If the Government Can't Ban Speech, Can It Compel It?

In Citizens United v. FEC the Supreme Court rejected the idea that the government may determine whose speech is worthy of protection under the First Amendment. As a result of the decision, individuals, small businesses, corporations, labor unions, and non-profit organizations may all engage in political speech. It is not the bailiwick of government bureaucrats to judge and determine who should be allowed to speak. As Chief Justice John Roberts has remarked: “We don’t put our First Amendment rights in the hands of FEC bureaucrats.” Citizens United appropriately limited the government’s ability to regulate and prohibit speech.

Another case that questions the ability of the government to regulate speech is currently before the Supreme Court: Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett. This case deals with Arizona’s “clean elections” campaign financing system.

There have been many attempts to create systems where the government subsidizes campaigns. Most label these systems “public financing,” but in reality they are anything but. The truest form of “public financing” is a system in which citizens can voluntarily contribute to those candidates which they support. Each and every government subsidized system undermines the sovereignty of the American people.

The most recognizable of these systems is the presidential financing system, which allows individuals to make a voluntary contribution to help finance presidential campaigns when filing their annual tax return. Once a candidate agrees to participate in this financing system they must adhere to guidelines established by the federal government. As the flaws of this system have become more apparent, even liberal politicians like Barack Obama have opted out of the system. In seeking to trim waste from the federal budget, Republican Members of Congress have attempted to curtail this misguided program.

While the federal government created a troublesome (though voluntary) system to which citizens could choose to contribute, Arizona has taken a different (and far more suspect) approach. In 1998 the people of Arizona narrowly enacted the Arizona Citizens Clean Elections Act. The Act provides subsidies to candidates who agree to be bound by state imposed spending limits. To qualify for these subsidies candidates must raise a threshold amount of contributions in small dollar donations. In effect, a “clean elections” candidate is rewarded by the state for choosing to handicap his or her own campaign.

The “clean elections” system goes even further and additionally rewards the “clean elections” candidate for activities beyond his or her control. For example, should a “clean elections” candidate’s opponent self-finance their campaign, an additional subsidy will be paid to the “clean elections” candidate. Also, if an independent group supports his or her opponent by making independent expenditures, an additional subsidy will be paid to the “clean elections” candidate. The Arizona government is attempting to level the playing field, which is a governmental purpose that has been thoroughly rejected by the Supreme Court.

While the rules triggering these “clean elections” subsidies are suspect, the source of the subsidy funds is even more troubling. Arizona finances their “clean elections” subsidies by imposing a ten percent surcharge on civil penalties and criminal fines. Citizens are forced to subsidize speech. Unlike the presidential financing system, this is involuntary. Should you get a traffic ticket, you must subsidize political speech. Get caught violating local hunting or fishing ordinances, you must subsidize political speech. These surcharges account for 53% of all “clean elections” funding. Even if you are vehemently opposed to the candidates and their platforms, the government will give them your money.

In a free society we must be skeptical when the government endorses the speech of one over another. Under the “clean elections” system, the government of Arizona does not merely endorse speech, but in fact compels individuals to finance others’ speech. This is a clear affront to the First Amendment that cannot be allowed to stand.

In Citizens United the Court addressed whether the government could prohibit speech. In Arizona Free Enterprise Club the Court must now address whether the government may compel you to subsidize speech with which you may not agree. Citizens United has signed on to an Amicus Brief opposing this system of subsidized speech. Much like how the government cannot deny anyone the opportunity to speak, it should not be able to compel you to finance the speech of others.