Campaign Finance At The Brink

On Monday, the Supreme Court dove back into the question of campaign finance law, hearing arguments in the case of Arizona Free Enterprise Club v. Bennett.  This critical case addresses Arizona’s system of public financing, which provides candidates with the option of receiving public funds for their campaign, if they agree to forgo private funding.  While the legal debate itself is fascinating, there is already a large amount of insightful commentary on the merits of the case (such as Professor Charles Fried’s recent column, and Anthony Kammer’s post for HLPR).  Instead, I will focus on the potential conclusions to this case, and the ramifications of the Court’s ruling.

Last week, a surprising consensus emerged that the matter was effectively already decided; CNN, Slate, The New York Times all referenced a conservative block with the power to knock out the law, lumping swing-vote Anthony Kennedy in with the conservative justices.  The assumption of Kennedy’s vote is likely based on his decision against campaign finance restrictions in the controversial Citizens United decision.  However, the very reason that Kennedy is the “swing-vote” on the Court is that his stances fluctuate from case to case, even on issues he has previously taken a position on; that is why his opinion against Guantanamo detainments in Rasul did not remove all tension as to how Boumediene would be decided, that is why his landmark decision in Lawrence v. Texas does not guarantee the Court will rule in favor of same-sex marriage, and that is why Arizona Free Enterprise Club v. Bennett still remains an undecided issue.

If the Court rules that Arizona’s public financing law is Constitutional, it will reflect that the Court does not have a set perspective on the issue, and that Citizens United was an independent – albeit profound – ruling rather than the start of a trend to dismantle all campaign finance regulations.  This will allow opponents of Citizens United to pursue a variety of legislative measures to slowly chip away at the ruling, and test how broadly the Court is willing to extend it.  The first step forward will likely be a resumption of the effort to pass the DISCLOSE Act, which would combat corporate influence on campaigns in a number of ways, most notably by requiring public disclosure of all contributions, and by barring foreign companies from donating.

However, if the Court does strike down Arizona’s public finance system, it will suggest a very foreboding future for campaign finance law in America.  With multiple rulings tearing down traditionally accepted regulations over the last two years, it would confirm that the media’s depiction of a conservative majority on the issue, while premature, was ultimately correct.  This will push the DISCLOSE Act off Congress’s agenda, and remove motivation to limit the impact of Citizens United.  Further, it will have long-term ramifications; with a set block against campaign finance regulation, efforts for reform will likely stall until the makeup of the Court changes significantly.  In the mean time, public financing laws in other states (fourteen states have similar systems) might be struck down.  Without state models to act as a starting point, comprehensive campaign finance reform on a national level – which will only be accomplished by effective limitation and regulation of independent expenditures in combination with either a hard cap limiting donations or public financing – may be decades away.

Image by watchingfrongsboil.