Razing Arizona

The chilling effect of campaign subsidies aimed at equalizing speech


Imagine you are competing in a marathon. Every time you pull into the lead, someone picks up the other runners in a van and lets them off next to you. When you object, he says you are still free to run as hard as you want.

That is how supporters of Arizona's campaign finance system respond to candidates who complain that it burdens their freedom of speech by providing "matching funds" to their opponents. The Supreme Court, which last week blocked those subsidies as it considers a constitutional challenge to them, should overturn this misguided attempt to equalize speech by controlling campaign spending.

Because communicating a message to voters requires money, it is well established that direct restrictions on campaign spending violate the First Amendment. Arizona's Citizens Clean Elections Act therefore seeks to restrict campaign spending indirectly.

The law sets an initial level of public funding for each state election. Participating candidates get a check for that amount; they also receive matching funds if their nonparticipating opponents spend more.

For a candidate who prefers forcibly extracting subsidies from his fellow citizens to seeking their voluntary support, this system offers a pretty good deal. He gets a dollar for each dollar spent by his privately funded opponents or by independent groups that support them.

From the perspective of a privately funded candidate, the system does not look so good, especially if he faces multiple opponents, in which case each dollar he spends to get elected may trigger three or four dollars aimed at defeating him. Worse, money spent by groups he does not control also can trigger more subsidies for his opponents. For their part, independent groups have to think twice before criticizing a publicly funded candidate, because they know that doing so will give him a financial boost.

The upshot is that the Clean Elections Act deters speech by increasing its cost and reducing its effectiveness. Several candidates for the state legislature, joined by the Arizona Free Enterprise Club and the Arizona Taxpayers Action Committee, cite this chilling effect in their challenge to the law.

In January, U.S. District Judge Roslyn Silver agreed that Arizona's system imposes "a substantial burden" on freedom of speech. She noted that it resembles a provision of federal law that the Supreme Court overturned in 2008: the "Millionaire's Amendment," which raised contribution limits for congressional candidates facing wealthy, self-funded opponents. "If the mere potential for your opponent to raise additional funds is a substantial burden," she wrote, "the granting of additional funds to your opponent must also be a burden."

Furthermore, Silver said, this burden is not justified by the one goal the Supreme Court has recognized as a legitimate rationale for campaign finance regulations: preventing corruption or the appearance of corruption. She said the disconnect between means and ends is clear from the fact that Arizona candidates receive matching funds even when they face opponents who finance their own campaigns, who can hardly be accused of corrupting themselves.

Last month a federal appeals court overturned Silver's ruling, dismissing the burden imposed by Arizona's system as "minimal." When the Supreme Court overrode that decision and restored Silver's injunction against the matching funds, the criticism it provoked showed that Arizona's election cleanup goes beyond removing the taint of corruption.

"Before, when there were nasty, misleading attack ads, we would provide matching funds so the record could be corrected," said Todd Lang, executive director of the commission that oversees the "clean elections" system. "Now that won't happen."

While Lang's faith in the honesty of publicly funded candidates is touching, there is no guarantee that they will use their free money to rebut misleading attacks with the facts. They might instead rebut valid criticism with obfuscation, or launch misleading attacks of their own.

Still, Lang's ambition to help the truth emerge through strategically placed subsidies confirms that Arizona is not fighting corruption. It is using corruption as an excuse for regulating political debate.

Jacob Sullum is a senior editor at Reason and a nationally syndicated columnist.

© Copyright 2010 by Creators Syndicate Inc.

NEXT: Spill Speech Only The Latest Instance of Obama's Vision Deficit

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  1. Good morning reason!

    That Red Baron Pan Pizza ad featuring Hillary is still creepy.

  2. I don’t see why this is so difficult for people to comprehend.

    If there was a law that said that every time you make a donation to a Christian church, a “matching funds” donation was made out of tax money to Satanists, or atheists, I think people would realize very quickly what an intolerable burden on your First Amendment rights that was.

    Or if any donation to the United Negro College Fund meant that the taxpayers had to give “matching funds” to the Klan, or if any donation to AIPAC gave “matching funds” to Hamas, etc.

    1. Americans go all fuzzy-brained when it comes to elections. Our deep sense of “fair-play” blinds us and tricks us into betraying what should be inviolable Constitutional principles. Our sports-craziness makes us vulnerable to insipid “level playing field” metaphors. And our shamefully shallow, anti-intellectual, anti-philosophical educational system creates adults who can’t reason, who are ignorant of our own history, who haven’t a clue as to how our nation came into existence and what made it all possible. As a nation we’ve become a ship without a rudder.

      1. Sol, that is so true! Some of the craziest logic-in-knots-on-its-head discussions are those by people trying to justify giving a candidate who cannot raise money our tax money to “make it fair” or restricting a candidate from getting her message out because she raised more money.

        1. And those hand-wringers wouldn’t think twice about destroying a business competitor with lower prices or better service or a superior product. And there’s the fatal disconnect.

          1. Actually, some of them are the same ones who attack Wal*Mart and Home Depot for out competing others.

            1. True enough. The unscrupulous ones, anyway.

            2. Just like you guys attack the Federal Government for out competing others.

              1. HAHAHAHAHAHA!!! Oh, shit. That was rich.

              2. Other…Federal Governments ? Huh ?

      2. To me, the entire issue of campaign finance is a distraction. Who cares who gets money from whom? Shouldn’t we be debating the validity of the ideas being discussed? Shouldn’t the losers have the class to bow out gracefully rather than bitching about how wealthy the other guy’s donors were? I also believe that money tends to follow opinion and not the other way around. People aren’t zombies, and they have the good sense to vote for the candidates that they believe in rather than the candidate who puts out the most adds. Some people are just sore losers who cry that they deserve campaign welfare, because the other guy is better at raising donations.

        On another note, what if we started counting every hollywood movie that lambastes capitalism or free markets as a campaign contribution for the left. The production costs of the movie “Avatar” alone were approximately 230 million dollars. We could also include many of the strictly opinion pieces from Newsweek, The New York Times, The LA Times, etc. Sure, many movies and newspapers don’t contribute directly to a specific campaign, but they spend somewhere in the billions of dollars every year to get their point of view across. But you know what? That’s okay with me, just don’t bitch that big business is behind every election victory. The people in the government would not be there without the support of the voters and special interests pure and simple. Stop being such a sore loser. Try again next election.

  3. Fuck Feyenoord!

  4. Every American is drilled on fairness and (gubmint assisted) equality from pre-school on.

    1. Terrible, isn’t it?

      Those kids need to learn their place…bow down to your corporate masters, life is not fair!

      1. Dude, seriously fuck off. Nobody here is saying that anybody should bow down to any master, corporate or otherwise.

        1. They don’t have to say it when what the espouse leads to those results anyway.

  5. Hey Suki where is everybody? Did we miss the Libertarian Rapture?

    1. Guess they got Suki too, BASTARDS! (shakes fist)

      1. Hungover from the Celtics/Lakers game, possibly. Or Obama’s speech.

        1. The sun also rises…

          1. I have no choice.

  6. Ah, The Libertarian Catch-22 rears it’s ugly head again…today Mr. Sullum complains that the rich should not be prohibited from bribing elected officials, tomorrow he’ll be complaining about how those officials pass laws and policies that benefit the rich.

    1. So making an add on behalf of a particular political party is a “bribe” now? The point is that you couldn’t make the system “fair” (which it never will be) without taking away freedom from a significant portion of the electorate. It might seem satisfying to make it illegal for the rich or corporations to donate to a political campaign, but then you would be denying large swaths of property owners who bare the largest portion of risk from making decisions about their own personal property. You might make the system more “fair” from some egalitarian point of view, but you would create a one sided political process that inherently disrespected private property.

      Plus, you’ll never be able to keep the elite out of politics. Give the power to unions and citizen’s groups and they just become the new elite. If you look at England in the 1970’s, big business and unions just became one entity. The unions who work for coal interests will push people to vote for the interests of the coal company as long as they are getting their cut. Plus, there are a lot more sinister was for special interest to influence government through the bureaucracy than campaign finance reform will ever be able to solve.

      To summarize, campaign finance reform will always fail to achieve its goals, and it will make the system inherently disrespectful towards private property rights.

  7. Thus shall it ever be:

    Money and power will always find each other.

    Gosh, whatever could improve the situation?

    1. Without the power the money will have to find itself in my paycheck instead of in politicians pockets to get me to do what they want.

  8. Not every bad law is unconstitutional. The argument being made is precisely the over-broad, wish-it-into-existence reading of the Constitution for which libertarians usually criticize progressives and conservatives.

    The First Amendment does not ensure your speech will be equally heard, or carry equal weight, nor any other results-based criteria. It forbids Congress (and the states via the 14th) of infringing on the positive act of speech (speech being broadly defined).

    Further, the argument Sullum puts forth implies that every dollar I contribute to, say, Rand Paul, is a dollar spent infringing on the free speech rights of someone contributing to Trey Grayson. It’s an absurd position.

    1. I guess you read a different article than the one above. The argument as laid out in the article is not about speech being:

      “… equally heard, or carry equal weight, nor any other results-based criteria.”

      It argues that by giving matching funds (ie speech) to an opponents you are effectively chilling (ie preventing or at least severely limiting) my speech because I will only be willing to spend (speak) up to whatever arbitrary limit is set by some legislature or bureaucrat.

      As for the Sullum argument meaning that your voluntary spending on a candidate infringes on another’s speech…that is a flawed reading of the argument. Your private spending does not automatically entitle his opponent to more money. Which is the very logic this law is based on…so you are correct, the law is absurd

  9. I’m sure Alvin Greene would approve of this law.

  10. Not every bad law is unconstitutional.

    This one is.

    (1) Your freedom of speech is infringed just as much by forced speech as by prior restraint.

    (2) Your freedom of speech encompasses the expenditure of resources, including money, to spread your message.

    (3) Forcing you to spend money (via taxation) to spread a message is a violation of your freedom of speech.

    1. Just so we’re clear then: you do not support the argument (made by Sullum, et al.) that my freedom of speech to donate to a candidate is infringed when an opposing candidate gets some money, correct?

      (3) Forcing you to spend money (via taxation) to spread a message is a violation of your freedom of speech.

      Just for elections or is that a general prohibition? If the latter, then would it not be correct to read as unconstitutional any speech made by any government official (in his capacity as a government official or with the use of tax-funded resources) since it is a nigh certainty that someone, somewhere disagrees with it? Did the President just violate the Constitution with his recent Oval Office propagandizing?

      The taxation argument is perhaps the most valid one (though I disagree with it), but it won’t be the one used. Too many people rely on taxes to communicate their foul ideas.

      1. Speaking publicly while your salary is paid by tax dollars is not the same as redirecting tax money and using it to compete *against* the privately funded speech of the tax-payers you took it from.

          1. Because the first is an elected representative getting a paycheck and the second is an elected representative still getting the same paycheck while also taking more money from the people he’s supposed to represent and using it cancel out the effects of the money he was nice enough to leave them with. Hardly representative.

    2. Your positions are well, not very freedom oriented. More speech from more people is freedom, not the current system of speech only for the powerful

      To your arguments proper

      #1 You aren’t forced to say anything

      #2 That not true at all. Freedom can include both Positive and Negative Liberty and nothing in the Constitution precludes such things. In fact they are explicitly allowed as “promoting the general welfare”

      #3 No its not. In fact it increase you freedom to speak since you know have resources .If you choose not to use those nothing restrains you from speaking either Choosing to limit yourself is not tyranny.

      1. Is this what you regulars call a comprehension fail ?

  11. The assumption that only private money is clean and the inequality is a good thing is the height of Right-Libertarian absurdity.

    In fact thi legislation is hardly freedom destroying , but properly applied — increases choices

    I’d be sad to see the Supremes overturn it. Yes its a bit end-runish but it does exactly what it says on the tin, clean up elections. IMO Its long past time to take steps to stop the powerful from essentially controlling the electoral system.

  12. I find it amazing that any self-proclaimed Libertarian, steeped in sound economic theory, would equate money with speech. Money is not speech. It is purchasing power, plain and simple.

    Money does not follow “ideas”. That is naive. Money follows itself, and it follows the possibility of making more money. The commodities being purchased by campaign donations, particularly large corporate donors, are influence, power, and protection. Campaigns using that purchasing power to buy media bandwidth (both literal and figurative) which, though vast, is limited by the number of hours in a day times the number of potential ears and eyeballs, are purchasing squatters’ rights to that bandwidth, not only presenting their own messages, but narrowing the pipeline through which other points of view can be transmitted. In short, it is a zero-sum game.

    Large gluts of money FREEZE OUT speech as much as they facilitate speech by sucking up that available bandwidth. People may not be zombies, but if the information and points of view they have access to are limited primarily to those of the biggest bandwidth hogs, the choices they are likely to make are likewise limited. Ultimately, the commodity on order that large donors are attempting to corner the market upon is the election itself.

    I’m not sure where I stand on this AZ law, but as long as it is “one person, one vote,” and not “one dollar, one vote,” reasonable constraints on campaign financing and spending will remain appropriate.

  13. How can I get a piece of this pie? Will they give matching funds to every candidate?

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  15. which limited the actions of Congress and by extension had to be incorporated, the Second Amendment stated that RKBA was not to be infringed, and lacked detail as to by whom, and therefore applied to all government. By its very language it was already applicable to the states!

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