The Supreme Court, reflecting their continuing unwinding of all campaign finance laws in America, today struck down a decades-old Arizona law that enables public financing for legislative elections. The decision was predictably 5-4, with the court’s conservative wing arguing that the Clean Elections Law, which provides matching funds for challengers who accept public money, “substantially burdens political speech and is not sufficiently justified by a compelling interest to
survive First Amendment scrutiny.” In other words, candidates who don’t have the ability to self-fund are violating the free speech of rich self-funders by taking public money. This is true even though self-funders have the option of taking the money themselves. As Justice Elena Kagan wrote in dissent, “So they are making a novel argument: that Arizona violated their First Amendment rights by disbursing funds to other speakers even though they could have received (but chose to spurn) the same financial assistance. Some people might call that chutzpah.”
But chutzpah has a lot of political capital nowadays, and substantial credence on the high court. So another pillar of campaign finance law, the pillar upon which the dream of public financing rested, appears to have been dropped to the ground. Marge Baker of People for the American Way reacted thusly:
“This decision, based on an upside-down interpretation of the First Amendment, takes away the right of Arizonans not only to ensure a modicum of integrity and fairness in their elections but to promote more political speech. The Court has thus ensured that the wealthiest can continue to pay for outsized political influence and maintain their speech advantages.
“The Roberts Court has once again twisted the Constitution to benefit the wealthy and powerful while leaving ordinary Americans with a diminished voice. Like in Citizens United v. FEC, which prohibited legislatures from limiting corporate spending to influence elections, the Court’s majority has strayed from the text and history of the Constitution in order to prevent citizens from maintaining control over our democracy. The Roberts Court would do well to remember that the Constitution was written to protect democracy for all people, not just the rich and powerful. Today it has ruled not only that the wealthy have a right to spend more but that they have a right that everyone else spend less.”
This all was prefigured by Citizens United, in fact. Once you establish the fact that money equals speech, you can use that fact to dismantle any limits on campaign finance on First Amendment grounds. Really this shouldn’t be very surprising.
However, the Brennan Center for Justice, which argued the case before SCOTUS, believes that, while striking down the Arizona law was regrettable, “Public financing remains Constitutionally strong”:
The Court recognized public funding can ‘further significant governmental interest[s], such as the state interest in preventing corruption.’ These voluntary systems strengthen democracy. The Brennan Center will continue to fight for strong laws.
Of note, such systems can exist and thrive without the kinds of triggers in the Arizona law. The presidential system did not have triggers, and proposed federal public financing laws for Congress do not either.
In addition, innovative reforms such as New York City’s system, which matches small contributions, can give candidates a chance to compete. Today’s ruling does not undercut the effectiveness of such pro-democracy reforms.
Of course, the Supremes have not gotten around to non-triggered public financing systems yet.
You can find more on McComish v. Bennett, the case in question, here.