Citizens United, Part II

In a post whose elegant title I’ve copied for this one, Paul Waldman describes Arizona’s clean-election system:

Arizona voters passed a public-financing law in 1998 that uses a clever system to open up the political process without infringing anyone’s free speech rights. If a candidate gets a substantial number of $5 donations, she receives public financing. But if her opponent decides to stay out of the public-financing system and begins to outspend her, she will receive more financing to stay competitive. The result is a system in which people without lots of money can run for office, and elections are reasonably competitive. This is accomplished without the kind of spending limits the Supreme Court has declared unconstitutional. And research has shown that not only does this system produce closer elections, candidates accepting the public money spend a lot more time interacting with voters, instead of raising money. Everybody wins.

On Monday the Supreme Court heard arguments in the case known as McComish v. Bennett, which challenges the provision that gives additional funding to a publicly funded candidate who’s outspent by a privately financed opponent. The arguments, and the Justices’ questions and comments, are summarized and analyzed by Lyle Denniston, writing in SCOTUSblog. The outlook for public campaign funding is dismal:

Justice Anthony M. Kennedy, who definitely seems to hold the deciding vote on the newest test of the Supreme Court’s skepticism about campaign finance laws, made repeated comments on Monday suggesting that he is very wary of Arizona’s attempt to offset the impact of wealthy candidates paying their own way.  Among a variety that could be noted, no remark was more telling than what seemed almost to be a rhetorical question: “Do you think it would be a fair characterization of this law to say that its purpose and its effect are to produce less speech in political campaigns?

The abysmal quality of the Court’s thinking is exemplified by this snippet:

Noting that the law in Arizona triggers subsidies not only when a self-financed candidate spends beyond a limit, but also when an independent group supporting a self-financed candidate helps exceed that limit, the Chief Justice remarked: “If you knew that a $10,000 expenditure that you would make that would support a candidate would result in $30,000, $40,000, $50,000, depending on how many opposition candidates there were available for them, wouldn’t you think twice about it?”

and this one:

Justice Samuel A. Alito, Jr. … bluntly suggested that the Arizona system actually works as a regulation of political speech based upon its content — the worst constitutional sin under the First Amendment.   If a group that wants to spend money independently in a campaign would prefer a self-financed candidate, because that candidate takes a stand on a controversial issue that the group likes, Alito said, the group knows that if it pays for an ad for its favorite, the subsidized candidates with the wrong position is going to get more funds.  “Now,” said Alito, “why isn’t that a clear-cut discrimination based on the content of speech?”  It was obvious that he thought it was.

What gets me about these arguments is the extent to which the justices and the lawyers get lost down in the weeds. Both sides proceed from the assumption that freedom of speech is a great idea, but for the challengers—and for the Court’s right-wing faction—it’s just a slogan, devoid of meaning.

The purpose for elevating freedom of speech to a constitutional principle is to ensure that all ideas are heard, on the assumption that the best, most persuasive ones will come out on top. That’s best, not loudest. The tortured reasoning employed by Roberts and Alito is aimed at preserving the advantage enjoyed by privately financed candidates who can outspend their publicly funded opponents. Whether this advantage actually serves the First Amendment’s ultimate purpose is evidently irrelevant.

The Court’s original sin was to equate speech with money. Modern media markets being what they are, having more money enables a candidate to out-shout his opponent, but is obviously no guarantee that his ideas are better. Public funding is a way to ensure that good ideas that don’t attract private support can nevertheless get a fair hearing. Any argument that public funding suppresses freedom of speech is pathetic lost-in-the-weeds sophistry.

Denniston’s conclusion is bleak:

The trend of the argument was obvious to perhaps every one in the courtroom, but it was Justice Stephen G. Breyer, a strong supporter of campaign finance regulation, who captured the mood perfectly, with a lament.  “What’s going through my mind is we are deeply into the details of a very complex bill,” he commented.  “McCain-Feingold [the federal law, several parts of which the Court has now struck down] is hundreds of pages, and we cannot possibly test each provision which is related to the others on such a test of whether it equalizes or incentivizes or some other thing, because the answer is normally we don’t know.”

“And,” Breyer went on, “it is better to say that it’s all illegal than to subject these things to death by a thousand cuts, because we don’t know what will happen when we start tinkering with one provision rather than another.  That thought went through my mind as I’ve heard this discussion.”

However many cuts it may take, it appears, the Arizona system seemed close to bleeding to death.

UPDATE: The Justices’ line of reasoning works just as well in reverse. If the free speech of a privately funded candidate is suppressed by the prospect of an opponent receiving additional public funding, then the free speech of a non-wealthy candidate is suppressed when his opponent’s  superior wealth discourages him from even entering the race. Does that mean that the wealth advantage constitutes a violation of the First Amendment? Not in this Court.

About Hamilton Richards

He retired in 2006 as a Senior Lecturer in Computer Sciences at The University of Texas at Austin. These days he volunteers technical support for Citizens' Climate Lobby (Austin chapter), Common Ground for Texans, (, Integrity Texas (, Austin Rowing Club, and several friends.
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