The Supreme Court continued its rollback of campaign finance “reforms” that have seriously infringed our First Amendment rights over the past 35 years. The court, in a 5-4 ruling Monday, struck down as unconstitutional Arizona’s public financing system for state elections.
Chief Justice John Roberts wrote the majority opinion, issued in the final week of the court’s term, sealing the fate of the Arizona Citizens Clean Elections Act.
The Arizona law challenged in Arizona Free Enterprise Club v. Bennett benefited candidates for state office who accept public financing. The law allowed them to receive more taxpayer money in direct response to the campaign activities of privately financed candidates and independent groups.
A candidate got these additional matching funds if his or her initial funding was exceeded by the combined spending of a privately financed opponent and that of independent groups either opposing the candidate or supporting his or her privately financed opponent.
The result? For every dollar spent by privately financed candidates on political speech and political activity above a certain low threshold, their publicly financed opponents received an additional dollar.
The opponents also received a buck for every dollar spent by independent groups. This despite the fact that privately financed candidates have no control over such independent groups, and in some cases may not even welcome their messages.
Chief Justice Roberts concluded that this matching funds provision imposed a substantial burden on the political speech of privately financed candidates. Every dollar that the candidates spent on their own campaigns resulted in more government funding for their opponents, and spending by independent groups had the same effect.
This Arizona law hindered the political speech of independent groups even more than the speech of privately financed candidates. If an independent group opposed a publicly financed candidate, every dollar it spent guaranteed government funds to the very candidates the group opposed—as well as other publicly financed candidates in the race.
Unlike candidates, independent groups aren’t entitled to public funding to offset the political advantage provided by government subsidies.
This problematic system left privately financed candidates with only one option—refrain from speaking. Otherwise they would ensure that their opponents automatically got more funding to disseminate their political speech.
An independent group, Roberts wrote, could “either opt to change its message from one addressing the merits of the candidates to one addressing the merits of an issue, or refrain from speaking altogether.”
In other words, they faced the option of censoring their own speech or not speaking at all. As the court said, the government cannot “increase the speech of some at the expense of others.” And leveling the electoral playing field, the stated objective of the Arizona law, is not a compelling state interest that justifies such restrictions.
This decision follows the logic of Davis v. FEC, a 2008 case in which the Supreme Court threw out the so-called “Millionaire’s Amendment” that also was intended to “level the playing field.”
That provision of the 2002 McCain-Feingold law allowed higher limits on contributions for opponents of candidates who spent more than $350,000 of their own money on a campaign. It was unconstitutional because it forced a candidate “to choose between the First Amendment right to engage in unfettered political speech and subjection to discriminatory fund-raising limitations.”
The Davis and Arizona Free Enterprise Club cases are not isolated phenomena. The Supreme Court has changed its stance and pruned other campaign finance restrictions in recent years in Randall v. Sorrell (2006), Wisconsin Right to Life v. FEC (2007) and Citizens United v. FEC (2010). Of course, this welcome development could be easily reversed if liberal activists gain a majority on the court.
As the dissenting opinion by Justice Elena Kagan demonstrates, the liberal justices could justify virtually any restriction on political speech in the interests of “honest government, working on behalf of all the people.” Their idea of “honest” government apparently gives lawmakers the right to implement government censorship and violate the First Amendment with impunity, as long as they are pure of heart.
As Chief Justice Roberts concluded, citing prior precedent, there is “universal agreement that a major purpose of the First Amendment was to protect the free discussion of governmental affairs, including discussions of candidates.” That agreement, he wrote, reflects our “profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open.”
Because Arizona’s law inhibited such robust and wide-open political debate, it could not stand under our Constitution’s protection of liberty.
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