The fate of Arizona’s Clean Elections Act, which the Supreme Court on Monday declared unconstitutional, was foreshadowed March 28, during oral arguments. Lawyers defending the law insisted its purpose was to combat corruption or the appearance thereof. The court has repeatedly said this is the only constitutionally permissible reason for restricting the quantity of political speech. The law’s defenders insisted its purpose was not to “level the playing field” by equalizing candidates’ resources, which the court has declared an unconstitutional reason for regulating speech. But Chief Justice John Roberts replied: “Well, I checked the Citizens Clean Elections Commission Web site this morning, and it says that this act was passed to ‘level the playing field’ when it comes to running for office.” Game over.
Given the clarity and frequency with which the court has stressed the unconstitutionality of laws empowering government to equalize candidates’ speech by equalizing their resources, Monday’s ruling was predictable, but gratifying. Also predictable, but depressing, were four justices (Elena Kagan, Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor) finding no constitutional flaw in a law that did this:
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