My Money is Speech, Which is More Important Than Your State Rights

Today, the Supreme Court of the United States made their decision on AZ Free Enterprise Club v. Bennett, also known as the AZ Clean Elections case.  The basis for the case is that the AZ Clean Elections system restricts “free speech”.  The Supreme Court threw out the Clean Elections law.  This will continue a string of decisions that has expended the scope of “free speech” to include money on political campaigns as "speech".   Beyond the scope of how this will effect the political systems and contribution limits (or removal of limits), there is a few simple legal points that the court missed. There are three main points of law that surround this case: Is the First Amendment applicable to this case? Is this a case of states’ rights and the Tenth Amendment? Finally, does the Supreme Court view the First Amendment as the overarching, “Precious” Amendment over all other elements of the Constitution?

The Supreme Court has increasing been using the “free speech” clause of the First Amendment to decided case, with the likely victor being the interest of a corporations against the state.  In the AZ Clean Elections case, the petitioner, AZ Free Enterprise Club claimed that their “free speech” was restricted because when they gave money to a privately funded candidate, the publicly funded candidate would receive equal funding.  Thus, their “speech” was limited because it “leveled the playing field” for all candidates.  The Court used the precedent from cases that related to Federal election process enacted by Congress, allowing for the “free speech” clause to serve as legal justification.  However, the AZ Clean Elections Act was voted to enactment by the people of Arizona, not the legislature branch of the state.  Since the voters enacted the Clean Elections Act, not the Congress of the United States, the First Amendment is not applicable to this case, nor should the Federal election related cases.  That moves to my next point, this case is more about Tenth Amendment then First Amendment.

Why is this a Tenth Amendment and States’ Rights case? Simple, no place in the United States Constitution or Amendments is a provision on the election of state or local government officials.  In fact, the Tenth Amendment seems to be the appropriate constitutional application of this case.  The Tenth Amendment states the following: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.  The election process of the each state is and should be determined by the people of that state.  In this case, the people of Arizona approved, by voter initiative, to adopt this funding structure for their elections.  The candidates running for state office have understood and used this process to get elected since its adoption in 1998, including one of the petitioners in this case, John McComish (for disclosure, is a friend and I have contributed to his campaigns), was a publicly funded candidate in 2002 and 2004.  The fact is that until 2008, when it became a political issue, the majority of Arizona state government elected officials chose the option of being publicly funded over privately funded.  The Supreme Court ignored the will of the people of Arizona to continue the establishment of the “Precious” as the amendment over all other elements of the Constitution.

The “Precious” (excuse my reference to Lord of the Rings), is becoming the best way to successfully win any case or argument brought in front of the Roberts’ Court.  Beside the AZ Clean Elections case, this Court has ruled consistently against the states (see Sorrell v. IMS Health, INC) when the victorious party used restriction of “free speech” as the central argument of law.  The Court has decided that one party’s “speech” overrides the collective right of the people.  The act of judicial activism that the Roberts’ Court is currently engaging separates the foundation of our republic.  By establishing that a single, powerful clause in one amendment overrides all other elements of the constitution, the Court is acting a prejudicial party against the objective nature that, we the people, should expect and demand from our judicial branch.