Monday, June 27, 2011

Arizona Free Press Enterprise v. Bennett

The Supreme Court released its ruling today on Arizona Free Press Enterprise v. Bennett, a 1st Amendment case dealing with campaign financing. Under Arizona's law, once a candidate privately funding his own campaign hit a specific level of fundraising, all publicly funded candidates would receive a matching donation, dollar for dollar, paid by the taxpayers, to keep those publicly funded candidates matched with privately funded candidates. Arizona's law was struck down in a 5-4 decision, with the usual suspects on each side of the case and Kennedy joining the majority. The general idea is that candidates must not be required to fund opposing viewpoints. As each publicly funded candidate receives a dollar for every dollar raised above the limit set by the law on private funding, each dollar raised can lead to multiple dollars of spending against the candidate, paid for by the taxpayer.

For example: imagine there are four candidates, one privately raising money and three relying on public funding. The privately funded candidate hits the limit and now finds himself in a bind. If he raises another $1,000 to get his message out, his opponents receive a total of $2840 ($3000-6% to supposedly match the cost of private fundraising). Clearly, this freezes the privately funded candidates free speech, as any additional speech by him leads to a threefold increase for his competition paid for by the state.

There are two things I wish to point out about this case. The first is about campaign finance laws in general. Campaign ads may be annoying, but they are not evil. Democracy requires free speech, in particular during elections. Campaign fundraising is directed solely at propagating information for public consumption, i.e. free political speech. To limit how much people may say during an election is to limit their speech; there is no way around that.

Secondly, I wish to examine the dissent of Justice Kagan. The introduction to her dissent shows a lot about her understanding of the role of government and the role of judiciary within the government. She begins with an analogy between two states, both of which are supposedly corrupt because of campaign expenditures. I don't disagree with Justice Kagan that there is a strong tendency in democracies for candidates to buy support with government largess. I would recommend fighting this tendency by reducing the power of the government and hence the spoils they may kick back to favored voters. Justice Kagan takes a different view: remove (or at least seriously weaken) the ability of private citizens to speak and give that power to the government.

The problems here should be fairly obvious. Politicians do not just reward donors with paybacks; they tend to favor the lower class with free government programs and zero percent tax rates. Politicians are not elected by "special interests" but by the majority of all voters. I am appalled that anyone would believe silencing the voice of interests in America is the proper role of government! Massive amounts of money spent on campaigns is not a bad sign. I would have to imagine "elections" in Saddam's Iraq were fairly cheap affairs. There is no officeholder in this nation who holds that office due to "wealthy contributors." Every officeholder is elected by the majority of voters.

If you wish to reduce corruption, reduce the power of government to spend. The government has no proper role in either reducing the ability of some candidates to speak or of increasing the ability of others. I am not compelled to vote for the person with the most money, and if a candidate cannot raise funds, it is a good indicator that the candidate is not particularly favored by the electorate. The government has no compelling interest in holding some candidates down or raising others up; that is a power bound to be abused.

"By supplanting private cash in elections, public financing eliminates the source of political corruption."

Absolutely not. Increased government spending for favored groups can be promoted with public funding as well as private and will be more of an incentive for large numbers of lower and middle class supporters to vote for a candidate. This is still corruption. Public funding only eliminates the voice of private citizens from speaking their minds.

Kagan's focus on reducing political corruption and such via public funding shows a misplaced view for a member of the judiciary. The question at hand is not whether public funding increases or decreases corruption; the only question at hand is whether Arizona may pass such a law or not. Under the theory of incorporation, state governments are bound by the First Amendment, the sole role of which is to reduce the power of the government. It has been long established that government actions that do not outright ban speech but having a chilling effect upon it are illegal. Clearly, a law that threatens to pour cash into opponents coffers if a candidate raises money for political speech will cause a candidate not to raise money and hence not participate in speech. Kagan's emphasis is that of a legislator, not a judge. The law needs to be her sole guiding principle, not her idea of what our political society should look like.

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