Gavel Grab

Commentary: High Court Ruling 'Actually Stifles Speech'

The Supreme Court’s invalidating a key public financing provision in Arizona law represented a free speech loss, although the majority opinion framed the ruling otherwise.

Mimi Marziani of the Brennan Center for Justice offered that analysis in a National Law Journal commentary entitled “A loss for ‘We the people’: The high court’s ruling in the Arizona public financing case is no win for free speech; it actually stifles speech by creating a new right to speak without response.”

She was writing about Arizona Free Enterprise Club v. Bennett. The high court struck down a provision in Arizona’s law that furnished extra taxpayer dollars to participating candidates when privately funded foes or independent groups spent more. It was called a “trigger funds” provision. Marziani concluded:

“The majority opinion largely ignores that Arizona’s program was enacted to curb political corruption by ensuring that candidates owe their campaign success to taxpayers, not fat-cat donors. [Chief Justice John] Roberts also overlooks that public financing gives regular folks — those of us without corporate connections or trust funds — the ability to compete for political office, thereby broadening the choices available to voters. Arizona’s interest in bettering its democracy was utterly disregarded.

“Instead, just as it did in last year’s Citizens United decision, the Roberts Court used the First Amendment to shield the most powerful voices — and silence everyone else. As [Justice Elena] Kagan admonished, ‘Truly, democracy is not a game.’ She’s right. But, unfortunately, this time, ‘We the People’ lost.”

Meanwhile there were echoes in a Palm Beach Post commentary by Fred Markham of the Florida Initiative for Electoral Reform. The op-ed was headlined, “Making political office the exclusive domain of the wealthy.” Markham commented after a federal judge recently struck down a provision in Florida’s campaign law that mirrored the Arizona provision.

You can learn more about Arizona Free Enterprise Club from earlier Gavel Grab posts, or by visiting the JAS issues page about it or by reading an amicus brief submitted by JAS.


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