Litigation

High Court ?Skeptical? About AZ Public Financing

By Peter Hardin

The Supreme Court heard arguments Monday in a case challenging Arizona’s law for public financing of campaigns, and the court appeared inclined to strike down a key provision of the law.

Under the provision, publicly funded candidates get additional dollars, called “trigger funds,” when privately financed candidates or independent groups spend more.

The justices “appeared skeptical of the Arizona law because it, in their view, is designed to level the playing field for all candidates,” the Associated Press reported. “The court has said such leveling often runs afoul of the First Amendment.”

At SCOTUSblog, veteran court watcher Lyle Denniston wrote that “it was more than evident on Monday that the Arizona system…was in deep constitutional jeopardy.”

Justice at Stake has filed an amicus brief and has warned that the case could undermine fair courts in four states, where similar laws protect judicial candidates from the impact of special-interest money.

A transcript of Monday’s oral arguments is available by clicking here.

William Maurer, a lawyer representing parties challenging the statute, said it improperly burdens political speech, restricts spending in elections, and was designed to “level the playing field” for candidates, according to a Reuters article.

Arizona’s public financing system violates candidates’ and independent groups’ free-speech rights when “each time they speak…the more their opponents benefit,” the high court was told, according to a Milwaukee Journal Sentinel report.

But the system’s defenders contended it results not in less political speech, but more. Public financing helps fight corruption, and the Arizona statute was drafted to make it a viable option for candidates, they said.

Justice Anthony Kennedy, often a swing vote on court rulings, said he “tentatively” thought Arizona law discourages spending by independent groups because they are aware that if they spend more in opposition to a publicly funded candidate, he will get more public dollars.

And according to SCOTUSblog, Justice Kennedy asked, “Do you think it would be a fair characterization of this law to say that its purpose and its effect are to produce less speech in political campaigns??

Replied Maurer, “The entire motivation of this was to limit spending in leveling the playing field.  Limiting spending indicates that they wanted less political speech in the state of Arizona, and that?s what they?ve got.?

Other remarks, too, suggested skepticism by some justices. A privately funded candidate might think twice about whether to jump into a race as a “matter of common sense,” Chief Justice John Roberts said.

Justice Antonin Scalia expressed concerns. “It seems to me it’s very much pro-incumbent,” he said about the statute.

From another vantage point, Justice Elena Kagan asked whether the law was intended to wipe out corruption. The court has upheld that justification in the past for some campaign spending laws. And Justice Ruth Bader Ginsburg pointed to political scandal that had embarrassed Arizona before the public financing law was passed.

These were among news articles previewing the arguments in the hours before they unfolded: Wall Street Journal, “Supreme Court to Hear Campaign-Finance Case;” NPR, “High Court Takes Another Stab at Campaign Finance;” and Arizona Republic, “Supreme Court weighs Clean Elections funds Match.”

To learn more about the case, called McComish v. Bennett, check out the JAS resources page about it, or visit Gavel Grab.

Full post as published by The Gavel on March 28, 2011 (boomark / email).