Former FEC Commissioners Argue Matching Funds Unconstitutionally Limit Campaign Speech

James Madison Center for Free Speech
1 South 6th Street
Terre Haute, IN 47807-3510

Tuesday, January 25, 2011
Contact: James Bopp, Jr.
Phone 812/232-2434; Fax 812/235-3685;

Former FEC Commissioners Argue Matching Funds Unconstitutionally Limit Campaign Speech

Four former Federal Election Commission Chairmen and a former Federal Election Commissioner filed a brief with the United States Supreme Court last Thursday arguing that Arizona’s campaign matching funds scheme violates the First Amendment.

The Arizona Clean Elections Act, passed in 1998, provides taxpayer funding for any Arizona statewide candidates who agree to limit how much money they raise and spend on their campaigns. Under the scheme, Arizona’s gubernatorial candidates receive $638,222.50, plus additional “matching funds” if they are outspent by their opponent and independent groups.

The Commissioners argue that such matching fund schemes are designed to limit spending, tracking the history of presidential campaign funding to show that funds given to candidates are insufficient to run a successful campaign against privately-funded opponents. That Congress has not adequately raised the funding amounts since its adoption in 1971 suggests that its goal is to limit spending–and speech–during presidential campaigns.

This effort to suppress speech is even more strongly evident in matching fund schemes, which also have low spending limits. Because matching funds are triggered by the spending of privately-funded candidates or independent groups, not only are government-funded candidates voluntarily restricted in spending, privately-funded candidates and independent groups are chilled from participating in the political process because their speech gives their opponent financial support. This speech suppressing function of matching funds is in direct conflict with the First Amendment.

“It is one thing to agree not to speak during a campaign,” said James Bopp, Jr.,counsel for the Commissioners, “but the First Amendment expressly prohibits the government from suppressing those who wish to engage in political speech. This makes matching funds patently unconstitutional.”

The consolidated cases before the United States Supreme Court are Arizona Freedom Club PAC v. Bennett and McComish v. Bennett. Copies of the Commissioner’s brief are available in PDF online at the James Madison Center’s website,, under “Litigation and Projects.”

James Bopp, Jr. has a national federal and state election law practice. He is General Counsel for the James Madison Center for Free Speech and former Co-Chairman of the Election Law Subcommittee of the Federalist Society.