U.S. Supreme Court prefers monied speech to liberated speech

| June 28, 2011 | 2 Replies

The U.S. Supreme Court has continued its project of creating coin-operated elections in America, with its decision in the Arizona case of McComish v. Bennett. The Supreme Court struck down a provision of the Arizona law that would increase state candidate financing when an opponent of a clean money candidate financially increased his or her stake in dirty money. Here’s how the stricken provision was described in the Court’s syllabus:

They are also granted additional matching funds if a privately financed candi- date’s expenditures, combined with the expenditures of independent groups made in support of the privately financed candidate or in op- position to a publicly financed candidate, exceed the publicly financed candidate’s initial state allotment. Once matching funds are trig- gered, a publicly financed candidate receives roughly one dollar for every dollar raised or spent by the privately financed candidate— including any money of his own that a privately financed candidate spends on his campaign—and for every dollar spent by independent groups that support the privately financed candidate.

Dan Froomkin of Huffpo offers this analysis:

Arizona’s law was passed in 1998 after a wave of corruption scandals. The idea was to encourage candidates to forgo the scramble for money, with all its inherent invitations to corruption — to spend more time speaking to the electorate, and less time speaking to potential funders. In that sense, its goal was very much to increase genuine political speech. But to the Roberts court, money as speech takes precedence over speech as speech.

Justice Kagan’s Dissent hammers the Majority’s pro-corruption position in the form of a story:

Imagine two States, each plagued by a corrupt political system. In both States, candidates for public office accept large campaign contributions in exchange for the promise that, after assuming office, they will rank the donors’ interests ahead of all others. As a result of these bargains, politicians ignore the public interest, sound public policy languishes, and the citizens lose confidence in their government.

Recognizing the cancerous effect of this corruption, voters of the first State, acting through referendum, enact several campaign finance measures previously approved by this Court. They cap campaign contributions; require disclosure of substantial donations; and create an optional public financing program that gives candidates a fixed public subsidy if they refrain from private fundraising. But these measures do not work. Individuals who “bundle” campaign contributions become indispensable to candidates in need of money. Simple disclosure fails to prevent shady dealing. And candidates choose not to participate in the public financing system because the sums provided do not make them competitive with their privately financed opponents. So the State remains afflicted with corruption.

Voters of the second State, having witnessed this failure, take an ever-so-slightly different tack to cleaning up their political system. They too enact contribution limits and disclosure requirements. But they believe that the greatest hope of eliminating corruption lies in creating an effective public financing program, which will break candidates’ dependence on large donors and bundlers. These voters realize, based on the first State’s experience, that such a program will not work unless candidates agree to participate in it. And candidates will participate only if they know that they will receive sufficient funding to run competitive races. So the voters enact a program that carefully adjusts the money given to would-be officehold- ers, through the use of a matching funds mechanism, in order to provide this assurance. The program does not discriminate against any candidate or point of view, and it does not restrict any person’s ability to speak. In fact, by providing resources to many candidates, the program creates more speech and thereby broadens public debate. And just as the voters had hoped, the program accom- plishes its mission of restoring integrity to the political system. The second State rids itself of corruption.

A person familiar with our country’s core values—our devotion to democratic self-governance, as well as to “uninhibited, robust, and wide-open” debate, New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964)—might expect this Court to celebrate, or at least not to interfere with, the second State’s success. But today, the majority holds that the second State’s system—the system that produces honest government, working on behalf of all the people— clashes with our Constitution. The First Amendment, the majority insists, requires us all to rely on the measures employed in the first State, even when they have failed to break the stranglehold of special interests on elected officials.

I disagree. The First Amendment’s core purpose is to foster a healthy, vibrant political system full of ro- bust discussion and debate. Nothing in Arizona’s anti- corruption statute, the Arizona Citizens Clean Elections Act, violates this constitutional protection. To the con- trary, the Act promotes the values underlying both the First Amendment and our entire Constitution by enhanc- ing the “opportunity for free political discussion to the end that government may be responsive to the will of the people.” Id., at 269 (internal quotation marks omitted). I therefore respectfully dissent.

Campaign finance reform over the last century has focused on one key question: how to prevent massive pools of private money from corrupting our political system. If an officeholder owes his election to wealthy contributors, he may act for their benefit alone, rather than on behalf of all the people. As we recognized in Buckley v. Valeo, 424 U. S. 1, 26 (1976) (per curiam), our seminal campaign finance case, large private contributions may result in “political quid pro quo[s],” which undermine the integrity of our democracy. And even if these contributions are not converted into corrupt bargains, they still may weaken confidence in our political system because the public perceives “the opportunities for abuse[s].”

What’s most amazing is that the majority opinion admits that monied-speech (of the candidate funded by the Arizona state program) can nullify the private-money candidate’s speech. In other words, a lot of money can drown out speech. But then the court goes on to say that this is OK when the money is private money, and that evening the playing field is not an acceptable state objective, even when the problem being addressed is political corruption.

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Category: Civil Rights, Corruption, Court Decisions, Law, Politics

About the Author ()

Erich Vieth is an attorney focusing on consumer law litigation and appellate practice. He is also a working musician and a writer, having founded Dangerous Intersection in 2006. Erich and his wife, Anne Jay, live in the Shaw Neighborhood of St. Louis, Missouri, where they are raising their two extraordinary daughters.

Comments (2)

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  1. Brynn Jacobs says:

    I'm not sure whether this comment belongs on this post or on Tim's dissection of Citizen's United. In any case, Charles Hugh Smith takes a stab at figuring what it would cost to buy our electoral system back from the monied interests who are currently in control:

    A tall order, perhaps, but certainly not impossible, if we're willing to spend the money to not just match special interest contributions to campaigns but steamroll them.

    A seat in the U.S. Senate is a pricey little lever of power, so we better be ready to spend $50 million per seat. Seats in smaller states will be less, but seats in the big states will cost more, but this is a pretty good average.

    That's $5 billion to buy the Senate.

    A seat in the House of Representatives is a lot cheaper to buy: $10 million is still considered a lot of money in this playground of power. But the special interests– you know the usual suspects, the banks, Wall Street, Big Pharma, Big Insurance, Big Tobacco, the military-industrial complex, Big Ag, public unions, the educrat complex, trial lawyers, foreign governments, and so on–will fight tooth and nail to maintain their control of the Federal machinery, so we better double that to $20 million per seat. Let's see, $20 million times 435….

    That's $8.7 billion to buy the House of Representatives.

    It seems we're stuck with the corporate toadies on the Supreme Court, but the President could scotch the people's plans to regain control of their government, so we better buy the office of the President, too.

    It seems Obama's purchase price was about $100 million, but the special interests will be desperate to have "their man or woman" with the veto power, so we better triple this to $300 million.

    Add these up and it looks like we could buy back our government for the paltry sum of $14 billion. This is roughly .0037% of the Federal budget of $3.8 trillion, i.e. one-third of one percent. That is incredible leverage: $1 in campaign bribes controls $300 in annual spending–and a global empire.

    Once we bought back our government, what would be the first items on the agenda? The first item would be to eradicate private bribes, a.k.a. private campaign contributions and lobbying.

    If you allow $1 in campaign contributions, then you also allow $10 million. There is no way to finesse bribery, so it has to be cut and dried: no member of Congress can accept any gift or contribution of any nature, monetary or otherwise, and all campaigns will be publicly financed.

    When you think about how tiny $14 billion is compared to the $3.8 trillion Federal budget and the $14.5 trillion U.S. economy, it makes you want to weep; how cheaply we have sold our government, and how much we suffer under the whip of those who bought it for a pittance.

    • Erich Vieth says:

      Brynn: Here's another approach. The American public owns the airwaves, and the broadcasters merely have the right to use them. We should demand that the license requires that they provide some substantial air-time to candidates, not a minute here and there, but enough time for the candidates to discuss the issues. How about 20 national hours of broadcasting for a presidential candidate, for example. Certainly, there is a crappy show or two that can be replaced by serious political discussion.

      Once we make the TV time cheap, we can shave at least a modest chuck (maybe a big chuck) off the cost of campaigns. http://www.washingtonpost.com/wp-srv/politics/cam

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