On June 27, the U.S. Supreme Court struck down part of Arizona’s program for public funding of candidates. Here is the opinion, which is called Arizona Free Enterprise Club’s Freedom Club PAC v Bennett, 10-238. The majority opinion, by Chief Justice John Roberts, is 30 pages. The dissent, by Justice Elena Kagan and signed by the Court’s other three liberals, is 32 pages.
The part of the law struck down provides for extra public funding, for publicly-funded candidates who have privately-financed opponents. The extra public funding kicks in if the privately-financed opponent spends a great deal more money than the amount of money given by the government to the publicly-financed candidate. The extra public funding also is triggered if there is a great deal of independent expenditure made on behalf of the privately-funded candidate.
The majority decision gives little clue as to what the five-member majority thinks about public funding laws that discriminate against independent candidates and the nominees of new parties. Arizona does not discriminate for or against any candidate on the basis of party affiliation or lack of it, so that issue did not arise in the Arizona case. That issue is before the court in the Green Party case from Connecticut. The Arizona dissent does make a brief reference to the independent candidate/minor party issue, however. Page two of Justice Kagan’s dissent sets forth two hypothetical states, both of which have public funding. In her hypothetical, the first state doesn’t have the extra public funding for certain candidates that Arizona’s law has provided. In her second hypothetical state, that state does have Arizona-style extra public funding. But in Kagan’s hypothetical scenario, that second state (which she clearly approves of) “does not discriminate against any candidate or point of view.” This sentence at least tells us that Justice Kagan is aware of the problem that certain states (e.g., Connecticut) do discriminate on the basis of partisan affiliation or lack of it.
The big news will come when the Court says whether it will hear the Connecticut case. That news will probably come Tuesday, June 28. The Connecticut case has been pending before the Court since March. The Court has understandably not said whether it will hear the case, while the Arizona decision was pending. But now we can expect the decision on whether the Court will hear the Connecticut case tomorrow. It was on Conference today, June 27.