A Supreme Court that is increasingly skeptical of campaign finance restrictions is returning to the issue for the first time since last year’s game-changing ruling that corporations and unions may spend whatever they like on behalf of candidates.
The only thing certain about Round 2, which begins Monday, is that those who favor government restrictions are far more nervous than their opponents about what comes next.
A scant majority of the court under Chief Justice John G. Roberts Jr. has consistently sided with challengers to campaign finance restrictions. It has systematically cut back provisions of the McCain-Feingold campaign finance law.
And its decision in Citizens United v. Federal Elections Commission , which liberated corporate and union spending, prompted an outpouring of criticism from President Obama and Democrats and recast the 2010 elections.
Campaign finance restriction advocates such as J. Gerald Hebert and Tara Malloy of the Campaign Legal Center warn that the court once again is “poised to issue a ruling that could make it harder for ordinary citizens to compete with big money in our democracy.”
The case to be heard Monday concerns a provision in Arizona’s public campaign financing law that increases funding for those facing big-spending opponents or interest groups.
It is the first time the court has considered a public finance system since its landmark decision in 1976 that the presidential public funding system was constitutional.
In a memo to supporters, Hebert and Malloy wrote that an adverse ruling from the court “could undermine public financing systems across the country and increase still further the grossly disproportionate voice given to corporations and unions in our elections.”
Those on the other side are encouraged by the recent actions of the court, saying the justices are asserting that the First Amendment’s protection of political speech sets a high hurdle for the government to restrict campaign spending.
They have launched challenges of federal and state campaign finance restrictions across the country, and the Arizona case could provide another signal about how willing the justices are to advance the cause.
“I think they have a healthy and realistic skepticism about the government trying to influence” campaign spending, said William R. Maurer, a lawyer for the Institute for Justice, one of the groups objecting to the Arizona law.
In his brief to the court, Maurer writes that the case will determine whether the government may force those who do not accept public funds to “choose between unfettered political expression and funding advantages for their political rivals.”
Since the Citizens United decision, the court has declined two chances, both advanced by the Republican National Committee, to relax fundraising and spending restrictions on the political parties.
But it made clear this past summer it has concerns about the Arizona system, ordering the state not to distribute the matching funds in the midst of the 2010 elections.
“I never dreamed they would step in in the middle of the race,” said Todd F. Lang, executive director of the Arizona Citizens Clean Elections Commission, which administers the public financing program.
The system has been used in every statewide and legislative election since voters approved it in 1998. It was enacted after a period in the state’s history when a “seamless interplay between fundraising and lawmaking cast a web of perceived corruption over the Arizona capitol,” according to the state’s brief to the court.
In response, voters approved public financing of campaigns, providing qualified candidates with an initial grant of money. It also gives them “matching funds” if they face privately financed candidates who spend more, or if an independent group spends money against them or for their opponents.
Challengers, including a conservative political group and candidates who have raised their own campaign funds, say the matching funds are unconstitutional. They say the system forces candidates to curtail their own spending, and thus their political speech, to avoid triggering more funds for their opponents.
“Public financing in Arizona’s matching funds system forces a yoke around the neck of traditionally funded candidates,” according to the brief by the Goldwater Institute, one of the legal groups challenging the law.
The challengers say the system is meant to level the playing field, something the Supreme Court already said is not sufficient for overcoming constitutional speech protections.
In its 2008 decision in Davis v. FEC , the court by a 5 to 4 vote struck down the “millionaire’s amendment” in the McCain-Feingold campaign finance act. That provision allowed a congressional candidate to raise money in excess of contribution limits if his or her opponent was spending large sums of personal wealth.
Justice Samuel A. Alito Jr. wrote for the majority that such a system imposed “an unprecedented penalty on any candidate who robustly exercises” free-speech rights.
The state and its supporters counter that Davis concerned a different kind of law, one that treated candidates for the same office differently. The federal law permitted a candidate to accept three times the amount allowed from individual donors when an opponent was self-funded and free-spending.
“Arizona’s law does no such thing,” said a brief filed by a group of former Republican and Democratic officeholders from across the country. “It finances, rather than limits, campaign speech, and it thus promotes, rather than burdens, First Amendment values.”
The state says about two-thirds of Arizona candidates now opt for public funding, and campaign spending has increased over the years. It contends there is no reliable evidence that candidates curb their own spending to deny matching funds to their opponents.
The combined cases are Arizona Free Enterprise Fund v. Bennett and McComish v. Bennett.