The Next Campaign-Finance Battle

The Roberts Court is poised to remake campaign-finance law -- again. Progressives angry about the flood of corporate money into this year's midterm elections already know they can thank the Court for its willingness to gut a century of campaign law with its Citizens United decision. The Court also wasn't friendly to campaign-finance reform when it struck down substantial portions of Vermont's public-financing law in 2006. Now, progressives and campaign-reform advocates are wary of what the Court will do in a new case involving Arizona's public-financing law. As Tara Malloy of the Campaign Legal Center, a nonpartisan, nonprofit organization that works on campaign finance and elections, says ruefully, "We should be on guard for when the Roberts Court takes on campaign financing."

To be fair, there's no guarantee that McComish v. Bennett has to turn into a repeat of Citizens United. For starters, the focus is incredibly narrow. McComish deals with an aspect of Arizona's public-financing law that provides extra funds for candidates who opt into the system when their opponents opt out. Candidates are still bound by spending limits, but if their opponent goes beyond that limit, they are given the funds to match their opponent's spending.

The plaintiff's case is pretty straightforward: This program limits the free speech of privately funded candidates and groups, because it forces them to cut back on their spending, lest they advantage their opponents with public money. If money is speech and groups have the right to speak freely, the argument goes, then it is unfair to have a campaign-finance system that works by limiting the other guy.

There are good reasons to be skeptical of this argument. For one, there are no hard spending limits for privately funded candidates, and as the 9th Circuit Court ruled when it upheld the law -- overturning the decision of the Federal District Court in Phoenix, Arizona -- precedent "does not require this Court to recognize mere metaphysical threats to political speech as severe burdens." Moreover, even if the matching funds triggered by overspending deny privately funded candidates a competitive advantage, "the First Amendment includes 'no right to speak free from response.'" In other words, that the law empowers publicly financed candidates vis-à-vis their opponents is not actually a violation of free-speech rights.

Finally, there is the issue of corruption. Arizona's law was passed in the wake of several major, highly publicized corruption scandals. In one instance, "AzScam" legislators literally sold their votes for cash bribes. As the 9th Circuit points out, "The State's interest in eradicating the appearance of quid pro quo corruption to restore the electorate's confidence in its system of government ... is substantial and compelling." So much so that it justifies any potential limits on speech that might result from the law in question.

Unfortunately, the Supreme Court is less supportive of this argument, and in June, the Court barred the law's enforcement while appeals were prepared. Moreover, Citizens United suggests that the Court is skeptical of government efforts to even the scales for candidates and donors. Should this make progressives worry about a repeat of Citizens United? Not as long as the Court sticks to the issues peculiar to the Arizona case, Malloy says. "The Supreme Court would really have to stretch to go beyond the specific Arizona public-financing program in question," she says. Likewise, Fred Wertheimer, president of Democracy 21, says that "there is no basis for a broader ruling."

Unfortunately, many thought the Court would rule only on the narrow questions in Citizens United. The Court, though, can rule however it likes, and, given its current hostility to campaign-finance reform, it may rule in a way that binds future reformers. "The greater danger," Malloy says, "is that the Supreme Court would set broader principles of law that might be harmful to future public-financing cases."

That might not spell the end for campaign-finance reform, which, in most instances, doesn't include the potential limit on private spending to which the Court seems so opposed. But it would focus reforms more on donors than on candidates. States could still work to expand the number of small-time donors with matching programs, rather than limiting the amount of money in politics.

Still, that anyone is even worried about the potential for another Citizens United is more evidence of the fact that the Roberts Court has been terrible for campaign-finance reform and worse, is willing to gut precedent if it means a stronger hand for corporations and other vested interests. Simply put, as long as conservatives have a majority on the Supreme Court, progressives will have to hold their breath whenever the Court handles a campaign-finance case.

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