Fighting for Clean Elections

Munger, Tolles & Olson attorneys appeared before the U.S. Supreme Court in 2011 to defend Arizona’s Citizens Clean Elections Act. The law, approved by voters in 1998, provides public funding for candidates who choose to forego most private campaign contributions. Participating candidates received additional public funds triggered by spending by their opponents and independent political committees. Representing the Clean Elections Institute and the state of Arizona as co-defendants, Munger Tolles defended Arizona’s law against a First Amendment challenge made by several privately funded candidates and two independent political committees.

“Triggered matching funds are an important way for states and potentially Congress to have a public funding law that provides enough money for candidates to compete in high-spending races where they may face wealthy individuals or corporate money,” Bradley S. Phillips, a Munger Tolles partner who argued the case at the high court, told the Daily Journal. "This is a way to calibrate the amount of public money a candidate needs by the amount used against them. It’s a way to have public funding that’s effective without bankrupting the government.”

This was the first campaign finance case the high court had heard since its landmark 5-4 ruling in Citizens United, which concluded that limiting corporate campaign spending is tantamount to a free speech restriction. Munger Tolles litigated the Arizona case from the outset and in October 2008 successfully defeated a preliminary injunction motion in federal court. Our attorneys convinced the court that enjoining the public funding provision would compromise the integrity of the November 2010 election. In May 2010, the 9th Circuit unanimously upheld the law. In June 2011, the Supreme Court, in a 5-4 decision authored by Chief Justice John Roberts, struck down the act. Justice Elena Kagan wrote an eloquent dissenting opinion, which agreed with the arguments advanced by Munger Tolles.

“The First Amendment's core purpose is to foster a healthy, vibrant political system full of robust discussion and debate,” Justice Kagan wrote. “Nothing in Arizona's anti-corruption statute, the Arizona Clean Elections Act, violates this constitutional protection. To the contrary, the act promotes the values underlying both the First Amendment and our entire Constitution by enhancing the ‘opportunity for free political discussion to the end that government may be responsive to the will of the people.’ ”