The burden imposed by the matching funds provision is evident and inherent in the choice that confronts privately financed candidates and independent expenditure groups. Indeed every court to have considered the question after Davis has concluded that a candidate or independent group might not spend money if the direct result of that spending is additional funding to political adversaries. Arizona is correct that the candidates do not complain that providing a lump sum payment equivalent to the maximum state financing that a candidate could obtain through matching funds would be impermissible. But it is not the amount of funding that the State provides that is constitutionally problematic. It is the manner in which that funding is provided--in direct response to the political speech of privately financed candidates and independent expenditure groups. [Emphasis added]
Elena Kagan's magnificent dissent, which she read aloud from the bench today, outlines the issues before the court. Describing two states' campaign finance structures, one that is corrupt and one seeking to end corruption, she describes the Arizona law this way:
So the voters enact a program that carefully adjusts the money given to would-be officeholders, through the use of a matching funds mechanism, in order to provide this assurance. The program does not discriminate against any candidate or point of view, and it does not restrict any person’s ability to speak. In fact, by providing resources to many candidates, the program creates more speech and thereby broadens public debate. And just as the voters had hoped, the program accomplishes its mission of restoring integrity to the political system. The second State rids itself of corruption.
And then goes on to express incredulity (and frustration) over the majority's decision:
A person familiar with our country’s core values—our devotion to democratic self-governance, as well as to “uninhibited, robust, and wide-open” debate, New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964)—might expect this Court to celebrate, or at least not to interfere with, the second State’s success. But today, the majority holds that the second State’s system—the system that produces honest government, working on behalf of all the people—clashes with our Constitution. The First Amendment, the majority insists, requires us all to rely on the measures employed in the first State, even when they have failed to break the stranglehold of special interests on elected officials.
And that was the mild part of her dissent, which was joined by Justices Sotomayor, Breyer, and Ginsburg. Reading through the entire opinion -- majority and dissent -- reads like a contentious family argument.
Toward the end of her dissent, Kagan wrote this:
Arizona, remember, offers to support any person running for state office. Petitioners here refused that assistance. So they are making a novel argument: that Arizona violated their First Amendment rights by disbursing funds to other speakers even though they could have received (but chose to spurn) the same financial assistance. Some people might call that chutzpah.
As against all this, the majority claims to have found three smoking guns that reveal the State’s true (and nefarious) intention to level the playing field. But the only smoke here is the majority’s, and it is the kind that goes with mirrors.
Justice Kagan was full of fire, and rightly so.
I don't know whether to laugh or cry. Elena Kagan's dissent [it's a .pdf, and you'll have to scroll way down to find it] in ARIZONA FREE ENTERPRISE v. BENNETT basically treats Roberts's majority opinion the same way our air forces treated Dresden during World War Two. It's a carpetbombing that leaves nothing left but a smoldering pile of rubble. It's a true pleasure to read. Yet, the inescapable tragedy is that she wrote the minority opinion. The five conservatives on the Supreme Court have once again done extreme violence to our democracy and all efforts to combat corruption and the undue influence of corporations.
And that's the problem. Just as it was in Wisconsin with the union-busting bill, so it is with the US Supreme Court and campaign finance. Some describe the divide as an inability to agree on the fundamentals of campaign finance. I think that's too kind.
Heather Gerkin at Balkinization:
Justice Kagan and the three other liberals, in contrast, find it very hard to figure out why public finance systems that impose no constraints on privately financed candidates are remotely troubling. Justice Kagan said in oral argument that it seemed like the system promote "more speech all around," and her blistering dissent makes precisely the same point.
That is the core problem, in my view, in campaign finance. If the Justices cannot agree on the basic premises of the doctrine, no balancing test or factual record or choice about the level of scrutiny is going to bring agreement. This just isn't an area where a middle ground is likely to be found. One is tempted to quote from Harry Potter: "neither can win while the other survives." One view or another is going to have to win out. The Justices know it's a fight to the finish, and they are writing their opinions accordingly.
Nor should middle ground be found. There are two possibilities with those who think outside interests can and should spend unlimited amounts on candidate campaigns: They're utopian idealists or they're corrupt. I'll give you three guesses as to what I think, and utopia has nothing to do with it. It's not cynical to understand that political contributions are viewed as currency to use as leverage to further one's goals, whether or not they're in the general public interest. It's also not a stretch to believe that flawed humans running for office will bend to the heady rush of Big Money heading their way.
If there is any single issue highlighting differences between "conservative" and "liberal" interpretations of the Constitution, it has to be campaign finance. This conservative majority is doing more harm to democracy than any Congress has, and I am in real fear for our future if we can't clean up the court and toss the corrupt justices off, beginning with Clarence Thomas.
John Amato: A Blue America favorite, Rep. Raul Grijalva emailed his thoughts on the decision to corrupt our democracy even more than it already is:
Grijalva Calls Supreme Court Decision on Arizona Campaign Law “A Sign That Wealth Now Decides How Much Free Speech You Get”
Tucson, Ariz. – The Supreme Court earlier today struck down a major portion of Arizona’s campaign finance law granting public funds to candidates whose privately funded opponents spend more than a certain amount during the course of the campaign. Rep. Raúl M. Grijalva, the co-chair of the Congressional Progressive Caucus, called the decision “a troubling sign that wealth now decides how much free speech you get.”
Grijalva said. “Working people’s voices continue to be drowned out by well financed corporations with expert marketing strategies. The Framers of our Constitution never meant for wealthy companies or individuals with their own agendas to drown out the rest of us in public debate, especially not by outspending us.”