Skip Navigation
Expert Brief

A Loss for 'We the People’

The high court’s ruling in the Arizona public financing case is no win for free speech. It actually stifles speech by creating a new right to speak without response.

  • Mimi Murray Digby Marziani
Published: July 18, 2011

Published in The National Law Journal.

On the last day of its 2010–11 term, the U.S. Supreme Court struck down a critical part of an Arizona law that awarded eligible candidates public funds to run their campaigns for state office, effectively killing the state’s public-financing program. To many, this news is a surprise: Public financing has historically been praised by federal courts for furthering constitutionally cherished values of equality, free speech and political participation. Indeed, in Buckley v. Valeo, a famous 1976 opinion, the Supreme Court stated explicitly that such programs “facilitate and enlarge public discussion and participation in the electoral process, goals vital to a self-governing people.”

So why, you may ask, did a narrow majority of the current Court, led by Chief Justice John Roberts Jr., disrupt Arizona’s long-standing and widely popular program? The answer, unfortunately, cannot be found in First Amendment law or in the facts of the Arizona case.

First, some background. At issue in Arizona Free Enterprise Club v. Bennett was the so-called “trigger funds” provision of Arizona’s Clean Elections Act. When publicly funded candidates opted into the program, they received lump sums of public money in exchange for stopping all private fundraising, among other conditions. If, however, a publicly funded candidate found herself in a particularly competitive race, she could be eligible for extra cash. These additional funds were triggered by the high spending of her privately financed opponent or a hostile outside group.

As Justice Elena Kagan explained in her sharp dissent, “Additional campaign speech and electoral competition is not a First Amendment injury.” Under settled constitutional doctrine, public subsidies of this sort are allowed so long as they do not discriminate against any particular speaker. In fact, we have long encouraged government efforts to subsidize useful speech — such as giving funds to student groups at state universities, or providing tax breaks for churches, or publicly endowing the arts.

Arizona’s program was clearly nondiscriminatory — it was open to any candidate who wanted to play by its rules. And, of course, it did not restrict the speech of those who chose not to participate: Nonparticipants remained free to raise and spend unlimited amounts and, according to the case’s clear evidentiary record, they did exactly that. The trigger funds simply gave publicly funded candidates the chance to fight back in competitive races.

So again, where’s the First Amendment injury?

To justify the result in Arizona Free Enterprise Club, Roberts was forced to create a new right — the right to speak without response. Although he paints trigger funds as providing a competitive advantage to publicly funded candidates vis-à-vis their privately funded counterparts, this does not accord with political reality. In fact, the candidate who agrees to rely solely on public funds simultaneously agrees to shoulder the ultimate disadvantage; when her public funds are capped, any well-endowed, privately financed adversary will just keep going.

As legal support, Roberts defensively clings to another case of his Court’s making, Davis v. FEC, decided in 2008. There, the same narrow majority invalidated a federal law that expressly benefited congressional candidates who faced a Meg Whitman-like opponent. Under that law, the millionaire’s personal spending triggered higher contribution limits for the poorer candidate, so that he could collect larger donations.

At first glance, the unlawful triggers in Davis may look like the trigger funds in the Arizona law. But there are crucial differences. The Millionaire’s Amendment triggered an unconstitutional result — different rules for similar speakers playing the same game. In doing so, it blatantly discriminated against millionaires, and thus ran afoul of the Court’s prior precedent. The triggers within the Arizona law, on the other hand, led to more public funds to subsidize responsive speech — a clearly constitutional result. Moreover, Arizona’s triggers operated within the context of a public-financing system, where different rules necessarily applied to participants versus nonparticipants. And so, while Davis provides superficial cover, it cannot validate Roberts’ thinly reasoned opinion.

At the end of the day, however, what is worst about Arizona Free Enterprise Club is what it leaves out. The majority opinion largely ignores that Arizona’s program was enacted to curb political corruption by ensuring that candidates owe their campaign success to taxpayers, not fat-cat donors. Roberts also overlooks that public financing gives regular folks — those of us without corporate connections or trust funds — the ability to compete for political office, thereby broadening the choices available to voters. Arizona’s interest in bettering its democracy was utterly disregarded.

Instead, just as it did in last year’s Citizens United decision, the Roberts Court used the First Amendment to shield the most powerful voices — and silence everyone else. As Kagan admonished, “Truly, democracy is not a game.” She’s right. But, unfortunately, this time, “We the People” lost.