G.I.: Illogical legal logic?

by David Safier

I'm not making this post part of my Fool's Gold series, because I may be the fool rushing in where paralegals fear to tread. Be that as it may . . .

Today's Goldwater Daily Email is from Nick Dranias, the Director of their Center for Constitutional Government. He argues that Arizona should get rid of Clean Elections matching funds on constitutional grounds.

Right now, if you run "Clean" and you have an opponent who runs traditional, you get close to a dollar-for-dollar match for any funds your opponent raises in excess of what you get from the state.

Is that a good or a bad idea? I'm not going to weigh in. Frankly, I'm of two minds about clean elections.

What I want to do is look at Dranias' legal argument that matching funds violate the First Amendment, which sounds pretty thin to me.

[M]atching funds clearly violate the First Amendment.

[snip]

Matching funds punish traditional candidates by causing their promotional efforts–their campaign speech–to fund the campaign speech of opposing candidates. Moreover, the threat of such punishment chills free speech by causing traditional candidates and their supporters to think twice before raising or spending money that might trigger matching funds to an opposing government-funded candidate.

Is it a violation of the First Amendment that "matching funds punish traditional candidates"? It doesn't stop them from saying anything they want, does it? Where's the First Amendment violation?

If matching funds "chill free speech," how is that a problem? If I'm less likely to say something because someone else might respond, my speech may be "chilled" but not stifled. I can still say anything I want to say. Where's the First Amendment violation?

The idea that money is speech seems ridiculous to me, but for some reason, that's considered a reasonable argument, so what can I say? But the idea that "chilling" speech is blocking speech . . . If that makes legal sense, it certainly doesn't make sense in the real world.

Let's say two candidates are running traditional, and I'm supporting one of them. I say to the other candidate, "Listen, I've got a hundred people who will match your fund raising dollar for dollar if you keep raising money, so why bother?" Did I violate that other candidate's freedom of speech because I took some of the heat out of his/her desire to continue raising funds?

Is there a legal mind without a dog in this hunt who can help me see the error — or the sense — in my logic?