Kagan’s Bad WASH Debate Opening to AZ Free Enterprise v. Arizona
Today the Supreme Court knocked down Arizona’s attempt to provide a voluntary public financing option to candidates for state political office. Both on policy and constitutional law, I’m with the minority.
Admittedly, I see the other side abstract and practical argument. In the abstract, do we want government to begin picking and choosing funding rates for people who run for office? Yes, this could lead down a dangerous road. But then, again, isn’t one of the most compelling interests of government to take steps to ensure all voices are heard on the political stage—and aren’t there simple ways government could this without picking winners and losers? And isn’t the reverse, big money infecting the policies of both parties (or, more likely, the status quo donors freezing the legislative gears of needed reform) just as dangerous? And on the practical note, other countries with very healthy representative governments seem able to live and modify their electoral funding rules.
But, as any con-law professor will point out, the Constitution isn’t about policy: it’s about setting Do Not Go Zones for government action, whether it’s good policy or not. Why? Because some dead, white dudes thought it was really important for a republic to have a government of limited powers. And while I think con. law, when applied to political hot-button topics (class-action laws over gender and Walmart, picking election winners, and campaign finance) is simply two sets of ideological judges molesting terms of art for whatever policy-end they prefer, it’s the system we have and we’re likely stuck with it.
But, my rant aside, today the Supreme Court put up the red light to Arizona.
The part of the dissenting opinion I want to emphasize is its opening lines—which I think might come to be one of the most chuckled over lines in Election Law classes for years to come.
Imagine two States, each plagued by a corrupt political system. In both States, candidates for public office accept large campaign contributions in exchange for the promise that, after assuming office, they will rank the donors’ interests ahead of all others. As a result of these bargains, politicians ignore the public interest, sound public policy languishes, and the citizens lose confidence in their government.
Recognizing the cancerous effect of this corruption, voters of the first State, acting through referendum, enact several campaign finance measures previously approved by this Court. They cap campaign contributions; require disclosure of substantial donations; and create an optional public financing program that gives candidates a fixed public subsidy if they refrain from private fundraising.
But these measures do not work. Individuals who “bundle” campaign contributions become indispensable to candidates in need of money. Simple disclosure fails to prevent shady dealing. And candidates choose not to participate in the public financing system because the sums provided do not make them competitive with their privately financed opponents. So the State remains afflicted with corruption.
Voters of the second State, having witnessed this failure, take an ever-so-slightly different tack to cleaning up their political system. They too enact contribution limits and disclosure requirements. But they believe that the greatest hope of eliminating corruption lies in creating an effective public financing program, which will break candidates’ dependence on large donors and bundlers. These voters realize, based on the first State’s experience, that such a program will not work unless candidates agree to participate in it. And candidates will participate only if they know that they will receive sufficient funding to run competitive races. So the voters enact a program thatcarefully adjusts the money given to would-be officeholders, through the use of a matching funds mechanism, in order to provide this assurance. The program does not discriminate against any candidate or point of view, and it does not restrict any person’s ability to speak. In fact, by providing resources to many candidates, the program creates more speech and thereby broadens public debate.
And just as the voters had hoped, the program accomplishes its mission of restoring integrity to the political system. The second State rids itself of corruption…
Is this a joke? If this was written in one paragraph, I could let this pass as blantant—and perhaps valuable—attempt of the Justice attempting to speak to the general public about this very important issue. But this winding, drunk college debate-quality yawn-fest can be slayed quick easily:
Imagine two States, one with the U.S. Constitution, one without debating a constitutional question: which one should we listen to on constitutional matters?
Uff. I’ll take Scalia’s infuriatingly hilarious quips over this any day of the week.
