The Court Continues to Move the First Amendment Bar

The Supreme Court recently struck down Arizona's campaign finance scheme as violating the First Amendment (Arizona Free Enterprise Club's Free Enterprise PAC v. Arizona). In so doing, this Court has now exhibited what is unquestionably skepticism for campaign finance laws that burden First Amendment rights.

The previous term, the Court handed down the Citizens United case, reversing decades of prohibitions on corporate participation in the political process. (See Ben Ginsberg's LOS post February 16, 2010). The Court held that federal (and a fortiori state) restrictions on corporate independent expenditures violated the First Amendment. The decision was widely hailed as a major step towards protecting the First Amendment in the political campaign arena – and widely condemned by supporters of campaign finance laws (laws that are supposed to "get money out of politics"). The Court's recent Arizona Free Enterprise Club decision fashioned another major chink in the "reformists" agenda, this time, invalidating a "public-funding" scheme - one of the tools in the "reformists'" tool belt.

A number of States provide public funds to candidates to "level the playing field." The theory is that candidates who are wealthy (or at least favored by wealthy interests), will not have an advantage over their supposed less well-heeled rivals who accept public funds. Money (as the theory goes) will thus have less of a corrupting influence on the political process.

Arizona's recently struck down law involves a couple of steps. First, eligibility for funds requires that candidates collect a required number of $5 contributions, depending upon the office sought, and accept certain campaign restrictions and obligations. Candidates seeking public funding must also agree to expend no more than $500 of personal funds on their race. Candidates then receive a public funds allotment based upon the particular race.

Candidates then become eligible for "matching" or "equalization" funds. Such additional funding is triggered by expenditures by privately funded opponents and/or independent expenditure committees that expend sums in excess of the allotment amount. For each dollar expended by the privately-funded candidate or an independent expenditure supporting the privately-funded candidate, the "public-funded" opponent would receive almost an identical amount of public funds up to two-times the original allotment amount (i.e., potential total public funding equal to the original allotment times three).

The Court (in a 5-4 decision) struck down the law because the "matching" funds provision burdened the political speech of privately-funded candidates and the independent expenditure committees supporting them. The Court opined that the "matching" fund provision provided a significant disincentive for private expenditures above the allotment amount, thus chilling protected speech. Said the Court: "Arizona's program gives money to a candidate in direct response to the campaign speech of an opposing candidate or an independent group. It does this when the opposing candidate has chosen not to accept public financing, and has engaged in political speech above a level set by the State. . . . Arizona's matching funds provisions substantially burdens the speech of privately financed candidates and independent expenditure groups without serving a compelling state interest."

This isn't the language of fine tuning. Like it did in the Citizens United case, the Court struck down the Arizona public financing law in rather broad, definitive terms. It's safe to say that campaign finance laws are now subject to real First Amendment scrutiny, and the Court has moved the First Amendment bar to further protect political speech against "reformist" regulation.