Court Weighs Constitutionality of Law Funding Political Opposition


ACRU Staff


March 29, 2011

This column by ACRU Senior Legal Analyst Ken Klukowski was published March 28, 2011 on The Washington Examiner website.

Should taxpayer money go to fund political campaigns when another candidate raises money? It does in Arizona. Now the Supreme Court will decide whether this system violates the First Amendment in the first campaign finance case since Citizens United v. FEC.

Arizona has a system of taxpayer-funded political campaigns called “Clean Elections.” Many candidates in Arizona raise campaign money traditionally. But candidates have the option of taking taxpayer money instead, under a ballot initiative that narrowly passed, 51 percent to 49 percent, in 1998.

This system is loaded with provisions to force candidates into the public-financed system. As a taxpayer-funded candidate, you receive significant money. Your traditional (privately financed) opponent must raise his money.

If the private candidate raises enough to catch the public candidate, then the public candidate gets matching funds of additional money. The more the private candidate raises, the more tax money goes to his opponent.

It’s OK for an issue-group to spend money supporting the tax-funded candidate. But if a group spends money supporting the traditional candidate, then the tax-funded candidate gets more matching funds.

Take, for example, a traditional Republican candidate against a tax-funded Democratic candidate for Arizona governor. The Democrat receives $1.4 million. The Republican is disadvantaged until he raises $1.4 million.

If he raises another million, the Democrat gets another million. Then FRC Action spends $50,000 supporting the Republican because he’s pro-life, and the NRA’s political action committee spends $50,000 attacking the Democrat for opposing the Second Amendment.

As a result, the Democrat gets an extra $100,000. But when the labor unions spend $200,000 supporting the Democrat, the Republican gets nothing. The system penalizes candidates who refuse taxpayer money.

That’s the system in a case the Supreme Court heard Monday. The plaintiffs were traditionally funded candidates and election organizations. At issue is whether this violates the First Amendment, because spending campaign money is political speech. Here a traditional candidate engaging in political speech triggers tax money to fund his opponent.

The liberal justices — especially Justice Elena Kagan — aggressively questioned the plaintiffs, voicing sympathy for the government system. Kagan often reiterated that such laws are supposedly intended to prevent corruption, adopting the position argued by her former subordinates at the U.S. Solicitor General’s Office, which participated in argument supporting Arizona.

The plaintiffs’ lawyer skillfully avoided the potholes in his path, keeping the constitutional argument focused on Arizona’s law turning the “act of speaking into the vehicle by which my political opponents benefit.”

Justice Anthony Kennedy asked a question suggesting this law’s “purpose and its effect are to produce less speech in political campaigns.” When Kennedy later said he thought this law deters independent groups from participating in elections, it signals he’ll likely vote to strike it down.

Chief Justice John Roberts set up the game point when he asked the Justice Department (defending Arizona), “Do you agree that under our precedents, leveling the playing field for candidates is not a legitimate state purpose?”

When DOJ’s lawyer said “Yes,” Roberts lowered the boom. “I checked the [Clean Elections] website this morning, and it says this act was passed to, quote, ‘level the playing field’ when it comes to running for office.”

There goes Roberts’ vote. Other comments made it clear that Justices Antonin Scalia and Samuel Alito also oppose the law, and Justice Clarence Thomas clearly does as well.

So it appears that the Arizona taxpayer-financed election system will likely be struck down by a 5-4 vote, one that will put both of President Obama’s Supreme Court appointees on record regarding free speech. A decision is expected in May or June.



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