Artur Davis: The Breathtakingly Expensive 2012 Election

By Artur Davis, on Thu Jul 21, 2011 at 8:30 AM ET

The 2012 election will be breathtakingly expensive. President Obama has plausibly set his sights on raising a billion dollars, and the eventual Republican nominee will not be impoverished, given the antipathy toward Obama’s policies in some of the richest precincts in America.

The flood of money will disturb advocates of campaign finance reform. But the Supreme Court’s recent ruling in Arizona Free Enterprise Club v. Bennett suggests that there is little even a reform-minded Congress or state legislature could do to stem the tide. Bennett involved a First Amendment challenge to Arizona’s system of public financing for state candidates: under the law, candidates are permitted to opt in or out of a pool that provides public funds for candidates who accept spending limits. For publicly funded candidates who find themselves facing certain expenditure levels by their privately financed opponents, or groups who back them, Arizona’s law furnished extra matching funds. Its principle is that speech by deep pocketed candidates should not be limited but that the public has a major stake in leveling the playing field.

Chief Justice Roberts’ majority opinion reminds that the Court has long considered campaign spending to be protected speech. Roberts reasoned that the Arizona law in effect “burdens” privately financed candidates by putting a de facto penalty on their speech. According to the Chief Justice, this burden does not just level the field, it has the effect of actually “reducing” the speech of the deep pockets.

The newest member of the Court, Elena Kagan, was almost caustic in her dissent. Justice Kagan’s point was that Arizona hardly restricts the speech of big spending candidates; what it does instead is to thwart their ability to dominate the field. Challenging the majority’s viewpoint that Arizona can’t impose its own view of fairness over the speech rights of certain candidates, Kagan recites the familiar rationale that too much private money in politics is corrupting and governments have a compelling interest in countering that influence.
If Arizona had tried to force extra disclosure requirements on some privately financed candidates, or if it had softened contribution limits for publicly funded candidates who face big spenders, Bennett would have almost identical to Davis v. FEC, a 2008 Supreme Court ruling which by the same 5-4 margin, struck down the so-called “Millionaire’s Amendment” in federal races. But Arizona went out of its way to avoid slanting its campaign finance laws against one class of candidates. Instead, it did what governments do all the time–shifting more public resources to a cause it deems worthy. In other words, what lawmakers do when they make charitable contributions tax deductible and when they write tax breaks for the production of ethanol. In this case the cause just happened to be a public dialogue that doesn’t turn on who has the edge in money.

It is hard to see how, as Kagan memorably put it, the “right to quash others’ speech” is a First Amendment principle. But that right is increasingly the prize in the game to dominate politics with cash, and it seems we are stuck with the consequences.