In two weeks, the U.S. Supreme Court will hear oral argument in a case raising important First Amendment issues about public financing of political campaigns.
The case comes from Arizona. In the 1990s, many Arizona legislators faced civil and criminal charges involving campaign contributions from the gambling industry. In 1998, Arizona’s voters passed a referendum establishing a “Clean Elections” program that provides public funding to candidates for state offices who voluntarily limit the amount of money they raise in private donations.
The Clean Elections program provides additional public funding, above the base amount, to candidates in two situations: first, where the candidate’s opponent has refused to participate in the public funding program; and second, where independent organizations spend large amounts of money opposing the candidate. The additional public funds are intended to level the playing field in races where large amounts of private money are being spent by candidates or independent organizations.
Republican candidates and party committees, and conservative interest groups, challenged the Arizona law in federal court. They claim that the Clean Elections program limits their First Amendment rights by forcing them to spend less money than they would like in order to avoid triggering the additional public funds for their opponents. The state of Arizona said the law was needed to avoid the appearance and reality of corruption in the state’s elections. The state emphasized that the background event leading up to the referendum approving the law was the gambling contributions scandal.
The federal district court in Arizona agreed with the groups challenging the law, and issued an injunction to prevent the additional public funds from being distributed to candidates in the 2010 election cycle. The federal appeals court for the ninth circuit, which hears cases from Arizona, reversed the district court and upheld the law, saying that it did not impose a significant burden on the plaintiffs’ First Amendment rights. In the appeals court’s view, the plaintiffs were still free to spend as much money as they wanted; it was the candidates they were opposing who would receive the extra public funds.
The Republican plaintiffs and their interest group allies appealed to the Supreme Court, which agreed to accept the case and put it on the docket for argument this month. The Supreme Court also reinstated the injunction against disbursing the additional public funds to candidates running for office in last November’s elections.
In recent years, the Supreme Court has struck down several state and federal laws regulating or limiting campaign contributions and spending, including a 1997 Vermont law restricting both contributions and expenditures. The Supreme Court also ruled against the so-called “millionaires amendment” allowing federal candidates to raise larger contributions if their opponent was a self-financed candidate spending huge amounts of his or her own money on the campaign. Last year, in the Citizens United case, the Supreme Court ruled that corporations and labor organizations could spend unlimited amounts of money on political advertisements.
All of the recent campaign finance cases in the Supreme Court have been decided by narrow majorities, usually 5 to 4. The five justices nominated by Republican presidents have consistently ruled that attempts by the federal or state governments to limit campaign spending improperly restrict the First Amendment rights of candidates seeking office and organizations seeking to influence elections. The supplemental public campaign funds in Arizona will likely be ruled unconstitutional on a closely divided vote of the justices. Republicans can continue to count on the Supreme Court to rule in their favor in campaign finance cases.
Eric L. Davis is professor emeritus of political science at Middlebury College.