Supreme Court: Matching funds in Arizona election law violate free speech

In another major setback for campaign finance reform advocates, the US Supreme Court on Monday struck down a key portion of a government-funded system for elections in Arizona.

In a 5-to-4 decision, the justices invalidated a key part of the law that triggered state payments of matching funds for publicly financed candidates whenever their privately funded opponents outspent them.

The high court said the nearly dollar-for-dollar matching-funds mechanism violated the free speech protections of the First Amendment by deterring or diminishing the effectiveness of the speech of candidates who opt out of Arizona’s public finance system.

“The whole point of the First Amendment is to protect speakers against unjustified government restrictions on speech,” Chief Justice John Roberts wrote in the majority opinion. “When it comes to speech, the speaker is sovereign.”

The decision marks the third time in four years that the high court’s conservatives have invalidated campaign finance reform laws that the court found were designed to “level the playing field” among competing political candidates.

In 2008, the court struck down the so-called “Millionaire’s Amendment” that raised contribution limits for congressional candidates when facing a wealthy opponent who was using his or her own money to fund their campaign.

In 2010’s Citizens United decision, the justices struck down a law that barred corporations and labor unions from placing political advertisements during election season. Advocates justified the law, in part, as an attempt to level the playing field by preventing corporations from using their wealth to drown out other voices in the critical days before an election.

“Leveling the playing field can sound like a good thing,” Chief Justice Roberts wrote in the Arizona decision. “But in a democracy, campaigning for office is not a game. It is a critically important form of speech.”

He added: “The First Amendment embodies our choice as a nation that, when it comes to such speech, the guiding principle is freedom – the ‘unfettered interchange of ideas’ – not whatever the State may view as fair.”

Justice Kagan dissents

In a dissent, Justice Elena Kagan said the majority was wrong in finding that the Arizona provision posed a burden on political speech. She said the matching-funds mechanism provides a viewpoint-neutral subsidy to political candidates and that it fosters more speech, not less.

“We have never, not once, understood a viewpoint-neutral subsidy given to one speaker to constitute a First Amendment burden on another,” Justice Kagan said. “Yet in this case, the majority says that the prospect of more speech – responsive speech, competitive speech, the kind of speech that drives public debate – counts as a constitutional injury.”

Kagan also disputed the majority’s emphasis on the issue of “leveling the playing field.”

“The majority claims to have found three smoking guns that reveal the state’s true (and nefarious) intention to level the playing field,” she wrote. “But the only smoke here is the majority’s, and it is the kind that goes with mirrors.”

She said the state’s real interest in passing the campaign finance measure was to fight corruption.

Split along recognized lines

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