The Right to Campaign Without a Response: Analysis of Arizona Free Enterprise

The Supreme Court issued a surprising decision on Monday in Arizona Free Enterprise Club's Freedom Club PAC v. Bennett by almost any measure.  Perhaps the only way to make sense of the 5-4 opinion, sharply divided along ideological lines, is that the majority (including CJ Roberts and Justices Scalia, Kennedy, Thomas, and Alito) has found a new right in the First Amendment: the right of well endowed political candidates to speak without a response.

To see this, start with the trend in the Roberts Court's free speech jurisprudence.  In just the last two terms, the Court has expressed a strong preference for more speech, not less speech, on something like a marketplace-of-ideas theory.  Thus the Court has overturned a ban on crush videos (U.S. v. Stevens) ruled against a state tort claim against highly offensive funeral protestors (Snyder v. Phelps) and ruled in against restrictions on corporate and union spending on electioneering communications (Citizens United v. FEC)  On the same day as it issued Arizona Free Enterprise Club, it overturned California's ban on violent video games (Brown v. Entertainment Merchants).  All of these cases, and others, are rife with language expressing the Court's preference for more speech.

  So too Arizona Free Enterprise.  But this case is different.  Here, there was no evidence that Arizona's public financing system--which provided a lump sum to participating candidates, and then a supplemental grant matching nearly dollar-for-dollar the expenditures of a non-participating opponent (and his or her supporters) above the lump sum grant--reduced anyone's speech.  The lower courts in the case described the evidence of any reduction in campaign speech by non-participating candidates who were facing publicly financed candidates as "vague" and "scattered," at best.  Even the majority recognized this, writing that "it is never easy to prove a negative."  At the same time, Arizona's public financing system undoubtedly increased speech, because it allowed participating candidates to speak more.

So given the Court's preference for more speech, why did the 5-Justice majority rule against Arizona's public financing system?  One possibility is that it valued the "vague" and "scattered" evidence of reduced speech by non-participating candidates over the State of Arizona's own findings and interests.  But this seems wholly inconsistent with the way the Court operates.  The Supreme Court, like other appellate courts, takes the factual record as basically established and ought not cherry-pick evidence (from 6 pages out of a 4500 page record) that favors its interpretation over the lower courts' interpretations.  But even if this kind of fact were wide open to reevaluation by the Court, the Court should at least balance the weight of evidence--the couple of anecdotal accounts, with no empirical support, against the State of Arizona's findings and interests.  In this balance, the State clearly wins.  But not so here.  Here, the Court doesn't seem interested in whether Arizona's public financing system deters speech in fact; it's only interested in whether it deters speech in its own theory. 

Another possibility is that the Court sees Arizona's system as a kind of punishment for a non-participating candidate's speech, when the non-participating candidate expends more than the initial grant for the publicly financed candidate.  The majority says as much, when CJ Roberts writes that a candidate's willingness to "bear the burden of spending above the cap . . . does not make the law any less burdensome."  But if this is right--as the majority itself says--then the majority sees a participating candidate's speech as a kind of punishment for the non-participating candidate.  In other words: more speech by the participating candidate is a punishment for the non-participating candidate.  This seems utterly at odds with the Court's own preference for more speech. 

The only possibility left is that the majority simply found a new First Amendment right: the right of non-participating candidates to speak without a response. 

Given that the Court did not touch traditional, lump-sum public financing schemes, this right is a somewhat limited one.  This new right extends only to campaign expenditures by non-participating candidates above the level of the initial lump sum grant to participating candidates.  And in theory, states can raise the lump sum amount to any level--of course, they cannot in reality--effectively eviscerating the right. 

But if the Court has effectively found this new First Amendment right of non-participating candidates to speak without a response, it seems the next target for this Court must be the traditional, lump-sum public financing scheme.  After all, if a state did raise its initial lump-sum in an way that interfered with the the right, then, well, it would interfere with the right.

For now, the traditional lump-sum scheme is safe.  But by the majority's reckoning, it looks like it could be next on the chopping block.

SDS