The Right to Free (Taxpayer-Funded) Speech

In addition to amending the Constitution, critics of today's Supreme Court decision in Citizens United v. FEC recommend taxpayer funding of election campaigns as a remedy for the coming onslaught of corporate speech. One model favored by campaign finance reformers is Arizona's "Clean Elections" system, which provides "matching funds" to a candidate's opponents when he exceeds a legal threshold on spending. Yesterday, coincidentally, a federal judge rejected this scheme, ruling that it violates the First Amendment by penalizing candidates for talking too much. U.S. District Judge Roslyn O. Silver said the matching funds provision "burdens…First Amendment rights, is not supported by a compelling state interest, is not narrowly tailored, and is not the least restrictive alternative."

The rationale for Arizona's system is similar to that of the "millionaire's amendment," a provision of the Bipartisan Campaign Reform Act that the Supreme Court overturned in 2008 on First Amendment grounds.  That provision raised contribution limits for candidates facing wealthy opponents spending their own money, a kind of challenge deemed grossly unfair by incumbent legislators who do not like attending fundraisers. Arizona's approach seems, if anything, harder to justify, since even a candidate who raises lots of money in small contributions from enthusiastic supporters attracted by his ideas would see that advantage nullified by taxpayer subsidies for his opponent.

The Institute for Justice, which brought the Arizona challenge, has more on the decision here.