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Contents : Case: 10-15165 02/01/2010 Page: 1 of 7 DktEntry: 7215926 FILED UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT FEB 01 2010 MOLLY C. DWYER CLERK U .S. C O U R T OF APPE ALS JOHN McCOMISH et al. Plaintiffs - Appellees and DEAN MARTIN et al. Nos. 10-15165 10-15166 D.C. No. 2:08-cv-01550-ROS District of Arizona Phoenix ORDER Plaintiff-intervenors Appellees v. KEN BENNETT in his official capacity as Secretary of State of the State of Arizona et al. Defendants - Appellants and CLEAN ELECTIONS INSTITUTE INC. Defendant-intervenor Appellant. Before: SILVERMAN PAEZ and BEA Circuit Judges. LN/MOATT Case: 10-15165 02/01/2010 Page: 2 of 7 DktEntry: 7215926 The stay issued by the district court on January 20 2010 is extended pending further action by the panel assigned to hear the merits of these appeals. See California Pharmacists Ass'n v. Maxwell-Jolly 563 F.3d 847 850 (9th Cir. 2009). These consolidated appeals are expedited. The briefing schedule is reset as follows. The opening briefs and excerpts of record are due February 9 2010 the answering briefs are due February 16 2010 and the optional reply briefs are due within 3 days after service of the last-served answering brief. All parties on a side are encouraged to join in a single brief to the greatest extent practicable. This case shall be heard during the week of April 12-16 2010 in San Francisco California. BEA Circuit Judge dissenting. I dissent. I agree with the district court's order of January 20 2010 that this case is determined by Davis v. Fed. Elec. Com'n U.S. 128 S. Ct. 2759 (2008) because state intervention in the funding of campaign contributions in a manner to benefit candidates when their opponents spend their own money on speech imposes a substantial burden on the exercise of the free speech of the candidate who spends his money. In Davis if Davis spent more than $350 000 of his own money in his campaign the contribution limitations placed on how much 2 LN/MOATT 10-15165 Case: 10-15165 02/01/2010 Page: 3 of 7 DktEntry: 7215926 others could contribute to his opponents were lifted but not for contributions made by others to Davis. Id . at 2766 67. Quite naturally this was found to be a disincentive to Davis spending money on his own campaign lest the expenditure serve to give his opponents an advantage not open to him. Such a disincentive was found to impose a "substantial burden" on Davis' campaign speech which had to be justified under the "strict scrutiny" test. Id . at 2771 73. The primary justification for limiting campaign contributions is to prevent people from giving money to buy influence from politicians. This consideration however is not present when a candidate finances his own campaign. Buckley v. Valeo 424 U.S. 1 23 35 38 46 47 and n.53 (1976) (per curiam). In Buckley the Court found a limit on how much money a candidate could spend on his own campaign was not justified by " t he primary governmental interest" proffered in its defense i.e. "the prevention of actual and apparent corruption of the political process." Id. at 53. The Court expressly rejected the argument advanced here that the expenditure cap is justified on the ground that it serves an "ancillary interest in equalizing the relative financial resources of candidates competing for elective office." Id. at 54 (holding the interest in a level playing field was "clearly not sufficient to justify the . . . infringement of fundamental First Amendment rights."). LN/MOATT 3 10-15165 Case: 10-15165 02/01/2010 Page: 4 of 7 DktEntry: 7215926 Similarly here any expenditures by Plaintiffs in the primary are matched by funds from the State of Arizona given to the Plaintiffs' opponents. Plaintiffs know that if they buy a television advertisement at a bargain rate now for June broadcasting or hire a consultant who might go to the other side that expenditure will result in "matching funds" going to the candidates they are trying to beat in the July primaries. Strategically it makes no more sense for Plaintiffs to spend money now than for a poker player to make a bet if he knows the house is going to match his bet for his opponent. But I disagree with Judge Silver and with the majority of this panel that Defendant-Appellants have made a "strong showing" of a probability of success on appeal which an applicant for a stay pending appeal is required to prove. Nken v. Holder U.S. 129 S. Ct. 1749 1761 (2009). Just the opposite. It is the Appellee-Plaintiffs who on the basis of Davis and Buckley have made a strong showing of the probability of success. Further I disagree with Judge Silver and with the majority of this panel that Defendants have shown the probability of "irreparable injury" to themselves should the stay not be granted while Plaintiffs have not shown any injury in the immediate future. LN/MOATT 4 10-15165 Case: 10-15165 02/01/2010 Page: 5 of 7 DktEntry: 7215926 That the "entire election landscape" would be changed by effecting the preliminary injunction does not state a particularized harm to any of the Defendants. That the Defendants as "participating" (state-subsidized) candidates would have to change their fund-raising strategies--perhaps actually to do some fund-raising--does state some direct effect on them. But the "harm" claimed by fund-raising is simply the loss of state subsidies they would otherwise have if they did not raise these funds. That "harm" is the mirror effect of the harm caused to the Plaintiffs by staying the district court's order. That is once the stay is in effect the Plaintiffs cannot expend money for campaign speech from now until the determination of the appeal--perhaps through the primary campaign--without causing money from the State of Arizona to flow to their opponents' coffers in equal measure to the Plaintiffs' expenditures. In accounting terms Plaintiffs' present expenditure of money on free speech in the campaign creates an immediate and equal account receivable for their opponents due from the State of Arizona under the Matching Funds program and to be paid by Arizona for use by the opponents against the Plaintiffs. Between having to hustle for campaign contributions (Defendant-Appellants' harm) and not being able to spend campaign money without helping one's opponents (Plaintiff5 LN/MOATT 10-15165

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