Yesterday the State of Maine passed an initiative that purports to reform the campaign finance system for state elections and enhance public financing for elections, to rapturous applause from the expected quarters. The only problem is that nobody—including its supporters—sincerely believes this initiative to be Constitutional.
Maine has public financing for elections: Candidates that agree to abide by certain restrictions receive funds from the state government to pay for campaign expenses such as ads. This is uncontroversially constitutional. Indeed, federal presidential elections have a similar system.
The problem, as the self-styled campaign finance reformers see it, is that this system breaks down if only one candidate agrees to the conditions, or well-financed outside forces provide rhetorical support for one candidate. It is well-settled that a wealthy candidate or third-party can spend absolutely unlimited amounts of their own money to influence elections. Thus any Maine candidate will feel compelled to avoid the public financing system, lest they find themselves overwhelmed by any such potential foe. The end result is a breakdown of public financing schemes.This is, apparently, bad.
In response, public financing laws added provisions that granted additional public funds to any publicly financed candidate who faced an opponent spending beyond the campaign finance limitations (or whose supporters did).
However in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett (2011), the Supreme Court found such additional public financing to be in violation of the First Amendment. At first glance, this seems a strange result for these laws—unlike almost all others that ran afoul of the Free Speech clause—do not prohibit anybody from saying anything. To the contrary, they give some people more money to engage in expressive activity of their choice. Rather, the majority argued that that giving additional public funds to those opposed by privately funded candidates and causes, so effectively punishes the privately funded speech as to place an
undue burden. And under the Constitution,
[l]eveling the playing field is not a sufficient reason to place undue burdens on free speech.
Some readers will doubtlessly be sputtering with outrage at this point. What horrible Right-Wing hacks at the Supreme Court could be so shameless as to embrace such specious reasoning in aid of their Plutocrat Pals! This idea that the government, by giving away money to some people could violate other’s Free Speech right is beyond all reason!
Perhaps so, but when looking at the law, and in particular First Amendment law, it is very useful to consider whether the
principles one embraces or disdains are deserving of that description. For the First Amendment is not respecter of persons or views—if a principle applies to one, it applies to all; it does not apply to one, it applies to none. So if one is willing to embrace a principle for one’s favored cause, one should consider how one would feel about its constitutionality if it was used by one’s most reviled enemy. If one rejects a principle for one’s enemy, one should reflect about one’s views should one’s friend be denied its protection. And if the answers do not match, one should keep silent until they do.
Imagine Congress passed a law that whenever funds are expended to promote one’s favorite cause—Gay rights?—or by one’s favorite publication—the New York Times?—the federal treasury would immediately disburse sufficient funds to the cause’s or publication’s opposition to more than offset any effect on public opinion. Would that be a violation of the First Amendment? Or would it be Constitutional even if it demonstrably led to one’s favorite shutting up or greatly reducing advocacy?This is a closer question than the equivalent points with respect to Citizens United where to sincerely embrace the main talking points against the decisions, (1)
Corporations don’t have First Amendment Rights! and
Money Isn’t Speech!, also requires embracing, for example, the corollaries that (1) it would be Constitutional for Congress to require the New York Times, prior to publications, submit its editorials to the RNC for approval and editing, and (2) it would be Constitutional for Congress to outlaw paying for criminal defense counsel.
So while the author is inclined to embrace the principle of Arizona Free Enterprise Club, others of good will and intelligence reasonably may not. All that is required of them is to go on the record so stating, lest they be tempted to flip-flop once Congress passed the hypothetical law. However, legally that issue is moot. Arizona Free Enterprise Club was decided and the District Court of Maine accordingly struck down the old Maine statute. Public officials are obligated to comply, as they did when Maine passed its initiative. Or—perhaps more accurately—they completely, deliberately and brazenly failed to do.
Under the new initiative, instead of handing out lump sums to candidates facing large private expenditures, such a candidate is instead allowed to raise larger sums and receive matches for these larger sums.
The sole argument to be found anywhere that this does not run afoul of Arizona Free Enterprise Club is that it does not involve handing out direct government cash. But this is so absurd that any lawyer making such an argument is subject to Rule 11 sanctions for multiple reasons:
Absolutely any financial support to a candidate made through direct cash grant is trivially converted to another equally effective form. The state could just hand candidates tax exemptions or free government services and achieve exactly the same outcome. Any principle so trivially evaded is no principle at all.In another context, the author’s sainted tax law professor was fond of remarking that any way to evade substantial tax liability which could readily occur to a reasonably intelligent high-school graduate is guaranteed already to specifically outlawed in the tax code.
There is absolutely nothing in the argument and reasoning of Arizona Free Enterprise Club to suggest that it is confined exclusively to direct cash grants; to the contrary, all the reasoning equally applies to the scheme in the new initiative. To argue otherwise is as specious as for Mississippi in 1956 to argue that it only needs to admit black children called Brown to its white schools.
Finally and most damningly, Arizona Free Enterprise Club explicitly is based on an earlier case Davis v. FEC (2008) which held unconstitutional exactly the same kind of scheme of granting exemptions to contribution limits for candidates facing large opposition expenditures! Nothing suggests that Davis has been overruled.It is true that Arizona Free Enterprise Club repeatedly states that the direct cash grants were even worse than the more indirect support in Davis and hence had to be struck down a fortiori. If any brave lawyer for the initiative wish to take this as a cause to stand up in federal court and argue along the lines of
Well, Arizona Free Speech said that indirect support isn’t nearly as bad as a direct grant, so that really implies that indirect support may be ok.please let the author know, for he’d very much like to see the judge’s reaction.
In short, it is impossible that the competent lawyers for the new Maine initiative sincerely believe that it is Constitutional under current law. Their only hope can be that, by some quirk, the new scheme does not reach the Supreme Court or that, by that time, the composition of the Court will have changed sufficiently. This is exactly the sort of wide-spread, willful, and brazen disobedience to the Constitution that was once known as Massive Resistance.