The U.S. Supreme Court this week issued another in a series of wrongheaded 5-4 decisions further entrenching the power of money in politics. This one undermined publicly financed campaigns, a way for candidates of modest means to run competitive races against well-heeled opponents.
In Arizona Free Enterprise Club v. Bennett, the court Monday threw out a key provision of Arizona's 1998 Citizens Clean Elections Act. The law gives candidates for state office the right to run for office with tax dollars instead of private money. If the candidate's privately financed opponent bumps up spending, the law allows the publicly financed candidate to get two additional infusions of public money, up to three times the original amount.
Sounds like a way to foster more speech, right?
No, said the court's conservative majority. The justices bent themselves into pretzels to rule that the free speech rights of well-heeled candidates are unconstitutionally burdened when they outspend publicly financed candidates and the state makes up some of the difference.
Some background: In 1998, Arizona voters — after 10 years of scandal — passed the Citizens Clean Elections Act. Building on an earlier public financing law, it gave a candidate who opted for public funding the right to receive matching funds if his opponent were burying him under private money.
Conservative think tanks and business groups and six former or would-be privately funded candidates challenged the law in 2008. They had plenty of money to spend (purely in the public interest, of course), but didn't want to spend any more than they had to.
The circuit court upheld their challenge, but the 9th U.S. Court of Appeals threw it out. Enter the Supreme Court of Chief Justice John R. Roberts Jr., writing for the same majority that just 18 months ago ruled that corporations can spend direct money on elections, too.
"'Leveling the playing field' can sound like a good thing," Chief Justice Roberts wrote. "But in a democracy, campaigning for office is not a game. It is a critically important form of speech. The First Amendment embodies our choice as a Nation that, when it comes to such speech, the guiding principle is freedom — the 'unfettered interchange of ideas' — not whatever the State may view as fair."
Butter would not melt in his mouth. Since Buckley v. Valeo in 1976, the Supreme Court has equated money with speech. In a way this is correct — without money for campaigning, especially for expensive TV advertising, a candidate for state or national office can campaign until he drops with little effect.
But the obverse also is true: If money is speech, the candidate without it has been denied free speech. His right to the interchange of ideas is mightily fettered.
Public financing of campaigns, long a dream of reformers, has been tried with minimal success in several states and at the national level with a voluntary checkoff system for presidential elections that most taxpayers ignore. Tax dollars simply can't compete with private dollars, as presidential candidate Barack Obama acknowledged by turning down private money in 2008 in favor of raising and spending $740 million in private money.
Absent the sudden replacement of ideology with common sense, the only cure for the perverse influence of money is turnover on the court. Big donors will do everything they can to control that outcome.