Supreme Court Strikes Down Parts Of Arizona Campaign Finance Law

Another major campaign finance case from the Supreme Court.

The last major decision handed down by the Supreme Court came in Arizona Free Enterprise Club v. Bennett, where the Supreme Court struck down the matching funds provisions of Arizona’s campaign finance law:

The Supreme Court on Monday struck down part of Arizona’s public campaign finance law, the court’s latest decision that the right of political speech trumps government’s attempts to restrain the power of money in elections.

The court rejected Arizona’s system of providing “matching funds” to candidates who face big-spending opponents or opposition groups. The system has been used in every statewide and legislative election since voters approved it in 1998, after a period in which the state told the court a “seamless interplay between fundraising and lawmaking cast a web of perceived corruption over the Arizona capitol.”

But the court by a now familiar 5 to 4 margin said the law acts to discourage candidates and independent political organizations from spending money to further their political speech.

“The First Amendment embodies our choice as a nation that, when it comes to such speech, the guiding principle is freedom — the ‘unfettered interchange of ideas’ — not whatever the state may view as fair,” wrote Chief Justice John G. Roberts Jr.

It is the latest campaign finance restriction struck by the court under Roberts. The court’s conservative majority — Roberts plus Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. — has declared unconstitutional major portions of the McCain-Feingold campaign finance act.

And the loosening of spending constraints on corporations and unions in last year’s Citizens United v. Federal Election Commission was a game-changing decision that roiled the midterm elections.

There was a difference in this case because of recent additions to the court: All in the majority were appointed by Republican presidents, all the dissenters by Democrats.

New Justice Elena Kagan spoke for the objectors, reading her dissent from the bench for emphasis.

“The First Amendment’s core purpose is to foster a healthy, vibrant political system full of robust discussion and debate,” Kagan said. “Nothing in Arizona’s anti-corruption statute, the Arizona Citizens Clean Elections Act, violates this constitutional protection.”

Kagan directly answered Roberts’s assertion that “in a democracy, campaigning for office is not a game. It is a critically important form of speech.”

She said Arizonans “deserve a government that represents them all. … Truly, democracy is not a game.”

The decision could affect a handful of states and cities, including New York and San Francisco, that include “trigger funds” in their publicly financed campaign laws. But the court said it was not questioning “the wisdom of public financing as a means of funding political candidacy. That is not our business.”

The Cato Institute’s Ilya Shapiro comments:

This result should’ve been obvious to the entire Court, not just a five-justice majority, in the wake of the Davis v. FEC “Millionaires’ Amendment” case from 2008. Davis struck down the part of McCain-Feingold in which spending by individually wealthy candidates triggered increased contribution limits for their opponents. If the mere possibility of your opponent getting more money is unconstitutional, then the guarantee that your opponent will get more money—as was the case under the Arizona law—is even more so.

Allowing the government to burden political speech in this fashion not only diminishes the quality of political debate, but ignores the fundamental principle upon which the First Amendment is premised: that the government cannot be trusted to regulate political speech for the public benefit. Moreover, the state cannot condition the exercise of the right to speak on the promotion of a viewpoint contrary to the speaker’s.

The biggest problem with the law, though, was the fact that it punishes the speech of independent groups:

The Arizona law also severely burdens the political speech of independent groups.  Every dollar they spend on election speech guarantees a financial payout to the publicly funded candidate the group opposes – and spending one dollar may result in multiple dollars going to multiple publicly financed candidates.  And independent groups are not entitled to get public funding for their political speech.  So the only way that independent groups – and privately financed candidates – can avoid matching funds going to their opponents is by censoring their speech or not speaking at all.  For the government to impose such a burden on anyone exercising their right to engage in political speech and activity is unconscionable – there is no question it is unconstitutional.

Proponents of this state law made it clear that they were interested in “leveling the playing the field.”  But the Court has said on numerous occasions that the Constitution and the First Amendment do not allow you to burden or censor someone’s speech to level the electoral playing field.  If it did, then the amount of political speech you were allowed to engage in would depend on your income level or how much you had already spoken relative to other speakers, a crazy idea that unfortunately too many liberals (including justices of the Court) think is a good idea.

The bottom line of the Arizona law is that it financially punishes individuals and groups for speaking.  As the Court said, citing to the landmark New York Times Co. v. Sullivan case in 1964, we have a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.”   What the Court said in Sullivan was “True when we said it and true today.  Laws like Arizona’s matching funds provision that inhibit robust and wide-open political debate without sufficient justification cannot stand.”

Moreover as Jonathan Tobin notes, the idea that there’s any connection between public financing and “clean government” is simply not demonstrated by history:

The good intentions of so-called campaign finance reformers have proved no protection against the creation of a system that is, if anything, more corrupt than the one they initially thought to overturn in the 1970s. This is an important point, although one the left fails to understand. So long as the government in the form of election commissions or courts is empowered to fine tune the back and forth of election spending, it is on a fool’s errand that will make more mischief than good. When it comes to all forms of political speech, the only thing for state or federal governments to do is to get out of the way. Money spent promoting ideas, causes or candidates is political speech. Efforts to restrict such speech will inevitably harm the cause of democracy.

On the whole, the entire idea of public financing strikes me as Constitutionally problematic. Not only for the reasons raised by the Court in this case, but also because it impinges on the First Amendment rights of taxpayers who are forced to see their money go to candidates that they don’t support, which is in itself a violation of free speech and a form of forced political speech. Frankly, I would’ve been fine with the Court saying that all public financing is unconstitutional but that’s probably not in the cards right now. So, I’ll take the small victories.

Here’s the opinion:

Arizona Free Enterprise Club v. Bennett



FILED UNDER: Law and the Courts, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020.


  1. lunaticllama says:

    Shorter Supreme Court: allowing more people access to funding necessary for political competition violates other’s First Amendment rights even if in no way burdens their right to spend money.

    This law does not “punish” the speech of others. It simply allows others to get their message out. Are you punished because I am writing a critical comment on your blog post? Or are simply more viewpoints being aired allowing people to judge competing arguments themselves? Again, what’s the limit on independent group’s ability to spend money? If you want to empower corporate elites, and declare that free speech is as good as the corporate dollars behind, feel free to argue so. This is not a part of traditional First Amendment doctrine, however, and is judicial activism

    Kagan hits the nail on the head:
    “This suit, in fact, may merit less attention than any challenge to a speech subsidy ever seen in this Court. In the usual First Amendment subsidy case, a person complains that the government declined to finance his speech, while bankrolling someone else’s; we must then decide whether the government differentiated between these speakers on a prohibited basis—because it preferred one speaker’s ideas to another’s. But the candidates bringing this challenge do not make that claim—because they were never denied a subsidy. Arizona, remember, offers to support any person running for state office. Petitioners here refused that assistance. So they are making a novel argument: that Arizona violated their First Amendment rights by disbursing funds to other speakers even though they could have received (but chose to spurn) the same financial assistance. Some people might call that chutzpah.”

  2. PD Shaw says:

    As I understand the law, if a homeless charity spends $100,000 to run an advertisement opposing a candidate who is proposing to reduce public spending on the homeless, the state would then give the candidate $100,000 to do what he or she wants; the candidate can use the money to run adds criticizing the opponent’s religion.

    Sounds like a stupid law, for failing to recognize the lack of symmetry between the speech interest of the politician (whatever it takes to get elected) and of independent groups (whatever issue effects them the most).

  3. Ebenezer Arvigenius says:

    One can certainly discuss the merits of this law. But I’m still somewhat baffled by the arguments as stated in the article:

    I simply fail to see how the promotion of alternate viewpoints (as long as all viewpoints are promoted equally without recourse to their content) can be argued to impede the right of free speech. Of course adding viewpoints will dilute “brand recognition”. But unless one proposes that the ability to spend money on promoting your viewpoint should confer some exclusive rights to the marketplace of opinions (which could be argued but seems at odds with the idea of free speech), I fail to see multipolarity as a failing of political discourse.

    I probably should read the source itself but are simply too tired today. Somebody willing to give me the cliff notes version? 😉

  4. davod says:

    “promotion of alternate viewpoints”

    Using other peoples (taxpayers) money without their consent

  5. Ebenezer Arvigenius says:

    Using other peoples (taxpayers) money without their consent

    Different issue than the one I was asking about.

    But to tackle that: That’s part of the danger of living in a majority vote democratic system. The question of how to protect minorities in a majority vote system is of course an important one. But as it stands, no citizen is (afaik etc.) constitutionally protected against having his tax money spent on things he disapproves of. Whether it is global warming research for the right or foreign wars to the left, there is no opt-out clause. The remedy for that is political action, not supreme court review.

  6. DMan says:

    I don’t know enough about the Arizona law to comment on it, but I think this country will be better off with some sort of campaign finance law that is both constitutional and sensible.

    As for your own remarks:

    On the whole, the entire idea of public financing strikes me as Constitutionally problematic. Not only for the reasons raised by the Court in this case, but also because it impinges on the First Amendment rights of taxpayers who are forced to see their money go to candidates that they don’t support, which is in itself a violation of free speech and a form of forced political speech.(emphasis added)

    I’m having a logic problem with this. Is this true? Is taxpayer money “political speech”? Does it infringe upon my First Amendment rights when the government spends money on subsidies or services I disagree with? Or is it, as I’ve always assumed, the public’s money after taxation, and therefore no longer my “political speech” where I as an individual would have a say to how it’s spent. Unless we are going to go all-in on this taxpayer money as “political speech” argument and require citizens to earmark where their taxpayer money goes, I’m having trouble squaring public financing with the infringement of First Amendment rights.