PHOENIX -- The nation's high court will consider Monday a bid by business groups and politicians to void a key element of Arizona's system of public financing of elections.
Foes of the Citizens Clean Elections Act hope to undermine the 1998 voter-approved law that allows candidates for statewide and legislative office get cash if they agree not to take private donations.
Technically speaking, the challenge being heard by the U.S. Supreme Court is not to the law itself, which has withstood multiple challenges, including from the business organization itself. Instead, it deals only with a provision that increases the public funding if a privately financed foe spends more.
But a decision to eliminate that part of the law could make the whole system less attractive for candidates.
And if some legislators get their way, voters will get a chance next year to eliminate the system entirely: The House is poised to vote on a Senate-approved measure to constitutionally ban public funding of elections.
The 1998 law permits -- but does not require -- candidates to get public funds. The amount depends on the office sought.
For example, this year gubernatorial hopefuls were entitled to $707,447 for the primary. Those who survived got another $1,061,171 for the general election.
Various legal challenges to public financing, led by business interests who have helped fund campaigns, have been turned aside in the past
What is before the court is a provision that provides extra cash beyond that amount, on a dollar for dollar basis, to match the spending by privately funded opponents, up to three times the original allocation. The allowance covers more than direct spending by opponents. It also means more money if an outside group buys advertising or sends out mailings on behalf of a foe or against the publicly funded candidate.
Last year, U.S. District Judge Roslyn Silver ruled the provision unconstitutional. Privately funded candidates argued -- and Silver agreed -- that their First Amendment rights are being violated because every dollar they raised and spent meant additional cash for their foes.
The 9th U.S. Circuit Court of Appeals overruled that decision. The judges said challengers did not prove that candidates or independent groups stopped spending for fear of helping those they wanted to defeat. That led to the request for the Supreme Court to intercede.
Todd Lang, executive director of the Citizens Clean Elections Commission, said he thinks the high court will side with maintaining the matching funds -- but only if they concentrate on his view of what the First Amendment does and does not mean.
"What the first amendment protects is freedom of speech, not freedom from rebuttal," he said. "What the plaintiffs are really complaining about is that somebody else gets to speak in addition to them.
But Lang conceded the signs of the court buying that theory are not good.
In an unusual move last year, the Supreme Court justices reinstated Silver's original injunction barring the matching dollars while they considered the case. That had an immediate impact in several races.
Incumbent Gov. Jan Brewer, for example, had to live within her allocation even though Republican primary challenger Buz Mills put close to $3.2 million of his own cash into the campaign before suspending his bid. Before the high court order, Brewer would have been entitled to more than $2.1 million, three times that $707,447 allotment.
It also meant Tom Horne got to spend more than $600,000 in the GOP primary for attorney general in defeating Andrew Thomas who, denied matching funds, got a total of only about $200,000.
That interim decision could indicate that the justices already have concluded the matching funds provision cannot withstand legal challenge.
If the high court strikes down the provision, candidates still will be able to seek public funds. But going that route could prove less attractive.
Lang said incumbents who have access to donations are likely to tap those rather than risk being outspent by a challenger.
Opponents of the funding scheme aren't waiting for that to happen.
The Senate, on a party-line vote, has approved a measure to ask voters to constitutionally ban public funding of elections. SCR 1025, which awaits action by the full House, would effectively overrule the original 1998 law.
Glenn Hamer, whose organization fought the original 1998 voter initiative, said he believes voters can be convinced now to repeal the original law. And he is using the budget deficit as his main weapon.
More than half the funds come from a 10 percent surcharge on civil, criminal and traffic fines. And most of the balance comes from a "check off" box on state income tax forms allowing residents to donate $5 of what they owe instead to public financing.
The commission is now collecting about $13 million a year. Hamer argues that the cash could be better spent elsewhere, specifically citing the cutbacks in the state's Medicaid program and the plans by the governor to slash state aid to universities by $170 million.