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As George Will notes in The Washington Post, the U.S. Supreme Court’s decision on Arizona’s “Clean Elections Act,” cleaned up some wrong-headed notions about what the First Amendment means.
Given the clarity and frequency with which the court has stressed the unconstitutionality of laws empowering government to equalize candidates’ speech by equalizing their resources, Monday’s ruling was predictable, but gratifying. Also predictable, but depressing, were four justices (Elena Kagan, Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor) finding no constitutional flaw in a law that did this:
It made public funding available for all campaigns for state offices — but did so in a way flagrantly punitive to persons relying on voluntary private contributions. Recipients of tax dollars were limited to spending such dollars — but they got extra infusions of them to match spending by candidates relying on private contributions, if such spending exceeded the amount Arizona’s government deemed proper.
So, these matching funds were a powerful incentive for privately funded candidates not to speak — not to solicit funds to disseminate their advocacy.
As usual — and especially on this topic, Will is must-reading. But even better is this excerpt from the opinion of Chief Justice John Roberts:
Arizona’s program gives money to a candidate in direct response to the campaign speech of an opposing candidate or an independent group. It does this when the opposing candidate has chosen not to accept public financing, and has engaged in political speech above a level set by the State. The professed purpose of the state law is to cause a sufficient number of candidates to sign up for public financing, which subjects them to the various restrictions on speech that go along with that program. This goes too far; Arizona’s matching funds provision substantially burdens the speech of privately financed candidates and independent expenditure groups without serving a compelling state interest. . . .
“Leveling the playing field” can sound like a good thing. But in a democracy, campaigning for office is not a game. It is a critically important form of speech. The First Amendment embodies our choice as a Nation that, when it comes to such speech, the guiding principle is freedom—the “unfettered interchange of ideas”—not whatever the State may view as fair.
Like Will, I am a bit depressed that such a matter is even in dispute — and that the vote was so damn close. For most of my lifetime (I’m 40), the judiciary has greatly expanded the kind of speech many Americans find objectionable — burning the flag, pornography, etc. Whatever a fellow American wants to say, short of “shouting fire in a crowded theater,” is protected by the constitution.
But the framers of the constitution designed the First Amendment chiefly to protect the right of the people to talk chiefly about politics. And advocating for your election to office is the most basic form of political speech there is. Yet elected officials keep passing laws to protect their incumbency by restricting the right of ordinary citizens and groups from criticizing them.
Again, that this vote was 5-4 is a travesty. If speech offensive to Christian conservatives is permissible, so must be speech that offends politicians.