The Supreme Court Refurbishes the First Amendment in Arizona

Hans von Spakovsky /

The Supreme Court, led by Chief Justice John Roberts, issued an outstanding decision today (PDF) properly applying the First Amendment when it struck down as unconstitutional Arizona’s public financing system for political candidates.  There is no doubt that Roberts and the four justices who joined him in the majority opinion in Arizona Free Enterprise Club v. Bennett will be assailed by the same misinformed critics that went after the Court for its decision in Citizens United.  But our history and fundamental principle of protecting free speech leaves no doubt that the Court acted properly when it threw out a law that impermissibly burdened and censored the political speech of Arizona candidates and independent groups.

The Arizona Citizens Clean Elections Act gives an initial public grant of funds to participating candidates who accept its other campaign restrictions.  But it also provides additional matching funds if a privately financed candidate’s expenditures, combined with the expenditures of independent groups made in support of the privately financed candidate or in opposition to a public financed candidate, exceed the publicly financed candidate’s initial funding.  As five members of the Supreme Court recognized, this matching funds provision imposes a substantial burden on the political speech of privately financed candidates.  Every dollar that a candidate spends on election speech getting out his message will result in additional dollars going to each of his publicly financed opponents.  Spending by independent groups will have the same effect, benefitting his publicly financed opponents, regardless of the fact that such spending by independent groups is by definition totally outside the control of the privately financed candidate.

The Arizona law also severely burdens the political speech of independent groups.  Every dollar they spend on election speech guarantees a financial payout to the publicly funded candidate the group opposes – and spending one dollar may result in multiple dollars going to multiple publicly financed candidates.  And independent groups are not entitled to get public funding for their political speech.  So the only way that independent groups – and privately financed candidates – can avoid matching funds going to their opponents is by censoring their speech or not speaking at all.  For the government to impose such a burden on anyone exercising their right to engage in political speech and activity is unconscionable – there is no question it is unconstitutional.

Proponents of this state law made it clear that they were interested in “leveling the playing the field.”  But the Court has said on numerous occasions that the Constitution and the First Amendment do not allow you to burden or censor someone’s speech to level the electoral playing field.  If it did, then the amount of political speech you were allowed to engage in would depend on your income level or how much you had already spoken relative to other speakers, a crazy idea that unfortunately too many liberals (including justices of the Court) think is a good idea.

The bottom line of the Arizona law is that it financially punishes individuals and groups for speaking.  As the Court said, citing to the landmark New York Times Co. v. Sullivan case in 1964, we have a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.”   What the Court said in Sullivan was “True when we said it and true today.  Laws like Arizona’s matching funds provision that inhibit robust and wide-open political debate without sufficient justification cannot stand.”

The true irony here is that in 1964 the New York Times litigated on behalf of free speech.  Today, the newspaper is consistently on the wrong side of this issue and if it keeps to recent editorial form, will likely be one of the main critics of the Court for this decision.  But the holding written by Chief Justice Roberts is in the best tradition of American liberty and freedom.