Brought by Republican Rep. Steve May of Tempe, the suit attacks the fund's primary funding source, a 10 percent fee tacked on to all court fines, representing more than 60 percent of the program's funding.
Clean Elections supporters had considered the case dead in the water. Last fall, a trial judge slapped down May's lawsuit in Superior Court. When he appealed to the Arizona Supreme Court last month, the justices told him to talk to the hand.
But May's attorneys, the Institute for Justice, were able to perform legal CPR on the case, convincing the Court of Appeals to at least consider overturning the lower court ruling.
Now its up to the three appeals judges led by Sheldon Weisberg to decide whether to throw a wrench into what's expected to be one of the most contested election in decades.
Their decision could come any day or it could come weeks from now. Heck, it could've come yesterday. But the court's simple decision to hear arguments already has some candidates assuming the worst.
"It came as a total surprise," said Dick Mahoney, an independent candidate for governor whose campaign hinges on Clean Election funding. "Normally if it goes to the Supreme Court, that pretty much settles it. This decision by the Court of Appeals seems indicative of an intent to reverse."
May's counsel told the court last Wednesday that a $2.70 fee attached to a parking ticket he received two years ago violated his First Amendment rights. By paying the fee to the Clean Elections Fund, they claim he would've been forced to fund his opponent's campaign and that isn't fair.
"The Clean Elections Act wants to take money from me involuntarily through a parking ticket so they can tell my constituents I'm corrupt because I accept special-interest money," said May.
The 10 percent surcharge on all civil and criminal fines accounts for more than 60 percent of the $17 million Clean Elections Fund. As of Thursday, 103 candidates in every state race--53 Republicans, 48 Democrats and two Independents--had filed statements agreeing to limit their campaign spending in exchange for public money under the Clean Elections Act. The act was passed by voter initiative in 1998 as a way to lessen the influence of special interests on politics.
May counters that special interests still play a vital role in getting any candidate elected, but if money's not involved then there's no way to track it.
"With Clean Elections it's completely hidden, you don't know which special interest groups are helping which candidates," May said.
The court's decision came a day after Attorney General Janet Napolitano filed to collect $409,950 in Clean Election money to fund her bid for the Democrat nomination for governor.
Her supporters remain unfazed. If the Clean Elections fund runs dry, the handcuffs come off and she can make up the difference collecting money the old-fashioned way: contributions from individuals and special interests. In her case, she can turn to the Democratic Party and the trade unions who helped her collect 6,000 $5 qualifying contributions.
It's the dark horses who are whinnying under the court's decision.
Mahoney, for example, says he's already collected 3,300 of the 4,000 contributions needed to qualify for $717,420 in public funding for the governor's race. If that money isn't there, Mahoney said he would have no choice but to drop out of the race.
"I wouldn't be the only one," Mahoney said. "There is no back up plan. If you're an independent candidate and you're not independently wealthy, it's not possible to collect enough money from special interests."
Other candidates counting on Clean Election funding aren't as grim, but aren't eager to go begging either.
"Rather than spending time going door to door, meeting with voters, we'd have to spend an inordinate amount of time at the Ritz Carlton," said Alfredo Gutierrez, one of Napolitano's opponents in the Democratic primary. "Wherever special interests gather, that's where we'll be, along with every other Republican and Democrat candidate."
Matt Salmon, who also wants to be governor, would benefit the most from the court's decision. He's been slamming the system ever since he learned that he's the only gubernatorial candidate not running on what he calls "The Welfare for Politicians Act."
"I really do believe the law is unconstitutional because it compels people to support speech they don't believe in," Salmon said. "Theoretically, you could get some from a candidate from a Nazi skinhead group and as a long as they collected the prerequisite $5 contribution and the signatures to get on the ballot, we would have to subsidize their political speech."
But Clean Elections supporters still think May's case is full of bunk. As candidate confidence started to drift, the Clean Elections Institute fired off a statement assuring candidates the act would prevail.
"While we do not believe this case merited special action, we have every confidence the courts will once again uphold the Clean Elections funding system as constitutional," writes Barb Lubin, deputy director of the Clean Elections Institute.
A legal battle cast a shadow over the Clean Elections program during the 2000 election as well. The program was ultimately upheld, though not before spooking several prospective "clean" candidates in legislative races.
This year, redistricting will also stall legislative candidates who want to run on public dough. A lawsuit brought by Hispanic community groups has blocked the maps' final approval, and without final lines drawn, candidates can't be sure where they're allowed to collect their qualifying contributions.
