McComish

*513 ORDER

The opinion filed May 21, 2010, slip op. 7319, is amended by deleting footnote 1, slip op. at 7326, and substituting the following footnote in its place:

OPINION

This is a challenge to the constitutionality of the “matching funds” provision of Arizona’s Citizens Clean Elections Act, Ariz.Rev.Stat. § 16-952. The Act establishes a legal framework within which the State of Arizona may provide public financing to candidates for state political offices. A candidate who chooses to participate in the Act’s voluntary public financing scheme relinquishes her or his right to raise private campaign contributions. Instead, she or he receives an initial grant of funds from the state to spend on her or his campaign. The challenged provision ensures that if the participating candidate has an opponent who is not participating in the public financing system and whose campaign expenditures or contributions exceed a threshold set by the Act, she or he receives additional matching funds from the State.

Six past and future candidates for Arizona political office who have, or plan to, run privately-financed campaigns, as well as two political action committees who fund such candidates,…

concurring:

I concur. My reasoning is slightly different. In my view, the historical and policy considerations do not matter to the outcome. Although the complaint asserts both a facial and an as-applied challenge, the district court injunction and the arguments amount to a facial rejection of the statute.

The fact that matters is that the Arizona public financing scheme imposes no limitations whatsoever on a candidate’s speech. Davis v. Federal Election Commission 1 is easily distinguished because there the scheme did indeed impose a limit on the candidate’s speech, at least indirectly. If the candidate spent too much of his own money promoting his political position, then his opponent would benefit from a tripled contribution limit per donor. 2 The Arizona scheme does not manipulate the limits on private donors’ contributions according to whether a competing candidate is participating in the government funding scheme. Had it done so, Davis would apply by analogy.

Other circuits have divided on whether schemes like Arizona’s violate the First Amendment. 3 The Supreme Court cited *528 with apparent approval the Eighth Circuit decision, 4 which may be contrary to the view we…