Earlier this week, the Supreme Court struck down an Arizona matching funds election law. Here's the newsy version, from Inside Tuscon Business and the Christian Science Monitor:
In a 5-4 decision, the U.S. Supreme Court invalidated a key part of Arizona's so-called Clean Elections program that triggered state payments of matching funds for publicly financed candidates whenever their privately funded opponents outspent them.So you get the bones of the argument. Roberts and the Conservative majority think that by providing matching funds from state coffers, the state chills the speech of non-state-financed candidates.
The high court ruled Monday the nearly dollar-for-dollar matching-funds mechanism violated the free speech protections of the First Amendment by deterring or diminishing the effectiveness of the speech of candidates who opt out of the public finance system.
"The whole point of the First Amendment is to protect speakers against unjustified government restrictions on speech," Chief Justice John Roberts wrote in the majority opinion. "When it comes to speech, the speaker is sovereign."
The decision marks the third time in four years the high court has invalidated campaign finance reform laws. ... In a dissent, Justice Elena Kagan said the majority was wrong in finding that the Arizona provision posed a burden on political speech. She said the matching-funds mechanism provides a viewpoint-neutral subsidy to political candidates and that it fosters more speech, not less.
That's one way to read it — now for "speech" in the last sentence, substitute "money" and for "non-state-financed" substitute "billionaire-financed" and you see where the fault lines are. Here's a Wall Street Journal columnist defending Roberts (my emphasis):
As we noted Tuesday, the 5-4 decision struck down an Arizona law that penalized political speech by subsidizing opposing speech: If, say, you gave $100 of your own money to a Democratic candidate for state Senate, Arizona would take $100 from the taxpayers and give it to the Republican candidate. The provision applied to "independent" expenditures too, so that if you gave $100 to an advocacy group campaigning on behalf of the Democrat, the Republican's campaign would get $100 in tax money to spend as it saw fit--even though the Democratic candidate, by law, was forbidden to influence the advocacy group's efforts.Justice Kagan not only disagreed, she vigorously disagreed.
With that intro, here's Chris Hayes and Dahlia Lithwick — an excellent discussion:
Note how Chris's framing — the state "gives you a gun" if your opponent brings a gun to your knife-fight — is completely at odds with the WSJ writer's framing quoted above. The original sin, in this case, is the previously-established "money equals speech" position of the Court. The facts on the ground are different, of course — money equals corruption, as noted in the discussion.
As I've written earlier, and as Thom Hartmann has argued in his book Unequal Protection: How Corporations Became People, the real Original Sin may have been Marbury v. Madison, the post-Constitutional decision in which the Court assigned itself the right to trump legislatures, with no real offsetting or balancing power.
GP
