OPINION OF THE COURT
ARIZONA FREE ENTERPRISE CLUB'S FREEDOMCLUB PAC V. BENNETT
564 U. S. ____ (2011)
SUPREME COURT OF THE UNITED STATES
NOS. 10-238 AND 10-239
ARIZONA FREE ENTERPRISE CLUB’S FREEDOM CLUB PAC,
et al., PETITIONERS
10–238
v.
KEN BENNETT, in his official capacity as
ARIZONA SECRETARY OF STATE, et al.
JOHN McCOMISH, et al., PETITIONERS
10–239
v.
KEN BENNETT, in his official capacity as
ARIZONA SECRETARY OF STATE, et al.
on writs of certiorari to the united states court
of appeals for the ninth circuit
[June 27, 2011]
Chief Justice Roberts delivered
the opinion of the Court.
Under Arizona law, candidates for
state office who ac-cept public financing can receive additional
money from the State in direct response to the campaign activities
of privately financed candidates and independent expenditure
groups. Once a set spending limit is exceeded, a publicly financed
candidate receives roughly one dollar for every dollar spent by an
opposing privately financed candidate. The publicly financed
candidate also receives roughly one dollar for every dollar spent
by independent expenditure groups to support the privately financed
candidate, or to oppose the publicly financed candidate. We hold
that Arizona’s matching funds scheme substantially burdens
protected political speech without serving a compelling state
interest and therefore violates the First Amendment.
I
A
The Arizona Citizens Clean
Elections Act, passed by initiative in 1998, created a voluntary
public financing system to fund the primary and general election
campaigns of candidates for state office. See Ariz. Rev. Stat. Ann.
§16–940
et seq. (West 2006 and Supp. 2010). All eligible
candidates for Governor, secretary of state, attorney general,
treasurer, superintendent of public instruction, the corporation
commission, mine inspector, and the state legislature (both the
House and Senate) may opt to receive public funding. §16–950(D)
(West Supp. 2010). Eligibility is contingent on the collection of a
specified number of five-dollar contributions from Arizona voters,
§§16–946(B) (West 2006), 16–950 (West Supp. 2010),[
Footnote 1] and the acceptance of certain
campaign restrictions and obligations. Publicly funded candidates
must agree, among other things, to limit their expenditure of
personal funds to $500, §16–941(A)(2) (West Supp. 2010);
participate in at least one public debate, §16–956(A)(2); adhere to
an overall expenditure cap, §16–941(A); and return all unspent
public moneys to the State, §16–953.
In exchange for accepting these
conditions, participating candidates are granted public funds to
conduct their campaigns.[
Footnote
2] In many cases, this initial allotment may be the whole of
the State’s financial backing of a publicly funded candidate. But
when certain conditions are met, publicly funded candidates are
granted additional “equalizing” or matching funds. §§16–952(A),
(B), and (C)(4)–(5) (providing for “[e]qual funding of
candidates”).
Matching funds are available in both primary
and general elections. In a primary, matching funds are triggered
when a privately financed candidate’s expenditures, combined with
the expenditures of independent groups made in support of the
privately financed candidate or in opposition to a publicly
financed candidate, exceed the primary election allotment of state
funds to the publicly financed candidate. §§16–952(A), (C). During
the general election, matching funds are triggered when the amount
of money a privately financed candidate receives in contributions,
combined with the expenditures of independent groups made in
support of the privately financed candidate or in opposition to a
publicly financed candidate, exceed the general election allotment
of state funds to the publicly fi-nanced candidate. §16–952(B). A
privately financed can-didate’s expenditures of his personal funds
are counted as contributions for purposes of calculating matching
funds during a general election. See
ibid.; Citizens Clean
Elections Commission, Ariz. Admin. Rule R2–20–113(B)(1)(f) (Sept.
2009).
Once matching funds are triggered, each
additional dol-lar that a privately financed candidate spends
during the primary results in one dollar in additional state
funding to his publicly financed opponent (less a 6% reduction
meant to account for fundraising expenses). §16–952(A). During a
general election, every dollar that a candidate receives in
contributions—which includes any money of his own that a candidate
spends on his campaign—results in roughly one dollar in additional
state funding to his publicly financed opponent. In an election
where a privately funded candidate faces multiple publicly financed
candidates, one dollar raised or spent by the privately fi-nanced
candidate results in an almost one dollar increase in public
funding to each of the publicly financed candidates.
Once the public financing cap is exceeded,
additional expenditures by independent groups can result in
dollar-for-dollar matching funds as well. Spending by independent
groups on behalf of a privately funded candidate, or in opposition
to a publicly funded candidate, results in matching funds.
§16–952(C). Independent expenditures made in support of a publicly
financed candidate can result in matching funds for other publicly
financed candidates in a race.
Ibid. The matching funds
provision is not activated, however, when independent expenditures
are made in opposition to a privately financed candidate. Matching
funds top out at two times the initial authorized grant of public
funding to the publicly financed candidate. §16–952(E).
Under Arizona law, a privately financed
candidate may raise and spend unlimited funds, subject to
state-imposed contribution limits and disclosure requirements.
Contributions to candidates for statewide office are limited to
$840 per contributor per election cycle and contributions to
legislative candidates are limited to $410 per contributor per
election cycle. See §§16–905(A)(1), 16–941(B)(1); Ariz. Dept. of
State, Office of the Secretary of State, 2009–2010 Contribution
Limits (rev. Aug. 14, 2009), http://
www.azsos.gov / election / 2010 / Info / Campaign_Contribution
_Limits_2010.htm (all Internet materials as visited June 24, 2011,
and available in Clerk of Court’s case file).
An example may help clarify how the Arizona
matching funds provision operates. Arizona is divided into 30
districts for purposes of electing members to the State’s House of
Representatives. Each district elects two representatives to the
House biannually. In the last general election, the number of
candidates competing for the two available seats in each district
ranged from two to seven. See State of Arizona Official Canvass,
2010 General Election Report (compiled and issued by the Arizona
secretary of state). Arizona’s Fourth District had three candidates
for its two available House seats. Two of those candidates opted to
accept public funding; one candidate chose to operate his campaign
with private funds.
In that election, if the total funds
contributed to the privately funded candidate, added to that
candidate’s expenditure of personal funds and the expenditures of
supportive independent groups, exceeded $21,479—the allocation of
public funds for the general election in a contested State House
race—the matching funds provision would be triggered. See Citizens
Clean Elections Commission, Participating Candidate Guide 2010
Election Cycle 30 (Aug. 10, 2010). At that point, a number of
differ- ent political activities could result in the distribution
of matching funds. For example:
If the privately funded candidate spent $1,000
of his own money to conduct a direct mailing, each of his publicly
funded opponents would receive $940 ($1,000 less the 6%
offset).
If the privately funded candidate held a
fundraiser that generated $1,000 in contributions, each of his
publicly funded opponents would receive $940.
If an independent expenditure group spent
$1,000 on a brochure expressing its support for the privately
financed candidate, each of the publicly financed candidates would
receive $940 directly.
If an independent expenditure group spent
$1,000 on a brochure opposing one of the publicly financed
candidates, but saying nothing about the privately financed
candidate, the publicly financed candidates would receive $940
directly.
If an independent expenditure group spent
$1,000 on a brochure supporting one of the publicly financed
candidates, the other publicly financed candidate would receive
$940 directly, but the privately financed candidate would receive
nothing.
If an independent expenditure group spent
$1,000 on a brochure opposing the privately financed candidate, no
matching funds would be issued.
A publicly financed candidate would continue to receive
additional state money in response to fundraising and spending by
the privately financed candidate and independent expenditure groups
until that publicly financed candidate received a total of $64,437
in state funds (three times the initial allocation for a State
House race).[
Footnote 3]
B
Petitioners in this case,
plaintiffs below, are five past and future candidates for Arizona
state office—four members of the House of Representatives and the
Arizona state treasurer—and two independent groups that spend money
to support and oppose Arizona candidates. They filed suit
challenging the constitutionality of the matching funds provision.
The candidates and independent expenditure groups argued that the
matching funds provision unconstitutionally penalized their speech
and burdened their ability to fully exercise their First Amendment
rights.
The District Court agreed that
this provision “constitute[d] a substantial burden” on the speech
of privately financed candidates because it “award[s] funds to a
[privately financed] candidate’s opponent” based on the privately
financed candidate’s speech. App. to Pet. for Cert. in No. 10–239,
p. 69 (internal quotation marks omitted). That court further held
that “no compelling interest [was] served by the” provision that
might justify the burden imposed.
Id., at 69, 71. The
District Court entered a permanent injunction against the
enforcement of the matching funds provision, but stayed
implementation of that injunction to allow the State to file an
appeal.
Id., at 76–81.
The Court of Appeals for the Ninth Circuit
stayed the District Court’s injunction pending appeal.
Id., at 84–85.[
Footnote
4] After hearing the case on the merits, the Court of Appeals
reversed the District Court. The Court of Appeals concluded that
the matching funds provision “imposes only a minimal burden on
First Amendment rights” because it “does not actually prevent
anyone from speaking in the first place or cap campaign
expenditures.” 611 F. 3d 510, 513, 525 (2010). In that court’s
view, any burden imposed by the matching funds provision was
justified because the provision “bears a substantial relation to
the State’s important interest in reducing
quid pro quo
political corruption.”
Id., at 513.[
Footnote 5]
We stayed the Court of Appeals’ decision,
vacated the stay of the District Court’s injunction, see 560 U. S.
___ (2010), and later granted certiorari, 562 U. S. ___ (2010).
II
“Discussion of public issues and
debate on the qualifications of candidates are integral to the
operation” of our system of government.
Buckley v.
Valeo,
424 U.
S. 1, 14 (1976) (
per curiam). As a result, the First
Amendment “ ‘has its fullest and most urgent application’ to
speech ut-tered during a campaign for political office.”
Eu v.
San Francisco County Democratic Central
Comm.,
489 U.
S. 214, 223 (1989) (quoting
Monitor Patriot Co. v.
Roy,
401 U.
S. 265, 272 (1971)). “Laws that burden political speech are”
accordingly “subject to strict scrutiny, which requires the
Government to prove that the restriction furthers a compelling
interest and is narrowly tailored to achieve that interest.”
Citizens United v.
Federal Election Comm’n, 558
U. S. ___, ___ (2010) (slip op., at 23) (internal quotation marks
omitted); see
Federal Election Comm’n v.
Massachusetts
Citizens for Life, Inc.,
479 U. S. 238, 256
(1986).
Applying these principles, we
have invalidated government-imposed restrictions on campaign
expenditures,
Buckley,
supra, at 52–54,
restraints on independent expenditures applied to express advocacy
groups,
Massachusetts Citizens for Life,
supra,
at 256–265, limits on uncoordinated political party expenditures,
Colorado Republican Federal Campaign Comm. v.
Federal
Election Comm’n,
518 U. S. 604, 608
(1996) (opinion of Breyer, J.) (
Colorado I), and
regulations barring unions, nonprofit and other associations, and
corporations from making independent expenditures for
electioneering communication,
Citizens United,
supra, at ___ (slip op., at 57).
At the same time, we have subjected strictures
on campaign-related speech that we have found less onerous to a
lower level of scrutiny and upheld those restrictions. For example,
after finding that the restriction at issue was “closely drawn” to
serve a “sufficiently important interest,” see,
e.g.,
McConnell v.
Federal Election Comm’n,
540 U. S. 93, 136 (2003)
(internal quotation marks omitted);
Nixon v.
Shrink
Missouri Government PAC,
528 U. S. 377, 387–388
(2000) (internal quotation marks omitted), we have upheld
government-imposed limits on contributions to can-didates,
Buckley,
supra, at 23–35, caps on coordinated
party expenditures,
Federal Election Comm’n v.
Colorado Republican Federal Campaign Comm.,
533 U. S. 431, 437
(2001) (
Colorado II), and requirements that political
funding sources disclose their identities,
Citizens
United,
supra, at ___–___ (slip op., at 55–56).
Although the speech of the candidates and
independent expenditure groups that brought this suit is not
directly capped by Arizona’s matching funds provision, those
parties contend that their political speech is substantially
burdened by the state law in the same way that speech was burdened
by the law we recently found invalid in
Davis v.
Federal Election Comm’n,
554 U. S. 724 (2008). In
Davis, we considered a First Amendment challenge to the
so-called “Millionaire’s Amendment” of the Biparti- san Campaign
Reform Act of 2002, 2 U. S. C. §441a–1(a). Under that
Amendment, if a candidate for the United States House of
Representatives spent more than $350,000 of his personal funds, “a
new, asymmetrical regulatory scheme [came] into play.” 554 U. S.,
at 729. The opponent of the candidate who exceeded that limit was
permitted to collect individual contributions up to $6,900 per
contributor—three times the normal contribution limit of $2,300.
See
ibid. The candidate who spent more than the personal
funds limit remained subject to the original contribution cap.
Davis argued that this scheme “burden[ed] his exercise of his First
Amendment right to make unlimited expenditures of his personal
funds because” doing so had “the effect of enabling his opponent to
raise more money and to use that money to finance speech that
counteract[ed] and thus diminishe[d] the effectiveness of Davis’
own speech.”
Id., at 736.
In addressing the constitutionality of the
Millionaire’s Amendment, we acknowledged that the provision did not
impose an outright cap on a candidate’s personal expenditures.
Id., at 738–739. We nonetheless concluded that the
Amendment was unconstitutional because it forced a candidate “to
choose between the First Amendment right to engage in unfettered
political speech and subjection to discriminatory fundraising
limitations.”
Id., at 739. Any candidate who chose to
spend more than $350,000 of his own money was forced to “shoulder a
special and potentially significant burden” because that choice
gave fundraising advantages to the candidate’s adversary.
Ibid. We determined that this constituted an
“unprecedented penalty” and “impose[d] a substantial burden on the
exercise of the First Amendment right to use personal funds for
campaign speech,” and concluded that the Government had failed to
advance any compelling interest that would justify such a burden.
Id., at 739–740.
A
1
The logic of
Davis
largely controls our approach to this case. Much like the burden
placed on speech in
Davis, the matching funds provision
“imposes an unprecedented penalty on any candidate who robustly
exercises [his] First Amendment right[s].”
Id., at 739.
Under that provision, “the vigorous exercise of the right to use
personal funds to finance campaign speech” leads to “advantages for
opponents in the competitive context of electoral politics.”
Ibid.
Once a privately financed
candidate has raised or spent more than the State’s initial grant
to a publicly financed candidate, each personal dollar spent by the
privately financed candidate results in an award of almost one
additional dollar to his opponent. That plainly forces the
privately financed candidate to “shoulder a special and potentially
significant burden” when choosing to exercise his First Amendment
right to spend funds on behalf of his candidacy. Ibid. If the
law at issue in
Davis imposed a burden on candidate
speech, the Arizona law unquestionably does so as well.
The penalty imposed by Arizona’s matching
funds provision is different in some respects from the penalty
imposed by the law we struck down in
Davis. But those
differences make the Arizona law
more constitutionally
problematic, not less. See
Green Party of Conn. v.
Garfield, 616 F. 3d 213, 244–245 (CA2 2010). First,
the penalty in
Davis consisted of raising the contribution
limits for one of the candidates. The candidate who benefited from
the increased limits still had to go out and raise the funds. He
may or may not have been able to do so. The other candidate,
therefore, faced merely the possibility that his opponent would be
able to raise additional funds, through contribution limits that
remained subject to a cap. And still the Court held that this was
an “unprecedented penalty,” a “special and potentially significant
burden” that had to be justified by a compelling state interest—a
rigorous First Amendment hurdle. 554 U. S., at 739–740. Here the
benefit to the publicly financed candidate is the direct and
automatic release of public money. That is a far heavier burden
than in
Davis.
Second, depending on the specifics of the
election at issue, the matching funds provision can create a
multiplier effect. In the Arizona Fourth District House election
pre-viously discussed, see
supra, at 4–6, if the spending
cap were exceeded, each dollar spent by the privately funded
candidate would result in an additional dollar of campaign funding
to each of that candidate’s publicly financed opponents. In such a
situation, the matching funds provi- sion forces privately funded
candidates to fight a political hydra of sorts. Each dollar they
spend generates two adversarial dollars in response. Again, a
markedly more significant burden than in
Davis.
Third, unlike the law at issue in
Davis, all of this is to some extent out of the privately
financed candidate’s hands. Even if that candidate opted to spend
less than the initial public financing cap, any spending by
independent expenditure groups to promote the privately financed
candidate’s election—regardless whether such support was welcome or
helpful—could trigger matching funds. What is more, that state
money would go directly to the publicly funded candidate to use as
he saw fit. That disparity in control—giving money directly to a
publicly financed candidate, in response to independent
expenditures that cannot be coordinated with the privately funded
candidate—is a substantial advantage for the publicly funded
candidate. That candidate can allocate the money according to his
own campaign strategy, which the privately financed candidate could
not do with the independent group expenditures that triggered the
matching funds. Cf.
Citizens United, 558 U. S., at ___
(slip op., at 41) (“ ‘The absence of prearrangement and
coordination of an expenditure with the candidate or his agent …
undermines the value of the expenditure to the candidate’ ”
(quoting
Buckley, 424 U. S., at 47)).
The burdens that this regime places on
independent expenditure groups are akin to those imposed on the
privately financed candidates themselves. Just as with the
candidate the independent group supports, the more money spent on
that candidate’s behalf or in opposition to a publicly funded
candidate, the more money the publicly funded candidate receives
from the State. And just as with the privately financed candidate,
the effect of a dollar spent on election speech is a guaranteed
financial payout to the publicly funded candidate the group
opposes. Moreover, spending one dollar can result in the flow of
dollars to multiple candidates the group disapproves of, dollars
directly controlled by the publicly funded candidate or
candidates.
In some ways, the burden the Arizona law
imposes on independent expenditure groups is worse than the burden
it imposes on privately financed candidates, and thus substantially
worse than the burden we found constitutionally impermissible in
Davis. If a candidate contemplating an electoral run in
Arizona surveys the campaign landscape and decides that the burdens
imposed by the matching funds regime make a privately funded
campaign unattractive, he at least has the option of taking public
financing. Independent expenditure groups, of course, do not.
Once the spending cap is reached, an
independent expenditure group that wants to support a particular
candidate—because of that candidate’s stand on an issue of con-cern
to the group—can only avoid triggering matching funds in one of two
ways. The group can either opt to change its message from one
addressing the merits of the candidates to one addressing the
merits of an issue, or refrain from speaking altogether. Presenting
independent expenditure groups with such a choice makes the
matching funds provision particularly burdensome to those groups.
And forcing that choice—trigger matching funds, change your
message, or do not speak—certainly contravenes “the fundamental
rule of protection under the First Amendment, that a speaker has
the autonomy to choose the content of his own message.”
Hurley v.
Irish-American Gay, Lesbian and Bisexual
Group of Boston, Inc.,
515 U. S. 557, 573
(1995); cf.
Citizens United,
supra, at ___ (slip
op., at 24) (“the First Amendment stands against attempts to
disfavor certain subjects or viewpoints”);
Federal Election
Comm’n v.
Wisconsin Right to Life, Inc.,
551 U. S. 449, 477, n. 9
(2007) (opinion of Roberts, C. J.) (the argument that speakers
can avoid the burdens of a law “by changing what they say” does not
mean the law complies with the First Amendment).[
Footnote 6]
2
Arizona, the Clean Elections
Institute, and the United States offer several arguments attempting
to explain away the existence or significance of any burden imposed
by matching funds. None is persuasive.
Arizona contends that the
matching funds provision is distinguishable from the law we
invalidated in
Davis. The State correctly points out that
our decision in
Davis focused on the asymmetrical
contribution limits imposed by the Millionaire’s Amendment. See 554
U. S., at 729. But that is not because—as the State asserts—the
reach of that opinion is limited to asymmetrical contribution
limits. Brief for State Respondents 26–32. It is because that was
the particular burden on candidate speech we faced in
Davis. And whatever the significance of the distinction in
general, there can be no doubt that the burden on speech is
significantly greater in this case than in
Davis: That
means that the law here—like the one in
Davis—must be
justified by a compelling state interest.
The State argues that the matching funds
provision actually results in more speech by “increas[ing] debate
about issues of public concern” in Arizona elections and
“promot[ing] the free and open debate that the First Amendment was
intended to foster.” Brief for State Respondents 41; see Brief for
Respondent Clean Elections Institute 55. In the State’s view, this
promotion of First Amendment ideals offsets any burden the law
might impose on some speakers.
Not so. Any increase in speech resulting from
the Arizona law is of one kind and one kind only—that of publicly
financed candidates. The burden imposed on privately financed
candidates and independent expenditure groups reduces their speech;
“restriction[s] on the amount of money a person or group can spend
on political communication during a campaign necessarily reduces
the quantity of expression.”
Buckley, 424 U. S.
,
at 19. Thus, even if the matching funds provision did result in
more speech by publicly financed candidates and more speech in
general, it would do so at the expense of impermissibly burdening
(and thus reducing) the speech of privately financed candidates and
independent expenditure groups. This sort of “beggar thy neighbor”
approach to free speech—“restrict[ing] the speech of some elements
of our society in order to enhance the relative voice of others”—is
“wholly foreign to the First Amendment.”
Id., at
48–49.[
Footnote 7]
We have rejected government efforts to
increase the speech of some at the expense of others outside the
campaign finance context. In
Miami Herald Publishing Co.
v.
Tornillo,
418 U. S. 241, 244, 258
(1974), we held unconstitutional a Florida law that required any
newspaper assailing a political candidate’s character to allow that
candidate to print a reply. We have explained that while the
statute in that case “purported to advance free discussion, … its
effect was to deter newspapers from speaking out in the first
instance” because it “penalized the newspaper’s own expression.”
Pacific Gas & Elec. Co. v.
Public Util. Comm’n of
Cal.,
475
U. S. 1, 10 (1986) (plurality opinion). Such a penalty, we
concluded, could not survive First Amendment scrutiny. The Arizona
law imposes a similar penalty: The State grants funds to publicly
financed candidates as a direct result of the speech of privately
financed candidates and independent expenditure groups. The
argument that this sort of burden promotes free and robust
discussion is no more persuasive here than it was in
Tornillo.[
Footnote
8]
Arizona asserts that no “candidate or
independent ex-penditure group is ‘obliged personally to express a
message he disagrees with’ ” or “ ‘required by the
government to subsidize a message he disagrees with.’ ” Brief
for State Respondents 32 (quoting
Johanns v.
Livestock
Marketing Assn.,
544 U. S. 550, 557
(2005)). True enough. But that does not mean that the matching
funds provision does not burden speech. The direct result of the
speech of pri-vately financed candidates and independent
expenditure groups is a state-provided monetary subsidy to a
political rival. That cash subsidy, conferred in response to
political speech, penalizes speech to a greater extent and more
directly than the Millionaire’s Amendment in
Davis. The
fact that this may result in more speech by the other candidates is
no more adequate a justification here than it was in
Davis. See 554 U. S., at 741–742.
In disagreeing with our conclusion, the
dissent relies on cases in which we have upheld government
subsidies against First Amendment challenge, and asserts that “[w]e
have never, not once, understood a viewpoint-neutral subsidy given
to one speaker to constitute a First Amendment burden on another.”
Post, at 16. But none of those cases—not one—involved a
subsidy given in direct response to the political speech of
another, to allow the recipient to counter that speech. And nothing
in the analysis we employed in those cases suggests that the
challenged subsidies would have survived First Amendment scrutiny
if they were triggered by someone else’s political speech.[
Footnote 9]
The State also argues, and the Court of
Appeals concluded, that any burden on privately financed candidates
and independent expenditure groups is more analogous to the burden
placed on speakers by the disclosure and disclaimer requirements we
recently upheld in
Citizens United than to direct
restrictions on candidate and independent expenditures
.
See 611 F. 3d, at 525; Brief for State Respondents 21, 35;
Brief for Respondent Clean Elections Institute 16–17. This analogy
is not even close. A political candidate’s disclosure of his
funding resources does not result in a cash windfall to his
opponent, or affect their respective disclosure obligations.
The State and the Clean Elections Institute
assert that the candidates and independent expenditure groups have
failed to “cite specific instances in which they decided not to
raise or spend funds,” Brief for State Respondents 11; see
id., at 11–12, and have “failed to present any reliable
evidence that Arizona’s triggered matching funds deter their
speech,” Brief for Respondent Clean Elections Institute 6; see
id., at 6–8. The record in this case, which we must review
in its entirety, does not support those assertions. See
Bose
Corp. v.
Consumers Union of United States, Inc.,
466 U. S. 485,
499 (1984).
That record contains examples of specific
candidates curtailing fundraising efforts, and actively
discouraging supportive independent expenditures, to avoid
triggering matching funds. See,
e.g., App. 567 (Rick
Murphy), 578 (Dean Martin); App. to Pet. for Cert. in No. 10–239,
at 329 (John McComish), 300 (Tony Bouie). The record also includes
examples of independent expenditure groups deciding not to speak in
opposition to a candidate, App. 569 (Arizona Taxpayers Action
Committee), or in support of a candidate,
id., at 290
(Club for Growth), to avoid triggering matching funds. In addition,
Dr. David Primo, an expert involved in the case, “found that
privately financed candidates facing the prospect of triggering
matching funds changed the timing of their fundraising activities,
the timing of their expenditures, and, thus, their overall campaign
strategy.” Reply Brief for Petitioner Arizona Free Enterprise
Club’s (AFEC) Freedom Club PAC et al. 12; see also
id., at
11–17 (listing additional sources of evidence detailing the burdens
imposed by the matching funds provision); Brief for Petitioner
AFEC’s Freedom Club PAC et al. 14–21 (AFEC Brief) (same);
Brief for Petitioner McComish et al. 30–37 (same).
The State contends that if the matching funds
provision truly burdened the speech of privately financed
candidates and independent expenditure groups, spending on behalf
of privately financed candidates would cluster just below the
triggering level, but no such phenomenon has been observed. Brief
for State Respondents 39; Brief for Respondent Clean Elections
Institute 18–19. That should come as no surprise. The hypothesis
presupposes a privately funded candidate who would spend his own
money just up to the matching funds threshold, when he could have
simply taken matching funds in the first place.
Furthermore, the Arizona law takes into
account all manner of uncoordinated political activity in awarding
matching funds. If a privately funded candidate wanted to hover
just below the triggering level, he would have to make guesses
about how much he will receive in the form of contributions and
supportive independent expenditures. He might well guess wrong.
In addition, some candidates may be willing to
bear the burden of spending above the cap. That a candidate is
willing to do so does not make the law any less burdensome. See
Davis, 554 U. S., at 739 (that candidates may choose to
make “personal expenditures to support their campaigns” despite the
burdens imposed by the Millionaire’s Amendment does not change the
fact that “they must shoulder a special and potentially significant
burden if they make that choice”). If the State made privately
funded candidates pay a $500 fine to run as such, the fact that
candidates might choose to pay it does not make the fine any less
burdensome.
While there is evidence to support the
contention of the candidates and independent expenditure groups
that the matching funds provision burdens their speech, “it is
never easy to prove a negative”—here, that candidates and groups
did not speak or limited their speech because of the Arizona law.
Elkins v.
United States,
364 U. S. 206, 218
(1960). In any event, the burden imposed by the matching funds
provision is evident and inherent in the choice that confronts
privately financed candidates and independent expenditure groups.
Cf.
Davis, 554 U. S., at 738–740. Indeed even candidates
who sign up for public funding recognize the burden matching funds
impose on private speech, stating that they participate in the
program because “matching funds … discourage[ ] opponents,
special interest groups, and lobbyists from campaigning against”
them. GAO, Campaign Finance Reform: Experiences of Two States that
Offered Full Public Funding for Political Candidates 27
(GAO–10–390, 2010). As in
Davis, we do not need empirical
evidence to determine that the law at issue is burdensome. See 554
U. S., at 738–740 (requiring no evidence of a burden
whatsoever).
It is clear not only to us but to every other
court to have considered the question after
Davis that a
candidate or independent group might not spend money if the direct
result of that spending is additional funding to political
adversaries. See,
e.g., Green Party of Conn., 616
F. 3d, at 242 (matching funds impose “a substantial burden on
the exercise of First Amendment rights” (internal quotation marks
omitted));
McComish v.
Bennett, 611 F. 3d,
at 524 (matching funds create “potential chilling effects” and
“impose some First Amendment burden”);
Scott v.
Roberts, 612 F. 3d 1279, 1290 (CA11 2010) (“we think
it is obvious that the [matching funds] subsidy imposes a burden on
[privately financed] candidates”);
id., at 1291 (“we know
of no court that doubts that a [matching funds] subsidy like the
one at issue here burdens” the speech of privately financed
candidates); see also
Day v.
Holahan, 34
F. 3d 1356, 1360 (CA8 1994) (it is “clear” that matching funds
provisions infringe on “protected speech because of the chilling
effect” they have “on the political speech of the person or group
making the [triggering] expenditure” (cited in
Davis,
supra, at 739)). The dissent’s disagreement is little more
than disagreement with
Davis.
The State correctly asserts that the
candidates and independent expenditure groups “do not … claim that
a single lump sum payment to publicly funded candidates,”
equivalent to the maximum amount of state financing that a
candidate can obtain through matching funds, would impermissibly
burden their speech. Brief for State Respondents 56; see Tr. of
Oral Arg. 5. The State reasons that if providing all the money up
front would not burden speech, providing it piecemeal does not do
so either. And the State further argues that such incremental
administration is necessary to ensure that public funding is not
under- or over-distributed. See Brief for State Respondents
56–57.
These arguments miss the point. It is not the
amount of funding that the State provides to publicly financed
candidates that is constitutionally problematic in this case. It is
the manner in which that funding is provided—in direct response to
the political speech of privately financed candidates and
independent expenditure groups. And the fact that the State’s
matching mechanism may be more efficient than other
alternatives—that it may help the State in “finding the sweet-spot”
or “fine-tuning” its financing system to avoid a drain on public
resources,
post, at 26 (Kagan, J., dissenting)—is of no
moment; “the First Amendment does not permit the State to sacrifice
speech for efficiency.”
Riley v.
National Federation
of Blind of N. C., Inc.,
487 U. S. 781, 795
(1988).
The United States as
amicus contends
that “[p]roviding additional funds to petitioners’ opponents does
not make petitioners’ own speech any less effective” and thus does
not substantially burden speech. Brief for United States 27. Of
course it does. One does not have to subscribe to the view that
electoral debate is zero sum, see AFEC Brief 30, to see the flaws
in the United States’ perspective. All else being equal, an
advertisement supporting the election of a candidate that goes
without a response is often more effective than an advertisement
that is directly controverted. And even if the publicly funded
candidate decides to use his new money to address a different issue
altogether, the end goal of that spending is to claim electoral
victory over the opponent that triggered the additional state
funding. See
Davis, 554 U. S., at 736.
B
Because the Arizona matching
funds provision imposes a substantial burden on the speech of
privately financed candidates and independent expenditure groups,
“that pro-vision cannot stand unless it is ‘justified by a
compelling state interest,’ ”
id., at 740 (quoting
Massachusetts Citizens for Life, 479 U. S., at 256).
There is a debate between the
parties in this case as to what state interest is served by the
matching funds provision. The privately financed candidates and
independent expenditure groups contend that the provision works to
“level[ ] electoral opportunities” by equalizing candidate
“resources and influence.” Brief for Petitioner McComish
et al. 64; see AFEC Brief 23. The State and the Clean
Elections Institute counter that the provision “furthers Arizona’s
interest in preventing corruption and the appearance of
corruption.” Brief for State Respondents 42; Brief for Respondent
Clean Elections Institute 47.
1
There is ample support for the
argument that the matching funds provision seeks to “level the
playing field” in terms of candidate resources. The clearest
evidence is of course the very operation of the provision: It
ensures that campaign funding is equal, up to three times the
initial public funding allotment. The text of the Citizens Clean
Elections Act itself confirms this purpose. The sta-tutory
provision setting up the matching funds regime is titled “Equal
funding of candidates.” Ariz. Rev. Stat. Ann. §16–952 (West Supp.
2010). The Act refers to the funds doled out after the Act’s
matching mechanism is triggered as “equalizing funds.” See
§§16–952(C)(4), (5). And the regulations implementing the matching
funds provision refer to those funds as “equalizing funds” as well.
See Citizens Clean Elections Commission, Ariz. Admin. Rule
R2–20–113.
Other features of the Arizona law
reinforce this understanding of the matching funds provision. If
the Citizens Clean Election Commission cannot provide publicly
financed candidates with the moneys that the matching funds
provision envisions because of a shortage of funds, the statute
allows a publicly financed candidate to “accept private
contributions to bring the total monies received by the candidate”
up to the matching funds amount. Ariz. Rev. Stat. Ann. §16–954(F)
(West 2006). Limiting contributions, of course, is the primary
means we have upheld to combat corruption.
Buckley, 424 U.
S., at 23–35, 46–47. Indeed the State argues that one of the
principal ways that the matching funds provision combats corruption
is by eliminating the possibility of any
quid pro quo
between private interests and publicly funded candidates by
eliminating contributions to those candidates altogether. See Brief
for State Respondents 45–46. But when confronted with a choice
between fighting corruption and equalizing speech, the drafters of
the matching funds provision chose the latter. That significantly
undermines any notion that the “Equal funding of candidates”
provision is meant to serve some interest other than an interest in
equalizing funds.[
Footnote
10]
We have repeatedly rejected the argument that
the government has a compelling state interest in “leveling the
playing field” that can justify undue burdens on political speech.
See,
e.g., Citizens United, 558 U. S., at ___
(slip op., at 34). In
Davis, we stated that discriminatory
contribution limits meant to “level electoral opportunities for
candidates of different personal wealth” did not serve “a
legitimate government objective,” let alone a compelling one. 554
U. S., at 741 (internal quotation marks omitted). And in
Buckley, we held that limits on overall campaign
expenditures could not be justified by a purported govern-ment
“interest in equalizing the financial resources of candidates.” 424
U. S., at 56; see
id., at 56–57. After all, equalizing
campaign resources “might serve not to equalize the opportunities
of all candidates, but to handicap a candidate who lacked
substantial name recognition or exposure of his views before the
start of the campaign.”
Id., at 57.
“Leveling electoral opportunities means making
and implementing judgments about which strengths should be
permitted to contribute to the outcome of an election,”
Davis,
supra, at 742—a dangerous enterprise and
one that cannot justify burdening protected speech. The dissent
essentially dismisses this concern, see
post, at 27–29,
but it needs to be taken seriously; we have, as noted, held that it
is not legitimate for the government to attempt to equalize
electoral opportunities in this manner. And such basic intrusion by
the government into the debate over who should govern goes to the
heart of First Amendment values.
“Leveling the playing field” can sound like a
good thing. But in a democracy, campaigning for office is not a
game. It is a critically important form of speech. The First
Amendment embodies our choice as a Nation that, when it comes to
such speech, the guiding principle is freedom—the “unfettered
interchange of ideas”—not whatever the State may view as fair.
Buckley,
supra, at 14 (internal quotation marks
omitted).
2
As already noted, the State and
the Clean Elections Institute disavow any interest in “leveling the
playing field.” They instead assert that the “Equal funding of
candidates” provision, Ariz. Rev. Stat. Ann. §16–952 (West Supp.
2010), serves the State’s compelling interest in combating
corruption and the appearance of corruption. See,
e.g.,
Davis,
supra, at 740;
Wisconsin Right to
Life, 551 U. S., at 478–479 (opinion of Roberts, C. J.).
But even if the ultimate objective of the matching funds provision
is to combat corruption—and not “level the playing field”—the
burdens that the matching funds provision imposes on protected
political speech are not justified.
Burdening a candidate’s
expenditure of his own funds on his own campaign does not further
the State’s anticorruption interest. Indeed, we have said that
“reliance on personal funds
reduces the threat of
corruption” and that “discouraging [the] use of personal
funds[ ] disserves the anticorruption interest.”
Davis,
supra, at 740–741. That is because “the
use of personal funds reduces the candidate’s dependence on outside
contributions and thereby counteracts the coercive pressures and
attendant risks of abuse” of money in politics.
Buckley,
supra, at 53. The matching funds provision counts a
candidate’s expenditures of his own money on his own campaign as
contributions, and to that extent cannot be supported by any
anticorruption interest.
We have also held that “independent
expenditures … do not give rise to corruption or the appearance of
corruption.”
Citizens United, 558 U. S., at ___ (slip op.,
at 42). “By definition, an independent expenditure is political
speech presented to the electorate that is not coordi- nated with a
candidate.”
Id., at ___ (slip op., at 44). The
candidate-funding circuit is broken. The separation between
candidates and independent expenditure groups negates the
possibility that independent expenditures will result in the sort
of
quid pro quo corruption with which our case law is
concerned. See
id., at ___–___ (slip op., at 42–45); cf.
Buckley, 424 U. S., at 46. Including independent
expenditures in the matching funds provision cannot be supported by
any anticorruption interest.
We have observed in the past that “[t]he
interest in alleviating the corrupting influence of large
contributions is served by … contribution limitations.”
Id., at 55. Arizona already has some of the most austere
contribution limits in the United States. See
Randall v.
Sorrell,
548 U. S. 230, 250–251
(2006) (plurality opinion). Contributions to statewide candidates
are limited to $840 per contributor per election cycle and
contributions to legislative candidates are limited to $410 per
contributor per election cycle. See Ariz. Rev. Stat. Ann.
§§16–905(A)(1), 941(B)(1); Ariz. Dept. of State, Office of the
Secretary of State, 2009–2010 Contribution Limits, see
supra, at 4. Arizona also has stringent fundraising
disclosure requirements. In the face of such ascetic contribution
limits, strict disclosure requirements, and the general
availability of public funding, it is hard to imagine what marginal
corruption deterrence could be generated by the matching funds
provision.
Perhaps recognizing that the burdens the
matching funds provision places on speech cannot be justified in
and of themselves, either as a means of leveling the playing field
or directly fighting corruption, the State and the Clean Elections
Institute offer another argument: They contend that the provision
indirectly serves the anticorruption interest, by ensuring that
enough candidates participate in the State’s public funding system,
which in turn helps combat corruption.[
Footnote 11] See Brief for State Respondents 46–47;
Brief for Respondent Clean Elections Institute 47–49. We have said
that a voluntary system of “public financing as a means of
eliminating the improper influence of large private contributions
furthers a significant governmental interest.”
Buckley,
supra, at 96. But the fact that burdening constitutionally
protected speech might indirectly serve the State’s anticorruption
interest, by encouraging candidates to take public financing, does
not establish the constitutionality of the matching funds
provision.
We have explained that the matching funds
provision substantially burdens the speech of privately financed
candidates and independent groups. It does so to an even greater
extent than the law we invalidated in
Davis. We have
explained that those burdens cannot be justified by a desire to
“level the playing field.” We have also explained that much of the
speech burdened by the matching funds provision does not, under our
precedents, pose a danger of corruption. In light of the foregoing
analysis, the fact that the State may feel that the matching funds
provision is necessary to allow it to “find[ ] the sweet-spot”
and “fine-tun[e]” its public funding system,
post, at 26
(Kagan, J., dissenting), to achieve its desired level of
participation without an undue drain on public resources, is not a
sufficient justification for the burden.
The flaw in the State’s argument is apparent
in what its reasoning would allow. By the State’s logic it could
grant a publicly funded candidate five dollars in matching funds
for every dollar his privately financed opponent spent, or force
candidates who wish to run on private funds to pay a $10,000 fine
in order to encourage participation in the public funding regime.
Such measures might well promote participation in public financing,
but would clearly suppress or unacceptably alter political speech.
How the State chooses to encourage participation in its public
funding system matters, and we have never held that a State may
burden political speech—to the extent the matching funds provision
does—to ensure adequate participation in a public funding system.
Here the State’s chosen method is unduly burdensome and not
sufficiently justified to survive First Amendment scrutiny.
III
We do not today call into
question the wisdom of public financing as a means of funding
political candidacy. That is not our business. But determining
whether laws governing campaign finance violate the First Amendment
is very much our business. In carrying out that responsibility over
the past 35 years, we have upheld some restrictions on speech and
struck down others. See,
e.g., Buckley,
supra, at 35–38, 51–54 (upholding contribution limits and
striking down expenditure limits);
Colorado I, 518 U. S.,
at 608 (opinion of Breyer, J.) (invalidating ban on independent
expenditures for electioneering communication);
Colorado
II, 533 U. S., at 437 (upholding caps on coordinated party
expenditures);
Davis, 554 U. S., at 736 (invalidating
asymmetrical contribution limits triggered by candidate
spending).
We have said that governments
“may engage in public financing of election campaigns” and that
doing so can further “significant governmental interest[s],” such
as the state interest in preventing corruption.
Buckley,
424 U. S., at 57, n. 65, 92–93, 96. But the goal of creating a
viable public financing scheme can only be pursued in a manner
consistent with the First Amendment. The dissent criticizes the
Court for standing in the way of what the people of Arizona want.
Post, at 2–3, 31–32. But the whole point of the First
Amendment is to protect speakers against unjustified government
restrictions on speech, even when those restrictions reflect the
will of the majority. When it comes to protected speech, the
speaker is sovereign.
Arizona’s program gives money to a candidate
in direct response to the campaign speech of an opposing candidate
or an independent group. It does this when the opposing candidate
has chosen not to accept public financing, and has engaged in
political speech above a level set by the State. The professed
purpose of the state law is to cause a sufficient number of
candidates to sign up for public financing, see
post, at
5, which subjects them to the various restrictions on speech that
go along with that program. This goes too far; Arizona’s matching
funds provision substantially burdens the speech of privately
financed candidates and independent expenditure groups without
serving a compelling state interest.
“[T]here is practically universal agreement
that a major purpose of” the First Amendment “was to protect the
free discussion of governmental affairs,” “includ[ing] discussions
of candidates.”
Buckley, 424 U. S., at 14 (internal
quotation marks omitted; second alteration in original). That
agreement “reflects our ‘profound national commitment to the
principle that debate on public issues should be uninhibited,
robust, and wide-open.’ ”
Ibid. (quoting
New York
Times Co. v.
Sullivan,
376 U. S. 254, 270
(1964)). True when we said it and true today. Laws like Arizona’s
matching funds provision that inhibit robust and wide-open
political debate without sufficient justification cannot stand.
The judgment of the Court of Appeals for the
Ninth Circuit is reversed.
It is so ordered.
Footnote 1
The number of qualifying contributions ranges
from 200 for a candidate for the state legislature to 4,000 for a
candidate for Governor. Ariz. Rev. Stat. Ann. §16–950(D) (West
Supp. 2010).
Footnote 2
Publicly financed candidates who run
unopposed, or who run as the representative of a party that does
not have a primary, may receive less funding than candidates
running in contested elections. See §§16–951(A)(2)–(3) and (D)
(West 2006).
Footnote 3
Maine and North Carolina have both passed
matching funds statutes that resemble Arizona’s law. See Me. Rev.
Stat. Ann., Tit. 21–A, §§1125(8), (9) (2008); N. C. Gen. Stat.
Ann. §163–278.67 (Lexis 2009). Minnesota, Connecticut, and Florida
have also adopted matching funds provisions, but courts have
enjoined the enforcement of those schemes after concluding that
their operation violates the First Amendment. See
Day v.
Holahan, 34 F. 3d 1356, 1362 (CA8 1994);
Green
Party of Conn. v.
Garfield, 616 F. 3d 213, 242
(CA2 2010);
Scott v.
Roberts, 612 F. 3d
1279, 1297–1298 (CA11 2010).
Footnote 4
Judge Bea dissented from the stay of the
District Court’s injunction, stating that the Arizona public
financing system unconstitutionally prefers publicly financed
candidates and that under the matching funds scheme “it makes no
more sense for [a privately financed candidate or independent
expenditure group] to spend money now than for a poker player to
make a bet if he knows the house is going to match his bet for his
opponent.” App. to Pet. for Cert. in No. 10–239, p. 87; see
id., at 89.
Footnote 5
One judge concurred, relying primarily on his
view that “the Arizona public financing scheme imposes no
limitations whatsoever on a candidate’s speech.” 611 F. 3d, at
527 (Kleinfeld, J.).
Footnote 6
The dissent sees “
chutzpah” in
candidates exercising their right not to participate in the public
financing scheme, while objecting that the system violates their
First Amendment rights. See
post, at 12 (opinion of Kagan,
J.). The charge is unjustified, but, in any event, it certainly
cannot be leveled against the independent expenditure groups. The
dissent barely mentions such groups in its analysis, and fails to
address not only the distinctive burdens imposed on these groups—as
set forth above—but also the way in which privately financed
candidates are particularly burdened when matching funds are
triggered by independent group speech.
Footnote 7
The dissent also repeatedly
argues that the Arizona matching funds regime results in
“
more political speech,”
post, at 9 (emphasis in
original); see
post, at 2, 10, 13, 16, 32, but—given the
logic of the dissent’s position—that is only as a step to
less speech. If the matching funds provision achieves its
professed goal and causes candidates to switch to public financing,
post, at 25, 30, there will be less speech: no spending
above the initial state-set amount by formerly privately financed
candidates, and no associated matching funds for anyone. Not only
that, the level of speech will depend on the State’s judgment of
the desirable amount, an amount tethered to available (and often
scarce) state resources.
Footnote 8
Along the same lines, we have invalidated
government mandates that a speaker “help disseminate hostile views”
opposing that speaker’s message.
Pacific Gas & Elec.
Co. v.
Public Util. Comm’n of Cal.,
475 U. S. 1, 14 (1986) (plurality
opinion). In
Pacific Gas, we found a public utility
commission order forcing a utility company to disseminate in its
billing envelopes views that the company opposed ran afoul of the
First Amendment. That case is of course distinguishable from the
instant case on its facts, but the central concern—that an
individual should not be compelled to “help disseminate hostile
views”—is implicated here as well.
Ibid. If a candidate
uses his own money to engage in speech above the initial public
funding threshold, he is forced to “help disseminate hostile views”
in a most direct way—his own speech triggers the release of state
money to his opponent.
Footnote 9
The dissent cites
Buckley in
response, see
post, at 12, n. 3, but the funding in
Buckley was of course not triggered by the speech of a
publicly funded candidate’s political opponent, or the speech of
anyone else for that matter. See 424 U. S., at 91–95. Whether
Arizona’s matching funds provision comports with the First
Amendment is not simply a question of whether the State can give a
subsidy to a candidate to fund that candidate’s election, but
whether that subsidy can be triggered by the speech of another
candidate or independent group.
Footnote 10
Prior to oral argument in this case, the
Citizens Clean Elections Commission’s Web site stated that
“ ‘The Citizens Clean Elections Act was passed by the people
of Arizona in 1998 to level the playing field when it comes to
running for office.’ ” AFEC Brief 10, n. 3 (quoting
http://www.azcleanelections.gov/about-us/get-involved.aspx); Tr. of
Oral Arg. 48. The Web site now says that “The Citizens Clean
Elections Act was passed by the people of Arizona in 1998 to
restore citizen participation and confidence in our political
system.”
Footnote 11
The State claims that the Citizens Clean
Elections Act was passed in response to rampant corruption in
Arizona politics—elected officials “literally taking duffle bags
full of cash in exchange for sponsoring legislation.” Brief for
State Respondents 45. That may be. But, as the candidates and
independent expenditure groups point out, the corruption that
plagued Arizona politics is largely unaddressed by the matching
funds regime. AFEC Brief 11, n. 4. Public financing does
nothing to prevent politicians from accepting bribes in exchange
for their votes.
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