Whither Political Equality?

U.S. Supreme Court
The U.S. Supreme Court in Washington, D.C. Photo by Mark Thomas

Two weeks ago, the Supreme Court heard oral argument in McComish v. Bennett, a challenge to the “triggered matching funds provisions” of Arizona’s successful state public financing program.  Many have speculated as to the potential impact of the case: would an adverse ruling invalidate only the “triggers” of Arizona’s program or also imperil public financing more broadly? 

Unfortunately, the impact of McComish may extend beyond the sphere of public financing.  Largely escaping notice has been another troubling aspect of petitioners’ case, namely their effort to absolutely discredit the so-called “equalizing rationale” for campaign finance regulation. 

The equalizing rationale – which encompasses an interest both in ensuring that wealth is not a prerequisite for running for public office and in enabling citizens of all economic brackets to meaningfully influence elections– has long been a part of the public thinking on campaign finance reform.  At the same time, the Supreme Court has deemed this rationale to be insufficiently compelling to support restrictions on campaign fundraising and spending. 

In Buckley v. Valeo, the Supreme Court found that the equalizing principle could not justify one of the most burdensome types of campaign finance restrictions, limits on expenditures, noting that “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.”[1]  The Buckley Court, however, raised no objection to the idea of parity in political speech, but simply found that the government could not justify campaign finance restrictions solely on this basis. 

Similarly, in Davis v. FEC, the Court considered whether the Millionaire’s Amendment, a federal law that tripled the contribution limits for congressional candidates that faced a wealthy self-financed opponent, could be justified by the government on the basis that it “level[ed] electoral opportunities for candidates of different personal wealth.”[2]  The majority noted that the Court’s prior decisions “provide no support for the proposition that this is a legitimate government objective.” [3]  Finding that the government had proffered no other interest that could plausibly support the Millionaire’s Amendment, the Court struck down the law. 

Now, however, the McComish petitioners do not merely claim that an equalizing rationale is constitutionally insufficient to justify the Arizona trigger provisions.  Instead, they appear to suggest that an equalizing objective may render a law unconstitutional even in the presence of other constitutionally-sufficient objectives.  Moreover, petitioners urge the Court to take it upon itself to ferret out the alleged equalizing motivation for the Arizona program, even though this was not an interest raised by the state in defense of the program.

This extreme attack on the “equalizing” rationale was necessitated by the fact that the Arizona program clearly serves the purpose of preventing actual and apparent corruption in state politics.  Buckley established that public financing generally advances the government’s anti-corruption interest by “eliminating the improper influence of large private contributions.”[4]  And it is undisputed that voters enacted the Arizona program in 1998 by ballot initiative in the wake of “AzScam,” a scandal which saw almost 10% of Arizona’s state legislators indicted for trading their votes on gambling legislation for campaign contributions and bribes.  Further, the official voter pamphlet for the ballot initiative was replete with references to the anti-corruption goals of the initiative, stating expressly that public financing “would change Arizona’s reputation [as] a state rife with corruption and the abuse of money in politics” and would allow officeholders “to represent the best interests of all the citizens, not just the large financial contributors who can trade their cash for political support.”[5]   Similarly, the resulting statute states that the public finance program is meant to “improve the integrity of Arizona state government by diminishing the influence of special-interest money,” and finds that Arizona’s former system “[u]ndermine[d] public confidence in the integrity of public officials” and “[c]ost average taxpayers millions of dollars in the form of subsidies and special privileges for campaign contributors.”[6]  For these reasons, the Ninth Circuit concluded that “one of the principal purposes of the Act was to reduce quid pro quo corruption.”[7] 

Given the anti-corruption bona fides of the Arizona program, it would be difficult for petitioners to contend that an equalizing rationale was the sole motivation for the challenged trigger provisions.  This is particularly the case because here – unlike in Buckley and Davis – the state never even asserted that this was a rationale justifying the law.  Instead, petitioners were reduced to the argument that the equalizing rationale was secretly the “chief” purpose of the Arizona program.[8]   Petitioners thus apparently take the position that an interest in political equality – even if merely one of multiple reasons voters passed the initiative – would render the resulting law unconstitutional. 

And, pushing this one step further, petitioners suggest that the Supreme Court review the legislative record for the ballot initiative to discover the program’s “true” intent, instead of simply evaluating the interests asserted by the state in justification of the law.  Interestingly, though, in their quest to present evidence of an improper equalizing intent, petitioners often had to repackage many seemingly-benign political goals into sinister “equalizing” schemes.    For instance, according to petitioners, even the law’s stated concern with “the influence of special interest money” represents an illegitimate interest in equalizing.[9]  Petitioners also assert that respondents’ arguments that the Arizona program was aimed at “generating competitive elections” and “‘expanding’ electoral opportunities” evidences the program’s illicit interest in “manipulating electoral outcomes.”[10]  In short, from petitioners’ perspective, political objectives such as competitive elections or broad-based political participation are enough to consign a campaign finance law to unconstitutionality – even if the law, like the Arizona program, also explicitly aims to reduce political corruption.

If the Supreme Court were to accept this argument, it would represent a significant step back for anyone concerned with the effects of money on our elections. 

Unfortunately, at least some Supreme Court Justices appear to already agree with petitioners’ position.  Oral argument descended into a game of “gotcha,” with several Justices attempting to flush out any covert allegiance to the ideal of political equality among the counsel defending the law.  Assistant Solicitor General William Jay mentioned in passing that the trigger provisions “allow[] publicly-funded candidates to run on the same footing as privately-funded candidates, because they can spend comparable amounts.”[11]  Justice Alito immediately pounced, asserting “that's equal – that’s leveling the playing field, isn’t it?”[12] 

Justice Roberts even did some private sleuthing, noting that “Well, I checked the Citizens’ Clean Elections Commission website this morning, and it says that this act was passed to, quote, ‘level the playing field’ when it comes to running for office. Why isn’t that clear evidence that it’s unconstitutional?”[13]

The approach of these Justices is contrary to the Court’s precedents.  The possibility that the Arizona program was perceived by some voters as advancing an “equalizing” objective does not nullify the anti-corruption purpose and effect of the program.  The Court has never held that a campaign finance law that serves compelling governmental interests is rendered unconstitutional simply because it has the collateral effect of furthering less compelling interests.[14]   To the contrary, as was the case when the Court reviewed campaign finance disclosure in Citizens United, if the Court deems one interest sufficient to justify a campaign finance statute, it typically finds that “it is not necessary to consider the Government’s other asserted interests.”[15]

In line with this approach, the Buckley court was unperturbed by the fact that the contribution limits it upheld on anti-corruption grounds were also defended on “equalizing” grounds, as “serv[ing] to mute the voices of affluent persons and groups in the election process and thereby to equalize the relative ability of all citizens to affect the outcome of elections.”[16]   Similarly, the presidential public financing system approved in Buckley was also perceived as serving egalitarian goals.  The legislative record notes, for instance, that public financing was in part motivated by “the concern . . . that major political parties and well-known individuals, including incumbent officeholders, would have greater access and appeal to donors than would minor parties and unknown individuals who desired to enter the political arena.”[17]  Supporters of presidential public financing lauded not only its anti-corruption goals, but also expressed sentiments that, at least in the eyes of the McComish petitioners, would be suspiciously “equalizing” in tone, declaring that public financing “returns to our people, to our individual voters a rightful share and a rightful responsibility in the choosing of their candidates.”[18] 

The new tack by some justices also reveals a disturbingly dismissive attitude towards political equality.  Until recently, it was not controversial from a policy perspective to debate whether our reliance on privately-financed elections might undercut the democratic ideal of one person/one vote or make it difficult for citizens of average means to run for office and influence the political debate.   To be sure, this concern did not suffice to support campaign finance restrictions from a constitutional perspective, but it was not deemed intrinsically pernicious.  But now some Justices appear to see any hint of equalizing as an invidious interest akin to racial discrimination that must be “smoked out” by a vigilant court in its review of campaign finance laws.  It is strange, to say the least, that the Supreme Court, whose building bears the scroll "Equal Justice Under Law," would apparently come to the conclusion that equality has become the ultimate political evil. 

An abbreviated version of this piece ran in the National Law Journal on April 11, 2011.

[1] Buckley v. Valeo , 424 U.S. 1, 48-49 (1976) (emphasis added).

[2] Davis v. FEC, 128 S. Ct. 2759, 2773 (2008) (quotations omitted). 

[3] Id.

[4] Buckley, 424 U.S. at 96.

[5] McComish v. Bennet, 611 F.3d 510, 514-15 (9th Cir. 2010).

[6] Ariz. Rev. Stat. § 16-940. 

[7] McComish, 611 F.3d at 516.

[8] McComish Petitioners Reply Brief at 22. 

[9] Id. See also Arizona Free Enterprise Club Petitioners Brief at 11-12. 

[10] Id. at 23. 

[11] Transcript, 50:19-22.

[12] Transcript, 51:22-23.

[13] Transcript, 48:2-7.

[14] This is not to say that the Supreme Court need accept the government’s asserted interests.  Here, the Court could simply reject respondents’ claim that the trigger provisions are supported by the government’s interest in preventing actual or apparent corruption.  Indeed, this possible ruling underscores the gratuitous nature of this fixation on uncovering an “equalizing motivation.”  The Court in the past has not labored to devise alternative rationales for a challenged campaign finance law not asserted by the state: instead, it has simply invalidated the law if it found that the government’s claimed interests were insufficiently compelling or the law insufficiently tailored to meet these interests. 

[15] Citizens United v. FEC, 130 S. Ct. 876, 915-16 (2010).  See also Doe v. Reed, 130 S. Ct. 2811, 2819 (2010) (“Because we determine that the State's interest in pre-serving the integrity of the electoral process suffices to defeat the argument that the [law] is unconstitutional … we need not, and do not, address the State's “informational” interest.”).

[16] Buckley, 424 U.S. at 25-26.

[17] S. Rep. No. 93-689 (1974), reprinted in 1974 U.S.C.C.A.N. 5587, 5588.

[18] Id. at 5617 (Pell statement).