Supreme Court Strikes Down Arizona Statute for Burdening First Amendment

Yesterday, Chief Justice Roberts applied Davis v. FEC to strike down an Arizona statute that permitted candidates for state office to receive matching funds from the state in direct response to campaign activities of privately financed candidates and independent expenditure groups.

In Arizona Free Enterprise Club's Freedom PAC v. Bennett (along with McComish v. Bennett, also on certiorari to the Court), the Court considered a “matching funds” provision of Arizona law that provided during a primary election, every dollar that a privately financed candidate spends results in one dollar of state funding. Additionally, during a general election, every dollar that a candidate receives in contributions—which includes any money of his own that a candidate spends on his campaign—results in roughly one dollar in additional state funding to his publicly financed opponent. Once the public financing cap is exceeded, additional expenditures by independent groups can result in dollar- for-dollar matching funds as well.

The opinion of Chief Justice Roberts held that Arizona’s “matching fund” scheme substantially burdens protected political speech without serving compelling state interests, and thus, violates the First Amendment. Roberts’ opinion stated the “matching funds provision “imposes an unprecedented penalty on any candidate who robustly exercises [his] First Amendment right[s].”

The Court primarily used the reasoning in Davis v. FEC  to reach its holding. In Davis, the “Millionaires Amendment” of the Bipartisan Campaign Reform Act was found to be an unconstitutional burden on free speech. The provision provided that if a self-financed candidate used a certain amount of his personal funds, his opponent would get triple what the normal contribution limit allowed. In Bennett, the Court held the cash subsidy, provided by the state of Arizona, conferred in response to political speech, penalizes speech to a greater extent and more directly than the Millionaire’s Amendment in Davis.

The Court held that forcing a choice—in which matching funds would be triggered unless a contributor changes his message or does not speak—certainly contravenes “the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message.”

The Court cited examples of specific candidates curtailing fundraising efforts and actively discouraging supportive independent expenditures to avoid triggering the matching funds provision. The record also includes examples of independent expenditure groups deciding not to speak in opposition to a candidate. Roberts’ opinion held that it is clear to every court to have considered the question after Davis that a candidate or independent group might not spend money if the direct result of that spending is additional funding to political adversaries.

The Supreme Court also found that there was no valid compelling interest for the state of Arizona in enforcing this statute. The holding found strong support that the only compelling government interest that the state of Arizona had was advocating for an equal playing field, which has been held not to be a compelling government interest. The Court rejected Arizona’s contention that the statute was to further an anti-corruption interest. Because “the use of personal funds reduces the candidate’s dependence on outside contributions and thereby counteracts the coercive pressures and attendant risks of abuse” of money in politics and that independent expenditures do not give rise to corruption.

RNLA Board of Governors member and General Counsel of the James Madison Center for Free Speech, James Bopp Jr., said of the ruling:

Under this system, simply running an ad against a candidate can result in that candidate getting more taxpayer money. Requiring people to effectively fund candidates they opposed simply by exercising their First Amendment rights is blatantly unconstitutional.

Yesterday’s ruling continues the Roberts Court’s impeccable reputation deciding campaign finance cases. Abiding by solid jurisprudence from last year’s decision in Citizens United v. FEC, the Roberts Court has upheld the integrity of the election process as well as ensured First Amendment protections are not burdened.