I don’t know whether to laugh or cry. Elena Kagan’s dissent [it’s a .pdf, and you’ll have to scroll way down to find it] in ARIZONA FREE ENTERPRISE v. BENNETT basically treats Roberts’s majority opinion the same way our air forces treated Dresden during World War Two. It’s a carpetbombing that leaves nothing left but a smoldering pile of rubble. It’s a true pleasure to read. Yet, the inescapable tragedy is that she wrote the minority opinion. The five conservatives on the Supreme Court have once again done extreme violence to our democracy and all efforts to combat corruption and the undue influence of corporations.
The case is a bit complicated to explain and I am not going to explain it all here. At the most basic level, Arizona had a law, created through referendum in 1998, with the intent of cleaning up ridiculous corruption among its lawmakers. This law provided public funding to candidates provided they completely eschewed private donations, including from themselves. Anyone who met the basic requirements could run for office and receive a lump sum of $50,000 for their campaign. If any of their opponents (or any outside PAC) spent more money using private donations, they would be eligible to get 94% matching funds up to a cap of $150,000.
The law was struck down, amazingly, because it was ruled that giving a publicly-funded candidate a subsidy infringes on the free speech of a privately-funded candidate. The conservatives actually went after the triggering mechanism, where a privately-funded candidate, having exceeded a cap in spending, will find that every new dollar they spend on their campaign will provide a free dollar to all their publicly-funded opponents.
As Kagan amply demonstrates, the Court has completely gutted all First Amendment law pertaining to elections with this ruling. They are saying that states have no compelling interest in combating corruption that can justify publicly-funded candidates. They are pretending to say that the problem is this particular trigger mechanism, but there isn’t even any logic behind that distinction. The trigger is actually an ingenious invention that solves the problem with setting firm caps that will remain adequate over time and that are appropriate for vastly different districts. As Kagan pointed out, under the majority’s reasoning, an initial unconditional lump-sum of $150,000 would have been constitutional. But an initial $50,000 combined with conditional $100,000 is not because it is triggered by an opponent’s “speech.”
First of all, are donuts and pizza now “speech”? Because those foodstuffs use up a lot of campaign cash. I hate this idea that money is synonymous with speech, and you’ll see that equation over and over again in the the majority’s decision.
Secondly, it’s appalling that this Court thinks it’s unconstitutional for a rich self-funding bastard or a corporate-funded lackey to have to deal with some competition in their bid to become the latest congressional whore.
The SCOTUS is on a rampage against any form of progressivism.
The SCOTUS is on a rampage against any form of democracy…
PS – does the SCOTUS ruling mean that the richer I am no more “free” speech I am entitled to?
Not exactly.
It means that you are free from contradiction.
That money equals speech is a fallacy. In fact, the correlation exists only by virtue of the existence of an established media market. So this decision is not about speech, it is about deregulating a market. Show me where the constitution describes elections as markets, or even implies that. Our political process has been largely transformed into an advertising market.
The logic of the Supreme Court decision is simplistic. If there is a limit on individual campaign contributions, yes, an individual’s speech is being limited. However, so is everyone else’s, equally, which means that no one’s speech is being limited relative to anyone else. Thus, while you can spend money promulgating your message, there are limits to how far you are allowed to use that money to drown out the messages of others — which in fact limits THEIR right to free speech.
It seems tome this is similar to any approach that attempts to provide for THE COMMON WELFARE — protecting the public, especially those less able to defend themselves, from being taken advantage of unfairly. So actually, money is the enemy of free speech, because money is not free.
if you read their decision, it’s a complete mess.
It’s hard to even find any principles in it beyond rich people’s constitutional right to outspend their opponents without fear of contradiction. Or, if not rich, funded by rich people.
It’s a straightforward way to give corporate interests and institutionalized political advantage. It doesn’t do away with democracy, it just slants the playing field dramatically.
You can cry, BooMan.
Wow. Kagan’s dissent was a model of clarity. I hope the majority cringed in their robes. (Okay, I know they didn’t, at least not as a group. But maybe Kennedy did?)
It’s a pre-emptive strike on the 2012 election at the state and local level. Arizona is now free to be more corrupt than it already is.
Because there are not a whole lot of public funds involved in elections compared to the carpetbombing of private funds, this will have little import outside of a few places.
I know that one can’t make an impeachment argument based on a disagreement of ideas. Well not easily. But, the actions of Clarence Thomas might be common among majority, just more discreetly handled by folks like Roberts, Alito, and Scalia. A corruption investigation is in order.
I sure glad the democrats did such a bang-up job of questioning the nominees. Such probing questions, such attack dogs.
Oh well: at least our powder is still dry. There is NOTHING worse than wet powder. Oh, and Weiner’s gone: the one guy who was calling attention to Clarence Thomas’s conflicts of interest. that’s also good news.
The one last true saint. Who will save us? Sniff..sniff..sniff..
i owldn’t go that far: Weiner was also a noxious AIPAC whore.
“The SCOTUS is on a rampage against any form of progressivism.”
Yes. They are and that has been the purpose of republicans for more than a quarter century and it was obvious to everyone but the democrats in congress.
So here we are…