On Monday, the Supreme Court ruled that an Arizona law giving additional funds to publicly financed candidates if independent expenditures opposing the candidate reached a certain level was a violation of the First Amendment. The case, McComish v. Bennett, builds on the holding of Davis v. FEC to continue the development of limitations on campaign finance regulationhere, the issue was whether a state regulatory regime which attempts to equalize the political speech of competing entities can pass muster under the First Amendment. The Roberts majority appears to be on a slow march towards an unfettered First Amendment right to certain forms of political speech, strictly limiting the government's ability to regulate such speech and limiting the traditional anti-corruption rationale adopted by the Court in Buckley v. Valeo. The goal of equalizing the players on the political stage is no longer an option for reformers. McComish and Davis, thus, portend an era of broadened First Amendment applications to political speech.
The rejection of the equalization rationale discussed in Davis, and adopted in McComish, appears to limit future regulation. Reformers will be forced to make the case for regulation based on the anti-corruption interest set forth in Buckley. Davis and McComish will make it difficult to pass any law that regulates the equality of political speech. What's left, at least for now, is the potential for strong political contribution and expenditure disclosure laws, which should satisfy the Court's constitutional concerns. Then again, the Roberts Court has shown a propensity for a wholesale free market approach to campaign finance regulation.
John Hardin Young is recognized as one of the nation's leading electoral recount lawyers. He was extensively involved in the 2000 presidential recount in Florida, and was portrayed by actor Steve DuMouchel in Recount, an HBO film chronicling the recount.
Suggested citation: John Hardin Young, Supreme Court Leaves Few Options For Campaign Finance Reform, JURIST - Hotline, June 28, 2011, http://jurist.org/hotline/2011/06/john-hardin-young-mccomish-ruling.php.