Wednesday, March 30, 2011

SCOTUS Returns to Politics and Money

Crossposted at MyDD.

Just over a year after the Citizens United ruling, the Supreme Court is about to delve into politics and money again, this time taking up the constitutionality of Arizona's public finance system for state candidates:
The subsidy system that the Justices are now ready to review was, in fact, believed to be a reform measure when Arizona’s voters narrowly approved it (by a 51-49 percent margin) in a statewide initiative in 1998.  After a series of scandals over financing of state campaigns, resulting, among other woes, in criminal prosecution of two governors and a number of state legislators, voters went to the polls to vote on a measure titled the “Clean Elections Act.” Backers promoted the Act with a pamphlet arguing that the Act would free politicians to represent the public’s interest, and not just the interests of those who gave large contributions to their campaigns.  The pamphlet tied the Act directly to the recent scandals, saying that the cycle of campaign finance abuse had seemed endless.
The Act went into effect in 2000, and as many as two-thirds of state candidates thereafter have opted into the subsidy system.  The system was used in every state election after 2000 — until the elections of last November, after the system had been blocked by a temporary vote of the Supreme Court last June 8.
The "Clean Elections Act" is complicated -- but not unwieldy -- to understand, especially when you dig into various trigger and counter-trigger mechanisms enacted by the campaign sending choices of wealthy self-funded candidates.  But that's not where those challenging the law are focused.  Both proponents and opponents of the law are making a similar argument: this is about free speech.
Opponents aim at a specific trigger mechanism in which a candidate can ask for a subsidy if a self-financed opponent's (including independent "supporting groups") spending reaches a certain level, arguing this would encourage a self-financed candidate to keep their spending below that ceilling, "limiting" their free speech.  Proponents of the law argue this mechanism levels the playing field fairly.  Self-funded candidates are still free to out spend, but as they do, their opponents qualify for (but aren't forced to request) additional (but not equal in dollar amount) subsidies.
In a follow up post, SCOTUSblog's Lyle Denniston points out that in Monday's oral arguments, at least one Justice is already foreshadowing the precarious future of the system:
Justice Anthony M. Kennedy, who definitely seems to hold the deciding vote on the newest test of the Supreme Court’s skepticism about campaign finance laws, made repeated comments on Monday suggesting that he is very wary of Arizona’s attempt to offset the impact of wealthy candidates paying their own way.  Among a variety that could be noted, no remark was more telling than what seemed almost to be a rhetorical question: “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?”
I'm not informed enough on it to argue the Arizona model is a perfect or flawed system for better election process, but in Citizens United, the court declared it was "discriminatory" to limit "free speech" based on the "identity" of the spender.  I'd expect them to take the same position here ensuring another win for billionaires buying up elections.

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