Reporting from Washington — The Supreme Court's conservative justices signaled during oral arguments Monday that they would vote to strike down another campaign funding law and make clear that states and cities may not try to "level the playing field" between candidates for public office.
The justices objected to part of an Arizona law that provides public funds to candidates for state office if they agree to forgo private fundraising. The disputed provision gives extra "matching funds" to candidates who face a well-funded and free-spending opponent.
Conservatives and libertarians in Arizona sued and argued that the extra funds unfairly penalized candidates who relied on private fundraising. They lost in the U.S. 9th Circuit Court of Appeals, which upheld the law and said it did not limit the free-speech rights of the candidates who depended on private funds.
The Supreme Court has been split 5-4 on campaign funding cases, with the conservative bloc in the majority, and that split was evident again.
Last year, the conservative majority said spending on political campaigns could not be limited by law, even to prevent big corporations from using their profits to sway elections. They sounded just as determined Monday to make clear governments cannot seek to "equalize" spending between a well-funded candidate and a challenger who is trying to keep pace. If so, the court will deal another blow to liberals who seek to limit the effects of money in politics.
Arizona's voters adopted the Citizens Clean Elections Act in 1998. It offers state candidates a basic grant to run for office and extra "matching funds" if their opponent is spending heavily with private funds. For example, a candidate for the state Legislature who receives a grant of $21,000 to run in a general election can receive up to twice that amount in extra funds to match the spending of his opponent.
Several states, including Maine, Connecticut and Florida, adopted similar laws, as have at least a dozen municipalities, including Los Angeles and New York.
"Under our precedents, leveling the playing field is not a legitimate state purpose," said Chief Justice John G. Roberts Jr. "I checked the Citizens Clean Elections Commission website this morning, and it says that this act was passed to 'level the playing field' when it comes to running for office. Why isn't that clear evidence that it's unconstitutional?"
Justice Samuel A. Alito Jr. expressed the same view a few minutes later. The Arizona law, he said, "aims to allow the publicly financed candidates to run on the same footing as privately financed candidates. That's leveling the playing field, isn't it?"
The court's three other conservatives — Antonin Scalia, Anthony M. Kennedy and Clarence Thomas — have regularly voted to strike down campaign funding laws, and Scalia and Kennedy made clear they were inclined to void the disputed part of Arizona's law.
The court's liberal justices spoke up in defense of Arizona's law, and an Obama administration lawyer joined the argument on Arizona's side. But they appeared to be one vote short of a majority.
Three years ago, the court in a 5-4 decision struck down the so-called millionaire's amendment, which had allowed congressional candidates to seek larger contributions if they were running against a self-financed millionaire. Alito said the scheme was an unconstitutional effort to equalize spending between rich and not-so-rich candidates. On Monday, several of the conservatives cited that decision as precedent for striking down the Arizona law.
Last week, the executive director of the Citizens Clean Elections Commission in Arizona said that a ruling striking down the matching-funds provision would weaken the public funding law, but not kill it.
"We can function without the matching funds, but it means participation will go down," Todd Lang said. "Outsiders will continue to use [the basic public grant] but fewer incumbents will do it" because they would fear being badly outspent by a well-funded opponent.
The court is unlikely to hand down a decision in the Arizona case until June.