Some Observations from the McCormish Oral Argument

The Supreme Court heard oral arguments yesterday on the constitutionality of Arizona's public finance scheme, Arizona Free Speech v. Bennett and McComish v. Bennett.  Arizona provides public financing for state office seekers who agree not to accept private contributions.  The State provides an initial lump sum to fund the public candidates (the ones who receives state funds) .  The State also provides supplementary "matching funds" if the expenditures by the privately funded candidates (combined with independent expenditures in favor of the privately funded candidates or against the public candidate) exceeds the initial lump sum.  Matching funds are capped to three times the initial grant.  The constitutional question is whether the matching funds violate the First Amendment rights of private candidates.

The plaintiffs' primary argument is that the matching funds burden their First Amendment rights because it is their spending that triggers the match to their opponents.  As the William Maurer, counsel for the plaintiffs, phrased the point at yesterday's oral arguments: "What this case is about is whether the government can turn my act of speaking into the vehicle by which my political opponents benefit with direct government subsidies."

A few observations:

First, it seems to me that Mr. Maurer won the framing battle.  The oral argument proceeded on Mr. Maurer's terms and if transcripts of the oral arguments is a useful indication (very big "if"), the four of the five conservative justices who spoke (Justice Thomas was not recorded as having said anything) were sympathetic to the plaintiffs' cause and articulation of the burden to their speech.

Second, the plaintiffs' conception of a constitutional burden is quite odd.  Consider this example.  Suppose the government says "for every campaign poster printed by the private plaintiff, we will provide funds to the public candidate to match."  Is the private candidate constitutionally burdened by this rule?  Or consider this example.  Suppose that the state says "we worry about the corrosive effect of for-profit media, we will provide state funds to anyone who wants to run a newspaper and we will match the expenditures of for-profit newspapers." Or what about government speech itself, which takes a position and renders the contrary position less effective.  Thus when the government says "smoking is bad for you," under the plaintiffs' theory, that ought to violate the First Amendment right of cigarette manufacturers.


Third, If the plaintiffs' are right about the constitutional effect of the matching grant, I cannot figure out why the logical conclusion of the plaintiffs' argument does not mean the end of public finance.  Mr. Maurer conceded that there would not be a constitutional problem if Arizona provided a lump sum payment up front that was treble the amount of the initial grant.  But that concession does not make any sense if his formulation of the problem is correct.   If providing a supplemental matching grant to the public candidate to enable her to compete against the private candidate is a burden on the private candidate, then providing the initial public support is also a burden on the private candidate and an even greater burden.  If you're a private candidate who  is also a good fundraiser and could win a primary or an election if your opponent were not receiving public funds, why is the subsidy itself not the problem as opposed to the supplement?

The whole purpose of a public finance scheme is to "turn [the private speaker's] act of speaking into the vehicle by which [his or her] political opponents benefit with direct subsidy."  The logic of Arizona's public finance scheme (or any mixed campaign finance system in which candidates can opt between private money and public money) is to subsidize public candidates because of the existence of private financing.  This is another way of looking at the point pressed by Justices Ginsburg and Kagan. If Arizona can provide a lump sum payment, why can't it more accurately determine how much money the public candidate will need to run an effective campaign by saying to the public candidate, "we will give you roughly the same amount of money that your privately opponent is spending." It strikes me as bizarre that the First Amendment rights of the private candidate are violated when the state, as part of a public finance scheme, gives the publicly-financed candidate roughly the same amount of money that the private candidate spends in order to make sure that the public candidate can adequately finance her campaign.  If providing money to the public candidate to match the spending the private candidate is a violation of the private candidate's First Amendment rights, then public financing itself, which serves as a substitute for private financing, is a violation of the private candidate's First Amendment rights.  Welcome Alice, this is in Wonderland.