One of the favorite, and most incredible, tactics of those defending Arizona’s Clean Elections scheme is to close their eyes to evidence that its matching funds provision has deterred the speech of privately funded candidates and independent groups and then assert such evidence doesn’t exist. I pointed this out in an earlier post, and in yesterday’s Supreme Court argument, Bradley Phillips, defending matching funds, predictably tried this line of attack.

Justice Scalia would have none of it:

There was testimony in the, in the district court from individuals who said that they withheld their contributions because of this. It’s – it’s obvious statistically also that many of the expenditures were made late in the game, where perhaps they were not as effective, in order to be unable to trigger the matching funds in time for the opposing candidate to do anything about it. I do not understand how you can say that there is no evidence. I mean, maybe you might say I do not find the evidence persuasive, but don’t tell me there’s no evidence.

Later in the argument, our colleague Bill Maurer pointed to the specific examples of candidates and independent groups declining to do mailings or raise funds or get involved in particular races because matching funds would kick in. You can read about some of those here.

Justice Scalia is referring to the original research done in the case by political scientist David Primo, who found that privately funded candidates—especially in competitive races—would delay speaking until “late in the game” to avoid triggering matching funds to taxpayer-funded opponents. That means less time for candidates to speak and less time for voters to consider the message. The First Amendment does not tolerate such government interference in what ought to be free speech in the time and manner of the candidate’s or group’s own choosing.

Incidentally, Primo’s statistical research is backed up by interviews by political scientist Michael Miller and the GAO. Miller finds that such delay is commonplace among privately funded candidates, and the GAO adds that independent groups act similarly. That’s rather a lot of evidence to deny and makes Clean Elections’ defenders’ tactic look not only like a poor strategic choice, but also downright misleading.