Tim Keller

Why is the Institute for Justice in Arizona and what do you advocate?

Arizona was chosen for a number of reasons. Number one the Institute for Justice is a libertarian organization and Arizona has strong libertarian leanings among the individuals here so we expected a warm welcome here, which we received. Arizona is also an initiative state so things occur here it’s a cutting edge place to be, for example the Citizen’s Clean Election Act was a unique provision enacted by initiative so we want to be here either to litigate against or in defense of initiatives or other measures.

What is your basic mission?

The Institute for Justice is a nonprofit public interest law firm that litigates to reduce the size and scope of government and to increase individual freedom so that our citizens can live free and responsible lives, free from undue government interference.

Why does the Institute for Justice want to do away with Arizona’s Clean Elections reform?

I think everybody, when they’re talking about this issue, can agree that the First Amendment is designed, as one of it’s core values, to protect political speech but tax payer financed campaigns rather than enhancing freedom of speech actually work to stifle speech in the market place of ideas.

What kind of litigating are you doing here?

One clear example is in our current challenge to the legal system filed on behalf of the American Association of Physicians and Surgeons. That group is a nationwide organization that represents physicians and surgeons and they have in the past engaged in independent expenditures advocating either for or against candidates for political campaigns and the way that the Arizona system works is that any time they make an expenditure on behalf of a candidate, whom for example who they support…if that candidate has a taxpayer-financed opponent, the Arizona citizen’s Clean Elections Act requires a dollar for dollar match of their independent expenditure.  So from my client’s perspective, why would they make an independent expenditure when the Citizen’s Clean Elections Commission is simply going to step up the ATM, or in this case the Arizona’s taxpayer’s money, and give out a cash subsidy to the candidate they oppose in the election. Quite simply the act chills free speech.

Why do you suppose Arizona citizens are so in favor of the Clean Elections reform?

Well, citizens do not support the idea of using taxpayer dollars to fund political campaigns. I think everybody supports the idea of running quote unquote “clean elections,” but one of the dirty little secrets in in the campaign, in the act itself, because citizens don’t support the use of taxpayer’s dollars. Rather than creating a system of voluntary public funding what the act actually has created is a source of compelled support for political campaigns.

How is it compelled?

Well, what proponents of taxpayer-financed elections are essentially saying is that candidates should have a right to taxpayer dollars to fund responsive speech and what we’re saying is that that candidates should compete in the market place of ideas in order to get their ideas out. If they cannot garner the support necessary in order to articulate their message, there’s there may be a good reason why they’re not able to get out there and do that.

What the proponents of taxpayer financed elections hope to do is to equalize the relative financial resources of all individuals so that those who are running campaigns have the same amount of money. The U.S. Supreme Court has already said that creating, or fostering an environment where candidates have the a relative equal amount of resources is not a valid governmental interest that would authorize the government to essentially limit the amount of speech other candidates can engage in.

Do you think that our Founders, people like Thomas Jefferson, would be in favor of deep-pocket special interests having more speech than less moneyed interests?

Well, I can tell you exactly what Thomas Jefferson would have thought about forcing citizens to contribute to electoral campaigns. Thomas Jefferson stated in no uncertain terms that to compel a man to contribute his financial resources to a cause that he or she did not support is both sinful and tyrannical.

It seems you are saying that individual taxpayers in Arizona are footing the bill for this optional public fund, is that really true?

Well, the Arizona Citizen’s Clean Election Act does not draw its funds from the general taxpayer base. They understood that if they tried to use general appropriation dollars it would never be a system that was fully funded. So what they did was enacted a rather coercive measure that would that would require discreet taxpayers to bare the burden of funding the system. In this case that would be those who are charged with civil or criminal fine. Anybody who gets a parking ticket in Arizona has to pay a ten percent surcharge to fund the citizen’s clean elections act.

We represented in a lawsuit challenging this particular provision representative Steve May who had a got a parking ticket outside of a coffee shop coffee shop in Tempe and his point was that now his money is going to fund his opponent clearly political speech with which he disagrees and nobody should have to be forced or put in a position to put their money where their mouth isn’t.

A lot of local citizens we’ve talked with say that Clean Elections has helped free their legislature from being captured by a few wealthy business interests.

Well, the Arizona based Goldwater Institute has studied this particular question in some detail and issued a study and found that the voting behavior of politicians has not changed one iota under clean elections and certainly it has not taken out special interests from the electoral politics.  Instead it’s driven it underground and making it’s made the system less transparent now you’ve got special interests running around collecting the five dollar qualifying contributions on behalf of candidates and it’s totally untraceable so if candidates are still beholden to those interest and they still have a powerful lobby down at the legislature.

So what is the remedy needed, if not an optional public campaign fund?

Increased governmental regulation in elections is never going to solve the problems. There’s always going to be a new way a new creative way to find loopholes to game the system.  If there were going to be a solution it’s simply going to be instantaneous reporting in this day and age with the Internet it would be very easy to create an open and honest transparency. Where is the money going and to whom is it going and that could be created quite simply.

Don’t you think that the electoral system, as it used to be, gave an incumbent an immense and obvious advantage in terms of having more connections to campaign money?

Well, we all understand that the incumbent in any particular election has a some level of advantage over a challenger, but what I think the Clean Elections Act does is in many ways also serves as an “incumbent protection act” because challengers can’t mount the effective campaigns necessary to overcome the incumbents natural advantage in terms of name ID or being able to say other things that he or she has not done in office.

The Arizona Citizen’s Clean Elections Act tilts the playing field sharply in favor of those running publicly financed campaigns. It’s virtually impossible for a traditional privately financed candidate to outspend his or her publicly financed candidate the way the system is set up in terms of matching funds and independent expenditure matching.  If you’re talking about whose going to have the most money in Arizona, it’s always going to be the privately financed candidate, unless you happen to have a complete independently wealthy individual who can just totally outspend his or her opponent. So you create this perverse incentive where only rich individuals can challenge anybody who’s an incumbent.

There’s no doubt that that money is a vehicle individuals use to purchase ads or to run their political campaigns. That’s true of both privately financed candidates and publicly financed candidates, but what I think what you see is in the publicly financed realm what you’re going to have is much more controversy far more mudslinging in elections as candidates are no longer uh, no longer accountable to those who they would go to in order to raise their funds.  Without that that level of accountability I think you’re just going to see dirtier and dirtier campaigns and we’ve already witnessed that here in Arizona we already see that.

We have been meeting citizens from all walks of life here in Arizona, and our sense is that there has definitely been a lot of cynicism about corruption and the role of money in elections and in policymaking.  What do you make of this?

What you’re observing is not necessarily a frustration at money involvement in politics, but rather anger at the way in which lobbyist or politicians go about navigating the extraordinarily complex regulations on campaigns.  It’s a mish-mash, it’s very difficult for candidates to understand what there are permitted to do what they’re not permitted to do. The fact that the U.S. Supreme Court has upheld contribution limits has required them to go out and form political action committees and what you’re observing is frustration at government regulation itself.  If all of the headlines in Arizona, for example when it comes to political controversies, tend to be about violations of this this rule or that rule that the commission itself promulgates…so it’s the system itself that causes controversy. If the system wasn’t there or the regulations, and you had transparency in terms immediate reporting requirements, I suspect you’d see the frustration level go away with citizens.

If we had a system of immediate reporting it would be very clear who and where the influence in money was coming from. As it stands now you have a particular lobbyist who might influence twenty of his friends to donate a thousand dollars to a political action committee and all the sudden it’s not clear where the influence is coming from. So at the end of the day when you start analyzing bills you start investigating you can see this person or that person had influence into a candidate’s election. So if you had immediate reporting you would see where the money is coming from where it’s going to and you would be able to hold candidates easily accountable in in elections.

So then, money does buy influence?

Well, the perception that that money buys influence I think will be disproved as we see the publicly financing campaigns go into effect and you observe that the voting patterns of, you know, individuals in one party or another do not change. They run on a particular platform and they vote that platform and you’re not going to see a quasi-independent legislature that as folks expect.

The Institute for Justice exists to preserve freedom. We file lawsuits that limit the size and scope of government and allow individuals to live govern their lives as responsible members of society.  The government is a necessary evil and if men were angels we wouldn’t need government, but men are far from angels. The state exists to preserve freedom that is its central focus and its central role, so it’s job is not to come in and manage the daily affairs of its citizens but rather to create an environment where freedom will flourish and to hold its citizens accountable when they violate the laws of their country.

So you think the Founders would be fine with giant corporations funding the campaigns of elected officeholders and object to an optional public fund?

As I mentioned, Thomas Jefferson would have objected to using the power of government to coerce individuals to fund political campaigns and even further I suspect he would have object to the proposal of instantaneous transparent reporting. The founders of this country risked their lives their honor their fortunes to rebel against a tyrannical government and the notion that the government could have forced them to report who was funding their rebellion essentially probably would have outraged them to an incredible extent. Free fostering freedom a in this country was absolutely the root of their goals and when the First Amendment was drafted the idea was to a to protect individuals from government intruding into their lives, not to allow government to come in and tell them how and when they can and cannot speak.

I have no doubt that the founders would be firmly on board with the position of the Institute for Justice’s in these matters.  The separation of powers is essential to the proper functioning of a free society and unfortunately one thing we have seen in this country is an unwillingness by the judiciary to strike down laws that violate the Constitution and that infringe on individual rights.

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