This morning, the Supreme Court of the United States issued the long-anticipated decision in the AZ Free Enterprise Club vs. Bennett (.pdf of opinion) campaign finance case. The Congress Shall Make No Law blog has a good summary and excellent round-up of coverage. Other good blog coverage can be found at Reason, Josh Blackman’s Blog, and WSJ Law Blog.
Given the substantial coverage and analysis everywhere, I’d just like to focus on one specific issue.
The most junior justice, Elena Kagan, wrote the dissent and, in so doing, has lost all intellectual credibility as far as I am concerned. Apparently neither she nor her clerks actually looked at the factual record in the case — or she was willing to simply ignore it. The primary issue before the Court was whether the matching funds provision of Arizona’s public campaign financing law unconstitutionally burdened free speech. A key part of that First Amendment analysis is looking to whether the government’s purpose in passing the law at issue is a compelling one that the law is narrowly tailored to achieve.
In 2008, the Supreme Court, in Davis v. FEC, declared that to “level the playing field” is not a compelling government interest that would support a campaign finance restriction. Naturally, this had a huge impact on the Arizona case given the massive reams of evidence that the proponents of so-called “Clean Elections” in Arizona specifically intended as a primary purpose to level the playing field with the law. IJ’s summary judgment brief (.pdf) discusses this issue and points to an Exhibit 17. That exhibit was comprised of a lengthy table of documented examples proving that, as one proponent stated, “Clean Elections is NOT about public funding. It’s about spending limits, getting rid of special interests, and leveling the playing field.”
Interestingly, the Clean Elections Commission took the position throughout litigation post-Davis that the Act’s purpose was NOT to level the playing field, but rather to reduce corruption. This is interesting because, both during the discovery phase of the case in 2009 and STILL at the time of oral argument earlier in 2011, the CEC’s website declared the Act’s purpose to be leveling the playing field.
Which brings us back to this excerpt from Justice Kagan’s dissent:
Yet here the majority makes a much stranger claim: that a statement appearing on a government website in 2011 (written by who-knows-whom?) reveals what hundreds of thousands of Arizona’s voters sought to do in 1998 when they enacted the Clean Elections Act by referendum. Just to state that proposition is to know it is wrong.
So the majority has no evidence—zero, none—that the objective of the Act is anything other than the interest that the State asserts, the Act proclaims, and the history of public financing supports: fighting corruption.
Folks, this is what is known as a “straw man” argument. Justice Kagan props up the straw man of the majority’s reference to the Clean Election Commission’s 2011 website so she can beat it down. Nevermind that the majority only noted in passing that the website in 2011 STILL claimed the purpose of Arizona’s law was to “level the playing field” — as the majority explained (and I described above), the record supported a clear finding that the law from the beginning was clearly intended for this primary purpose.
Justice Kagan’s failure to take note of the factual record in her declaration that there was “no evidence — zero, none” was reminiscent of this portion of the oral argument in which Justice Scalia, well, spanked weasely attorney Brad Phillips for misrepresenting the status of the record:
MR. PHILLIPS: Well, Your Honor, independent expenditure groups – there’s no evidence that it really in fact has been deterred.
* * *
JUSTICE SCALIA: I don’t know how you can say that there’s no evidence that it’s been deterred. Is something true just because you say it? [Justice Scalia proceeds to note all the evidence in the record]I do not understand how you can say that there is no evidence. I mean, maybe you might say I do not find the evidence persuasive, but don’t tell me there’s no evidence.
MR. PHILLIPS: Maybe I should say there’s no significant evidence, Your Honor.
JUSTICE SCALIA: Ah.
You can read the entire exchange at pages 33-34 of the oral argument transcript. If only Justice Kagan had been paying attention, perhaps she would have been a bit more honest and dealt with the record in reality, and not the one she conjured with Mr. Phillips.
For shame, Justice Kagan, for shame. I knew I would disagree with you, but with this unsupported hyperbole and straw man argument, I now can no longer see you as intellectually honest.