The U.S. Supreme Court delivered a blow, but not a fatal one, to public campaign financing, with a 5-4 decision striking down a central provision of an Arizona law.
The Arizona law offers public funds to state legislative and executive-branch candidates who abide by tight contribution and spending limits. Another provision gives additional dollars when publicly funded candidates face big-spending opponents or outside money groups — and that's what was rejected by Chief Justice John Roberts, writing for the majority.
Roberts said this type of public financing — called "fair fight" money, or funds "triggered" by other spending, or funds meant to "level the playing field" — unfairly burdens the free-speech rights of the other candidates or groups, because it balances out their political spending.
Three years ago, the Supreme Court ruled in another case that the government can justify campaign finance laws intended to fight corruption, but not those to level the playing field.
Reaction To Decision
Lawyers for the plaintiffs were jubilant.
"From our perspective, it is great that the court finally ended Arizona's Frankenstein's experiment with government manipulated elections," said Nick Dranias of the Goldwater Institute, representing John McComish and two other former legislative candidates.
Dranias said the Goldwater Institute aimed this lawsuit at the leveling funds, but its larger target is Arizona's overall public-financing system.
"Future lawsuits will undoubtedly determine whether the entire system can withstand the striking down of the matching funds component," he said.
Still, Roberts stopped short of throwing out the entire law, writing, "That is not our business." Some advocates of tighter campaign finance laws took comfort in that.
Arizona Assistant Attorney General James Barton said the law has been challenged repeatedly, and this is the first major loss. But he added, "Justice Roberts's opinion took the time to say that this isn't an attack on public financing in general. It's only related to these triggered matching funds."
After Roberts delivered the ruling Monday, Justice Elena Kagan, an Obama appointee, read a fierce dissent.
Writing for the three more liberal members of the court, she said anyone "familiar with our country's core values — our devotion to democratic self-governance," and to a robust political debate, "might expect this court to celebrate, or at least not interfere with" a public financing system.
Kagan's dissent could open a new chapter in the campaign finance debate, and proponents of campaign finance regulation were cheered by it.
"To the majority, it looks like the mere mention of a leveling interest is enough to doom the law," said Rick Hasen, a law professor at the University of California, Irvine. "Justice Kagan in her dissent says, 'So what if some of this is motivated to level the playing field? It was also motivated on anti-corruption grounds, and it is justified on anti-corruption grounds.'"
Still, Kagan is in a four-justice minority on the Roberts court. Monica Youn, who was an attorney for the Brennan Center for Justice on an amicus brief in the case, said, "This is the fifth campaign finance case that the Roberts court has heard, and the fifth that it has struck down, in a mere five years."
Future Lawsuits Possible
One of those other cases, of course, is the controversial Citizens United ruling of 2010, which was cited 10 times by Roberts in Monday's decision. The Citizens United decision lets corporations and unions spend unlimited amounts to support or attack candidates.
The Goldwater Institute's Dranias pointed to a footnote in Monday's decision as a possible seed for future lawsuits.
The footnote seems to cast doubt on the anti-corruption basis for public financing laws. Roberts wrote, "Public financing does nothing to prevent politicians from accepting bribes in exchange for their votes."
Dranias said, "Now that, to me, is a substantial finding that cuts out one of the three legs that has traditionally upheld public financing, that it's a means of preventing bribery to politicians."
So the legal foundations of campaign finance laws will continue to shift.