How taxpayer-financed elections violate free speech

Bill Maurer Contributor
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Ronald Reagan quipped that the nine most terrifying words in the English language were, “I’m from the government and I’m here to help.”  And so it goes with modern government-directed campaign finance programs — schemes designed to harm traditionally-funded candidates (those who raise money by persuading individuals to make voluntary donations) and make it easier for government-funded candidates to promote their message.

The government’s effort to “level the playing field” by providing matching funds to government-funded political candidates is a not-so-subtle attempt to silence those candidates’ ideological opponents.  These additional subsidies to taxpayer-funded candidates are only triggered when private groups and opposing candidates who do not take government money engage in political activity above a certain government-set level.

The constitutionality of these kinds of “matching funds” systems is at the heart of a case appealed this week to the U.S. Supreme Court.  The Institute for Justice is asking the high court to review and reverse a decision of the Ninth U.S. Circuit Court of Appeals in Arizona Freedom Club PAC v. Bennett, which upheld Arizona’s unconstitutional matching funds provision of the state’s “Clean Elections” law.  A federal district court in Arizona had struck down the law in January as a violation of the First Amendment, but the Ninth Circuit reversed that decision this past May.  In an unusual move, the U.S. Supreme Court intervened in June to prohibit Arizona from giving away matching funds to politicians during the 2010 elections.

Arizona’s “Clean Elections” Act gives public money to politicians to run for office.  To ensure that publicly-financed candidates will always have the same, if not more, resources as candidates who don’t take government funds, the Act “levels the playing field” by paying out more to participating candidates every time their privately-funded candidates, or even independent groups, engage in political activity beyond a certain amount.  In short, the more a privately-funded candidate or others who support him speak, the more their political and ideological opponents benefit.

By creating such an overwhelming disincentive for people to unreservedly engage in political activity, matching funds violate the First Amendment rights of candidates, citizens and independent groups.  The Supreme Court has held that the government may not restrict spending for campaign speech and that it may not give a fundraising advantage to one candidate at the expense of her opponents’ right to engage in unfettered political speech.  Yet the whole point of the Clean Elections Act is to limit spending on speech in general and to make it harder for privately-funded candidates to compete against publicly-funded candidates.

The Ninth Circuit badly erred in upholding this unconstitutional system.  Its decision was so out of touch with both legal precedents and common sense that two other federal appellate courts — the Second Circuit and the Eleventh Circuit — have refused to follow it since it was issued in May.  Those courts found the matching funds systems in Connecticut and Florida to be severe burdens on the First Amendment.  That’s why the Institute for Justice is asking the U.S. Supreme Court to reverse the Ninth Circuit and to create a uniform rule across the country that recognizes the harm these systems do to the free speech rights of privately-financed candidates and the independent groups that support them.

Public funding systems seek to replace America’s traditional system of private support for politicians with a new system that is government directed and funded.  But when government controls the purse strings, government will ultimately be in a position of controlling who speaks and what they may say.  Moreover, as political science professor David Primo has found, public funding programs deliver few, if any, of the benefits promised by their promoters, and they impose real costs.  The programs waste money at a time when both taxpayers and most governments have little to spare, and they distort the timing, amount and nature of political speech in campaigns.

Unfortunately, several states are following Arizona’s dubious example.  Maine has public financing and matching funds for all state offices, eight other states have it for some, and many more states are considering such systems.  What legislators need to understand is that such systems promise much, but deliver little — except, of course, suppressing speech about who should govern us. 

Bill Maurer is the Institute for Justice’s lead attorney in Arizona Freedom Club PAC v. Bennett, which was appealed to the U.S. Supreme Court.