The Chilling Effect of Campaign Subsidies Aimed at Equalizing Speech

By Jacob Sullum (Archive) · Wednesday, June 16, 2010

Imagine you are competing in a marathon. Every time you pull into the lead, someone picks up the other runners in a van and lets them off next to you. When you object, he says you are still free to run as hard as you want.

That is how supporters of Arizona's campaign finance system respond to candidates who complain that it burdens their freedom of speech by providing "matching funds" to their opponents.

The Supreme Court, which last week blocked those subsidies as it considers a constitutional challenge to them, should overturn this misguided attempt to equalize speech by controlling campaign spending.

Because communicating a message to voters requires money, it is well established that direct restrictions on campaign spending violate the First Amendment. Arizona's Citizens Clean Elections Act therefore seeks to restrict campaign spending indirectly.

The law sets an initial level of public funding for each state election. Participating candidates get a check for that amount. They also receive matching funds if their nonparticipating opponents spend more.

For a candidate who prefers forcibly extracting subsidies from his fellow citizens to seeking their voluntary support, this system offers a pretty good deal. He gets a dollar for each dollar spent by his privately funded opponents or by independent groups that support them.

From the perspective of a privately funded candidate, the system does not look so good, especially if he faces multiple opponents, in which case each dollar he spends to get elected may trigger three or four dollars aimed at defeating him. Worse, money spent by groups he does not control also can trigger more subsidies for his opponents. For their part, independent groups have to think twice before criticizing a publicly funded candidate, because they know that doing so will give him a financial boost.

The upshot is that the Clean Elections Act deters speech by increasing its cost and reducing its effectiveness. Several candidates for the state legislature, joined by the Arizona Free Enterprise Club and the Arizona Taxpayers Action Committee, cite this chilling effect in their challenge to the law.

In January, U.S. District Judge Roslyn Silver agreed that Arizona's system imposes "a substantial burden" on freedom of speech. She noted that it resembles a provision of federal law that the Supreme Court overturned in 2008: the "Millionaire's Amendment," which raised contribution limits for congressional candidates facing wealthy, self-funded opponents.

"If the mere potential for your opponent to raise additional funds is a substantial burden," she wrote, "the granting of additional funds to your opponent must also be a burden."

Furthermore, Silver said, this burden is not justified by the one goal the Supreme Court has recognized as a legitimate rationale for campaign finance regulations: preventing corruption or the appearance of corruption. She said the disconnect between means and ends is clear from the fact that Arizona candidates receive matching funds even when they face opponents who finance their own campaigns, who can hardly be accused of corrupting themselves.

Last month, a federal appeals court overturned Silver's ruling, dismissing the burden imposed by Arizona's system as "minimal." When the Supreme Court overrode that decision and restored Silver's injunction against the matching funds, the criticism it provoked showed that Arizona's election cleanup goes beyond removing the taint of corruption.

"Before, when there were nasty, misleading attack ads, we would provide matching funds so the record could be corrected," said Todd Lang, executive director of the commission that oversees the "clean elections" system. "Now that won't happen."

While Lang's faith in the honesty of publicly funded candidates is touching, there is no guarantee that they will use their free money to rebut misleading attacks with the facts. They might instead rebut valid criticism with obfuscation or launch misleading attacks of their own.

Still, Lang's ambition to help the truth emerge through strategically placed subsidies confirms that Arizona is not fighting corruption. It is using corruption as an excuse for regulating political debate.

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