Sounds like a sticky hypothetical, but something along those lines happened Monday in oral argument before the U.S. Supreme Court. The case was a challenge to Arizona's law that provides additional campaign funding to a candidate who accepts public funding whenever an independent group spends more than a certain amount campaigning against the candidate, or, the candidate's opponent refuses public funding and spends more than a trigger amount on the campaign. If the law was enacted to "level the playing" field for candidates who aren't rich or don't attract large amounts of third party expenditures, then it almost certainly runs afoul of the First Amendment based on prior case law. If the law was enacted as an anti-corruption measure then it's on much sounder ground. And so it was that this interesting exchange occurred during yesterday's argument:
Chief Justice Roberts: Counsel, do you agree that under our precedents, leveling the playing field for candidates is not a legitimate State purpose?
Mr. Jay: We do, Mr. Chief Justice. That -- that, of course, is not what's a work here.
Chief Justice Roberts: Well, I checked the Citizens' Clean Elections Commission website this morning, and it says that this act was passed to, quote, "level the playing field" when it comes to running for office. Why isn't that clear evidence that it's unconstitutional?
The beleaguered Mr. Jay gave what is likely the best (and only) answer possible under the circumstances:
Mr. Jay: Well, Mr. Chief Justice, whatever the Citizens Clean Elections Commission says on its web site I think isn't dispositive of what the voters of Arizona had in mind when they passed this initiative. The Court -- this Court has recognized since Buckley that public financing serves a valid anticorruption purpose, and it does so because it eliminate the influence of private contributions on the candidates who take public financing...
Most post-mortems of the oral argument predicted that the Court will hold against the public finance law, with the same majority that decided Citizens United.
Here's the transcript of the oral argument.
