Arizona Free Enterprise and Lucas
So the Supreme Court issued another big campaign finance decision the other day. In Arizona Free Enterprise, the Court struck down a system of public financing that had been adopted by Arizona voters in a 1998 referendum election following a disgusting episode of political corruption. In essence, what the voters of Arizona chose to do was set up a system of public financing of campaigns and to provide a limited amount of extra funding to publicly financed candidates in order to prevent them from being outspent by candidates who chose not to enter the publicly financed system.
Maybe the summer heat has gone to my head, but, to me, Arizona Free Enterprise is reminiscent of one of the most interesting yet lesser-known of the cases from the Warren Court’s one person, one vote Redistricting Revolution of the 1960s: Lucas v. The Forty-Fourth General Assembly of the State of Colorado (1964). The main connection is that there does not seem to be a decent animating structural theory as to why the Court should intervene to block a democracy-related referendum adopted by the electorate of the state. Bear with me a moment as I make the case for a connection between the two decisions rendered more than forty-five years apart.
The first thing to understand is the context in which many of the seminal one person, one vote challenges were raised. In many of those cases, a state legislature had refused for many years to redistrict in order to reflect shifting populations, and this inertia resulted in fairly significant disparities between the most populated and least populated districts in both houses of a state legislature. So, for example, in the groundbreaking case of Baker v. Carr (1962), the Tennessee legislature had refused the redistrict for more than 60 years with the result that there were disparities between the most populated and least populated districts of as much as 11:1.
Important, though, was that in many of these states with a vast population differential between the most populated and least populated districts, there was nothing the voters could do to address the problem because incumbent politicians held all the cards. Again taking Baker v. Carr as an example, efforts to address the problem of population disparities in Tennessee through entreaties to the legislature itself, to the courts, and by the governor had all failed. In short, in many of these cases, the electorate was stymied from changing a system that seemed to operate in favor of incumbents and certain interest groups (i.e., rural voters).
Lucas, though, was different in several respects from many of the other cases initially decided by the Warren Court. Lucas involved the Colorado legislature. However, unlike the Tennessee system challenged in Baker, the system in Colorado had been adopted in 1962 and, thus, wasn’t a creature of a bygone era. Moreover, Colorado’s system had a much smaller ratio between the most populated and least populated districts—less than 4:1. In addition, the Lucas Court acknowledged that one body of the Colorado legislature (the House) arguably had districts of equal enough population. Finally, Colorado’s system had been adopted by the voters at a referendum election. In other words, unlike in Tennessee, Colorado’s voters held and had exercised an ultimate trump card.
Yet despite these differences, the Lucas Court struck down Colorado’s electoral system as a violation of the Equal Protection Clause. But why? There was little, if any, evidence of a structural flaw in Colorado’s system that merited federal judicial intervention. The Lucas Court, though, found an individual right to an equally weighted vote that was burdened by Colorado’s system and noted that such an individual right could not be deprived by referendum—even a referendum that was overwhelmingly supported by urban and rural voters alike. The thing is, though, that there was very little, if any, burden on any individual voter. An individual vote has little value and there was no evidence that anybody in Colorado was being denied the ability to cast a ballot. In other words, Lucas assumed Colorado’s voter-adopted system burdened individual rights without evidence that much of a burden existed.
In Arizona Free Enterprise, the Court struck down Arizona’s campaign finance system as a violation of the First Amendment. But again, why? While previous Supreme Court decisions striking down campaign finance regulations—such as the Millionaire’s Amendment found unconstitutional in Davis—might be justified as a check on incumbents trying to rig the system in their favor, to the best of my knowledge, there’s no evidence that Arizona’s campaign finance law was adopted by the voters for the purpose of protecting incumbents. Moreover, there does not seem to be much evidence that the Arizona law actually burdens individual speech—absolutely no one is prevented from speaking. Indeed, the majority opinion’s biggest flaw in Arizona Free Enterprise is the lack of any solid evidence of a burden on individual speakers. Moreover, there was no evidence of a structural flaw in Arizona’s politics: statistics from Justice Kagan’s dissent show there was plenty of competition and plenty of money being spent on campaigning in Arizona. It is interesting, then, that toward the conclusion of the opinion, Arizona Free Enterprise resorts to similar language as found in Lucas that individual rights can’t be taken away through referendum.
So, in my view, Lucas and Arizona Free Enterprise share a lot in common: both involved electoral regulations passed by voters at a referendum election, neither appeared to involve incumbents gaming the system in their own favor, and both fail to demonstrate that the regulations being struck down have much of a burden on individuals. In short, both cases seem divorced from attacking any structural failure in state politics and instead focus on individual burdens that seem, at best, slight.
If one buys the analogy between the two cases, then an interesting thing is how the Roberts Court in the campaign finance realm seems to be acting similarly to the Warren Court in the one person, one vote context. Both are engaged in striking down state laws based upon a hard-to-pin-down individual rights absolutism that seems divorced from larger structural concerns. Who knew the Roberts and Warren Courts could be such close election law kins? Then again, maybe that’s what we should have expected.