# SCOTUS rules against Arizona campaign finance law **URL:** \ **Category:** Great Debates\ **Created:** [June 28, 2011, 5:33pm UTC](https://boards.straightdope.com/t/scotus-rules-against-arizona-campaign-finance-law/587164 "2011-06-28T17:33:21Z")\ **Posts on this page:** 20\ **Page:** 4
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 30, 2011, 1:02am UTC](https://boards.straightdope.com/t/scotus-rules-against-arizona-campaign-finance-law/587164/61 "2011-06-30T01:02:58Z")
> [@Little\_Nemo](#): > > Why is it impossible for a conservative justice to be a judical activist? Oh, it’s not. The classic examples were the _Lochner_-era cases, where judges found things like a “right to contract” in the constitution that helped business interests at the expense of labor codes. There have certainly been conservative judicial activists in the modern era as well, but as a general rule, most conservative judges lean towards textualism or originalism, interpretive philosophies that do not mix well with judicial activism. ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [June 30, 2011, 1:17am UTC](https://boards.straightdope.com/t/scotus-rules-against-arizona-campaign-finance-law/587164/62 "2011-06-30T01:17:25Z")
> [@ElvisL1ves](#): > > More specifically, in this case, **Bricker** ’s current “argument” is against democracy _itself_, and it is certainly “attacking the argument” to point that out. Yes, saying the argument cuts against democracy is allowed. Saying it’s part of an ideology called “ **Bricker** ism” is excessively personal, and saying **Bricker** is unable to understand democracy is insulting. So don’t do it again. If you have any other questions, please take them to ATMB. ---
**Author:** ![MEBuckner](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mebuckner/32/2896_2.png) [@MEBuckner](https://boards.straightdope.com/u/MEBuckner)\ **Post date:** [June 30, 2011, 1:20am UTC](https://boards.straightdope.com/t/scotus-rules-against-arizona-campaign-finance-law/587164/63 "2011-06-30T01:20:50Z")
> [@Bricker](#): > > How foolish would it be for me to accept the results of textualism only when it cuts against my preferred public policy position, and meekly accept them when I disfavor the result? > > In Monopoly, the official rules state clearly that “Free Parking” is simply a resting place – there is no penalty, and no reward, for landing on it. But many people have “house rules” in which fines paid to the bank and even house payments go instead into the Free Parking pot, and landing on that square becomes a lottery win. > > I hate those rules. I always argued strongly against playing with them. > > But if the issue was decided against me, of course I took the money if I landed on Free Parking. To do otherwise would have been a tremendous disadvantage in the game. > > There’s a big difference between saying, as I do, that the country would be better off if every judge believed in and applied the principles of textualism and judicial minimalism, and between saying that I should accept those results when I don’t like them but smile serenely when they are not used. > [@Bricker](#): > > Oh, it’s not. The classic examples were the _Lochner_-era cases, where judges found things like a “right to contract” in the constitution that helped business interests at the expense of labor codes. There have certainly been conservative judicial activists in the modern era as well, but as a general rule, most conservative judges lean towards textualism or originalism, interpretive philosophies that do not mix well with judicial activism. I’m confused now–are you saying this decision was a textualist (or an originalist) decision, or not? ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [June 30, 2011, 1:33am UTC](https://boards.straightdope.com/t/scotus-rules-against-arizona-campaign-finance-law/587164/64 "2011-06-30T01:33:33Z")
I’ve already expressed my opinions on originalism. It’s one thing to write a legal opinion based on what an author wrote - that’s textualism. But originalism is writing a legal opinion based on what the author was thinking when he wrote the text - and that’s just making things up. Which I have no problem with. That’s the job of a Supreme Court Justice - looking at a line of text in the Constitution and decided what it means. I accept it when Justice Smith says _“this what I think the ‘blessings of liberty’ means”_. But I think it’s hypocritical for him to claim _“this is what James Madison meant when he wrote the ‘blessings of liberty’”_ and then claim that anyone who disagrees is denying Madison’s intent. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 30, 2011, 12:49pm UTC](https://boards.straightdope.com/t/scotus-rules-against-arizona-campaign-finance-law/587164/65 "2011-06-30T12:49:03Z")
> [@MEBuckner](#): > > I’m confused now–are you saying this decision was a textualist (or an originalist) decision, or not? It depends on what you understand textualism to be. It is a textualist decision that rests on existing caselaw. It is NOT a textualist decision when considering only the First Amendment. ---
**Author:** ![Mr.Moto](https://avatars.discourse-cdn.com/v4/letter/m/9de0a6/32.png) [@Mr.Moto](https://boards.straightdope.com/u/Mr.Moto)\ **Post date:** [June 30, 2011, 1:27pm UTC](https://boards.straightdope.com/t/scotus-rules-against-arizona-campaign-finance-law/587164/66 "2011-06-30T13:27:30Z")
Here’s the thing - various posters above have noted that the law would be permissible if it was done for the purpose of ensuring greater transparency and combating corruption in campaign contributions. The Supreme Court has only permitted restricting campaign contributions on these grounds - precedent for this goes back pretty far. Indeed, this is why self-financing is permitted. A person’s self-financed campaign is less open to outside influence and is reasonably transparent - we know the candidate got the money from himself. “Leveling the playing field” is not a compelling government interest - since it isn’t campaign expenditures to benefit certain candidates at the expense of others (which is what matching funds do) is unconstitutional. The analogy of newspapers isn’t particularly helpful since there is nothing that says that government may not print a newspaper. However in the matter of campaign activity actions of the government that may help one candidate at the expense of another are to be closely examined, as the constitutional implications are dire. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 30, 2011, 1:31pm UTC](https://boards.straightdope.com/t/scotus-rules-against-arizona-campaign-finance-law/587164/67 "2011-06-30T13:31:38Z")
> [@villa](#): > > I think **Bricker** was more complaining about your language - when you said “ignore it.” Overruling it is one thing, and when it is done it should be explicit. Just ignoring cases does happen, but it is sloppy law and leads to conflicts in the future. > > Looking back at what you said, I think it is clear by ignore you meant overrule. And that’s fair, if you mean by “it” the precedent value of the prior decision. There’s nothing wrong with overruling cases. Pretending they aren’t there isn’t a good thing though. Nothing to add to this – exactly right. When a prior decision is contradicted in full or part, the court should explicitly say that it’s overruling a prior holding, as opposed to distinguishing it in some way. Failure to do this creates endless squabbles in the courts below. ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [June 30, 2011, 1:59pm UTC](https://boards.straightdope.com/t/scotus-rules-against-arizona-campaign-finance-law/587164/68 "2011-06-30T13:59:00Z")
> [@Bricker](#): > > It depends on what you understand textualism to be. > > It is a textualist decision that rests on existing caselaw. > > It is NOT a textualist decision when considering only the First Amendment. What does that even mean? You can’t say “it’s a textualist decision that rests on existing caselaw”. Textualists don’t like stare decisis or relying on caselaw. If they did, they wouldn’t be textualists. You know Scalia’s quote, saying that stare decisis’s function is to “make us say what is false under proper analysis must nevertheless be held to be true, all in the interest of stability”. He goes on to admit he does it, but he’s not happy with himself for doing it, and puts it down to being “fainthearted”. Then you’ve got Gary Lawson saying that in Constitutional cases, “the practice of following precedent is not merely nonobligatory or a bad idea; it is affirmatively inconsistent with the federal Constitution.”, and Paulsen’s “Stare decisis is unconstitutional, precisely to the extent that it yields deviations from the correct interpretation of the Constitution.” Well, that last statement is tautological and in itself uncontroversal, but for Paulsen, “the correct interpretation of the Constitution” is a textualist one. To say it’s a textualist decision considering existing case law, but not one considering the First Amendment, I don’t even know what that means. If you’re a textualist and existing case law violates a textualist reading of the First Amendment, so much for existing case law. It shouldn’t have any binding precedent whatsoever. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 30, 2011, 2:11pm UTC](https://boards.straightdope.com/t/scotus-rules-against-arizona-campaign-finance-law/587164/69 "2011-06-30T14:11:17Z")
> [@Captain\_Amazing](#): > > What does that even mean? You can’t say “it’s a textualist decision that rests on existing caselaw”. Textualists don’t like stare decisis or relying on caselaw. If they did, they wouldn’t be textualists. You know Scalia’s quote, saying that stare decisis’s function is to “make us say what is false under proper analysis must nevertheless be held to be true, all in the interest of stability”. He goes on to admit he does it, but he’s not happy with himself for doing it, and puts it down to being “fainthearted”. > > Then you’ve got Gary Lawson saying that in Constitutional cases, “the practice of following precedent is not merely nonobligatory or a bad idea; it is affirmatively inconsistent with the federal Constitution.”, and Paulsen’s “Stare decisis is unconstitutional, precisely to the extent that it yields deviations from the correct interpretation of the Constitution.” Well, that last statement is tautological and in itself uncontroversal, but for Paulsen, “the correct interpretation of the Constitution” is a textualist one. > > To say it’s a textualist decision considering existing case law, but not one considering the First Amendment, I don’t even know what that means. If you’re a textualist and existing case law violates a textualist reading of the First Amendment, so much for existing case law. It shouldn’t have any binding precedent whatsoever. Then I guess that makes me only an Associate Member of the Textualist’s Society. I don’t favir wholesale repudiation of existing caselaw, especially when the decisions therein are the bedrock of a huge expanse of law. My approach is to avoid continuing the erroneous construction but not to tear down the house. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 30, 2011, 2:50pm UTC](https://boards.straightdope.com/t/scotus-rules-against-arizona-campaign-finance-law/587164/70 "2011-06-30T14:50:58Z")
> [@Bricker](#): > > Then I guess that makes me only an Associate Member of the Textualist’s Society. I don’t favir wholesale repudiation of existing caselaw, especially when the decisions therein are the bedrock of a huge expanse of law. My approach is to avoid continuing the erroneous construction but not to tear down the house. Example: > [@Justice Thomas' dissent in Brown v. Entertainment Merchants](#): > > The Court’s decision today does not comport with the original public understanding of the First Amendment. The majority strikes down, as facially unconstitutional, a state law that prohibits the direct sale or rental of certain video games to minors because the law “abridg[es] the freedom of speech.” U. S. Const., Amdt. 1. But I do not think the First Amendment stretches that far. The practices and beliefs of the founding generation establish that “the freedom of speech,” as originally understood, does not include a right to speak to minors (or a right of minors to access speech) without going through the minors’ parents or guardians. I would hold that the law at issue is not facially unconstitutional under the First Amendment, and reverse and remand for further proceedings. So Thomas says, in effect, that the original understanding of the First Amendment was that no one could speak to minors without their parents’ approval. Adopting that view today would be a sweeping change. And even if we were to accept it, it’s logically inconsistent – the First Amendment in those days wasn’t applied against the states, so even Justice Thomas should concede that an originalist understanding of the First Amendment should permit California to make such regulations, even if he contends that the federal government cannot. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [June 30, 2011, 3:03pm UTC](https://boards.straightdope.com/t/scotus-rules-against-arizona-campaign-finance-law/587164/71 "2011-06-30T15:03:24Z")
I think Justice Thomas would have a pretty strong argument that it doesn’t matter if the founders would have applied it against the states because the 14th amendment makes that irrelevant. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 30, 2011, 3:34pm UTC](https://boards.straightdope.com/t/scotus-rules-against-arizona-campaign-finance-law/587164/72 "2011-06-30T15:34:33Z")
> [@Really\_Not\_All\_That\_Bright](#): > > I think Justice Thomas would have a pretty strong argument that it doesn’t matter if the founders would have applied it against the states because the 14th amendment makes that irrelevant. Would he believe that an original understanding of the 14th Amendment included incorporation? ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [June 30, 2011, 3:37pm UTC](https://boards.straightdope.com/t/scotus-rules-against-arizona-campaign-finance-law/587164/73 "2011-06-30T15:37:20Z")
> [@Bricker](#): > > Would he believe that an original understanding of the 14th Amendment included incorporation? [Sure](http://supreme.justia.com/us/92/542/case.html). Just not to the extent we understand it to today. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 30, 2011, 3:43pm UTC](https://boards.straightdope.com/t/scotus-rules-against-arizona-campaign-finance-law/587164/74 "2011-06-30T15:43:59Z")
> [@Really\_Not\_All\_That\_Bright](#): > > [Sure](http://supreme.justia.com/us/92/542/case.html). Just not to the extent we understand it to today. Um… _Cruikshank_ does not stand for any kind of incorporation at all. Am I missing a sarcasm smilie of some kind? > [@US v. Cruikshank](#): > > The First Amendment to the Constitution, prohibiting Congress from abridging the right to assemble and petition, was not intended to limit the action of the State governments in respect to their own citizens, but to operate upon the National Government alone. It left the authority of the States unimpaired, added nothing to the already existing powers of the United States, and guaranteed the continuance of the right only against Congressional interference. The people, for their protection in the enjoyment of it, must therefore look to the States, where the power for that purpose was originally placed. ---
**Author:** ![Evil\_Captor](https://avatars.discourse-cdn.com/v4/letter/e/f17d59/32.png) [@Evil\_Captor](https://boards.straightdope.com/u/Evil_Captor)\ **Post date:** [June 30, 2011, 4:02pm UTC](https://boards.straightdope.com/t/scotus-rules-against-arizona-campaign-finance-law/587164/75 "2011-06-30T16:02:26Z")
> [@Bricker](#): > > That’s not my perfect world. > > Why do you believe that’s a legitimate government interest? Well if you let money decide every campaign, Bricker, what is the point of democracy? Ad dollars are what buys presence in the marketplace of ideas, without them you have none. In your world every political decision will be decided by the better-financed campaign. Is that your idea of democracy? ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [June 30, 2011, 4:16pm UTC](https://boards.straightdope.com/t/scotus-rules-against-arizona-campaign-finance-law/587164/76 "2011-06-30T16:16:04Z")
> [@Evil\_Captor](#): > > Well if you let money decide every campaign, Bricker, what is the point of democracy? Ad dollars are what buys presence in the marketplace of ideas, without them you have none. In your world every political decision will be decided by the better-financed campaign. Is that your idea of democracy? You’ve made a logical leap of faith there… Going from Ad Dollars buying presence in the marketplace of ideas to the better financed campaign automatically winning isn’t an automatic. I don’t know if extra spending over a certain point does anything significant. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [June 30, 2011, 4:23pm UTC](https://boards.straightdope.com/t/scotus-rules-against-arizona-campaign-finance-law/587164/77 "2011-06-30T16:23:14Z")
> [@Mr.Moto](#): > > Here’s the thing - various posters above have noted that the law would be permissible if it was done for the purpose of ensuring greater transparency and combating corruption in campaign contributions. The Supreme Court has only permitted restricting campaign contributions on these grounds - precedent for this goes back pretty far. > > “Leveling the playing field” is not a compelling government interest - since it isn’t campaign expenditures to benefit certain candidates at the expense of others (which is what matching funds do) is unconstitutional. I disagree. I don’t see the intended purpose of the law as being a relevent issue here. The people who enacted the law thought it was a good idea and, right or wrong, it’s not the court’s place to second guess their motivations. So the issue is constitutionality. And I don’t see any right being violated. Nobody is having their right to speak limited, objectively or subjectively. Everyone is allowed to speak as much as he was before and some people are allowed to speak more. How is promoting speech a restriction of free speech? (And with there being no restriction of a right, there is no need for the government to show a compelling interest for its action.) Let’s assume Smith and Jones are running for office. Smith raises $1,000,000 for public speaking and Jones raises $200,000. If the government said that Smith was limited to only spending $200,000 because that’s all Jones had, then it would be a clear violation. Smith is being told he can’t speak up to the amount of money he has to spend. If the government decided it liked Jones and gave him $2,000,000 for his campaign, it would also be a violation. It would be wrong for the government to pick a candidate and give him an advantage (having $2,000,000 versus $1,000,000). But giving Jones $800,000 so that he has an amount equal to Smith does not give either candidate an advantage. Both now have the same amount - $1,000,000 - to spend on public speaking. Neither had his ability to speak diminished or restricted. For Smith to argue that his speech is diminished if Jones is also able to speak is nonsensical. The First Amendment guarantees the right of everyone to speak - if you want the originalist argument, I think the authors of the amendment wanted to see a plurality of political speeches competing against each other which was what the Arizona law achieved. So, in my opinion, the Court’s decision is anti-originalist. ---
**Author:** ![Evil\_Captor](https://avatars.discourse-cdn.com/v4/letter/e/f17d59/32.png) [@Evil\_Captor](https://boards.straightdope.com/u/Evil_Captor)\ **Post date:** [June 30, 2011, 4:33pm UTC](https://boards.straightdope.com/t/scotus-rules-against-arizona-campaign-finance-law/587164/78 "2011-06-30T16:33:12Z")
> [@villa](#): > > You’ve made a logical leap of faith there… > > Going from Ad Dollars buying presence in the marketplace of ideas to the better financed campaign automatically winning isn’t an automatic. I don’t know if extra spending over a certain point does anything significant. It’s not AUTOMATIC, some well-finance Pubbies lost in the last election, but it’s the sort of general principle that makes them the exception that proves the rule. If every election where the better financed interests DON’T win is an extraordinary outcome, you don’t really have much of a democracy. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [June 30, 2011, 4:37pm UTC](https://boards.straightdope.com/t/scotus-rules-against-arizona-campaign-finance-law/587164/79 "2011-06-30T16:37:13Z")
> [@Bricker](#): > > Um… _Cruikshank_ does not stand for any kind of incorporation at all. Am I missing a sarcasm smilie of some kind? No, I think I accidentally cut some of my post before hitting submit. The point is that the Cruikshank court totally ignored the plain meaning of the 14th Amendment. > [@](#): > > \*\*The Fourteenth Amendment prohibits a State from depriving any person of \*\*life, **liberty** , or property without due process of law, and from denying to any person within its jurisdiction the equal protection of the laws, but it adds nothing to the rights of one citizen as against another. [my bolding] A state’s infringement of freedom of speech _is_ a deprivation of liberty. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 30, 2011, 5:13pm UTC](https://boards.straightdope.com/t/scotus-rules-against-arizona-campaign-finance-law/587164/80 "2011-06-30T17:13:12Z")
> [@Evil\_Captor](#): > > … it’s the sort of general principle that makes them the exception that proves the rule. Far be it from me to use this sort of language in GD, but perhaps it’ll be ok if I am merely quoting someone else: > [@Cecil Adams](#): > > Don’t you get it? The whole point of this saying is that it doesn’t make sense. It’s what you say to confound your enemies when your argument has been shot out from under you by some pesky counterexample. From the point of view of advancing the debate it’s about one jump ahead of “yo mama,” but it beats standing there with your mouth open. > > To be sure, a few scholarly types have tried to make excuses for “The exception proves the rule,” as the quotation books usually phrase it. They say it comes from the medieval Latin aphorism Exceptio probat regulam. Probat means “prove” in the sense of “test,” as in “proving ground” or “the proof is in the pudding.” So “the exception proves the rule” means a close look at exceptions helps us determine a rule’s validity. > > If Latinists understand it that way, however, they’re pretty much alone. I’ve looked up citations of this saying dating back to 1664, and in every case it was used in the brain-dead manner we’re accustomed to today–that is, to suggest that non-conforming cases, by the mere fact of their existence, somehow confirm or support a generalization. Obviously they do nothing of the kind. We like to think proverbs become proverbial because they’re true; this one is an exception. It certainly doesn’t prove the rule. [Previous page](https://boards.straightdope.com/t/scotus-rules-against-arizona-campaign-finance-law/587164.md?page=3) [Next page](https://boards.straightdope.com/t/scotus-rules-against-arizona-campaign-finance-law/587164.md?page=5)