In the Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett dissent, the Justice Kagan writes:
“Indeed, what petitioners demand is essentially a right to quash others’ speech through the prohibition of a (universally available) subsidy program. Petitioners are able to convey their ideas without public financing-and they would prefer the field to themselves, so that they can speak free from response. To attain that goal, they ask this Court to prevent Arizona from funding electoral speech-even though that assistance is offered to every state candidate, on the same (entirely unobjectionable) basis. And this Court gladly obliges. If an ordinary citizen, without the hindrance of a law degree, thought this result an upending of First Amendment values, he would be correct.”
As an ordinary citizen without the hindrance of a law degree, allow me to explain the problem with her justification in plain English:
Under the previous system, if I decide to spend money on behalf of my message, then my opponents are rewarded with money taxed from the people to spread a message counter to my own. While Kagan’s vision of unfettered speech includes encouraging speech through government programs, this view is narrow in that it fails to take into account the implications of the triggering mechanism on the debate as a whole. The concept that people avoid behaviors that rewards their opponents hardly requires a JD to understand.
