The Supreme Court handed down Arizona Free Enterprise Club’s Freedom Club Pac v. Bennett today. The case strikes the Arizona Citizens Clean Elections Act, an Arizona campaign finance reform law. An unexceptionable provision of the law provided that all candidates meeting eligibility could opt to take public financing in lieu of raising private campaign money. The law also had a matching-funds provision under which if a privately funded competitor raised over-and-above the initial publicly funded grant, his publicly funded counterparts would receive equivalent subsidies, up to $150,000.
The Court found the matching funds provision objectionable on the logic of Davis v. Federal Election Commission. In Davis, the Court struck a provision of the Bipartisan Campaign Reform Act of 2002 – the so-called “Millionaire’s Amendment” – that increased the per capita campaign contribution limit, from $2,300 to $6,900, for any candidate whose competitor spent more than $350,000 of his own money. As read by the Bennett majority, the Davis Court held that the Millionaire’s Amendment amounted to a constitutionally impermissible “substantial burden” on Free Speech because it provided that certain kinds of speech (namely, spending more than $350,000) triggered “a new, assymetrical regulatory scheme.” The Millionaire’s Amendment thus “forced a candidate to choose between the First Amendment right to engage in unfettered political speech and subjection to discriminatory fundraising limitations.”
For the Bennett majority, the Millionaire’s Amendment and the Arizona law’s matching-funds provision both impose substantial burdens on Free Speech by making it so that if privately funded candidates speak the government will give their opponents special advantages. In the Davis case these advantages came in the form of a relaxation of legal restrictions on fundraising; in Bennett they come in the form of subsidies. Correlatively, in the Davis case the burdens came in the form of uniquely stringent legal restrictions on fundraising (everybody gets to raise money except the candidate); in the Bennett case they come in the form of a unique denial of subsidies (everybody gets money except the candidate). This trigger-able denial of subsidies both imposes a significant cost on private speech and, at the margins, deters it altogether. It thus offends against the doctrine that the government may not substantially burden private speech, and also the core underlying purpose of the First Amendment, viz. to encourage public political speech.
The dissent focuses mainly on the majority’s conception of a burden. It makes two moves. First, it observes that if the majority regards any subsidy as a burden then it runs up against Buckley v. Valeo, which upheld opt-in public funding for federal candidates. Second, it argues that there is no support for distinguishing subsidies that are triggered by a competitor’s conduct from those to which candidates are entitled ab initio; “The constitutional infirmity in Davis was not the trigger mechanism, but rather what lay on the other side of it – a discriminatory speech restriction . . . The burden on speech in Davis – the penalty that campaign spending triggered – was the discriminatory contribution restriction, which Congress could not have otherwise imposed.” Thus, if the majority says all subsidies are unconstitutional burdens then it contradicts Buckley; if it says that only triggered subsidies are unconstitutional burdens then it rests its holding on an ad hoc misreading of Davis. Either way it misses the mark.
Formally, I think the dissent gets the better of the argument. The Court has recognized a distinction between restrictions and subsidies. A restriction is a burden (per Davis), a denial of subsidies is not (per Buckley). Insofar as the majority opinion implies that it is burdensome to deny subsidies, it offends against Buckley.
That said, the restriction/subsidy distinction is formalistic in the pejorative sense. Obviously, a denial of subsidy can be as burdensome as a fundraising restriction. Both can affect a candidate’s political fortunes; both can affect the visibility of a candidate (or the effectiveness of his speech); and both can affect the competitiveness of a race. Indeed, the only difference-in-kind between the two mechanisms is that, whereas restrictions can have an impact both on what a candidate can say and on who a candidate can reach, subsidies can only affect the latter. But, because the restrictions and subsidies at issue in Buckley, Davis and Bennett all address themselves only to who a candidate can reach, they all have the same potentialities.
And, by the way, an amusing zinger from Justice Kagan: “If an ordinary citizen, without the hindrance of a law degree, thought this result an upending of First Amendment values, he would be correct.”