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You don't coerce or injure others. Why can politicians do it?

Public Funding of Campaigns is Unconstitutional

In January, Downsize DC Foundation donors helped to fund an amicus curiae brief in the U.S. Supreme Court, involving an Arizona public financing scheme for electoral campaigns. At the time, we wrote…

The idea of tax funding for political campaigns is just another part of a rotten campaign-finance scheme, by which the politicians seek to protect their positions by reducing political competition. Tax-funding for political campaigns is really another way to make sure that challengers NEVER have more money than incumbents, because challengers have a greater need for money than incumbents do. Tax-funded campaigns are just a scam.


Here is some background on the brief, that explains where we stepped in . . .

In January, in support of Petitioners, we filed an amicus brief in the United States Supreme Court in the case Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett.

Rather than a frontal attack on the constitutionality of the entire Arizona Clean Elections Act — a scheme for the public financing of state elections — the petitioners in the case had focused their First Amendment challenge to the Act’s matching funds provision. (Under that provision, if a privately-funded candidate spends over a certain limit, the candidate’s expenditure triggers additional public funds to the opposing, publicly-funded candidate). Relying primarily on the “speaker autonomy rule,” petitioners rightfully contended that the matching funds provision coerced the privately-financed candidate to finance the political message of one’s opponent.  

The petitioners won in the district court. On appeal, however, the Ninth Circuit reversed. Relying on the assumption that Buckley v. Valeo [1976], broadly sanctioned all public financing of elections, the court of appeals refused to apply “strict scrutiny” to the matching funds provision, ruling that whatever burden is placed on a privately-financed candidate’s speech is only “indirect or minimal.” 

In briefs submitted to the Supreme Court, petitioners challenged the Ninth Circuit’s reliance on Buckley, but only on the narrow ground that there was no comparable matching fund provision in the presidential campaign fund approved in that case. This where we come in . . . 

Our amicus brief criticized and distinguished Buckley, but then launched a frontal attack on the constitutionality of Arizona’s entire public financing scheme. 

In its opinion approving the public financing of presidential elections, the Buckley Court took special note that the fund was made up of wholly voluntary contributions, moneys made available by individual taxpayers by checking an appropriate box on their income tax returns. In contrast, the “Arizona’s Citizens Clean Elections Act” gets a majority of its funds by means of a 10 percent surcharge on all civil penalties and criminal fines paid by “lawbreakers.” Buckley indicated that this distinction was critical, stating “The scheme involves no compulsion upon individuals to finance the dissemination of ideas with which they disagree.” 

Indeed, just one year after Buckley was decided the Supreme Court unanimously ruled that a person could not be coerced by law, in Thomas Jefferson’s immortal words, “to furnish contributions to the propagation of opinions that he abhors or disbelieves.” (See Abood v. Detroit Bd. of Ed. [1977]). Abood, in turn, vindicated Justice Hugo Black who 16 years before wrote that “[c]ompelling a man to pay his money to elect candidates ... he is against differs only in degree, if at all, from compelling him by law to speak for a candidate....  The very reason for the First Amendment is to make the people of this country free to think, speak, write, and worship as they wish, not as the Government commands.” (See International Machinists v. Street [1961]).

The Ninth Circuit not only overlooked this distinction between the Arizona law and the federal statute approved in Buckley, it assumed, as the majority did in Buckley, that public financing of election campaigns would “facilitate” and “enlarge” the public debate, not “abridge” it. Drawing first on the dissenting opinions of Chief Justice Warren Burger and Justice William Rehnquist in Buckley, our amicus brief noted that even in Buckley the public funding scheme approved by the majority expressly favored incumbents over challengers and major party candidates over minor party and independent candidates.

The Arizona law — like the presidential funding scheme in Buckley — purports to “promote freedom of speech.” On closer analysis, however, the Arizona scheme rests upon a constitutional premise that the government has a legitimate interest in “equalizing the relative ability of individuals and groups to influence the outcome of elections.” That premise has been thoroughly rejected and discredited in Citizens United v. FEC – and rightfully so.  If freedom of speech means anything, it must stand as a jurisdictional barrier to the government exercising the power of licensing entry into the free marketplace of ideas — whether it is designed to keep some persons out or to subsidize others to get in. 

One of the express purposes of the Arizona law is to use public funds to cleanse election campaigns of “negative ads” and to encourage candidates to be more “issue-oriented.” Such goals are directly antithetical to our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may very well include, vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” (See New York Times v. Sullivan [1964]).
Our brief argues that public financing undermines the republican principle that in America the people, not the government, are sovereign. The Arizona law abridges the privileges and immunities of United States citizenship, because public funding makes candidates beholden to the government for their campaign funds, and thereby, accountable to The State, rather than the other way around. 
Jim Babka
Downsize DC Foundation