- The Washington Times - Monday, March 28, 2011

The Supreme Court, which in recent years has looked unfavorably upon attempts to limit spending in elections, fired off a string of skeptical questions during arguments Monday on the constitutionality of Arizona’s campaign-finance law.

The Arizona law, adopted in 1998, provides public funding for candidates outstripped by wealthier opponents and outside groups in raising private donations.

During the hearing Monday, the court’s conservative justices - who have already succeeded in trimming campaign-finance regulations as violations of free speech - closely scrutinized arguments that the law reduces corruption and influence peddling.

“How does it combat corruption?” Justice Antonin Scalia asked, noting that big donors will still have “that senator, or whoever it is, just as much indebted to him if he gives $10 million, regardless of whether everybody else gets $10 million as well.”

A ruling on the Arizona statute, which could affect similar campaign-finance laws in Maine, New Mexico, North Carolina and Washington state, is likely this summer.

The Supreme Court last year removed most limits on campaign spending by corporations and labor unions in the 5-4 Citizen United decision, which resulted in such pro-Republican groups as Karl Rove’s American Crossroads raise and spend tens of millions of dollars in the 2010 elections. That spending followed President Obama’s record-shattering fundraising in 2008, when he rejected public financing to raise more than $700 million in his successful White House bid.

During the hearing, conservative Justice Samuel Anthony Alito Jr. questioned whether the Arizona law served as a deterrent to candidates who have already determined they will outspend opponents, despite the public matching funds.

“If they choose the private financing, it means that they probably made a decision going in that they’re going to … be one of those who is willing to suffer the consequences of spending over the amount. So I don’t see what … that proves,” he said.

Justice Alito questioned the contention that the law helps underfunded candidates take on powerful incumbents.

“If I’m an incumbent with name recognition, I would love to be able to not raise any money and just take the public funding,” he said, “knowing that if worst comes to worst … I’ll be able to get that money free. It seems to me it’s very much pro-incumbent rather than anti-incumbent.”

The two Obama appointees to the court, Justice Sonia Sotomayor and Justice Elena Kagan, seemed supportive of the Arizona law.

“I think the purpose of this law is to prevent corruption,” Justice Kagan said. “That’s what the purpose of all public financing systems are.”

Bradley S. Phillips, the Los Angeles-based attorney defending the Arizona law, agreed, saying, “Both logic and evidence demonstrate that [the law] is, in fact, effective, both at promoting speech by encouraging candidates to run and … resulting in more competitive races.”

William Maurer, the Seattle-based attorney representing the groups challenging the law, said the rules penalize candidates who outwork their opponents.

“Each time they speak, the more work that they do, the more their opponents benefit,” he said.

Justice Sotomayor questioned that logic: “There was no evidence … that any candidate stopped speaking because of or stopped collecting because of this. So exactly what is the burden?”

The hearing on Arizona Free Enterprise v. Bennett, 10-238, and McComish v. Bennett, 10-239, combined two challenges to the Arizona law, which was approved after massive corruption scandals shook the state in the late 1990s.

Sign up for Daily Newsletters

Manage Newsletters

Copyright © 2020 The Washington Times, LLC. Click here for reprint permission.

Please read our comment policy before commenting.


Click to Read More and View Comments

Click to Hide