I do not believe the argument made by the Asst. Solicitor General is damaging.  The question is whether the provisions in question serve an adequate anti-corruption interest.  If they do, the provisions should not be unconstitutional simply because they also serve an equalization purpose, even if the equalization purpose was intended.

          I'm going from memory, but I believe Buckley does not say that the equalization goal is "wholly foreign to the First Amendment."  Rather, the idea that an equalization goal can justify a restriction on speech is "wholly foreign to the First Amendment."

             Best,

             Daniel H. Lowenstein
             Director, Center for the Liberal Arts and Free Institutions (CLAFI)
             UCLA Law School
             405 Hilgard
             Los Angeles, California 90095-1476
             310-825-5148


________________________________
From: election-law-bounces@mailman.lls.edu [election-law-bounces@mailman.lls.edu] On Behalf Of Scarberry, Mark [Mark.Scarberry@pepperdine.edu]
Sent: Monday, March 28, 2011 4:04 PM
To: Election Law
Subject: [EL] McComish and leveling the playing field

At p. 50 of the transcript, lines 19-22, Assistant Solicitor General Jay, arguing in favor the Arizona law, says that:

“It allows publicly-funded candidates to run on the same footing as privately-funded candidates, because they can spend comparable amounts.” See http://www.supremecourt.gov/oral_arguments/argument_transcripts/10-238.pdf.

I realize that he was speaking only on behalf of the US as amicus, rather than on behalf of the Arizona Sec. of State, but isn’t that an extraordinarily damaging statement, as Justice Alito noted on page 51?

If the purpose of the Arizona law is to equalize speech, it violates the First Amendment. Period. Isn’t that correct under Buckley (calling such an equalization goal “wholly foreign to the First Amendment) and Davis v. FEC?

If I’m reading Davis correctly, it held that the First Amendment is violated where a statutory scheme provides a benefit to one candidate based on the level of spending by the other (self-financed) candidate). The benefit in Davis was a relaxation of contribution limits and elimination of limits on coordinated expenditures. Here the benefit is money from the state, and the extra money is triggered either if the other candidate spends too much of his or her own money or if independent groups spend too much money on non-coordinated campaigning.

Sorry if my analysis is too simple or if these issues have already been done to death on this list, but how can the Arizona law be squared with Davis? Is there a constitutionally relevant distinction between the benefit (as in Davis) of relaxed contribution and coordination limits and the benefit (as in McComish) of actual cash money straight from the state? I suppose Arizona’s argument is that there is a difference. In Davis the excess spending  triggered unequal levels of prevention of speech (through unequal contribution and coordination limits, though limits on contributions generally are not seen as limits on speech). In McComish, the excess spending triggers extra government funding that allows extra speech (though only by one candidate, and seemingly in service of the impermissible goal of equalizing speech).

Is there an argument that although the candidate’s speech is burdened when the candidate’s speech triggers benefits to his or her opponent, the speech of those who would make independent expenditures is not burdened when their speech triggers benefits to the candidate that they oppose? Could that justify upholding a portion of the Arizona law? I suppose there is more fear of a kind of corruption from independent expenditures than from the candidate’s spending of his or her own money, but that corruption rationale was rejected by the Court in Buckley. The First Amendment (as interpreted by the Court) protects both kinds of expenditures equally (and fully), as I understand it. I don’t suppose a candidate can be seen as having more of a protected right to speak in favor of his or her candidacy (or against the candidacy of an opponent) than a non-candidate has, who wants to speak by means of independent expenditures.
Mark Scarberry
Pepperdine




From: election-law-bounces@mailman.lls.edu [mailto:election-law-bounces@mailman.lls.edu] On Behalf Of Rick Hasen
Sent: Monday, March 28, 2011 12:43 PM
To: Election Law
Subject: [EL] McComish transcript

Read the Transcript and Early Press Reports from the McComish Oral Argument

Here<http://howappealing.law.com/032811.html#041110>.
Posted by Rick Hasen at 12:41 PM<http://electionlawblog.org/archives/019089.html>
--
Rick Hasen
Visiting Professor
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen@law.uci.edu<mailto:rhasen@law.uci.edu>

William H. Hannon Distinguished Professor of Law
Loyola Law School
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org

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