In Arizona Free Enterprise Club v. Bennett, 10-238 (June 26, 2011) (5-4) five Supreme Court justices eviscerate the only effective alternative to limits on election expenditures: public campaign finance. Under its surreal "money is speech" doctrine, the Supreme Court has since 1976 invalidated effective limits on money in politics as a restriction on speech. Now it holds that the public cannot spend its money to match private electioneering expenditures to level the playing field between public interest and special interest in order to control political corruption.
Matching private expenditures provides more equal opportunity for speech from candidates who emancipate themselves from private interests by accepting public campaign funding. Without such matching, the public funded candidate is outspent by the private funded candidate, and usually loses. The Roberts 5 call such matching a "burden" on the privately financed candidates because their special interest money will not consistently overwhelm the candidates who are not reliant on private interests. They may even choose the tactic of spending less to reduce the amount of the match given their opponent. The 5 create a constitutional right for the rich candidate to spend more money in politics than everyone else. Four dissenting judges explain that this decision will make public funding of elections ineffective since the success of the public financing system depends on the matching funds mechanism.
Since 1976 the Court has used its "money is speech" trope to hitch its interference in elections to the First Amendment. The Constitution gives to Congress and the States, not the Court, the power to regulate and judge elections. This decision has nothing to do with free speech. It has everything to do with blatant interference with elections to advantage the money party. The people do not want a plutocracy and are willing to fund candidates not beholden to the rich to try to get get their democracy back. The Roberts 5 do want a plutocracy and will do what it takes to keep it. They know as most Americans do that candidates who spend more money win most elections. That being the outcome the Court desires, the Court claims that the Arizona law, by enabling people without private funds to contest fairly with those who do have private funds, "burdens protected political speech without serving a compelling state interest."
Who are these five judges to say there is no compelling interest in trying to prevent plutocracy? It rises to the level of an unconstitutional burden, according to the 5, for privately financed candidates to have to face up to more opposition speech funded by the people. But somehow the very same burden on the public, facing up to more opposition speech funded by the rich for the purpose of undermining and corrupting democracy, is of no concern. Of no concern to the Roberts 5, that is. This same burden is of compelling interest to the public seeking to protect their democracy.
An overwhelming majority fully understands that this burden of money in politics threatens to overwhelm democracy altogether. Indeed there is no more compelling interest, on a par with defending a democracy from violent overthrow, than defending it from systematic corruption. Previous Supreme Courts knew this. But these 5 that grew out of and remain securely in the lap of plutocrats impose a different view, and a different Constitution of their own making.
Those who have an interest in preserving the fiction of the rule of law may parse this decision for some semblance of legal rationality. The four dissenters looked for it, and could not find any. The Supreme Court majority has simply amended the Constitution -- once again -- to protect plutocracy. Why? Because they can. Congress, and the people, have let them get away with it.
The Arizona law was an elegantly simple approach to protecting the public's interest in democratic elections within the ever-tightening straightjacket created by the Court in its line of cases since decreeing that money is speech in Buckley v Valeo. Since the Supreme Court prevents the public from requiring all candidates to participate in public funding, subject to mandatory spending limits, Arizona instead provided a system for matching the electioneering expenditures of, or for, privately funded candidates, so that candidates taking public money would not be defeated simply by being outspent.
Arizona referendum voters used their spending power to assure that the privately funded candidate would not win simply by buying more ads than the publicly funded candidate. They wanted the outcome of elections to be determined by the actual content of the speech, what the candidates have an equal opportunity to say, not how often and loudly their money permits them to broadcast it in the mass media. The law expanded true debate at the expense of the money primary, where the person with the most money attracts more of it and thereby overwhelms the opposition. The Roberts 5 fears the former and wants to continue the latter. So they claim that "Arizona's matching funds provision [will] inhibit robust and wide-open political debate." It in fact enhances the amount of two sided debate - the only robust kind there is.
The Roberts 5 weave their constitutional blanket around privately funded candidates, as if they were a minority target of discrimination. The voters of Arizona considered private funding of elections as an evil somewhat like, say, advertising for cigarettes. If not prohibited, it at least requires a public response if there is to be a chance of electing politicians who do not have to sell out the public interest in myriad ways to repay the sources of their private money. As the country becomes more unequal (it now ranks as the 44th most unequal country) democracy becomes less feasible under a regime that the Court created to allow money to flow freely into politics. Justice Brandeis said: "We can have democracy in this country or we can have great wealth concentrated in the hands of a few, but we can't have both." Money buys politicians, and bought politicians help make more money for those who pay in a vicious cycle of conflicted and corrupt interests.
If voters cannot constrain the flow of money into politics, as taxpayers and citizens, they will systematically pay far more for political paybacks. The cost to "average taxpayers [of] millions of dollars in the form of subsidies and special privileges for campaign contributors" is noted right in the overturned Arizona law. Sec. 16--940(B). These favors are not commonly caught by narrowly construed bribery laws and the wide-mesh net typically used for their enforcement.
A recent CNN poll found that 86% of Americans think that elected officials are mostly influenced on issues by major campaign contributors. That 86% includes pretty much everyone but those like the Roberts 5 who benefit from this corrupt system.
Arizona Free Enterprise is in many ways worse than Citizens United, which simply opened a new wider channel for money that was already flowing into politics. By invalidating the matching mechanism the Supreme Court now destroys the only known balance to this private river of money: an equal amount of public money. This latest Roberts 5 decree on election law now seals their guarantee of continued plutocratic control of state legislatures, as well as Congress, if it were not already too corrupt to pass a law as democratic as Arizona's. By enabling the rich to consistently spend more money than publicly-financed candidates they enable the rich to buy elections and candidates for private ends, as a constitutional right.
Though perhaps not as easily demagogued by inaccurate appeals to abolish "corporate personhood" (a term nowhere actually mentioned in or necessary to the Roberts 5 decision in Citizen United), the Arizona law approved by the state's voters was the last best chance to get around the Roberts 5 mandate for America of a corrupt electoral system.
Arizona voters' mechanism to avoid money-driven election outcomes while not limiting privately funded candidates or their sponsors from paying for all the electioneering speech they want.was not a left or right solution. It was a democratic solution to a crisis that the Supreme Court itself created by interfering in elections, where it was historically understood a court does not belong. Because the Arizona candidate qualification provision for public funding required 200 - 4000 donors of $5 each, this tended to favor candidates that could use large politicized church congregations to collect the qualifying contributions. More democracy in Arizona since 1998 actually led to more conservative politics. Money in politics is not about liberal or conservative, it is about the richest 1% and their agents, those the Roberts 5 represent, against everyone else, who the Arizona voters represent.
This case, even more than Citizens United, kills the last small hope for reviving democracy without attacking the Roberts 5 themselves in the way that Roosevelt attacked the "Four Horseman" judges for blocking New Deal reforms. This decision strays far beyond the Court's legitimate role, intruding deeply into purely political questions without a fig leaf of camouflage from the First Amendment. It can only be countered by a campaign directed squarely at the Roberts 5 and their illegitimate arrogation of power.
To restrict the Roberts 5 politicians in robes to their proper role as judges, there is no need for a constitutional amendment, as was mistakenly advocated by some in response to Citizens United without first doing their homework. The Constitution already gives Congress all the power it needs to get the Roberts 5 out of elections and money out of politics. We the people -- liberal, conservative and independent people -- simply need an effective mechanism to focus our voting power on this one issue. Congress can and must be forced by single issue voting to exercise its constitutional authority under Art. III, Sec. 2, cl. 2 and other constitutional powers to reject the Supreme Court's interference in elections. We can no longer afford the luxury of ignoring that the Roberts 5 are politicians who lack any fidelity to the rule of law, the Constitution, or to the guarantee of a democracy that is its purpose. Their fidelity lies in the opposite direction of entrenching a plutocracy, staffed by politicians who will appoint more judges like themselves as its guarantor.