equal protection claim,
and reverse and remand to the district court for further pro-
ceedings consistent with this opinion.
REVERSED and REMANDED.
KLEINFELD, Circuit Judge, concurring:
I concur. My reasoning is slightly different. In my view, the
historical and policy considerations do not matter to the out-
come. Although the complaint asserts both a facial and an as-
applied challenge, the district court injunction and the argu-
ments amount to a facial rejection of the statute.
The fact that matters is that the Arizona public financing
scheme imposes no limitations whatsoever on a candidate’s
speech. Davis v. Federal Election Commission1 is easily dis-
tinguished because there the scheme did indeed impose a limit
on the candidate’s speech, at least indirectly. If the candidate
spent too much of his own money promoting his political
position, then his opponent would benefit from a tripled con-
tribution limit per donor.2 The Arizona scheme does not
manipulate the limits on private donors’ contributions accord-
ing to whether a competing candidate is participating in the
government funding scheme. Had it done so, Davis would
apply by analogy.
1
128 S.Ct. 2759 (2008).
2
Id. at 2766.
7350 MCCOMISH v. BENNETT
Other circuits have divided on whether schemes like Arizo-
na’s violate the First Amendment.3 The Supreme Court cited
with apparent approval the Eighth Circuit decision,4 which
may be contrary to the view we take today. But as the major-
ity correctly says, it is not clear that the Supreme Court meant
to adopt the Eighth Circuit view, and Davis did not require the
Court to address a scheme like the one addressed by the
Eighth Circuit.
I doubt that the level of scrutiny or risk of corruption matter
in this case. The Arizona public financing scheme’s matching
funds provision imposes no limit at all on contributions or
expenditures for one’s own campaign. The limits are separate
from the public financing scheme and not challenged. The
plaintiffs do not challenge the contribution limits.5 Contribu-
tion limits are what invoke corruption and level of scrutiny
considerations.
Plaintiffs challenge not contribution limits, but the benefits
3
Compare N.C. Right to Life Comm. Fund for Indep. Political Expendi-
tures v. Leake, 524 F.3d 427, 437 (4th Cir. 2008) (holding that matching
funds to publicly funded candidates that trigger based on contributions and
expenditures for privately funded candidates do not impose any burden on
First Amendment rights) and Daggett v. Comm’n on Gov’tal Ethics and
Election Practices, 205 F.3d 445, 464 (1st Cir. 2000) (same) with Day v.
Holahan, 34 F.3d 1356, 1360-62 (8th Cir. 1994) (holding that providing
additional public funds in response to independent expenditures advocat-
ing for a privately financed candidate burdens the speech of the indepen-
dent advocacy groups, subjecting the law to strict scrutiny, and striking it
down).
4
Davis, 128 S.Ct. at 2772.
5
Contribution limits are imposed by Arizona Revised Statutes § 16-905.
Part of the referendum that created Arizona’s public funding scheme alters
the contribution limits by providing new rules for participating candidates,
§ 16-941(A), and uniformly decreasing the contribution limits for nonpar-
ticipating candidates, § 16-941(B). The complaint does not allege that
either § 16-905 or § 16-941 is unconstitutional. It alleges that § 16-952,
the matching funds provision of the referendum, is unconstitutional. Sec-
tion 16-952 does not impose contribution limits.
MCCOMISH v. BENNETT 7351
that the public financing scheme gives to participating candi-
dates running against privately financed candidates and the
strategic concerns the scheme creates for privately financed
candidates. Because the challenged scheme imposes no con-
tribution or spending limits, it does not restrict speech at all,
so I cannot see why heightened scrutiny would apply.6 All
that the evidence shows is that candidates who forego public
funding make strategic decisions in response to the public
funding scheme.7 That is not a restriction on speech. Intelli-
gent, ambitious people seeking political office, or any other
goal, are likely to study the rules and develop strategies taking
maximum advantage of the rules. The kinds of strategic
choices generated by the Arizona rules do not differ in kind
from the choices presented to candidates by other election
laws. For example, candidates will run their campaigns differ-
ently according to whether there is a fixed election day or an
extended period for mail-in ballots, at large elections of multi-
ple candidates in one district or single winner elections in
multiple smaller districts, or partisan or nonpartisan elections.
That different laws generate different strategies does not make
them restrictions on speech.
The only speech-related concern I can see to the Arizona
scheme is that a privately funded candidate has to raise a lot
more money to swamp a publicly funded candidate. Someone
not serious about politics, but serious about traveling, eating
meals, and seeing his picture on billboards and in the newspa-
pers for months, all at taxpayer expense, might pose a genuine
challenge to a privately funded candidate, unless that candi-
date could raise funds well beyond the ceiling in the public
funding scheme. If the notion is that campaign contributions
amount to disguised bribery, I suppose this might mean the
Arizona scheme would promote rather than inhibit corruption.
But it is hard to see the materiality of that because contribu-
tion limits have not been challenged, and all the corruption
6
Accord N.C. Right to Life, 524 F.3d at 437; Daggett, 205 F.3d at 464.
7
N.C. Right to Life, 524 F.3d at 438; Daggett, 205 F.3d at 464.
7352 MCCOMISH v. BENNETT
theory has been used to justify in First Amendment law is
contribution limits. As for the privately funded candidate, his
or her speech is not limited by this increased burden of fun-
draising. Rather, his chances of winning are inhibited if he
makes an incorrect judgment about whether he is going to be
able to raise enough money to swamp the publicly funded
candidate. But the First Amendment does not protect the can-
didate’s interest in winning, just his interest in being heard.
There is no First Amendment right to make one’s opponent
speak less,8 nor is there a First Amendment right to prohibit
the government from subsidizing one’s opponent,9 especially
when the same subsidy is available to the challenger if the
challenger accepts the same terms as his opponent.10
As for the practical effects of the Arizona scheme, I have
no idea whether they are good or bad, and nothing in the
record throws any light on whether the good outweighs the
bad or vice versa. Intent and motivation do not show effect,
because the unintended effects of reform frequently outweigh
the intended effects. Nor does it matter whether the scheme
is a good or bad one, for First Amendment purposes. Arizona
is entitled to make good or bad laws so long as they do not
violate the Constitution. Since this law does not limit speech,
it does not violate the First Amendment.
Perhaps public funding is good because it helps candidates
run for office without relying on contributions from people
who will want something in return. Perhaps it is bad because
8
See Daggett, 205 F.3d at 464.
9
Cf. Nat’l Endowment for the Arts v. Finley, 524 U.S. 569, 587-88
(1998) (holding that the National Endowment for the Arts may decide who
to subsidize based on aesthetic value of artworks because a subsidy is not
a regulation on who can speak).
10
Cf. Rosenberger v. Rector and Visitors of the Univ. of Va., 515 U.S.
819, 829-30 (1995) (holding that a public university must make its print-
ing facilities available to all qualifying student publications regardless of
viewpoint).
MCCOMISH v. BENNETT 7353
in a state with a large electorate and mass media, large con-
tributors are the only people involved who know a candidate,
and their money gives the public the benefit of what amounts
to quality screening by people who actually know the candi-
date. As for the notion that contributions amount to bribery,
at least when they are large, that may be so, or it may be that
large contributions amount to protection money that those
especially vulnerable to government power pay to those they
fear will wield it. Perhaps both, or neither, is true. Doubtless
many contributions result from contributors’ beliefs about
who will provide good government, and gratitude to those
willing to accept elected office and competent to discharge it
well. None of this matters to this case. The only significance
of the corruption concern to First Amendment law is that in
Buckley v. Valeo, the concern was used to justify a limit on
contributions to campaigns.11 Since the case before us does
not involve a contribution limit or any other burden on
speech, the concern is immaterial.
In sum, the Arizona public financing scheme does not limit
speech directly or indirectly. The only Supreme Court case
touching at all closely upon the issues is Davis, and Davis has
to be distinguished because the scheme in that case affected
contribution limits and this scheme does not. No Ninth Circuit
case speaks to the constitutionality of the Arizona scheme or
anything like it. Our sister circuits are divided. Accordingly,
I conclude that Arizona is not constitutionally barred from
using the scheme before us.
11
424 U.S. 1, 25-26 (1976) (per curiam); see also Citizens United v.
Fed. Election Comm’n, 130 S.Ct. 876, 901 (2010).