Does the Supreme Court care more about free speech for the wealthy than about political corruption?
March 25, 2011- Imagine you want to run for office, say for a seat in the state legislature, and you are deciding whether to opt into a voluntary public financing system: accepting a pot of money from the government in exchange for giving up the right to raise funds from private individuals. If you opt in, you would be free from the burdens of fundraising, and the chances of corruption (or the appearance of corruption) would be minimized because you wouldn't be dependent on others to fund your campaign. But there's a danger: What if your opponent, or an outside group, is determined to spend lots of money against you? To deal with this problem, states like Arizona give you additional matching funds, to a point, to make it viable for publicly financed candidates like you to compete.
On Monday, the Supreme Court will hear oral arguments in McComish v. Bennett, a case from Arizona in which those wealthy opponents and outside groups have complained that this additional spending violates their First Amendment rights. And once again, just a year after the court in Citizens United turned on the corporate-money spigot by allowing unlimited corporate spending in elections (and the FEC allowed corporations to hide much of their donations), the court appears poised to side with the wealthy in a campaign finance case.
At first glance, the First Amendment complaint of the wealthy candidates and outside groups would seem to be at odds with the "more speech is better" mantra of the court in Citizens United. After all, Arizona imposes no limits on the spending of non-candidates or outside groups on election campaigns. What's the worst thing that can happen if a wealthy candidate spends gobs of cash running against a candidate who has opted into the public financing system? The publicly financed candidate gets more government dollars to campaign, and the voters hear more speech.
As conservative Ninth Circuit judge Andrew Kleinfeld wrote in his concurring opinion rejecting constitutional arguments against the Arizona system, "there is no First Amendment right to make one's opponent speak less, nor is there a First Amendment right to prohibit the government from subsidizing one's opponent, especially when the same subsidy is available to the challenger if the challenger accepts the same terms as his opponent." Similarly, Charles Fried, a solicitor general in the Reagan administration, argued in an amicus brief that it is the wealthy candidates and interest groups who "in reality are seeking to restrict speech."
So you'd think that the challengers to the Arizona law would have a hard time in front of a court that declared, in Citizens United, that "it is our law and tradition that more speech, not less, is the governing rule." But it doesn't seem likely the court will see it that way. The court showed its hand back in June, when it took the unusual step of suspending the matching-funds portion of the Arizona law in the middle of the election, before it even agreed to hear the case, during a time when candidates (such as Gov. Jan Brewer) had already made the decision to opt in to the public financing system. A key factor that the court considers in deciding whether to grant such extraordinary relief is the likelihood that it is going to strike down the law at issue.