A Win for Free Speech


This Monday, the Supreme Court struck down Arizona’s Citizens Clean Elections Act, ruling that the “matching funds” provision violated the First Amendment’s guarantee of free speech. Although supporters of public financing of elections have already decried the majority’s opinion as “a setback for American democracy,” the decision is a long overdue triumph of constitutional liberty over the empty promise of “fairness” in elections.

Arizona's Clean Elections Act, passed by referendum in 1998, created a public financing scheme for state elections wherein publicly funded candidates would receive matching funds when any privately funded candidate spent above an established limit. Matching funds would also be distributed directly to every publicly funded candidate any time an independent speaker (that is, someone unaffiliated with any candidate’s campaign) spent money in support of a privately funded candidate’s campaign.

For obvious reasons, privately funded candidates and their supporters were hesitant to spend above the limit that triggered matching funds. Research demonstrated that the threat of matching funds had a substantial impact on the timing of fundraising and expenditures by privately funded candidates. Because Arizona’s public campaign financing scheme manipulated the speech of some political voices, the Supreme Court ruled that it constituted an unacceptable burden on the First Amendment, which guarantees “no law … abridging the freedom of speech.”

Proponents of the Clean Elections Act, and of public financing of elections in general, argue that the burden they place on speech is necessary to create an equal environment, rather than having “wealthy” (meaning well-funded) candidates dominate the election. Supreme Court Chief Justice John Roberts provided an eloquent response in his majority opinion:

“‘Leveling the playing field’ can sound like a good thing. But in a democracy, campaigning for office is not a game. It is a critically important form of speech. The First Amendment embodies our choice as a Nation that, when it comes to such speech, the guiding principle is freedom—the ‘unfettered interchange of ideas’ — not whatever the State may view as fair.”

Critics of the court’s opinion should ask themselves: Do they want a free marketplace of ideas, or do they want a government agency to play referee in deciding whose messages the public ought to hear?

This decision leaves intact other public financing schemes that do not have matching funds provisions, like the one President Barack Obama opted out of during his 2008 campaign. Though perhaps constitutional, the nation may want to reassess the wisdom of public financing. No matter what happens to campaign finance law after this week, the court has made it clear in this term that it will not tolerate laws that “fix” a supposedly broken electoral system by infringing on the right of all Americans to communicate freely about politics.

Photo Credit: The U.S. National Archives