March 28, 2011- The Supreme Court today heard its first arguments on campaign finance since last year’s Citizens United decision; the early returns were not encouraging for reform advocates.
In two cases from Arizona, conservative activists are asking the justices to strike down a state law that lets state candidates finance their campaigns with public funds rather than private donations. Common Cause and other reform groups see such “clean elections” laws as critical to heading off political corruption and breaking the hold of corporate and other special interests on our elections.
At Scotusblog.com, a website that covers the court in depth, veteran reporter Lyle Deniston warned that Justice Anthony Kennedy, often considered a swing vote, seemed hostile to the Arizona law. Reuters correspondent James Vicini meanwhile, reported that Justice Antonin Scalia termed the law “very much pro-incumbent.”
Clean Elections opponents center their attacks around the First Amendment and its protections against laws that limit free speech. They argue that candidates who opt-out of the public financing program must weigh decisions about buying television commercials or sending out direct mail appeals against the knowledge that their spending will trigger the payment of public funds to their opponents.
“The Arizona law doesn’t prevent privately financed candidates from speaking or spending as much as they like…” countered former U.S. Solicitor General Charles Fried and lawyer Cliff Sloan in an essay published last week in The New York Times. “The law simply ensures that, when a candidate relying on private money speaks, the publicly financed candidate has the money to answer.”
Despite such arguments, Deniston reported that Kennedy and three other justices “left little doubt Monday that they accept the challengers’ basic logical premise” — that the Arizona law discourages speech by non-participants by paying for the speech of those who opt-in. A fifth justice, Clarence Thomas, did not speak during the hearing but in the past has been arguably the most antagonistic justice toward campaign finance reforms.