Citizens United Redux? This Week, the Supreme Court Takes Up McComish v. Bennett
McComish v. Bennett is coming before the Supreme Court this week — a test of the constitutionality of Arizona’s Clean Elections law. Will McComish constitute a return to sanity, or one more dreadful step toward complete corporate manipulation of our electoral system? A couple of comments:
From Doug Kendall – http://www.huffingtonpost.com/doug-kendall/will-the-supreme-court-pr_b_840794.html
In the first big campaign finance case since the U.S. Supreme Court’s opinion last year in Citizens United v. FEC, the Court will hear arguments on Monday inMcComish v. Bennett. McComish is a critical test for the Roberts Court. Will it tolerate, or will it kill off, Arizona’s public financing law, put in place to control corporate and special interest influence over the electoral process? Public financing is one of the last, best protections against corruption available in the wake of Citizens United.
In Citizens United, a bitterly-divided Supreme Court gutted key parts of the McCain-Feingold campaign finance law, ruling by a 5-4 vote that corporations have a right to spend unlimited sums in candidate elections, effectively allowing corporations to drown out the voices of individual Americans. The majority in Citizens United sharply departed from our Constitution’s text and history. Corporations are never mentioned in the Constitution, they cannot vote in elections, stand for election, or serve as elected officials, but the Court inCitizens United ruled they can overwhelm the political process using profits generated by the special privileges — such as perpetual life and limited liability — granted to corporations alone.
The McComish case could be the next shoe to drop, or, perhaps, a turning point by the Court back toward fair elections and the Constitution. The Court will consider the constitutionality of Arizona’s Clean Elections Act, a thoughtful effort to deter both the appearance and the reality of campaign corruption by providing matching funds to participating candidates to ensure they can run a competitive race, even against a privately-financed candidate with huge reserves or a candidate with the support of corporate special interests. In a brief representing constitutional law scholars Bruce Ackerman of Yale, Lawrence Lessig of Harvard, Fordham’s Zephyr Teachout and UCLA’s Adam Winkler, my organization, Constitutional Accountability Center, argues that the Court should uphold Arizona’s law — not least because the Framers were obsessed with the possibility of our elected officials being corrupted by special interests. The Framers did all they could to make sure public servants in fact represent “We the People.”
Among many things at stake in McComish, one of the most important is the impact it could have on efforts to prevent corruption in state judicial elections (pdf). The Grisham novel facts of theCaperton v. Massey case (coal executive spends $3 million to help elect state Supreme Court justice who then casts deciding vote throwing out $50 million verdict against coal company), coupled with the presence of representatives of the Chamber of Commerce at a recent Koch retreatto discuss influencing the outcome of state judicial elections, show just how brazenly political judicial elections have come in recent years. In response, three states have adopted public financing systems to reduce the public’s impression of bias in their states’ elected judiciaries: New Mexico, North Carolina, and Wisconsin. West Virginia, the home of the Caperton case, has a public financing system slated to go online in the 2012 election cycle. McComish could have a profound impact on the viability of these efforts to clean up the selection process for our state courts.
We should all care about having fair elections, free from corruption, at both the federal and state level. For that reason, we should all be watching the McComish case closely. Will the Court that permitted the injection of unlimited corporate expenditures into our election process now prevent one of the best ways to ensure candidates without corporate backing have a fighting chance? We’ll know the answer soon.
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And from James Bickford at SCOTUSBlog:
The weekend’s coverage of the Court focused on two major cases being argued this week. Today, the Court hears argument in McComish v. Bennett (consolidated with Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett) which Warren Richey of the Christian Science Monitor calls “the most important test of a campaign finance reform law since last year’s Citizens United decision.” Nina Totenberg of NPR reports that “reform advocates face an uphill battle.” As Joan Biskupic describes it in USA Today, “The dispute centers on an Arizona public-financing system that provides extra funds to candidates who participate in the system when their opponents who don’t participate raise and spend money beyond a set limit. The question is whether the law that triggers a second set of public matching funds, beyond an initial lump sum, impinges on the opponents’ free speech by discouraging them from spending extra money in their campaigns.” On this blog, Lyle Denniston describes the Arizona system in greater detail and notes that “both sides claim that what is at stake for them is free speech, and each is claiming that the other side wants to curtail political speech.” Robert Barnes of the Washington Post sets McComish in the context of Citizens United, while David Savage and Nicholas Riccardi of the Los Angeles Times tell the story of David Schapira, “the youngest member of the state Senate as well as its Democratic leader, [who] credits his rapid rise in politics to the Clean Elections Act.” The Arizona Daily Sun reports that the fate of the state law may ultimately be decided out of court: opponents of public financing are attempting to amend the Arizona constitution to eliminate the system altogether.
Opinion writers and editorial boards have also shown interest in McComish. The editorial page of USA Today notes that “[n]othing in Arizona’s law bars privately funded candidates from raising and spending as much as they can and, at a certain point, the public financing system stops matching private money.” (The paper also wonders whether the Court tipped its hand when it enjoined Arizona from distributing the controversial funds during last year’s election cycle.) The editorial board of the Washington Post questions the provisions that provide additional funds to candidates facing opposition from independent groups, but argues that “the law’s core should be upheld, in no small part because the provisions in question were enacted in pursuit of the legitimate and compelling interests of reducing the corrupting influences of big money and special interests of all sorts.” The editorial board of the New York Times takes a similar view, arguing that the funds in question “support, expand and promote political speech, carrying out a central purpose of the First Amendment.” On the op-ed page of the Times, Charles Fried and Cliff Sloan argue that American free speech law does not accept the notion that privately funded speech could be “drowned out” by Arizona’s public funding scheme. At the Huffington Post, Doug Kendall supports the law and suggests that a decision striking it down “could have a profound impact on the viability of… efforts to clean up the selection process for our state courts.” On the op-ed page of USA Today, William Maurer (who will argue the case today) lays out the contrary view, writing that “proponents of the law promoted it as a means to limit spending in elections, drive out speakers with whom they disagreed, and skew the political playing field to favor government-funded candidates.”
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Update: I wanted to post the following commentary from Professor Deborah Hellman, of U. of Maryland College of Law, and courtesy of the blog Concurring Opinions: http://www.concurringopinions.com/archives/2011/03/hellman-on-confusing-restrictions-with-incentives-in-mccomish-v-bennett.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+ConcurringOpinions+%28Concurring+Opinions%29
Imagine you are an advisor to Presidential candidate Sarah Palin in the next election. As you think about what she should say and when, you will no doubt consider the Tina Fey factor. How will Fey respond? Will a Fey sketch of Palin be too damaging? Fey’s impersonation of Palin could even cause Palin to self-censor or even speak less. Can we therefore conclude that Fey restricts Palin’s speech? Of course Fey herself has a right to speak, so Palin has no grounds to complain but still the claim that Fey is restricting Palin’s speech is patently ridiculous. But that is essentially the argument made by the Petitioners in McComish v. Bennett, the Arizona matching funds case argued yesterday in the Supreme Court. The Petitioners argued that the Arizona law at issue unconstitutionally restricts the speech of candidates who do not avail themselves of public financing because, for example, “Arizona Taxpayers (one of the PACs challenging the law) chose not to speak in opposition to a publicly financed candidate to avoid triggering matching funds to that candidate.” Surely it isn’t enough that the law creates incentives for the petitioners not to spend money and speak, otherwise there would be a good argument for the claim that Fey’s comedy restricts Palin’s speech, and there is not!
Consider another example: suppose that the Arizona legislature, alarmed by high rates of childhood obesity in the state, adopts the following policy. If snack foods are advertised during children’s programming, money is allocated to run ads for comparable amounts of time touting the delicious taste of fruit. Could the snack food makers complain that their speech is restricted because this policy causes them to make strategic decisions about whether to advertise during children’s programs?
Of course, commercial speech is not political speech, but that’s beside the point. The speech of snack food makers isn’t abridged by the fact that their decision about whether to speak is influenced by other speech.
The mistake of the petitioners in McComish is to focus on the effect that the law produces (chilling their speech) rather than the means by which this effect is produced. Chilling speech through sanctions is problematic; chilling speech by more speech is not.
The broader point is that not all laws that affect incentives to speak restrict speech. How these incentives work matters. Consider Simon & Schuster, Inc. v. Members of the New York State Crime Victims Board (1991) in which the Supreme Court invalidated a New York law that required that all proceeds earned by accused or convicted criminals from descriptions of their crimes be escrowed in order to be available to victims of these crimes. The petitioners cite this case with approval, but its reasoning is deeply flawed.
While the New York law surely reduces the incentives of criminals to write about their crimes, this fact is insufficient by itself to conclude that the law burdens speech in a way cognizable by the First Amendment. The following analogy shows why. Federal law prohibits paying people to vote. By reducing the incentives to vote, fewer people likely vote. Yet we would be unlikely to conclude, therefore, that this law unconstitutionally burdens the right to vote. The fact that incentives to exercise a constitutionally protected right are affected does not, on its own, determine that the law violates the underlying right. The means matter.
In a recent article, I discuss that case and others in developing the argument that the fact money incentivizes or facilitates speech is not enough to show that a law that affects these incentives thereby restricts speech. It is available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1586377
The Arizona law surely affects the incentives of privately funded candidates to spend and thereby to speak. But because it does so by itself supporting speech and offers this support to all candidates, the law does not violate the First Amendment rights of anyone.