June 28, 2011

Free Speech v. Meaningful Responses

The other case that the Court handed down yesterday is much more confusing, at least to me. Maybe it's because I'm not a fan of the kind of law that the Court struck down, but I'm also not at all convinced that the logic by which the Court got there makes any sense. Believe it or not, getting the right result for the wrong reasons isn’t necessarily a good thing.

At issue in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, was an Arizona campaign finance law designed to help level the playing field when it came to elections. It worked like this: Assume you have two candidates, A and B, running for state office. A agrees to accept public funding for his campaign, with all the limitations that implies; B does not. A gets an initial lump sum payment for the campaign. However, once A burns through that cash, he is entitled to new funds matching those spent by B and his independent supporters (over and above the amount equal to the lump sum payment). In other words, the publicly financed candidate gets an additional subsidy if his opponent spends a lot of privately raised or independently spent money.

Several plaintiffs, including privately-funded candidates and some independent groups, sued, arguing that the law "penalized their speech and burdened their ability to fully exercise their First Amendment rights" As Chief Justice Roberts more fully sets out in the Court’s opinion striking down the law (citations omitted):
Although the speech of the candidates and independent expenditure groups that brought this suit is not directly capped by Arizona’s matching funds provision, those parties contend that their political speech is substantially burdened by the state law in the same way that speech was burdened by the law we recently found invalid in Davis v. Federal Election Comm'n. In Davis, we considered a First Amendment challenge to the so-called “Millionaire’s Amendment” of the Bipartisan Campaign Reform Act of 2002. Under that Amendment, if a candidate for the United States House of Representatives spent more than $350,000 of his personal funds, 'a new, asymmetrical regulatory scheme [came] into play.' The opponent of the candidate who exceeded that limit was permitted to collect individual contributions up to$6,900 per contributor – three times the normal contribution limit of $2,300. The candidate who spent more than the personal funds limit remained subject to the original contribution cap. Davis argued that this scheme 'burden[ed] his exercise of his First Amendment right to make unlimited expenditures of his personal funds because' doing so had 'the effect of enabling his opponent to raise more money and to use that money to finance speech that counteract[ed] and thus diminishe[d]the effectiveness of Davis’ own speech.'

In addressing the constitutionality of the Millionaire’s Amendment, we acknowledged that the provision did not impose an outright cap on a candidate’s personal expenditures. We nonetheless concluded that the Amendment was unconstitutional because it forced a candidate 'to choose between the First Amendment right to engage in unfettered political speech and subjection to discriminatory fundraising limitations.'
In other words, a regulation that doesn’t actually restrict speech, but perhaps lessens its impact or causes a candidate to ponder whether the speech would be strategically valuable, violates the First Amendment. Applying Davis, the Court concluded that the Arizona regulation met the same fate as the Millionaire's amendment.

To be honest, I don’t see any "punishment" going on. I’m familiar with the concept of laws that "chill" speech and therefore violate the First Amendment, but I don’t see that happening here. The only thing that would possibly chill the privately-financed B from speaking is that her opponent might get to respond. Does that really violate the First Amendment? I don’t find the Court’s reliance on Tornillo, which struck down a law requiring newspapers to allow a reply from a candidate after assailing his character, all that persuasive. That case dealt with compelled speech by private actors, where this one is all about public funding. I just don’t see the parallel.

The Court’s position seems to come down to the First Amendment not only protecting B's right to speak, but to be heard without rebuttal. But that can’t be right. It’s axiomatic that the First Amendment protects your right to speak, not to be heard or listened to. I can write all I want, but I can’t sue the New York Times or Asimov’s or HaprerCollins and force them to print it. Likewise, no political candidate can claim a right to unfettered distribution of her message, right?

My thoughts are more in line with Justice Kagan’s dissent on this one (citations omitted):
This suit, in fact, may merit less attention than any challenge to a speech subsidy ever seen in this Court. In the usual First Amendment subsidy case, a person com-plains that the government declined to finance his speech, while bankrolling someone else's; we must then decide whether the government differentiated between these speakers on a prohibited basis – because it preferred one speaker’s ideas to another's. But the candidates bringing this challenge do not make that claim – because they were never denied a subsidy. Arizona, remember, offers to support any person running for state office. Petitioners here refused that assistance. So they are making a novel argument: that Arizona violated their First Amendment rights by disbursing funds to other speakers even though they could have received (but chose to spurn) the same financial assistance. Some people might call that chutzpah.

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.
In other words, the Court protects not only B's right to speak, but his de facto right to do so free from meaningful response on the part of his underfunded opponent. I'm not sure that makes sense.

Having said all that, I’m no fan of public financing of elections. It's not right to force me, as a taxpayer, to support political speech, even if its speech I might agree with. Doesn’t matter if it's Michelle Bachmann or Barack Obama, their financial support should come from those who actually support those candidates. But that doesn't mean the end result here justifies the pretzel logic in which the Court appears to have tied itself. Public financing may not be the best policy, but that doesn’t make it unconstitutional, particularly based on the rationale set forth in this case.

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