Arizona Free Enterprise Club's Freedom Club Pac v. Bennett (10-238)

argument 10-238

Arizona Free Enterprise Club's Freedom Club Pac v. Bennett

Supreme Court of the United States 59 min 5 speakers 8 chapters transcribed 7 days ago official recording ↗

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What constitutional issue does Arizona’s public‑financing law raise?

John G. Roberts 0:02

We'll hear argument first this morning in case ten two three eight Arizona Free Enterprise Club Freedom Club Pact. versus Bennett and the consolidated case. Mr Moore?

Kenneth S. Moore 0:13

Mr. Chief Justice, it may have pleased the court. This case is about whether the government may insert itself into elections and manipulate campaign spending to favor its preferred candidates. Ari Arizona does this in a manner that is even more burdensome to free speech than the law at issue in Davis versus FEC. Arizona burdens the law of three groups that pose no threat of corruption under this court's precedence. independent expenditure groups. self financed candidates and candidates who raise private funds under one of the lowest contribution limits in the nation. Under Davis versus FEC and this Court's well established precedence, the matching funds provision is unconstitutional and should be struck down.

Unknown 0:57

Mr Maurer, do you you don't have any Um objection, you wouldn't have any objection. If Arizona trebled the amount at the outset. In other words, th there was a maximum am amount. The m m so called matching funds. If it We're given all in one love. And the publicly funded candidate was told Give it back if you don't use it. That would be okay.

Kenneth S. Moore 1:26

That would be constitutional under Davis, Your Honor. This case is not about whether the State of Arizona may provide campaign financing using public funds, nor is it about whether the ability of Arizona to ensure that those who receive the public funds can run effective campaigns. What this case is about is whether the government can turn my act of speaking into the vehicle by which my political opponents benefit with direct government subsidies.

Anthony M. Kennedy 1:54

Could I try to understand that argument a little bit better, Mr Moore? Suppose and I know that you think that this is not the case, but just bear with the hypothetical. Suppose that there were in fact no deterrent effect on your speech or on the speech of any candidate. In other words that people thought, well, you know, I'd rather be have uh me be the only person who talks, but uh but I'd rather talk Then be silent, even if it means my opponent can talk too, so that there's no deterrent effect from this law whatsoever. Would there still be a constitutional objection?

Kenneth S. Moore 2:27

Your Honor, in Davis this court recognized that a trigger like this, a a law that turns the choice of My choice of to speak effectively into fundraising advantages for my opponents constitutes a substantial burden. So even if candidates continue to speak, the law constitutes a substantial burden on their speakers.

Anthony M. Kennedy 2:50

Well, y uh it constitutes a substantial burden. So even if every single person makes a choice, yes, I want to continue to speak, it does not chill any speaker. I supp any speech. I suppose I'm not sure what it means to constitute a substantial burden if in fact the law does not chill speech.

Kenneth S. Moore 3:07

Well, Your Your Honor, y this court in Davis recognize that when the government reaches into a campaign and attempts to manipulate campaign financing in order to uh uh in order to uh uh basically effectuate the outcome, uh that constitutes a an illegitimate governmental purpose. Mr.

Unknown 3:27

Moore, suppose uh suppose the government imposes a fine of five hundred dollars. Four. or political speech. And people Nonetheless continue to engage in political speech and pay the five hundred dollars. Would that make the five hundred dollars penalty for political speech constitutional? No, it would not, Your

Kenneth S. Moore 3:54

Honor.

Anthony M. Kennedy 3:54

But but in fact there's no such restriction here, is there, Mr Moore? There's no restriction at all here. It's more speech all the way around.

Kenneth S. Moore 4:01

Uh I would disagree with that respectfully, Your Honor. There is a restriction here. Every time an independent expenditure group or a privately financed candidate speaks above a certain amount, the government creates real penalties for them to have engaged in unfettered political exposure. Well

Anthony M. Kennedy 4:16

doesn't the government actually just uh give a selective subsidy? It's not a penalty, it's just saying Um in order to f to run an effective public financing system, when you speak, we're going to give a subsidy uh over a certain amount.