Campaign Finance 2012 Cycle
Near the end of the argument, Justice Stephen G. Breyer, who dissented in Citizens United, asked whether the court should continue what he suggested was a harmful piecemeal approach to striking down aspects of complex campaign finance laws.
“It is better to say it’s all illegal than to subject these things to death by a thousand cuts, because we don’t know what will happen when we start tinkering with one provision rather than another,” Justice Breyer said in a frustrated tone.
The likely result in the Arizona case, though, will be an incremental step and the fifth decision from the Roberts court cutting back on the government’s ability to regulate campaign financing.
The candidates and groups challenging the law disclaimed a broader purpose and said they were not attacking public financing as such. They objected, they said, only to financing systems like that used in Arizona, ones that couple an initial grant of money with escalating matching funds based on spending from privately financed candidates and their supporters.
“What this case is about,” said William R. Maurer, a lawyer for the challengers, “is whether the government can turn my act of speaking into the vehicle by which my political opponents benefit with direct government subsidies.”
Justice Elena Kagan appeared unpersuaded. “There’s no restriction at all here,” she said. “It’s more speech all the way around.”
Justice Ruth Bader Ginsburg asked whether Arizona could give publicly financed candidates a lump sum at the outset and then take back anything left unspent. Mr. Maurer said that would be constitutional under the court’s precedents.
Justice Samuel A. Alito Jr. suggested that it would not be improper for states to make lump-sum grants based on spending in earlier races. Justice Kagan countered that the method actually used had the virtue of measurement over estimation.
The justices also debated the purpose of the law. In Citizens United, the majority said the government may restrict campaign speech to combat corruption or the appearance of corruption but not to level the playing field among competing voices.
Bradley S. Phillips, a lawyer for the state, said the Arizona system did indeed address potential corruption by encouraging candidates to accept public financing and so forgo the need to raise private money.
But Chief Justice John G. Roberts Jr. pointed to research he had conducted about the views of the commission that runs the Arizona system. “I checked the Citizens Clean Elections Commission Web site this morning,” the chief justice said, “and it says that this act was passed to, quote, ‘level the playing field’ when it comes to running for office. Why isn’t that clear evidence that it’s unconstitutional?”
A lawyer for the federal government, William M. Jay, said a statement on a Web site was not determinative of the purpose of a law enacted in 1998. The federal government supports the state in the two consolidated cases heard Monday, Arizona Free Enterprise Club v. Bennett, No. 10-238, and McComish v. Bennett, No. 10-239.
There has been one change in personnel on the Supreme Court since Citizens United: Justice Kagan replaced Justice John Paul Stevens, who wrote the dissent in the case. On Monday, Justice Kagan was a particularly active questioner and seemed inclined to uphold the Arizona law.
Indeed, all eight justices who asked questions seemed to hew to their earlier views about the constitutionality of campaign finance laws, suggesting a 5-to-4 decision to strike down the law. (Justice Clarence Thomas, as is his custom, said nothing.)
There were other reasons to think the Arizona law’s chances were poor.
Last year, in an unusual move, the court blocked enforcement of the law in the middle of an election. And in 2008, in a 5-to-4 decision in Davis v. Federal Election Commission, the five justices in the majority in Citizens United struck down a part of the McCain-Feingold campaign finance law in some ways similar to the Arizona law.
Citizens United itself was animated in part by the libertarian theory that more speech in election campaigns is better than less and that voters may be trusted to decide which ideas they considered most persuasive.
On Monday, Chief Justice Roberts said that persuading voters was not the only interest in play.
“Political scientists sometimes tell you that it’s not persuasion, but simply playing to your base, getting them more actively involved,” the chief justice said. “So it’s not the somewhat more academic view that people are going to sit down and just regard which one is persuasive.”
Last Updated (Saturday, 21 January 2012 16:50)