June 27 marks the seventh anniversary of the Supreme Court’s decision in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, which struck down key portions of Arizona’s public campaign financing law as supposedly violating the First Amendment. This blog post for the decision’s anniversary was drafted by Ryan Gorman, a student at Harvard Law School and a summer 2018 intern at Free Speech For People. With the news of Justice Kennedy’s retirement, it highlights the impact that the Supreme Court has on public attempts to rein in big money in politics and provide the people a voice.
It’s been seven years since the Supreme Court’s decision in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, which struck down key portions of Arizona’s public campaign financing law under the First Amendment. Arizona Free Enterprise is one of several recent Court decisions that have chipped away at campaign finance laws in the name of protecting free speech. In practice, however, these decisions often protect one group of speakers—those wealthy enough to spend huge sums of money on election campaigns.
The Case: Speech for Some, Political Equality for None
In 1998, the residents of Arizona enacted the Clean Elections Act. The state had recently been plagued by a series of corruption scandals. The state’s governor had been impeached for misusing government funds. Then, as the savings and loans crisis unfolded into the 1990s, Senator John McCain came under heavy scrutiny for his involvement in the Keating Five scandal, where wealthy savings and loan investor Charles Keating had contributed millions to five U.S. senators in an effort to get regulators off of his back. In yet another scandal, seven Arizona state legislators took thousands of dollars in bribes, promising in exchange to legalize casino gambling. Fed up with politicians who seemed only to care about monied interests, Arizona residents gathered nearly 150,000 signatures to put the Clean Elections Act directly on the ballot. The Act created a robust public financing system where candidates could forgo private fundraising in exchange for public funds. Public candidates running against particularly big spenders received extra funds to help match that heavy spending. A group of private candidates and political action committees sued Arizona in a case that reached the Supreme Court, arguing that the matching funds made them less likely to spend money on campaigning, chilling speech that was protected under the First Amendment.
The Court, in a 5-4 decision, struck down the law. The Court suggested that the matching funds forced private candidates to make a choice—“trigger matching funds, change your message, or do not speak”—that contravened the First Amendment’s promise “that a speaker has the autonomy to choose the content of his own message.” But the law didn’t prevent the private candidates from speaking. If anything, the law increased speech, providing public candidates with funds that allowed them to get their message to voters. Private candidates were still free to outspend their public counterparts, and if they did limit their spending to avoid triggering matching funds—which many apparently did not—they were still free to visit and literally speak to voters. As Justice Kagan pointed out in her dissent, what these private candidates were really seeking was a “right to be free from vigorous debate.” Concerned only with how the law affected wealthy private candidates, the Court granted them that right, at the expense of having more voices, wider discussion, and greater competition in elections.
The Court went on to say that, if Arizona wanted to keep the law in place, the state would have to show a “compelling interest” to justify it. In campaign finance cases, the only interest that the Court has been willing to recognize has been an interest in preventing corruption. The Court concluded that the Clean Elections Act—which a majority of Arizonans had voted to enact and was mainly a response to Arizona’s multiple corruption scandals—failed to show this interest because it was at least partially aimed at “leveling the playing field” in elections. This rejection of political equality as a compelling state interest shows a deeply troubling inability to recognize the structural inequality inherent in a system that allows monied interests to dominate the electoral process—dominance which Arizona voters were accustomed to and had banded together to fight, only to have the Supreme Court swat them down.
Public Financing After Arizona Free Enterprise
The Court’s opinion was just one of several recent decisions that have whittled away at campaign finance laws in the name of protecting monied speech. Over the past decade, the Court has struck down limits on independent corporate expenditures (leading to lower court decisions that effectively created super PACs), aggregate limits on individual campaign contributions, and a law that would raise contribution limits for congressional candidates running against millionaire self-financiers. Taken together, these decisions have reinforced the ability of wealthy individuals and corporations to influence and control elections, while batting down legislative attempts to prop up marginalized voices.
Thankfully, the Arizona Free Enterprise majority implicitly reaffirmed the general constitutionality of public financing systems. But the Court also made it much harder to create public finance systems that incentivize candidates to opt to participate. Meanwhile, innovative attempts to make public financing systems more effective and efficient continue to come under fire.
Speech and Policies by and for the Wealthy
The majority in Arizona Free Enterprise went to great lengths to highlight the supposed burden that the Arizona law placed on privately financed candidates. “The whole point of the First Amendment,” the Court wrote, “is to protect speakers against unjustified government restrictions on speech, even when those restrictions reflect the will of the majority.” Most would probably agree with that general statement. But are the “restrictions” placed on these particular speakers—who are already able spend enormous sums of money to influence elections—really that much greater than the structural restrictions that unfettered political spending places on less wealthy groups and individuals?
Research has shown that public financing systems, in addition to fighting corruption, help individuals who otherwise may not—or cannot—participate in elections have a meaningful say in the process. Public candidates spend more time soliciting small donations from members of their communities—contributions that, however small they may be, have consistently been recognized by the Court as an important form of political speech. Publicly funded candidates also tend to come from communities who have suffered from years of systemic oppression. Government policies and decisions have played a large role in systematically excluding these groups from the political process. Just this week, the Supreme Court dealt another blow to activists working to combat discrimination at the ballot box when it upheld congressional districts in Texas that are likely racial gerrymanders. The decision in Arizona Free Enterprise provides just one example of how government policies that attempt to rectify structural imbalances, even in relatively small ways, receive much more scrutiny than those policies that perpetuate structural inequalities.
The recent battle for net neutrality is an archetypal example of what happens when unlimited wealthy “speech” crowds out other forms of political representation. Despite overwhelming bipartisan support in favor of net neutrality, wealthy telecommunications corporations appear to have won the battle. This outcome isn’t all that shocking, given the $101 million that the telecom industry has given to congressional representatives of both parties over the past twenty years. Ending net neutrality will no doubt increase those companies’ profits, at the expense of everyday consumers. But repealing these rules will also disproportionately harm systemically marginalized communities, who have used free and fair access to the internet to combat racial stereotypes and organize social movements. In this way, overlooked barriers to the political process continue to compound preexisting hierarchies in American society.
As long as our campaign finance laws continue to weaken—and our conception of free speech remains tilted towards the wealthy—we should continue to expect these inequitable policy outcomes. The Court’s unwillingness to address this disparity means we need to look towards other possible avenues for change, including pushing for an amendment to the Constitution to overturn the Supreme Court’s precedent, and pursuing local solutions to limit the distorting effect that big money has on our elections. The Court has seemingly taken advantage of every opportunity to strengthen big money’s influence—activists should take advantage of every opportunity to fight back.