Hellman on the fate of Arizona’s matching fund law

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5 Responses

  1. I think you’re missing something: Candidates are competing; For the government to give money to one candidate in a race, and not to another, in response to something that other candidate did, that they were constitutionally entitled to do, is, in effect, punishing that other candidate for exercising a constitutional right.

    The government is not allowed to punish people for exercising their constitutional rights. It follows that, in zero sum situations, it can not reward people for refraining from exercising their constitutional rights, especially if that reward is contingent on somebody else not having refrained.

    Encouraging people to not exercise their constitutional rights is a constitutionally impermissible purpose.

    Leaving this aside, the motive for enacting this sort of legislation is corrupt in itself: It is well established that, in order to have a real chance of defeating an incumbent, a challenger must significantly outspend the incumbent. The purpose of creating a ‘level playing field’ is nothing more than to protect incumbents from challengers.

    Generally this will be the case with just about any form of campaign ‘reform’, in as much as it’s enacted by incumbents. That’s why the whole field should be given up as a bad idea.

  2. Tim Morgan says:

    That there is even a question, much less one with an attempted academic answer, regarding the first amendment issues raised by the AZ matching funds scheme is really quite astounding.

    Doesn’t the logic proceed as follows: Third parties who wish to donate money to a candidate for state office in AZ have a compelling first amendment interest in donating money to their preferred candidate. The AZ law says to candidates, there is certain point at which the first amendment right of people to offer money in support of your agenda will require that the state step in an subsidize your opponent’s campaign to permit him or her to speak in opposition. There is, therefore, a substantial chilling effect on the rights of donors, and potentially an incentive on the part of the candidate to ask a potential donor not to speak/donate money.

    This seems to be a fairly simple question to answer, assuming that you ask the right question. Donating money to a political campaign is an act protected by the first amendment (subject, of course, to reasonable limitations). To say to a candidate for any type of office that to garner a sufficient number of voters willing to support your message, and, thereby, to donate money in support of your message, is to invite the mandated subsidy of your opponent’s speech is a troubling proposition.

    This precept applies without regard for the benevolent motives of the legislature… To make it worse, the persons giving to candidate X are being forced, essentially, to donate to the opponent of their favored candidate for speaking.

    Thanks for the academic discussion, but this is not a hard case.

  3. If I knew nothing else about a case except how the 9th Circuit came down on it, I’m pretty sure I could still decide the case properly. I suspect that’s what’s behind the Supreme Court’s stay of the 9th’s mandate.

  4. Truth Hurts says:

    I realize that, for procedural and substantive reasons, this appears as a First Amendment case, even though the issue could be framed more clearly in other terms. This is because under Slaughterhouse citizens have no substantive right to equal protection outside some specified contexts of racial discrimination et-cetera. However, if it were allowed as an equal-protection case this would be a slam dunk: the State is taxing citizens who support one candidate to fund another. For the State to subsidize unpopular candidates makes a mockery of free elections. All the high-flown rhetoric about public funding diminishing the risk of corruption cannot mask the ugly reality that incumbents have moved from the petty corruption of taking bribes to the supreme corruption of looting the State treasury and using the money to perpetuate themselves in office.

  5. The Crafty Trilobite says:

    Hi, Brett, long time no see. You do a good job of explaining why this law is bad policy. But as Scalia likes to point out, the Constitution does not prevent dumb or dangerous laws as such, and that’s the point of this post.

    You also make a number of logical errors. You overstate greatly when you say this law “punishes” a contributor. It does not even raise his taxes, they’re pre-budgeted. It does not punish his candidate either: if (as the Court stupidly insists) money for speech is speech, then providing counter-money is merely contrary speech, and no punishment at all.

    Who do you think the government “reward”s for not exercising a right? The candidate who receives the matching funds is speaking as much as he can. He doesn’t “refrain” from speech he can’t afford to make, any more than he “refrains” from flying to the moon by flapping his arms.

    You may be right, although I doubt it, to think that the purpose of the law is to discourage speech, rather than to combat plutocracy. But even if you are right, you are utterly wrong when you say a state may not discourage people from exercising their constitutional rights. For instance, the Supreme Court has repeatedly decided that a state may subject women to long diatribes for the express purpose of discouraging them from getting an abortion. Abstinence education is also permissible. The District of Columbia can’t ban handguns, but it can run an ad campaign or teach schoolchildren about the dangers of gun ownership. States may (and do) double your sentence if you insist on a jury trial instead of accepting a plea bargain.