Shawn Casey, an Executive Note Editor on the 2012 board, was second runner-up in the Michael Greenberg Student Writing Competition with her paper “Illicit Regulation: A Framework for Challenging the Procedural Validity of the Gay Blood Ban.”
The Wall Street Journal featured a story yesterday about Gary Marbut, a Montana gun rights advocate and a key figure in an upcoming legal battle that may challenge Congress’s constitutional authority to regulate interstate commerce. His Firearms Freedom Act, adopted by eight states so far, attempts to block federal regulation of guns that are manufactured and used within the state.
Marbut argues that the broad interpretation of the Commerce Clause in Wickard v. Filburn is incorrect, and that the Constitution only gives Congress the authority to regulate when interstate commerce is directly affected:
He conceived of the Firearms Freedom Act as a way to get it reconsidered. He says he focused on the commerce clause, rather than Second Amendment theories popular with firearms enthusiasts, to prompt a broad ruling that would rein in federal power.
ALR members Kathleen Callahan and Lisa Lindemenn recently discussed this “Commerce Battering Ram” in their paper Arming States’ Rights: Federalism, Private Lawmakers, and the Battering Ram Strategy.
In the wake of a decade of corruption scandals, Arizona voters adopted
the Citizens Clean Elections Act in 1998. The Act adopted a voluntary system of public funding for statewide electoral campaigns, ensuring that participating candidates would not be under the thumb of their contributors. Participating candidates received a lump sum to run their campaigns, and also received “matching funds” if outspent by a non-participating opponent. This “matching funds” provision guaranteed that if candidates accepted public funding, they could compete on an even playing field with non-participating opponents.
On Monday, the Supreme Court struck down the Act’s matching funds provision
as an unconstitutional burden on free speech in Arizona Free Enterprise Club’s
Freedom Club PAC v. Bennett. Even though candidates could opt out of clean elections and spend as much as they liked without limit under the Act, the Court held that the matching funds provision burdens political expenditures, which are treated as constitutionally protected speech. Chief Justice Roberts delivered the 5 to 4 opinion, dividing along the same lines as the Court’s other recent decisions striking down campaign finance laws, Davis v. FEC and Citizens United v. FEC.
The decision highlights a significant tension in First Amendment law. Since the Act’s inception, political expenditures have increased in Arizona. Further, the burden imposed by “matching funds” is responsive speech. As Justice Kagan points out in a forceful dissent, the Act promotes speech through lively public discourse. However, the majority construes this as a “‘beggar thy neighbor’ approach to free speech,” impermissibly enhancing the voices of some at the expense of others.
In the context of elections, speech costs money, and so speakers with the capacity to raise and spend the most money dominate public discourse. Nonetheless, in the conflict between a fair public debate and the right of an individual to spend free from government interference, Arizona Free Enterprise strongly reaffirms that “the whole point of the First Amendment is to protect speakers against unjustified government restrictions on speech, even when those restrictions reflect the will of the majority. When it comes to protected speech, the speaker is sovereign.”
Professor Toni Massaro comments:
The recent turn in campaign finance law and the First Amendment highlight an enduring puzzle—one that should not be seen as something that can be solved by reference to one’s political commitments. Speech regulations can both advance and hamper free discourse, and likewise can open or narrow the range of ideas available. The paradox is one that business regulators grasp more easily. Justice Oliver Wendell Holmes famously quipped that all of life is an experiment, including First Amendment theories about when and where the marketplace of ideas is best advanced through nonregulation. Only time will tell whether the Court’s recent interventions into state and federal regulation of elections are the wisest course for democracy. There certainly is no other realm in which it matters more whether the Court has effected the best possible balance. No matter what one thinks of any particular outcome, one needs to see that fundamental amendment values line up on both sides of the debate—something often lost in the news accounts and politicized reactions to the cases.