Boy, it sure is a good thing the Roberts Court isn't a bunch of judicial activists. Here's their latest move:
The Supreme Court stepped into another campaign finance controversy on Tuesday when it blocked Arizona from distributing campaign subsidies to publicly funded candidates facing big-spending opponents.
The justices granted a stay of a portion of the state's 12-year-old Clean Elections program, which authorizes public money for state candidates who bypass most private fundraising. The court stopped the state from providing "matching funds" to those candidates whose opponents are spending large sums of private money.
The court's action disrupts a funding scheme already well underway, with early voting beginning at the end of July for an August primary. One of those most hurt by the decision is Gov. Jan Brewer (R), who is a publicly funded candidate.
To understand how radical a move this is on the part of the Court, you have to understand how Arizona's "clean elections" law (and similar laws in a few other states) works. The law was established to address the fact that self-financed candidates can obliterate their opponents with money. But you can't limit the self-financed candidate's spending, since that would violate his free speech right. So what the clean-election law does is give matching funds to the "clean" candidate (who has entered the system by getting a large number of small contributions) to enable her to keep up. This is a clever solution: The self-financed candidate's rights are intact, because he can spend as much as he wants, but the more he spends, the more matching funds will be given to the "clean" candidate, leveling the electoral playing field at least partly.
Until now, conservatives on and off the Court have justified their ongoing assault on campaign-finance regulations by pointing to the primacy of the individual's right to free speech. Spending limits constrain speech, they argue, so they shouldn't be allowed. But the Court decided in Citizens United that money is speech, and corporations are persons, so you also can't limit what a corporation can spend on electioneering. There are lots of reasonable grounds to disagree with that decision, but it was at least a coherent position. But there is simply no sane way for them to argue that the Arizona law should be struck down on free-speech grounds. What the plaintiffs in this case are arguing is that I have a First Amendment right to make sure your voice isn't as loud as mine.
That this absurd argument could be persuasive to the Court makes sense only if you remember the fundamental principle that guides the Roberts Court: The powerful always win. Whenever there's a conflict between those with money and power on one side, and those without it (or with somewhat less of it) on the other, that's all you need to know. Ideas like freedom of speech and constitutional originalism are nothing more than tools to achieve that outcome.
-- Paul Waldman
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