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Monday, December 5, 2016

In an unsurprising decision, the Supreme Court yesterday ruled that Arizona’s matching-funds form of public campaign finance was unconstitutional. The Arizona law provided candidates who opted for public financing with as much money as their privately-financed candidates managed to raise. The intent of the law was clear: to level the playing field, so that rich candidates and their wealthy backers couldn’t simply buy elections.

And it was this intent the Supreme Court objected to. Writing for the majority, Chief Justice Roberts argued that when it comes to political speech, “the guiding principle is freedom— the “unfettered interchange of ideas”—not whatever the State may view as fair.” The freedom for the wealthy to massively outspend their opponents, which Roberts believes is a form of free speech, seems more important than making sure elections are fair. Justice Kagan, in a forceful dissent, argued first that the Arizona law does not limit free speech, but to the contrary, “what the law does — all the law does — is fund more speech.”

So where does this leave other campaign finance laws? The good news, says U.C.-Irvine Law professor Richard Hasen, “is that the Court did not level a death blow to public financing laws. Instead, it said that the decision of cities, states, or Congress enact public financing is ‘not our business.’” The five conservatives on the Court only objected to the matching-funds-of-rich-opponents provision of the law. This is not the only public campaign-finance scheme available.

New York City, for example, uses a system that provides candidates with six times whatever they manage to raise from small donors. This encourages candidates to raise money from many small donors than a few large ones. Zephyr Teachout, associate professor at Fordham Law, believes New York’s law can become a model for the nation. She suggests that “what we’ll see in coming years is more of this: a single-minded focus of reformers on passing $4-to-$1, $5-$1, and even $10-$1 matching funds laws.” But Hasen isn’t quite so optimistic.

Would the New York model survive a First Amendment attack before the Roberts Supreme Court? It is hard to say. On the one hand, because the multiple match does not give additional money based upon opponent spending, it is not directly contrary to today’s holding. And the court has said that public financing is “not our business.” But such plans may be doomed if the court views them as “leveling the playing field,” an equality rationale for campaign finance laws that the court majority has now rejected in three straight cases.

If the New York model is ruled unconstitutional, all that will remain is the lump-sum model, in which the government provides a publicly financed candidate with a small amount of money, regardless of how much they or their privately-financed opponents raise. The problem with this system is that candidates will not participate in it since their privately-financed opponents can easily outspend them. As Justice Kagan points out in her dissent, Barack Obama raised over $750 million through private fundraising and only would have been eligible for about $100 million through the government’s lump-sum public financing system. If he’d chosen public financing, he almost certainly would have lost.

At least the court’s decision in Arizona should slow down James Bopp, the conservative lawyer who wants all campaign finance laws ruled unconstitutional. Bopp has filed dozens of lawsuits seeking to overturn laws that limit the campaign contributions that people and corporations can make to candidates. Thanks to his efforts, a judge in Virginia recently ruled that corporations should be able to make unlimited donations to candidates. But this Supreme Court ruling should put a stop to this. “Today’s language from the Supreme Court,” according to Hasen, “should solidify the constitutionality of contribution limit laws, at least for now.”

Yesterday’s decision, like Citizens United, will make it easier for wealthy candidates and their corporate backers to buy elections. This invites more candidates like Ron Johnson, the self-funded Tea Partier who spent almost $9 million of his personal fortune to defeat veteran Senator Russ Feingold in Wisconson, before receiving $10 million from the company he works for. But the Supreme Court hasn’t ruled that all campaign finance laws are unconstitutional—yet. [Room for Debate]

 

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