In the decade before Arizona voters passed a 1998 law giving state candidates public campaign financing, they’d seen one governor impeached and another resign after being convicted of fraud. At one point, nearly 10 percent of the state Legislature was under indictment following a corruption sting related to gambling proposals.
The new law provided a trigger that allowed state matching funds for candidates whose opponents raise more than a specified amount of money from private sources or get substantial help from outside groups. In 2008, pro-business groups including the Arizona Free Enterprise Club challenged it in federal court, arguing the law hinders the speech of big campaign donors and impedes the exercise of their First Amendment rights.
Enter Bradley Phillips, a Los Angeles lawyer for Munger, Tolles & Olson who helped defend the Bipartisan Campaign Reform Act, better known as McCain-Feingold, before the U.S. Supreme Court in McConnell v. Federal Election Commission in 2003. Phillips, 57, has been involved in campaign-finance reform since the 1980s and once was chairman of California Common Cause. He saw a law that was effective and worth defending pro bono. Arizona’s attorney general was also defending the law, but its supporters felt they should have their own counsel in order to ensure a robust defense.
“One of the aims of the Arizona law was to ensure that candidates who weren’t going to get support from wealthy special interests could run,” Phillips said. “We always knew this was somewhat of an uphill battle.”
The first hurdle for Phillips was substantial enough — the 2007 Supreme Court ruling that struck down a portion of the McCain-Feingold law known as “the Millionaires’ Amendment,” which allowed higher contribution limits for candidates facing wealthy, self-funded opponents. U.S. District Judge Roslyn Silver cited the case, Davis v. Federal Election Commission, in ruling the Arizona law violated the First Amendment.
Silver’s ruling, on Jan. 20, 2010, came one day before the Supreme Court would issue its opinion in Citizens United v. Federal Election Commission, overturning decades of precedent governing campaign financing and freeing companies and unions from limits on spending to promote or oppose a candidate.
Undeterred, Phillips and his co-counsel at the Brennan Center for Justice appealed to the U.S. Court of Appeals for the 9th Circuit. There, a three-judge panel unanimously upheld the public-financing law. That set the stage for a showdown at the Supreme Court.
In his first oral argument before the justices, Phillips faced skeptical questioning from Chief Justice John Roberts Jr., who interrupted his opening statement to question his assertion that the law would promote political speech. Roberts argued that by granting matching funds to their opponents, it might actually discourage wealthy individuals from spending on their campaigns and thus diminish speech. Phillips responded that statistical data showed just the opposite outcome.
Unconvinced, Roberts in a 5-4 opinion struck down the Arizona law in June, with the same five justices in the majority as in Citizens’ United. “Burdening the speech of some — here privately financed candidates and independent expenditure groups — to increase the speech of others is a concept ‘wholly foreign to the First Amendment,’ ” he wrote.
Justice Elena Kagan wrote a forceful dissent. “Less corruption, more speech,” she wrote. “Robust campaigns leading to the election of representatives not beholden to the few, but accountable to the many. The people of Arizona might have expected a decent respect for those objectives. Today, they do not get it.”
Munger Tolles lawyers spent nearly 5,000 hours on the case, an expenditure that Phillips insisted was not in vain. “In this instance, I think our devotion of resources to the case clearly made a big difference to the defense,” he said.
Recruiting assistance within the firm was not difficult, he said. It enabled younger lawyers to take significant responsibility — Grant Davis-Denny, then an associate, argued the summary judgment motions in U.S. district court.
Unsatisfying as it is to lose, Phillips puts a brave face on the setback, the first Supreme Court campaign-finance decision since Citizens United. “I think it’s unfortunate for the electoral process in this country that the court doesn’t understand the influence of money on campaigns,” he said. “But I’m not discouraged to the point where I’m going to give up.”
Jason McLure is a freelance reporter in New Hampshire.