Can Citizens United Version 2.0 Be Averted?
On Monday, the Supreme Court heard oral argument in the consolidated cases McComish v. Bennett and Arizona Free Enterprise Club's Freedom Club PAC v. Bennett. These cases, for which the Union for Reform Judaism drafted its first amicus curiae brief (thanks to invaluable work of URJ East District Chair Andy Goodman and his colleagues at Garvey Schubert Barer), consider the constitutionality of the "matching fund" provisions of Arizona's public campaign financing program. This is the first time the Supreme Court has heard a campaign finance case since its landmark 2010 decision in Citizens United v. FEC, which overturned 63 years of precedent prohibiting corporations and labor unions from spending unlimited amounts of money on campaign advertisements. Another decision overturning campaign finance regulation would be extremely damaging and a huge blow to those who wish to limit the influence of wealthy and powerful corporate interests in our democracy.
Under Arizona law, candidates for state offices may qualify for full public financing for their campaigns if they voluntarily discontinue all private fundraising. Participating candidates who face privately financed opponents expending large sums of money are eligible for additional matching funds to ensure that they have the resources to compete. For example, if I decided to run for Governor in Arizona as a publicly financed candidate, I would receive an initial grant of $1 million for my campaign. If my privately financed opponent raised and spent between $1-3 million, then my allotment from the state would increase on a dollar-for-dollar basis until my opponent exceeded the $3 million threshold.
Decades of precedent support the use of public financing in order to prevent political corruption by eliminating the potential for elected officials to feel beholden to campaign contributors. Supporters of public campaign financing, including the Union for Reform Judaism support matching funds because, by giving candidates adequate resources to remain electorally competitive, they encourage participation in public financing programs.
I had the opportunity to watch oral argument in person on Monday. It was an amazing and frightening experience. It was fascinating to watch the lawyers representing Arizona nimbly field questions from a Court that has demonstrated extreme hostility towards campaign finance regulation. In particular, I admired Bradley Phillips' extremely sharp defense of Arizona's law. At one point, Justice Alito drew a metaphor comparing Arizona's law to a rule that would allow one side to submit an additional brief in the case but only if all the other parties in the case got the same opportunity. Mr. Phillips argued that he would avail himself of that opportunity (and by extension suggested that privately financed candidates in Arizona do not fear triggering matching funds), saying, "You would think that someone who is convinced of the persuasiveness of his speech would choose more speech."
This response, I felt, cut to the very core of the plaintiffs' argument. They view an election as a "zero-sum game" in which a provision that benefits one candidate automatically hinders another. As Mr. Phillips, in my view, correctly pointed out, this is only the case if we cynically view citizens as unwilling or incapable of listening to campaign rhetoric and judging for themselves what to believe. I refuse to subscribe to the notion that the campaign process is neither more nor less than a prolonged smorgasbord of fundraising in which the victor is always he who guzzles the greater portion of contributions. The facts do not bear it out. The rare breed of candidate does exist who achieves office on the basis of a superior campaign while at a financial disadvantage. Moreover, I cannot believe that the wool has so thoroughly been pulled over the eyes of the American people that they cannot transcend the opacity of financial might and discern which candidate would truly improve their lives.
The oral argument was also frightening because I saw little evidence that the Citizens United majority is prepared to reverse course and provide judicial sanction for any kind of campaign finance regulation. Justice Scalia, in particular, appeared as pugnacious as ever. At one point, he offered the unsolicited opinion that all campaign finance reform--not just the type being discussed in the cases before the Court--amounts to an attempt to insulate incumbents from electoral defeat. Considerable scholarship suggests that, specifically with respect to publicly financed elections, the opposite is, in fact, the truth. More importantly the tone and content of comments offered by the Citizens United majority suggest that they are on an ideological mission to dismantle what remains of campaign finance regulation and offer wealthy and powerful interests nearly unfettered influence over our elected officials.
One never knows what surprises may materialize as the Justices seek to craft an opinion that a majority of the Court can support. I hope I'm being overly pessimistic about the outcome of that decision.