Congress Shall Make No Law...
10:18 PM
Responding to Rick Hasen on Arizona Clean Elections

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.


supremecourtMuch 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.