Posted by AzBlueMeanie:
"What the first amendment protects is freedom of speech, not freedom from rebuttal. What the plaintiffs are really complaining about is that somebody else gets to speak in addition to them." – Todd Lang, Executive Director of the Citizens Clean Elections Commission
"[T]he 'burden' created by the Act is that Plaintiffs’ speech will lead directly to more speech. Given that the purpose of the First Amendment is to 'secure the widest possible dissemination of information from diverse and antagonistic sources,' it seems illogical to conclude that the Act creating more speech is a constitutionally prohibited 'burden' on Plaintiffs." – Arizona U.S. District Court Judge Roslyn Silver
These correct arguments fell on deaf ears in the United States Supreme Court on Monday. Five members of the court accept Justice William Rehnquist's false premise in Buckley v. Valeo (1976) that "money equals speech" and those who have more money are entitled to more speech – in order to drown out the speech of their less-funded opponent. In short, the First Amendment protects money, not speech.
Our political system has entirely broken down as a result of conservative activist judges and Buckley and its progeny, in particular, Davis v. Federal Election Commission, 128 S. Ct. 2759 (2008) at the heart of this case.
I previously addressed Judge Roslyn Silver's opinion in Arizona Clean Elections matching funds to be held unconstitutional in which she was highly critical of the U.S. Supreme Court and its decision in Davis:
Judge Silver next is critical of Davis v. FEC, suggesting her disagreement with the Supreme Court, but conceding she is bound by precedent.
Determining that matching funds constitute a cognizable burden does not end the inquiry. The weight of that burden must also be assessed. Unfortunately, Davis provided no guidance on how the statute at issue constituted a “substantial burden” on the plaintiffs’ rights. After explaining its holding that discriminatory fundraising limitations constituted a burden, the Davis court jumped to the conclusion that the burden was “substantial.”15 This ipse dixit was announced “without the slightest veneer of reasoning to shield the obvious fiat by which it [is] reached.” Francis v. Henderson, 425 U.S. 536, 552 (1976) (Brennan, J. dissenting). But the lack of reasoning does not free this Court to ignore the conclusion. If lifting a candidate’s opponent’s fundraising limitations constitutes a “substantial burden,” awarding funds to a candidate’s opponent must constitute a “substantial burden” as well. Accordingly, Arizona’s matching funds constitute a substantial burden and are permissible only if they are supported by a compelling government interest and are narrowly tailored to achieve that interest.
The "matching funds" provision of Arizona's Citizens Clean Elections was before the U.S. Supreme Court on Monday in the cases of AZ Free Ent. Club v. Bennett and McComish v. Bennett. Lyle Denniston at SCOTUS Blog has the play-by-play. Argument recap: Kennedy shows his hand : SCOTUSblog:
Justice Anthony M. Kennedy, who definitely seems to hold the deciding vote on the newest test of the Supreme Court’s skepticism about campaign finance laws, made repeated comments on Monday suggesting that he is very wary of Arizona’s attempt to offset the impact of wealthy candidates paying their own way. Among a variety that could be noted, no remark was more telling than what seemed almost to be a rhetorical question: “Do you think it would be a fair characterization of this law to say that its purpose and its effect are to produce less speech in political campaigns?”
I would refer Justice Kennedy to Judge Silver's well-reasoned opinion above to refute the false premise of his leading question.
That, of course, is the whole point of the challengers of the 1998 state law that provides subsidies with public funds for candidates who forgo private fund-raising, if their self-financed candidates spend more than a specified minimum. And, in response to Kennedy’s leading question, the challengers’ lawyer, William R. Maurer of Seattle, predictably responded: “The entire motivation of this was to limit spending in leveling the playing field. Limiting spending indicates that they wanted less political speech in the state of Arizona, and that’s what they’ve got.”
"[I]t was more than evident on Monday that the Arizona system — which the Court did block in a temporary order, stopping the subsidies during last year’s campaign — was in deep constitutional jeopardy."
"Four of the members of the Davis majority (all but Justice Clarence Thomas, who said nothing) left little doubt Monday that they probably accept the challengers’ basic logical premise. As their attorney, Maurer, put it early in his argument: “What this case is about is whether the government can turn my act of speaking into the vehicle by which my political opponents benefit with direct government subsidies.” In short, the First Amendment protects money, not speech.
Noting that the law in Arizona triggers subsidies not only when a self-financed candidate spends beyond a limit, but also when an independent group supporting a self-financed candidate helps exceed that limit, the Chief Justice remarked: “If you knew that a $10,000 expenditure that you would make that would support a candidate would result in $30,000, $40,000, $50,000, depending on how many opposition candidates there were available for them, wouldn’t you think twice about it?”
When Arizona’s lawyer, Bradley S. Phillips of Los Angeles, countered that “thinking twice is not a severe burden,” the Chief Justice retorted: “Well, if you’re thinking twice and one way you’re thinking is not to do it, that sounds like a sufficient burden.”
Not to be outdone by Chief Justice Roberts in dystopian logic:
Justice Samuel A. Alito, Jr., the author of the Davis opinion that struck down discriminatory treatment of self-financed candidates, bluntly suggested that the Arizona system actually works as a regulation of political speech based upon its content — the worst constitutional sin under the First Amendment.
There is nothing – NOTHING – in the Citizens Clean Elections Act that regulates the content of speech. Justice Alito demonstrates the depths of disingenuousness to which conservative activist judges will go in creating legal fictions out of whole cloth to advance the interests of the wealthy elite plutocracy.
Davis v. Federal Election Commission and Citizens United v. FEC are two of the worst Supreme Court decisions of all-time because they stab at the very heart of our democratic republican form of government. This Supreme Court is adjudicating law to pave the way for an entirely new form of government not contemplated by the Founding Fathers in our Constitution. They are husbanding the birth of the corporatocracy.
The transcript of Monday morning’s oral argument in Arizona Free Enterprise Club’s Freedom Club Pac v. Bennett is here.
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