Why sharply divided Supreme Court may strike down Arizona campaign-finance law
The Supreme Court heard arguments Monday challenging an Arizona campaign-finance law that tries to guarantee competitive races. The court appeared split on the case.
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The conservative wing – Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy, and Samuel Alito – expressed skepticism about the provision.Skip to next paragraph
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Justice Clarence Thomas generally does not speak during oral arguments. But he has been a reliable vote among conservatives in campaign finance cases.
In general, the conservative justices appeared to view the provision as a deterrent to privately-funded candidates spending more money in their own campaigns.
“If you knew that a $10,000 expenditure … would result in $30,000, $40,000, $50,000 – depending on how many opposition candidates there were – available for them, wouldn’t you think twice about it?” the chief justice asked Phillips.
“I might think twice about it, your honor,” Phillips said. But he added that “thinking twice is not a severe burden” of a candidate's First Amendment free speech rights.
Justices Alito and Kennedy both focused on the requirement that independent expenditures trigger matching funds only when the triggering advertisement is in opposition to a publicly-financed candidate or in support of a privately-funded candidate. The result is that such contributions might end up benefiting a favored candidate's opponents more than the candidate backed by the independent group.
“Why isn’t that clear-cut discrimination based on the content of speech?” Justice Alito asked.
“Matching funds do not turn in any way on the ideas or the viewpoints … of the candidate or the independent group’s speech or the identity of the speaker,” Phillips replied. “It turns entirely on what choice the candidate made at the outset," – to participate or not in public campaign funding.
Alito replied, “But if I’m the independent expenditure-maker, I haven’t made a choice at the beginning. I haven’t decided to participate or not participate [in the campaign finance system]. What I care about is the issue that’s being debated between these two candidates.”
Previous campaign finance rulings
The court’s conservatives have handed down a series of decisions in recent years cutting back on various campaign finance reform provisions that they say violate the free speech rights of political candidates, organizations, corporations, and unions.
In 2008, the justices voted 5-to-4 to invalidate the so-called Millionaire’s Amendment, a federal law designed to level the playing field between congressional candidates using their personal wealth to fund their campaigns and those abiding by campaign contribution limits. The law raised the federal contribution limits for candidates facing wealthy opponents.
The high court struck down the measure, saying it granted special government favors to some candidates based on the identity of their political opponent.
In January 2010, the justices again voted 5-to-4, this time to invalidate a portion of the so-called McCain-Feingold law that barred corporations and unions from running political broadcasts or advertisements during election season. The conservatives said political speech by corporations and labor unions is just as protected by the First Amendment as is political speech by an individual.
The majority justices rejected the argument that sometimes restrictions on corporate and union speech were justified because they could use their economic power to dominate the airwaves in the critical days before an election and drown out other voices.
That argument is similar to a key issue that arises in the Arizona law. Opponents of the law say it was passed to “level the playing field” between candidates able to assemble a sizable campaign war chest and those who are unable or unwilling to engage in private campaign fundraising.
A decision is expected by the end of June.