On Tuesday, the Supreme Court issued an order that can only be described as irresponsible. About two months from the primary election and five months from the general, the Court blocked the state of Arizona from providing its publicly-funded candidates with so-called trigger funds – additional public grants triggered by the high spending of nonparticipating opponents or hostile third parties. The Court, ruling on an emergency motion, offered no explanation with its three-sentence order. And, the Court breaks for the summer in two weeks, so there is virtually no chance that this case will be decided on its merits until fall. By that time, of course, it will be too late for many of Arizona’s candidates, who – in some cases – will have to wage hyper-competitive electoral contests on one-third of the funding they originally anticipated.
In the aftermath, some are proclaiming the end of public funding programs writ large. The New York Times, for example, has sounded a death knell, predicting that “state finance programs [will] be the [C]ourt’s next conquest.” This story of demise is, however, greatly exaggerated.
Clearly, there is good reason to condemn the Court’s actions. But to decry the death of public financing is simply alarmist – and inaccurate. In fact, public funding of elections remains the constitutionally optimal way to curb political corruption. As the Supreme Court explained long ago in its famous Buckley v. Valeo decision, providing public money to finance campaigns “facilitate[s] and enlarge[s] public discussion and participation” and thus “furthers, not abridges, pertinent First Amendment values.”
The Court’s recent order has no bearing on these general principles. The Arizona case centers on one aspect of the state’s public funding system – the trigger funds. Challengers argue that the prospect of triggering additional monies for their political foes chills them from speaking. A unanimous Ninth Circuit refused to buy this novel claim of First Amendment injury, reaffirming that “the First Amendment includes no right to speak free from response.” The Court of Appeals also found that there is no evidence of chill, i.e., no sign that the plaintiffs would spend right up to the triggering threshold but no more. In this context, it was – to say the least – a surprising act of judicial activism for the Court to suddenly throw a wrench into Arizona’s decade-old public funding program. Now, we simply have to wait and see how the Supreme Court ultimately rules.
In the meanwhile, we can rest assured that the numerous public financing systems without trigger provisions sit on firm legal ground. For example, the Fair Elections Now Act (“Fair Elections”) – legislation that would provide congressional candidates with public funding – is certainly constitutionally sound. Under Fair Elections, qualified candidates would receive an initial lump-sum grant, plus a four-to-one match of individual contributions up to $100. This scheme rewards a participating candidate for fundraising from a broad base of small donors while avoiding the legal questions raised when additional grants are triggered by nonparticipants’ spending.
Whatever the case’s final outcome, the Court’s hasty action demonstrated its willingness to embrace a First Amendment “right” of high-spending interests to pour money into campaigns. Robust public financing systems, such as Fair Elections, are needed to ensure that the voices of ordinary citizens are not rendered irrelevant. Now, more than ever, we must embrace public funding as the “more speech” solution to the problems wrought by big money in politics.