In striking down part of an Arizona public financing law, the conservative majority on the Supreme Court has once again shown its hostility to even modest attempts to reduce the enormous influence of special-interest money in elections.
Under the law, candidates who opted in to the program and agreed to abide by spending restrictions would be given a lump sum to be used on their campaign. But that amount would be increased if an opponent who opted out of the program — or independent groups supporting such a candidate — spent beyond a certain amount. (The city of Los Angeles has a similar system.)
Writing for a five-member majority, Chief Justice John G. Roberts Jr. made two key arguments: that the matching-funds system unconstitutionally “burdened” the free speech of independently funded candidates who had opted out; and that the law was unacceptable because it aimed to “level the playing field” between candidates, a justification that seems to particularly incense the court’s conservatives.
But those arguments are entirely unpersuasive. As Justice Elena Kagan noted in her dissent, the Arizona law did not set a limit on how much candidates who opted out or their supporters could spend to convey their messages. In fact, rather than restricting or “burdening” anyone’s 1st Amendment rights, the law actually expanded free speech by providing extra funds for additional speech.
Kagan also noted that the Arizona law was designed not to level the playing field but to “ensure that … representatives serve the public, and not just the wealthy donors who helped put them in office.”
Kagan’s opinion describes the real world of politics that is obscured by the abstractions of Roberts’ opinion. She noted that the law was adopted in 1998 after a scandal known as AzScam, in which nearly a tenth of Arizona legislators were caught accepting campaign contributions or bribes in exchange for supporting legislation. The election law was designed to counter corruption and the appearance of corruption, an objective long recognized by the court as justifying some limits on 1st Amendment rights.
In its campaign finance decisions, the court under Roberts has consistently chosen to remain oblivious to the problems posed for democracy by special-interest money. We can only hope that it won’t continue its blinkered behavior by striking down other components of campaign finance reform, such as public financing of presidential campaigns and limits on campaign contributions. The court hasn’t indicated any such intention, but opponents of those reforms can only be heartened by this decision.