The Supreme Court handed down a decision this morning on a campaign finance case out of Arizona. It probably won’t get as much attention as the one striking down a California law that bans the sale of violent video games to minors. But it should because it is yet another example of the incoherence, as Richard Hasen has written, of the Court’s recent jurisprudence in the area of campaign finance law. More importantly, it signals the Court’s continued willingness to allow moneyed interests to tilt the electoral playing field to their advantage.
The Arizona law in question is a system of voluntary public funding for state elections. If a candidate opts into the public funding system, he/she is given a certain amount of money to campaign with and cannot raise any additional money. However, if that candidate’s privately funded opponent or independent expenditure groups opposed to his/her candidacy spend more than the initial allotment of funding he/she received, the candidate may receive funds to match the spending by opposition forces.
A handful of privately funded candidates and two independent groups sued the state of Arizona claiming that the law “unconstitutionally penalized their speech and burdened their ability to fully exercise their First Amendment rights.” You read that correctly. By giving public financed candidates additional money to make their case against wealthy privately funded candidates, the state was infringing on the wealthy candidates’ free speech rights.
By a 5-4 majority, the Supreme Court agreed with the plaintiffs and struck down Arizona’s matching fund provision. This is the same majority who, in the Citizens United case, argued (to quote Justice Kennedy) that “it is our law and our tradition that more speech, not less, is the governing rule.” That decision, as most of you know, opened the floodgates to corporate (and union) spending in elections.
So the principle seems to be the following: When the wealthy want to spend more on campaigns, it’s an infringement on their First Amendment rights not to let them do so; and when the non-wealthy opponents of the wealthy want to spend more on campaigns, it’s an infringement on the First Amendment rights of the wealthy to let them do so. Put another way, more spending equals more speech, but only when it’s the wealthy doing the spending.
If you think that democracy requires competitive elections and that competitive elections, in turn, require at least the pretense of a level playing field, you should be very worried about what this Supreme Court majority has been doing to campaign finance regulation in recent years.