Deconstructing the SCOTUS tax financing case

Yesterday, the U.S. Supreme Court decided to hear arguments in Arizona Free Enterprise v. Bennett. Observers expect the court to hear arguments in March and render a decision by the end of June.

The Institute for Justice, which represents independent political groups in the case, issued a press release. The Goldwater Institute, which represents traditionally funded Arizona candidates, also issued a statement.

The Center for Competitive Politics plans to file a friend-of-the-court brief in this case in advance of oral arguments. CCP filed a brief in June of 2009 at the U.S. District Court level supporting the plaintiffs and a brief this September in support of the group’s cert petition.

CCP’s latest brief focused on the flimsy public policy justifications advanced by supporters of tax financed campaigns. From our release:

CCP’s brief focuses on the public policy justifications for tax financed political campaigns in states that have adopted or experimented with the programs. Reports from government entities and private researchers in Arizona, Maine and New Jersey show no real benefits from granting government subsidies to candidates.

“Neither governmental studies nor the work of independent scholars can confirm that these laws further the state’s interest in reducing corruption or the appearance of corruption,” [CCP Vice President of Policy Allison] Hayward wrote in the brief. “Nor is there any evidence that these programs further goals that might indirectly improve the quality of governance, such as competition or diversity.”

The authoritative SCOTUSblog offered an analysis of the Supreme Court’s action yesterday.

The Supreme Court scribes at the New York Times, Los Angeles Times, Associated Press, Reuters, Bloomberg News, Wall Street Journal, Washington Post, Washington Times, USA Today, CNN and the Christian Science Monitor all weighed in.

Trade publications such as the National Law Journal, ABA Journal and BNA’s Money & Politics Report ($) featured analysis.

Reason‘s Jacob Sullum noted the development (along with the great IJ video) and the Cato Institute’s Ilya Shapiro offered a good recap of Arizona’s program:

Arizona’s “Clean Elections” Act … provides matching funds to publicly funded candidates if their privately funded opponent spends above certain limits. In other words, by ensuring that his speech will not go “unmatched” by his opponent, the privately funded candidate is penalized for working too hard and speaking too much. The law violates established Supreme Court precedents that have consistently held that forcing a speaker to “disseminate hostile views” as a consequence of speaking abridges the freedom of speech. Although the Ninth Circuit upheld the Arizona law, the Second Circuit recently struck down a similar Connecticut law, thus creating a circuit split that undoubtedly encouraged the Court to take the case…

The end result, as extensive evidence shows, is that numerous speakers—from the candidate to the independent groups—will be reluctant to spend money to speak (which is, of course, required for nearly all effective campaign speech) because their opponents are guaranteed the funds needed to reply. In elections, where the freedom of speech “has its fullest and most urgent application,” such laws simply cannot fly.

Neither the Brennan Center, which represents the now-defunct [Arizona] Clean Elections Institute, Inc., (which advocated for the ballot initiative and has intervened in the case), nor the Arizona Citizens Clean Elections Commission, which administers the program, seem to have posted public statements on their websites. Daily Kos [election lawyer Adam Bonin] and the Huffington Post filled the void.

Public Campaign blasted around a shrill statement slamming Arizona state Sen.-elect John McComish and Chief Justice John Roberts. The more serious organizations heading up the regulation lobby, Campaign Legal Center and Democracy21, sent out a statement arguing that the case has limited import for other tax financing programs, and it’s not until the seventh and final paragraph of the statement that the groups got around to discussing the merits of the case.

In a preview for the Loyola Law School blog, Prof. Rick Hasen begged to differ: “This development is significant because the Court is likely to take away one of the only tools available to drafters of public financing measures to make such financing attractive to candidates,” he wrote. “Public financing will still exist in 2011 and beyond, but expect fewer participants and less of an impact of such systems going forward.”

Hasen, despite his consistent cheerleading for campaign finance regulations, typically speaks inconvenient truths to more zealous regulation proponents and lawmakers (noting recently, for example, that congressional leaders flubbed the DISCLOSE Act by insisting on a host of political speech prohibitions in a bill they insisted was “just disclosure.”).

The Arizona Republic and Capitol Media Services provided a boots-on-the-ground press perspective. Thomas Mitchell of the Las Vegas Review-Journal opined with another Western view.

The Arizona Daily Star and the Daily Courier also editorialized on the recent revelations about questionable ‘clean elections’ spending in Arizona: “Some of the 107 candidates who received public money to run for state Legislature this year bought computers, cameras and printers that are theirs to keep and paid relatives as campaign workers and consultants, a Cronkite News review found. Reports accounting for the $3.2 million legislative candidates received from the Arizona Citizens Clean Elections Commission also included $60 for National Rifle Association dues, $650 to have mariachis perform and $229.87 for a ‘post-debate discussion’ with campaign staffers at T.G.I. Friday’s.”

Stay tuned to CCP’s blog in the coming weeks and months for more perspectives on this important case.

The Center for Competitive Politics is now the Institute for Free Speech.