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.

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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.