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Is Kagan More Liberal than Breyer?



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On this case, she might be. Yesterday, the Supreme Court heard oral arguments in Arizona Free Enterprise v. Bennett. The case concerns Arizona’s public-financing system for state candidates. Under current law, a candidate who agrees to accept no donations from special-interest groups (and no more than $140 from an individual donor) becomes eligible for public financing. The bone of contention, however, is the state’s promise of matching funds: If a nonparticipating candidate spends more than the permitted sum, the state will compensate the participating candidate by an equivalent amount.

In the Wall Street Journal, Bradley Smith, a former member of the Federal Elections Commission, explains the law’s “chilling effect” on political speech:

Suppose that in a three-way primary, a single nonparticipating candidate, a centrist, is fighting criticism from participating candidates to his left and right. If he spends $10,000 over the trigger, each of his opponents gets a $10,000 match. Thus, the nonparticipating candidate’s $10,000 in added spending leads to the deployment of $20,000 in tax subsidies against him. 

In other words, the system discourages the candidate from spending that $10,000, because he knows it will result in $20,000 in spending against him.

Nick Dranias, director of the Center for Constitutional Government at the Goldwater Institute, which is one of the lead plaintiffs, believes the oral argument went well. “The justices recognized that a system that requires a person to operate their campaign under the threat of the government subsidizing their opponent chills speech,” he tells National Review Online. “The Court understood that its earlier decision in Davis v. FCC controlled the case.”

Fergus Cullen, executive director of the Yankee Institute, which filed an amicus brief on Goldwater’s side, tells NRO that Justices John Roberts, Sam Alito, and Antonin Scalia seemed most sympathetic to their side, and that Justice Elena Kagan led the charge against them.

Kagan’s challenge amounted to a simple assertion: By subsidizing candidates, the government was creating more speech, not less. “What was interesting was that Justice Kagan wrote a law-review article on the danger of allowing the government to equalize election opportunities,” Dranias observes. “Her academic work suggested that she would be receptive to our arguments. However, in her questioning she pretty much hammered away with the same, tired, inaccurate positions that the respondents had tried to advance.”

Because the Supreme Court has held previously that leveling the playing field is an impermissible reason for the government to intrude into campaigns, the defendants argued that the law’s purpose was to root out corruption.

“Chief Justice Roberts confronted counsel for state with the fact that the website for the state-elections commission proudly declares that its purpose is leveling the playing field,” Dranias says. “You never find anywhere a clear claim that this is an anti-corruption vehicle.”

Ultimately, Dranias believes the plaintiffs will win the case: “Justice [Stephen] Breyer actually spent more time wondering about what the remedy should be than what the burden on speech was. So the reputed member of the more liberal wing of the Court was already focusing on how to conclude the case and how to offer a remedy . . . which leads me to believe the court is already thinking this is a constitutional violation.”



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