I’m a longtime donor to the Institute for Justice, the nation’s premiere libertarian civil liberties organization. They’ve taken cases to the Supreme Court a number of times, and on every previous occasion, I’ve been rooting for their success. But on Monday, when the Supreme Court sided with IJ (and my Cato colleagues) in Arizona Free Enterprise v. Bennett, I found myself disagreeing with the majority’s arguments.
Let’s start by reviewing the broader campaign finance debate, and especially the arguments in Citizens United. Advocates of regulation argued that “independent expenditures”—that is spending on political speech by people unconnected to any campaign—were a grave threat to the integrity of the democratic process. They warned that a wealthy interest group could walk into the offices of a member of Congress and threaten that if the member didn’t vote the way the group wanted, the group would pour millions of dollars into negative ads in the member’s district. Faced with a threat to his political survival, the member will be forced to do what the interest group wants.
First Amendment zealots like me had two responses. First, running ads praising or criticizing a candidate in the weeks before an election is precisely the kind of “core” political speech the First Amendment is supposed to protect. Therefore, we’d better have an extremely solid reason for restricting such speech.
Second: if it were really true that elections were decided based on which candidate had the most spent on his behalf, this would be a pretty strong argument for regulating independent expenditures. But fortunately, voters are not mindless automatons. They evaluate the messages being presented to them and compare them with elected officials’ records in office. An incumbent with a good record will find his ads reach a receptive audience. Conversely, an interest group whose agenda is broadly unpopular with voters is going to have a harder time using ads to reduce the candidate’s poll numbers.
Relatedly, as Meg Whitman recently learned, advertising dollars are subject to diminishing returns. If the average voter sees candidate A’s ad 10 times and candidate B’ ad only once, that’s likely to give candidate A a sizable advantage. But if the average voter sees candidate A’s ad 1000 times and candidate B’s ad only 100 times, the gap is unlikely to matter. Indeed, some voters might get so tired of seeing candidate A’s ads that they vote for candidate B out of spite.
Put these arguments together, and we see that the threat from our hypothetical interest group isn’t as dire as the advocates of regulation think. If an incumbent has a good record and enough funding to explain that record to the voters, he’s likely to get re-elected regardless of how much is spent against him. Conversely, if an incumbent has a bad record and his challenger has enough money to inform voters about why it’s bad, the incumbent is likely to lose no matter how many millions in independent expenditures are made in his defense.
OK, with that background, let’s think about the Arizona Free Enterprise v. Bennett. This case focused on Arizona’s “clean elections” system of public financing. Under the Arizona system, a candidate has a choice between accepting public funds or raising funds privately. If a candidate opts to raise money privately and spends more than the default public subsidy, then all publicly-financed candidates are automatically given matching amounts to spend on their campaigns. Public candidates are also given funds to match any money spent by independent groups in support of private candidates.
In an opinion by Chief Justice Roberts, the Supreme Court ruled that when the state matches a private candidate’s spending, the state is effectively “punishing” the candidate for exercising his first Amendment rights. This isn’t a crazy argument. Obviously, a candidate isn’t going to want his opponent to get a larger public subsidy, and so at the margin it does provide some disincentive to campaign spending.
But there’s a few things to note about this. First, the regulation in Citizens United was direct and literal censorship—criticizing a candidate for office in the 60 days before an election was illegal. Here, the “punishment” is much more indirect and indeed its status as a punishment is somewhat speculative. So First Amendment scrutiny is called for, but the justification probably doesn’t need to be as compelling as you’d need to justify direct censorship.
Second, the degree to which having your opponent subsidized will be perceived as a “punishment” greatly depends on the circumstances. If the privately candidate is handsome and charismatic with an impressive record, while the publicly-financed incumbent is a politically tone-deaf hack with a long record of corruption and incompetence, then the challenger might welcome his opponent having more money to spend putting his ugly mug on TV. Similarly, if an independent organization is running ads in order to get candidates to talk more about its pet issue, it might not care at all about whether its spending causes certain candidates to get more money in the process.
Conversely, a candidate whose strategy is to bury his opponent in noisy attack ads that don’t stand up to scrutiny will find the matching funds provision very burdensome indeed. But it’s only “burdensome” in the same sense that robust debate always burdens people with unpersuasive messages.
Finally, the state’s interest in reducing corruption seems pretty compelling. Not compelling enough to justify censorship, but strong enough to justify a system of subsidies that creates a mild disincentive to private spending on political speech.
Speech is never a punishment, and it strikes me as especially dangerous for supporters of free speech to suggest otherwise. If libertarians call it a “punishment” when the government subsidizes your opponent’s political campaign, it’s hard to object when more censorious types call it a “punishment” when a third party runs a nasty campaign ad against a politician. The solution to speech is more speech. I don’t love the Arizona campaign finance system, but I think it’s hard to argue that it runs afoul of the First Amendment.