First Amendment Center
Court seems to frown on Ariz. campaign regulation 
By Tony Mauro
March 29, 2011

WASHINGTON — The Supreme Court seemed ready yesterday to continue its work of dismantling campaign-finance laws in the name of the First Amendment, this time targeting an Arizona public-financing law that helps candidates who face rich opponents.

The Citizens Clean Election Act, passed in an Arizona ballot initiative in 1998 after a series of political scandals, gives participating candidates a lump-sum amount of public funds to run their campaigns in exchange for agreeing not to raise private funds. At issue in the case argued yesterday was a provision of the law that gives participating candidates additional public funds if they are outspent by an opponent who is not taking public funds but spends more in private donations and independent expenditures than the lump sum.

The 9th U.S. Circuit Court of Appeals ruled that this feature of the law was a valid way of fighting campaign corruption. But at the Supreme Court, it was portrayed as a form of government meddling that manipulates political speech at the core of the First Amendment. The Supreme Court case is Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, consolidated with McComish v. Bennett.

The main objection to the provision is that it causes non-participating candidates to restrict their own speech and spending so as not to trigger the additional public funding for the participating candidate. That might seem like an indirect effect, but it was depicted by the lawyer opposing it as a form of government coercion and taking sides.

“What this case is about is whether the government can turn my act of speaking into the vehicle by which my political opponents benefit with direct government subsidies,” said William Maurer, a Seattle attorney. “The law provides direct government subsidies, based on my act of speaking, to my political opponents.”

Maurer stressed that he was not challenging public-financing laws in general, but was targeting only the feature of the Arizona law that was aimed at “leveling the playing field” between participating and non-participating candidates. In Davis v. Federal Election Commission, involving a similar provision in federal law, the Court in 2008 said government should not be in the “ominous” business of leveling opportunities for candidates. Chief Justice John Roberts Jr. said he had checked the website of the Arizona commission that enforces the law yesterday morning, and it said the law was passed to “level the playing field.” He added, “Why isn’t that clear evidence that it’s unconstitutional?”

Justice Elena Kagan emerged as possibly the strongest defender of the law, suggesting that the law results in more speech, not less. Justice Sonia Sotomayor also seemed dubious that the provision created any significant burden on non-participating candidates. With an air of resignation, Justice Stephen Breyer at one point said campaign-finance laws were suffering “death by a thousand cuts.”

Bradley Phillips, who defended the Arizona law, picked up on Kagan’s point that “public funding of elections results in more speech and more electoral competition and directly furthers the government’s compelling interest in combatting real and apparent corruption in politics.”

But Roberts objected, asserting that the effect of the Arizona provision on independent donors may be “to say, ‘I’m not going to spend the money,’ and so the other candidates don’t get the money and you have less speech.”

The same five-justice majority that struck down limits on corporate expenditures in the McCain-Feingold law in last year’s case Citizens United v. Federal Election Commission seemed ready to view the Arizona law as unconstitutional: Roberts, Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito Jr.

As usual, Kennedy may be the swing vote, but yesterday he expressed enough doubts about the law that many came away convinced he would vote against the Arizona statute.

Doug Kendall of the Constitutional Accountability Center, which supports the law, said afterward, “Today, the same bloc of five justices who struck down big parts of the McCain-Feingold campaign-finance law last year in Citizens United, appeared inclined to similarly gut an effort by Arizona to expand speech while combating the worst public corruption scandal in the state’s history.”