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In a 5-4 decision today, the Supreme Court struck down Arizona's clean elections law, placing similar state and local laws in severe constitutional jeopardy.

Arizona's law allowed qualified candidates to choose to forego private fundraising and instead receive an initial grant and supplemental "fair fight" matching funds from the state to have an opportunity to campaign and get the message out depending on what the opposition was spending.  The challenge was raised by past and future Arizona candidates complaining that the matching funds provision severely burdened their exercise of protected political speech by punishing them for making, receiving, or spending campaign contributions.

The Court's decision today was largely built off its decision striking down the "Millionaire's Amendment" three years ago.  The Chief Justice writes for the five you'd expect, saying that you can't trigger funding to one candidate based on spending on behalf of a rival:

The State argues that the matching funds provision actually results in more speech by “increas[ing] debate about issues of public concern” in Arizona elections and “promot[ing] the free and open debate that the First Amendment was intended to foster.” In the State’s view, this promotion of First Amendment ideals offsets any burden the law might impose on some speakers.

Not so. Any increase in speech resulting from the Arizona law is of one kind and one kind only—that of publicly financed candidates. The burden imposed on privately financed candidates and independent expenditure groups reduces their speech; “restriction[s] on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression.” Thus, even if the matching funds provision did result in more speech by publicly financed candidates and more speech in general, it would do so at the expense of impermissibly burdening (and thus reducing) the speech of privately financed candidates and independent expenditure groups. This sort of “beggar thy neighbor” approach to free speech—“restrict[ing] the speech of some elements of our society in order to enhance the relative voice of others”—is “wholly foreign to the First Amendment ."

We have rejected government efforts to increase the speech of some at the expense of others outside the campaign finance context. In Miami Herald Publishing Co. v. Tornillo, we held unconstitutional a Florida law that required any newspaper assailing a political candidate’s character to allow that candidate to print a reply. We have explained that while the statute in that case “purported to advance free discussion, … its effect was to deter newspapers from speaking out in the first instance” because it “penalized the newspaper’s own expression.” Such a penalty, we concluded, could not survive First Amendment scrutiny. The Arizona law imposes a similar penalty: The State grants funds to publicly financed candidates as a direct result of the speech of privately financed candidates and independent expenditure groups. The argument that this sort of burden promotes free and robust discussion is no more persuasive here than it was in Tornillo .

And they look at Arizona practice:
The record contains examples of specific candidates curtailing fundraising efforts, and actively discouraging supportive independent expenditures, to avoid triggering matching funds. The record also includes examples of independent expenditure groups deciding not to speak in opposition to a candidate, or in s,upport of a candidate, to avoid triggering matching funds. In addition, Dr. David Primo, an expert involved in the case, “found that privately financed candidates facing the prospect of triggering matching funds changed the timing of their fundraising activities, the timing of their expenditures, and, thus, their overall campaign strategy.”

The State contends that if the matching funds provision truly burdened the speech of privately financed candidates and independent expenditure groups, spending on behalf of privately financed candidates would cluster just below the triggering level, but no such phenomenon has been observed. That should come as no surprise. The hypothesis presupposes a privately funded candidate who would spend his own money just up to the matching funds threshold, when he could have simply taken matching funds in the first place.

Furthermore, the Arizona law takes into account all manner of uncoordinated political activity in awarding matching funds. If a privately funded candidate wanted to hover just below the triggering level, he would have to make guesses about how much he will receive in the form of contributions and supportive independent expenditures. He might well guess wrong.

And "leveling the playing field" is not a sufficient constitutional interest.
 “Leveling the playing field” can sound like a good thing. But in a democracy, campaigning for office is not a game. It is a critically important form of speech. The First Amendment embodies our choice as a Nation that, when it comes to such speech, the guiding principle is freedom—the “unfettered interchange of ideas”—not whatever the State may view as fair.
Nor does is a sufficient response to alleged corruption, and independent expenditures can't corrupt, they maintain (see: Citizens United).

So let's go to the dissent, penned by Justice Kagan, and it's a good one:

At every turn, the majority tries to convey the impression that Arizona’s matching fund statute is of a piece with laws prohibiting electoral speech. The majority invokes the language of “limits,” “bar[s],” and “restraints.” It equates the law to a “restrictio[n] on the amount of money a person or group can spend on political communication during a campaign.” It insists that the statute “restrict[s] the speech of some elements of our society” to enhance the speech of others. And it concludes by reminding us that the point of the First Amendment is to protect “against unjustified government restrictions on speech.”

There is just one problem. Arizona’s matching funds provision does not restrict, but instead subsidizes, speech. The law “impose[s] no ceiling on [speech] and do[es] not prevent anyone from speaking.” Citizens United v. Federal Election Comm’n , 558 U. S. _, _ (2010) (slip op., at 51) The statute does not tell candidates or their supporters how much money they can spend to convey their message, when they can spend it, or what they can spend it on. Rather, the Arizona law, like the public financing statute in Buckley , provides funding for political speech, thus “facilitat[ing] communication by candidates with the electorate.” By enabling participating candidates to respond to their opponents’ expression, the statute expands public debate, in adherence to “our tradition that more speech, not less, is the governing rule.

And now I need to excerpt at length, because this is Justice Kagan's first great opinion.  Enjoy:
This suit, in fact, may merit less attention than any challenge to a speech subsidy ever seen in this Court. In the usual First Amendment subsidy case, a person complains that the government declined to finance his speech, while bankrolling someone else’s; we must then decide whether the government differentiated between these speakers on a prohibited basis—because it preferred one speaker’s ideas to another’s. But the candidates bringing this challenge do not make that claim—because they were never denied a subsidy. Arizona, remember, offers to support any person running for state office. Petitioners here refused that assistance. 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.

Indeed, what petitioners demand is essentially a right to quash others’ speech through the prohibition of a (universally available) subsidy program. Petitioners are able to convey their ideas without public financing—and they would prefer the field to themselves, so that they can speak free from response. To attain that goal, they ask this Court to prevent Arizona from funding electoral speech—even though that assistance is offered to every state candidate, on the same (entirely unobjectionable) basis. And this Court gladly obliges.

If an ordinary citizen, without the hindrance of a law degree, thought this result an upending of First Amendment values, he would be correct. That Amendment protects no person’s, nor any candidate’s, “right to be free from vigorous debate.” Indeed, the Amendment exists so that this de-bate can occur—robust, forceful, and contested. It is the theory of the Free Speech Clause that “falsehood and fallacies” are exposed through “discussion,” “education,” and “more speech.”  Or once again from Citizens United: “[M]ore speech, not less, is the governing rule.”  And this is no place more true than in elections, where voters’ ability to choose the best representatives depends on debate—on charge and countercharge, call and response. So to invalidate a statute that restricts no one’s speech and discriminates against no idea—that only provides more voices, wider discussion, and greater competition in elections—is to undermine, rather than to enforce, the First Amendment.

[There's a lot of great doctrinal stuff here which space reasons compel me to skip over.]  Moreover, Justice Kagan argues, this program was in furtherance of a compelling governmental interest:
Our campaign finance precedents leave no doubt: Preventing corruption or the appearance of corruption is a compelling government interest. And so too, these precedents are clear: Public financing of elections serves this interest. As Buckley recognized, and as I earlier described, public financing “reduce[s] the deleterious influence of large contributions on our political process.” When private contributions fuel the political system, candidates may make corrupt bargains to gain the money needed to win election. And voters, seeing the dependence of candidates on large contributors (or on bundlers of smaller contributions), may lose faith that their representatives will serve the public’s interest. Public financing addresses these dangers by minimizing the importance of private donors in elections. Even the majority appears to agree with this premise. (“We have said that … ‘public financing as a means of eliminating the improper influence of large private contributions furthers a significant governmental interest’ ”).

This compelling interest appears on the very face of Arizona’s public financing statute. Start with the title: The Citizens Clean Elections Act. Then proceed to the statute’s formal findings. The public financing program, the findings state, was “inten[ded] to create a clean elections system that will improve the integrity of Arizona state government by diminishing the influence of special-interest money.” That measure was needed because the prior system of private fundraising had “[u]ndermine[d] public confidence in the integrity of public officials;” allowed those officials “to accept large campaign contributions from private interests over which they [had] governmental jurisdiction;” favored “a small number of wealthy special interests” over “the vast majority of Arizona citizens;” and “[c]os[t] average taxpayers millions of dollars in the form of subsidies and special privileges for campaign contributors.” The State, appearing before us, has reiterated its important anti-corruption interest. The Clean Elections Act, the State avers, “deters quid pro quo corruption and the appearance of corruption by providing Arizona candidates with an option to run for office without depending on outside contributions.” And so Arizona, like many state and local governments, has implemented public financing on the theory (which this Court has previously approved, see supra , at 5), that the way to reduce political corruption is to diminish the role of private donors in campaigns.

And that interest justifies the matching funds provision at issue because it is a critical facet of Arizona’s public financing program. The provision is no more than a disbursement mechanism; but it is also the thing that makes the whole Clean Elections Act work.

Which leads to the Big Finish:
This case arose because Arizonans wanted their government to work on behalf of all the State’s people. On the heels of a political scandal involving the near-routine purchase of legislators’ votes, Arizonans passed a law de-signed to sever political candidates’ dependence on large contributors. They wished, as many of their fellow Americans wish, to stop corrupt dealing—to ensure that their representatives serve the public, and not just the wealthy donors who helped put them in office. The legislation that Arizona’s voters enacted was the product of deep thought and care. It put into effect a public financing system that attracted large numbers of candidates at a sustainable cost to the State’s taxpayers. The system discriminated against no ideas and prevented no speech. Indeed, by increasing electoral competition and enabling a wide range of candidates to express their views, the system “further[ed] … First Amendment values.” Less corruption, more speech. Robust campaigns leading to the election of representatives not beholden to the few, but accountable to the many. The people of Arizona might have expected a decent respect for those objectives.

     Today, they do not get it. The Court invalidates Arizonans’ efforts to ensure that in their State, “ ‘[t]he people … possess the absolute sovereignty.’ ” Id. , at 274 (quoting James Madison in 4 Elliot’s Debates on the Federal Constitution 569–570 (1876)). No precedent compels the Court to take this step; to the contrary, today’s decision is in tension with broad swaths of our First Amendment doctrine. No fundamental principle of our Constitution backs the Court’s ruling; to the contrary, it is the law struck down today that fostered both the vigorous competition of ideas and its ultimate object—a government responsive to the will of the people. Arizonans deserve better. Like citizens across this country, Arizonans deserve a government that represents and serves them all. And no less, Arizonans deserve the chance to reform their electoral system so as to attain that most American of goals.

 Truly, democracy is not a game. I respectfully dissent.

For what it's worth, the Brennan Center notes that public financing is by no means dead:
"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."

Rick Hasen adds:
Campaign finance laws have now gone 0 for 5 in the Roberts Court. Monday’s Supreme Court decision striking down the matching funds portion of Arizona’s voluntary public financing law—which provided extra public financing for candidates facing free-spending opponents or major outside spending—was no surprise....

[However], the Court did not level a death blow to public financing laws. Instead, it said that the decision of cities, states, or Congress enact public financing is “not our business.” The problem with Arizona’s law was not that it gave public financing for elections to candidates, but that it pegged the amount of financing to the political spending of opponents or independent groups opposing the candidate. But lump sum payments should be okay.

The big question left open is the fate of public financing programs such as New York City’s, which give extra matching funds to participating candidates who collect small donations. This program doesn’t directly violate the rule in today’s Arizona case, because the amount received is not triggered by opponent spending. But the question will be whether the motive for such programs is to level the playing field. Under the Roberts Court’s view of the First Amendment, such an interest remains verboten, even if, as Justice Kagan points out, the law also is justified on anticorruption grounds. Without something like additional matching funds, it is hard to see how governments will enact public financing programs that are both constitutional and attractive enough to candidates.

To be sure, campaign finance proponents still lost. The Roberts Court remains hostile to the need to control money in politics. But we may not be seeing the full end of campaign finance law, at least not yet, and Justice Kagan has shown that the other side won’t go down without a fight.

See also Seneca Doane's reclisted diary.

Originally posted to Daily Kos on Mon Jun 27, 2011 at 01:30 PM PDT.

Also republished by Discussing The Law: TalkLeft's View On Law and Politics.

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