The Supreme Court majority that in recent years has struck down campaign spending restrictions as assaults on free speech seemed ready Monday to do the same with Arizona’s public financing plan.
Under Chief Justice John G. Roberts Jr. , the court’s conservative majority has declared unconstitutional major portions of the McCain-Feingold campaign finance act. And the court’s loosening of spending constraints on corporations and unions in last year’s Citizens United v. Federal Election Commission roiled the midterm elections.
“Do you think it would be a fair characterization of this law to say that its purpose and its effect are to produce less speech in political campaigns?” Justice Anthony M. Kennedy asked the lawyer for groups challenging Arizona’s Citizens Clean Elections Act.
“I believe that that is a goal, and I believe that’s the effect,” answered William R. Maurer, a lawyer for the Institute for Justice, which represented independent groups objecting to the law’s restrictions.
The case raises a new issue for the court. After a wave of political corruption in the state capital, Arizona voters in 1998 approved a public financing system for statewide and legislative candidates. It grants qualified candidates an initial sum and then provides “matching funds” based on the spending of their privately financed opponents who spend more. Candidates also are granted money if an independent group spends against them or for their opponents.
Maurer told the court that the case was governed by a 2008 Supreme Court decision, in which the court by a 5 to 4 vote struck down the “millionaire’s amendment” in the McCain-Feingold campaign finance act. That provision allowed a congressional candidate to raise money in excess of contribution limits if his or her opponent was spending large sums of personal wealth.
The Arizona law similarly burdens a privately funded candidate, Maurer said, because it turns “my act of speaking into the vehicle by which my political opponents benefit with direct government subsidies.”
Maurer received strong resistance from Justice Elena Kagan. She had argued the Citizens United case as President Obama’s solicitor general and was on the losing side of the court’s 5 to 4 decision.
Kagan challenged Maurer’s contention that the purpose of Arizona’s law was to level the electoral playing field — something the court has said is not sufficient for restricting political spending and speech — rather than to combat corruption.
“That’s what the purpose of all public financing systems are,” Kagan said. She added that for 40 years such systems “have been based upon the idea that when there is a lot of private money floating around the political system, that candidates and then public officeholders get beholden to various people who are giving that money and make actions based on how much they receive from those people.”
Kagan’s support of campaign finance restrictions seemed as strong as that of the justice she replaced, John Paul Stevens. But that does not change the balance on the court.
The justices who have voted to strike down spending restrictions sharply questioned Bradley S. Phillips, a Los Angeles lawyer representing Arizona, after his opening statement that the law results “in more speech and more electoral competition and directly furthers the government’s compelling interest in combating real and apparent corruption in politics.”
Roberts, who did not ask Maurer a question, seemed particularly concerned that the law seemed to discourage spending by independent expenditure groups. “If you knew that a $10,000 expenditure that you would make that would support a candidate would result in $30,000, $40,000, $50,000, depending on how many opposition candidates there were available for them, wouldn’t you think twice about it?” Roberts asked.
“I think thinking twice is not a severe burden,” Phillips responded.
“Well, if you’re thinking twice and one way you’re thinking is not to do it, that sounds like a sufficient burden,” Roberts replied.
Roberts and Justice Samuel A. Alito Jr. also disputed the idea that the goal of the act was not to level the playing field. It even says so on the election commission’s Web site, Roberts said.
The Obama administration is supporting Arizona, and Assistant Solicitor General William M. Jay told Roberts that whatever is written on a Web site “isn’t dispositive of what the voters of Arizona had in mind when they passed this initiative.”
Jay also said that while publicly funded candidates are subjected to a ceiling on their spending, privately funded candidates and independent groups have no such limit.
The court in 1976 held that public financing of campaigns did not violate the Constitution, and Maurer said the challenge of the Arizona law went only to the matching funds portion. A handful of other states have similar laws.
A decision in the combined cases of Arizona Free Enterprise v. Bennett and McComish v. Bennett will come sometime before the court adjourns at the end of June.
