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Tuesday, September 26, 2023


Free speech should be financed freely

Talk about elections is heating up: UH student government elections recently ended, President Barack Obama has announced his bid for re-election and last week arguments before the Supreme Court sparked yet another debate over campaign financing.

Campaign finance has been a particularly contentious issue for the Supreme Court. The Court has issued several controversial opinions in recent years, and is likely to do so again this summer with the release of its opinion in Arizona Free Enterprise v. Bennett. This case deals with public funding for political candidates in state elections.

The outcome will establish guidelines for state and national campaign finance and create new standards for elections — standards that will eventually trickle down to local and student government elections.

Arizona Free Enterprise, a political action committee, argues that Arizona’s Citizens Clean Elections Act, which provides “matching funds” to candidates outspent by private individuals and institutions in state elections, violates a self-financed candidate’s First Amendment right to free speech. According to the argument, it penalizes and deters candidates from spending their money on speech freely, out of fear of financing their opponent’s campaign.

Ken Bennett, Arizona’s Secretary of State arguing against AFE, claims the ACCEA prevents corruption and increases competition by furnishing candidates with equal opportunities to present their opinions. He also argues that even if the ACCEA does impair speech, it does so constitutionally because it serves a “compelling government interest” by protecting democracy. In other words, he argues the ACCEA creates an “equal playing field,” which is precisely why Dr. John Samples, a campaign finance expert and professor of government at Johns Hopkins University, believes Bennett’s argument will inevitably fall short of convincing.

In an interview, Samples said, “A majority of the Supreme Court will probably see the Arizona law as an effort to level the electoral playing field. As such, they are likely to find it unconstitutional.”

Samples’ prediction is based on precedent established in Davis v. FEC, in which the Supreme Court ruled that states couldn’t raise contribution limits for candidates who are outspent by self-funded candidates without violating the First Amendment.

“Under the law, a candidate raising funds for an election campaign triggers public funding for the opponent. The financing of the election thus become more equal, the playing field more level. But that equalization also deters a candidate from raising more money, which in turn fosters less speech,” Samples said.

Samples’ prediction is likely to be correct. As a result of the precedent set in the Davis case, it is likely that the Court will rule that the ACCEA is unconstitutional. This does not mean, however, that the Court got it right the first time with Davis.

“A majority of the Court will likely find this reduction in speech by privately-financed candidates to be a violation of the First Amendment,” Samples said.

The self-financed candidate’s apprehension about spending money is based on a speculative determination about how another individual may behave. The self-financed candidate’s ability to speak freely, however, is still intact.

Since the ACCEA passed in 1998, campaign expenditures have consistently increased, undermining any presumption that it would decrease political speech. The act does not directly fund the speech of other candidates. The money can be used to fund any element of the campaign. It is the self-financed candidate, not the ACCEA, who willingly impairs his own speech out of a desire to limit competition.

We can also apply economic principles to this debate. Increased competition in markets will lead to the most efficient allocation of goods and produce the most social benefit. In markets, consumers will choose producers with the best products, unless information problems exist.

Regulations are created to correct market failure that occurs because of asymmetric information. The marketplace is analogous to this case: Government intervention is needed because the candidate with the best ideas or, product, should win, not the candidate who has the most money or access to information.

While we should all be somewhat apprehensive about allowing the government to provide subsidies for political candidates, the ACCEA provides money only for the purpose of “matching” funds. The government has no discretion over which candidates receive money other than calculating which candidate spends more.

Justice Roberts recently wrote, “The First Amendment reflects a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open.”

Making sure that candidates are equally funded in elections does not deter the debate over public issues; it does exactly the opposite by allowing constituents to hear both sides of a policy debate. Thus, Arizona’s Clean Elections Act cultivates healthy, “robust,” and “wide-open” political debate.

Candidates should be elected on the basis of their political values, not their pocketbooks and ability to buy airtime. If a candidate truly has the support of constituents, he should not be concerned about his opponents receiving equal exposure.

A decision against Bennett, or one that finds the ACCEA unconstitutional, would be a step in the wrong direction for this country.

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