Kagan: SCOTUS Ruling Against Arizona Public Financing Is ‘Chutzpah’

The conservative majority of the Supreme Court on Monday struck down an Arizona campaign finance law that offered political candidates facing well-funded opponents a subsidy to “level the playing field” and protect from public corruption.

Chief Justice John Roberts and the conservative majority agreed with the five conservative politicians and two political action committees who argued that the law stifled free speech, claiming it meant they were punished if they raised too much money because the government would subsidize their opponents.But Supreme Court Justice Elena Kagan, writing a dissent on behalf of the minority of the court, said that there was a major problem with the decision by her colleagues — Arizona’s matching funds provision “does not restrict, but instead subsidizes, speech.”

The plaintiffs who brought the case, Kagan wrote, “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.”

“Pretend you are financing your campaign through private donations,” Kagan wrote. “Would you prefer that your opponent receive a guaranteed, upfront payment of $150,000, or that he receive only $50,000, with the possibility — a possibility that you mostly get to control — of collecting another $100,000 somewhere down the road? Me too.”

“Robust campaigns leading to the election of representatives not beholden to the few, but accountable to the many. The people of Arizona might have expected a decent respect for those objectives. Today, they do not get it,” Kagan wrote.

“Arizonans deserve better. Like citizens across this country, Arizonans deserve a government that represents and serves them all. And no less, Arizonans deserve the chance to reform their electoral system so as to attain that most American of goals,” Kagan wrote. “Truly, democracy is not a game.”

Common Cause President Bob Edgar said the ruling “is not the death knell of public financing.”

“This ruling affects only one mechanism of public financing, and there are numerous ways to fix it,” Edgar said. “Today, in the wake of Citizens United, it is more critical than ever that we change the way we pay for our elections by moving to a small donor system that gives the public a voice back in our government. Nothing short of our democracy is at stake.”

Democracy 21 President Fred Wertheimer said in a statement that the “reform movement to create new public financing systems nationally and at the state and local level will go forward without interruption.”

But Sean Parnell, president of the libertarian-minded Center for Competitive Politics, said that the “so-called ‘reform’ measure that stifled free and unfettered political speech.” He said the court “continued its streak of showing greater deference to the plain meaning of the First Amendment and less interest in schemes to suppress some speech in the interest of favoring the speech of others.”

(H/T Rick Hasen)