Yesterday’s oral argument before the Supreme Court in McComish v. Bennett, previewed here, revealed a deep ideological divide among the Justices.  The five conservative Justices who, one year ago, gutted important parts of the federal McCain-Feingold Act and held that corporations have the same right to spend unlimited amounts of cash to influence the outcome of elections, now seem poised to invalidate Arizona’s Clean Elections Act, a thoughtful effort by the people of Arizona to combat corruption without imposing any actual limitations on the rights of any individuals or groups to speak their mind on the issues of the day.  Incredibly, a majority of the Court seems prepared to rule that Arizona’s system for public financing – which adds to, not subtracts from, the public debate – violates freedom of speech.

The case for upholding Arizona’s Clean Elections Act is a powerful one, rooted both in constitutional text and history and precedent.  The Act, approved by the voters in the wake of the worst public corruption scandals in the state’s history, does not “abridge” the freedom of speech at all; instead, it has provided public funds to candidates to enable more speech, freeing candidates who chose to participate in the program from the corrupting influence of high-dollar donors.  In enacting an innovative solution to the problem of government corruption, the people of Arizona were following in the footsteps of the Framers, who designed the Constitution to stamp out corruption.  As detailed in the amicus brief that CAC filed in this case on behalf of renowned constitutional law professors – Bruce Ackerman of Yale, Lawrence Lessig of Harvard, Zephyr Teachout of Fordham, and Adam Winkler of UCLA – the Framers recognized that corruption was insidious, and that governments needed broad authority to root it out.  More than thirty years ago, in line with the Framers’ teachings, the Supreme Court  in Buckley v. Valeo upheld public financing as a constitutional means of combating corruption and encouraging the robust debate the First Amendment protects.

Many of these arguments were made powerfully in questioning by Justices Ginsburg, Sotomayor, and Kagan, but they were brushed aside by the Court’s conservatives, who treated the Act as dead on arrival.  Paying lip service to the interest in combating corruption that is at the heart of the Constitution as well as the Arizona law, Justices Kennedy, Scalia, and the Chief Justice treated the Arizona law as a purposeful attempt to suppress speech and level the playing field between the haves and have-nots.  While all the Justices agreed that publicly financed candidates could be paid a lump sum up front, the Court’s five conservative Justices seemed likely to rule that Arizona’s use of triggered matching funds imposes an unconstitutional burden on speech.  Justice Kennedy summed up the reactions of the Court’s conservatives when he suggested that a “fair characterization” of the law was that “its purpose and effect” were to “produce less speech in political campaigns.”  Blithely ignoring the record evidence showing that the Arizona law had led to more speech, more debate, and more political competition, all the Court’s conservatives – except the perpetually silent Justice Thomas – asserted again and again, based on little more than their own speculation, that the law would curb speech.

The upshot is that, short of a very unlikely change in the thinking by one of the Justices, the Court is likely to strike down the Clean Elections Act on its face as an infringement of the right of freedom of speech, even though the Act subsidizes speech and contains no restraints at all on candidates who wish to raise and spend unlimited sums of money to win an election contest.  As Adam Liptak observed in the New York Times, if the Justices hold that the Act is unconstitutional, it will make the fifth straight ruling of the Roberts Court striking down campaign finance legislation.  The Citizens United juggernaut rolls on, with no signs of slowing down.