Friday, June 11, 2010;
ON THE SUBJECT of campaign finance regulation, the Supreme Court is out of control. The latest manifestation is the court's unwarranted intervention in Arizona's upcoming election. For more than a decade, elections for state office in Arizona have been conducted under a voluntary system of public financing. Among other provisions, participating candidates receive additional public funds if their wealthy or otherwise well-funded opponents choose not to take part in the system and choose to spend more than a specified amount. Some would-be big spenders challenged the law, claiming that the extra public funds violated their free-speech rights. In advance of deciding whether to hear that case, the justices took the extraordinary -- and extraordinarily unwise -- step of issuing an emergency order to block the state from dispensing the extra funds.
This move came despite the fact that, with a primary just a few months away, candidates had made strategic decisions based on the existing system and were expecting the money later this month. Gov. Jan Brewer, for example, was eligible for up to $1.4 million in extra funding because her opponent in the Republican primary, businessman Buz Mills, had already spent more than $2 million. Calling the court's action "terribly troubling," the governor noted that "it is extremely unusual for the judicial branch to change the rules of an election while it is being held."
The notion that the First Amendment speech rights of wealthy or well-funded candidates are violated when extra money flows to their opponents turns the notion of free speech on its head. Under Arizona's system, no one's speech is being silenced or squelched. There is more speech, not less, because competing candidates get extra money to have their voices heard in the clamor of an expensive campaign. This is a different situation than that confronted by the high court two years ago in a case involving the so-called Millionaire's Amendment, part of the McCain-Feingold campaign finance law. In that case, the court, splitting 5 to 4, overruled a provision that permitted candidates competing against self-funded opponents who spent more than a specified amount to raise money in larger increments than normally permitted. With the Millionaire's Amendment, wealthy candidates were disadvantaged by what the court called a "scheme of discriminatory contribution limits." No such discrimination was present in this case. Rather, as the U.S. Court of Appeals for the 9th Circuit explained in rejecting the challenge, the ability to provide an extra boost to participating candidates facing big-spending opponents is essential to the public financing system.
It takes five votes to grant a stay, and only four to agree to hear a case, so it is likely the justices will agree to review the law. Given the court's recent record of invalidating well-considered legislative efforts to deal with the perception and risk that campaign cash is corrupting state and federal politics, the signs for the Arizona law are not promising. Those who complain about judicial activism might start with the current court's campaign finance jurisprudence.