Steve Simpson

Today, the Supreme Court will hear oral argument in Arizona Free Enterprise PAC v. Bennett, the first campaign finance case since the Court decided Citizens United last January. While the case will not affect as many laws as Citizens United, it promises to be just as controversial, for it involves the constitutionality of what “good government” types have long seen as a sort of campaign finance holy grail—government financing of political campaigns.

Under Arizona’s Citizens Clean Elections Act, candidates for state office can opt to have their campaigns funded by the state, instead of raising funds from private donors. The catch—and there’s always a catch when the government is handing out “free” things—is that they must reject private funds and spend only the limited funds provided by the state. Proponents of government funding have long viewed the programs as a way to limit campaign spending and “level the playing field” among candidates they believed could not win without government subsidies, and the Act’s proponents were no different.

The problem, however, was that too many candidates might not make the “right” choice. The Act couldn’t force candidates to choose state funding and its attendant cap on spending because the Supreme Court has long rejected spending limits in campaigns. So proponents did the next best thing—they included a “matching funds” provision that stacked the deck against anyone who might run against a state-funded candidate.

Under the matching funds provision, the state gives additional grants to state-funded candidates when their privately-funded opponents outspend them. Even the spending of independent groups who support privately-funded candidates gets “matched” under the provision, and privately-funded candidates who run against several state-funded opponents face a multiplier effect, as their expenditures are “matched” with grants to every opponent. This would be like the government handing money to every major news network every time Fox News speaks too much. The clear message: Accept state-funds and limit your spending, or the government will shower your opponent with money she will use to defeat you.

The problem for the state is that the Supreme Court has never viewed elections as some sort of board game in which the government’s job is to make all sides equal. The Court reiterated this point just three years ago in Davis v. FEC, when it rejected the so-called “millionaires’ amendment,” under which contribution limits were lifted for candidates who ran against wealthy opponents. It was a clear burden on speech, the Court held, to reward one candidate with fundraising benefits when his opponent spends what the government thinks is too much money on speech. It was also “dangerous business” for the government to act as a sort of handicapper-in-chief to ensure that elections are more competitive, fair, or equal—whatever those terms may mean.

Supporters of state funding counter that the true purpose of the programs is to eliminate corruption. But if this is true, it seems to have escaped the notice of the Arizona Clean Elections Commission, which said in a court document in 2000 that “It can not be disputed that the purpose of the Citizens Clean Elections Act is to equalize the playing field and give participating candidates equal opportunity to get their message out.” Another document created by the proponents of the Act argued that under the matching funds, “it can be argued that millions of dollars in spending never takes place.”

For more than 30 years, self-styled “reformers” have been trying to use campaign finance laws to manipulate elections according to their egalitarian dreams. This time is no different.

The First Amendment protects freedom of speech, not equality of speech. Freedom means that candidates and supporters—and not the government—decide how to run campaigns and voters decide who wins. As the Supreme Court said in Citizens United, “The First Amendment confirms the freedom to think for ourselves.”


Steve Simpson

Steve Simpson is a senior attorney at the Institute for Justice. He litigates primarily free speech cases in the state and federal courts across the country.