564 U.S. 721 | SCOTUS | 2011
Lead Opinion
delivered the opinion of the Court.
Under Arizona law, candidates for state office who accept public financing can receive additional money from the State
I
A
The Arizona Citizens Clean Elections Act, passed by initiative in 1998, created a voluntary public financing system to fund the primary and general election campaigns of candidates for state office. See Ariz. Rev. Stat. Ann. §16-940 et seq. (West 2006 and Supp. 2010). All eligible candidates for Governor, secretary of state, attorney general, treasurer, superintendent of public instruction, the corporation commission, mine inspector, and the state legislature (both the House and Senate) may opt to receive public funding. § 16-950(D) (West Supp. 2010). Eligibility is contingent on the collection of a specified number of five-dollar contributions from Arizona voters, §§16-946(B) (West 2006), 16-950 (West Supp. 2010),
In exchange for accepting these conditions, participating candidates are granted public funds to conduct their campaigns.
Matching funds are available in both primary and general elections. In a primary, matching funds are triggered when a privately financed candidate’s expenditures, combined with the expenditures of independent groups made in support of the privately financed candidate or in opposition to a publicly financed candidate, exceed the primary election allotment of state funds to the publicly financed candidate. §§ 16-952(A), (C). During the general election, matching funds are triggered when the amount of money a privately financed candidate receives in contributions, combined with the expenditures of independent groups made in support of the privately financed candidate or in opposition to a publicly financed candidate, exceed the general election allotment of state funds to the publicly financed candidate. §16-952(B). A privately financed candidate’s expenditures of his personal funds are counted as contributions for purposes of calculating matching funds during a general election. See ibid.-, Citizens Clean Elections Commission, Ariz. Admin. Code, Rule R2-20-113(B)(1)(f) (Sept. 2009).
Once matching funds are triggered, each additional dollar that a privately financed candidate spends during the primary results in one dollar in additional state funding to his
Once the public financing cap is exceeded, additional expenditures by independent groups can result in dollar-for-dollar matching funds as well. Spending by independent groups on behalf of a privately funded candidate, or in opposition to a publicly funded candidate, results in matching funds. § 16-952(C). Independent expenditures made in support of a publicly financed candidate can result in matching funds for other publicly financed candidates in a race. Ibid. The matching funds provision is not activated, however, when independent expenditures are made in opposition to a privately financed candidate. Matching funds top out at two times the initial authorized grant of public funding to the publicly financed candidate. § 16-952(E).
Under Arizona law, a privately financed candidate may raise and spend unlimited funds, subject to state-imposed contribution limits and disclosure requirements. Contributions to candidates for statewide office are limited to $840 per contributor per election cycle and contributions to legislative candidates are limited to $410 per contributor per election cycle. See §§ 16-905(A)(1), 16-941(B)(1); Ariz. Dept, of State, Office of the Secretary of State, 2009-2010 Contribution Limits (rev. Aug. 14, 2009), http://www.azsos.gov/ election/2010/Info/Campaign_Contribution_Limits_2010.htm (all Internet materials as visited June 24, 2011, and available in Clerk of Court's case file).
In that election, if the total funds contributed to the privately funded candidate,, added to that candidate’s expenditure of personal funds and the expenditures of supportive independent groups, exceeded $21,479 — the allocation of public funds for the general election in a contested State House race — the matching funds provision would be triggered. See Citizens Clean Elections Commission, Participating Candidate Guide 2010 Election Cycle 30 (Aug. 10, 2010). At that point, a number of different political activities could result in the distribution of matching funds. For example:
• If the privately funded candidate spent $1,000 of his own money to conduct a direct mailing, each of his publicly funded opponents would receive $940 ($1,000 less the 6% offset).
• If the privately funded candidate held a fundraiser that generated $1,000 in contributions, each of his publicly funded opponents would receive $940.
• If an independent expenditure group spent $1,000 on a, brochure expressing its support for the privately financed candidate, each of the publicly financed candidates would receive $940 directly.
*732 • If an independent expenditure group spent $1,000 on a brochure opposing one of the publicly financed candidates, but saying nothing about the privately financed candidate, the publicly financed candidates would receive $940 directly.
• If an independent expenditure group spent $1,000 on a brochure supporting one of the publicly financed candidates, the other publicly financed candidate would receive $940 directly, but the privately financed candidate would receive nothing.
• If an independent expenditure group spent $1,000 on a brochure opposing the privately financed candidate, no matching funds would be issued.
A publicly financed candidate would continue to receive additional state money in response to fundraising and spending by the privately financed candidate and independent expenditure groups until that publicly financed candidate received a total of $64,437 in state funds (three times the initial allocation for a State House race).
B
Petitioners in this action, plaintiffs below, are five past and future candidates for Arizona state office — four members of the House of Representatives and the Arizona state treasurer — and two independent groups that spend money to support and oppose Arizona candidates. They filed suit chal
The District Court agreed that this provision “constitute[d] a substantial burden” on the speech of privately financed candidates because it “award[s] funds to a [privately financed] candidate’s opponent” based on the privately financed candidate’s speech. App. to Pet. for Cert, in No. 10-239, p. 69 (internal quotation marks omitted). That court further held that “no compelling interest [was] served by the” provision that might justify the burden imposed. Id., at 69, 71. The District Court entered a permanent injunction against the enforcement of the matching funds provision, but stayed implementation of that injunction to allow the State to file an appeal. Id., at 76-81.
The Court of Appeals for the Ninth Circuit stayed the District Court’s injunction pending appeal. Id., at 84-85.
We stayed the Court of Appeals’ decision, vacated the stay of the District Court’s injunction, see 560 U. S. 938 (2010), and later granted certiorari, 562 U. S. 1060 (2010).
II
Discussion of public issues and debate on the qualifications of candidates are integral to the operation” of our system of government. Buckley v. Valeo, 424 U. S. 1, 14 (1976) (per curiam). As a result, the First Amendment “ 'has its fullest and most urgent application’ to speech uttered during a campaign for political office.” Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214, 223 (1989) (quoting Monitor Patriot Co. v. Roy, 401 U. S. 265, 272 (1971)). “Laws that burden political speech are” accordingly “subject to strict scrutiny, which requires the Government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest.” Citizens United v. Federal Election Comm’n, 558 U. S. 310, 340 (2010) (internal quotation marks omitted); see Federal Election Comm’n v. Massachusetts Citizens for Life, Inc., 479 U. S. 238, 256 (1986).
Applying these principles, we have invalidated government-imposed restrictions on campaign expenditures, Buckley, supra, at 52-54, restraints on independent expenditures applied to express advocacy groups, Massachusetts Citizens for Life, supra, at 256-265, limits on uncoordinated political party expenditures, Colorado Republican Federal Campaign Comm. v. Federal Election Comm’n, 518 U. S. 604, 608 (1996) (opinion of Breyer, J.) (Colorado I), and regulations barring unions, nonprofit and other associations, and
At the same time, we have subjected strictures on campaign-related speech that we have found less onerous to a lower level of scrutiny and upheld those restrictions. For example, after finding that the restriction at issue was “closely drawn” to serve a “sufficiently important interest,” see, e. g., McConnell v. Federal Election Comm’n, 540 U. S. 93, 136 (2003) (internal quotation marks omitted); Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 387-388 (2000) (internal quotation marks omitted), we have upheld government-imposed limits on contributions to candidates, Buckley, supra, at 23-35, caps on coordinated party expenditures, Federal Election Comm’n v. Colorado Republican Federal Campaign Comm., 533 U. S. 431, 437 (2001) (Colorado II), and requirements that political funding sources disclose their identities, Citizens United, supra, at 371.
Although the speech of the candidates and independent expenditure groups that brought this suit is not directly capped by Arizona’s matching funds provision, those parties contend that their political speech is substantially burdened by the state law in the same way that speech was burdened by the law we recently found invalid in Davis v. Federal Election Comm’n, 554 U. S. 724 (2008). In Davis, we considered a First Amendment challenge to the so-called “Millionaire’s Amendment” of the Bipartisan Campaign Reform Act of 2002, 2 U. S. C. § 441a-1(a). Under that Amendment, if a candidate for the United States House of Representatives spent more than $350,000 of his personal funds, “a new, asymmetrical regulatory scheme [came] into play.” 554 U. S., at 729. The opponent of the candidate who exceeded that limit was permitted to collect individual contributions up to $6,900 per contributor — three times the normal contribution limit of $2,300. See ibid. The candidate who spent more than the personal funds limit remained subject to the original con
In addressing the constitutionality of the Millionaire’s Amendment, we acknowledged that the provision did not impose an outright cap on a candidate’s personal expenditures. Id., at 738-739. We nonetheless concluded that the-. Amendment was unconstitutional because it forced a candidate “to choose between the First Amendment right to engage in unfettered political speech and subjection to discriminatory fundraising limitations.” Id., at 739. Any candidate who chose to spend more than $350,000 of his own money was forced to “shoulder a special and potentially significant burden” because that choice gave fundraising advantages to the candidate’s adversary. Ibid. We determined that this constituted an “unprecedented penalty” and “impose[d] a substantial burden on the exercise of the First Amendment right to use personal funds for campaign speech,” and concluded that the Government had failed to advance any compelling interest that would justify such a burden. Id., at 739-740.
A
1
The logic of Davis largely controls our approach to this action. Much like the burden placed on speech in Davis, the matching funds provision “imposes an unprecedented penalty on any candidate who robustly exercises [his] First Amendment right[s].” Id., at 739. Under that provision, “the vigorous exercise of the right to use personal funds to finance campaign speech” leads to “advantages for opponents in the competitive context of electoral politics.” Ibid.
The penalty imposed by Arizona’s matching funds provision is different in some respects from the penalty imposed by the law we struck down in Davis. But those differences make the Arizona law more constitutionally problematic, not less. See Green Party of Conn. v. Garfield, 616 F. 3d 213, 244-245 (CA2 2010). First, the penalty in Davis consisted of raising the contribution limits for one of the candidates. The candidate who benefited from the increased limits still had to go out and raise the funds. He may or may not have been able to do so. The other candidate, therefore, faced merely the possibility that his opponent would be able to raise additional funds, through contribution limits that remained subject to a cap. And still the Court held that this was an “unprecedented penalty,” a “special and potentially significant burden” that had to be justified by a compelling state interest — a rigorous First Amendment hurdle. 554 U. S., at 739-740. Here the benefit to the publicly financed candidate is the direct and automatic release of public money. That is a far heavier burden than in Davis.
Second, depending on the specifics of the election at issue, the matching funds provision can create a multiplier effect. In the Arizona Fourth District House election previously discussed, see supra, at 731-732, if the spending cap were exceeded, each dollar spent by the privately funded candidate would result in an additional dollar of campaign funding to each of that candidate’s publicly financed opponents. In such
Third, unlike the law at issue in Davis, all of this is to some extent out of the privately financed candidate’s hands. Even if that candidate opted to spend less than the initial public financing cap, any spending by independent expenditure groups to promote the privately financed candidate’s election — regardless whether such support was welcome or helpful — could trigger matching funds. What is more, that state money would go directly to the publicly funded candidate to use as he saw fit. That disparity in control — giving money directly to a publicly financed candidate, in response to independent expenditures that cannot be coordinated with the privately funded candidate — is a substantial advantage for the publicly funded candidate. That candidate can allocate the money according to his own campaign strategy, which the privately financed candidate could not do with the independent group expenditures that triggered the matching funds. Cf. Citizens United, 558 U. S., at 357 (“ ‘The absence of prearrangement and coordination of an expenditure with the candidate or his agent. . . undermines the value of the expenditure to the candidate’ ” (quoting Buckley, 424 U. S., at 47)).
The burdens that this regime places on independent expenditure groups are akin to those imposed on the privately financed candidates themselves. Just as with the candidate the independent group supports, the more money spent on that candidate’s behalf or in opposition to a publicly funded candidate, the more money the publicly funded candidate receives from the State. And just as with the privately financed candidate, the effect of a dollar spent on election speech is a guaranteed financial payout to the publicly
In some ways, the burden the Arizona law imposes on independent expenditure groups is worse than the burden it imposes on privately financed candidates, and thus substantially worse than the burden we found constitutionally impermissible in Davis. If a candidate contemplating an electoral run in Arizona surveys the campaign landscape and decides that the burdens imposed by the matching funds regime make a privately funded campaign unattractive, he at least has the option of taking public financing. Independent expenditure groups, of course, do not.
Once the spending cap is reached, an independent expenditure group that wants to support a particular candidate— because of that candidate’s stand on an issue of concern to the group — can only avoid triggering matching funds in one of two ways. The group can either opt to change its message from one addressing the merits of the candidates to one addressing the merits of an issue, or refrain from speaking altogether. Presenting independent expenditure groups with such a choice makes the matching funds provision particularly burdensome to those groups. And forcing that choice — trigger matching funds, change your message, or do not speak — certainly contravenes “the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message.” Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 573 (1995); cf. Citizens United, supra, at 340 (“the First Amendment stands against attempts to disfavor certain subjects or viewpoints”); Federal Election Comm’n v. Wisconsin Right to Life, Inc., 551 U. S. 449, 477, n. 9 (2007) (opinion of Roberts, C. J.) (the argument that speakers can avoid the burdens of a law “by
2
Arizona, the Clean Elections Institute, Inc., and the United States offer several arguments attempting to explain away the existence or significance of any burden imposed by matching funds. None is persuasive.
Arizona contends that the matching funds provision is distinguishable from the law we invalidated in Davis. The State correctly points out that our decision in Davis focused on the asymmetrical contribution limits imposed by the Millionaire’s Amendment. See 554 U. S., at 729. But that is not because — as the State asserts — the reach of that opinion is limited to asymmetrical contribution limits. Brief for State Respondents 26-32. It is because that was the particular burden on candidate speech we faced in Davis. And whatever the significance of the distinction in general, there can be no doubt that the burden on speech is significantly greater in this action than in Davis: That means that the law here — like the one in Davis — must be justified by a compelling state interest.
The State argues that the matching funds provision actually results in more speech by “increas [ing] debate about issues of public concern” in Arizona elections and “promoting] the free and open debate that the First Amendment was intended to foster.” Brief for State Respondents 41; see Brief
Not so. Any increase in speech resulting from the Arizona law is of one kind and one kind only — that of publicly financed candidates. The burden imposed on privately financed candidates and independent expenditure groups reduces their speech; “restriction^] on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression.” Buckley, 424 U. S., at 19. Thus, even if the matching funds provision did result in more speech by publicly financed candidates and more speech in general, it would do so at the expense of impermissibly burdening (and thus reducing) the speech of privately financed candidates and independent expenditure groups. This sort of “beggar thy neighbor” approach to free speech — “restricting] the speech of some elements of our society in order to enhance the relative voice of others” — is “wholly foreign to the First Amendment.” Id., at 48-49.
We have rejected government efforts to increase the speech of some at the expense of others outside the campaign finance context. In Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241, 244, 258 (1974), we held unconstitutional a Florida law that required any newspaper assailing a political candidate’s character to allow that candidate to print a reply. We have explained that while the statute in that case
Arizona asserts that no “candidate or independent expenditure group is ‘obliged personally to express a message he disagrees with’ ” or “ ‘required by the government to subsidize a message he disagrees with.’” Brief for State Respondents 32 (quoting Johanns v. Livestock Marketing Assn., 544 U. S. 550, 557 (2005)). True enough. But that does not mean that the matching funds provision does not burden speech. The direct result of the speech of privately financed candidates and independent expenditure groups is a state-provided monetary subsidy to a political rival. That cash subsidy, conferred in response to political speech, penalizes speech to a greater extent and more directly than the
In disagreeing with our conclusion, the dissent relies on cases in which we have upheld government subsidies against First Amendment challenge, and asserts that “[w]e have never, not once, understood a viewpoint-neutral subsidy given to one speaker to constitute a First Amendment burden on another.” Post, at 769. But none of those cases— not one — involved a subsidy given in direct response to the political speech of another, to allow the recipient to counter that speech. And nothing in the analysis we employed in those cases suggests that the challenged subsidies would have survived First Amendment scrutiny if they were triggered by someone else’s political speech.
The State also argues, and the Court of Appeals concluded, that any burden on privately financed candidates and independent expenditure groups is more analogous to the burden placed on speakers by the disclosure and disclaimer requirements we recently upheld in Citizens United than to direct restrictions on candidate and independent expenditures. See 611 F. 3d, at 525; Brief for State Respondents 21, 35; Brief for Respondent Clean Elections Institute 16-17. This analogy is not even close. A political candidate’s disclosure of his funding resources does not result in a cash windfall to his opponent, or affect their respective disclosure obligations.
That record contains examples of specific candidates curtailing fundraising efforts, and actively discouraging supportive independent expenditures, to avoid triggering matching funds. See, e.g., App. 567 (Rick Murphy), 578 (Dean Martin); App. to Pet. for Cert. in No. 10-239, at 329 (John McComish), 300 (Tony Bouie). The record also includes examples of independent expenditure groups deciding not to speak in opposition to a candidate, App. 569 (Arizona Taxpayers Action Committee), or in support of a candidate, id., at 290 (Club for Growth), to avoid triggering matching funds. In addition, Dr. David Primo, an expert involved in the action, “found that privately financed candidates facing the prospect of triggering matching funds changed the timing of their fundraising activities, the timing of their expenditures, and, thus, their overall campaign strategy.” Reply Brief for Petitioner Arizona Free Enterprise Club’s (AEEC) Freedom Club PAC et al. 12; see also id., at 11-17 (listing additional sources of evidence detailing the burdens imposed by the matching funds provision); Brief for Petitioner AFEC’s Freedom Club PAC et al. 14-21 (AFEC Brief) (same); Brief for Petitioner McComish et al. 30-37 (same).
The State contends that if the matching funds provision truly burdened the speech of privately financed candidates and independent expenditure groups, spending on behalf of privately financed candidates would cluster just below the
Furthermore, the Arizona law takes into account all manner of uncoordinated political activity in awarding matching funds. If a privately funded candidate wanted to hover just below the triggering level, he would have to make guesses about how much he will receive in the form of contributions and supportive independent expenditures. He might well guess wrong.
In addition, some candidates may be willing to bear the burden of spending above the cap. That a candidate is willing to do so does not make the law any less burdensome. See Davis, 554 U. S., at 739 (that candidates may choose to make “personal expenditures to support their campaigns” despite the burdens imposed by the Millionaire’s Amendment does not change the fact that “they must shoulder a special and potentially significant burden if they make that choice”). If the State made privately funded candidates pay a $500 fine to run as such, the fact that candidates might choose to pay it does not make the fine any less burdensome.
While there is evidence to support the contention of the candidates and independent expenditure groups that the matching funds provision burdens their speech, “it is never easy to prove a negative” — here, that candidates and groups did not speak or limited their speech because of the Arizona law. Elkins v. United States, 364 U. S. 206, 218 (1960). In any event, the burden imposed by the matching funds provision is evident and inherent in the choice that confronts privately financed candidates and independent expenditure groups. Cf. Davis, supra, at 738-740. Indeed even candidates who sign up for public funding recognize the burden
It is clear not only to us but to every other court to have considered the question after Davis that a candidate or independent group might not spend money if the direct result of that spending is additional funding to political adversaries. See, e. g., Green Party of Conn., 616 F. 3d, at 242 (matching funds impose “a substantial burden on the exercise of First Amendment rights” (internal quotation marks omitted)); 611 F. 3d, at 524 (case below) (matching funds create “potential chilling effects” and “impose some First Amendment burden”); Scott v. Roberts, 612 F. 3d 1279, 1290 (CA11 2010) (“we think it is obvious that the [matching funds] subsidy imposes a burden on [privately financed] candidates”); id., at 1291 (“we know of no court that doubts that a [matching funds] subsidy like the one at issue here burdens” the speech of privately financed candidates); see also Day v. Holahan, 34 F. 3d 1356, 1360 (CA8 1994) (it is “clear” that matching funds provisions infringe on “protected speech because of the chilling effect” they have “on the political speech of the person or group making the [triggering] expenditure” (cited in Davis, supra, at 739)). The dissent’s disagreement is little more than disagreement with Davis.
The State correctly asserts that the candidates and independent expenditure groups “do not. . . claim that a single lump sum payment to publicly funded candidates,” equivalent to the maximum amount of state financing that a candidate can obtain through matching funds, would impermissi-
These arguments miss the point. It is not the amount of funding that the State provides to publicly financed candidates that is constitutionally problematic in this action. It is the manner in which that funding is provided — in direct response to the political speech of privately financed candidates and independent expenditure groups. And the fact that the State's matching mechanism may be more efficient than other alternatives — that it may help the State in “finding the sweet-spot” or “fine-tuning” its financing system to avoid a drain on public resources, post, at 779 (Kagan, J., dissenting) — is of no moment; “the First Amendment does not permit the State to sacrifice speech for efficiency,” Riley v. National Federation of Blind of N. C., Inc., 487 U. S. 781, 795 (1988).
The United States as amicus contends that “[providing additional funds to petitioners’ opponents does not make petitioners’ own speech any less effective” and thus does not substantially burden speech. Brief for United States 27. Of course it does. One does not have to subscribe to the view that electoral debate is zero sum, see AFEC Brief 30, to see the flaws in the United States’ perspective. 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. And even if the publicly funded candidate decides to use his new money to address a different issue altogether, the end goal of that spending is to claim electoral victory over the opponent that triggered the additional state funding. See Davis, 554 U. S., at 736.
Because the Arizona matching funds provision imposes a substantial burden on the speech of privately financed candidates and independent expenditure groups, “that provision cannot stand unless it is 'justified by a compelling state interest,’ ” id., at 740 (quoting Massachusetts Citizens for Life, 479 U. S., at 256).
There is a debate between the parties in this action as to what state interest is served by the matching funds provision. The privately financed candidates and independent expenditure groups contend that the provision works to “level[] electoral opportunities” by equalizing candidate “resources and influence.” Brief for Petitioner McComish et al. 64; see AFEC Brief 23. The State and the Clean Elections Institute counter that the provision “furthers Arizona’s interest in preventing corruption and the appearance of corruption.” Brief for State Respondents 42; Brief for Respondent Clean Elections Institute 47.
1
There is ample support for the argument that the matching funds provision seeks to “level the playing field” in terms of candidate resources. The clearest evidence is of course the very operation of the provision: It ensures that campaign funding is equal, up to three times the initial public funding allotment. The text of the Citizens Clean Elections Act itself confirms this purpose. The statutory provision setting up the matching funds regime is titled “Equal funding of candidates.” Ariz. Rev. Stat. Ann. § 16-952 (West Supp. 2010). The Act refers to the funds doled out after the Act’s matching mechanism is triggered as “equalizing funds.” See §§ 16-952(0(4), (5). And the regulations implementing the matching funds provision refer to those funds as “equalizing funds” as well. See Citizens Clean Elections Commission, Ariz. Admin. Code, Rule R2-20-113.
We have repeatedly rejected the argument that the government has a compelling state interest in “leveling the playing field” that can justify undue burdens on political speech. See, e. g., Citizens United, 558 U. S., at 350. In Davis, we stated that discriminatory contribution limits meant to “level electoral opportunities for candidates of different personal
“Leveling electoral opportunities means making and implementing judgments about which strengths should be permitted to contribute to the outcome of an election,” Davis, supra, at 742 — a dangerous enterprise and one that cannot justify burdening protected speech. The dissent essentially dismisses this concern, see post, at 780-782, but it needs to be taken seriously; we have, as noted, held that it is not legitimate for the government to attempt to equalize electoral opportunities in this manner. And such basic intrusion by the government into the debate over who should govern goes to the heart of First Amendment values.
“Leveling the playing field” can sound like a good thing. But in a democracy, campaigning for office is not a game. It is a critically important form of speech. The First Amendment embodies our choice as a Nation that, when it comes to such speech, the guiding principle is freedom — the “unfettered interchange of ideas” — not whatever the State may view as fair. Buckley, supra, at 14 (internal quotation marks omitted).
2
As already noted, the State and the Clean Elections Institute disavow any interest in “leveling the playing field.” They instead assert that the “Equal funding of candidates” provision, Ariz. Rev. Stat. Ann. § 16-952 (West Supp. 2010), serves the State’s compelling interest in combating corrup
Burdening a candidate’s expenditure of his own funds on his own campaign does not further the State’s anticorruption interest. Indeed, we have said that “reliance on personal funds reduces the threat of corruption” and that “discouraging [the] use of personal funds[] disserves the anticorruption interest.” Davis, supra, at 740-741. That is because “the use of personal funds reduces the candidate’s dependence on outside contributions and thereby counteracts the coercive pressures and attendant risks of abuse” of money in politics. Buckley, supra, at 53. The matching funds provision counts a candidate’s expenditures of his own money on his own campaign as contributions, and to that extent cannot be supported by any anticorruption interest.
We have also held that “independent expenditures ... do not give rise to corruption or the appearance of corruption.” Citizens United, 558 U. S., at 357. “By definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate.” Id., at 360. The candidate-funding circuit is broken. The separation between candidates and independent expenditure groups negates the possibility that independent expenditures will result in the sort of quid pro quo corruption with which our case law is concerned. See id., at 357-361; cf. Buckley, 424 U. S., at 46. Including independent expenditures in the matching funds provision cannot be supported by any anti-corruption interest.
We have observed in the past that “[t]he interest in alleviating the corrupting influence of large contributions is served by... contribution limitations.” Id., at 55. Arizona
Perhaps recognizing that the burdens the matching funds provision places on speech cannot be justified in and of themselves, either as a means of leveling the playing field or directly fighting corruption, the State and the Clean Elections Institute offer another argument: They contend that the provision indirectly serves the anticorruption interest, by ensuring that enough candidates participate in the State’s public funding system, which in turn helps combat corruption.
We have explained that the matching funds provision substantially burdens the speech of privately financed candidates and independent groups. It does so to an even greater extent than the law we invalidated in Davis. We have explained that those burdens cannot be justified by a desire to “level the playing field.” We have also explained that much of the speech burdened by the matching funds provision does not, under our precedents, pose a danger of corruption. In light of the foregoing analysis, the fact that the State may feel that the matching funds provision is necessary to allow it to “find[] the sweet-spot” and “fine-tun[e]” its public funding system, post, at 779 (Kagan, J., dissenting), to achieve its desired level of participation without an undue drain on public resources, is not a sufficient justification for the burden.
The flaw in the State’s argument is apparent in what its reasoning would allow. By the State’s logic it could grant a publicly funded candidate 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 in order to encourage participation in the public funding regime. Such measures might well promote participation in public financing, but would clearly suppress or unacceptably alter political speech. How the State chooses to encourage participation in its public funding system matters, and we have never held that a State may burden political speech— to the extent the matching funds provision does — to ensure adequate participation in a public funding system. Here the State’s chosen method is unduly burdensome and not sufficiently justified to survive First Amendment scrutiny.
Ill
We do not today call into question the wisdom of public financing as a means of funding political candidacy. That is
We have said that governments “may engage in public financing of election campaigns” and that doing so can further “significant governmental interest[s],” such as the state interest in preventing corruption. Buckley, supra, at 57, n. 65, 92-93, 96. But the goal of creating a viable public financing scheme can only be pursued in a manner consistent with the First Amendment. The dissent criticizes the Court for standing in the way of what the people of Arizona want. Post, at 756-757, 784-785. But the whole point of the First Amendment is to protect speakers against unjustified government restrictions on speech, even when those restrictions reflect the will of the majority. When it comes to protected speech, the speaker is sovereign.
Arizona’s program gives money to a candidate in direct response to the campaign speech of an opposing candidate or an independent group. It does this when the opposing candidate has chosen not to accept public financing, and has engaged in political speech above a level set by the State. The professed purpose of the state law is to cause a sufficient number of candidates to sign up for public financing, see post, at 759, which subjects them to the various restrictions on speech that go along with that program. This goes too far; Arizona’s matching funds provision substantially burdens the speech of privately financed candidates and independent
“[T]here is practically universal agreement that a major purpose of” the First Amendment “was to protect the free discussion of governmental affairs,” “includ[ing] discussions of candidates.” Buckley, 424 U. S., at 14 (internal quotation marks omitted; second alteration in original). That agreement “reflects our ‘profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.’” Ibid, (quoting New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964)). True when we said it and true today. Laws like Arizona’s matching funds provision that inhibit robust and wide-open political debate without sufficient justification cannot stand.
The judgment of the Court of Appeals for the Ninth Circuit is reversed.
It is so ordered.
The number of qualifying contributions rangoo from 200 for a candidate for the state legislature to 4,000 for a candidate for Governor. Ariz. Rev. Stat. Ann. §16-950(D) (West Supp. 2010).
Publicly financed candidates who run unopposed, or who run as the representative of a party that does not have a primary, may receive less funding than candidates running in contested elections. See §§ 16-951(A)(2K3) and (D) (West 2006).
Maine and North Carolina have both passed matching funds statutes that resemble Arizona’s law. See Me. Rev. Stat. Ann., Tit. 21-A, §§ 1125(8), (9) (2008); N. C. Gen. Stat. Ann. §163-278.67 (Lexis 2009). Minnesota, Connecticut, and Florida have also adopted matching fund3 provisions, but courts have onjoined the enforcement of those schemes after concluding that their operation violates the First Amendment. See Day v. Holahan, 34 F. 3d 1356, 1362 (CA8 1994); Green Party of Conn. v. Garfield, 616 F. 3d 213, 242 (CA2 2010); Scott v. Roberts, 612 F. 3d 1279, 1297-1298 (CA11 2010).
Judge Bea diaaented from the atay of the Diotriet Court’o injunction, stating that the Arizona public financing system unconotitutionally prefers publicly financed condidateo and that under the matching fundo ócheme “it makcD no more sense for [a privately financed candidate or independent expenditure group] to spend money now than for a poker player to make a bet if he knows the house io going to match his bet for his opponont.” App. to Pet. for Cert, in No. 10-239, p. 87; see id., at 89.
One judge concurred, relying primarily on his view that “the Arizona public financing scheme imposes no limitations whatsoever on a candidate’s speech.” 611 F. 3d, at 527 (Kleinfeld, J.).
The dissent sees “chutzpah" in candidates exercising their right not to participate in the public financing scheme, while objecting that the system violates their. First Amendment rights. See post, at 766 (opinion of Kagan, J.). The charge is unjustified, but, in any event, it certainly cannot be leveled against the independent expenditure groups. The dissent barely mentions such groups in its analysis, and fails to address not only the distinctive burdeno imposed on these groups--as sot forth abovo but also the way in which privately financed candidates are particularly burdened when matching funds are triggered by independent group speech.
The dissent also repeatedly argues that the Arizona matching funds regime results in “more political speech,” post, at 763-764 (emphasis in original); see post, at 756, 763, 767, 769, 784, but — given the logic of the dissent’s position — that is only as a step to less speech. If the matching funds provision achieves its professed goal and causes candidates to switch to pubhc financing, post, at 778, 781, there will be less speech: no spending above the initial state-set amount by formerly privately financed candidates, and no associated matching funds for anyone. Not only that, the level of speech will depend on the State’s judgment of the desirable amount, an amount tethered to available (and often scarce) state resources.
Along the same lines, we have invalidated government mandates that a speaker “help disseminate hostile views” opposing that speaker’s message. Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal., 475 U. S. 1, 14 (1986) (plurality opinion). In Pacific Gas, we found a public utility commission order forcing a utility company to disseminate in its billing envelopes views that the company opposed ran afoul of tho First Amondment. That case is of course distinguishable from tho instant action on its facts, but the central concern — that an individual should not be compelled to “help dioocminatc hostile views” — is implicated horo as woll. Ibid. If a candidate uses his own money to ongago in spooch abovo tho initial public fending threshold, he is forced to “help disseminate hostile views” in a moot direct way his own speech triggers tho release of state money to his opponent.
The dissent cites Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam), in response, see post, at 765, n. 3, but the funding in Buckley was of course not triggered by the speech of a publicly funded candidate's political opponent, or the speech of anyone else for that matter. See 424 U. S., at 91-95. Whether Arizona’s matching funds provision comports with the First Amendment is not simply a question whether the State can give a subsidy to a candidate to fund that candidate’s election, but whether that subsidy can be triggered by the speech of another candidate or independent group.
Prior to oral argument in this action, the Citizens Clean Elections Commission’s Web site stated, “‘The Citizens Clean Elections Act was passed by the people of Arizona in 1998 to level the playing field when it comes to running for office.’” AFEC Brief 10, n. 8 (quoting http:// www.azcleaneleetions.gov/about-us/get-involved.aspx); Tr. of Oral Arg. 48. The Web site now says, “The Citizens Clean Elections Act was passed by the people of Arizona in 1998 to restore citizen participation and confidonco in our political system.”
The State claims that the Citizens Clean Elections Act was passed in response to rampant corruption in Arizona politics — elected officials “literally taking duffle bags full of cash in exchange for sponsoring legislation.” Brief for State Respondents 45. That may be. But, as the candidates and independent expenditure groups point out, the corruption that plagued Arizona politics is largely unaddressed by the matching funds regime. AFEC Brief 11, n. 4. Public financing does nothing to prevent politicians from accepting bribes in exchange for their votes.
Dissenting Opinion
dissenting.
Imagine two States, each plagued by a corrupt political system. In both States, candidates for public office accept large campaign contributions in exchange for the promise that, after assuming office, they will rank the donors’ interests ahead of all others. As a result of these bargains, politicians ignore the public interest, sound public policy languishes, and the citizens lose confidence in their government.
Recognizing the cancerous effect of this corruption, voters of the first State, acting through referendum, enact several campaign finance measures previously approved by this Court. They cap campaign contributions; require disclosure of substantial donations; and create an optional public financing program that gives candidates a fixed public subsidy if they refrain from private fundraising. But these measures do not work. Individuals who “bundle” campaign contributions become indispensable to candidates in need of money.
Voters of the second State, having witnessed this failure, take an ever-so-slightly different tack to cleaning up their political system. They too enact contribution limits and disclosure requirements. But they believe that the greatest hope of eliminating corruption lies in creating an effective public financing program, which will break candidates’ dependence on large donors and bundlers. These voters realize, based on the first State’s experience, that such a program will not work unless candidates agree to participate in it. And candidates will participate only if they know that they will receive sufficient funding to run competitive races. So the voters enact a program that carefully adjusts the money given to would-be officeholders, through the use of a matching funds mechanism, in order to provide this assurance. The program does not discriminate against any candidate or point of view, and it does not restrict any person’s ability to speak. In fact, by providing resources to many candidates, the program creates more speech and thereby broadens public debate. And just as the voters had hoped, the program accomplishes its mission of restoring integrity to the political system. The second State rids itself of corruption.
A person familiar with our country’s core values — our devotion to democratic self-governance, as well as to “uninhibited, robust, and wide-open” debate, New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964) — might expect this Court to celebrate, or at least not to interfere with, the second State’s success. But today, the majority holds that the second State’s system — the system that produces honest government, working on behalf of all the people — clashes with our Constitution. The First Amendment, the majority insists, requires us all to rely on the measures employed in the
I disagree. The First Amendment’s core purpose is to foster a healthy, vibrant political system full of robust discussion and debate. Nothing in Arizona’s anti-corruption statute, the Arizona Citizens Clean Elections Act, violates this constitutional protection. To the contrary, the Act promotes the values underlying both the First Amendment and our entire Constitution by enhancing the “opportunity for free political discussion to the end that government may be responsive to the will of the people.” Id., at 269 (internal quotation marks omitted). I therefore respectfully dissent.
I
A
Campaign finance reform over the last century has focused on one key question: how to prevent massive pools of private money from corrupting our political system. If an officeholder owes his election to wealthy contributors, he may act for their benefit alone, rather than on behalf of all the people. As we recognized in Buckley v. Valeo, 424 U. S. 1, 26 (1976) (per curiam), our seminal campaign finance case, large private contributions may result in “political quid pro quo[$l,” which undermine the integrity of our democracy. And even if these contributions are not converted into corrupt bargains, they still may weaken confidence in our political system because the public perceives “the opportunities for abuse[sj.” Id., at 27. To prevent both corruption and the appearance of corruption — and so to protect our democratic system of governance — citizens have implemented reforms designed to curb the power of special interests. Among these measures, public financing of elections has emerged as a potentially potent mechanism to preserve elected officials’ independence. President Theodore Roosevelt proposed the reform as early as 1907 in his State of the Union address. “The need for collecting large campaign
For this reason, public financing systems today dot the national landscape. Almost one-third of the States have adopted some form of public financing, and so too has the Federal Government for presidential elections. See R. Garrett, Congressional Research Service Report for Congress, Public Financing of Congressional Campaigns: Overview and Analysis 2, 32 (2009). The federal program — which offers presidential candidates a fixed public subsidy if they abstain from private fundraising — originated in the campaign finance law that Congress enacted in 1974 on the heels of the Watergate scandal. Congress explained at the time that the “potential] for abuse” inherent in privately funded elections was “all too clear.” S. Rep. No. 93-689, p. 4 (1974). In Congress’s view, public financing represented the “only way .. . [to] eliminate reliance on large private contributions” and its attendant danger of corruption, while still ensuring that a wide range of candidates had access to the ballot. Id., at 5 (emphasis deleted).
We declared the presidential public financing system constitutional in Buckley v. Valeo. Congress, we stated, had created the program “for the ‘general welfare to reduce the deleterious influence of large contributions on our political process,” as well as to “facilitate communication by candi
But this model, which distributes a lump-sum grant at the beginning of an election cycle, has a significant weakness: It lacks a mechanism for setting the subsidy at a level that will give candidates sufficient incentive to participate, while also conserving public resources. Public financing can achieve its goals only if a meaningful number of candidates receive the state subsidy, rather than raise private funds. See 611 F. 3d 510, 527 (CA9 2010) (“A public financing system with no participants does nothing to reduce the existence or appearance of quid pro quo corruption”). But a public funding program must be voluntary to pass constitutional muster, because of its restrictions on contributions and expenditures. See Buckley, 424 U. S., at 57, n. 65, 95. And candidates will choose to sign up only if the subsidy provided enables them to run competitive races. If the grant is pegged too low, it puts the participating candidate at a disadvantage: Because he has agreed to spend no more than the amount of the subsidy, he will lack the means to respond if his privately funded opponent spends over that threshold. So when lump-sum grants do not keep up with campaign expenditures, more and
The difficulty, then, is in finding the Goldilocks solution— not too large, not too small, but just right. And this in a world of countless variables — where the amount of money needed to run a viable campaign against a privately funded candidate depends on, among other things, the district, the office, and the election cycle. A State may set lump-sum grants district-by-district, based on spending in past elections; but even that approach leaves out many factors — including the resources of the privately funded candidate— that alter the competitiveness of a seat from one election to the next. See App. 714-716 (record evidence chronicling the history of variation in campaign spending levels in Arizona’s legislative districts). In short, the dynamic nature of our electoral system makes ex ante predictions about campaign expenditures almost impossible. And that creates a chronic problem for lump-sum public financing programs, because in
B
The people of Arizona had every reason to try to develop effective anti-corruption measures. Before turning to public financing, Arizonans voted by initiative to establish campaign contribution limits. See Ariz. Rev. Stat. Ann. §16-905 (West Supp. 2010). But that effort to abate corruption, standing alone, proved unsuccessful. Five years after the enactment of these limits, the State suffered “the worst public corruption scandal in its history.” Brief for State Respondents 1. In that scandal, known as “AzScam,” nearly 10% of the State’s legislators were caught accepting campaign contributions or bribes in exchange for supporting a piece of legislation. Following that incident, the voters of Arizona decided that further reform was necessary. Acting once again by initiative, they adopted the public funding system at issue here.
The hallmark of Arizona’s program is its inventive approach to the challenge that bedevils all public financing schemes: fixing the amount of the subsidy. For each electoral contest, the system calibrates the size of the grant automatically to provide sufficient — but no more than sufficient — funds to induce voluntary participation. In effect, the program’s designers found the Goldilocks solution, which produces the “just right” grant to ensure that a participant in the system has the funds needed to run a competitive race.
As the Court explains, Arizona’s matching funds arrangement responds to the shortcoming of the lump-sum model by adjusting the public subsidy in each race to reflect the expenditures of a privately financed candidate and the independent groups that support him. See Ariz. Rev. Stat. Ann.
This arrangement, like the lump-sum model, makes use of a pre-set amount to provide financial support to participants. For example, all publicly funded legislative candidates collect an initial grant of $21,479 for a general election race. And they can in no circumstances receive more than three times that amount ($64,437); after that, their privately funded competitors hold a marked advantage. But the Arizona system improves on the lump-sum model in a crucial respect. By tying public funding to private spending, the State can afford to set a more generous upper limit — because it knows that in each campaign it will only have to disburse what is necessary to keep a participating candidate reasonably competitive. Arizona can therefore assure candidates that, if they accept public funds, they will have the resources to run a viable race against those who rely on private money. And at the same time, Arizona avoids wasting taxpayers’ dollars. In this way, the Clean Elections Act creates an effective and sustainable public financing system.
The question here is whether this modest adjustment to the public financing program that we approved in Buckley makes the Arizona law unconstitutional. The majority contends that the matching funds provision “substantially burdens protected political speech” and does not “serv[e] a com
II
Arizona’s statute does not impose a “‘restrictio[n],’” ante, at 741, or “substantia[l] burde[n],” ante, at 728, on expression. The law has quite the opposite effect: It subsidizes and so produces more political speech. We recognized in Buckley that, for this reason, public financing of elections “facilitate[] and enlarge[s] public discussion,” in support of First Amendment values. 424 U. S., at 92-93. And what we said then is just as true today. Except in a world gone topsy-turvy, additional campaign speech and electoral competition is not a First Amendment injury.
A
At every turn, the majority tries to convey the impression that Arizona’s matching fund statute is of a piece with laws prohibiting electoral speech. The majority invokes the language of “limits,” “bar[s],” and “restraints.” Ante, at 734. It equates the law to a “restrictio[n] on the amount of money a person or group can spend on political communication during a campaign.” Ante, at 741 (internal quotation marks omitted). It insists that the statute “restrict^] the speech of some elements of our society” to enhance the speech of others. Ibid, (internal quotation marks omitted). And it concludes by reminding us that the point of the First Amendment is to protect “against unjustified government restrictions on speech.” Ante, at 754.
There is just one problem. Arizona’s matching funds provision does not restrict, but instead subsidizes, speech. The law “impose[s] no ceiling on [speech] and do[es] not prevent anyone from speaking.” Citizens United v. Federal Election Comm’n, 558 U. S. 310, 366 (2010) (citation and internal quotation marks omitted); see Buckley, 424 U. S., at 92 (holding that a public financing law does not “abridge, restrict, or
And under the First Amendment, that makes all the difference. In case after case, year upon year, we have distinguished between speech restrictions and speech subsidies. “ ‘There is a basic difference,’ ” we have held, “ ‘between direct state interference with [First Amendment] protected activity and state encouragement’” of other expression. Rust v. Sullivan, 500 U. S. 173, 193 (1991) (quoting Maher v. Roe, 432 U. S. 464, 475 (1977)); see also, e. g., Federal Election Comm’n v. Massachusetts Citizens for Life, Inc., 479 U. S. 238, 256, n. 9 (1986); Regan v. Taxation With Representation of Wash., 461 U. S. 540, 550 (1983); National Endowment for Arts v. Finley, 524 U. S. 569, 587-588 (1998); id., at 599 (Scalia, J., concurring in judgment) (noting the “fundamental divide” between “ ‘abridging’ speech and funding it”). Government subsidies of speech, designed “to stimulate . .. expression[,]... [are] consistent with the First Amendment,” so long as they do not discriminate on the basis of viewpoint. Board of Regents of Univ. of Wis. System v. Southworth, 529 U. S. 217, 234 (2000); see, e. g., Rosenberger v. Rector and
No one can claim that Arizona’s law discriminates against particular ideas, and so violates the First Amendment’s sole limitation on speech subsidies. The State throws open the doors of its public financing program to all candidates who meet minimal eligibility requirements and agree not to raise private funds. Republicans and Democrats, conservatives and liberals may participate; so too, the law applies equally to independent expenditure groups across the political spectrum. Arizona disburses funds based not on a candidate’s (or supporter’s) ideas, but on the candidate’s decision to sign up for public funding. So under our precedent, Arizona’s subsidy statute should easily survive First Amendment scrutiny.
This suit, in fact, may merit less attention than any challenge to a speech subsidy ever seen in this Court. In the usual First Amendment subsidy case, a person complains that the government declined to finance his speech, while
Indeed, what petitioners demand is essentially a right to quash others’ speech through the prohibition of a (universally available) subsidy program. Petitioners are able to convey their ideas without public financing — and they would prefer the field to themselves, so that they can speak free from response. To attain that goal, they ask this Court to prevent Arizona from funding electoral speech — even though that assistance is offered to every state candidate, on the same (entirely unobjectionable) basis. And this Court gladly obliges.
If an ordinary citizen, without the hindrance of a law degree, thought this result an upending of First Amendment values, he would be correct. That Amendment protects no person’s, nor any candidate’s, “right to be free from vigorous debate.” Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal., 475 U. S. 1, 14 (1986) (plurality opinion). Indeed, the Amendment exists so that this debate can occur — robust, forceful, and contested. It is the theory of the Free Speech Clause that “falsehood and fallacies” are exposed through “discussion,” “education,” and “more speech.” Whitney v. California, 274 U. S. 357, 377 (1927) (Brandeis, J., concurring). Or once again from Citizens United: “[M]ore speech, not less, is the governing rule.” 558 U. S., at 361. And this
We said all this in Buckley, when we upheld the presidential public financing system — a ruling this Court has never since questioned. The principal challenge to that system came from minor-party candidates not eligible for benefits— surely more compelling plaintiffs than petitioners, who could have received funding but refused it. Yet we rejected that attack in part because we understood the federal program as supporting, rather than interfering with, expression. See 424 U. S., at 90-108; see also Regan, 461 U. S., at 549 (relying on Buckley to hold that selective subsidies of expression comport with the First Amendment if they are viewpoint neutral). Buckley rejected any idea, along the lines the majority proposes, that a subsidy of electoral speech was in truth a restraint. And more: Buckley recognized that public financing of elections fosters First Amendment principles. “[T]he central purpose of the Speech and Press Clauses,’’ we explained, “was to assure a society in which ‘uninhibited, robust, and wide-open’ public debate concerning matters of public interest would thrive, for only in such a society can a healthy representative democracy flourish.” 424 U. S., at 93, n. 127 (quoting New York Times, 376
B
The majority has one, and only one, way of separating this case from Buckley and our other, many precedents involving speech subsidies. According to the Court, the special problem here lies in Arizona’s matching funds mechanism, which the majority claims imposes a “substantia[l] burdefn]” on a privately funded candidate’s speech. Ante, at 728. Sometimes, the majority suggests that this “burden” lies in the way the mechanism “ ‘diminished) the effectiveness’ ” of the privately funded candidate’s expression by enabling his opponent to respond. Ante, at 736 (quoting Davis v. Federal Election Comm’n, 554 U. S. 724, 736 (2008)); see ante, at 747. At other times, the majority indicates that the “burden” resides in the deterrent effect of the mechanism: The privately funded candidate “might not spend money” because doing so will trigger matching funds. Ante, at 746. Either way, the majority is wrong to see a substantial burden on expression.
Most important, and as just suggested, the very notion that additional speech constitutes a “burden” is odd and unsettling. Here is a simple fact: Arizona imposes nothing re
But put to one side this most fundamental objection to the majority’s argument; even then, has the majority shown that the burden resulting from the Arizona statute is “substantial”? See Clingman v. Beaver, 544 U. S. 581, 592 (2005) (holding that stringent judicial review is “appropriate only if the burden is severe”). I will not quarrel with the majority’s assertion that responsive speech by one candidate may make another candidate’s speech less effective, see ante, at 747; that, after all, is the whole idea of the First Amendment, and a benefit of having more responsive speech. See Abrams v. United States, 250 U. S. 616, 630 (1919) (Holmes, J., dissenting) (“[T]he best test of truth is the power of the thought to get itself accepted in the competition of the market”). And I will assume that the operation of this statute may on occasion deter a privately funded candidate from spending money, and conveying ideas by that means.
Number one: Any system of public financing, including the lump-sum model upheld in Buckley, imposes a similar burden on privately funded candidates. Suppose Arizona were to do what all patties agree it could under Buckley — provide a single upfront payment (say, $150,000) to a participating candidate, rather than an initial payment (of $50,000) plus 94% of whatever his privately funded opponent spent, up to a ceiling (the same $150,000). That system would “diminis [h] the effectiveness” of a privately funded candidate’s speech at least as much, and in the same way: It would give his opponent, who presumably would not be able to raise that sum on his own, more money to spend. And so too, a lump-sum system may deter speech. A person relying on
Number two: Our decisions about disclosure and disclaimer requirements show the Court is wrong. Starting in Buckley and continuing through last Term, the Court has repealedly declined to view these requirements as a substantial First Amendment burden, even though they discourage some campaign speech. "It is undoubtedly true,” we stated in Buckley, that public disclosure obligations “will deter some individuals” from engaging in expressive activity. 424 U. S., at 68; see Davis, 554 U. S., at 744. Yet we had no difficulty upholding these requirements there. And much more recently, in Citizens United and Doe v. Reed, 561 U. S. 186 (2010), we followed that precedent. “ ‘[Disclosure requirements may burden the ability to speak,’ ” we reasoned, but they “ ‘do not prevent anyone from speaking.’ ” Id., at 196 (quoting Citizens United, 558 U. S., at 366). So too here. Like a disclosure rule, the matching funds provision may occasionally deter, but “ fimpose[s] no ceiling’ ” on, electoral expression. Id., at 366.
The majority breezily dismisses this comparison, labeling the analogy “not even close” because disclosure requirements result in no payment of money to a speaker's opponent.
Number three: Any burden that the Arizona law imposes does not exceed the burden associated with contribution limits, which we have also repeatedly upheld. Contribution limits, we have stated, “impose direct quantity restrictions on political communication and association,” Buckley, 424 U. S., at 18 (emphasis added), thus “ ‘significantly] interfer[ing]’ ” with First Amendment interests, Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 387 (2000) (quoting Buckley, 424 U. S., at 25). Rather than potentially deterring or “‘diminishing] the effectiveness’” of expressive activity, ante, at 736 (quoting Davis, 554 U. S., at 736), these limits stop it cold. Yet we have never subjected these restrictions to the most stringent review. See Buckley, 424 U. S., at 29-38. I doubt I have to reiterate that the Arizona statute imposes no restraints on any expressive activity. So the majority once again has no reason here to reach a different result.
In this way, our campaign finance cases join our speech subsidy cases in supporting the constitutionality of Arizona’s law. Both sets of precedents are in accord that a statute funding electoral speech in the way Arizona’s does imposes no First Amendment injury.
C
The majority thinks it has one case on its side — Davis v. Federal Election Commm'n, 554 U. S. 724 — and it pegs every
As the majority recounts, Davis addressed the constitutionality of federal legislation known as the Millionaire’s Amendment. Under that provision (which applied in elections not involving public financing), a candidate’s expenditure of more than $350,000 of his own money activated a change in applicable contribution limits. Before, each candidate in the race could accept $2,300 from any donor; but now, the opponent of the self-financing candidate could accept three times that much, or up to $6,900 per contributor. So one candidate’s expenditure of personal funds on campaign speech triggered discriminatory contribution restrictions favoring that candidate’s opponent.
Under the First Amendment, the similarity between Davis and this case matters far less than the differences. Here is the similarity: In both cases, one candidate’s campaign expenditure triggered . . . something. Now here are the differences: In Davis, the candidate’s expenditure triggered a discriminatory speech restriction, which Congress could not otherwise have imposed consistent with the First Amendment; by contrast, in this case, the candidate’s expenditure triggers a non-discriminatory speech subsidy, which all parties agree Arizona could have provided in the first instance. In First Amendment law, that difference makes a difference — indeed, it makes all the difference. As I have indicated before, two great fault lines run through our First Amendment doctrine: one, between speech restrictions and speech subsidies, and the other, between discriminatory and neutral government action. See supra, at 764-765. The Millionaire’s Amendment fell on the disfavored side of both divides: To reiterate, it imposed a discriminatory speech restriction. The Arizona Clean Elections Act lands on the opposite side of both: It grants a non-discriminatory
And let me be clear: This is not my own idiosyncratic or post hoc view of Davis; it is the Davis Court’s self-expressed, contemporaneous view. That decision began, continued, and ended by focusing on the Millionaire Amendment’s “discriminatory contribution limits.” 554 U. S., at 740. We made that clear in the very first sentence of the opinion, where we summarized the question presented. Id., at 728 (“In this appeal, we consider the constitutionality of federal election law provisions that. . . impose different campaign contribution limits on candidates”). And our focus on the law’s discriminatory restrictions was evident again when we examined how the Court’s prior holdings informed the case. Id., at 738 (“We have never upheld the constitutionality of a law that imposes different contribution limits for candidates”). And then again, when we concluded that the Millionaire’s Amendment could not stand. Id., at 740 (explaining that “the activation of a scheme of discriminatory contribution limits” burdens speech). Our decision left no doubt (because we repeated the point many times over, see also id., at 729, 730, 739, 740, n. 7, 741, 744): The constitutional problem with the Millionaire’s Amendment lay in its use of discriminatory speech restrictions.
But what of the trigger mechanism — in Davis, as here, a candidate’s campaign expenditures? That, after all, is the only thing that this case and Davis share. If Davis had held
The Court’s response to these points is difficult to fathom. The majority concedes that “our decision in Davis focused on the asymmetrical contribution limits imposed by the Millionaire’s Amendment.” Ante, at 740. That was because, the majority explains, Davis presented only that issue. See ante, at 740. And yet, the majority insists (without explaining how this can be true), the reach of Davis is not so limited. And in any event, the majority claims, the burden on speech is “greater in this action than in Davis.” Ante, at 740. But for reasons already stated, that is not so. The burden on speech in Davis — the penalty that campaign spending triggered — was the discriminatory contribution restriction, which Congress could not otherwise have imposed. By con
rH hH I — i
For all these reasons, the Court errs in holding that the government action in this case substantially burdens speech and so requires the State to offer a compelling interest. But in any event, Arizona has come forward with just such an interest, explaining that the Clean Elections Act attacks corruption and the appearance of corruption in the State’s political system. The majority’s denigration of this interest — the suggestion that it either is not real or does not matter— wrongly prevents Arizona from protecting the strength and integrity of its democracy.
A
Our campaign finance precedents leave no doubt: Preventing corruption or the appearance of corruption is a compelling government interest. See, e. g., Davis, 554 U. S., at 741; Federal Election Comm’n v. National Conservative Political Action Comm., 470 U. S. 480, 496-497 (1985) (NCPAC). And so too, these precedents are clear: Public financing of
This compelling interest appears on the very face of Arizona’s public financing statute. Start with the title: The Citizens Clean Elections Act. Then proceed to the statute’s formal findings. The public financing program, the findings state, was “inten[ded] to create a clean elections system that will improve the integrity of Arizona state government by diminishing the influence of special-interest money.” § 16-940(A) (West 2006). That measure was needed because the prior system of private fundraising had “[u]ndermine[d] public confidence in the integrity of public officials”; allowed those officials “to accept large campaign contributions from private interests over which they ha[d] governmental jurisdiction”; favored “a small number of wealthy special interests” over “the vast majority of Arizona citizens”; and “[c]os[t] average taxpayers millions of dollars in the form of subsidies and special privileges for campaign contributors.”
And that interest justifies the matching funds provision at issue because it is a critical facet of Arizona’s public financing program. The provision is no more than a disbursement mechanism; but it is also the thing that makes the whole Clean Elections Act work. As described earlier, see supra, at 759-760, public financing has an Achilles’ heel — the diffi-
Except in this Court, where the inescapable logic of the State’s position is . . . virtually ignored. The Court, to be sure, repeatedly asserts that the State’s interest in preventing corruption does not "sufficiently juslif[y]" the mechanism it has chosen to disburse public moneys. Ante, at 753; see ante, at 752-753. Only one thing is missing from the Court’s response: any reasoning to support this conclusion. Nowhere
B
The majority instead devotes most of its energy to trying to show that “leveling] the playing field,” not fighting corruption, was the State’s real goal. Ante, at 748 (internal quotation marks omitted); see ante, at 748-749. But the majority’s distaste for “leveling” provides no excuse for striking down Arizona’s law.
1
For starters, the Court has no basis to question the sincerity of the State’s interest in rooting out political corruption. As I have just explained, that is the interest the State has asserted in this Court; it is the interest predominantly expressed in the “findings and declarations” section of the statute; and it is the interest universally understood (stretching back to Teddy Roosevelt’s time) to support public financing of elections. See supra, at 757-758, 777-778. As against all this, the majority claims to have found three smoking guns that reveal the State’s true (and nefarious) intention to level the playing field. But the only smoke here is the majority’s, and it is the kind that goes with mirrors.
Next, the majority notes that the Act allows participating candidates to accept private contributions if (but only if) the State cannot provide the funds it has promised (for example, because of a budget crisis). Ante, at 749 (citing § 16-954(F) (West 2006)). That provision, the majority argues, shows that when push comes to shove, the State cares more about “leveling” than about fighting corruption. Ante, at 749. But this is a plain misreading of the law. All the statute does is assure participating candidates that they will not be left in the lurch if public funds suddenly become unavailable. That guarantee helps persuade candidates to enter the program by removing the risk of a state default. And so the provision directly advances the Act’s goal of combating corruption.
Finally, the Court remarks in a footnote that the Clean Elections Commission’s website once stated that the “ ‘ “Act was passed by the people of Arizona ... to level the playing field.” ’ ” Ante, at 749, n. 10. I can understand why the majority does not place much emphasis on this point. Some Members of the majority have ridiculed the practice of relying on subsequent statements by legislators to demonstrate an earlier Congress’s intent in enacting a statute. See, e. g., Sullivan v. Finkelstein, 496 U. S. 617, 631-632 (1990) (Scalia, J., concurring in part); United States v. Hayes, 555
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.
2
But suppose the majority had come up with some evidence showing that Arizona had sought to “equalize electoral opportunities.” Ante, at 750. Would that discovery matter? Our precedent says no, so long as Arizona had a compelling interest in eliminating political corruption (which it clearly did). In these circumstances, any interest of the State in “leveling” should be irrelevant. That interest could not support Arizona’s law (assuming the law burdened speech), but neither would the interest invalidate the legislation.
To see the point, consider how the matter might arise. Assume a State has two reasons to pass a statute affecting speech. It wants to reduce corruption. But in addition, it wishes to “level the playing field.” Under our First Amendment law, the interest in preventing corruption is compelling and may justify restraints on speech. But the interest in “leveling the playing field,” according to well-established precedent, cannot support such legislation.
The answer must be no. This Court, after all, has never said that a law restricting speech (or any other constitutional right) demands two compelling interests. One is enough. And this statute has one: preventing corruption. So it does not matter that equalizing campaign speech is an insufficient interest. The statute could violate the First Amendment only if “equalizing” qualified as a forbidden motive — a motive that itself could annul an otherwise constitutional law. But we have never held that to be so. And that should not be surprising: It is a “fundamental principle of constitutional adjudication,” from which we have deviated only in exceptional cases, “that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive.” United States v. O’Brien, 391 U. S. 367, 383 (1968); see id., at 384 (declining to invalidate a statute when “Congress had the undoubted power to enact” it without the suspect motive); accord, Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 652 (1994); Renton v. Playtime Theatres, Inc., 475 U. S. 41, 47-48 (1986). When a law is otherwise constitutional-when it either does not restrict speech or rests on an interest sufficient to justify any such restriction — that is the end of the story.
That proposition disposes of this case, even if Arizona had an adjunct interest here in equalizing electoral opportunities. No special rule of automatic invalidation applies to statutes having some connection to equality; like any other laws, they pass muster when supported by an important enough government interest. Here, Arizona has demonstrated in detail how the matching funds provision is necessary to serve a compelling interest in combating corruption. So the hunt for evidence of “leveling” is a waste of time; Arizona’s law
IV
This ease arose because Arizonans wanted their government to work on behalf of all the State's people. On the heels of a political scandal involving the near-routine purchase of legislators’ votes, Arizonans passed a law designed to sever political candidates’ dependence on large contributors. They wished, as many of their fellow Americans wish, to stop corrupt dealing — to ensure that their representatives serve the public, and not just the wealthy donors who helped put them in office. The legislation that Arizona’s voters enacted was the product of deep thought and care. It put into effect a public financing system that attracted large numbers of candidates at a sustainable cost to the State’s taxpayers. The system discriminated against no ideas and prevented no speech. Indeed, by increasing electoral competition and enabling a wide range of candidates to express their views, the system “furthered] . . . First Amendment values.” Buckley, 424 U. S., at 93 (citing New York Times, 376 U. S., at 270). Less corruption, more speech. Robust campaigns leading to the election of representatives not beholden to the few, but accountable to the many. The people of Arizona might have expected a decent respect for those objectives.
Today, they do not get it. The Court invalidates Arizonans’ efforts to ensure that in their State, “ '[t]he people . . . possess the absolute sovereignty.’” Id., at 274 (quoting James Madison in 4 Debates on the Federal Constitution 569-570 (J. Elliot 2d ed. 1876)). No precedent compels the Court to take this step; to the contrary, today’s decision is in tension with broad swaths of our First Amendment doctrine. No fundamental principle of our Constitution backs the Court’s ruling; to the contrary, it is the law struck down today that fostered both the vigorous competition of ideas and its ultimate object — a government responsive to the will
Truly, democracy is not a game. See ante, at 750. I respectfully dissent.
The problem is apparent in the federal system. In recent years, the numbor of presidential candidates opting to receive public financing has declined because the subsidy has not kept pace with spending by privately financed candidates. See Conrado, Public Funding of Presidential Campaigns, in The New Campaign Finance Sourcebook 180, 200 (A. Corrado, T. Mann, D. Ortiz, & T. Potter 2005), The last election cycle offers a stark example; Then candidate Barack Obama raised $746.7 million in private funds in 2008, Federal Election Commission, 2008 Presidential Campaign Financial Activity Summarized, June 8, 2009, online at http:// www.foc.gov/presG/press2009/20Q90608PrcoStat.shtml, in contrast with the $105.4 million he could have received in public fundo, occ Federal Election Commission, Presidential Election Campaign Fund, online at http:// www.fec.gov/press/bkgnd/fund.shtml (all Internet materials as visited June 24, 2011, and available in Clerk of Court’s case file).
And the law appears to do that job well. Between 1998 (when the statute was enacted) and 2006, overall candidate expenditures increased between 29% and 67%; overall independent expenditures rose by a whopping 253%; and average candidate expenditures grew by 12% to 40%. App. to Pet. for Cert, in No. 10-239, pp. 284-285; App. 916-917.
The majority claims that none of our subsidy cases involved the funding of “responsive]” expression. See ante, at 743. But the majority does not explain why this distinction, created to fit the facts of this case, should matter so long as the government is not discriminating on the basis of viewpoint. Indeed, the difference the majority highlights should cut in the opposite direction, because facilitating responsive speech fosters “uninhibited, robust, and wide-open” public debate. New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964). In any event, the majority is wrong to say that we have never approved funding to “allow the recipient to counter” someone else’s political speech. Ante, at 743. That is exactly what we approved in Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam). See supra, at 759. The majority notes that the public financing scheme in Buckley lacked the trigger mechanism used in the Arizona law. See ante, at 743, n. 9. But again, that is just to describe a difference, not to say why it matters. As I will show, the trigger is constitutionally irrelevant — as we made clear in the very case (Davis v. Federal Election Comm’n, 554 U. S. 724 (2008)) on which the majority principally relies. See infra, at 772-776.
The majority argues that more speech will quickly become “less speech,” as candidates switch to public funding. Ante, at 741, n. 7. But that claim misunderstands how a voluntary public financing system works. Candidates with significant financial resources will likely decline public fund3, so that they can spend in excess of the syctom’s oxpondituro caps. Other candidates accept public financing because they bcliovo it veil on hance their communication with voters. So the system continually pushes toward more speech. That is exactly what has happened in Arizona, see n. 2, supra, and the majority offers no counter-examples.
The majority’s error on this score extends both to candidates and to independent expenditure groups. Contrary to the majority’s suggestion, see ante, at 740, n. 6, nearly all of my arguments showing that the Clean Elections Act does not impose a substantial burden apply to both sets of speakers (and apply regardless of whether independent or candidate expenditures trigger the matching funds). That is also true of every one of my arguments demonstrating the State’s compelling interest in this legislation. See infra, at 776-780. But perhaps the best response to the majority’s wow that tho Act inhibits independent expenditure groups lies in an empirical fact already noted: Expenditures by these groups have risen by 263% oineo Arizona's law was enacted. See n. 2, supra.
I will note, however, that the record evidence of this effect is spotty at best. The majority finds anecdotal evidence supporting its argument on just 6 pages of a 4,500-page summary judgment record. See ante, at
Of course, only publicly funded candidates receive the subsidy. But that is because only those candidates have agreed to abide by stringent spending caps (which privately funded candidates can exceed by any amount). And Buckley specifically approved that exchange as consistent with the First Amendment. See 424 U. S., at 57, n. 65, 95. By contrast, Davis involved a scheme in which one candidate in a race received concrete fundraising advantages, in the form of asymmetrical contribution limits, just because his opponent had spent a certain amount of his own money.
The majority also briefly relies on Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974), but that case is still wider of the mark. There, we invalidated a law compelling newspapers (by threat of criminal sanction) to print a candidate’s rejoinder to critical commentary. That law, we explained, overrode the newspaper’s own editorial judgment and forced the paper both to pay for and to convey a message with which it disagreed. See id., at 256-258. An analogy might be if Arizona forced privately funded candidates to purchase their opponents’ posters, and then to display those posters in their own campaign offices. But that is very far from this case. The Arizona statute does not require petitioners to disseminate or fund any opposing speech; nor does it in any way associate petitioners with that speech.
Notably, the Court found this conclusion obvious even though an across-the-board increase in contribution limits works to the comparative advantage of the non-self-financing candidate — that is, the candidate who actually depends on contributions. Such a system puts the self-financing candidate to a choice: Do I stop spending, or do I allow the higher contribution limits (which will help my opponent) to kick in? That strategic choice parallels the one that the Arizona statute forces. See supra, at 769.
The legislative findings also echo what the Buckley Court found true of public financing — that it “encourage[s] citizen participation in the political process” and “promote[s] freedom of speech” by enhancing the ability of candidates to “eommunieat[e] to voters.” §§ 16-940(A), (B).
The majority briefly suggests that the State’s “austere contribution limits” lessen the need for public financing, see ante, at 752, but provides no support for that dubious claim. As Arizona and other jurisdictions have discovered, contribution limits may not eliminate the risk of corrupt dealing between candidates and donors, especially given the widespread practice of bundling small contributions into large packages. See Brief for United States as Amicus Curiae 31. For much this reason, Buckley upheld both limits on contributions to federal candidates and public financing of presidential campaigns. See 424 U. S., at 23-38, 90-108. Arizona, like Congress, was “surely entitled to conclude” that contribution limits were only a “partial measure,” id., at 28, and that a functional public financing system was also necessary to eliminate political corruption. In stating otherwise, the Court substitutes its judgment for that of Arizona’s voters, contrary to our practice of declining to “second-guess a ... determination as to the need for prophylactic measures where corruption is the evil feared.” Federal Election Comm’n v. National Right to Work Comm., 459 U. S. 197, 210 (1982).
For this reason, the majority is quite wrong to cay that the State’s interoot in combating corruption doeo not oupport the matching fund pro vioion’o application to a candidate’s expenditure of his own money or to an independent expenditure. Ante, at 751. The point is not that these expenditures themselves corrupt the political process. Rather, Arizona includes these, as 'well as all other, expenditures in the program to ensure that participating candidates receive the funds necessary to run competitive races — and so to attract those candidates in the first instance. That is in direct service of the State’s anti-corruption interest.
I note that this principle relates only to actions restricting speech. See Buckley, 424 U. S., at 48-49 (rejecting the notion “that government may restrict the speech of some ... to enhance the relative voice of others”). As previously explained, speech subsidies stand on a different constitutional footing, see supra, at 764-765; so long as the government remains neutral among viewpoints, it may choose to assist the speech of
