Thursday, June 30, 2011

And Now, With an Opposing Viewpoint, Here’s Justice Kagan …

Last night I posted a lengthy piece on the Supreme Court’s recent decision in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, No. 10-238 (slip op. June 27, 2011), explaining the Court’s decision striking down the Arizona Citizens Clean Elections Act of 1998 on First Amendment grounds. It was a 5-4 decision authored by Chief Justice John Roberts, who was joined in the majority by Justices Scalia, Kennedy, Thomas and Alito. (You can download a the case in .pdf format here.)

After I posted that piece, my friend Steve of the Linkmeister blog pointed out that I neglected to discuss the dissenting opinion authored by Justice Elena Kagan, who was joined by Justices Ginsberg, Breyer and Sotomayor. Steve discussed the dissenting opinion here, with a nod to Scott Lemieux at Lawyers, Guns and Money. Point taken, Linkmeister, so without further ado, here’s what Justice Kagan had to say.

First, Justice Kagan pointedly describes the conundrum the Arizona Citizens Clean Elections Act was meant to address:

Imagine two States, each plagued by a corrupt political system. In both States, candidates for public office accept large campaign contributions in exchange for the promise that, after assuming office, they will rank the donors' interests ahead of all others. As a result of these bargains, politicians ignore the public interest, sound public policy languishes, and the citizens lose confidence in their government.

Recognizing the cancerous effect of this corruption, voters of the first State, acting through referendum, enact several campaign finance measures previously approved by this Court. They cap campaign contributions; require disclosure of substantial donations; and create an optional public financing program that gives candidates a fixed public subsidy if they refrain from private fundraising. But these measures do not work. Individuals who "bundle" campaign contributions become indispensable to candidates in need of money. Simple disclosure fails to prevent shady dealing. And candidates choose not to participate in the public financing system because the sums provided do not make them competitive with their privately financed opponents. So the State remains afflicted with corruption.

Voters of the second State, having witnessed this failure, take an ever-so-slightly different tack to cleaning up their political system. They too enact contribution limits and disclosure requirements. But they believe that the greatest hope of eliminating corruption lies in creating an effective public financing program, which will break candidates' dependence on large donors and bundlers. These voters realize, based on the first State's experience, that such a program will not work unless candidates agree to participate in it. And candidates will participate only if they know that they will receive sufficient funding to run competitive races. So the voters enact a program that carefully adjusts the money given to would-be officeholders, through the use of a matching funds mechanism, in order to provide this assurance. The program does not discriminate against any candidate or point of view, and it does not restrict any person's ability to speak. In fact, by providing resources to many candidates, the program creates more speech and thereby broadens public debate. And just as the voters had hoped, the program accomplishes its mission of restoring integrity to the political system. The second State rids itself of corruption.

Dissenting op. at 1-2 (.pdf).

Not surprisingly, while the majority opinion focused on the “burden” the Arizona statute imposes on privately financed candidates (the burden that if they expend more than the public allotment given to publicly funded candidates, every additional dollar the privately financed candidate spends to speak triggers the government giving his or her opponent an additional dollar with which to speak), Justice Kagan’s dissent focuses on the problem the Arizona law was meant to address (i.e., “eliminating corruption [by] creating an effective public financing program, which will break candidates’ dependence on large donors and bundlers”). Consequently (and also not surprisingly), Justice Kagan likewise turns the majority’s reliance on New York Times Co. v. Sullivan, 376 U.S. 254 (1964), against it. At the conclusion of its opinion striking down the Arizona law, the majority quotes New York Times Co. v. Sullivan for the hoary principle that America has a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,” 376 U.S. at 270; but Justice Kagan sees the Arizona law as furthering that principle:

The First Amendment’s core purpose is to foster a healthy, vibrant political system full of robust discussion and debate. Nothing in Arizona’s anti-corruption statute, the Arizona Citizens Clean Elections Act, violates this constitutional protection. To the contrary, the Act promotes the values underlying both the First Amendment and our entire Constitution by enhancing the “opportunity for free political discussion to the end that government may be responsive to the will of the people. [New York Times Co. v. Sullivan, 376 U.S. 254], at 269 (internal quotation marks omitted).

Arizona Free Enterprise Club’s Freedom Club PAC, dissenting op. at 3.

Analyzing the specific issues in the case, Justice Kagan’s dissent then discusses the history of campaign finance reform in the 20th century, from efforts by Pres. Theodore Roosevelt to enact campaign finance reform laws in the early 1900s through the Supreme Court’s decision in Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), which upheld provisions of the Federal Election Campaign Act of 1974 that limited campaign contributions but struck down other provisions of the law aimed at limiting certain types of campaign expenditures by individuals and groups. As a consequence of Buckley, Justice Kagan points out, “a public funding program must be voluntary to pass constitutional muster, because of its restrictions on contributions and expenditures. … And candidates will choose to sign up only if the subsidy provided enables them to run competitive races.” Arizona Free Enterprise Club’s Freedom Club PAC, dissenting op. at 5-6.

So, Arizona’s public campaign finance law was an effort to meet the requirements of Buckley (i.e., it’s a voluntary system that does not place limits on the amount candidates and other organizations can expend); but at the same time sought to balance the need to provide sufficient funds to encourage candidates to opt for public funding while not “impos[ing] an unsustainable burden on the public fisc.” Id. at 6. Hence the two-tiered approach to public funding: An initial grant of funds to get the campaign going, with matching funds in the event the publicly funded candidate’s privately funded opponent, or groups supporting the privately funded candidate, spend more than that initial allotment.

Viewed this way, Justice Kagan reasons:

Arizona’s statute does not impose a “restriction,” [majority opinion] at 15, or “substantia[l] burde[n],” [majority opinion] at 2, on expression. The law has quite the opposite effect: It subsidizes and so produces more political speech. We recognized in Buckley that, for this reason, public financing of elections “facilitate[s] and enlarge[s] public discussion,” in support of First Amendment values. 424 U. S., at 92-93. And what we said then is just as true today. Except in a world gone topsy-turvy, additional campaign speech and electoral competition is not a First Amendment injury.

Dissenting op. at 9. In fact, Justice Kagan asserts, the distinction between government acts that restrict speech and governments acts that subsidize speech is the determinative factor here:

In case after case, year upon year, we have distinguished between speech restrictions and speech subsidies. “‘There is a basic difference,’” we have held, “‘between direct state interference with [First Amendment] protected activity and state encouragement’” of other expression. Rust v. Sullivan, 500 U. S. 173, 193 (1991) (quoting Maher v. Roe, 432 U. S. 464, 475 (1977)); see also, e.g., Federal Election Comm’n v. Massachusetts Citizens for Life, Inc., 479 U. S. 238, 256, n. 9 (1986); Regan v. Taxation With Representation of Wash., 461 U. S. 540, 550 (1983); National Endowment for Arts v. Finley, 524 U. S. 569, 587-588 (1998); id., at 599 (SCALIA, J., concurring in judgment) (noting the “fundamental divide” between “‘abridging’ speech and funding it”). Government subsidies of speech, designed “to stimulate ... expression[,] ... [are] consistent with the First Amendment,” so long as they do not discriminate on the basis of viewpoint. Board of Regents of Univ. of Wis. System v. Southworth, 529 U. S. 217, 234 (2000); see, e.g., Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 834 (1995); Finley, 524 U. S., at 587-588. That is because subsidies, by definition and contra the majority, do not restrict any speech.

Dissenting op. at 11.

The dissent concludes that because Arizona’s law is content-neutral (that is, it does not discriminate against any candidate on the basis of his or her viewpoint), the mere fact that Arizona subsidizes the speech of certain candidates (in fact, any candidate who chooses to accept the subsidy) does not mean the statute runs afoul of the First Amendment. Indeed, the dissent notes, the position asserted by the petitioners challenging the Arizona law – the position adopted by the majority – has the effect of impairing the ability of less wealthy candidates to speak and thereby favoring the speech of wealthier candidates:

Indeed, what petitioners demand is essentially a right to quash others’ speech through the prohibition of a (universally available) subsidy program. Petitioners are able to convey their ideas without public financing – and they would prefer the field to themselves, so that they can speak free from response. To attain that goal, they ask this Court to prevent Arizona from funding electoral speech – even though that assistance is offered to every state candidate, on the same (entirely unobjectionable) basis. And this Court gladly obliges.

Dissenting op. at 12-13.

There’s actually quite a bit more to Justice Kagan’s opinion, and I’m hardly an expert on campaign finance law; but this, it seems to me, is the crux of the matter. If you view Arizona’s law as a “burden” on speech because it means wealthy, privately financed candidates risk triggering a public subsidy of their opponent’s speech if the privately financed candidates (and supporting organizations) spend in excess of their opponent’s initial public grant, then, yes, I can see why you would not like the law. But if you view Arizona’s public campaign finance law as a way of encouraging participation and giving other, less wealthy, voices a chance to be heard, then the reasoning of Justice Kagan’s dissent seems to make great good sense.

© 2011 David P. von Ebers. All rights reserved.


  1. My absolute favorite tavern, and we did have a family-friendly community tavern in my little hometown of Goldenrod, Florida when I was young. The conversation here is non pariel.

    David Payne, aka Anonymous David

  2. Counsellor Dave:

    If GOD wanted the poor to have a political voice, they'da been born rich!

    I wonder how recently Tony Ducks and Thomas went for an all expenses paid rafting adventure at the Grand Canyon, with a boatload of lobbyists.

    Sometimes I wish I was MORE cynical.


  3. This country is becoming state one. Sad.