The Great Debate

By Zephyr Teachout
The views expressed are her own.

In the mid-1990s, Arizona voters faced a pretty normal problem: their government was corrupt. Legislators were thinking about wealthy donors, not their constituents. Some of those donors were giving money legally (through campaign contributions), and some illegally (through bribes—think AZScam). But whether illegal or legal, the problem was the same: the elected officials had their minds on the sources of cash, instead of the problems of the state. It wasn’t good for democracy, since candidates without a lot of wealthy friends just weren’t going to run for office.

Arizona voters decided to push for public financing of elections. But they worried that candidates might not use the public financing because the amounts provided—for example, around $15,000 for legislature races—could come up short. Would it be enough if a self-financed candidate spent all his money, or the Chamber of Commerce unleashed a flood of attack ads? Candidates might get cold feet; instead of opting into public funding, they’d choose to raise money the old fashioned way, calling rich people who knew lots of other rich people, and telling them whatever they needed to hear.

So Arizona had two choices. It could pass a law to give the hypothetical nervous candidate a high default lump sum of public funding for her campaign, insurance against a big money dump. Or it could pass a law that gave the nervous candidate extra funding if the feared event happened: if the rich candidate or the Chamber of Commerce spent over a certain set amount she’d get an equal amount to be able to fight back. Arizona chose the second option—why use state money when it wasn’t needed? After a threshold, a publicly funded candidate was automatically given an additional $1 for every $1 spent by the self-financed candidate or attacking outside groups. The law didn’t prohibit anyone from spending money. And it was automatic, so it didn’t discriminate on the basis of any ideology.

This is the law the Supreme Court knocked down Monday in McComish v. Bennett as a violation of the First Amendment. In brief, Justice Roberts doesn’t want wealthy politicians to worry too much. Worrying, after all, is burdensome, and doctrine tells us we don’t want to burden speech. Free speech is threatened if a candidate hesitates before spending an additional $10,000 because his opponent would get access to a triggered $10,000. (An extended exchange in oral argument revolved around whether self-funded candidates might have to “think twice” about spending an extra $10,000. Justice Roberts countered that thinking twice sounded like a sufficient burden to him.) In the opinion, he reiterated that the choice was a burden, while asserting that “we do not need empirical evidence to determine that the law at issue is burdensome.” Justice Kagan, in a passionate dissent, called out the various contortions of logic in the majority opinion, as well as its fundamental unreality: “If an ordinary citizen, without the hindrance of a law degree, thought this result an upending of First Amendment values, he would be correct.”

But back to our voters in Arizona–what can be done after this opinion striking down their law? The tragedy is that the Supreme Court took away a very cleverly designed system, one which—when explained—was supported by over 75% of Arizonans. But the Court did not gut every option. In fact, one of the surprises of this opinion is that the Supreme Court left the bulk of Arizona’s public financing scheme alone. And funds can still be matched to things the candidate does—just not to things that other candidates do.

The prize for the biggest political lie of 2009 went to Sarah Palin, the darling of the American right, for injecting fictitious “death panels” into the health reform debate. This year, fact-benders are hard at work to control the debate on another controversial topic, immigration. Competition is intense.

It comes from opponents of immigration reforms that would  simultaneously offer better control of the 2,000-mile U.S-Mexico border, a new visa system, and a path to legal status for the estimated 11 million illegal immigrants, the majority Mexicans, who are already in the country. The official term for this is “comprehensive immigration reform.”

But influential politicians insist there must be no reform before the border is entry-proof to illegals, and they portray the frontier as a virtual war zone, on both sides of the line.

The United States owes Latin American immigrants a debt of gratitude. And Latin American immigrants owe a debt of gratitude to lawmakers in Arizona. How so?

Thanks largely to immigration from Latin America (both legal and illegal) and the higher birth rates of Latin immigrants, the population of the U.S. has kept growing, a demographic trend that sets it apart from the rest of the industrialized world, where numbers are shrinking. That threatens economic growth and in the case of Russia (U.N. projections see a decline from 143 million now to 112 million by 2050) undermines Moscow’s claim to Great Power status.

A country’s population starts shrinking when fertility falls below the “replacement rate” of 2.1. births over the lifetime of a woman. For white American women, that rate is around 1.8 now. For Latin American immigrants, the rate is 2.8. According to the U.S. census bureau, nearly one in six people living in the U.S. are Hispanics. By 2050, they are projected to make up almost a third of the population.