an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
I just finished reading Arizona Free Enterprise Club's Freedom Club Pac v. Bennett, today's Supreme Court decision invalidating Arizona's public financing scheme under the First Amendment. I was struck by how strongly worded the opinions were. The majority and the dissent bordered on vituperative. Chief Justice Roberts and Justice Kagan write as if they were exasperated with one another. Each accuses the other of ignoring facts, ignoring doctrine, even ignoring the basic principles undergirding the First Amendment. The two go so far as to invoke each other's rhetorical flourishes ironically, even sarcastically.
Why so much heat? It may be a sign of a nascent rivalry between Chief Justice Roberts and Kagan. But I think it also has to do with the state of campaign finance doctrine. What we are witnessing is not a doctrinal framework developing and moving toward a shared middle ground. What we are witnessing is a doctrinal death match between two incompatible world views. The stakes are high, and so is the rhetoric.
A bit of background is in order. Arizona, like several other states, has a voluntary public finance system. Candidates who accept public financing receive lump-sum grants in exchange for foregoing the opportunity to raise many privately. A publicly financed candidate is eligible to receive additional funds if his opposition outspends him. And by the term “opposition,” I mean both the privately financed candidates and the independent groups supporting the privately financed candidate.
The Court, per Chief Justice Roberts, held that this matching provision violated the First Amendment because, in effect, it “punished” candidates and groups for spending money by awarding funds to their opponents each time they did so. The decision turned largely on one, key case: Davis v. FEC, which struck down the "Millionaire’s Amendment" of McCain-Feingold. The federal provision had trebled the individual contribution limit for congressional candidates whose opponents were able to self-finance their elections. The Court held that the burden imposed by the Arizona scheme was more severe than that imposed by the Millionaire's Amendment. That's because the latter only allowed candidates to raise more money, whereas the Arizona scheme automatically gave them more funds.
In many ways, the Arizona case may be a stand-in for a larger divide in campaign finance. For many years, the two sides have been unable to find common ground. They simply begin with a different premise about what role money plays in elections. One side sees substantial expressive dimensions to contributions and expenditures, and the other doesn't. It would be too crude to boil the debate down to slogans like "money is speech" and "money is money" -- the positions on both sides are more nuanced than that. Nonetheless, the only middle ground that has been found in this fight has been to stick with Buckley v. Valeo's split-the-baby approach, which treats contributions and expenditures differently for First Amendment purposes. No one admires Buckley, and while the compromise garnered votes, it hasn't helped build a common intellectual framework.
Davis and now Arizona Free Enterprise look like the "money is speech" debate writ small. Chief Justice Roberts and his fellow conservatives find it very easy to imagine provisions like the Millionaire's Amendment or Arizona's matching funds as punitive -- punishing a candidate for his successes. Petitioner's "summary of argument," for example, led with an anecdote about Janet Napolitano when she was running for governor. At a debate with her opponent, Napolitano pulled him aside and thanked him for his fundraising efforts because his $750,000 fundraiser had ensured she had an additional $750,000 for the campaign. Napolitano noted, "I am quite certain I am the only Democratic Governor in the country for whom George Bush held a fundraiser."
Justice Kagan and the three other liberals, in contrast, find it very hard to figure out why public finance systems that impose no constraints on privately financed candidates are remotely troubling. Justice Kagan said in oral argument that it seemed like the system promote "more speech all around," and her blistering dissent makes precisely the same point.
That is the core problem, in my view, in campaign finance. If the Justices cannot agree on the basic premises of the doctrine, no balancing test or factual record or choice about the level of scrutiny is going to bring agreement. This just isn't an area where a middle ground is likely to be found. One is tempted to quote from Harry Potter: "neither can win while the other survives." One view or another is going to have to win out. The Justices know it's a fight to the finish, and they are writing their opinions accordingly. Posted
by Heather K. Gerken [link]