06.27.11

Comment Of Senator Patrick Leahy On Supreme Court Decision In Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, Secretary Of State Of Arizona

“In yet another closely divided opinion, five justices overturned a state law designed to fight corruption in elections.  The Arizona Citizens Clean Elections Act sought to increase public discourse in that state’s elections, and was approved by Arizona voters in response to several political scandals.  But today, five justices overturned that law, holding that the public matching funds available to candidates somehow restricts free speech. 

“I disagree with the Court, and agree with the dissent from Justice Kagan, which cites the Court’s long list of precedents upholding laws encouraging political speech.  As Justice Kagan points out, the petitioners in this case asked the Court to reject sensible campaign finance laws designed to promote debate and discourse so that they would have ‘the field to themselves, so that they can speak free from response.’  By agreeing with the petitioners and striking down the law, the Court’s decision does not promote debate in American elections, it limits it.

“I am concerned that today’s opinion, as well as the Citizens United decision, will no doubt lead to the drowning out of individual voices of hardworking Americans by powerful special interests.  States have tried a variety of measures to root out corruption and special influence in our elections.  Unfortunately, a narrow majority of the justices contorted Arizona’s law to conclude that somehow it restricted speech. Our elections cannot, and should not, be bought.”

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BACKGROUND: The Supreme Court Monday issued its ruling in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett.  In a 5-4 decision, the Court held that the Arizona Citizens Clean Elections Act, which includes public matching funds, violates the First Amendment because it burdens protected political speech and does not serve a compelling state interest. The Chief Justice wrote for the court, joined by Justices Scalia, Kennedy, Thomas and Alito.   Justice Kagan wrote a dissent joined by Justices Ginsburg, Breyer and Sotomayor.  Notably, Justice Kagan wrote, “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.  If an ordinary citizen, without the hindrance of a law degree, thought this result an upending of First Amendment values, he would be correct.”   

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