Monday, June 27, 2011
A sharply divided Supreme Court (5-4) ruled today in Arizona Free Enterprise v. Bennett that Arizona's public financing system violates the First Amendment, dealing a(nother) blow to public financing schemes that deviate from a standard flat grant to participating candidates (but not overturning standard, flat-grant public financing schemes).
The case involves Arizona's public financing system that provides a flat grant to participating candidates plus additional, dollar-for-dollar matching funds if a privately financed opponent's expenditures, combined with the expenditures of independent groups in support of the opponent, exceed the publicly financed candidate's initial state allotment. The supplement caps out at two times the initial state grant to the publicly financed candidate.
Chief Justice Roberts wrote for the majority (including Justices Scalia, Kennedy, Thomas, and Alito) that the case was governed by Davis v. FEC, the 2008 case overturning the "Millionaire's Amendment" of the Bipartisan Campaign Reform Act of 2002. That Amendment allowed opponents of House candidates who spent more than $350,000 of their own money to accept donations up to three times the normal limit. The Court ruled that the Amendment burdened speech of the candidate who spent more than $350,000 of his or her own funds.
Even more so here, ruled the Court. According to the majority, Arizona's system burdens speech of non-participating candidates even more than the "Millionaire's Amendment," and it's purpose--to equalize the playing field--doesn't withstand the strict scrutiny triggered by the speech-burdening system. (There's a dispute about the real purpose of the system. Arizona argues that it is to curtail corruption and the appearance of corruption. The Court ruled that even if that's the real purpose, the burdens on speech aren't justified.)
Justice Kagan wrote a dissent, joined by Justices Ginsburg, Breyer, and Sotomayor.