Supreme Court Term In Review Part III: Who Cares About Corruption In Elections?

The surest way to fight corrupt elections is by publicly financing campaigns. Public financing laws ask candidates to trade away their ability to raise campaign donations — an invitation to quid pro quo corruption — in return for a chunk of public funds that will enable them to run a campaign without outside influence. Uncle Sam funds their campaign so that Phillip Morris (or at least its executives) doesn’t have to.

Today’s 5–4 Supreme Court decision in Arizona Free Enterprise Club v. Bennett, however, could eliminate public financing as a meaningful way to fight corruption — forcing candidates out of public financing and back into the money machine of private donors and constant fundraisers.

Candidates will only agree to accept public financing if it won’t prevent them from running a competitive race. If a state offers only a few thousand dollars in public funds to a candidate whose opponent is backed by tens of millions of corporate dollars, then the non-corporate candidate will have no choice but to raise money on their own. To defend against this problem, Arizona developed a two-tiered public financing system. Candidates receive additional funds if their opponent or corporate interest groups overwhelm them with attack ads, and thus candidates who are determined not to be tainted by the corrupting influence of major donors are not left defenseless.

Arizona Free Enterprise, however, finds this interest in fighting corruption to be entirely uncompelling. As Chief Justice Roberts’ opinion for the Court explains, the real thing America needs to be wary of is big government discouraging wealthy individuals and corporations from saying whatever they want:

[T]he matching funds provision “imposes an unprecedented penalty on any candidate who robustly exercises [his] First Amendment right[s].” Under that provision, “the vigorous exercise of the right to use personal funds to finance campaign speech” leads to “advantages for opponents in the competitive context of electoral politics.”

Once a privately financed candidate has raised or spent more than the State’s initial grant to a publicly financed candidate, each personal dollar spent by the privately financed candidate results in an award of almost one additional dollar to his opponent. That plainly forces the privately financed candidate to “shoulder a special and potentially significant burden” when choosing to exercise his First Amendment right to spend funds on behalf of his candidacy.

So public financing laws can technically remain, but Arizona’s attempt to protect publicly financed candidates from a wave of corporate attack ads is absolutely forbidden. Moreover, because few candidates can know in advance whether the will face an onslaught of hostile corporate ads, most candidates will hedge their bets and avoid the risk of public financing.

Today’s decision is the hard uppercut following Citizens United’s body blow to American democracy. Without unlimited corporate money in elections, most candidates could afford to take public funds unless their opponent had unusual access to wealth or wealthy donors. In the post-Citizens United America, however, no one is safe from corporate America’s nearly bottomless pool of potential campaign expenditures.