Consolidated with McComish v. Bennett
What’s at stake?
Combating the influence of wealthy special interests in elections.
Whether the First Amendment prohibits a state from increasing funding for a publicly-funded candidate when independent expenditure groups spend more than a certain amount against the candidate or when the candidate’s privately-funded opponent spends more than a certain amount on the campaign.
June 27, 2011
5-4 in favor of Arizona Free Enterprise Club’s Freedom Club. Chief Justice Roberts delivered the opinion, with Justices Scalia, Kennedy, Thomas, and Alito joining. Justice Kagan delivered a dissenting opinion, joined by Justices Ginsburg, Breyer, and Sotomayor.
What the court held:
Arizona voters passed the Citizens Clean Election Act in 1998. The Act created a detailed scheme under which candidates were required to demonstrate a certain level of support and abide by a strict set of fundraising and spending restrictions in order to receive public funds for a campaign. The Act allowed a candidate to receive additional funding if the candidate faced attacks from well-financed independent expenditure groups who spent a certain amount of money or if the candidate’s opponent refused public funds and spent over a certain amount. The Act was designed to combat government corruption, as Arizona had recently had a scandal involving bribery. The Act also leveled the playing field when a publicly-funded candidate faced a wealthy, self-financed opponent.
The petitioners claimed that the law was prohibited by the First Amendment, citing a host of “burdens” that discouraged them from outspending publicly-financed candidates.
The Court held that the matching funds system “substantially burdens protected political speech without serving a compelling state interest and therefore violates the First Amendment.” In order for the challenged legislation to stand, the State must show that the law furthers a compelling government interest and that it is narrowly tailored to accomplish that interest. Drawing from case law, the majority reasoned that the fund-matching scheme “plainly forces the privately financed candidate to ‘shoulder a special and potentially significant burden’ when choosing to exercise his First Amendment right to spend funds on behalf of his candidacy.” The majority pointed out that private contributions to a candidate’s campaign would result in each publicly funded candidate receiving public funds, producing a “multiplier effect.”
In addition, the majority argued that the assertion that the law combats corruption is illegitimate because it could keep candidates from spending their own money on their campaigns (and self-funding reduces corruption). The majority also stated that independent spending is a form of speech that “is not coordinated with a candidate” and thus does not encourage corruption. According to the majority, simply limiting the amount of money an organization or individual can contribute to a campaign sufficiently serves to combat corruption.
The four dissenting Justices, led by Justice Kagan, countered that the statute does not hinder free speech but encourages it by producing more speech. Justice Kagan also noted that Arizona enacted its campaign funding scheme to prevent corruption following a political scandal and that this goal is a compelling government interest. She pointed out that the law applies equally to candidates of all viewpoints, so given the controlling case law, it should pass First Amendment muster. “[W]hat petitioners demand,” she continued, “is essentially a right to quash others’ speech through the prohibition of a (universally available) subsidy program.”
By overturning Arizona’s election reform, the Court has closed off another avenue of reform designed to reduce the undue influence of corporate interests and wealthy candidates in political races.
- National Law Journal: Demonizing political equality
- The New Yorker: Money Talks
- New York Times: Arizona’s Boon to Free Speech
- Washington Post: Court should uphold Arizona campaign law
- USA Today: Leave public financing in elections
- Slate: Rich Candidate Expected To Win Again: Does the Supreme Court care more about free speech for the wealthy than about political corruption?
- Brief for Petitioner John McComish, Nancy McCain, and Tony Bouie (in McComish only)
- Brief for Petitioner Arizona Free Enterprise Club’s Freedom Club Pac, et al.( in Arizona Free Enterprise Club’s Freedom Club PAC only)
- Reply Brief for Petitioner Arizona Free Enterprise Club’s Freedom Club PAC, et al.
- Reply Brief for Petitioner John McComish, Nancy McCain, and Tony Bouie (in McComish only)
- Brief of State Respondents
- Brief for the Yankee Institute for Public Policy in Support of Petitioner
- Brief for the Justice and Freedom Fund in Support of Petitioner
- Brief for the Center for Competitive Politics in Support of Petitioner
- Brief for Gun Owners of America, Inc., Gun Owners Foundation, Citizens United, Citizens United Foundation, U.S. Justice Foundation, Arizona State Chapter of the Association of Physicians and Surgeons, Institute on the Constitution, DownsizeDC.org, Inc., Downsize DC Foundation, Campaign for Liberty, Conservative Legal Defense and Education Fund, Policy Analysis Center, the Lincoln Institute for Research and Education, Constitution Party National Committee, and Public Advocate of the United States in Support of Petitioners
- Brief of the Clean Elections Institute, Inc., in Support of Respondents
- Brief for Former Officials of the American Civil Liberties Union in Support of Respondent
- Brief for the CATO Institution in Support of Petitioner
- Brief for Four Former Chairmen and One Former Commissioner for the Federal Election Commission in Support of Petitioner
- Brief for Mitch McConnell, United States Senator in Support of Petitioner
- Brief for the Wyoming Liberty Group in Support of Petitioner (in McComish only)
- Brief for the United States in Support of Respondent
- Brief for the Center for Government Studies in Support of Respondent
- Brief for Anthony Corrado, Thomas Mann, and Norman Ornstein in Support of Respondent
- Brief for Constitutional Scholars in Support of Respondent
- Brief for the for Reform Judaism in Support of Respondent
- Self-Financing Candidates Congressman Bill Foster (Ret.), Congressman Alan Grayson (Ret.), Congressman Steve Kagen (Ret.), Governor Angus King (Ret.), Ned Lamont, Congressman Walt Minnick (Ret.), Congressman Jared Polis, and Congressman John Yarmuth in Support of Respondent
- Brief of Former Elected Officials in Support of Respondent
- Brief for Professors of Constitutional and Election Law in Support of Respondents
- Brief of Service Employees International Union in Support of Respondent
- Brief for Maine Citizens for Clean Elections, Lawrence Bliss, Pamela Jabar Trinward, Andrew O’Brien, and David Van Wie in Support of Respondent
- Brief for Costas Panagopoulos, Ph.D., Ryan D. Enos, Ph.D., Conor M. Dowling, Ph.D. and Anthony Fowler in Support of Respondent
- Brief for Justice at Stake, 13 Former Chief Justice and Justices, and One Former Trial Judge in Support of Respondents (in McComish only)
- Brief for the Campaign Legal Center, Democracy 21, the League of Women
Voters of the United States, League Of Women Voters of Arizona, Public Citizen, Citizens for Responsibility and Ethics in Washington, the New Jersey Appleseed Public Interest Law Center and the Sierra Club in Support of Respondent
- Brief for the Committee for Economic Development in Support of Respondents
- Brief of the States of Iowa, Connecticut, Maryland, New Mexico, and Vermont in Support of Respondent
- Municipal Brief for Respondents