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Sunday, December 4, 2016

The Supreme Court voted 5-4 yesterday to overturn an Arizona state law that provided matching funds to publicly-financed candidates who are outspent by privately financed opponents.. 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, for Chief Justice Roberts, the freedom to massively outspend their opponents, which Roberts believes is a form of free speech, seems more important than making sure elections are fair.

He 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.” Justice Kagan, in a forceful dissent, argued first that the Arizona law does not limit free speech, but to the contrary, the law exists to “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 it wasn’t a “death blow.” The five conservatives on the Court only objected to the matching-funds-of-rich-opponents provision of the law.

For now, there are other ways of raising money. 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. But that may not last for long — Hasen points out that the program could be seen as “leveling the playing field,” a campaign-finance principle that the court has rejected three times in a row.

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. This isn’t an especially workable system. 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 has filed dozens of lawsuits and wants all campaign finance laws ruled unconstitutional. 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.

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