Hellman on the fate of Arizona’s matching fund law
Below Deborah Hellman (whose work we recently featured in an online symposium) offers her thoughts on the Supreme Court’s reinstatement of the injunction against Arizona’s matching fund law:
On Tuesday, the Supreme Court reinstated the injunction against the application of Arizona’s matching fund law. The law at issue in McComish v. Bennett provides matching funds for candidates accepting public funding whose opponents spend or benefit from independent expenditures which together exceed the initial grant of public funds. The District Court initially issued an injunction. The 9th Circuit vacated the injunction and the Supreme Court has now reinstated it. As the concurring opinion of Judge Kleinfeld of the 9th Circuit points out, the law at issue contains no spending or contribution limits. Why then is the First Amendment even implicated?
Speaking in response to a persuasive argument by an opponent is not a restriction on speech. The “remedy to be applied is more speech.” (Whitney v. California, Brandeis, J. concurring) While the Court has held that restrictions on contributions or spending are restrictions on speech and in that way equated money with speech, these decisions do not lead to the conclusion that public funding of candidates raises First Amendment problems. Rather, the Court has repeatedly approved of public funding as in line with the First Amendment. Even if money facilitates speech, clearly spending can be met with more spending without raising any First Amendment problems. Especially, as Judge Kleinfeld points out, “when the same subsidy is available to the challenger if the challenger accepts the same terms as his opponent.”
The plaintiffs argue that the fact that their opponents will qualify for matching funds if the plaintiffs spend more than a specified amount leads them sometimes to censor themselves. The 9th Circuit majority rejects this claim because it finds insufficient evidence to support it. But even this concedes too much. The fact that government action may cause me to censor myself doesn’t by itself establish that the government action restricts speech. It matters how the government action leads to self-censorship. When Congress enacted civil rights laws, it changed norms of behavior such that racist statements were no longer socially acceptable. In doing so, Congress may have caused some politicians to self-censor their racist remarks. Yet clearly the enactment of civil rights laws does not abridge the freedom of speech of those who self-censor in response. In order to raise a potential First Amendment issue, the state must act by restricting or punishing some speech or conduct. When the government speaks, as when it passes civil rights laws, any chilling of speech this causes raises no First Amendment problem. Similarly, if the government offers money to candidates whose opponents spend a lot of money, the fact that this may chill some spending and thereby some speech is, quite simply, irrelevant.
But what about Davis v. FEC, the 2008 case in which the Supreme Court invalidated the so-called “Millionaires’ Amendment” of the Bipartisan Campaign Reform Act (“BCRA”)? The portion of the law at issue in that case is different in two important ways, both emphasized by the majority and concurrence in the 9th Circuit opinion in McComish. First and most significantly, the “Millionaires’ Amendment” dealt specifically with contribution limits. It raised the contribution limits for contributors to opponents of self-funded candidates spending more than a trigger amount. As the Supreme Court has held repeatedly that contribution limits, though justified, are restrictions on speech, BCRA implicates the First Amendment. The Arizona law does not affect contribution limits and thus raises no First Amendment issue. Second, Davis found that raising contribution limits for opponents of self-funders did not further the goal of avoiding corruption as higher contribution limits raise more, not less, danger of corruption. The Arizona law, by contrast, provides additional public funding for opponents of high spending candidates. As the Court has recognized, public funding is good in part because it diminishes both the risk of corruption and the appearance of corruption. This makes the cases importantly different at well.
The fact that the Court has stopped Arizona from using matching funds suggests that the Court does not share this analysis. Let’s hope this prediction proves mistaken.