Today the Roberts Court decided that Lincoln’s famous phrase “government of the people, by the people, for the people” from the Gettysburg Address has had its run. From this day forward it should read “government of the wealthy, by the wealthy, for the wealthy.”
How else can one explain this?
In a 5-to-4 decision, the justices invalidated a key part of the law that triggered state payments of matching funds for publicly financed candidates whenever their privately funded opponents outspent them.
The intent of the Arizona law was to “level the playing field” by providing matching funds to candidates facing an opponent who had much larger resources to spend on a political campaign. The Court, by striking it down, effectively made it possible for millionaires to buy their elections in law as well as in fact.
Justice Kagan, in dissent, noted:
This suit, in fact, may merit less attention than any challenge to a speech subsidy ever seen in this Court. In the usual First Amendment subsidy case, a person complains that the government declined to finance his speech, while bankrolling someone else’s; we must then decide whether the government differentiated between these speakers on a prohibited basis—because it preferred one speaker’s ideas to another’s. See, e.g., id. , at 577–578; Regan , 461 U. S., at 543–545. But the candidates bringing this challenge do not make that claim—because they were never denied a subsidy. Arizona, remember, offers to support any person running for state office. Petitioners here refused that assistance. So they are making a novel argument: that Arizona violated their First Amendment rights by disbursing funds to other speakers even though they could have received (but chose to spurn) the same financial assistance. Some people might call that chutzpah.
Indeed, what petitioners demand is essentially a right to quash others’ speech through the prohibition of a (universally available) subsidy program. Petitioners are able to convey their ideas without public financing—and they would prefer the field to themselves, so that they can speak free from response. To attain that goal, they ask this Court to prevent Arizona from funding electoral speech—even though that assistance is offered to every state candidate, on the same (entirely unobjectionable) basis. And this Court gladly obliges.
I think Justice Kagan has it absolutely right.
Kagan dissent courtesy of Lawyers Guns & Money‘s Scott Lemieux.