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Arizona's Clean Elections limits money—and, therefore, speech—in campaigns

One philosophy holds that the best we can do for this imperfect world is set a few rules against force and fraud, and work to make it better as individuals. In practice, the world remains imperfect, but the aggregate of individual efforts creates a collection of benefits that is inconceivable by any one individual or committee.

Another philosophy holds that the world is imperfect, but with enough force and rules, the world can be ridded of most imperfections. In practice, the world remains imperfect—and many unforeseen and unintended consequences are created, most of which are bad.

A good example of the latter philosophy is Arizona's Clean Elections Act, passed in 1998 by referendum. Many people thought that state elections were rife with imperfections, most of which centered around financing. It was thought that by controlling the money, the influence of "special interests" would be eliminated; voter participation would be increased; the field of candidates would be made larger; and that third-party participation would increase. These were the promises of the legislation.

In practice, of course, it turned out much differently. Voter participation has not changed, nor are there more candidates. The participation of third parties has remained the same. In the words of Sarah Fenske of the Phoenix New Times, "If the system's not getting any cleaner, and the candidates aren't getting any better, what's the point?"

Yet it is not the failure (the "world remains imperfect") that should give one pause; rather, it is the "unforeseen and unintended consequences" that assault some of our basic liberties, like the right to free speech.

The U.S. Supreme Court has long held that political contributions are a form of speech. So what happens to that right when it collides with "Clean Elections"? Well, let's say that you wanted to express your support of Rano Singh Sidhu in his 2006 race against Dean Martin for state treasurer. You may consider cutting him a check, but wait—he signed up for "Clean Elections" (candidate welfare), and cannot accept your support. Instead, he's getting $121,253 from the government; that's not a lot of speech when you're looking at 2.5 million voters.

So, next time, you say, "I will only support a traditional candidate, not a welfare candidate." You cut a check to your favorite traditional candidate—and he returns it, explaining that he is already at the level of the welfare candidate's funding, and any more money he receives will be "matched" by the state and given to his opponent.

It's actually worse. The "matching" of funds not only applies to the traditional campaign, but to independent groups who speak in favor of the traditional candidate.

My favorite example is the traditional candidate who is in a race with two welfare candidates: Every contribution over the base amount goes to both candidates. So if you send your candidate $100, a total of $200 ($100 each) goes to your candidate's opponents.

Is this nuts or what? Fortunately, the Institute for Justice just got a break from the U.S. Supreme Court regarding their suit against the matching-funds provision (McComish v. Bennett). After a favorable decision from the U.S. District Court, it was reversed by the 9th U.S. Circuit Court of Appeals; then the U.S. Supreme Court not only agreed to hear the case, but reinstated an injunction against any matching-funds payments. As one of the lead attorneys in the case, Bill Maurer, said, "The purpose of this law was to limit individuals' speech by limiting their spending. But the First Amendment does not permit the government to restrain Americans from robustly exercising the right of free speech." Amen.

It's often said that there is too much money in electoral politics. What does that mean—too much speech? Too much information? Too much engagement? How much is too much? As George Will pointed out when referring to the 2008 presidential election, "Americans volunteering to fund the dissemination of speech about candidates for the nation's most consequential office will contribute $1 billion, which is about half the sum they spend annually on Easter candy."

The whole notion of controlling speech, or that too much speech is bad, offends both our Constitution and our culture. "Clean Elections" should be sent to the ash bin of history.

More by Jonathan Hoffman

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