Today the Supreme Court will be hearing arguments in the case of McComish v. Bennett, which will decide the fate of Arizona's "clean elections" law and similar ones in a few other states. It seems likely that the Roberts Court, where protecting the interests of the wealthy and powerful so often trumps any other consideration, will strike down the Arizona law.
A brief explanation (there's a longer one here): In response to a series of corruption scandals, Arizona voters passed a public-financing law in 1998 that uses a clever system to open up the political process without infringing anyone's free speech rights. If a candidate gets a substantial number of $5 donations, she receives public financing. But if her opponent decides to stay out of the public-financing system and begins to outspend her, she will receive more financing to stay competitive. The result is a system in which people without lots of money can run for office, and elections are reasonably competitive. This is accomplished without the kind of spending limits the Supreme Court has declared unconstitutional. And research has shown that not only does this system produce closer elections, candidates accepting the public money spend a lot more time interacting with voters, instead of raising money. Everybody wins.
Everybody, that is, except the candidate who wishes to outspend his opponent by 10 to 1. The plaintiffs' argument in the case is that if you and I are running against one another, and I know that if I keep spending money, you'll get more money, too, then my rights to speak have been infringed. In other words, if you are speaking nearly as loudly as me, then I have been wounded.
What is the "right" at issue here? It's not the right to free speech, since the self-financed candidate still can speak as much as he likes. It's the "right" to have the loudest voice if you have the most money, to drown out every other voice.
Which isn't a right at all. It's a privilege: the privilege of those with money to bend the political system to their will, to have the biggest megaphone, to make sure that their money gives them the ability to put a thumb on the electoral scale.
So how is the Court going to rule? If the Roberts Court has a guiding principle, it's that those with power should prevail. But as in all cases like this, the decision will likely come down to one man, Justice Anthony Kennedy. No one doubts that John Roberts, Samuel Alito, Antonin Scalia, and Clarence Thomas will rule in favor of the candidates who want to gut the public-financing system so that those with the most money will always have the advantage. The four liberals on the Court will probably disagree. And Kennedy will decide, most likely in favor of the plaintiffs.
We spent the entire decade of the 1990s arguing about how we can make our elections more fair, more responsive to the public, less twisted by the influence of big money. But it's as though all that never happened. The Roberts Court is constructing our electoral system now, at both the state and federal level. And the system they're building is one in which money always wins.
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