A loss for ‘We the people’
This is decidedly NOT good news for the First Amendment if I correctly understand everything the author is saying. Perhaps Lawhawk or someone will chime in.
I wonder if the Right will start screaming bloody murder about “activist judges” when it comes to Roberts in this case? Somehow I doubt it.
On the last day of its 2010-11 term, the U.S. Supreme Court struck down a critical part of an Arizona law that awarded eligible candidates public funds to run their campaigns for state office, effectively killing the state’s public-financing program. To many, this news is a surprise: Public financing has historically been praised by federal courts for furthering constitutionally cherished values of equality, free speech and political participation. Indeed, in Buckley v. Valeo, a famous 1976 opinion, the Supreme Court stated explicitly that such programs “facilitate and enlarge public discussion and participation in the electoral process, goals vital to a self-governing people.”
So why, you may ask, did a narrow majority of the current Court, led by Chief Justice John Roberts Jr., disrupt Arizona’s long-standing and widely popular program? The answer, unfortunately, cannot be found in First Amendment law or in the facts of the Arizona case.
[…]
Arizona’s program was clearly nondiscriminatory — it was open to any candidate who wanted to play by its rules. And, of course, it did not restrict the speech of those who chose not to participate: Nonparticipants remained free to raise and spend unlimited amounts and, according to the case’s clear evidentiary record, they did exactly that. The trigger funds simply gave publicly funded candidates the chance to fight back in competitive races.
So again, where’s the First Amendment injury?
To justify the result in Arizona Free Enterprise Club, Roberts was forced to create a new right — the right to speak without response. Although he paints trigger funds as providing a competitive advantage to publicly funded candidates vis-à-vis their privately funded counterparts, this does not accord with political reality. In fact, the candidate who agrees to rely solely on public funds simultaneously agrees to shoulder the ultimate disadvantage; when her public funds are capped, any well-endowed, privately financed adversary will just keep going.
[…]
