As part of the Institute for Justice’s 30th Anniversary celebration (1991-2021), our “IJ Works Wonders” series looks back on IJ cases that fundamentally transformed the law and the lives of our clients.
Legend has it that heavy metal band Black Sabbath sacked its lead singer during the mixing of an album because he was sneaking into the studio at night and raising the volume of his vocals. While this was too much for the band, in 1998, turning up a preferred speaker’s voice became the official policy for the state of Arizona in the guise of campaign finance “reform.” That was the year the people of Arizona narrowly approved an initiative called the Arizona Citizens Clean Elections Act. The Act created a system for public (that is, taxpayer) funding of state-level political campaigns. While welfare for politicians is bad enough, the Act was especially troubling because it sought to “level the playing field” among political speakers by providing public funds to government-funded candidates every time a privately funded candidate or his or her supporters spoke more than the government preferred. Like Black Sabbath’s singer, the government was playing sound engineer, nudging the volume up for its chosen speakers and diminishing the sounds of others.
Under Arizona’s system, candidates could run as a traditional candidate by raising funds from private sources or a government-financed candidate. If a candidate chose to receive public money, he had to limit how much money he would spend on his campaign. To make this deal attractive, the Act provided that if a traditional candidate or an independent group supporting her raised or spent more than the cap on a publicly funded candidate, the government would send a “matching funds” check to all her government-funded opponents. This created a multiplier effect. If she continued to raise money—or if an outside group spent money to run independent ads supporting her campaign—the government cut more checks. In other words, traditional candidates and their supporters were financing their opponents’ attempt to defeat them every time they spoke more than the government wanted.
The result was that the Act discouraged speech by, or in support of, traditionally funded candidates. Further, the Act caused speakers to change whether, when, about what, and how often they spoke. This was not a bug of the system—it was what the proponents specifically designed the Act to do. During the initiative campaign, proponents of the law promoted it as a means to limit spending in elections, drive out speakers with whom they disagreed, and skew the political playing field to favor government-funded candidates.
Under the First Amendment, however, the government has no role in determining who is speaking too much or too little in a political campaign. That is why the Institute for Justice filed suit on behalf of three candidates running traditional campaigns and two independent groups supporting these candidates to sue the state for violating their right to free expression. For years, IJ and its clients fought in court against the idea that the government may inject its judgments about how an election should turn out. We won at the district court and then lost at the 9th U.S. Circuit Court of Appeals, which found that the Act—specifically designed to strengthen publicly financed candidates at the expense of traditional candidates—did not violate the First Amendment. We then sought review at the U.S. Supreme Court, which accepted the case.
In June 2011, the Court released its opinion. It concluded that the Act violated the First Amendment. It also clearly and unequivocally rejected the idea that the government may play a role in determining the outcome of an election. Not only did the Court reject the idea that this was a sufficient justification to burden speech, but it also specifically rejected it as a legitimate justification at all.
Federal, state and local government officials still believe that they should use public money to make elections more “fair.” With the Supreme Court’s decision in the Clean Elections case, however, these efforts cannot burden the speech of those choose not to take the government’s money. And speakers across the country can now rely on the Court’s decision to ensure that, while our elections may sometimes be flawed, divisive and sloppy, the outcome is determined by the voters and not the machinations of government bureaucrats.
Bill Maurer is a managing attorney with the Institute for Justice and successfully argued against Arizona’s “Clean Elections” Act before the U.S. Supreme Court.
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Author: Bill Maurer
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