How public campaign financing can limit free speech

By Bill Maurer

How would you feel if every time you expressed a political opinion, the government paid three people who disagreed with you to counter what you had to say?

And, likewise, when folks who agreed with you took out ads to advance your views, you found that their speech resulted in even more government subsidies to your opponents?

You'd no doubt feel rightfully frustrated and might ask, "What gives the government authority to put a thumb on one side of the political scale? Why should I bother talking when it results in a shower of government money for people with whom I disagree?"

That is the central question in a case appealed this week to the U.S. Supreme Court. The Institute for Justice is asking the high court to review and reverse a decision of the Ninth U.S. Circuit Court of Appeals, which upheld the "matching funds" provision of Arizona's "Clean Elections" law. A federal district court in Arizona had struck down the law in January as a violation of the First Amendment, but the Ninth Circuit reversed that decision this past May. In an unusual move, the U.S. Supreme Court has quickly intervened in the case to prohibit Arizona from giving away matching funds to politicians during the 2010 elections. (A detailed backgrounder explaining our organization's view of this case is available here.)

Arizona's "Clean Elections" Act gives public money to politicians to run for office, but it does not stop there. It attempts to "level the playing field" among candidates who take taxpayer money and candidates who choose to forgo taxpayer dollars and raise their own funds for their campaigns, as well as the independent groups that support them. For every dollar a privately financed candidate or a group supporting that candidate spends above a certain amount, the government hands taxpayer dollars over to his opponent to allow him to "match" the spending -- and thus the speech -- of the privately funded candidate or groups supporting him. And the more these candidates or groups speak, the more their political and ideological opponents benefit.

Simply put, the Supreme Court must strike down this law because it allows the government to favor politicians who receive government subsidies. The Ninth Circuit badly erred in upholding this unconstitutional system. We are asking the Supreme Court to once and for all stop the harm this system does to the free-speech rights of privately-financed candidates and independent groups that support them.

Matching funds violate the First Amendment rights of candidates, citizens and independent groups. In the context of a competitive election -- where there is one winner and one loser -- the government may not give a fundraising advantage to one candidate based on the exercise of free speech by his or her opponents. The point of the Clean Elections Act is to limit spending on speech -- and thus limit political speech -- and that is exactly what it does.

The Ninth Circuit's decision was so out of touch with both reality and precedent that two federal appellate courts -- the Second Circuit and the Eleventh Circuit -- have refused to follow it. The courts in those cases struck down matching funds systems in Connecticut and Florida.

(Minnesota's matching funds law was struck down by the Eighth Circuit in 1994 in a case the Ninth Circuit explicitly refused to follow. Nonetheless, Minnesota's public financing system has been able to function with nearly 100 percent participation and without matching funds.)

Whether these kinds of matching funds systems are constitutional is a question of national importance. Besides Arizona, Maine also provides public financing and matching funds for all state offices. Eight other states provide public financing and matching funds for some state offices. Many more states have considered creating such a system.

Moreover, the proliferation of these systems is a top priority for well-funded, politically influential special interest groups that want more government involvement in elections. Such systems, which seek to replace America's traditional system of private support for politicians with a new system that is government-directed and -funded, are becoming more commonplace, and proponents seek to make it the norm in U.S. elections.

And, as political science professor David Primo indicated in a summary of recent research on the topic, public funding programs deliver few, if any, of the benefits promised by their supporters, while the cost of such programs -- not only in terms of their negative effect on the timing and nature of political speech in states with such programs, but also in terms of wasted public resources -- is demonstrable. In other words, public funding is a program that promises much, delivers little, and raises real constitutional and policy problems. (Primo's research paper is available here.)

Government does have a limited role to play in elections to ensure open access to the polls and the protection of free speech, but what government can't do is create a punitive system of public financing designed to favor candidates who take government subsidies.

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Bill Maurer is the Institute for Justice's lead attorney in Arizona Freedom Club PAC v. Bennett, which was appealed to the U.S. Supreme Court.

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