Citizens United, The Sequel?: McComish v. Bennett Oral Argument Preview

Last year, in Citizens United v. FEC, in an opinion starkly at odds with the Constitution’s text and history, the Supreme Court ruled that corporations are persons with the same First Amendment rights as individuals to spend money to influence elections and that the government’s only interest in limiting corporate electioneering is to prevent bribery, or its functional equivalent.  The Citizens United ruling will likely be front and center at the Supreme Court on Monday, when the Court hears oral argument in McComish v. Bennett, a constitutional challenge to a 1998 Arizona statute, approved by the voters, establishing a public campaign financing program to combat corruption and encourage broader participation in the political process.  Hopefully, McComish will be a sequel to Buckley v. Valeo, the 1976 case upholding federal public campaign financing, and not become Citizens United, Part II.

Under the Arizona statute at issue in McComish, candidates have the option of running for office using public money, freeing them from the burden of having to raise huge sums of cash from wealthy donors.  To make public financing attractive while ensuring fiscal responsibility, the Arizona statute provides matching funds to participating candidates to ensure they can run a competitive race, even against a privately-financed candidate with huge reserves of cash to draw upon.  The statute provides qualifying candidates with an initial grant, with the possibility of additional matching funds (up to two times the initial amount) if a privately-financed opponent or his or her supporters spend more than the amount of the initial grant.  The financing regime, thus, helps to ensure that the government is not wasting taxpayer money by throwing huge sums of money into what are essentially uncontested elections.

In November 1998, the people of Arizona adopted this public financing program against the backdrop of evidence of widespread and brazen corruption in the state.  In a scandal that implicated nearly 10% of the Arizona legislature, legislators sold their votes to the highest bidder, trading votes on a bill to legalize gambling for cash.  Corrupt legislators came to meetings with empty duffel bags, expecting them to be filled with money.  All told, the bribes collected amounted to almost $400,000.  At the time, Arizona had limits on the size of campaign contributions, but those laws were not enough to prevent bribery from in fact occurring.  Rather than adding new contribution limits in an effort to keep money out of politics, the people of Arizona gave candidates the option of running robust campaigns for office backed by public funds, freeing them from the corrupting influence of private funds.   The result of the statute has been more speech, more robust debate at election time, and more political competition.

In devising an innovative solution to the problem of government corruption, the people of Arizona were consistent with the Constitution’s text and history and the best traditions of federalism, acting as what Justice Brandeis called “laboratories of experimentation.”   CAC’s amicus curiae brief in the McComish case –- filed on behalf of a group of renowned constitutional scholars, Professors Bruce Ackerman, Larry Lessig, Zephyr Teachout and Adam Winkler -– demonstrates that combating corruption is at the core of the Constitution’s text and history.  The Framers of the Constitution were obsessed by the problem of corruption.  They recognized that it was insidious, and that governments needed broad authority and a wide menu of option to root it out of government.  They wrote the Constitution to include a number of prophylactic safeguards against corruption, such as limits on the acceptance of foreign gifts by government officials.  In addition, the Framers established governmental structures and political systems, such as “checks and balances” and elections procedures, that were designed to help the government withstand corruption.  Indeed, many central features of our government were, in fact, anti-corruption measures.  Preserving both the integrity of government and the appearance of integrity is at the core of the Constitution the Framers designed.

The plaintiffs in McComish, however, argue, that Arizona’s public financing system is an infringement of their constitutional right to freedom of speech, relying heavily on Justice Kennedy’s opinion last Term in Citizens United.  They argue that government’s payment of matching funds chills their own speech, and thus that the public financing system should be invalidated.  There are good reasons for the Justices to be suspicious of this claim of a chilling effect.  Arizona’s public financing program places no limits on the amount of money that privately-funded candidates or their supporters can spend.  The statute funds more speech, adding to, not limiting, the public debate on the issues of the day.  It would more than a little counterintuitive to invalidate in the name of the First Amendment a statute that has resulted in more speech, more political competition, and more integrity in Arizona’s elections.  From the perspective of the Constitution, vigorous debate is a good thing, not a constitutional injury.

Over thirty years ago, in Buckley v. Valeo, the foundation of modern campaign finance case law, the Supreme Court ruled that a “more speech” approach to campaign finance is plainly constitutional.  Buckley held that public financing is a permissible effort “not to abridge, restrict or censor speech, but rather to use public money to facilitate and enlarge discussion and participation in the electoral process, goals vital to a self-governing people.”  Buckley recognized that public financing “furthers, not abridges, pertinent First Amendment values.”  The Arizona statute at issue in McComish follows these Buckley principles exactly.

The critical question in McComish is whether the Supreme Court will follow the Constitution’s text and history and its ruling in Buckley, or whether the five Justices of the Citizens United majority will continue to invent new limitations on the ability of federal, state, and local governments to create election systems free from corrupting influences.  We will be watching closely on Monday to see if the Justices properly recognize that Arizona’s well-tailored approach to combating government corruption has deep roots in the Constitution’s text and history.