Speaking of the First Amendment (see above), the Supreme Court yesterday continued its welcome dismantling of the campaign finance assault on political speech. The shame is that this 5-4 decision was still too close for comfort.

In Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, the Court ruled that a law providing matching funds to publicly financed candidates when their privately financed opponents exceed a fund-raising limit was unconstitutional. “‘Leveling the playing field’ can sound like a good thing,” Chief Justice John Roberts wrote for the majority. “But in a democracy, campaigning for office is not a game. It is a critically important form of speech.”

The Arizona law tried to even-out contributions whenever a privately financed candidate exceeded the limit, either by contributions or from his own personal funds. The trigger provision also applied to spending by independent groups. This meant that in a campaign with three publicly financed candidates, an extra dollar spent to support a private opponent would be drowned by $3 in matching funds to his opponents.

The case is the logical successor to the Court’s 2008 decision in Davis v. FEC which rejected a funding scheme that tried to reduce the funding advantage for self-financed millionaire candidates. To the extent the two cases are different, Justice Roberts noted, Arizona’s law was “more constitutionally problematic, not less.” While the law in Davis raised the contribution limit on candidates facing self-financed opponents while requiring them to rustle up the money themselves, the Arizona law gives the matching funds directly and automatically out of the public purse.

The government claimed the law is intended to reduce corruption and encourage candidates to participate in the system. But if there was any increase in speech, it was only among the publicly financed candidates at the expense of privately financed ones. “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,'” Justice Roberts wrote.

The Court’s decision means that the days are numbered for similar schemes in other states, and it continues a string of cases walking the Justices back from their dangerous flirtation with letting politicians and government regulate political speech. That historic mistake began under the Buckley v. Valeo, the 1976 campaign finance case that allowed campaign contribution limits.

The Court has clung to Buckley’s corruption rationale for regulating speech, but as cases like Arizona and Davis show, once the door opens for limits on campaign financing, you quickly cross the threshold into limits on free speech. You also foster a new kind of political corruption inherent in letting the government rig the system on behalf of certain favored speakers and against others.

It’s disconcerting that the four liberal Justices continue to endorse such schemes, and political speech won’t be safe until the Court goes all the way and overturns Buckley.

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