In two consolidated cases — Arizona Free Enterprise Club v. Bennett and McComish v. Bennett — a 5-4 Court, led by Chief Justice John Roberts Jr., held that the state’s matching funds scheme violates the First Amendment because it “substantially burdens” political speech not only by privately financed candidates but also by independent expenditure groups.
“Any increase in speech resulting from the Arizona law is of one kind and one kind only — that of publicly financed candidates,” wrote Roberts. Even if the matching funds provision resulted in more speech in general, he added, “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, he said, is completely foreign to the First Amendment.
The majority also found that the state did not have a compelling interest to justify the law. Instead of its stated interest in combating corruption, Roberts found “ample support” for the argument that the provision sought to “level the playing field” in terms of candidate resources. The Court, he said, has repeatedly rejected that argument as a compelling interest.
The decision drew a boldly worded rebuke from Justice Elena Kagan whose dissent was joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor. Reading a portion from the bench, she said the Arizona law subsidizes and so produces more political speech, not less. “Except in a world gone topsy-turvy, additional campaign speech and electoral competition is not a First Amendment injury.”
The high court ruling continues a trend by the Roberts Court of limiting campaign finance reform efforts at both the federal and state levels, with the most notable decision last year in the highly controversial Citizens United v. FEC.
Similar matching funds provisions exist in Florida, Maine, New Jersey, New Mexico, North Carolina, Rhode Island, and Wisconsin, according election law scholars.
Nick Dranias of the Arizona-based Goldwater Institute, lead attorney for the McComish challengers, said the decision “will take down, for sure, similar matching fund schemes in five states. All of the trigger matching fund systems that exist are now dead. The general principle this case will stand for is you cannot release public money to candidates or campaigns in proportion to or triggered by the spending of privately financed candidates.”
However, some campaign reform advocates saw a silver lining in the majority decision. Michael Waldman, executive director of the Brennan Center for Justice, which defended the Arizona law along with pro bono counsel Bradley Phillips of Munger, Tolles & Olson who argued the case, noted, “The Court recognized public funding can `further significant governmental interest[s], such as the state interest in preventing corruption.’”
Public financing systems without matching funds triggers, he explained, “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.”
The Arizona matching funds provision basically worked in the following way: a candidate participating in the public financing system receives a lump sum grant for the primary or general election. That candidate gets matching funds if the lump sum grant is exceeded by his or her privately financed opponent’s contributions plus the value of independent expenditures on behalf of the opponent. The match is nearly a dollar-for-dollar matching grant, but those funds are capped at three times the initial lump sum payment.
The law was the result of a 1998 voter referendum after one of the worst election-related scandals in the state’s history.
William Maurer of the Institute for Justice, who argued the case for the Arizona Free Enterprise Club and the McComish challengers, said in a statement. “This case is a clear reminder to government officials that they may not coerce speakers to limit their own speech. The Court’s decision today, like other recent decisions, makes clear that the First Amendment is not an exception to campaign finance laws; it is the rule.”
The decision on Monday was the fifth defeat for campaign finance reform advocates in the Roberts Court, noted election law scholar Richard Hasen of the University of California-Irvine School of Law on his election law blog. Since 2005, he wrote, the Court, usually by 5-4 votes, has struck down Vermont campaign contribution limits as too low; struck down the federal “millionaire’s amendment” in the so-called McCain-Feingold campaign reform act; restricted limits on corporate campaign spending, and eliminated those limits in its 2010 Citizens United ruling.
Marcia Coyle can be contacted at email@example.com.