One of the favorite, and most incredible, tactics of those defending Arizona’s Clean Elections scheme is to close their eyes to evidence that its matching funds provision has deterred the speech of privately funded candidates and independent groups and then assert such evidence doesn’t exist. I pointed this out in an earlier post, and in yesterday’s Supreme Court argument, Bradley Phillips, defending matching funds, predictably tried this line of attack.
There was testimony in the, in the district court from individuals who said that they withheld their contributions because of this. It’s – it’s obvious statistically also that many of the expenditures were made late in the game, where perhaps they were not as effective, in order to be unable to trigger the matching funds in time for the opposing candidate to do anything about it. I do not understand how you can say that there is no evidence. I mean, maybe you might say I do not find the evidence persuasive, but don’t tell me there’s no evidence.
Later in the argument, our colleague Bill Maurer pointed to the specific examples of candidates and independent groups declining to do mailings or raise funds or get involved in particular races because matching funds would kick in. You can read about some of those here.
Justice Scalia is referring to the original research done in the case by political scientist David Primo, who found that privately funded candidates—especially in competitive races—would delay speaking until “late in the game” to avoid triggering matching funds to taxpayer-funded opponents. That means less time for candidates to speak and less time for voters to consider the message. The First Amendment does not tolerate such government interference in what ought to be free speech in the time and manner of the candidate’s or group’s own choosing.
Incidentally, Primo’s statistical research is backed up by interviews by political scientist Michael Miller and the GAO. Miller finds that such delay is commonplace among privately funded candidates, and the GAO adds that independent groups act similarly. That’s rather a lot of evidence to deny and makes Clean Elections’ defenders’ tactic look not only like a poor strategic choice, but also downright misleading.
Congratulations to our colleague Bill Maurer, who did an outstanding job arguing before the U.S. Supreme Court today in Arizona Free Enterprise Club v. Bennett. As the early news coverage notes, the conservative members of the Court were skeptical of the government’s arguments and seemed inclined to hold Arizona’s law unconstitutional. That’s good news for free-speech advocates.
Charles Fried and Cliff Sloan argue in the New York Times that the U.S. Supreme Court’s ruling in Citizens United should lead the Court to uphold Arizona’s system of government-funded political campaigns. To the contrary, Citizens United held that government cannot burden speech based on the identity of the speaker. But that is exactly what Arizona’s law does: It was designed—and sold to the public—as a way to discourage speech by privately funded candidates and the groups that support them.
Fried and Sloan seem untroubled by this. Indeed, they argue that there are no limits on the government’s power to selectively fund its preferred speakers. Thankfully, the current Court is skeptical of campaign finance laws precisely because of the risk that they will be used to rig elections. We hope this skepticism will lead the Court to strike down Arizona’s unconstitutional “clean elections” system.
Writing for Slate, election-law scholar Rick Hasen previews IJ’s upcoming argument before the U.S. Supreme Court in Arizona Free Enterprise Club v. Bennett, which along with the consolidated case McComish v. Bennett, challenges Arizona’s unconstitutional system of publicly financed “matching funds.” Hasen—a staunch proponent of campaign finance restrictions—is no fan of our work on the case, which he claims boils down to “wealthy candidates and outside groups” arguing that “more speech is unfair.” But Hasen’s criticisms badly miss the mark.
Much of Hasen’s argument is framed in terms of hostility towards “wealthy candidates and outside groups.” Of course, these groups are entitled to First Amendment protection, just like anyone else. But more importantly, this framing is based on two false assumptions: that only wealthy candidates and groups will benefit if Arizona’s law is struck down, and that Arizona’s law does not currently disproportionately benefit wealthy groups. Neither of these assumptions is correct.
First, Arizona’s law is designed to discourage all privately funded candidates—both rich and poor—from raising more than an arbitrarily set amount of money to get their messages out to the public. The fact that the law destroys the incentive to raise and spend private money on political campaigns was one of the major selling points used by the laws proponents. A victory for our clients in Arizona would certainly help candidates who can afford to bankroll their own campaigns. But it will also help candidates of modest means who exercise their constitutional right to raise private funds. And it will help all independent groups—whether well-financed or not—that wish to spend money supporting privately financed candidates.
Second, some of the biggest beneficiaries of the current law are wealthy “outside” groups. Under Arizona’s law, if an independent group spends money supporting a privately funded candidate who is facing a government-funded opponent, the government will cut a check for an equal amount to the government-funded candidate. This is true even if another, wealthier independent group has spent a vastly larger amount of money supporting the government-funded candidate. In other words, independent groups of modest means who support privately funded candidates face a drag on their First Amendment rights that wealthy groups supporting government-funded candidates are not subject to. Striking down Arizona’s matching-funds law would put all independent groups—rich and poor alike—on the same legal footing.
Hasen also claims that our argument that matching funds violate the First Amendment is “at odds with the ‘more speech is better’ mantra of the court in Citizens United.” This argument reveals that Hasen’s view of the First Amendment is, on a fundamental level, very different from ours. More importantly, it is different from the view held by the five Justices in the Citizens United majority.
It is questionable whether Arizona’s law increases the overall amount of speech, but it doesn’t matter either way. Any such effect is totally irrelevant to the First Amendment question, which is: Does the law unconstitutionally chill speech by privately funded candidates and the independent groups that support them? Simply put, the government cannot defend a law that chills one speaker on the grounds that it encourages a different speaker. The First Amendment, after all, is not a mandate for government to increase the aggregate amount of speech in society. It is a negative command: “Congress shall make no law . . . .” It constrains the government’s ability to interfere in the marketplace of ideas, as Arizona has sought to do with its so-called “Clean Elections” system.
Finally Hasen attempts to distinguish the Supreme Court’s 2008 ruling in Davis v. FEC, which controls the outcome of this case. In Davis, the Supreme Court struck down the so-called Millionaire’s Amendment, a provision of the McCain-Feingold campaign finance law that increased the maximum amount of money a political candidate could accept from contributors if he was running against a self-financed opponent. The Court held, correctly, that the Millionaire’s Amendment unconstitutionally burdened the right of self-financed candidates to robustly fund their own campaigns, because doing so triggered a benefit to their opponents.
Arizona’s law is even worse than the law in Davis. In Davis, favored candidates were only given the opportunity to raise additional money. In Arizona, the government gives them a direct subsidy. Hasen attempts to distinguish Davis, arguing that “Arizona did not enact its system to ‘level the playing field,’” but this critique simply doesn’t match up with the facts. In reality, the proponents of Arizona’s law expressly sold it to the public as a means of leveling the playing field.
In short, Hasen’s article does little more than express frustration at what we hope will be the imminent demise of Arizona’s matching-funds system. Hasen’s frustration is undoubtedly shared by many proponents of campaign finance laws who, over the last five years, have seen many of those laws struck down. But the fact that Hasen and others are frustrated, and would prefer that government have the power to micromanage political speech—amplifying some speakers and muting others—is not an argument that the First Amendment gives government that power. It does not, which is precisely why we have challenged Arizona’s law for over a decade, and why the Supreme Court should strike it down.
Earlier I took issue with blog posts by Ezra Klein and political scientist Michael Miller claiming supposed benefits from so-called “Clean Elections” laws like Arizona’s, which will be considered by the U.S. Supreme Court on Monday. But perhaps a more nefarious tactic of defenders of such schemes is to deny that they have any effect on speech at all.
In a nutshell, Clean Elections’ defenders want us to believe that incentives don’t matter. Economists would certainly be surprised to learn that. And the testimony of candidates and independent groups in the case suggest otherwise, as do public funding backers themselves when they argue that “matching funds” are essential to encouraging candidates to sign up for taxpayer funding in the first place. The claim also defies common sense: If the government sends a buck to your opponent every time you spend a buck, this will probably have some effect on your spending and, therefore, speaking.
Yesterday, Ezra Klein linked to a graph that, he says, shows the importance of so-called campaign finance “reform,” and more specifically using taxpayer dollars to fund the campaigns of political candidates. This matters now because on Monday the U.S. Supreme Court will hear a challenge to one the most sweeping of such schemes, Arizona’s “Clean Elections” law. Interestingly, the graph and Klein’s post tell us much more about the impulse behind campaign finance “reform” than they do about the supposed benefits of such systems (or whether they are constitutional).
Yesterday, the Institute for Justice filed a reply brief in the U.S. Supreme Court in support of its challenge to Arizona’s Clean Elections Act. The Goldwater Institute, which is litigating a related challenge before the Court, filed its reply brief on Tuesday.
For those of you who don’t remember, Arizona’s system gives publicly financed candidates government money whenever traditional candidates or independent groups speak “too much.” Here’s a short video that explains how the Act works:
The reply briefs that the Institute for Justice and the Goldwater Institute filed demonstrate not only how this regime violates the First Amendment, but how it flouts a directly controlling U.S. Supreme Court case that was decided just three years ago.
The U.S. Supreme Court will hear oral argument in the case on March 28th. Come back to MakeNoLaw.org for more updates as the case progresses.