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Supreme Court Strikes Down Arizona Law But Leaves Public Financing Intact

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WASHINGTON -- The Supreme Court struck down a controversial Arizona public financing measure on Monday by its usual 5-4 margin -- but it resisted the temptation to gut the legal underpinnings that support provisions such as presidential matching funds.

The court's narrowly constructed ruling in the case known as McComish v. Bennett concluded that Arizona's variation on public financing violated the First Amendment. The Arizona law triggered extra, taxpayer-funded matching funds for participating candidates when non-participating candidates -- or even independent groups -- increased their private spending.

What seemed to irk the majority the most was the notion that the choice by an independent group to spend more money on "political speech" -- i.e., paid advertisements -- would result in a guaranteed financial payout to the publicly funded candidate (or candidates) the group opposed.

For Chief Justice John Roberts and his four reliable conservative allies, the idea that anyone -- especially independent groups -- could be inhibited from spending as much as they want on "political speech" is abhorrent. That's a consistent theme of a series of recent rulings that struck down decades of campaign finance reform rules, equated money with speech and promoted the rights of corporations.

In Arizona, the extra matching funds were triggered when privately funded candidates or independent groups reached certain spending caps.

"Once the spending cap is reached, an independent expenditure group that wants to support a particular candidate -- because of that candidate’s stand on an issue of concern to the group -- can only avoid triggering matching funds in one of two ways," Roberts wrote in the majority decision.

"The group can either opt to change its message from one addressing the merits of the candidates to one addressing the merits of an issue, or refrain from speaking altogether," he added. "Presenting independent expenditure groups with such a choice makes the matching funds provision particularly burdensome to those groups. And forcing that choice -- trigger matching funds, change your message, or do not speak -- certainly contravenes 'the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message.'"

Arizona's law was passed in 1998 after a wave of corruption scandals. The idea was to encourage candidates to forgo the scramble for money, with all its inherent invitations to corruption -- to spend more time speaking to the electorate, and less time speaking to potential funders.

In that sense, its goal was very much to increase genuine political speech. But to the Roberts court, money as speech takes precedence over speech as speech.

The court's majority clearly telegraphed its antipathy to the Arizona provision during oral arguments in March. The only real suspense was whether they would go further, and use the case to cast doubt on public financing generally.

So there was a sense of relief in the good-government community Monday.

"This is not the death knell of public financing. This ruling affects only one mechanism of public financing, and there are numerous ways to fix it," said Common Cause president Bob Edgar in a statement. "Today, in the wake of Citizens United, it is more critical than ever that we change the way we pay for our elections by moving to a small donor system that gives the public a voice back in our government. Nothing short of our democracy is at stake."

The Brennan Center for Justice, which helped defend the Arizona law before the Supreme Court, also weighed in on the ruling. “We regret the Supreme Court's decision today to strike down a provision of the Arizona campaign law," wrote Executive Director Michael Waldman in a statement. "Unfortunately, this is the latest recent example where the Court has struck down longstanding laws designed to curb the corrupting role of large campaign contributions."

But, he added: "After the Court's ruling today, one key fact is clear. Public financing remains Constitutionally strong. The Court recognized public funding can 'further significant governmental interest[s], such as the state interest in preventing corruption.' These voluntary systems strengthen democracy."

The goal of public financing generally is to remove the pressure to seek huge, potentially corrupting pots of money from big donors. The best known application is the presidential matching fund -- the $3 checkoff on 1040 forms. It will continue, although it also faces some serious practical and legislative challenges.

President Barack Obama became the first candidate in the history of federal funding to decline the matching money for the general election in 2008, although he vehement defended the measure in theory after the GOP-controlled House voted to kill public financing entirely in January. Meanwhile, campaign finance reformers are trying to revive public financing by increasing limits and matches.

Justice Elena Kagan on Monday began her blistering minority dissent with a morality play comparing two states. One of them limits itself to what is essentially current federal campaign finance law -- and "remains afflicted with corruption." The other tries to create a robust public-financing regime -- and rids itself of corruption. The majority, Kagan writes, has taken the side of corruption.

Here is the beginning of her dissent:

Imagine two States, each plagued by a corrupt political system. In both States, candidates for public office accept large campaign contributions in exchange for the promise that, after assuming office, they will rank the donors' interests ahead of all others. As a result of these bargains, politicians ignore the public interest, sound public policy languishes, and the citizens lose confidence in their government.

Recognizing the cancerous effect of this corruption, voters of the first State, acting through referendum, enact several campaign finance measures previously approved by this Court. They cap campaign contributions; require disclosure of substantial donations; and create an optional public financing program that gives candidates a fixed public subsidy if they refrain from private fundraising. But these measures do not work. Individuals who "bundle" campaign contributions become indispensable to candidates in need of money. Simple disclosure fails to prevent shady dealing. And candidates choose not to participate in the public financing system because the sums provided do not make them competitive with their privately financed opponents. So the State remains afflicted with corruption.

Voters of the second State, having witnessed this failure, take an ever-so-slightly different tack to cleaning up their political system. They too enact contribution limits and disclosure requirements. But they believe that the greatest hope of eliminating corruption lies in creating an effective public financing program, which will break candidates' dependence on large donors and bundlers. These voters realize, based on the first State’s experience, that such a program will not work unless candidates agree to participate in it. And candidates will participate only if they know that they will receive sufficient funding to run competitive races. So the voters enact a program that carefully adjusts the money given to would-be officeholders, through the use of a matching funds mechanism, in order to provide this assurance. The program does not discriminate against any candidate or point of view, and it does not restrict any person's ability to speak. In fact, by providing resources to many candidates, the program creates more speech and thereby broadens public debate. And just as the voters had hoped, the program accomplishes its mission of restoring integrity to the political system. The second State rids itself of corruption.

A person familiar with our country's core values -- our devotion to democratic self-governance, as well as to "uninhibited, robust, and wide-open" debate, New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964) -- might expect this Court to celebrate, or at least not to interfere with, the second State's success. But today, the majority holds that the second State's system -- the system that produces honest government, working on behalf of all the people -- clashes with our Constitution. The First Amendment, the majority insists, requires us all to rely on the measures employed in the first State, even when they have failed to break the stranglehold of special interests on elected officials.

I disagree. The First Amendment's core purpose is to foster a healthy, vibrant political system full of robust discussion and debate. Nothing in Arizona's anticorruption statute, the Arizona Citizens Clean Elections Act, violates this constitutional protection. To the contrary, the Act promotes the values underlying both the First Amendment and our entire Constitution by enhancing the "opportunity for free political discussion to the end that government may be responsive to the will of the people." I therefore respectfully dissent.

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