The Supreme Court majority that in recent years has struck down campaign spending restrictions as assaults on free speech seemed ready Monday to do the same with Arizonaâ€™s public financing plan.
Under Chief Justice John G. Roberts Jr. , the courtâ€™s conservative majority has declared unconstitutional major portions of the McCain-Feingold campaign finance act. And the courtâ€™s loosening of spending constraints on corporations and unions in last yearâ€™sÂ Citizens United v. Federal Election Commission roiled the midterm elections.
â€œDo you think it would be a fair characterization of this law to say that its purpose and its effect are to produce less speech in political campaigns?â€ Justice Anthony M. KennedyÂ asked the lawyer for groups challenging Arizonaâ€™s Citizens Clean Elections Act.
â€œI believe that that is a goal, and I believe thatâ€™s the effect,â€ answered William R. Maurer, a lawyer for the Institute for Justice, which represented independent groups objecting to the lawâ€™s restrictions.
The case raises a new issue for the court. After a wave of political corruption in the state capital, Arizona voters in 1998 approved a public financing system for statewide and legislative candidates. It grants qualified candidates an initial sum and then provides â€œmatching fundsâ€ based on the spending of their privately financed opponents who spend more. Candidates also are granted money if an independent group spends against them or for their opponents.
Maurer told the court that the case was governed by a 2008 Supreme Court decision, in which the court by a 5 to 4 vote struck down the â€œmillionaireâ€™s amendmentâ€ in the McCain-Feingold campaign finance act. That provision allowed a congressional candidate to raise money in excess of contribution limits if his or her opponent was spending large sums of personal wealth.
The Arizona law similarly burdens a privately funded candidate, Maurer said, because it turns â€œmy act of speaking into the vehicle by which my political opponents benefit with direct government subsidies.â€
Maurer received strong resistance from Justice Elena Kagan. She had argued theÂ Citizens United case as President Obamaâ€™s solicitor general and was on the losing side of the courtâ€™s 5 to 4 decision.
Kagan challenged Maurerâ€™s contention that the purpose of Arizonaâ€™s law was to level the electoral playing field â€” something the court has said is not sufficient for restricting political spending and speech â€” rather than to combat corruption.
â€œThatâ€™s what the purpose of all public financing systems are,â€ Kagan said. She added that for 40 years such systems â€œhave been based upon the idea that when there is a lot of private money floating around the political system, that candidates and then public officeholders get beholden to various people who are giving that money and make actions based on how much they receive from those people.â€
Kaganâ€™s support of campaign finance restrictions seemed as strong as that of the justice she replaced, John Paul Stevens. But that does not change the balance on the court.
The justices who have voted to strike down spending restrictions sharply questioned Bradley S. Phillips, a Los Angeles lawyer representing Arizona, after his opening statement that the law results â€œin more speech and more electoral competition and directly furthers the governmentâ€™s compelling interest in combating real and apparent corruption in politics.â€
Roberts, who did not ask Maurer a question, seemed particularly concerned that the law seemed to discourage spending by independent expenditure groups.Â â€œIf you knew that a $10,000 expenditure that you would make that would support a candidate would result in $30,000, $40,000, $50,000, depending on how many opposition candidates there were available for them, wouldnâ€™t you think twice about it?â€ Roberts asked.
â€œI think thinking twice is not a severe burden,â€ Phillips responded.
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