Arizona Free Enterprise and free speech markets.

The Supreme Court’s latest 5-4 wrangling, Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett is a fine case of two jurists talking completely past each other.  Both opinions affirmatively cite Citizens United, Davis, and New York Times v. Sullivan.  Both opinions agree on the general framework of the First Amendment (“more speech good, less speech bad”).  And both opinions are utterly incoherent when paired against each other.

Over at Balkanization, Heather Gerkin suggests that the Roberts and Kagan opinions are essentially outgrowths of the “money is speech” and the “speech is speech” arguments central to campaign finance reform. She suggests that this is the inevitable result of a worldview clash: “one side sees substantial expressive dimensions to contributions and expenditures, and the other doesn’t.”  

This is true, and the intellectual spawn of the two worldviews makes for two interesting opinions.

The Roberts opinion represents a more organic and libertarian perspective of what speech is, the sort of viewpoint taught in economics classes at the University of Chicago and George Mason University.  Kagan’s opinion is a more paternalistic view of speech, an outgrowth of a more regulation-friendly mindset.

However, the two opinions also diverge on who the holder of speech rights are in campaigns.  Roberts exalts speaker sovereignty, Kagan champions the state.  And while Roberts is rigidly formalist, Kagan is convinced that Arizona’s program ought to be saved because the Constitution cannot be read to invalidate a neat campaign finance solution.

The Roberts opinion is mostly concerned with “what goes in” to speech.  The Arizona law is unconstitutional because the government’s incentives, which provide extra cash to all tax-financed candidates whenever a privately funded candidate or pro-privately funded candidate groups run ads, they distort the free speech market.  

Essentially, Roberts argues that government-funded speech ends up causing ‘real’ speakers (the privately funded) to invest their speech differently, stifle themselves, or pay too high a price for their speech.  Because of the government’s regulatory distortions, speech that otherwise could not find a promoter fills the gap.  (It’s basically the same libertarian argument as that against farm subsidies.)

The Chief Justice makes this point with typical conciseness on page fifteen of the opinion, when he writes that “[a]ny increase in speech resulting from the Arizona law is one kind and one kind only–that of publicly financed candidates.”  In a footnote on the same page, he spells out his fear more broadly.  The government’s distortion of the speech market will inevitably lead to candidates choosing to campaign solely with tax-funded subsidies, since tax-funded candidates get benefits that privately funded candidates do not.  

The inevitable result: Arizona’s campaigns will end up with “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…state resources.”

Hence the Chief Justice’s assertion that “[t]he First Amendment embodies our choice as a Nation that, when it comes to such speech, the guiding principle is freedom–the “unfettered interchange of ideas”–not whatever the State may view as fair.”  And despite Roberts’ protestations that this does not necessarily mean that all tax-financed campaigns are suspect; it’s difficult to find a logical extension of the Chief Justice’s reasoning that does not head down that road.

It is not a stretch to say that the Roberts majority does not seem to consider government-regulated speech in political campaigns to be, for lack of a better phrase, “real speech.”  The Chief Justice hammers this point home on the back nine of the opinion with a robust defense of “speaker sovereignty.”

Justice Kagan’s view of speech is, essentially, a mirrored opposite of Roberts’ reasoning.  Where Roberts sees the government’s central concern as “what goes in/who funds” the speech; Kagan is concerned only with “speech outcomes.”  Kagan ultimately wants a government-regulated open speech space where any and all viewpoints are given room to agitate.

A recurring theme of her opinion is that the net result of Arizona’s matching funds law is that more speech is being disseminated all around.  Rather than viewing government regulations as a means of distorting an otherwise efficient speech market; Kagan views Arizona’s law as a way to prevent certain ideas and candidates from being priced out of the market entirely.

Accordingly, Roberts’ nightmare, a system where candidates decide that self-funding is self-immolating and choose to only participate in the state’s tax-funded campaign system, is of no concern to Justice Kagan.  She praises tax financing as a response to the “danger” of “private contributions fuel[ing] the political system” and possibly, hypothetically, inviting corruption.  The appropriate state response is to “minimiz[e] the importance of private donors in elections.”  

Imagine a state program where all candidates were offered outlandish sums (say $1 million per race) in public financing, so long as they did not accept private money.  I believe Kagan would uphold this without batting an eye.  Conversely, it’s hard to see Roberts being willing to swallow such an abject attempt to outbid private donations.

Basically, so long as advertisements run, rallies are held, and debates are had, Justice Kagan is fine with the political system being entirely funded by the state.  And so it is unsurprising that Justice Kagan’s opinion bolsters itself on the power of state sovereignty, the right for the states to determine how to run their own elections, a direct contrast to Chief Justice Roberts’ appeal to individual speaker sovereignty.    

A last thought: Roberts’ reasoning also is an intellectual heir to the separation-of-powers purism that opposes “nifty” and efficient arrangements that skirt constitutional lines, such as the independent counsel’s office, granting the Comptroller General the power to cut spending if a budget does not balance, the line-item veto, or the legislative veto.  

Kagan’s opinion seems to echo the dissent of Justice Byron White in INS v. Chadha, where the Supreme Court killed one such “nifty” program, the legislative veto.  White essentially argued that the program was clever and worked, and was a fine program that modern jurists could uphold.  You hear echoes of this in Kagan’s praise of Arizona’s law as a campaign finance reform that is efficient and does not drain the public fisc.  Every time Justice Kagan praises the Arizona law for finding the “sweet-spot”, Whizzer White’s fidelity to functionalism shines through.

On one side, we have a Court lurching toward formalism and galloping toward the elimination of tax-funded campaigns.  On the other side, we have a minority that bristles with functionalism and stands willing to uphold a system where private dollars have gone the way of the dodo.