Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett , 131 S. Ct. 2806 ( 2011 )

(Slip Opinion) OCTOBER TERM, 2010 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
ARIZONA FREE ENTERPRISE CLUB’S FREEDOM
CLUB PAC ET AL. v. BENNETT, SECRETARY OF
STATE OF ARIZONA, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 10–238. Argued March 28, 2011—Decided June 27, 2011*
The Arizona Citizens Clean Elections Act created a public financing
system to fund the primary and general election campaigns of candi
dates for state office. Candidates who opt to participate, and who ac
cept certain campaign restrictions and obligations, are granted an
initial outlay of public funds to conduct their campaign. They are
also granted additional matching funds if a privately financed candi
date’s expenditures, combined with the expenditures of independent
groups made in support of the privately financed candidate or in op
position to a publicly financed candidate, exceed the publicly financed
candidate’s initial state allotment. Once matching funds are trig
gered, a publicly financed candidate receives roughly one dollar for
every dollar raised or spent by the privately financed candidate—
including any money of his own that a privately financed candidate
spends on his campaign—and for every dollar spent by independent
groups that support the privately financed candidate. When there
are multiple publicly financed candidates in a race, each one receives
matching funds as a result of the spending of privately financed can
didates and independent expenditure groups. Matching funds top
out at two times the initial grant to the publicly financed candidate.
Petitioners, past and future Arizona candidates and two independ
ent expenditure groups that spend money to support and oppose Ari
zona candidates, challenged the constitutionality of the matching
——————
* Together with No. 10–239, McComish et al. v. Bennett, Secretary of
State of Arizona, et al., also on certiorari to the same court.
2 ARIZONA FREE ENTERPRISE CLUB’S FREEDOM
CLUB PAC v. BENNETT
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funds provision, arguing that it unconstitutionally penalizes their
speech and burdens their ability to fully exercise their First Amend
ment rights. The District Court entered a permanent injunction
against the enforcement of the matching funds provision. The Ninth
Circuit reversed, concluding that the provision imposed only a mini
mal burden and that the burden was justified by Arizona’s interest in
reducing quid pro quo political corruption.
Held: Arizona’s matching funds scheme substantially burdens political
speech and is not sufficiently justified by a compelling interest to
survive First Amendment scrutiny. Pp. 8–30.
(a) The matching funds provision imposes a substantial burden on
the speech of privately financed candidates and independent expendi
ture groups. Pp. 8–22.
(1) Petitioners contend that their political speech is substantially
burdened in the same way that speech was burdened by the so-called
“Millionaire’s Amendment” of the Bipartisan Campaign Reform Act
of 2002, which was invalidated in Davis v. Federal Election Comm’n,
554 U.S. 724. That law—which permitted the opponent of a candi
date who spent over $350,000 of his personal funds to collect triple
the normal contribution amount, while the candidate who spent the
personal funds remained subject to the original contribution cap—
unconstitutionally forced a candidate “to choose between the First
Amendment right to engage in unfettered political speech and subjec
tion to discriminatory fundraising limitations.” Id., at 739. This
“unprecedented penalty” “impose[d] a substantial burden on the ex
ercise of the First Amendment right to use personal funds for cam
paign speech” that was not justified by a compelling government in
terest. Id., at 739–740. Pp. 8–10.
(2) The logic of Davis largely controls here. Once a privately fi
nanced candidate has raised or spent more than the State’s initial
grant to a publicly financed candidate, each personal dollar the pri
vately financed candidate spends results in an award of almost one
additional dollar to his opponent. The privately financed candidate
must “shoulder a special and potentially significant burden” when
choosing to exercise his First Amendment right to spend funds on his
own candidacy. 554 U.S., at 739. If the law at issue in Davis im
posed a burden on candidate speech, the Arizona law unquestionably
does so as well.
The differences between the matching funds provision and the law
struck down in Davis make the Arizona law more constitutionally
problematic, not less. First, the penalty in Davis consisted of raising
the contribution limits for one candidate, who would still have to
raise the additional funds. Here, the direct and automatic release of
public money to a publicly financed candidate imposes a far heavier
Cite as: 564 U. S. ____ (2011) 3
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burden. Second, in elections where there are multiple publicly fi
nanced candidates—a frequent occurrence in Arizona—the matching
funds provision can create a multiplier effect. Each dollar spent by
the privately funded candidate results in an additional dollar of fund
ing to each of that candidate’s publicly financed opponents. Third,
unlike the law in Davis, all of this is to some extent out of the pri
vately financed candidate’s hands. Spending by independent expen
diture groups to promote a privately financed candidate’s election
triggers matching funds, regardless whether such support is welcome
or helpful. Those funds go directly to the publicly funded candidate
to use as he sees fit. That disparity in control—giving money directly
to a publicly financed candidate, in response to independent expendi
tures that cannot be coordinated with the privately funded candi
date—is a substantial advantage for the publicly funded candidate.
The burdens that matching funds impose on independent expendi
ture groups are akin to those imposed on the privately financed can
didates themselves. The more money spent on behalf of a privately
financed candidate or in opposition to a publicly funded candidate,
the more money the publicly funded candidate receives from the
State. The effect of a dollar spent on election speech is a guaranteed
financial payout to the publicly funded candidate the group opposes,
and spending one dollar can result in the flow of dollars to multiple
candidates. In some ways, the burdens imposed on independent
groups by matching funds are more severe than the burdens imposed
on privately financed candidates. Independent groups, of course, are
not eligible for public financing. As a result, those groups can only
avoid matching funds by changing their message or choosing not to
speak altogether. Presenting independent expenditure groups with
such a choice—trigger matching funds, change your message, or do
not speak—makes the matching funds provision particularly burden
some to those groups and 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. Pp. 10–14.
(3) The arguments of Arizona, the Clean Elections Institute, and
amicus United States attempting to explain away the existence or
significance of any burden imposed by matching funds are unpersua
sive.
Arizona correctly points out that its law is different from the law
invalidated in Davis, but there is no doubt that the burden on speech
is significantly greater here than in Davis. Arizona argues that the
provision actually creates more speech. But even if that were the
case, only the speech of publicly financed candidates is increased by
4 ARIZONA FREE ENTERPRISE CLUB’S FREEDOM
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the state law. And burdening the speech of some—here privately fi
nanced candidates and independent expenditure groups—to increase
the speech of others is a concept “wholly foreign to the First Amend
ment,” Buckley v. Valeo, 424 U.S. 1, 48–49; cf. Miami Herald Pub
lishing Co. v. Tornillo, 418 U.S. 241, 244, 258. That no candidate or
group is forced to express a particular message does not mean that
the matching funds provision does not burden their speech, especially
since the direct result of that speech is a state-provided monetary
subsidy to a political rival. And precedents upholding government
subsidies against First Amendment challenge provide no support for
matching funds; none of the subsidies at issue in those cases were
granted in response to the speech of another.
The burden on privately financed candidates and independent ex
penditure groups also cannot be analogized to the burden placed on
speakers by the disclosure and disclaimer requirements upheld in
Citizens United v. Federal Election Comm’n, 558 U. S. ___. A political
candidate’s disclosure of his funding resources does not result in a
cash windfall to his opponent, or affect their respective disclosure ob
ligations.
The burden imposed by the matching funds provision is evident
and inherent in the choice that confronts privately financed candi
dates and independent expenditure groups. Indeed every court to
have considered the question after Davis has concluded that a candi
date or independent group might not spend money if the direct result
of that spending is additional funding to political adversaries. Ari
zona is correct that the candidates do not complain that providing a
lump sum payment equivalent to the maximum state financing that
a candidate could obtain through matching funds would be imper
missible. But it is not the amount of funding that the State provides
that is constitutionally problematic. It is the manner in which that
funding is provided—in direct response to the political speech of pri
vately financed candidates and independent expenditure groups.
Pp. 14–22.
(b) Arizona’s matching funds provision is not “ ‘justified by a com
pelling state interest,’ ” Davis, supra, at 740. Pp. 22–28.
(1) There is ample support for the argument that the purpose of
the matching funds provision is to “level the playing field” in terms of
candidate resources. The clearest evidence is that the provision op
erates to ensure that campaign funding is equal, up to three times
the initial public funding allotment. The text of the Arizona Act con
firms this purpose. The provision setting up the matching funds re
gime is titled “Equal funding of candidates,” Ariz. Rev. Stat. Ann.
§16–952; and the Act and regulations refer to the funds as “equaliz
ing funds,” e.g., §16–952(C)(4). This Court has repeatedly rejected
Cite as: 564 U. S. ____ (2011) 5
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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, supra, at ___, and the burdens im
posed by matching funds cannot be justified by the pursuit of such an
interest. Pp. 22–25.
(2) Even if the objective of the matching funds provision is to
combat corruption—and not “level the playing field”—the burdens
that the matching funds provision imposes on protected political
speech are not justified. Burdening a candidate’s expenditure of his
own funds on his own campaign does not further the State’s anticor
ruption interest. Indeed, “reliance on personal funds reduces the
threat of corruption.” Davis, supra, at 740–741; see Buckley, supra,
at 53. The burden on independent expenditures also cannot be sup
ported by the anticorruption interest. Such expenditures are “politi
cal speech . . . not coordinated with a candidate.” Citizens United,
558 U. S., at ___. That separation negates the possibility that the ex
penditures will result in the sort of quid pro quo corruption with
which this Court’s case law is concerned. See e.g., id., at ___–___.
Moreover, “[t]he interest in alleviating the corrupting influence of
large contributions is served by . . . contribution limitations.” Buck
ley, supra, at 55. Given Arizona’s contribution limits, some of the
most austere in the Nation, its strict disclosure requirements, and
the general availability of public funding, it is hard to imagine what
marginal corruption deterrence could be generated by the matching
funds provision.
The State and the Clean Elections Institute contend that even if
the matching funds provision does not directly serve the anticorrup
tion interest, it indirectly does so by ensuring that enough candidates
participate in the State’s public funding system, which in turn helps
combat corruption. But the fact that burdening constitutionally pro
tected speech might indirectly serve the State’s anticorruption inter
est, by encouraging candidates to take public financing, does not es
tablish the constitutionality of the matching funds provision. The
matching funds provision substantially burdens speech, to an even
greater extent than the law invalidated in Davis. Those burdens
cannot be justified by a desire to “level the playing field,” and much of
the speech burdened by the matching funds provision does not pose a
danger of corruption. The fact that the State may feel that the
matching funds provision is necessary to allow it to calibrate its pub
lic funding system to achieve its desired level of participation—
without an undue drain on public resources—is not a sufficient justi
fication 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 award publicly financed
6 ARIZONA FREE ENTERPRISE CLUB’S FREEDOM
CLUB PAC v. BENNETT
Syllabus
candidates five dollars for every dollar spent by a privately financed
candidate, 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 such participa
tion, but would clearly suppress or unacceptably alter political
speech. How the State chooses to encourage participation in its pub
lic funding system matters, and the Court has never held that a State
may burden political speech—to the extent the matching funds provi
sion does—to ensure adequate participation in a public funding sys
tem. Pp. 25–28.
(c) Evaluating the wisdom of public financing as a means of fund
ing political candidacy is not the Court’s business. But determining
whether laws governing campaign finance violate the First Amend
ment is. The government “may engage in public financing of election
campaigns,” and doing so can further “significant governmental in
terest[s].” Buckley, 424 U.S., 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. 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. This
goes too far; Arizona’s matching funds provision substantially bur
dens the speech of privately financed candidates and independent
expenditure groups without serving a compelling state interest.
Pp. 28–30.
611 F.3d 510, reversed.
ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA,
KENNEDY, THOMAS, and ALITO, JJ., joined. KAGAN, J., filed a dissenting
opinion, in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined.
Cite as: 564 U. S. ____ (2011) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 10–238 and 10–239
_________________
ARIZONA FREE ENTERPRISE CLUB’S FREEDOM
CLUB PAC, ET AL., PETITIONERS
10–238 v.
KEN BENNETT, IN HIS OFFICIAL CAPACITY AS
ARIZONA SECRETARY OF STATE, ET AL.
JOHN MCCOMISH, ET AL., PETITIONERS
10–239 v.
KEN BENNETT, IN HIS OFFICIAL CAPACITY AS
ARIZONA SECRETARY OF STATE, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 27, 2011]
CHIEF JUSTICE ROBERTS delivered the opinion of the
Court.
Under Arizona law, candidates for state office who ac
cept public financing can receive additional money from
the State in direct response to the campaign activities of
privately financed candidates and independent expendi
ture groups. Once a set spending limit is exceeded, a
publicly financed candidate receives roughly one dollar for
every dollar spent by an opposing privately financed can
didate. The publicly financed candidate also receives
roughly one dollar for every dollar spent by independent
expenditure groups to support the privately financed
candidate, or to oppose the publicly financed candidate.
2 ARIZONA FREE ENTERPRISE CLUB’S FREEDOM
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Opinion of the Court
We hold that Arizona’s matching funds scheme substan
tially burdens protected political speech without serving a
compelling state interest and therefore violates the First
Amendment.
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 cam
paigns 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, attor
ney general, treasurer, superintendent of public instruc
tion, 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),1 and
the acceptance of certain campaign restrictions and obliga
tions. Publicly funded candidates must agree, among
other things, to limit their expenditure of personal funds
to $500, §16–941(A)(2) (West Supp. 2010); participate in at
least one public debate, §16–956(A)(2); adhere to an over
all expenditure cap, §16–941(A); and return all unspent
public moneys to the State, §16–953.
In exchange for accepting these conditions, participating
candidates are granted public funds to conduct their cam
paigns.2 In many cases, this initial allotment may be the
——————
1 The number of qualifying contributions ranges from 200 for a candi
date for the state legislature to 4,000 for a candidate for Governor.
Ariz. Rev. Stat. Ann. §16–950(D) (West Supp. 2010).
2 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–
Cite as: 564 U. S. ____ (2011) 3
Opinion of the Court
whole of the State’s financial backing of a publicly funded
candidate. But when certain conditions are met, publicly
funded candidates are granted additional “equalizing” or
matching funds. §§16–952(A), (B), and (C)(4)–(5) (provid
ing for “[e]qual funding of candidates”).
Matching funds are available in both primary and gen
eral elections. In a primary, matching funds are triggered
when a privately financed candidate’s expenditures, com
bined with the expenditures of independent groups made
in support of the privately financed candidate or in opposi
tion 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 fi
nanced candidate. §16–952(B). A privately financed can
didate’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. Rule R2–20–
113(B)(1)(f) (Sept. 2009).
Once matching funds are triggered, each additional dol
lar that a privately financed candidate spends during
the primary results in one dollar in additional state fund
ing to his publicly financed opponent (less a 6% reduction
meant to account for fundraising expenses). §16–952(A).
During a general election, every dollar that a candidate
receives in contributions—which includes any money of
his own that a candidate spends on his campaign—results
in roughly one dollar in additional state funding to his
——————
951(A)(2)–(3) and (D) (West 2006).
4 ARIZONA FREE ENTERPRISE CLUB’S FREEDOM
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Opinion of the Court
publicly financed opponent. In an election where a pri
vately funded candidate faces multiple publicly financed
candidates, one dollar raised or spent by the privately fi
nanced candidate results in an almost one dollar increase
in public funding to each of the publicly financed candi
dates.
Once the public financing cap is exceeded, additional
expenditures by independent groups can result in dollar
for-dollar matching funds as well. Spending by independ
ent 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 candi
dates 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. Contri
butions to candidates for statewide office are limited to
$840 per contributor per election cycle and contributions
to legislative candidates are limited to $410 per contribu
tor 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).
An example may help clarify how the Arizona matching
funds provision operates. Arizona is divided into 30 dis
tricts for purposes of electing members to the State’s
House of Representatives. Each district elects two repre
Cite as: 564 U. S. ____ (2011) 5
Opinion of the Court
sentatives to the House biannually. In the last general
election, the number of candidates competing for the two
available seats in each district ranged from two to seven.
See State of Arizona Official Canvass, 2010 General Elec
tion Report (compiled and issued by the Arizona secretary
of state). Arizona’s Fourth District had three candidates
for its two available House seats. Two of those candidates
opted to accept public funding; one candidate chose to
operate his campaign with private funds.
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 Commis
sion, Participating Candidate Guide 2010 Election Cycle
30 (Aug. 10, 2010). At that point, a number of differ
ent 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 pri
vately financed candidate, each of the publicly fi
nanced candidates would receive $940 directly.
• If an independent expenditure group spent $1,000
on a brochure opposing one of the publicly financed
candidates, but saying nothing about the privately
6 ARIZONA FREE ENTERPRISE CLUB’S FREEDOM
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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 fi
nanced candidates, the other publicly financed can
didate 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 can
didate, 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 inde
pendent 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).3
B
Petitioners in this case, plaintiffs below, are five past
and future candidates for Arizona state office—four mem
bers 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
challenging the constitutionality of the matching funds
provision. The candidates and independent expenditure
groups argued that the matching funds provision uncon
——————
3 Maine and North Carolina have both passed matching funds stat
utes 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 funds
provisions, but courts have enjoined 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).
Cite as: 564 U. S. ____ (2011) 7
Opinion of the Court
stitutionally penalized their speech and burdened their
ability to fully exercise their First Amendment rights.
The District Court agreed that this provision “consti
tute[d] a substantial burden” on the speech of privately
financed candidates because it “award[s] funds to a [pri
vately financed] candidate’s opponent” based on the pri
vately 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 84–85.4
After hearing the case on the merits, the Court of Appeals
reversed the District Court. The Court of Appeals con
cluded that the matching funds provision “imposes only a
minimal burden on First Amendment rights” because it
“does not actually prevent anyone from speaking in the
first place or cap campaign expenditures.” 611 F.3d 510,
513, 525 (2010). In that court’s view, any burden imposed
by the matching funds provision was justified because the
provision “bears a substantial relation to the State’s im
portant interest in reducing quid pro quo political corrup
tion.” Id., at 513.5
——————
4 Judge Bea dissented from the stay of the District Court’s injunction,
stating that the Arizona public financing system unconstitutionally
prefers publicly financed candidates and that under the matching funds
scheme “it makes 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 is going to match his bet for
his opponent.” App. to Pet. for Cert. in No. 10–239, p. 87; see id., at 89.
5 One judge concurred, relying primarily on his view that “the Arizona
8 ARIZONA FREE ENTERPRISE CLUB’S FREEDOM
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Opinion of the Court
We stayed the Court of Appeals’ decision, vacated the
stay of the District Court’s injunction, see 560 U. S. ___
(2010), and later granted certiorari, 562 U. S. ___ (2010).
II
“Discussion of public issues and debate on the qualifica
tions 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 ut
tered 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. ___, ___ (2010) (slip op., at 23) (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 govern
ment-imposed restrictions on campaign expenditures,
Buckley, supra, at 52–54, restraints on independent ex
penditures applied to express advocacy groups, Massachu
setts Citizens for Life, supra, at 256–265, limits on uncoor
dinated 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 corporations from making independent
expenditures for electioneering communication, Citizens
——————
public financing scheme imposes no limitations whatsoever on a candi
date’s speech.” 611 F.3d, at 527 (Kleinfeld, J.).
Cite as: 564 U. S. ____ (2011) 9
Opinion of the Court
United, supra, at ___ (slip op., at 57).
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 can
didates, 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 fund
ing sources disclose their identities, Citizens United, su
pra, at ___–___ (slip op., at 55–56).
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 par
ties 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 Biparti-
san 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 contribu
tion limit of $2,300. See ibid. The candidate who spent
more than the personal funds limit remained subject to
10 ARIZONA FREE ENTERPRISE CLUB’S FREEDOM
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the original contribution cap. Davis argued that this
scheme “burden[ed] his exercise of his First Amendment
right to make unlimited expenditures of his personal
funds because” doing so had “the effect of enabling his
opponent to raise more money and to use that money to
finance speech that counteract[ed] and thus diminishe[d]
the effectiveness of Davis’ own speech.” Id., at 736.
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 expendi
tures. 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 poten
tially significant burden” because that choice gave fund
raising advantages to the candidate’s adversary. Ibid. We
determined that this constituted an “unprecedented pen
alty” 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
case. 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 provi
sion, “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 poli
Cite as: 564 U. S. ____ (2011) 11
Opinion of the Court
tics.” Ibid.
Once a privately financed candidate has raised or spent
more than the State’s initial grant to a publicly financed
candidate, each personal dollar spent by the privately
financed candidate results in an award of almost one
additional dollar to his opponent. That plainly forces the
privately financed candidate to “shoulder a special and
potentially significant burden” when choosing to exercise
his First Amendment right to spend funds on behalf of his
candidacy. Ibid. If the law at issue in Davis imposed a
burden on candidate speech, the Arizona law unques
tionably does so as well.
The penalty imposed by Arizona’s matching funds provi
sion 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 in
creased limits still had to go out and raise the funds. He
may or may not have been able to do so. The other candi
date, therefore, faced merely the possibility that his oppo
nent 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 pen
alty,” a “special and potentially significant burden” that
had to be justified by a compelling state interest—a rigor
ous 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 pre
viously discussed, see supra, at 4–6, if the spending cap
12 ARIZONA FREE ENTERPRISE CLUB’S FREEDOM
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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 oppo
nents. In such a situation, the matching funds provi
sion forces privately funded candidates to fight a political
hydra of sorts. Each dollar they spend generates two
adversarial dollars in response. Again, a markedly more
significant burden than in Davis.
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 expendi
tures 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 pri
vately financed candidate could not do with the independ
ent group expenditures that triggered the matching funds.
Cf. Citizens United, 558 U. S., at ___ (slip op., at 41) (“ ‘The
absence of prearrangement and coordination of an expen
diture with the candidate or his agent . . . undermines the
value of the expenditure to the candidate’ ” (quoting Buck
ley, 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
Cite as: 564 U. S. ____ (2011) 13
Opinion of the Court
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 funded candidate the group opposes. More
over, spending one dollar can result in the flow of dollars
to multiple candidates the group disapproves of, dollars
directly controlled by the publicly funded candidate or
candidates.
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 constitu
tionally impermissible in Davis. If a candidate contem
plating 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 ex
penditure group that wants to support a particular candi
date—because of that candidate’s stand on an issue of con
cern 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 match
ing funds provision particularly burdensome to those
groups. And forcing that choice—trigger matching funds,
change your message, or do not speak—certainly contra
venes “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 ___ (slip op.,
14 ARIZONA FREE ENTERPRISE CLUB’S FREEDOM
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at 24) (“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 changing
what they say” does not mean the law complies with the
First Amendment).6
2
Arizona, the Clean Elections Institute, 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 fo
cused 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 case than in Davis: That
means that the law here—like the one in Davis—must be
justified by a compelling state interest.
——————
6 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 12 (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 burdens imposed on these groups—as set forth
above—but also the way in which privately financed candidates are
particularly burdened when matching funds are triggered by independ
ent group speech.
Cite as: 564 U. S. ____ (2011) 15
Opinion of the Court
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
“promot[ing] the free and open debate that the First
Amendment was intended to foster.” Brief for State Re
spondents 41; see Brief for Respondent Clean Elections
Institute 55. In the State’s view, this promotion of First
Amendment ideals offsets any burden the law might
impose on some speakers.
Not so. Any increase in speech resulting from the Ari
zona 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[s] on the amount of
money a person or group can spend on political communi
cation 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—
“restrict[ing] 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 48–49.7
——————
7 The dissent also repeatedly argues that the Arizona matching funds
regime results in “more political speech,” post, at 9 (emphasis in origi
nal); see post, at 2, 10, 13, 16, 32, 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
public financing, post, at 25, 30, 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.
16 ARIZONA FREE ENTERPRISE CLUB’S FREEDOM
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We have rejected government efforts to increase the
speech of some at the expense of others outside the cam
paign finance context. In Miami Herald Publishing Co. v.
Tornillo, 418 U.S. 241, 244, 258 (1974), we held unconsti
tutional a Florida law that required any newspaper assail
ing a political candidate’s character to allow that candi
date to print a reply. We have explained that while the
statute in that case “purported to advance free discussion,
. . . its effect was to deter newspapers from speaking out in
the first instance” because it “penalized the newspaper’s
own expression.” Pacific Gas & Elec. Co. v. Public Util.
Comm’n of Cal., 475 U.S. 1, 10 (1986) (plurality opinion).
Such a penalty, we concluded, could not survive First
Amendment scrutiny. The Arizona law imposes a similar
penalty: The State grants funds to publicly financed can
didates as a direct result of the speech of privately fi
nanced candidates and independent expenditure groups.
The argument that this sort of burden promotes free and
robust discussion is no more persuasive here than it was
in Tornillo.8
Arizona asserts that no “candidate or independent ex
penditure group is ‘obliged personally to express a mes
sage he disagrees with’ ” or “ ‘required by the government
to subsidize a message he disagrees with.’ ” Brief for State
——————
8 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 the First
Amendment. That case is of course distinguishable from the instant
case on its facts, but the central concern—that an individual should not
be compelled to “help disseminate hostile views”—is implicated here as
well. Ibid. If a candidate uses his own money to engage in speech
above the initial public funding threshold, he is forced to “help dissemi
nate hostile views” in a most direct way—his own speech triggers the
release of state money to his opponent.
Cite as: 564 U. S. ____ (2011) 17
Opinion of the Court
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 pri
vately 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 Millionaire’s Amendment in Davis. The
fact that this may result in more speech by the other
candidates is no more adequate a justification here than it
was in Davis. See 554 U.S., at 741–742.
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 Amend
ment burden on another.” Post, at 16. But none of those
cases—not one—involved a subsidy given in direct re
sponse 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 Amend
ment scrutiny if they were triggered by someone else’s
political speech.9
The State also argues, and the Court of Appeals con
cluded, that any burden on privately financed candidates
and independent expenditure groups is more analogous to
——————
9 The dissent cites Buckley in response, see post, at 12, 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 of whether the State can give a subsidy to a candi
date to fund that candidate’s election, but whether that subsidy can be
triggered by the speech of another candidate or independent group.
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the burden placed on speakers by the disclosure and
disclaimer requirements we recently upheld in Citizens
United than to direct restrictions on candidate and inde
pendent 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.
The State and the Clean Elections Institute assert that
the candidates and independent expenditure groups have
failed to “cite specific instances in which they decided not
to raise or spend funds,” Brief for State Respondents 11;
see id., at 11–12, and have “failed to present any reliable
evidence that Arizona’s triggered matching funds deter
their speech,” Brief for Respondent Clean Elections Insti
tute 6; see id., at 6–8. The record in this case, which we
must review in its entirety, does not support those asser
tions. See Bose Corp. v. Consumers Union of United
States, Inc., 466 U.S. 485, 499 (1984).
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 case, “found that privately fi
nanced candidates facing the prospect of triggering match
ing funds changed the timing of their fundraising activi
ties, the timing of their expenditures, and, thus, their
overall campaign strategy.” Reply Brief for Petitioner
Cite as: 564 U. S. ____ (2011) 19
Opinion of the Court
Arizona Free Enterprise Club’s (AFEC) 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 triggering level, but no such phenomenon has been
observed. Brief for State Respondents 39; Brief for Re
spondent Clean Elections Institute 18–19. That should
come as no surprise. The hypothesis presupposes a pri
vately funded candidate who would spend his own money
just up to the matching funds threshold, when he could
have simply taken matching funds in the first place.
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 burden
some. 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 Million
aire’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.
20 ARIZONA FREE ENTERPRISE CLUB’S FREEDOM
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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, 554 U.S., at 738–740.
Indeed even candidates who sign up for public funding
recognize the burden matching funds impose on private
speech, stating that they participate in the program be
cause “matching funds . . . discourage[ ] opponents, special
interest groups, and lobbyists from campaigning against”
them. GAO, Campaign Finance Reform: Experiences of
Two States that Offered Full Public Funding for Political
Candidates 27 (GAO–10–390, 2010). As in Davis, we do
not need empirical evidence to determine that the law at
issue is burdensome. See 554 U.S., at 738–740 (requiring
no evidence of a burden whatsoever).
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)); McComish v. Bennett, 611 F.3d, at 524
(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
Cite as: 564 U. S. ____ (2011) 21
Opinion of the Court
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 disagree
ment 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
impermissibly burden their speech. Brief for State Re
spondents 56; see Tr. of Oral Arg. 5. The State reasons
that if providing all the money up front would not burden
speech, providing it piecemeal does not do so either. And
the State further argues that such incremental admini
stration is necessary to ensure that public funding is not
under- or over-distributed. See Brief for State Respon
dents 56–57.
These arguments miss the point. It is not the amount of
funding that the State provides to publicly financed candi
dates that is constitutionally problematic in this case. It
is the manner in which that funding is provided—in direct
response to the political speech of privately financed can
didates and independent expenditure groups. And the fact
that the State’s matching mechanism may be more effi
cient 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 26
(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 “[p]roviding
additional funds to petitioners’ opponents does not make
22 ARIZONA FREE ENTERPRISE CLUB’S FREEDOM
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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 contro
verted. And even if the publicly funded candidate decides
to use his new money to address a different issue alto
gether, 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.
B
Because the Arizona matching funds provision imposes
a substantial burden on the speech of privately financed
candidates and independent expenditure groups, “that pro
vision 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 case as to
what state interest is served by the matching funds provi
sion. 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 ap
pearance 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”
Cite as: 564 U. S. ____ (2011) 23
Opinion of the Court
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 sta
tutory 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(C)(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. Rule R2–20–113.
Other features of the Arizona law reinforce this under
standing of the matching funds provision. If the Citizens
Clean Election Commission cannot provide publicly fi
nanced candidates with the moneys that the matching
funds provision envisions because of a shortage of funds,
the statute allows a publicly financed candidate to “accept
private contributions to bring the total monies received by
the candidate” up to the matching funds amount. Ariz.
Rev. Stat. Ann. §16–954(F) (West 2006). Limiting contri
butions, of course, is the primary means we have upheld to
combat corruption. Buckley, 424 U.S., at 23–35, 46–47.
Indeed the State argues that one of the principal ways
that the matching funds provision combats corruption is
by eliminating the possibility of any quid pro quo between
private interests and publicly funded candidates by elimi
nating contributions to those candidates altogether. See
Brief for State Respondents 45–46. But when confronted
with a choice between fighting corruption and equalizing
speech, the drafters of the matching funds provision chose
the latter. That significantly undermines any notion that
the “Equal funding of candidates” provision is meant to
serve some interest other than an interest in equalizing
24 ARIZONA FREE ENTERPRISE CLUB’S FREEDOM
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Opinion of the Court
funds.10
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 politi
cal speech. See, e.g., Citizens United, 558 U. S., at ___
(slip op., at 34). In Davis, we stated that discriminatory
contribution limits meant to “level electoral opportunities
for candidates of different personal wealth” did not serve
“a legitimate government objective,” let alone a compelling
one. 554 U.S., at 741 (internal quotation marks omitted).
And in Buckley, we held that limits on overall campaign
expenditures could not be justified by a purported govern
ment “interest in equalizing the financial resources of
candidates.” 424 U.S., at 56; see id., at 56–57. After all,
equalizing campaign resources “might serve not to equal
ize the opportunities of all candidates, but to handicap a
candidate who lacked substantial name recognition or
exposure of his views before the start of the campaign.”
Id., at 57.
“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 27–29, but
it needs to be taken seriously; we have, as noted, held that
it is not legitimate for the government to attempt to equal
ize electoral opportunities in this manner. And such basic
——————
10 Priorto oral argument in this case, the Citizens Clean Elections
Commission’s Web site stated that “ ‘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. 3 (quoting
http://www.azcleanelections.gov/about-us/get-involved.aspx); Tr. of Oral
Arg. 48. The Web site now says that “The Citizens Clean Elections Act
was passed by the people of Arizona in 1998 to restore citizen participa
tion and confidence in our political system.”
Cite as: 564 U. S. ____ (2011) 25
Opinion of the Court
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 corruption and the appearance of corruption.
See, e.g., Davis, supra, at 740; Wisconsin Right to Life, 551
U.S., at 478–479 (opinion of ROBERTS, C. J.). But even if
the ultimate objective of the matching funds provision is to
combat corruption—and not “level the playing field”—the
burdens that the matching funds provision imposes on
protected political speech are not justified.
Burdening a candidate’s expenditure of his own funds
on his own campaign does not further the State’s anticor
ruption 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 candi
date’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 expendi
26 ARIZONA FREE ENTERPRISE CLUB’S FREEDOM
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Opinion of the Court
tures of his own money on his own campaign as contribu
tions, and to that extent cannot be supported by any anti
corruption interest.
We have also held that “independent expenditures . . .
do not give rise to corruption or the appearance of corrup
tion.” Citizens United, 558 U. S., at ___ (slip op., at 42).
“By definition, an independent expenditure is political
speech presented to the electorate that is not coordi-
nated with a candidate.” Id., at ___ (slip op., at 44). 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 ___–___ (slip op., at 42–45);
cf. Buckley, 424 U.S., at 46. Including independent ex
penditures in the matching funds provision cannot be
supported by any anticorruption 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 already has some of the most austere contribution
limits in the United States. See Randall v. Sorrell, 548
U.S. 230, 250–251 (2006) (plurality opinion). Contribu
tions to statewide candidates are limited to $840 per
contributor per election cycle and contributions to legisla
tive candidates are limited to $410 per contributor per
election cycle. See Ariz. Rev. Stat. Ann. §§16–905(A)(1),
941(B)(1); Ariz. Dept. of State, Office of the Secretary of
State, 2009–2010 Contribution Limits, see supra, at 4.
Arizona also has stringent fundraising disclosure re
quirements. In the face of such ascetic contribution limits,
strict disclosure requirements, and the general availability
of public funding, it is hard to imagine what marginal
corruption deterrence could be generated by the matching
funds provision.
Perhaps recognizing that the burdens the matching
Cite as: 564 U. S. ____ (2011) 27
Opinion of the Court
funds provision places on speech cannot be justified in
and of themselves, either as a means of leveling the play
ing field or directly fighting corruption, the State and the
Clean Elections Institute offer another argument: They
contend that the provision indirectly serves the anticor
ruption interest, by ensuring that enough candidates
participate in the State’s public funding system, which in
turn helps combat corruption.11 See Brief for State Re
spondents 46–47; Brief for Respondent Clean Elections
Institute 47–49. We have said that a voluntary system of
“public financing as a means of eliminating the improper
influence of large private contributions furthers a signifi
cant governmental interest.” Buckley, supra, at 96. But
the fact that burdening constitutionally protected speech
might indirectly serve the State’s anticorruption interest,
by encouraging candidates to take public financing, does
not establish the constitutionality of the matching funds
provision.
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
——————
11 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 corrup
tion that plagued Arizona politics is largely unaddressed by the match
ing funds regime. AFEC Brief 11, n. 4. Public financing does nothing
to prevent politicians from accepting bribes in exchange for their votes.
28 ARIZONA FREE ENTERPRISE CLUB’S FREEDOM
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Opinion of the Court
necessary to allow it to “find[ ] the sweet-spot” and “fine
tun[e]” its public funding system, post, at 26 (KAGAN, J.,
dissenting), to achieve its desired level of participation
without an undue drain on public resources, is not a suffi
cient 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 pro
mote 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 par
ticipation in a public funding system. Here the State’s
chosen method is unduly burdensome and not sufficiently
justified to survive First Amendment scrutiny.
III
We do not today call into question the wisdom of public
financing as a means of funding political candidacy. That
is not our business. But determining whether laws gov
erning campaign finance violate the First Amendment is
very much our business. In carrying out that responsibil
ity over the past 35 years, we have upheld some restric
tions on speech and struck down others. See, e.g., Buckley,
supra, at 35–38, 51–54 (upholding contribution limits and
striking down expenditure limits); Colorado I, 518 U.S.,
at 608 (opinion of BREYER, J.) (invalidating ban on inde
pendent expenditures for electioneering communication);
Colorado II, 533 U.S., at 437 (upholding caps on coordi
nated party expenditures); Davis, 554 U.S., at 736 (in
Cite as: 564 U. S. ____ (2011) 29
Opinion of the Court
validating asymmetrical contribution limits triggered by
candidate spending).
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, 424
U.S., 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 dis
sent criticizes the Court for standing in the way of what
the people of Arizona want. Post, at 2–3, 31–32. 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 major
ity. 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 fi
nancing, see post, at 5, 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 expenditure groups without
serving a compelling state interest.
“[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] discus
sions of candidates.” Buckley, 424 U.S., at 14 (internal
quotation marks omitted; second alteration in original).
That agreement “reflects our ‘profound national commit
ment to the principle that debate on public issues should
30 ARIZONA FREE ENTERPRISE CLUB’S FREEDOM
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Opinion of the Court
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.
Cite as: 564 U. S. ____ (2011) 1
KAGAN, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 10–238 and 10–239
_________________
ARIZONA FREE ENTERPRISE CLUB’S FREEDOM
CLUB PAC, ET AL., PETITIONERS
10–238 v.
KEN BENNETT, IN HIS OFFICIAL CAPACITY AS
ARIZONA SECRETARY OF STATE, ET AL.
JOHN MCCOMISH, ET AL., PETITIONERS
10–239 v.
KEN BENNETT, IN HIS OFFICIAL CAPACITY AS
ARIZONA SECRETARY OF STATE, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 27, 2011]
JUSTICE KAGAN, with whom JUSTICE GINSBURG, JUS-
TICE BREYER, and JUSTICE SOTOMAYOR join, 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 pol-
icy 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
2 ARIZONA FREE ENTERPRISE CLUB’S FREEDOM
CLUB PAC v. BENNETT
KAGAN, J., dissenting
public financing program that gives candidates a fixed
public subsidy if they refrain from private fundraising.
But these measures do not work. Individuals who “bun
dle” campaign contributions become indispensable to
candidates in need of money. Simple disclosure fails to
prevent shady dealing. And candidates choose not to
participate in the public financing system because the
sums provided do not make them competitive with their
privately financed opponents. So the State remains af
flicted with corruption.
Voters of the second State, having witnessed this fail
ure, 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 can
didates’ 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 officehold
ers, 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 accom
plishes 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 “un
inhibited, robust, and wide-open” debate, New York Times
Co. v. Sullivan, 376 U.S. 254, 270 (1964)—might expect
Cite as: 564 U. S. ____ (2011) 3
KAGAN, J., dissenting
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 first State, even when they have failed to
break the stranglehold of special interests on elected
officials.
I disagree. The First Amendment’s core purpose is
to foster a healthy, vibrant political system full of ro-
bust discussion and debate. Nothing in Arizona’s anti
corruption statute, the Arizona Citizens Clean Elections
Act, violates this constitutional protection. To the con
trary, the Act promotes the values underlying both the
First Amendment and our entire Constitution by enhanc
ing 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[s],” 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 per
ceives “the opportunities for abuse[s].” Id., at 27. To
4 ARIZONA FREE ENTERPRISE CLUB’S FREEDOM
CLUB PAC v. BENNETT
KAGAN, J., dissenting
prevent both corruption and the appearance of corrup
tion—and so to protect our democratic system of govern
ance—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 Roo
sevelt proposed the reform as early as 1907 in his State
of the Union address. “The need for collecting large cam
paign funds would vanish,” he said, if the government “pro
vided an appropriation for the proper and legitimate ex
penses” of running a campaign, on the condition that a
“party receiving campaign funds from the Treasury” would
forgo private fundraising. 42 Cong. Rec. 78 (1907). The
idea was—and remains—straightforward. Candidates
who rely on public, rather than private, moneys are “be
holden [to] no person and, if elected, should feel no post
election obligation toward any contributor.” Republican
Nat. Comm. v. FEC, 487 F. Supp. 280, 284 (SDNY), aff’d
445 U.S. 955 (1980). By supplanting private cash in
elections, public financing eliminates the source of politi
cal corruption.
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 pro
gram—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 “potentia[l] for
abuse” inherent in privately funded elections was “all too
clear.” S. Rep. No. 93–689, p. 4 (1974). In Congress’s
Cite as: 564 U. S. ____ (2011) 5
KAGAN, J., dissenting
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 con
stitutional in Buckley v. Valeo. Congress, we stated, had
created the program “for the ‘general welfare’—to re-
duce the deleterious influence of large contributions on
our political process,” as well as to “facilitate communica
tion by candidates with the electorate, and to free candi
dates from the rigors of fundraising.” 424 U.S., at 91. We
reiterated “that public financing as a means of eliminat
ing the improper influence of large private contributions
furthers a significant governmental interest.” Id., at 96.
And finally, in rejecting a challenge based on the First
Amendment, we held that the program did not “restrict[]
or censor speech, but rather . . . use[d] public money to
facilitate and enlarge public discussion and participation
in the electoral process.” Id., at 92–93. We declared this
result “vital to a self-governing people,” and so concluded
that the program “further[ed], not abridge[d], pertinent
First Amendment values.” Id., at 93. We thus gave state
and municipal governments the green light to adopt public
financing systems along the presidential model.
But this model, which distributes a lump-sum grant at
the beginning of an election cycle, has a significant weak
ness: It lacks a mechanism for setting the subsidy at a
level that will give candidates sufficient incentive to par
ticipate, while also conserving public resources. Public
financing can achieve its goals only if a meaningful num
ber 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 vol
6 ARIZONA FREE ENTERPRISE CLUB’S FREEDOM
CLUB PAC v. BENNETT
KAGAN, J., dissenting
untary to pass constitutional muster, because of its re
strictions 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 sub
sidy, 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 expendi
tures, more and more candidates will choose not to par
ticipate.1 But if the subsidy is set too high, it may impose
an unsustainable burden on the public fisc. See 611 F.3d,
at 527 (noting that large subsidies would make public
funding “prohibitively expensive and spell its doom”). At
the least, hefty grants will waste public resources in the
many state races where lack of competition makes such
funding unnecessary.
The difficulty, then, is in finding the Goldilocks solu
tion—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 pri
——————
1 The problem is apparent in the federal system. In recent years, the
number of presidential candidates opting to receive public financing
has declined because the subsidy has not kept pace with spending
by privately financed candidates. See Corrado, Public Funding of
Presidential Campaigns, in The New Campaign Finance Sourcebook
180, 200 (A. Corrado, T. Mann, D. Ortiz, & T. Potter eds. 2005). The
last election cycle offers a stark example: Then-candidate Barack
Obama raised $745.7 million in private funds in 2008, Federal Election
Commission, 2008 Presidential Campaign Financial Activity Summa
rized, June 8, 2009, online at http://www.fec.gov/press/press2009/
20090608PresStat.shtml, in contrast with the $105.4 million he could
have received in public funds, see Federal Election Commission, Presi
dential 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).
Cite as: 564 U. S. ____ (2011) 7
KAGAN, J., dissenting
vately 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 spend
ing 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 impossi
ble. And that creates a chronic problem for lump-sum
public financing programs, because inaccurate estimates
produce subsidies that either dissuade candidates from
participating or waste taxpayer money. And so States
have made adjustments to the lump-sum scheme that we
approved in Buckley, in attempts to more effectively re
duce corruption.
B
The people of Arizona had every reason to try to develop
effective anti-corruption measures. Before turning to pub
lic financing, Arizonans voted by referendum to estab
lish 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 suf
fered “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 ex
change for supporting a piece of legislation. Following
that incident, the voters of Arizona decided that further
reform was necessary. Acting once again by referendum,
they adopted the public funding system at issue here.
The hallmark of Arizona’s program is its inventive
8 ARIZONA FREE ENTERPRISE CLUB’S FREEDOM
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KAGAN, J., dissenting
approach to the challenge that bedevils all public financ
ing 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 ar
rangement responds to the shortcoming of the lump-sum
model by adjusting the public subsidy in each race to re
flect the expenditures of a privately financed candidate
and the independent groups that support him. See Ariz.
Rev. Stat. Ann. §16–940 et seq. (West 2006 and West
Supp. 2010). A publicly financed candidate in Arizona
receives an initial lump-sum to get his campaign off the
ground. See §16–951 (West 2006). But for every dollar his
privately funded opponent (or the opponent’s supporters)
spends over the initial subsidy, the publicly funded candi
date will—to a point—get an additional 94 cents. See
§16–952 (West Supp. 2010). Once the publicly financed
candidate has received three times the amount of the
initial disbursement, he gets no further public funding, see
ibid., and remains barred from receiving private contribu
tions, no matter how much more his privately funded
opponent spends, see §16–941(A).
This arrangement, like the lump-sum model, makes use
of a pre-set amount to provide financial support to partici
pants. For example, all publicly funded legislative candi
dates collect an initial grant of $21,479 for a general elec
tion 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
Cite as: 564 U. S. ____ (2011) 9
KAGAN, J., dissenting
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 par
ticipating 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
compelling state interest.” Ante, at 2. But the Court is
wrong on both counts.
II
Arizona’s statute does not impose a “restriction,” ante, at
15, or “substantia[l] burde[n],” ante, at 2, 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 “facili
tate[s] 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 im
pression 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 8–9. It equates the law to a “restrictio[n] on the
10 ARIZONA FREE ENTERPRISE CLUB’S FREEDOM
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KAGAN, J., dissenting
amount of money a person or group can spend on political
communication during a campaign.” Ante, at 15 (internal
quotation marks omitted). It insists that the statute “re
strict[s] 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
29.
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. Fed
eral Election Comm’n, 558 U. S. ___, ___ (2010) (slip op., at
51) (citation and internal quotation marks omitted); see
Buckley, 424 U.S., at 92 (holding that a public financing
law does not “abridge, restrict, or censor” expression). The
statute does not tell candidates or their supporters how
much money they can spend to convey their message,
when they can spend it, or what they can spend it on.
Rather, the Arizona law, like the public financing statute
in Buckley, provides funding for political speech, thus
“facilitat[ing] communication by candidates with the elec
torate.” Id., at 91. By enabling participating candidates
to respond to their opponents’ expression, the statute
expands public debate, in adherence to “our tradition
that more speech, not less, is the governing rule.” Citizens
United, 558 U. S., at ___ (slip op., at 45). What the law
does—all the law does—is fund more speech.2
And under the First Amendment, that makes all the
——————
2 And the law appears to do that job well. Between 1998 (when the
statute was enacted) and 2006, overall candidate expenditures in
creased 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.
Cite as: 564 U. S. ____ (2011) 11
KAGAN, J., dissenting
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 Amend
ment] 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 . . . expres
sion[,] . . . [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 Visitors of Univ. of Va., 515 U.S. 819, 834 (1995);
Finley, 524 U.S., at 587–588. That is because subsidies,
by definition and contra the majority, do not restrict any
speech.
No one can claim that Arizona’s law discriminates
against particular ideas, and so violates the First Amend
ment’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
12 ARIZONA FREE ENTERPRISE CLUB’S FREEDOM
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KAGAN, J., dissenting
easily survive First Amendment scrutiny.3
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 com
plains that the government declined to finance his speech,
while bankrolling someone else’s; we must then decide
whether the government differentiated between these
speakers on a prohibited basis—because it preferred one
speaker’s ideas to another’s. See, e.g., id., at 577–578;
Regan, 461 U.S., at 543–545. But the candidates bringing
this challenge do not make that claim—because they were
never denied a subsidy. Arizona, remember, offers to
support any person running for state office. Petitioners
here refused that assistance. So they are making a novel
argument: that Arizona violated their First Amendment
rights by disbursing funds to other speakers even
though they could have received (but chose to spurn) the
same financial assistance. Some people might call that
chutzpah.
Indeed, what petitioners demand is essentially a right to
——————
3 The majority claims that none of our subsidy cases involved the
funding of “respons[ive]” expression. See ante, at 17. 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 17.
That is exactly what we approved in Buckley v. Valeo, 424 U.S. 1 (1976)
(per curiam). See supra, at 5. The majority notes that the public
financing scheme in Buckley lacked the trigger mechanism used in the
Arizona law. See ante, at 17, 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 17–19, 21–22.
Cite as: 564 U. S. ____ (2011) 13
KAGAN, J., dissenting
quash others’ speech through the prohibition of a (univer
sally 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 Amend
ment 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 de
bate 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 ___ (slip op., at 45). And this is no
place more true than in elections, where voters’ ability to
choose the best representatives depends on debate—on
charge and countercharge, call and response. So to invali
date a statute that restricts no one’s speech and dis
criminates against no idea—that only provides more
voices, wider discussion, and greater competition in elec
tions—is to undermine, rather than to enforce, the First
Amendment.4
——————
4 The majority argues that more speech will quickly become “less
speech,” as candidates switch to public funding. Ante, at 15, n. 7. But
that claim misunderstands how a voluntary public financing system
works. Candidates with significant financial resources will likely
decline public funds, so that they can spend in excess of the system’s
14 ARIZONA FREE ENTERPRISE CLUB’S FREEDOM
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KAGAN, J., dissenting
We said all this in Buckley, when we upheld the presi
dential 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 petition
ers, 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 re
jected 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 pur
pose 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 U.S., at 270). And we
continued: “[L]aws providing financial assistance to the
exercise of free speech”—including the campaign finance
statute at issue—“enhance these First Amendment val
ues.” 424 U.S., at 93, n. 127. We should be saying the
same today.
B
The majority has one, and only one, way of separating
this case from Buckley and our other, many precedents
——————
expenditure caps. Other candidates accept public financing because
they believe it will enhance 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.
Cite as: 564 U. S. ____ (2011) 15
KAGAN, J., dissenting
involving speech subsidies. According to the Court, the
special problem here lies in Arizona’s matching funds
mechanism, which the majority claims imposes a “sub
stantia[l] burde[n]” on a privately funded candidate’s
speech. Ante, at 2. Sometimes, the majority suggests that
this “burden” lies in the way the mechanism “ ‘diminish[es]
the effectiveness’ ” of the privately funded candidate’s
expression by enabling his opponent to respond. Ante, at
10 (quoting Davis v. Federal Election Comm’n, 554 U.S.
724, 736 (2008)); see ante, at 21–22. At other times, the
majority indicates that the “burden” resides in the deter
rent effect of the mechanism: The privately funded candi
date “might not spend money” because doing so will trig
ger matching funds. Ante, at 20. Either way, the majority
is wrong to see a substantial burden on expression.5
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
remotely resembling a coercive penalty on privately
funded candidates. The State does not jail them, fine
them, or subject them to any kind of lesser disability. (So
the majority’s analogies to a fine on speech, ante, at 19, 28,
are inapposite.) The only “burden” in this case comes from
the grant of a subsidy to another person, and the opportu
nity that subsidy allows for responsive speech. But that
——————
5 The majority’s error on this score extends both to candidates and to
independent expenditure groups. Contrary to the majority’s sugges
tion, see ante, at 14, 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 22–26. But perhaps the best
response to the majority’s view that the Act inhibits independent
expenditure groups lies in an empirical fact already noted: Expendi
tures by these groups have risen by 253% since Arizona’s law was
enacted. See n. 2, supra.
16 ARIZONA FREE ENTERPRISE CLUB’S FREEDOM
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KAGAN, J., dissenting
means the majority cannot get out from under our subsidy
precedents. Once again: We have never, not once, under
stood a viewpoint-neutral subsidy given to one speaker to
constitute a First Amendment burden on another. (And
that is so even when the subsidy is not open to all, as it is
here.) Yet in this case, the majority says that the prospect
of more speech—responsive speech, competitive speech,
the kind of speech that drives public debate—counts as a
constitutional injury. That concept, for all the reasons
previously given, is “wholly foreign to the First Amend
ment.” Buckley, 424 U.S., at 49.
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 “ap
propriate 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 21–22; 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 pri
vately funded candidate from spending money, and con
veying ideas by that means.6 My guess is that this does
——————
6I 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 4500-page summary judgment record. See ante, at
18–19. (The majority also cites sections of petitioners’ briefs, which cite
the same 6 pages in the record. See ante, at 19.) That is consistent
with the assessment of the District Court Judge who presided over the
proceedings in this case: He stated that petitioners had presented only
“vague” and “scattered” evidence of the law’s deterrent impact. App. to
Cite as: 564 U. S. ____ (2011) 17
KAGAN, J., dissenting
not happen often: Most political candidates, I suspect,
have enough faith in the power of their ideas to prefer
speech on both sides of an issue to speech on neither. But
I will take on faith that the matching funds provision may
lead one or another privately funded candidate to stop
spending at one or another moment in an election. Still,
does that effect count as a severe burden on expression?
By the measure of our prior decisions—which have upheld
campaign reforms with an equal or greater impact on
speech—the answer is no.
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 parties 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 private resources might
well choose not to enter a race at all, because he knows he
will face an adequately funded opponent. And even if he
——————
Pet. for Cert. in No. 10–239, p. 54. The appellate court discerned even
less evidence of any deterrent effect. Id., at 30 (“No Plaintiff . . . has
pointed to any specific instance in which she or he has declined a
contribution or failed to make an expenditure for fear of triggering
matching funds”); see also id., at 28, 31, 34. I understand the majority
to essentially concede this point (“ ‘it is never easy to prove a negative,’ ”
ante, at 20) and to say it does not matter (“we do not need empirical
evidence,” ibid.). So I will not belabor the issue by detailing the sub
stantial testimony (much more than 6 pages worth) that the matching
funds provision has not put a dent in privately funded candidates’
spending.
18 ARIZONA FREE ENTERPRISE CLUB’S FREEDOM
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KAGAN, J., dissenting
decides to run, he likely will choose to speak in different
ways—for example, by eschewing dubious, easy-to-answer
charges—because his opponent has the ability to respond.
Indeed, privately funded candidates may well find the
lump-sum system more burdensome than Arizona’s (as
suming the lump is big enough). Pretend you are financ
ing your campaign through private donations. Would you
prefer that your opponent receive a guaranteed, upfront
payment of $150,000, or that he receive only $50,000, with
the possibility—a possibility that you mostly get to con
trol—of collecting another $100,000 somewhere down the
road? Me too. That’s the first reason the burden on
speech cannot command a different result in this case
than in Buckley.
Number two: Our decisions about disclosure and dis
claimer requirements show the Court is wrong. Starting
in Buckley and continuing through last Term, the Court
has repeatedly declined to view these requirements as a sub
stantial First Amendment burden, even though they dis
courage some campaign speech. “It is undoubtedly true,”
we stated in Buckley, that public disclosure obliga-
tions “will deter some individuals” from engaging in ex
pressive activity. 424 U.S., at 68; see Davis, 554 U.S., at
744. Yet we had no difficulty upholding these require
ments there. And much more recently, in Citizens United
and Doe v. Reed, 561 U. S. ___ (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 ___ (slip op., at 7) (quoting
Citizens United, 558 U. S., at ___ (slip op., at 51)). So too
here. Like a disclosure rule, the matching funds provision
may occasionally deter, but “impose[s] no ceiling” on elec
toral expression. Id., at ___ (slip op., at 51).
The majority breezily dismisses this comparison, label
ing the analogy “not even close” because disclosure re
quirements result in no payment of money to a speaker’s
Cite as: 564 U. S. ____ (2011) 19
KAGAN, J., dissenting
opponent. Ante, at 18. That is indeed the factual distinc
tion: A matching fund provision, we can all agree, is not a
disclosure rule. But the majority does not tell us why this
difference matters. Nor could it. The majority strikes
down the matching funds provision because of its ostensi
ble effect—most notably, that it may deter a person from
spending money in an election. But this Court has ac
knowledged time and again that disclosure obligations
have the selfsame effect. If that consequence does not
trigger the most stringent judicial review in the one case,
it should not do so in the other.
Number three: Any burden that the Arizona law im
poses does not exceed the burden associated with contri
bution limits, which we have also repeatedly upheld. Con
tribution limits, we have stated, “impose direct quantity
restrictions on political communication and association,”
Buckley, 424 U.S., at 18 (emphasis added), thus “ ‘signifi
cant[ly] 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 “ ‘diminish[ing] the effective
ness’ ” of expressive activity, ante, at 10 (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 Ari
zona’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.
20 ARIZONA FREE ENTERPRISE CLUB’S FREEDOM
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KAGAN, J., dissenting
Federal Election Comm’n, 554 U.S. 724—and it pegs
everything on that decision. See ante, at 9–12. But
Davis relies on principles that fit securely within our
First Amendment law and tradition—most unlike today’s
opinion.
As the majority recounts, Davis addressed the constitu
tionality of federal legislation known as the Millionaire’s
Amendment. Under that provision (which applied in elec
tions not involving public financing), a candidate’s expen
diture 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 con
tribution 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 cam
paign expenditure triggered . . . something. Now here are
the differences: In Davis, the candidate’s expenditure
triggered a discriminatory speech restriction, which Con
gress could not otherwise have imposed consistent with
the First Amendment; by contrast, in this case, the candi
date’s expenditure triggers a non-discriminatory speech
subsidy, which all parties agree Arizona could have pro
vided 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 10–11. The Millionaire’s Amend
ment fell on the disfavored side of both divides: To reiter
ate, it imposed a discriminatory speech restriction. The
Cite as: 564 U. S. ____ (2011) 21
KAGAN, J., dissenting
Arizona Clean Elections Act lands on the opposite side of
both: It grants a non-discriminatory speech subsidy.7 So
to say that Davis “largely controls” this case, ante, at 10, is
to decline to take our First Amendment doctrine seriously.
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 sen
tence 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 candi
dates”). And our focus on the law’s discriminatory restric
tions 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 “the activation of a scheme of discriminatory contribu
tion 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 constitu
tional problem with the Millionaire’s Amendment lay in
its use of discriminatory speech restrictions.
——————
7 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 consis
tent 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.
22 ARIZONA FREE ENTERPRISE CLUB’S FREEDOM
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KAGAN, J., dissenting
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 that the trigger mechanism itself violated the First
Amendment, then the case would support today’s holding.
But Davis said nothing of the kind. It made clear that
the trigger mechanism could not rescue the discriminatory
contribution limits from constitutional invalidity; that the
limits went into effect only after a candidate spent sub
stantial personal resources rendered them no more per
missible under the First Amendment. See id., at 739. But
Davis did not call into question the trigger mechanism
itself. Indeed, Davis explained that Congress could have
used that mechanism to activate a non-discriminatory
(i.e., across-the-board) increase in contribution limits; in
that case, the Court stated, “Davis’ argument would
plainly fail.” Id., at 737.8 The constitutional infirmity in
Davis was not the trigger mechanism, but rather what lay
on the other side of it—a discriminatory speech restriction.
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 14. That was
because, the majority explains, Davis presented only that
issue. See ante, at 14. And yet, the majority insists (with
out 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 case than in Davis.”
——————
8 Notably, the Court found this conclusion obvious even though an
across-the-board increase in contribution limits works to the compara
tive advantage of the non-self-financing candidate—that is, the candi
date 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 15.
Cite as: 564 U. S. ____ (2011) 23
KAGAN, J., dissenting
Ante, at 14. But for reasons already stated, that is not
so. The burden on speech in Davis—the penalty that cam
paign spending triggered—was the discriminatory contri
bution restriction, which Congress could not otherwise
have imposed. By contrast, the thing triggered here is a
non-discriminatory subsidy, of a kind this Court has ap
proved for almost four decades. Maybe the majority is
saying today that it had something like this case in mind
all the time. But nothing in the logic of Davis controls this
decision.9
III
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 in
terest. 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 protect
ing the strength and integrity of its democracy.
A
Our campaign finance precedents leave no doubt: Pre
venting corruption or the appearance of corruption is a
——————
9 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 commen
tary. 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.
24 ARIZONA FREE ENTERPRISE CLUB’S FREEDOM
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KAGAN, J., dissenting
compelling government interest. See, e.g., Davis, 554
U.S., at 741; Federal Election Comm’n v. National Con
servative Political Action Comm., 470 U.S. 480, 496–497
(1985) (NCPAC). And so too, these precedents are clear:
Public financing of elections serves this interest. See
supra, at 4–5. As Buckley recognized, and as I earlier
described, public financing “reduce[s] the deleterious
influence of large contributions on our political process.”
424 U.S., at 91; see id., at 96. When private contributions
fuel the political system, candidates may make corrupt
bargains to gain the money needed to win election. See
NCPAC, 470 U.S., at 497. And voters, seeing the depend
ence of candidates on large contributors (or on bundlers of
smaller contributions), may lose faith that their represen
tatives will serve the public’s interest. See Shrink Mis
souri, 528 U.S., at 390 (the “assumption that large donors
call the tune [may] jeopardize the willingness of voters to
take part in democratic governance”). Public financing
addresses these dangers by minimizing the importance of
private donors in elections. Even the majority appears to
agree with this premise. See ante, at 27 (“We have said
that . . . ‘public financing as a means of eliminating the
improper influence of large private contributions furthers
a significant governmental interest’ ”).
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 elec
tions 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 fundrais
ing 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
Cite as: 564 U. S. ____ (2011) 25
KAGAN, J., dissenting
they [had] governmental jurisdiction;” favored “a small
number of wealthy special interests” over “the vast major
ity of Arizona citizens;” and “[c]os[t] average taxpayers
millions of dollars in the form of subsidies and special
privileges for campaign contributors.” §16–940(B).10 The
State, appearing before us, has reiterated its important
anti-corruption interest. The Clean Elections Act, the
State avers, “deters quid pro quo corruption and the ap
pearance of corruption by providing Arizona candidates
with an option to run for office without depending on
outside contributions.” Brief for State Respondents 19.
And so Arizona, like many state and local governments,
has implemented public financing on the theory (which
this Court has previously approved, see supra, at 5), that
the way to reduce political corruption is to diminish the
role of private donors in campaigns.11
And that interest justifies the matching funds provision
——————
10 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 “communicat[e] to voters.” §§16–940(A), (B).
11 The majority briefly suggests that the State’s “austere contribution
limits” lessen the need for public financing, see ante, at 26, 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 pack
ages. See Brief for United States as Amicus Curiae 31. For much this
reason, Buckley upheld both limits on contributions to federal candi
dates and public financing of presidential campaigns. See 424 U.S., at
23–38, 90–108. Arizona, like Congress, was “surely entitled to con
clude” 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 substi
tutes 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).
26 ARIZONA FREE ENTERPRISE CLUB’S FREEDOM
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KAGAN, J., dissenting
at issue because it is a critical facet of Arizona’s public
financing program. The provision is no more than a dis
bursement mechanism; but it is also the thing that makes
the whole Clean Elections Act work. As described earlier,
see supra, at 5–6, public financing has an Achilles heel—
the difficulty of setting the subsidy at the right amount.
Too small, and the grant will not attract candidates to the
program; and with no participating candidates, the pro
gram can hardly decrease corruption. Too large, and the
system becomes unsustainable, or at the least an unneces
sary drain on public resources. But finding the sweet-spot
is near impossible because of variation, across districts
and over time, in the political system. Enter the matching
funds provision, which takes an ordinary lump-sum
amount, divides it into thirds, and disburses the last two
of these (to the extent necessary) via a self-calibrating
mechanism. That provision is just a fine-tuning of the
lump-sum program approved in Buckley—a fine-tuning, it
bears repeating, that prevents no one from speaking and
discriminates against no message. But that fine-tuning
can make the difference between a wholly ineffectual
program and one that removes corruption from the politi
cal system.12 If public financing furthers a compelling
interest—and according to this Court, it does—then so too
does the disbursement formula that Arizona uses to make
public financing effective. The one conclusion follows
directly from the other.
——————
12 For this reason, the majority is quite wrong to say that the State’s
interest in combating corruption does not support the matching fund
provision’s application to a candidate’s expenditure of his own money or
to an independent expenditure. Ante, at 25–26. The point is not that
these expenditures themselves corrupt the political process. Rather,
Arizona includes these, as well as all other, expenditures in the pro
gram to ensure that participating candidates receive the funds neces
sary 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.
Cite as: 564 U. S. ____ (2011) 27
KAGAN, J., dissenting
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 pre
venting corruption does not “sufficiently justif[y]” the
mechanism it has chosen to disburse public moneys. Ante,
at 28; see ante, at 27. Only one thing is missing from the
Court’s response: any reasoning to support this conclusion.
Nowhere does the majority dispute the State’s view that
the success of its public financing system depends on the
matching funds mechanism; and nowhere does the major
ity contest that, if this mechanism indeed spells the differ
ence between success and failure, the State’s interest in
preventing corruption justifies its use. And so the major
ity dismisses, but does not actually answer the State’s
contention—even though that contention is the linchpin of
the entire case. Assuming (against reason and precedent)
that the matching funds provision substantially burdens
speech, the question becomes whether the State has of
fered a sufficient justification for imposing that burden.
Arizona has made a forceful argument on this score,
based on the need to establish an effective public fi
nancing system. The majority does not even engage that
reasoning.
B
The majority instead devotes most of its energy to trying
to show that “level[ing] the playing field,” not fighting
corruption, was the State’s real goal. Ante, at 22–23 (in
ternal quotation marks omitted); see ante, at 22–24. 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
28 ARIZONA FREE ENTERPRISE CLUB’S FREEDOM
CLUB PAC v. BENNETT
KAGAN, J., dissenting
the State has asserted in this Court; it is the interest
predominantly expressed in the “findings and declara
tions” section of the statute; and it is the interest univer
sally understood (stretching back to Teddy Roosevelt’s
time) to support public financing of elections. See supra,
at 4, 23–24. 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.
The majority first observes that the matching funds
provision is titled “ ‘Equal funding of candidates’ ” and that
it refers to matching grants as “ ‘equalizing funds.’ ” Ante,
at 23 (quoting §16–952). Well, yes. The statute provides
for matching funds (above and below certain thresholds); a
synonym for “match” is “equal”; and so the statute uses
that term. In sum, the statute describes what the statute
does. But the relevant question here (according to the
majority’s own analysis) is why the statute does that
thing—otherwise said, what interest the statute serves.
The State explains that its goal is to prevent corruption,
and nothing in the Act’s descriptive terms suggests any
other objective.
Next, the majority notes that the Act allows participat
ing 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 23 (citing
§16–954(F)). That provision, the majority argues, shows
that when push comes to shove, the State cares more
about “leveling” than about fighting corruption. Ante, at
23. 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 be
come unavailable. That guarantee helps persuade candi
dates to enter the program by removing the risk of a state
default. And so the provision directly advances the Act’s
Cite as: 564 U. S. ____ (2011) 29
KAGAN, J., dissenting
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 play
ing field.’ ” Ante, at 24, 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 U.S. 415, 434–435 (2009) (ROBERTS,
C. J., dissenting). Yet here the majority makes a much
stranger claim: that a statement appearing on a govern
ment website in 2011 (written by who-knows-whom?)
reveals what hundreds of thousands of Arizona’s voters
sought to do in 1998 when they enacted the Clean Elec
tions Act by referendum. Just to state that proposition is
to know it is wrong.
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 evi
dence showing that Arizona had sought to “equalize elec
toral opportunities.” Ante, at 24. 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 inter
est could not support Arizona’s law (assuming the law
burdened speech), but neither would the interest invali
date the legislation.
To see the point, consider how the matter might arise.
30 ARIZONA FREE ENTERPRISE CLUB’S FREEDOM
CLUB PAC v. BENNETT
KAGAN, J., dissenting
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.13
So would this statute (assuming it met all other constitu
tional standards) violate the First Amendment?
The answer must be no. This Court, after all, has never
said that a law restricting speech (or any other constitu
tional 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
——————
13 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 10–11; so long as the government
remains neutral among viewpoints, it may choose to assist the speech
of persons who might not otherwise be heard. But here I am assuming
for the sake of argument that the Clean Elections Act imposes the kind
of restraint on expression requiring that the State show a compelling
interest.
Cite as: 564 U. S. ____ (2011) 31
KAGAN, J., dissenting
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 restric
tion—that is the end of the story.
That proposition disposes of this case, even if Arizona
had an adjunct interest here in equalizing electoral oppor
tunities. 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 im
portant 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 survives constitutional scru
tiny no matter what that search would uncover.
IV
This case arose because Arizonans wanted their gov
ernment 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 de
signed to sever political candidates’ dependence on large
contributors. They wished, as many of their fellow Ameri
cans 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 sustain
able cost to the State’s taxpayers. The system discrimi
nated 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
“further[ed] . . . First Amendment values.” Buckley, 424
U.S., at 93 (citing New York Times, 376 U.S., at 270).
32 ARIZONA FREE ENTERPRISE CLUB’S FREEDOM
CLUB PAC v. BENNETT
KAGAN, J., dissenting
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 Arizo
nans’ efforts to ensure that in their State, “ ‘[t]he people
. . . possess the absolute sovereignty.’ ” Id., at 274 (quoting
James Madison in 4 Elliot’s Debates on the Federal Con
stitution 569–570 (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 compe
tition of ideas and its ultimate object—a government
responsive to the will of the people. Arizonans deserve
better. Like citizens across this country, Arizonans de
serve a government that represents and serves them all.
And no less, Arizonans deserve the chance to reform their
electoral system so as to attain that most American of
goals.
Truly, democracy is not a game. See ante, at 25. I
respectfully dissent.