THE BLOG

Will the Supreme Court Vote for Speech?

03/30/2011 02:44 pm ET | Updated May 30, 2011

This week the Supreme Court heard oral arguments in a case that will, as I previously wrote, likely determine the constitutional bounds of public campaign financing programs across the country. In that case, McComish v. Bennett, the Court will rule on whether it is legal to provide publicly financed candidates with additional public funds when they are faced with heavy spending by privately financed opponents or independent expenditure groups.

Those arguing that the law is unconstitutional claim that Arizona's public financing law impermissibly limits the speech (in this case spending equals speech) of privately financed candidates and independent third party spenders because those individuals or groups know that their act of spending money will trigger a public financed candidates ability to get more money. Put another way, petitioners claim that if privately financed candidates and independent expenditure groups know that if they spend money, a publicly financed candidate will get more public funds, then they may chose not to spend that money at all.

First, there's dubious evidence that privately financed candidates and independent expenditures groups have in fact opted not to spend money under Arizona's public financing law. Even if political actors think twice before spending money, that does not mean that their speech is severely burdened. Second, petitioners seem to suggest that Arizona enact a less efficient public campaign financing system. Among other reasons, Arizona created a public financing system with a so-called "trigger" provision because it allows publicly funded candidates to have enough money to remain competitive, while preserving public funds by not wasting money on candidates who do not need additional public funds. This, for instance, is preferable to a public financing program which just provides candidates with a huge lump sum grant, whether they need the money or not.

The trigger provision makes Arizona's public campaign financing program more appealing to candidates by providing them with the option of obtaining the resources needed to reach the voters. The Supreme Court has recognized that public campaign financing programs can serve the important goals of reducing corruption or its appearance by freeing candidates from having to accept potentially corrupting private contributions and allowing more candidates to garner the resources necessary to competitively run for office.

The attorney arguing against Arizona's law began his argument by stating, "This case is about whether the government may insert itself into elections and manipulate campaign spending to favor its preferred candidates." To that I would simply say, "not so." This case is about whether states and localities can structure their public financing systems in a way that provides candidates with additional public funds in competitive/expensive races, and conserves public funds in races where additional funds are not necessary.

Respondents, arguing in favor of Arizona's law, correctly counter that Arizona's law, far from silencing speech, actually promotes it by giving public funded candidates the resources necessary to get their messages out in competitive and/or expensive races. As Justice Elena Kagan questioned in oral arguments, there really is no restriction on speech, and instead, "it's more speech all the way around?"

Sadly, the questioning at oral arguments this week seemed to indicate that the nine Supreme Court Justices would split along the same 5-4 lines that they did in the now infamous Citizens United decisions. Based on her questioning, Justice Kagan, who replaced now-retired Justice John Paul Stevens, seems poised to vote in favor of the constitutionality of Arizona's law.

Towards the end of the arguments Justice Breyer voiced concern with the Supreme Court's recent trend of parsing through and invalidating specific provisions of comprehensive campaign finance statutes. Justice Breyer described the Court's tact as "death by a thousand cuts." When the decision comes down I fear it will be time to get out the band aids and tourniquet.

*Disclosure, I helped to draft an amicus curiae brief filed in favor of respondents.