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Wednesday, March 30, 2011

Public financing and government speech

Based on yesterday's Monday's oral argument in McComish v. Bennett, it seems pretty clear that five justices (at least) will vote to invalidate the matching-funds provision of Arizona's public-financing law. Under that provision, a candidate who opts in to the public-finance system receives matching funds when privately financed opponents or independent groups spend more than a certain amount on speech. The plaintiffs (PACs and privately financed candidates) argue that the law chills their speech, because a candidate or independent group will not engage in expression knowing that their speech will trigger counter-speech funded by the government. Thus, while the law should produce more speech, plaintiffs argue that it actually disincentivizes their speech, resulting in less speech.

I have come to support some form of public financing of elections, the only way, it seems to me, to square away my agreement with the First Amendment principles recognized in Citizens United with a recognition that some control over election financing is necessary. Charles Fried has it right in arguing that Citizens United's more-speech principle should support the Arizona law.

Deborah Hellman (Maryland) argues in a guest-post at CoOp that the plaintiffs in McComish are confusing restrictions on speech with incentives for speech:

"The mistake of the petitioners in McComish is to focus on the effect that the law produces (chilling their speech) rather than the means by which this effect is produced.  Chilling speech through sanctions is problematic; chilling speech by more speech is not." She offers the following hypo:

Consider another example: suppose that the Arizona legislature, alarmed by high rates of childhood obesity in the state, adopts the following policy.  If snack foods are advertised during children’s programming, money is allocated to run ads for comparable amounts of time touting the delicious taste of fruit.  Could the snack food makers complain that their speech is restricted because this policy causes them to make strategic decisions about whether to advertise during children’s programs?

Of course, commercial speech is not political speech, but that’s beside the point.  The speech of snack food makers isn’t abridged by the fact that their decision about whether to speak is influenced by other speech.

Deborah captures the problem with the plaintiffs' argument. They essentially are asserting a liberty from (government-subsidized) counter-speech and attributing their decision not to speak out of fear of that counter-speech to government coercion.

I have been similarly scrambling for some analogue for how this program works, but I do not think the one Deborah offers does it. The problem is that the responsive speech in her hypo probably would be deemed government speech, which is not subject to the same restrictions as government control of private speech. Of course government can respond to private speech. It either would speak directly in response to Little Debbie or it would get its own message out through private speakers (say, fruit growers), under some sort of Rust v. Sullivan theory. The government-speech characterization would be necessary to avoid the argument that making funds available only to the pro-fruit side is viewpoint discriminatory. Either way, there is no way that the candidate speech funded in a public-finance scheme is government speech.

What we need is a comparable situation in which government subsidizes purely private speech by one party, without endorsing or adopting the message, in a public debate. I am just not sure there are examples outside of campaign financing. The closest I have been able to come is in the context of criminal litigation--the government will pay for an indigent defendant to get certain expert testimony or evidence when the government is going to put on such evidence. But trials are generally not regarded as First Amendment institutions, so I am not sure that works. The absence of an analogy is not fatal, of course, but it helps. Does anyone have a different example?

By the way, assuming the case comes out the way everyone expects and the matching-funds provision is struck down, McComish will be a paradigmatic example of Lyrissa Lidsky's theory of the Roberts Court's First Amendment: "All speakers, whether individuals or organizations, are treated equallly to the extent they are free from government regulation of their speech; however, speakers who lack resources are not entitled to any government assistance in speaking."

Posted by Howard Wasserman on March 30, 2011 at 08:51 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink


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