(Arizona Free Enterprise Club v. Bennett)
June 27, 2011
Arizona’s law bans no speech. It places no restriction of any kind on any sort of speech. When wealthy candidates or interest groups spend freely to make their voices heard, the so-called trigger funds in Arizona’s law have enabled less-well-off candidates to speak too. The law created more speech. But by the bizarre logic employed today by five of the nine Supreme Court justices, creating more speech infringed free speech.
Today’s ruling is disappointing, but the decision has to do with one state’s law. The court did not focus on that law in its entirety but rather just one of its features, namely trigger funds.
The court’s decision is not fatal to public financing of elections. Forms of public financing other than Arizona’s trigger funds remain on solid legal footing. In May the Democracy Campaign proposed a new approach to election financing that does not include any trigger funds. Today’s ruling makes this kind of alternative approach to public financing more relevant and important than ever. It is essential to take steps to prevent politicians from being bought and our government from being owned, and there are ways to do it that are practical and constitutionally sound.
This ruling also does not doom Wisconsin’s Impartial Justice Act, despite the fact that our state’s new public financing system for state Supreme Court elections does include a form of trigger funds. Unlike Arizona’s law, the Impartial Justice Act is limited to judicial elections and the Supreme Court has made clear – most recently in Caperton v. Massey – that judicial elections are different and a greater degree of legal protection is warranted to safeguard the integrity and impartiality of the judiciary. Notably, when North Carolina’s judicial public financing system including trigger funds was legally challenged, the Supreme Court let stand a lower court ruling upholding the law. We await a decision by the Seventh Circuit U.S. Court of Appeals on the challenge to the Impartial Justice Act, and remain confident the law will be upheld.
While all is clearly not lost, today’s decision represents another step backward for the cause of clean elections. The Supreme Court completed the establishment of an unholy trinity in campaign finance jurisprudence. Money talks. Money can talk as much as it wants. Money should do all the talking.
The First Amendment is 45 words long. It does not say money is speech. Nowhere does the word money appear. Nowhere does it say that speech is a privilege that must be purchased at great expense. Nowhere does it say it is impermissible to try to enable those who are not outlandishly wealthy to be heard. The doctrines the court has established are judicial inventions that do not owe their origins to the Constitution or any state or federal law. They will not stand the test of time.