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University of California, Riverside

Speech Prevails, & Money Talks:

An Assessment of the Supreme Court Ruling in Arizona Free Enterprise Club v. Bennett

Jeanette de la Torre
Constitutional Law: Criminal Justice 168
Professor Benjamin Bishin
May 13, 2014

While it is Congress and the President, not the courts, who are at the epicenter of the
Political System, the Judiciary has been confronted with cases that have required their
interpretation of the Constitution in relation to Public Policy (Marbury 1). The Judiciary has the
responsibility of interpreting the significant ambiguities or omissions in the Constitution, to
ensure that the Legislative branch does not infringe on the inalienable rights of its citizens. The
Court has substantial influence in shaping Environmental Law, Tax Law, Immigration Law,
Criminal Law regulatory law of all kinds, which was very evident in the particular rulings in
Arizona Free Enterprise Club v. Bennett, Citizens United v. Fed, and Rust v. Sullivan (Marbury
2). However, due to different modes of interpretation, the opinions of Justices vary inevitably,
resulting in both constitutional and unconstitutional holdings.
The Supreme Courts ruling in Arizona Free Enterprise Club demonstrates the former.
The Supreme Court reversed the lower courts order, in a decision by Chief Justice John Roberts.
The ruling was predicated on petitioners misunderstanding of the objective of the Act, and a
disregard for the ultimate purpose of electoral campaigns to educate voters as much as possible
through means of full-bodied political debate. Moreover, the majority in this case failed to
recognize public interest as a legitimate reason for its program as seen in Rust. Citizens United,
on the other hand, was an exercise of proper judicial review by recognizing that the key function
of the First Amendment is to keep the government from interfering in the "marketplace of ideas"
and that neither the legislatures nor the courts are meant to create the image "fairness" by
restricting speech of individuals regardless of the identity of the speaker or the form of speech.
Laws that burden political speech are subject to strict scrutiny, which necessitates the
government to prove the restriction advances a compelling interest and is narrowly tailored to
achieve that interest. This invalidates government imposed restrictions on campaign

expenditures, restraints on independent expenditures applied to express advocacy groups, on

uncoordinated political party expenditures, and regulations on barring unions, nonprofit and
other associations, and corporations from making independent expenditures for electioneering
communication (Arizona 15). Based on these constraints on government authority, the majority
in Arizona has asserted the unconstitutionality of the Clean Elections Act based on the
assumption that the statute places an unnecessary burden on the privately funded candidates and
does not serve a compelling state interest.
The majority likens this case to that of Davis v. Federal Election Commn wherein the
Bipartisan Campaign Reform Act of 2002 allowed for a candidate to exceed the limit that was
permitted to collect individual contributions up to $6,900 from the normal $2,300 if his/her
opponent exceeded $350,000 of his personal funds. The candidate who exceeded the $350,000
was still restricted by the original contribution cap. The majority asserts that Davis is an
appropriate framework to demonstrate the unconstitutionality of the Clean Elections Act. They
point out that this case places a bigger burden on the petitioner than in Davis because, at least in
Davis, the person who benefitted from the increased cap still had to go out and raise that money
on his/her own, whereas the candidate benefitting from the public funds is automatically given
the money. This feature is not arbitrary.
The government funded campaign program was introduced by Congress for the general
welfare to reduce deleterious influence of large contribution on our political process as well as
to facilitate communication by candidates with the electorate, and to free candidates from the
rigors of fundraising (Buckley 912). However, the program has been insufficient to aid
candidates in light of the double-edged sword it faces: insufficient funds for the candidate
running against privately funded candidates on one hand, and an amount that effectively burdens

the opponent. Public funding is only as valuable as it is effective. The panacea for this problem
is tailoring the program to adapt to the exact financial climate of the political race. Although the
publicly financed candidates receive the money automatically, that candidate is restricted from
privately funding his campaign which was the fault in the statute discussed in Davis. The statute
used in Davis was unconstitutional because the method allowed for the candidate with the
increased cap to eventually surpass the candidate who spent over $350,000. It was also
unconstitutional in that it discriminated against candidates with over $350, 000 by placing an
explicit limitation on what candidates for federal office could spend from their own and their
families private funds [and] for the total amounts that candidates could spend (Buckley
913). This places a legitimate and automatic financial burden on the opposing candidate. The
Clean Elections Act, on the other hand, is designed to give the Goldilocks Amount of funding
to the publicly financed candidate and is available to any candidate who agrees, among other
things, to limit their expenditure of personal funds to $500; participate in at least one public
debate; adhere to an overall expenditure cap; and return all unspent public moneys to the State
(Arizona1). The candidate can agree or decline to accept these conditions, wherein Davis does
not. Thereby, the means of achieving the government interest at hand meets the narrowly tailored
requirement of strict scrutiny. The public subsidy reflects enough money to substantially
encourage candidates to opt for public funding, but not too much that it places a substantial
restriction on the speech of the privately funded candidate.
The restriction placed on the privately funded candidates is another contention raised by
the majority, and one that I believe is overstated in regards to the purpose of political debate. The
First Amendment states that, Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the

press; or the right of the people peaceably to assemble, and to petition the Government for a
redress of grievances. That the fixed sum of money automatically disbursed to the publicly
financed candidate has direct effects on the privately financed candidate is a fair assessment. But
presenting opposition, armed with equal resources, to a political candidate whose career revolves
around rebuttals and debates, is hardly an abridgement on freedom of speech. In Democracy, you
have to check the checkers. The Majority states that encouraging political participation through
means of state funding can open the doors to programs that fund candidate[s] 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 (Arizona 9). This misses the point.
The Clean Elections Act is designed to keep the public resources on par with the private
resources so that the publicly funded candidate is not financially disadvantaged to the extent that
his campaign is considerably ineffective. There is no actual expenditure limit placed on the
privately funded candidate which enforces direct quantity restrictions on political
communication (Buckley). If a direct restriction on the amount of money an individual or group
can spend on political communication during a campaign may necessarily reduce the quantity
of expression by restricting the number of issues discussed, the depth of exploration, and the size
of the audience reached then dont financially disadvantaged candidates face similar
impositions on their speech? It appears so, when Buckley recognizes the sheer importance of the
quantity and diversity of political speech, which suggests that protecting First Amendment
Rights are synonymous with providing sufficient means of exercising them (Buckley 912).
The majority add that, 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 (Arizona 7). The concern here is centered not on the suppression of speech

for the privately financed candidate, but rather on a fear of substantial rebuttals for which our
electoral process deems pertinent for uninhibited, robust, and wide-open debate (New York
Times Co. v. Sullivan).
The majority contest that the objective of leveling the playing-field [and] equalizing
the relative financial resources of the candidates [is] wholly foreign to the First Amendment
and is ultimately not a compelling reason to inhibit the speech of any individual. To this, I agree.
Imposing the governments own view of fairness instead of leaving it to the people is a blatant
misuse of executive authority. However, this is not the compelling state interest at hand.
Leveling the playing field is but a means to an end. That end is corruption. The majority
provides no evidence that the ultimate motive of the Arizona statute is to level out electoral
competition. The Courts have never clearly defined how to determine if an interest is compelling,
though the concept generally refers to something necessary or crucial, as opposed to something
merely preferred. Nor did the courts require for that compelling interest to be proven as the
ultimate motive.
The majority relies on the minimal interpretation of precedents and the First Amendment,
which limits the value of their argument. This Originalist mode of interpretation does not cater to
the changing realities of the electoral process, wherein interest groups have gained
disproportionate control over elections in what Benjamin Bishin has described as the Tyranny
of the Minority. This has manifested in the corruption of the Democratic values of the electoral
process and placed significant importance on how much a candidate can spend over the true
purpose of campaigns to optimally educate the people. This is the compelling interest of
Arizonas statute.

Citizens United v. Federal Elections Commission is a proper exercise of judicial review

because it protected the First Amendment right by prohibiting the government from restricting
political independent expenditures by corporations, associations, or labor unions. The First
Amendment protects the right of the people peaceably to assemble which allows voluntarily
pooling money in the form of corporations, associations, or labor unions to express the support
or opposition of a candidate. Moreover, the First Amendment does not allow prohibitions of
speech based on the identity of the speaker. The majority rightfully overturns Austin (which
allowed different restrictions on speech-related spending solely based on corporate identity), on
the basis of the freedom to associate with others for the common advancement of political
beliefs and ideas [and] the right to associate with the political party of ones choice (Buckley
911). Restricting a corporate identity from spending their money for the purpose of advancing
their political ideologies in the form of a movie, is equally as unconstitutional as prohibiting the
individuals of that organization from exercising any of their First Amendment rights.
The government is also out of line for attempting to combat distorting effects of large
corporate expenditures, which hold no evidence for the corruption of such expenditures, but only
the appearance of corruption. Corruption is a viable rationale to infringe on the First Amendment
right in the electoral process only if the campaign donations to a public official [are] made in
return for an explicit and quid pro quo agreement from an official to perform or not perform a
specific act, according to the holding in McCormich v. United States (Gold 262). Citizens
United has by no means used their movie as a direct contribution for specific political favors.
The prominent function of the First Amendment is to keep the government from interfering in
the "marketplace of ideas" and it is not bestowed to legislatures or the courts to create the image

"fairness" by restricting speech of individuals. Thus, the ban on free speech here does not meet
the requirement of a compelling state interest imposed by strict scrutiny.
The BCRA201 and 311, are rightfully upheld as constitutional provisions requiring
disclosure of the funder, as applied to the movie advertisements and to the Hilary movie. Such
requirements aid the constitutional interests of the voter informational interest in candidate
elections; anti-corruption interest in candidate elections, anti-circumvention interest in candidate
elections, electoral integrity interest in ballot initiatives, and due process interest in judicial
election (Tores-Spelliscy 1). Because transparency in the political sphere has long been an
imperative agent of keeping politicians accountable, I consider the BCRA 201 and 311
constitutional.
In Citizens, the majoritys developmental approach takes into account a broader form of
speech money. In the midst of an evolving society, with its changing cultural and technological
norms, it is valid to presume that all speakers, including individuals and the media, use money
amassed from the economic marketplace to fund their speech (Citizens 8). Speech in the form of
videos, music, advertisements, and so forth, are contingent on the utilization of monetary funds.
Speech, in the developmental sense, includes communication made possible by the giving and
spending of speech alone, some involve conduct primarily, and some involve a combination of
the two (Buckley 911). And if our Constitution protects citizens from being deprived of life,
liberty, or property, without due process of law, they are equally protected from restrictions on
the amount of money they wish to spend the capital which they have accumulated on their own
on their political speech , given that speech does not result in quid pro quo corruption. Strong
concerns have been raised by dissenting opinions, stating they need, steps [to] be taken to
counter the corrosive effects of money in federal election campaigns (Buckley). While the use

of money may always portray a looming possibility of exploitative motives, this is a problem that
cannot be solved by entertaining the worse evil of restricting individuals First Amendment
rights. Therefore, the First and Fifth Amendment protects the voluntary economic transactions of
persons and entities for the purpose of advancing speech.
This raises and adjacent question: should corporations be extended free speech rights?
Citizens majority recognized corporations right to equal protection of speech, predicated on a
plethora of precedents that extended [protection] by explicit holdings to the context of political
speech (Citizens 3). Extending free speech rights to media corporations such as news stations or
newspapers, while restricting free speech from other corporations like Citizens United,
discriminates based on the identity of the corporate entity. This can only pass constitutional
muster if, "the State may prevail only upon showing a subordinating interest which is
compelling" (Bellotti 3). To this, dissenters in Citizens raise the concern of the enormous power
corporations had come to wield in federal elections, with the accompanying threat of both actual
corruption and a public perception of corruption (Citizens 21). While corporations may have
substantial influence in campaigns, this influence is not synonymous to corruption. It is
unconstitutional to discriminate against corporations because they are deemed too powerful,
then allow unions and independent groups to exercise their means of speech freely. Legislative
restrictions on contributions hold the purpose of preventing quid pro quo exchanges that lead to
corruption. The underlying issue of the dissentings contention appears to be that there are
disproportionate resources available to corporations versus individuals. This concept has been
struck down in precedents as a legitimate reason for infringing on First Amendment Rights. As
stated in Arizona by the majority, Buckley held that a purported government interest in

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equalizing the financial resources of candidates could not justify limits on overall campaign
expenditures (Arizona 8). Therefore, corporations should be extended First Amendment rights.
A frequent theme among these cases is the problem legislators are faced with of treading
a fine line between sustaining the First Amendment and advancing public interests. Arizona Free
Enterprise and Rust v. Sullivan demonstrate both ends of the spectrum. The holding in Arizona
Free Enterprise is inconsistent with Rust which held that the Public Health Service Act was
constitutional in prohibiting projects receiving these funds from providing abortions as well as
counseling, advising, or promoting anything that was pro-abortion. The constitutionality of this
holding was predicated on the reasoning that the Government can make a value judgment
advocating for childbirth over abortions and assert that judgment using subsidies of public funds.
The majority in Rust states, the government can, without violating the Constitution, selectively
fund a program to encourage certain activities it believes to be in the public interest, so to not be
an act of discrimination on the basis of viewpoint (Rust 287). The ruling in Arizona fails to
recognize this precedent in striking down the Clean Elections Act. In this case, the majority
argues that the privately funded candidate is discriminated against, in light of the fact that the
program directly funds an opposing viewpoint in response to the privately funded candidate. The
majority in Rust would respectfully disagree with this reasoning.

Bibliography
Arizona Free Enterprise Club v. Bennett. Supreme Court. 27 June 2011. Print.

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Citizens United v. Fed. Supreme Court. 21 Jan. 2010. Print.

Buckley v. Valeo. Supreme Court. 1976. ACI, pp. 910-918. Print.
First Nat'l Bank of Boston v. Bellotti. Supreme Court. 1978. Print.
Gold, Illisa B. "Explicit, Express, and Everything in Between: The Quid Pro Quo Requirement
for Bribery and Hobbs Act Prosecutions in the 2000s." Cornell University, 2011. Web.
Marbury v. Madison (1803), from Ducat, Constitutional Interpretation, Volume I: Powers of the
Government, pp. 1-11
New York Times Co. v. Sullivan. Supreme Court. 1964. Print.
Rust v. Sullivan. 1991. ACI, pp. 826-833. Print.
Torres-Spelliscy, Ciara. "Transparent Elections after Citizens United." Brennancenter.org.
NewYorkUniversity School of Law, 2011. Web.

Walter F. Murphy, James E. Flemming, Sorios A. Barber, and Stephen Macedo, American
Constitutional Interpretation, 4th Edition (Foundation Press, 2008) (ACI), Interpreting a
Constitution and Constitutional Literacy, pp. 1-16, 26-40.