Yesterday the Supreme Court decided two campaign finance cases consolidated under Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett. Writing for a narrow but familiar 5-4 majority—which included Justices Scalia, Kennedy, Thomas, and Alito—Chief Justice John Roberts overruled the Ninth Circuit and struck down Arizona’s Citizens Clean Elections Act. The law, passed by referendum, created a public financing system for state campaigns and used a trigger provision in hopes of making the system more cost efficient. Candidates that opted for public financing were given $1 million with which to campaign. If a candidate opted into public financing, that candidate was eligible for additional funds if his or her opponent spent in excess of $1 million dollars. Where independent groups spent to attack the publicly financed candidate, or advocate for the privately financed one, those expenditures qualified against the $1 million threshold. Additional funds were provided by matching, dollar for dollar, funds spent in excess of the threshold. Support was capped by statute.

To reach today’s result, the Court relied on Davis v. FEC. Davis was decided in 2008 and in it the Court struck a provision of the Bipartisan Campaign Reform Act that allowed candidates opposing an individual who spent $350,000 to raise three times the statutory maximum prescribed for individual donors. Davis turned on potential chilling effects and Justice Roberts relied on that same logic in finding Arizona’s law an unconstitutional burden on political speech. Functionally, he reasoned, trigger provisions force a privately financed candidate to fundraise for a publicly financed one. The majority feared that the result of this system would be less speech.

The Court rejected two distinct rationales in striking the law. First, it dismissed an equalizing rationale as insufficiently compelling to justify the law’s burden on speech. Second, it dismissed an anti-corruption rationale predicated on two arguments: that public financing was necessary to prevent special interests from capturing candidates, and that public financing was not sustainable absent a cost-saving trigger provision. With regard to the anti-corruption argument, the Court’s objection was to the latter premise, regarding sustainability. Justice Roberts did “not . . . call into question the wisdom of public financing.” In fact, while those public financing laws that rely on triggering provisions may be in some jeopardy after Bennett, the Majority pointed specifically to its 1976 holding in Buckley v. Valeo in emphasizing the validity of public financing. Quoting Buckley, Justice Roberts said, “’Governments may engage in public financing of campaigns’ . . .” Going forward, even those systems that rely on triggering provisions may survive where their form is distinct from the Arizona system invalidated this morning. In Maine, for example, a triggering provision accounts for independent expenditures by entities supporting the publicly financed candidate and opposing the privately financed one. As a result, if independent expenditures benefit the publicly financed candidate in the aggregate, the likelihood of that candidate receiving matching funds is diminished.

Justice Kagan wrote a forceful dissent from the Majority’s opinion. In it, she asserts that Arizona’s system generated more speech and advanced a compelling state interest – mitigating corruption. Justice Kagan described the triggering provision as a semantic adjustment to the system approved in Buckley. The triggering provision, in her view, was an attempt to spare taxpayers expense by allowing candidates to run a viable campaign without providing excess funds.

The dissenters emphasized that the Arizona law did not discriminate on the basis of viewpoint, nor chill speech. Rather than a burden, the Citizen’s Clean Election Act was a subsidy. That the Act placed no ceiling on speech ensured that political debate would remain robust. Like the Majority, the dissenters cite Whitney v. California for the proposition that more speech ensures that “’falsehood and fallacy’ are exposed.” In fact, both the Majority and dissent also turn to Citizens United v. FEC in asserting that “’more speech, not less, is the governing rule.” Justice Kagan, however, noted that in Buckley, public financing was not viewed as a burden at all and so did not trigger strict scrutiny.

Justice Kagan opened her dissent by asserting that the Court was wrong to dismiss the corruption rationale for Arizona’s law. She closes on that point as well. CRCL invites commenters to discuss the tension between the Majority and dissent, and dissect the degree to which public financing can address the threat of corruption in our elections.

Disclosure: This article’s author is currently interning at the Campaign Legal Center, a non-partisan reform group located in Washington D.C. The views and descriptions articulated above are the author’s own, and should not be associated with the Campaign Legal Center.

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1 Comment

  1. D Ho says:

    If “more speech, not less, is the governing rule,” how can states enforce ballot access laws that in effect limit the number of candidates in elections?

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