IJ Scores a Major Free Speech Victory

By Bill Maurer

On June 27, the Institute for Justice scored a major victory for free speech and political participation when the U.S. Supreme Court ruled that the “matching funds” provision of Arizona’s so-called “Clean Elections” Act is unconstitutional. This ruling brought an end to a system that manipulated election speech to favor candidates who participated in a public funding system over those who chose to forgo taxpayer dollars and instead raise funds through voluntary contributions. The ruling in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett also brought to an end a case first filed by IJ more than seven years ago—our very first campaign finance case.

IJ represented independent political groups and traditionally funded political candidates that had been subjected to a system in which every dollar they spent above a government-dictated amount resulted in the government giving additional funds to their electoral opponents. As the Court recognized, “That cash subsidy, conferred in response to political speech, penalizes speech.” The matching funds provision was a bald attempt by the state to manipulate speech by forcing speakers to either trigger matching funds to their opponents, change their message, or refrain from speaking altogether. According to the Court, “forcing that choice . . . certainly contravenes ‘the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message.’”

This forced choice, the Court further recognized, had dire consequences. It had caused IJ’s clients and others to fundamentally change how they participated in politics. And, quoting research by University of Rochester political scientist David Primo—author of original strategic research on the program and IJ’s expert in the case—the Court recognized that the forced choice also caused “privately financed candidates facing the prospect of triggering matching funds [to change] the timing of their fundraising activities, the timing of their expenditures, and, thus, their overall campaign strategy” to avoid sending additional funds to opponents.

Moreover, the Court recognized that the end result of the matching funds was an overall reduction in political speech, for, “If the matching funds provision achieves its professed goal and causes candidates to switch to public financing, . . . there will be less speech: no spending above the initial state-set amount by formerly privately financed candidates, and no associated matching funds for anyone. Not only that, the level of speech will depend on the State’s judgment of the desirable amount, an amount tethered to available (and often scarce) state resources.”

This victory is all the better because of the changes in the courts’ treatment of campaign finance laws since this case was first launched. Back in 2004, courts were rarely engaged when litigants challenged campaign finance laws for violating their free speech and association rights—they would simply rubber-stamp whatever the government wanted. Indeed, the legal environment was so bad, IJ had to fight for three years just to get the courts to consider our case on the merits.

Now, in 2011, we have a U.S. Supreme Court victory that not only says that systems like Arizona’s are unconstitutional, but also firmly establishes that the government is forbidden from attempting to achieve indirectly what it is constitutionally forbidden from achieving directly. The case also firmly establishes that courts, when considering free speech claims, must look past the government’s justifications for a law and actually examine all the evidence to determine whether the law in question violates free speech.

Since we first brought this case, the courts have recognized that they have to be engaged to protect the First Amendment from campaign finance laws—and IJ has been at the forefront of that change by bringing legal challenges across the country. Freedom Club PAC is now the most recent example of the trend of judicial engagement that IJ has advocated since our founding and a case that will have significant implications beyond campaign finance law. We will use this case as a national precedent to urge courts to take constitutionally enshrined individual rights more seriously not only in the area of free speech, but also across IJ’s other pillars of litigation—property rights, economic liberty and school choice.

IJ will continue to fight against laws that reduce speech, silence disfavored speakers and viewpoints, and manipulate the marketplace of ideas. As the U.S. Supreme Court reminded us all, “[T]he whole point of the First Amendment is to protect speakers against unjustified restrictions on speech . . . . When it comes to protected speech, the speaker is sovereign.”

Bill Maurer is the IJ Washington Chapter executive director.