The law in question, the Arizona Clean Elections Law, is very similar to a law that was overwhelmingly passed here in Massachusetts in 1998 by initiative petition, but then disassembled by the legislature. According to the Arizona Star Tribune, their law “offers state candidates a basic grant to run for office and extra ‘matching funds’ if their opponent is spending heavily with private funds. For example, a candidate for the state legislature who receives a grant of $21,000 to run in a general election can receive up to twice that amount in extra funds to match the spending of an opponent.”
It was the matching funds that Roberts was skeptical about – and it looks like a majority of the Court will side with him to end at least the matching funds element in the law. They may go further and declare the whole law unconstitutional. In the longer term (the next few years) some advocates are actually working to get the Supreme Court to invalidate all public financing. Some even want to get rid of disclosure rules (after all, corporations may make anonymous expenditures in federal elections right now, thanks to the Citizens’ United ruling and the failure of Congress to pass the DISCLOSE bill.
Just a year ago, the Supreme Court ruled that corporations can spend unlimited amounts to elect or defeat the candidates of their choice.
What’s next? What’s the best way to create a fair system to finance campaigns in the age of the Roberts Court?
I can see how the argument can be made that restricting spending comes close to restricting speech, but if anything, don’t matching funds ENHANCE speech? As long as the qualifying rules are fair it would seem to meet the equal protection standard.
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p>I emphatically disagree with the Chief Justice’s quote at the end of your first paragraph. To me a key function of the state is to level the playing field in a whole variety of aspects.
the argument is basically that the prospect of an opponent receiving matching funds causes candidates not dependent on public financing to make strategic decisions that they otherwise would not make in order to avoid triggering the public match. That is apparently what passes for a First Amendment violation these days.
From Scotus blog.
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p>”What this case is about is whether the government can turn my act of speaking into the vehicle by which my political opponents benefit with direct government subsidies.”
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p>From the description of the oral argument, looks like there’s good reason to Dred.
but it’s clear the law does not prohibit any speech at all. A technical fix could solve the issue addressed in oral arguments: if $10,000 is spent on a candidate’s behalf, EVERY other candidate in the race gets $10,000.
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p>Of course, convoluted laws like this would not be needed if the Court hadn’t left so little room to regulate campaign financing. The broader view of this Supreme Court is that political donations reflect the “free speech” of the donors, and that candidates’ fund-raising success reflects the victory of their platform in the “marketplace of ideas.” It’s easy to see, if they’re taking that position, how public funding to even the dollars artifically wipes out that hard-won “advantage.” For our democracy, the rub is that this is a marketplace of dollars, not of ideas. And one dollar does not equal one idea, nor does it equal one person or one voter.
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p>I realize this ship has sailed, but I’m still pretty frustrated that the GOP managed to filibuster virtually every bill the last Congress but the Dems couldn’t do anything to keep Roberts and Alito off that court. Now we’re stuck with another 20 years of 5-4 votes for the conservatives.
As the Democrats have done in so many other issues, the party chose not to fight.
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p>I’m not sure what the option was, apart from electing Kerry. It’s possible that the Democrats could have filibustered a Roberts or Alito, but there were two rather obvious problems with this strategy. First, the public was overwhelmingly in favor of the confirmations of both Roberts and Alito (heck, even a majority of Democrats though Roberts should be confirmed). This is not unusual, since the public almost always thinks that a nominee should be confirmed if no dirt gets out on them. A filibuster would not have had public backing, and the Dems would have probably lost that public relations fight.
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p>Second, conservatives were not going to let Bush get away with nominating “another Souter.” Remember that Harriet Miers was one of Bush’s initial SCOTUS nominees, and Democrats were probably (and wisely) going to let her go through without much fight. But it was the conservatives who revolted and killed the nomination. So even if Democrats had filibustered Roberts and/or Alito, any replacement would have been just as conservative (the Federalist Society has a long list of acceptable nominees).
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p>Also, I find it ironic that you claim that the Democrats were weak by not doing anything to keep Roberts or Alito off the Court while those almighty Republicans succeeded to filibuster virtually everything in the last Congress. After all, Republicans failed to stop Kagan and Sotomayor getting on the Court, for what will likely be at least another 20 years. You could just switch them names of the nominees, and your complaint could just as well be from a conservative complaining about those weak-kneed Republicans of his.
problem with the concentration of money and power and the resulting inequality. Equality is not a compelling argument where conservatives are concerned.
of how “judicial activism” can be just as much conservative as liberal.
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p>The position conservatives have taken on this case, however, is particularly egregious and nonsensical. How is this law making content-based speech distinctions by providing matching funds? After all, everyone is potentially eligible for these funds regardless of viewpoint.
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p>Also, if the Court strikes down this law, doesn’t it implicate a host of other government activity? For example, how are tax exemptions for religious organizations justified under this logic? The Supreme Court has in the past upheld such exemptions because the exemptions were specified broadly (to include all non-profits) and were intended for social betterment (and not the establishment of religion specifically). Likewise, the Arizona law is specified broadly and intended to promote purposes that go beyond the promotion of any one ideology or viewpoint. I don’t see how those earlier religion cases won’t be revisited if the Court rules the way I think they will here.
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p>This case has the potential to open a huge can of worms.
Why should a candidate who may not have support of his neighbors and fellow district residents be able to “match” an opponent who is able to raise money from neighbors, friends and fellow residents.
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p>This just permits awful candidates to qualify for taxpayer funding for elections.
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