3:00pm

Mon June 27, 2011
Law

High Court Strikes Down Ariz. Campaign Finance Law

Originally published on Tue June 28, 2011 12:22 am

The U.S. Supreme Court delivered a blow, but not a fatal one, to public campaign financing, with a 5-4 decision striking down a central provision of an Arizona law.

The Arizona law offers public funds to state legislative and executive-branch candidates who abide by tight contribution and spending limits. Another provision gives additional dollars when publicly funded candidates face big-spending opponents or outside money groups — and that's what was rejected by Chief Justice John Roberts, writing for the majority.

Roberts said this type of public financing — called "fair fight" money, or funds "triggered" by other spending, or funds meant to "level the playing field" — unfairly burdens the free-speech rights of the other candidates or groups, because it balances out their political spending.

Three years ago, the Supreme Court ruled in another case that the government can justify campaign finance laws intended to fight corruption, but not those to level the playing field.

Reaction To Decision

Lawyers for the plaintiffs were jubilant.

"From our perspective, it is great that the court finally ended Arizona's Frankenstein's experiment with government-manipulated elections," said Nick Dranias of the Goldwater Institute, representing John McComish and two other former legislative candidates.

Dranias said the Goldwater Institute aimed this lawsuit at the leveling funds, but its larger target is Arizona's overall public financing system.

"Future lawsuits will undoubtedly determine whether the entire system can withstand the striking down of the matching funds component," he said.

Still, Roberts stopped short of throwing out the entire law, writing, "That is not our business." Some advocates of tighter campaign finance laws took comfort in that.

Arizona Assistant Attorney General James Barton said the law has been challenged repeatedly, and this is the first major loss. But he added, "Justice Roberts' opinion took the time to say that this isn't an attack on public financing in general. It's only related to these triggered matching funds."

Dissenting View

After Roberts delivered the ruling Monday, Justice Elena Kagan, an Obama appointee, read a fierce dissent.

Writing for the three more liberal members of the court, she said anyone "familiar with our country's core values — our devotion to democratic self-governance," and to a robust political debate, "might expect this court to celebrate, or at least not interfere with" a public financing system.

Kagan's dissent could open a new chapter in the campaign finance debate, and proponents of campaign finance regulation were cheered by it.

"To the majority, it looks like the mere mention of a leveling interest is enough to doom the law," said Rick Hasen, a law professor at the University of California, Irvine. "Justice Kagan in her dissent says, 'So what if some of this is motivated to level the playing field? It was also motivated on anti-corruption grounds, and it is justified on anti-corruption grounds.' "

Still, Kagan is in a four-justice minority on the Roberts court. Monica Youn, who was an attorney for the Brennan Center for Justice on an amicus brief in the case, said, "This is the fifth campaign finance case that the Roberts court has heard, and the fifth that it has struck down, in a mere five years."

Future Lawsuits Possible

One of those other cases, of course, is the controversial Citizens United ruling of 2010, which was cited 10 times by Roberts in Monday's decision. The Citizens United decision lets corporations and unions spend unlimited amounts to support or attack candidates.

The Goldwater Institute's Dranias pointed to a footnote in Monday's decision as a possible seed for future lawsuits.

The footnote seems to cast doubt on the anti-corruption basis for public financing laws. Roberts wrote, "Public financing does nothing to prevent politicians from accepting bribes in exchange for their votes."

Dranias said, "Now that, to me, is a substantial finding that cuts out one of the three legs that has traditionally upheld public financing, that it's a means of preventing bribery to politicians."

So the legal foundations of campaign finance laws will continue to shift.

Copyright 2014 NPR. To see more, visit http://www.npr.org/.

Transcript

PETER OVERBY: I'm Peter Overby with the second of those two big decisions today from the Supreme Court, this one on campaign finance. By a five to four majority, the Roberts court struck down a central provision in an Arizona law that offers public funds to state candidates who abide by tight contribution and spending limits. But Chief Justice John Roberts, writing for the majority, stopped short of throwing out the entire law. That is not our business, he wrote.

What the court did do was tell Arizona it cannot give extra money to publicly financed candidates when they're up against big-spending opponents or outside money groups. Roberts said that kind of government grant to level the playing field unfairly burdened the free speech rights of the spenders. Nick Dranias represents candidate John McComish and the other plaintiffs in Arizona.

Mr. NICK DRANIAS (Goldwater Institute): From our perspective, it is great that the court finally ended Arizona's Frankenstein's experiment with government-manipulated elections.

OVERBY: The Roberts court ruled three years ago that leveling the playing field isn't a legitimate reason to regulate political money. And Dranias said his organization, the Goldwater Institute, aimed this lawsuit at just the leveling funds, not at the overall public finance system.

Mr. DRANIAS: Future lawsuits will undoubtedly determine whether the entire system can withstand the striking down of the matching funds component.

OVERBY: Some advocates of tighter campaign finance laws took comfort in the limited scope of the decision. Here's Arizona assistant attorney general James Barton.

Mr. JAMES BARTON (Assistant Attorney General, Arizona): Justice Roberts' opinion took the time to say that this isn't an attack on public financing in general. It's only related to these triggered matching funds.

OVERBY: And that's where Justice Elena Kagan focused a fierce dissent. Writing for the three more liberal members of the court, she said anyone familiar with core American values of democracy and robust debate might, quote, expect this court to celebrate or at least not interfere with a public financing law. Kagan's dissent could open a new chapter in the campaign finance debate.

Prof. RICHARD HASEN (University of California, Irvine): To the majority, it looks like the mere mention of a leveling interest is enough to doom the law.

OVERBY: This is Rick Hasen, a law professor at the University of California, Irvine, who's also defending public financing in another case.

Prof. HASEN: Justice Kagan, in her defense, says so what if some of this is motivated to level the playing field. It was also motivated on anti-corruption grounds and it is justified on anti-corruption grounds.

OVERBY: Still, Kagan is in a four-justice minority on the Roberts court. Monica Youn was an attorney for the Brennan Center for Justice, which filed an amicus brief.

Ms. MONICA YOUN (Brennan Center for Justice): This is the fifth campaign finance case that the Roberts court has heard and the fifth that it has struck down in, you know, a mere five years.

OVERBY: One of those, of course, is the controversial Citizens United ruling of 2010 cited 10 times by Roberts in today's decision. The Citizens United ruling lets corporations and unions spend unlimited amounts to support or attack candidates.

Nick Dranias at the Goldwater Institute said there are seeds of future lawsuits in today's decision. He says he found one in one of the chief justice's footnotes.

Mr. DRANIAS: It says, quote, "public financing does nothing to prevent politicians from accepting bribes in exchange for their votes," end quote. Now, that, to me, is a substantial finding that cuts out one of the three legs that has traditionally upheld public financing, that it's a means of preventing bribery to politicians.

OVERBY: So the legal foundations of campaign finance laws will continue to shift.

Peter Overby, NPR News, Washington. Transcript provided by NPR, Copyright NPR.