High court should toss elections act

Freedom New Mexico

The U.S. Supreme Court seems to be rolling back the restrictions on free speech, especially as it relates to political campaigns, which had begun to be imposed in 1974 after the Watergate scandal. The new development occurred Monday, when the court heard arguments concerning Arizona’s so-called Clean Elections Act, passed by the state’s voters in 1998, which provides for public-funded elections. A ruling is expected later this year.

Opposition to the Arizona law is being led by the Goldwater Institute of Phoenix. Nick Dranias, director of the institute’s Center for Constitutional Government, was in the high court during the arguments. He told us his perception was that “the court saw through the arguments of the state of Arizona that the law is constitutional. The court is clear that a law that punishes a candidate by distributing money to his opponent is unconstitutional.”

It seemed to Dranias that a majority of justices is forming to reject the Arizona law. This would be similar to the Citizens United vs. Federal Election Commission decision of January 2010, when the court overturned federal restrictions on campaign spending by corporations. In that 5-4 decision (for the main parts of the case), the majority was comprised of Chief Justice John Roberts and justices Antonin Scalia, Clarence Thomas, Anthony Kennedy and Samuel Alito.

Justice Kennedy wrote in the majority opinion: “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”

Dranias said an important point was brought up Monday by Justice Scalia, who asked: Would a $500 fine against a candidate be unconstitutional? The question was rhetorical because the obvious answer is “Yes.” Justice Scalia’s point was that Arizona does precisely that by giving tax money to opposition candidates. It’s a penalty imposed on one candidate to benefit another.

We are sympathetic to the argument that special-interest money holds too much sway in politics today, but the solution lies not in new restrictions on candidates, but in reducing an ever-expanding government, and thus the impulse to influence government decisions. We see little or no evidence to suggest that post-1974 campaign finance limits have created a more responsive, less-wasteful or less-corrupt political system.

We also object to the Arizona law in this way: If your cause raised more money than your opponent, your own tax money would be taken from you and given to your opponent to equalize funding.

A better approach would be full donor transparency — timely reporting the amount and source of contributions on the Internet, then letting voters decide — as the best safeguard of First Amendment freedoms, particularly those that relate to political campaigns.