Guest post by Ethan Blevins. Ethan graduated with a BA in political science from BYU-Idaho and a JD and LLM from Duke School of Law. He was a judicial clerk for Justice Don Willett of the Texas Supreme Court and is currently an attorney with the Pacific Legal Foundation. The views expressed in this post are his own.
Few subjects incite ire like campaign finance and the First Amendment. At a Trader Joe’s in Seattle not long ago, I was accosted by an activist seeking signatures for a petition to overturn Citizens United—perhaps the most notorious and misunderstood campaign-finance case of all time. Shoppers gladly signed his petition until he reached me.
“No thanks,” I said, “I’m all for Citizens United—I support the freedom of speech.” I may as well have told him that I enjoy tossing kittens into the pit of Mount Doom.
This volatile clash between free speech and campaign finance is hardly over, and the most recent battle is much closer to my Trader Joe’s. Pacific Legal Foundation has brought a First Amendment challenge to Seattle’s newfangled experiment in campaign finance reform. Since I’m the attorney litigating the case, I watch my back when I shop for groceries.
While Citizens United was about campaign finance and the right to speak, the Seattle case is about campaign finance and the right not to speak. In 2015, Seattle voters approved an initiative that created a “democracy voucher” program—the first of its kind. Everyone in Seattle, at the start of the municipal election year, gets four $25 vouchers in the mail. They can then donate the vouchers as campaign contributions to candidates running for local office. The money comes from a new property tax. The lawsuit, Elster v. City of Seattle, claims this violates property owners’ First Amendment right to refrain from sponsoring speech they disagree with. And rightly so.
The freedom of speech embodies not only the right to speak, but also its corollary: the right not to speak. This includes the right to refrain from funding the speech of another person. After all, money talks, and when your money goes to promote private speech you oppose, you become the victim of political ventriloquism. For property owners—especially those who don’t support any of the liberal candidates who get all the voucher money—the tax conscripts them as the cash cows for other people’s political opinions. Not cool. As Thomas Jefferson put it, “To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors, is sinful and tyrannical.”
As one might expect, the ideological bedfellows of my Trader Joe’s friend have responded with characteristic vim. Most supporters of the program claim that the Supreme Court long ago held that public funding of campaigns is okay in a 1976 case called Buckley v. Valeo. In Buckley, the Supreme Court upheld the Presidential Election Campaign Fund as constitutional. The fund allowed taxpayers to voluntarily contribute a few dollars of their tax liability toward a fund for presidential campaigns. Progressives act like this case inoculates all public funding schemes from constitutional challenge in perpetuity.
Buckley doesn’t mean what they think it means.
For one thing, since Buckley, several Supreme Court decisions have struck down public funding schemes on First Amendment grounds. They don’t all just get a free pass.
And the differences between Buckley and the democracy-voucher program only serve to highlight the injustice of the latter. First, Buckley involved an entirely voluntary public campaign funding scheme—taxpayers could choose. But property owners can’t opt out of the democracy-voucher tax—they must fund other people’s political speech. Thus, Buckley has no bearing on the core claim in Elster: compelled speech.
Second, unlike any other public funding program, the money is given to private individuals, who then decide—with other people’s money—whose campaign they want to support. Unlike neutral public campaign-funding schemes like the one in Buckley, the voucher program smacks of partisan inequality. As the money flows according to the preference of Seattle residents, the candidates who subscribe to dominant political views will scoop up the most largesse. Minority candidates, on the other hand, just won’t get this money.
Even worse, the property owners compelled to pay for these political donations will tend to be among the crowd with minority viewpoints. Take, for instance, a major political issue in Seattle: rental housing. Seattle is a city of tenants; 54 percent of Seattle households rent. Seattle politicians have catered to this major constituency through recent measures like a renters’ commission, caps on move-in fees, and the mayor’s recent proposal to prevent landlords from rejecting renters because of a criminal history. For the most part, these measures clash with landlords’ political and economic interests.
Yet landlords and other property owners must now foot the bill for political speech that favor these kinds of measures. Take Jon Grant’s campaign for city council. Grant, the former director of the Tenants Union of Washington State, is a committed tenant advocate. If elected, he’ll pursue policies such as tenant collective-bargaining rights and rent control that will further undermine landlords’ interests. Grant has received $150,000 in voucher money, doubtless from many renter constituents. But landlords and other property owners are the real, involuntary source of that money; they’re forced to fund a candidacy at odds with their interests.
A law that forces property owners to fund their political opponents can be constitutional only if the government can prove that the program serves a compelling government interest. The Supreme Court has consistently recognized only one compelling interest in the campaign finance setting—the prevention of quid pro quo corruption or its appearance.
The democracy voucher program does nothing to further a compelling government interest like combating corruption. The program is all about giving Seattleites “equal opportunity to participate in political campaigns and be heard by candidates” and to “strengthen democracy”—whatever that means. Neither purpose has anything to do with reducing quid pro quo corruption, the only government interest compelling enough to override First Amendments interests in unregulated campaign speech. In fact, the Supreme Court has repeatedly said that the government has no compelling interest in “leveling the playing field” or “equalizing the financial resources of candidates.” The program’s purpose is not compelling enough to override property owners’ First Amendment rights.
The initiative, to be fair, does mention preventing corruption briefly as one of its goals. It’s hard to see, though, how the democracy voucher could possibly further that goal. It might be rational to say that capping contributions could reduce corruption, but it makes less sense to say that forcing one group to pay for other people’s contributions somehow reduces corruption. The compulsion here seems less like battling corruption and more like embracing it.
I haven’t seen my friend at Trader Joe’s since the Elster case began. I suspect I know how he and many other well-intentioned activists feel about democracy vouchers. Fighting to have a voice in politics is a noble thing. Forcing someone to fund another person’s voice, though, is another thing entirely.