There are probably only about 10 guys in America who are cheerfully unconcerned about the influence of multimillionaires on elections. One of them is Charles Koch. David Koch is another, as is Karl Rove. Gov. Scott Walker of Wisconsin and the guy with the top hat on the board of the Monopoly game are two more. Luckily for them, the other five guys currently sit on the U.S. Supreme Court. And judging from this morning's argument in McComish v. Bennett, there is no principle those five justices will fight harder to preserve than the right of the impossibly wealthy to purchase as much speech as they want and need to win a political campaign.
The free speech issue in McComish is a swirly one, predicated on the novel constitutional theory that less speech makes us all freer (laid out here in Slate by Richard Hasen). The constitutional challenge is to Arizona's system of voluntary public financing, which allows candidates to opt in to a system thatentitles them to matching funds when their privately financed opponents outspend them by more than a certain amount. The matching funds are capped at three times the original grant. The law, called the Citizens Clean Elections Act, was passed by voter initiative in 1998 in the wake of a raft of state election scandals including AzScam, in which state legislators were caught taking bribes to support gambling legislation. Those kooky Arizona voters—apparently they still don't understand that the right to buy and sell elections represents the bold beating heart of American liberty.
The plaintiffs' objection to the Arizona public-financing regime is not that privately financed candidates can't speak. It's that when they spend money to speak, they trigger contributions to their opponents. This has a chilling effect on their speech because, they say, each time they speak, they are financing their own demise. In court this morning, the phrase "leveling the playing field" is uttered with the kind of contempt one usually sees reserved for serial rapists and NPR.
William Maurer represents some of the law's challengers, including Rep. John McComish, currently the Republican majority leader of the Arizona House. Maurer explains that the case is about "whether the government may insert itself into elections and manipulate campaign spending to favor its preferred candidates." The same five justices who offered up last year's hit country-and-Western single, "Citizens United Is People Too," will thus fall all over themselves today to paint the Arizona campaign-finance system as a vicious attempt by government to muffle the speech of America's defenseless bajillionaires. They are so passionate about this injustice that they interrupt Maurer—who is on their side, mind you—to make his argument for him.
Justice Antonin Scalia: "Mr. Maurer, suppose the government imposes a fine of $500 for all political speech, and people nonetheless continue to engage in political speech and pay the $500. Would that make the $500 penalty for political speech constitutional?"
Justice Samuel Alito: "Suppose the court after this argument sent you a letter saying if you would like to file an additional brief, you have the opportunity to do so, and we're not going to allow your opponent to file a brief. Would you take advantage of that opportunity?"
Justice Anthony Kennedy: "Do you think it would be a fair characterization of this law to say that its purpose and its effect are to produce less speech in political campaigns?"
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