Arizona Free Enterprise Club's Freedom Club Pac v. Bennett: Taking the Government's Finger Off the Campaign Finance Trigger

CitationVol. 28 No. 2
Publication year2010

Georgia State University Law Review

Volume 28 j 5

Issue 2 Winter 2012


Arizona Free Enterprise Club's Freedom Club PAC v. Bennett: Taking the Government's Finger off the Campaign Finance Trigger

Robert Steele

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Steele, Robert (2011) 'Arizona Free Enterprise Club's Freedom Club PAC v. Bennett: Taking the Government's Finger off the Campaign Finance Trigger," Georgia State University Law Review: Vol. 28: Iss. 2, Article 5. Available at:

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Robert Steele*


Running as a political outsider, health care executive Rick Scott1 found himself engaged in a heated primary race for Governor of Florida during the summer of 2010.2 His opponent in the primary was Bill Mccollum, the state attorney general and a prominent figure in Florida politics for more than twenty years.3 Whereas Scott chose to privately finance his campaign, Mccollum elected to take part in Florida's system of public campaign financing.4 As June turned to July, campaigning took on a great deal of importance in light of Florida's August primary election. However, this was precisely when Scott drastically reduced spending on his campaign.5 In fact, Scott

J.D. Candidate, 2012, Georgia State University College of Law; Research Editor, Georgia State University Law Review; B.S.B.A. Finance, 2003, University of Central Florida. Thanks to Professor Lynn Hogue and the Georgia State University Law Review editors and members for their insight and suggestions, and to my father, Ted Steele, for being the role model that every son should have.

1. Scott v. Roberts, 612 F.3d 1279, 1282 (11th Cir. 2010) (quoting Scott's description of himself as a "health care executive and businessman" and a "conservative outsider"). Rick Scott later won the election for Governor of Florida. Aaron Deslatte et al., GOP Upstart Wins Governor's Race, Orlando Sentinel, Nov. 4, 2010, at A1, available at 2010 WLNR 22051029.

2. See, e.g., Aaron Deslatte, Is GOP Ad War Backfiring?, Orlando Sentinel, July 22, 2010, at B1, available at 2010 WLNR 14604500; William March, McCollum Slips, Goes on Attack, Tampa Trib., June 23, 2010, at 1, available at 2010 WLNR 15696243.

3. Scott, 612 F.3d at 1282 ("Before the voters . . . elected [him] attorney general in 2006, McCollum had served for nearly 20 years as a Member of Congress from Florida. McCollum had also twice campaigned . . . for United States Senator from Florida.").

4. Id. Public campaign financing refers to a voluntary system where candidates receive campaign funds from the public treasury in exchange for agreeing to limit expenditures (i.e. money spent by candidates) and meeting other conditions. See Richard Briffault, Public Funding and Democratic Elections, 148 U. Pa. L. Rev. 563, 566-68 (1999). Public funding exists in states and cities across the country, as well as at the federal level. Id.

5. See Scott, 612 F.3d at 1283.


cut the time purchased for television advertisements by about half from June 25 to July 2 and limited the market saturation of those advertisements.6 Scott then halted all television and radio advertisements from July 3 to July 6.7

The explanation for this seemingly counterintuitive behavior lies in a "trigger provision"8 that was part of Florida's public campaign financing system.9 This trigger provision granted a publicly funded candidate a dollar-for-dollar subsidy for every dollar that a privately funded, nonparticipating candidate spent over a statutorily defined expenditure limit.10 The expenditure limit for the 2010 election cycle was approximately $25 million.11 As Scott approached the $25 million threshold that would trigger the provision, he sued the state of Florida12 and asked for a preliminary injunction to block public funds from being released to his opponents.13 Scott argued that the trigger provision violated his right to free speech under the First and

6. Id.

7. Id. Scott also alleged that he cut the television time he purchased for advertisements by 40% from July 7 to July 13. Id.

8. These provisions, which attach adverse consequences for exceeding threshold expenditure amounts, are referred to in many different ways in the campaign finance lexicon. See Ariz. Free Enter. Club's Freedom Club PAC v. Bennett, 131 S. Ct. 2806, 2813 (2011) (referring to an Arizona campaign finance law that granted funds to candidates based on their opponents' expenditures as a "matching funds" scheme); Scott, 612 F.3d at 1281 (referring to a Florida campaign finance provision triggered by expenditures as an "excess spending subsidy"); Green Party of Conn. v. Garfield, 616 F.3d 213, 218 (2d Cir. 2010), cert. denied sub nom. Green Party of Conn. v. Lenge, 131 S. Ct. 3090 (2011) (mem.) (referring to a Connecticut campaign finance provision that provided a subsidy to participating candidates for excess expenditures by their opponents as a "trigger provision"); N.C. Right to Life Comm. Fund for Indep. Political Expenditures v. Leake, 524 F.3d 427, 433 n.2 (4th Cir. 2008) (stating that a recent amendment to a North Carolina statute containing a trigger provision replaced the term "matching funds" with "rescue funds"). For consistency and to avoid confusion, "trigger provision" will be used throughout this Comment to refer to a provision that is triggered, in whole or in part, by campaign expenditures.

9. Florida Election Campaign Financing Act, Fla. Stat. §§ 106.30-.36 (2010).

10. Id. § 106.355. The maximum subsidy that could be paid to a participating candidate was twice the amount of the expenditure limit. Id.

11. The expenditure limit was calculated by multiplying $2 by the number of registered voters in Florida. Id. § 106.34(1)(a). For 2010, the exact limit was $24,901,170. Scott, 612 F.3d at 1283.

12. Scott, 612 F.3d at 1281-82.

13. In addition to Scott and McCollum, Mike McCallister was also running for the Republican gubernatorial nomination in 2010. Id. at 1282. McCallister, however, was described as a "nominal candidate." Id.


Fourteenth Amendments14 because it forced him to curtail his campaign expenditures in order to give his opponents a "competitive advantage and in turn permit[] them to counteract and diminish [his] campaign speech."15 After the lawsuit was filed, the McCollum campaign released a statement saying: "Now that [Rick Scott] is failing to win over voters, despite the millions he is personally hemorrhaging into his campaign . . . he wants to change the rules of the game."16 In response, Scott's campaign shot back: "Only a career politician like Bill McCollum would employ a risky strategy to spend all his money and then demand that taxpayers bail him out when his failing campaign is broke and needs more money . . . ."17

A serious legal question lurks behind this political rhetoric: Are trigger provisions in campaign finance laws violative of a privately funded candidate's First Amendment right to free speech? In Arizona Free Enterprise Club's Free Enterprise PAC v. Bennett, the United States Supreme Court analyzed a similar trigger provision in an Arizona campaign finance law and answered this question in the affirmative.18 In addition to curing a jurisdictional split that had developed around trigger provisions, the Court's holding will also have ramifications that reach many current and future campaign finance laws.

Part I of this Comment begins with Buckley v. Valeo,19 the case that established the Supreme Court's framework for First Amendment challenges to campaign finance laws.20 Next, Part I reviews the challenges to trigger provisions heard by federal courts

14. The First Amendment states, in part, "Congress shall make no law . . . abridging the freedom of speech . . . ." U.S. Const. amend. I. The Due Process Clause of the Fourteenth Amendment, U.S. Const. amend. XIV, § 1, extends this bar on the abridgement of free speech to the states. E.g., First Nat'l Bank of Bos. v. Bellotti, 435 U.S. 765, 779-80 (1978). For consistency, all further discussion in this Comment will reference the First Amendment only.

15. Scott, 612 F.3d at 1281, 1284.

16. Kevin Derby, Low on Cash, Bill McCollum Battles Rick Scott's Challenge to Campaign Finance Law, Sunshine St. News (July 13, 2010, 4:05 AM),

17. Id.

18. Ariz. Free Enter. Club's Freedom Club PAC v. Bennett, 131 S. Ct. 2806 (2011).

19. Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam).

20. See discussion infra Part I.A.


before Davis v. FEC,21 which was the first decision by the Supreme Court to directly address the provisions.22 Part I concludes with a discussion of Davis and of the post-Davis circuit split.23 Part II analyzes the majority and dissenting opinions of the Supreme Court in the Arizona Free Enterprise case that cured the circuit split by finding trigger provisions unconstitutional.24 Finally, Part III suggests alternative ways that states can implement effective campaign finance regulations without using trigger provisions.25

I. Challenges to Campaign Finance Laws: From FECA to Trigger Provisions

A. Buckley v. Valeo and the Supreme Court's Campaign Finance Framework

The seminal decision in the Supreme Court's campaign finance jurisprudence came in Buckley v. Valeo26 Decided in 1976, Buckley dealt with several constitutional...

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