Gavel Grab

Analyst: Finance Ruling has 'Surprisingly Good News'

A prominent election law analyst calls the Supreme Court’s Arizona Free Enterprise Club v. Bennett ruling a clear defeat for campaign finance proponents, yet he finds “surprisingly good news” in it.

Richard L. Hasen, a law professor who runs Election Law Blog, identifies the following “unexpected” good news in a commentary about the Arizona case that he wrote today for the New Republic:

  • “First, the Roberts Court seems to have retreated from the suggestion that all campaign finance laws, aside from disclosure, are in constitutional trouble.” The high court confirmed that its landmark Citizens United decision last year did not invalidate federal law regarding campaign contribution limits, he says.
  • Justice Elena Kagan “has emerged as a forceful intellectual voice for the constitutionality of reasonable campaign finance regulation.” She is “a pugnacious, take-no-prisoners’ writer on an issue about which she feels passionately.” Justice Kagan wrote the dissent in Arizona Free Enterprise Club v. Bennett, which was consolidated with another case, McComish v. Bennett.
  • The court “did not level a death blow to public financing laws. Instead, it said that the decision of cities, states, or Congress enact public financing is ‘not our business.’”

Hasen concluded, “[W]e may not be seeing the full end of campaign finance law, at least not yet, and Justice Kagan has shown that the other side won’t go down without a fight.”

From a different vantage point, however, former Federal Election Commissioner Hans von Spakovsky says in a Heritage Foundation blog that the ruling “is in the best tradition of American liberty and freedom.”

Bradley A. Smith, a former Federal Election Commission chair, applauds Arizona Free Enterprise Club and sees in it a step toward a doctrine of what he calls “separation of campaign and state.”

Smith explains in a New York Times “Room for Debate” feature, “It is dangerous to have the incumbent government directly involved in shaping the quantity and substance of the very debate intended to determine how voters judge that government’s performance on election day.”

Former Solicitor General Paul Clement suggests in Slate that the high court’s “majority seems undeterred, maybe even energized, by criticism of its First Amendment holdings in the campaign-finance realm.” He alluded to the criticism it received over Citizens United, in which the same five justices comprised the majority.

In the “Room for Debate” feature of the Times, other analysts included Guy-Uriel Charles of Duke Law Center, “An Ideological Battle;” Zephyr Teachout, Fordham University School of Law, “What the Court Did and Didn’t Do;” and Hasen, “New York City as a Model?”

You can learn more about the Supreme Court’s opinion Monday from Gavel Grab.

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  1. Supreme Court Strikes Down Matching Funds For Public Financing | judgesonmerit.org June 28th, 2011 2:33 pm

    […] Reactions to the ruling are mixed, and its implications are still being teased out. While the opinion was careful to point out that public financing of election isn’t automatically unconstitutional, it’s clear that this Supreme Court remains extremely skeptical of election reforms that seek to limit the influence of campaign donations on politics, and is likely to strike down any measure that creates a disincentive for a candidate to raise and spend money. […]

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