March 28, 2011 - This morning I had the opportunity to visit the US Supreme Court as they deliberated Arizona's matching fund provision of their clean elections law. This has implications for Maine as Arizona's law was modeled after Maine's which passed at referendum in 1996 and while I know that I am not Nina Totenberg of NPR here is my take.
Candidates in Maine have been using clean elections for 10 years with participation rates around 80%. Among those candidates running in Maine in 2010, 94% of Senate Republicans and 82% of Senate Democrats used Maine Clean Election Act (MCEA) funding. In running for the Maine State House of Representatives 89% of Democrats and 68% of Republicans used MCEA funding.
The gist of the Arizona Free Enterprise Club/McComish position is that their speech is chilled when they know that their expenditures will trigger matching funds for their opponent(s). Arizona Free Enterprise Club/McComish argued that the trigger was unfair when their political speech lead to their political goals being undercut.
After sitting through an hour of questioning by 8 of the 9 Justices (Clarence Thomas was again silent) I am convinced that the Arizona Free Enterprise Club/McComish is simply annoyed rather than actually burdened. Ruth Bader Ginsberg wasted no time in diving right in, attempting to show that both parties agreed that Clean Elections systems were constitutional and the Arizona Free Enterprise Club/McComish Clubs' lawyer clarified that they were only concerned with the matching funds. Elena Kagen dominated the next 10 minutes (paraphrasing, here): Wouldn't you rather talk than be silent? As well as clarifying that she saw matching funds as a subsidy, not a penalty. Doesn't that lead to more speech all around, is that right?
Justice Scalia interjected a scenario: What if we fined all political speech $500. People would still speak and pay the fine.
Both Justices Kennedy and Alito had lines of questioning around: What if states could estimate the average cost of the election up front and pay one lump sum. Would that be constitutional?
Arizona Free Enterprise Club/McComish' lawyer replied in the affirmative.
Justice Kagen then interjected quickly: Well isn't that the same thing? The matching fund system is just a more accurate way to do that.
Justice Sonia Sotomayer continued, generally saying: The lower courts saw no evidence that any candidate didn't spend or fundraise. No candidate stopped speaking.
Response: I disagree, candidates did stop speaking, thought twice or spent late to avoid triggering matching funds. This is a burden on speech.
Justice Sotomayer: They choose to spend or raise and just found the advantage not to. Nobody is telling you not to speak or spend.
The last lines of questioning before the lawyers switched sides to give Chief Justice Roberts his chance to question the constitutionality of matching funds was from justice Scalia: What if I told you that you could file another brief and your opponent couldn't. Would you?
Arizona Free Enterprise Club/McComish' lawyer replied, "Yes."
Justice Alito: What if you could file but if you did your opponent would also be able to. Wouldn't you do it anyway believing your arguments to be persuasive or the chance to counter too important?
There was some discussion around this theme which I found compelling. Even though you might think twice about spending or speaking you were still free to do it and in most cases you still would if you believed in your positions.
They then switched sides with the lawyers representing Bennett and the Arizona law taking the podium.
Chief Justice Roberts dominated much of the questioning seeming just as annoyed with matching funds as Arizona Free Enterprise Club/McComish but again in my mind failing to show any real burden to speech but leaving little doubt to his position on the case.
Both Chief Justice Roberts and Jusice Alito had lines of questioning around: what if I spent 10k knowing that if I did all three of my opponents would get 10k so my 10k would lead to 30k certainly then I would think twice.
Justice Alito also said: how does matching funds deal with corruption.
Answer: More candidates, more competition, more speech, less corruption.
Justice Alito then asked questions along the lines of: as someone making an independent expenditure I care about the issue how does matching funds impact my spending?
Answer: if you oppose a participating candidate the candidate can only respond with matching funds which are limited to a cap. If the other way around the candidate can respond by raising money from supporters, a party, spend their own and respond with potentially unlimited resource.
Justice Breyer asked a question concerning why candidates choose the system and also cautioned: We should be very careful before tinkering with a piece of it. The reply was that matching funds lead to more speech and ensure that candidates will take the system knowing that if they follow the strict guidelines that they will still be able to respond to higher spending opposition and independent expenditures. Let's be clear spending only triggers matching funds up to a cap. There is an overall cap which participating candidates signup for which is an ultimate limit on spending. Candidates that are in the public financing system agree to this absolute limit in spending. Matching funds encourage participation but candidates that participate can still be outspent.
Justice Kagen added: Candidates are free to choose if they want to be part of public funding or not they have the choice.
Then it abruptly ended and we filed out into the hall.
It was an interesting day to be at the Supreme Court and as I headed out of the court room and down the hall to get my cell phone and my Maine Citizens for Clean Elections button out of the tiny lockers and out into the bright sun I thought: I think this will go 5-4 in favor of maintaining clean elections with matching funds.
Jesse Graham is the Executive Director of Maine People's Alliance and the Maine People's Resource Center. He is also a Board Member of Maine Citizens for Clean Elections.