Freeing Speech From Government Control

By Tim Keller

America’s Founders drafted the First Amendment so every American could speak freely about politics, thus ensuring a healthy democratic system with robust public debate and meaningful citizen participation. Arizona’s scheme of taxpayer subsidies for politicians, its so-called “Clean Elections” law, fosters precisely the opposite: It curbs speech, discourages participation and limits what voters hear about politics.

The law curbs speech by setting government caps on how much money politicians can spend in their campaigns—thereby limiting their ability to speak to voters. Even politicians who refuse to accept government funding find their ability to speak restricted. For example, when Arizona Treasurer Dean Martin ran a traditional campaign, forgoing taxpayer money and using only funds voluntarily donated by private groups and citizens, he quickly realized it made no sense to raise and spend more than the government cap set for his taxpayer-funded opponent, even though he could by law. Why? Because all money donated to Martin’s campaign above that limit would trigger more taxpayer subsidies for his government-funded opponent, ensuring she could dramatically outspend him.

The dirty little secret of Arizona’s law is that it is designed to limit speech: Government controls the purse strings, so government decides how much speech is “enough.” But, in a free society, the government has no business micromanaging how citizens debate, of all things, who should run the government.

Martin was not directly subject to the government cap, but he was forced to abide by it or be drowned out by government funds showered on his opponent. The law chilled his right to speak freely. In truly free elections, candidates with a stronger campaign and a more appealing message should enjoy a funding edge, but in Arizona such hard work is punished with a government check to their opponents. As Martin considers his next statewide campaign, he again faces the “choice” of limiting his speech or being outspent by a government-funded opponent.

Arizona’s elections scheme also discourages independent groups, like the Arizona Free Enterprise Club’s Freedom Club PAC and the Arizona Taxpayer Action Committee, from participating in the political process. Both groups are political committees that support candidates who believe in private enterprise and low taxes. Any time an independent group spends money on speech—such as a radio ad—supporting a candidate running with private funds, the taxpayer-funded opponent will get still more public money. Not surprisingly, independent groups now think twice before supporting some candidates—and sometimes choose not to speak at all.

The system’s arbitrary caps limit the voices and perspectives voters hear, diminishing their ability to make informed decisions. Reaching a large number of voters is expensive, and spending caps prevent candidates from effectively communicating with voters. They also discourage citizens from pooling their resources to persuade their fellow citizens of the wisdom of a particular political position or the virtues of a particular candidate. The result is less speech and less debate.

Direct government limits on expenditures are unconstitutional. Instead of a direct limit, Arizona created so-called “matching funds” to enforce the caps. The system’s drafters knew that many candidates like Martin would reject taxpayer funding on principle and simply opt out, freeing them of the government caps. That would give them an advantage over those who accept taxpayer funds and thus discourage participation in the scheme. So there had to be a way to punish those who opt out. “Matching funds” is the punishment: Whenever a privately financed candidate or an independent group outspends a taxpayer-funded candidate, the government steps up to the ATM (in this case, Arizona Taxpayers’ Money) and matches those expenditures dollar-for-dollar, up to two times the initial payout.

“Matching funds” are how Arizona rewards those who take taxpayer money for politics and punishes those who refuse it—as well as private citizens or groups who want to support them. “Matching funds” are how Arizona reins in speech about politics.

Indeed, the dirty little secret of Arizona’s law is that it is designed to limit speech: Government controls the purse strings, so government decides how much speech is “enough.” But, in a free society, the government has no business micromanaging how citizens debate, of all things, who should run the government.

State-imposed limits, even indirect limits, on grassroots advocacy and campaigns for public office violate the free speech and association guarantees of the First Amendment. That is why Dean Martin, the Freedom Club PAC and Taxpayer Action Committee joined with the Institute for Justice to ask the federal courts to vindicate their First Amendment rights. The 9th U.S. Circuit Court of Appeals recently reinstated this lawsuit, originally filed in 2004 by IJ and Martin. Now we return to the trial court to argue the merits of the case.

Arizona’s election scheme, one of the most far-reaching in the nation, adds up to less speech from fewer voices resulting in a less robust public debate. If the Arizona model spreads, as so-called campaign finance “reformers” hope, our core rights as citizens to speak on political matters will give way to government control. But IJ is fighting back with a case that can set an important precedent against taxpayer-funded campaigns and in favor of unfettered First Amendment rights.

Tim Keller is executive director of the Institute for Justice Arizona Chapter.


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