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The Court’s Embarrassingly Bad Decisions


Why, then, did the three conservative justices—Kennedy, Roberts, and Alito—not follow Scalia and Thomas in simply overruling Flast? They would have avoided having to make as many bad arguments as they did. (They would have needed only one.) Roberts and Alito both promised, in their Senate confirmation hearings, to respect precedent. But they both qualified the promise: they would not need to respect past decisions whose rationale had been “undermined” by later decisions. Perhaps they are now engaged in an undermining process, step by step, so they can later justify overruling Flast and other precedents they dislike. Justice Stephen Breyer has called that strategy “death by a thousand cuts.” The strategy might conceivably be at work in the Court’s recent abortion rights decisions as well.


Now consider the newest electoral reform case, also from Arizona. In their earlier Citizens United decision the five justices guaranteed corporations a constitutional right to use their own capital for political advertising. They said that the point of the First Amendment is to provide the electorate with as much political speech as possible. They did not deny that the political process would be fairer if candidates and political organizations were more equal in their campaign resources. But the First Amendment forbids infringing free speech for the sake of equality, they said, and so “leveling the playing field” is no justification for stopping corporations or anyone else from spending as much on political advertising as they wish.

Some commentators said that the Citizens United decision would make little practical difference: though it was wrong in principle, they thought, it would not actually do much harm. They were mistaken: the decision’s impact has already proved dramatic.5

The new case—Arizona Free Enterprise Club PAC v. Bennett—gives the five justices another opportunity to protect the power of wealth in politics. Arizona, like many states, offers public financing to election candidates who agree to limit their spending but permits candidates who refuse public funding to spend as much as they wish. In a 1998 referendum following a series of political scandals, Arizona voters adopted a “Clean Elections Act” providing that if a privately funded candidate spends more than a stipulated amount, other candidates who have accepted public financing receive additional campaign funds from the state.

Conservative political organizations challenged the Clean Elections Act: they argue that this act, too, violates the free speech clause of the First Amendment. The Court heard oral argument in the case on March 28; it has not yet announced its decision but the remarks of four of the five conservative justices (Thomas almost never speaks during oral argument) leave little doubt that all five will rule the Clean Elections Act unconstitutional.6 They agreed with the plaintiffs that the act would “chill” the speech of privately funded candidates who would know that if they spent more than the stipulated limit their opponents would receive additional funding. In that way, they suggested, the act infringes the rights of privately funded candidates to speak as freely as they wish.

This is a bizarre argument. The five justices do not challenge the constitutionality of public funding; they hardly could since such funding obviously increases the amount—as well as the diversity—of political speech. But public funding presumably deters many rich candidates from broadcasting dubious claims they would happily broadcast if their opponents had no money to rebut them. Indeed, public funding for potential opponents might well deter some wealthy individuals from running for office and therefore from campaigning at all. The First Amendment can hardly be thought to guarantee rich politicians and organizations that they will not be effectively opposed, even when the possibility of effective opposition might induce them to say less.

Nor would increased subsidies for publicly funded candidates lower the total amount of speech available to the electorate. Political spending has increased in Arizona since the act was passed, and common sense argues that the act would increase rather than decrease the amount of political speech. Organizations like the Free Enterprise Club can raise much more money than publicly funded candidates would have even with the additional funds the act would provide them. The act would indeed diminish the financial advantage of rich candidates and organizations. But it would hardly erase that advantage and it would therefore be unlikely to stop privately funded candidates and groups from raising and spending what they otherwise would. If so, the act would increase overall speech by providing somewhat more money for poorer candidates to spend.

The transcript reveals a different and more ominous argument that some of the conservative justices seemed to have in mind, however—an argument that would make the impact of the Clean Elections Act on anyone’s speech irrelevant. They repeatedly declared that the real intention of the act was egalitarian—that it was actually designed not to reduce corruption but to make the resources available to different candidates somewhat more equal—and that the act was unconstitutional for that reason.7 Roberts put the point this way: “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?”

It is almost always implausible to attribute a single purpose even to an ordinary statute; different legislators might well have had very different intentions and hopes in voting for it. But the Clean Elections Act was adopted in a referendum directly by the Arizona voters and it is worse than implausible to attribute a single or dominant motive to all the many thousands who voted for it. We have no idea, for instance, how many of them wanted just to curb the well-publicized corruption in the state.

But even if we accept that every Arizonan who voted for the act hoped to reduce the advantage of rich candidates and institutions, that assumption would provide no argument for holding it unconstitutional. Past decisions, including Citizens United, held that a legislative desire to reduce the inequality in candidates’ spending cannot rescue a scheme that is otherwise objectionable on First Amendment grounds. Roberts’s declaration in the new case suggests a malign sleight of hand: that an act passed by popular referendum to promote electoral equality will now be condemned by that motive even if there is no other constitutional objection to it. The enthusiasm with which at least three of the conservatives toyed with the idea that equality is just in itself a forbidden goal gives further evidence that they are driven by political convictions wholly alien to the Constitution—convictions that a genuine jurisprudence of principle must reject.

  1. 5

    See ” Citizens United : One Year Later,” Public Citizen, January 18, 2011, available at http://www.citizen.org/pressroom/pressroomredirect.cfm?ID=3257

  2. 6

    See the transcript at www.supremecourt.gov/oral_arguments/argument_transcripts/10-238.pdf

  3. 7

    Scalia, however, rejected that putative principle: “I’m sure that in some of the public financing cases that we’ve heard argued, it was asserted that the purpose was to level the playing field, and that that was an entirely valid purpose.” 

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