Bench Memos

Chief Justice Roberts to Arizona: Take Your Thumb Off the Scale!

This morning, Chief Justice John Roberts issued his opinion on behalf of a 5–4 majority in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, Nos. 10-238 and 10-239. You may have heard the case called “McComish,” after the plaintiff now listed second in consolidated court filings.

The Supreme Court struck down the matching-funds provisions in the Arizona Citizens Clean Elections Act. (Campaign “reformers” learned long ago not to call such statutes the “Taxpayer Subsidies to Candidates Act.”)

The act awards matching funds to a publicly funded candidate who has been targeted in privately funded advertising run either by an opposing candidate who is privately funded or by an independent organization. You won’t be surprised to learn that the act does not give privately financed candidates generous subsidies when they are attacked by subsidized candidates or their allies.

But the act was even worse in actual practice, because of a multiplier effect. Subsidies could be given to more than one candidate (think primary elections), as the chief justice noted in one of a series of examples: “If the privately funded candidate spent $1,000 of his own money to conduct a direct mailing, each of his publicly funded opponents would receive $940” (which is a one-for-one match less a supposed 6 percent offset to adjust for the costs incurred by the privately funded candidate, who had to actually raise his funds rather than hold out his hand to the government).

The Court held that such a subsidy scheme “plainly forces the privately financed candidate to ‘shoulder a special and potentially significant burden’ when choosing to exercise his First Amendment right to spend funds on behalf of his candidacy,” and is unconstitutional.

The Arizona case, brought skillfully by litigators at the Goldwater Institute and Institute for Justice, while new, is no surprise. It is an extension of the Davis v. FEC (2008) opinion, which struck down an inflation of campaign-contribution limits solely for candidates (think incumbents) facing self-financers, and of the opinion in Buckley v. Valeo (1976), which held that government putting its thumb on the scale to level one person’s speech to the speech of another is “wholly foreign to the First Amendment.”

The new thing for Court-watchers in McComish will be reading the dissenting opinion of the Couut’s newest member, Elena Kagan, and gauging the level of its adherence to founding principles or to instrumentalism. When Justice Kagan was U.S. solicitor general, she wrote in a brief to the Court that “whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.” The Court rejected that rationale then and did so again only a few hours ago in McComish. The question is, how much of that sentiment did Justice Kagan take with her to the bench from her perch at the U.S. solicitor general’s office? No doubt you’ll be reading more about that question here, and elsewhere, in the days to come.

— Stephen M. Hoersting is co-founder of the Center for Competitive Politics.


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