Is the Arizona 'Clean Elections' Case About 'Free Speech for Really Rich Guys'?

Yesterday the Supreme Court heard a First Amendment challenge to Arizona's Clean Elections system, which awards subsidies to participating candidates based on how much people spend to defeat them. That includes spending by independent groups as well as opposing candidates. So if a privately financed candidate faces three publicly funded opponents, they will receive a total of $30,000 in taxpayer money to spend against him when an independent group spends $10,000 on ads praising him or criticizing them. Such a system, as Justice Anthony Kennedy noted during the oral arguments, is apt to make candidates and independent groups "think twice" before they open their mouths.

As I explain in my column tomorrow, the Clean Elections law was in fact designed to do precisely that, which is why the activists and politicians who are challenging it argue that it violates their First Amendment rights. Kennedy's sympathy for their side was clear yesterday, when he responded to an argument from the lawyer representing Arizona by saying, "I frankly am tempted to believe the opposite view." He also posed this softball question to Institute for Justice attorney William Maurer, who made the case against Arizona's campaign subsidies: "Do you think it would be a fair characterization of this law to say that its purpose and its effect are to produce less speech in political campaigns?" Since Kennedy is expected to provide the decisive vote in this case, it seems clear that the Court will overturn the Clean Elections law.

I did not attend the oral arguments (PDF), so it's hard for me to judge the emotional tenor of the questions and comments. But in a piece derisively titled "Free Speech for Really Rich Guys," Slate's Dahlia Lithwick describes the four justices who questioned the law's constitutionality (Kennedy, Antonin Scalia, Samuel Alito, and Chief Justice John Roberts) as "passionate" on the subject, eager to "paint the Arizona campaign-finance system as a vicious attempt by government to muffle the speech of America's defenseless bajillionaires." The class angle is a bit puzzling, since Arizona's law hurts candidates who are good at fund raising more than it hurts rich candidates. As Lithwick notes, the subsidies are capped at three times the initial allocation, so a "bajillionaire" could still outspend a publicly funded opponent, while a candidate relying on the voluntary support of his fellow citizens probably would be stuck in the range where every dollar he spends triggers a dollar for each of his opponents.

Since Lithwick refers to "donors 'thinking twice' about making campaign contributions," maybe the bajillionaires she has in mind are the ones who give money to candidates. But that does not make much sense either, since Arizona has strict limits on campaign contributions, currently $424 per legislative candidate and $872 per statewide candidate, with a $6,100 annual cap per donor. Not exactly bajillionaire territory. Likewise, Lithwick's portrayal of the Clean Elections law as a reasonable response to scandals in which "state legislators were caught taking bribes to support gambling legislation" (among other things) seems implausible, since that sort of behavior has always been illegal. How do "matching funds" for political candidates prevent legislators from taking bribes?

More generally, Lithwick offers no evidence to support her implication that Kennedy et al. believe in freedom of speech only (or especially) for rich people. This evidentiary gap cannot be papered over by her ritual invocation of Citizens United. That case was not about "free speech for really rich guys," who were always allowed to spend however much they wanted to promote their political views. It was about free speech for individuals organized as corporations, the overwhelming majority of which are small businesses or nonprofit organizations. Under the legal regime that prevailed prior to Citizens United, bajillionaires such as George Soros and David Koch (not to mention big media corporations such as the one that owns Slate) had more freedom of speech than middle-class members of the NRA or the ACLU.

Is it fair, then, to portray the justices who dissented in Citizens United as reactionaries keen to defend the privileges of plutocrats while keeping the little guy down? Of course not, but this caricature does not fit the justices who joined the majority either. Sometimes people really do have honest differences of opinion about constitutional interpretation. For the sake of civility and rational discussion, why not assume that to be the case in the absence of strong evidence to the contrary?

I discussed the Arizona case in a 2010 column. For more on the presumed prejudices of Supreme Court justices, go here and here.