In a 5-4 decision today, the Supreme Court cut down yet another attempt to impose a regime of publicly funded election campaigns in the name of “reform.” The court ruled unconstitutional an Arizona scheme that gave extra cash to publicly funded candidates who faced privately financed rivals.
The decision in the combined cases of Arizona Free Enterprise v. Bennett and McComish v. Bennett did not go as far as some critics of government-financed elections might have liked, but it did mark another setback for those who have sought ever since Watergate to impose schemes that severely restrict the ability of citizens to spend money on political speech. Rather than overrule the entire idea of publicly funded election campaigns, the court concentrated its attention on a mechanism that triggered extra money for some candidates based on how much non-government cash their opponents raised. This trigger system was rightly ruled by the court to be an unconstitutional violation of free speech, since it inhibited Arizonans from giving to candidates who do not take public money because their donations would only generate more taxpayer cash for their opponents.
The court was divided along the same conservative-liberal lines as the groundbreaking 2009 Citizens United decision that ended the government’s ability to restrict spending by groups on political causes linked to elections. Speaking for the liberal minority, Justice Elena Kagan said the Arizona law was constitutional since its goal was “less corruption” and “more speech.” But the very process by which the government sought to favor some candidates and not others based on the sources of their money was itself corrupt.
As Chief Justice Roberts said in his majority opinion, the notion of government tinkering with political speech in order to create an illusion of fairness is the problem: “Leveling the playing field can sound like a good thing. But in a democracy, campaigning for office is not a game.”
The good intentions of so-called campaign finance reformers have proved no protection against the creation of a system that is, if anything, more corrupt than the one they initially thought to overturn in the 1970s. This is an important point, although one the left fails to understand. So long as the government in the form of election commissions or courts is empowered to fine tune the back and forth of election spending, it is on a fool’s errand that will make more mischief than good. When it comes to all forms of political speech, the only thing for state or federal governments to do is to get out of the way. Money spent promoting ideas, causes or candidates is political speech. Efforts to restrict such speech will inevitably harm the cause of democracy.
Though a cautious conservative majority left the basic and faulty premise of publicly financed campaigns in place, this case may represent yet another nail in the coffin of that misguided cause.