You can't regulate political money without regulating political speech

June 30, 2011 

The fate of Arizona's Clean Elections Act, which the Supreme Court on Monday declared unconstitutional, was foreshadowed March 28, during oral arguments. Lawyers defending the law insisted its purpose was to combat corruption or the appearance thereof. The court has repeatedly said this is the only constitutionally permissible reason for restricting the quantity of political speech. The law's defenders insisted its purpose was not to "level the playing field" by equalizing candidates' resources, which the court has declared an unconstitutional reason for regulating speech. But Chief Justice John Roberts replied: "Well, I checked the Citizens Clean Elections Commission website this morning, and it says that this act was passed to 'level the playing field' when it comes to running for office." Game over.

Given the clarity and frequency with which the court has stressed the unconstitutionality of laws empowering government to equalize candidates' speech by equalizing their resources, Monday's ruling was predictable, but gratifying. Also predictable, but depressing, were four justices (Elena Kagan, Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor) finding no constitutional flaw in a law that did this:

It made public funding available for all campaigns for state offices -- but did so in a way flagrantly punitive to persons relying on voluntary private contributions. Recipients of tax dollars were limited to spending such dollars -- but they got extra infusions of them to match spending by candidates relying on private contributions if such spending exceeded the amount Arizona's government deemed proper.

So these matching funds were a powerful incentive for privately funded candidates not to speak -- not to solicit funds to disseminate their advocacy. Even spending by independent groups supporting a privately financed candidate trigger such infusions to opponents. This even though the court has said that independent expenditures are core political speech and "do not give rise to corruption."

There is evidence supporting what is intuitively obvious -- that the matching funds provision was intended to suppress speech by candidates relying on voluntary contributions, candidates who knew their speaking would trigger tax dollars for their subsidized opponents. An internal memo for the Clean Elections Institute, which defends the law, contentedly noted that a privately funded candidate "may think twice about raising additional funds in a race against a Clean Elections candidate," so "it can be argued that millions of dollars in spending never takes place." Hence the law's purpose is to curtail political speech.

When Arizona Democrat Janet Napolitano, now secretary of Homeland Security, was running for governor, she joked that President George W. Bush, in effect, held a fundraiser for her. When he spoke at a fundraiser for her privately funded opponent, she received $750,000 in matching tax dollars.

Roberts, joined by Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito, noted that the "professed" purpose of Arizona's law is to encourage candidates to accept taxpayer funding. However, "how the state chooses to encourage participation in its public funding system matters, and we have never held that a state may burden political speech -- to the extent the matching funds provision does -- to ensure adequate participation in a public funding system."

The Arizona law's fate was also foreshadowed in 2008, when the court held unconstitutional the "Millionaires' Amendment" in the McCain-Feingold law regulating the quantity, content and timing of political speech. The amendment, written by incumbents to protect incumbents by punishing challengers wealthy enough to fund their own campaigns, said: When a wealthy candidate exceeds a particular spending threshold (the government's opinion of the proper amount of political speech), the candidate's opponent can receive contributions triple the size of contributions otherwise legal. Because wealthy candidates cannot be corrupted by their own money, the Millionaires' Amendment mocked McCain-Feingold's pretense of disinterested concern with corruption, and it illuminated the element of incumbent protection in most campaign regulations.

The Arizona law's fate actually was sealed in 1791, when the First Amendment was ratified; 220 years later, one wonders: When will people eager to empower government to regulate speech about itself abandon the fiction that political money can be regulated without regulating political speech? Will their long losing streak in the Supreme Court ever convince them that the First Amendment requires debate about government without government's regulatory intervention?

During oral arguments last March, a frustrated Breyer, who is permissive regarding regulations restricting political speech, said: "It is better to say it's all illegal than to subject these things to death by a thousand cuts." Yes. Because it all is illegal as long as the First Amendment exists.

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