There are probably only about 10 guys in America who are cheerfully unconcerned about the influence of multimillionaires on elections. One of them is Charles Koch. David Koch is another, as is Karl Rove. Gov. Scott Walker of Wisconsin and the guy with the top hat on the board of the Monopoly game are two more. Luckily for them, the other five guys currently sit on the U.S. Supreme Court. And judging from this morning’s argument in McComish v. Bennett, there is no principle those five justices will fight harder to preserve than the right of the impossibly wealthy to purchase as much speech as they want and need to win a political campaign.
The free speech issue in McComish is a swirly one, predicated on the novel constitutional theory that less speech makes us all freer (laid out here in Slate by Richard Hasen). The constitutional challenge is to Arizona’s system of voluntary public financing, which allows candidates to opt in to a system thatentitles them to matching funds when their privately financed opponents outspend them by more than a certain amount. The matching funds are capped at three times the original grant. The law, called the Citizens Clean Elections Act, was passed by voter initiative in 1998 in the wake of a raft of state election scandals including AzScam, in which state legislators were caught taking bribes to support gambling legislation. Those kooky Arizona voters—apparently they still don’t understand that the right to buy and sell elections represents the bold beating heart of American liberty.
The plaintiffs’ objection to the Arizona public-financing regime is not that privately financed candidates can’t speak. It’s that when they spend money to speak, they trigger contributions to their opponents. This has a chilling effect on their speech because, they say, each time they speak, they are financing their own demise. In court this morning, the phrase “leveling the playing field” is uttered with the kind of contempt one usually sees reserved for serial rapists and NPR.
William Maurer represents some of the law’s challengers, including Rep. John McComish, currently the Republican majority leader of the Arizona House. Maurer explains that the case is about “whether the government may insert itself into elections and manipulate campaign spending to favor its preferred candidates.” The same five justices who offered up last year’s hit country-and-Western single, “Citizens United Is People Too,” will thus fall all over themselves today to paint the Arizona campaign-finance system as a vicious attempt by government to muffle the speech of America’s defenseless bajillionaires. They are so passionate about this injustice that they interrupt Maurer—who is on their side, mind you—to make his argument for him.
Justice Antonin Scalia: “Mr. Maurer, suppose the government imposes a fine of $500 for all political speech, and people nonetheless continue to engage in political speech and pay the $500. Would that make the $500 penalty for political speech constitutional?”
Justice Samuel Alito: “Suppose the court after this argument sent you a letter saying if you would like to file an additional brief, you have the opportunity to do so, and we’re not going to allow your opponent to file a brief. Would you take advantage of that opportunity?”
Justice Anthony Kennedy: “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?”
And when the Justices are cross-examining the defenders of the clean-elections law, it’s mainly to show how patently unclean their legislation really is.
Chief Justice John Roberts: “Would it encourage more candidates to [accept public financing] if you doubled the amount that was available for every additional amount that the privately financed candidate spends? He spends $1,000 over the amount and the publicly financed candidate gets $2,000. A lot more people are going to do the publicly financing route if that were the case.”
Justice Scalia: “I don’t know how you can say that there’s no evidence that it’s been deterred. Is something true just because you say it? … There was testimony in the district court from individuals who said that they withheld their contributions because of this. It’s obvious statistically also that many of the expenditures were made late in the game, where perhaps they were not as effective, in order to be unable to trigger the matching funds in time for the opposing candidate to do anything about it. I do not understand how you can say that there is no evidence. I mean, maybe you might say I do not find the evidence persuasive, but don’t tell me there’s no evidence!”
The court has found that state efforts to “level the playing field” are impermissible. So when advocates suggest that the object of the public-financing scheme is to prevent corruption, the Chief Justice goes all factcheck.com on them: “I checked the Citizens’ Clean Elections Commission website this morning,” notes Roberts, “and it says that this act was passed to, quote, ‘level the playing field’ when it comes to running for office. Why isn’t that clear evidence that (the law is) unconstitutional?”
Bradley Phillips, arguing in defense of the law, has the temerity to suggest that the public-financing law may well lead to donors “thinking twice” about making campaign contributions but that the same might also be said of the disclosure rules. Roberts cuts him off to grit out: “Our cases, as you know, have drawn a distinction between expression and disclosure.” Kennedy practically busts a blood vessel yelping, “Are you saying that anything that has to be disclosed can also be prohibited? I mean, I just don’t see the equivalence here!”
Apparently the umbrage-o-meter has been calibrated so high today that even simple analogies are unconstitutional. You will never see more empathy on display on the right wing of the court than at the prospect of extremely well-financed candidates unable to pay enough to drown out their competitors. It’s enough to make you want to start a telethon. Even Justice Stephen Breyer, usually the sunny voice of get-along-ish-ness at the court, unlooses a tidal wave of existential doubt toward the end of the argument when he defies counsel to answer him or not, but only if they want to: “McCain-Feingold is hundreds of pages,” he says sadly, “and we cannot possibly test each provision which is related to the others. … And it is better to say it’s all illegal than to subject these things to death by a thousand cuts, because we don’t know what will happen when we start tinkering with one provision rather than another.”
Justices Elena Kagan and Sonia Sotomayor both do their best to try to show that this law doesn’t in fact burden anyone’s free speech and that it was enacted to try to restore voter confidence in elections, a goal that is constitutionally permissible. But it’s clear that this will be a 5-4 reprise of Citizens United and that one more in a long line of campaign-finance restrictions is about to bite the dust. We can call the new single “Some Speech Is More Equal Than Others.” Or better yet, “Death by One More Cut.”