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7319
7320 MCCOMISH v. BENNETT
COUNSEL
I. Statutory Background
IV. Analysis
dent expenditures)”). In so citing Day, Davis did not affirm or adopt the
Eighth Circuit’s approach, nor did it overturn sub silento the decisions of
the First and Fourth Circuits. It merely cited Day for what it is — a deci-
sion in which our sister circuit found that a law chilled protected speech
and held that such a burden could not survive strict scrutiny. Our decision
is not controlled by Day, nor are we persuaded by it.
In Day, plaintiffs demonstrated that the Minnesota statute they were
challenging had a “chilling effect” on political speech and that its “mere
enactment . . . ha[d] prevented many if not most potential political expen-
ditures from ever being made.” 34 F.3d at 1360. As discussed infra, Plain-
tiffs have not established the existence of such a chilling effect in the
instant case. Having found that the Minnesota law imposed a substantial
burden on fully protected political speech, the Eighth Circuit proceeded to
apply strict scrutiny. Id. at 1361. The court concluded that the law could
not survive that test because it found that the state’s professed interest sup-
porting the law, that of encouraging participation in the public financing
program, was “not legitimate,” “no matter how compelling in the
abstract,” because it was not based in fact, but was rather “contrived for
purposes of [ ] litigation.” Id. The record there demonstrated that the chal-
lenged provision was “not necessary to encourage candidates’ involve-
ment in public campaign financing, as participation was approaching
100% before the new campaign finance laws were passed.” Id.
Two years after it decided Day, the Eighth Circuit, recognizing the
unusual factual background of that case, declined to extend its reasoning
and upheld other provisions of Minnesota’s campaign finance law under
strict scrutiny. See Rosenstiel v. Rodriguez, 101 F.3d 1544, 1555 (8th Cir.
1996). In the case at bench, because the interest Arizona asserts in support
of the Act is not “contrived for purposes of this litigation,” Day, 34 F.3d
at 1361, even under current Eighth Circuit law “the circumstances sur-
rounding the enactment of the [Act] make Day inapposite.” Rosenstiel,
101 F.3d at 1555. We decline to follow the Eighth Circuit down a road
that even it refused to follow.
MCCOMISH v. BENNETT 7343
was willing to trigger matching funds and spent as much
money as he needed to in order to communicate his message.
Dean Martin claimed his speech was chilled by matching
funds, but could not even recall whether he had triggered
them in the past. Rick Murphy admitted he had never turned
a contribution away, and his political consultant testified that
he never slowed his fundraising. The Freedom Club PAC’s
treasurer testified that he has never been dissuaded from mak-
ing an independent expenditure by the possibility of triggering
matching funds. Arizona Taxpayers’s claim that it declined to
speak in the 2006 primary for fear of triggering matching
funds seems disingenuous in light of the fact that it only had
$52.72 cash on hand. Plaintiffs have not demonstrated that
any chilling effect exists. Their own experiences campaigning
under the Act highlight that it “in no way limits the quantity
of speech one can engage in or the amount of money one can
spend engaging in political speech, nor does it threaten cen-
sure or penalty for such expenditures.” Daggett, 205 F.3d at
464.
The fact is, however, that the Act is aimed at reducing cor-
ruption among participating candidates. The relevant inquiry
thus is whether matching funds bear a substantial relation to
reducing corruption among participating candidates. In
exchange for public funding, participating candidates relin-
quish their right to raise campaign contributions from private
donors. They therefore have both reduced opportunities and
reduced incentives to trade legislative favors for financial
favors. The Supreme Court has held “[i]t cannot be gainsaid
that public financing as a means of eliminating the improper
influence of large private contributions furthers a significant
governmental interest.” Buckley, 424 U.S. at 96.
V. Conclusion
[10] For the reasons set forth above, we conclude that the
matching funds provision of the Act does not violate the First
Amendment. We decline to reach the equal protection claim,
and reverse and remand to the district court for further pro-
ceedings consistent with this opinion.
11
424 U.S. 1, 25-26 (1976) (per curiam); see also Citizens United v.
Fed. Election Comm’n, 130 S.Ct. 876, 901 (2010).