This past summer the U.S. Supreme Court blocked the state of Arizona from carrying out provisions of a law allowing the use of public funds to finance political campaigns. On Monday the high court announced it will hear arguments as to the constitutionality of the law under the First Amendment.
Arguments should be heard in the spring and the court ruling could come by next summer.
Not only does the Arizona law dole out tax money to state and local candidates, it creates a “matching fund” that throws more money at candidates who face wealthy privately funded candidates. There are few limits on how the money may be spent — including computers, cameras and salaries for campaign staffers who happen to be relatives. No reports thus far of anyone buying a new car to campaign in.
Arizona’s Clean Elections Act was narrowly approved by voters in 1998 in the wake of AzScam, in which state legislators were caught taking cash bribes for votes.
Under the law, candidates who first raise contributions of $5 each from 220 contributors are given a lump sum of cash if they agree to forgo any further private contributions and agree to participate in public forums. But if an opponent starts raising and spending more money the law allows an elections commission to pass along more cash to tax-funded candidates. Most of the money to pay for the handouts comes from a surcharge on civil and criminal penalties.
The 9th U.S. Circuit Court of Appeals upheld the law, but the Institute for Justice and other organizations appealed, saying the leveling of the playing field actually chilled free speech by taking away the advantage of private spending. The court has repeatedly said government may not restrict free speech by limiting the money that may be spent on it.
Bill Maurer, an Institute for Justice attorney, says, “Arizona’s system provides the worst of both worlds — it suppresses speech while failing to achieve anything desirable. If the only way public financing can survive is by relying on the government to suppress the speech of those who don’t take taxpayer dollars, then it deserves a swift demise.”
Institute for Justice briefs in the case argue variable public financing is no different from the variable campaign contribution limits the court rejected in 2008.
In that case Justice Samuel Alito wrote, “The argument that a candidate’s speech may be restricted in order to ‘level electoral opportunities’ has ominous implications because it would permit Congress to arrogate the voters’ authority to evaluate the strengths of candidates competing for office. … Different candidates have different strengths. Some are wealthy; others have wealthy supporters who are willing to make large contributions. Some are celebrities; some have the benefit of a well-known family name. Leveling electoral opportunities means making and implementing judgments about which strengths should be permitted to contribute to the outcome of an election. The Constitution, however, confers upon voters, not Congress, the power to choose …”
The court should also consider rejecting all public financing of candidates, variable or otherwise. Extracting money involuntarily from a taxpayer to fund a candidate the taxpayer opposes is contrary to the concept of free speech.