CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 10/7/2023 1

Campaign-Finance Regulations 

for Candidates Opposing Self-Funded Candidates 

McComish v. Brewer 

(Roslyn O. Silver, D. Ariz. 2:08-cv-1550) 

On August 21, 2008, candidates for office in Arizona filed a federal 

complaint challenging a campaign-finance provision that provided 

a benefit to candidates whose challengers exceeded statutory 

thresholds of expenditures. The suit was filed eight weeks after a 

Supreme Court decision invalidating a similar law. Reluctant to disrupt the finances of an ongoing campaign season, the district court 

denied immediate injunctive relief. After full litigation, the district 

court struck down the campaign-finance scheme, and the Supreme 

Court ultimately affirmed the district court’s ruling. 

Subject: Campaign activities. Topics: Campaign finance; laches; 

attorney fees. 

Eight weeks after the Supreme Court’s invalidation on June 26, 2008, of the 

Millionaire Amendment, which increased contribution limits to candidates 

opposing candidates who spent large amounts of their own wealth on the 

campaign,1 six candidates for election to Arizona’s legislature filed a federal 

complaint in the District of Arizona’s Phoenix courthouse, seeking to invalidate the matching-funds provisions of the 1998 Arizona Clean Elections 

Act.2

In Davis v. FEC, the Supreme Court held that the Millionaire Amendment violated the First Amendment because it created negative consequences for spending a candidate’s own money on campaign speech.3

 Arizona’s 

Clean Elections Act provided matching funds to candidates participating in 

public campaign financing when nonparticipating candidates’ expenditures 

exceeded a statutory threshold.4

On August 26, five days after the complaint was filed, Judge Roslyn O. 

Silver ordered the plaintiffs to file their motion for a temporary restraining 

order by 5:00 p.m. that day, and she set a hearing on the motion for two days 

later.5

1. Davis v. FEC, 554 U.S. 724 (2008); see Daniel P. Tokaji, Election Law in a Nutshell 308 

(2013). 

2. Complaint, McComish v. Brewer, No. 2:08-cv-1550 (D. Ariz. Aug. 21, 2008), D.E. 1; 

see Ariz. Rev. Stat. §§ 16-940 to -961; see also Funding System Spurs Lawsuit, Ariz. Republic, 

Aug. 23, 2008, at B1. 

3. Davis, 554 U.S. at 736–44. 

4. §§ 16-941, -952. 

5. Order, McComish, No. 2:08-cv-1550 (D. Ariz. Aug. 21, 2008), D.E. 10; see TemporaryRestraining-Order Motion, id. (Aug. 26, 2008), D.E. 13. 

For this report, Tim Reagan interviewed Judge Silver and her law clerk Mike Newman by 

telephone on September 11, 2012. 
Campaign-Finance Regulations for Candidates Opposing Self-Funded Candidates 

2 Federal Judicial Center 10/7/2023 

At the August 28 hearing, Judge Silver’s first question was why the case 

had been filed so recently.6

 The plaintiffs responded that the statute had not 

applied to the first of them until July 25.7 On August 29, Judge Silver denied 

the temporary restraining order.8 Although the plaintiffs established a constitutional violation, Arizona has a “clear interest in running a smooth and orderly election” and “the length of time Plaintiffs waited to file their [temporary restraining order] also weighs in the balance against the Plaintiffs on the 

public interest determination.”9

After an October 9 hearing,10 Judge Silver denied the plaintiffs a preliminary injunction on October 14.11 On October 17, she explained that again 

“[p]laintiffs have shown a very strong likelihood of success on the merits. 

However, given the extraordinary balance of the harms required in the context of an ongoing election, Plaintiffs have not met their burden in showing 

that they are entitled to a preliminary injunction.”12

A serious difficulty with the plaintiffs’ case was the crafting of a suitable 

remedy.13 Would campaign contributions have to be returned? The plaintiffs 

did not propose to the court a plan for workable relief.14

After full litigation of the plaintiffs’ second amended complaint,15 Judge 

Silver declared, on January 20, 2010, that Arizona’s matching scheme for 

participating candidates opposing nonparticipating candidates was unconstitutional.16 The court of appeals reversed her ruling on May 21.17 The Supreme Court, however, agreed with Judge Silver, on June 27, 2011.18

6. Transcript at 3, McComish, No. 2:08-cv-1550 (D. Ariz. Aug. 28, 2008, filed Sept. 10, 

2008), D.E. 89. 

7. Id. 

8. Order, id. (Aug. 29, 2008), D.E. 30. 

9. Id. at 7–8 

10. Transcript, id. (Oct. 9, 2008, filed Nov. 4, 2008), D.E. 192; Minutes, id. (Oct. 9, 2008), 

D.E. 170. 

11. Order, id. (Oct. 14, 2008), D.E. 181; see Challenge to Clean Elections Is Rejected, Ariz. 

Republic, Oct. 15, 2008, at B1. 

12. Findings of Fact and Conclusions of Law at 18, McComish, No. 2:08-cv-1550 (D. 

Ariz. Oct. 17, 2008), D.E. 185, 2008 WL 4629337. 

13. Interview with Hon. Roslyn O. Silver and her law clerk Mike Newman, Sept. 11, 2012. 

14. Id. 

15. Second Amended Complaint, McComish, No. 2:08-cv-1550 (D. Ariz. May 11, 2009), 

D.E. 260; see also First Amended Complaint, id. (Sept. 4, 2008), D.E. 56. 

16. Opinion, id. (Jan. 20, 2010), D.E. 454, 2010 WL 2292213; see U.S. Judge: End Part of 

Clean Elections, Ariz. Republic, Jan. 21, 2010, at A1. 

17. McComish v. Bennett, 611 F.3d 510 (9th Cir. 2010) (amended opinion); see Arizona 

Funding Law Is Upheld, Ariz. Republic, May 22, 2010, at A1. 

18. Ariz. Free Enterprise Club’s Freedom Club PAC v. Bennett, 564 U.S. 721 (2011); see

McComish v. Bennett, 653 F.3d 1106 (9th Cir. 2011) (affirming summary judgment for the 

plaintiffs); see also Tokaji, supra note 1, at 319–22; Robert Barnes, High Court Strikes Matching Funds in Ariz. Campaign Law, Wash. Post, June 28, 2011, at A4; Adam Liptak, Justices 

Reject Another Campaign Finance Law, N.Y. Times, June 28, 2011, at A15; Matching Funds 

Rejected, Ariz. Republic, June 28, 2011, at A1; Jeffrey Toobin, The Oath 256–60 (2012). 
Campaign-Finance Regulations for Candidates Opposing Self-Funded Candidates 

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The parties stipulated awards totaling $2 million in attorney fees and 

costs.19

19. Order, McComish, No. 2:08-cv-1550 (D. Ariz. Sept. 12, 2011), D.E. 528; Stipulation, 

id. (Sept. 9, 2011), D.E. 526 (intervenors); Order, id. (Aug. 17, 2011) (approving plaintiffs’ 

stipulation), D.E. 519; Stipulation, id. (Sept. 2, 2011), D.E. 521 (plaintiffs).