ARIZONA FREE ENTERPRISE CLUB FREEDOM CLUB PAC v. BENNETT

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 10–238 and 10–239

_________________

ARIZONA FREE ENTERPRISE CLUB’S FREEDOM
CLUB PAC, ET AL., PETITIONERS
10–238
v.
KEN BENNETT, IN HIS OFFICIAL CAPACITY AS
ARIZONA SECRETARY OF STATE, ET AL.

JOHN MCCOMISH, ET AL., PETITIONERS
10–239
v.
KEN BENNETT, IN HIS OFFICIAL CAPACITY AS
ARIZONA SECRETARY OF STATE, ET AL.

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT

[June 27, 2011]

CHIEF JUSTICE ROBERTS delivered the opinion of the Court.

Under Arizona law, candidates for state office who accept public financing can receive additional money from the State in direct response to the campaign activities of privately financed candidates and independent expenditure groups. Once a set spending limit is exceeded, a publicly financed candidate receives roughly one dollar for every dollar spent by an opposing privately financed candidate. The publicly financed candidate also receives roughly one dollar for every dollar spent by independent expenditure groups to support the privately financed candidate, or to oppose the publicly financed candidate. We hold that Arizona’s matching funds scheme substantially burdens protected political speech without serving a compelling state interest and therefore violates the First Amendment.

I

A

The Arizona Citizens Clean Elections Act, passed by initiative in 1998, created a voluntary public financing system to fund the primary and general election campaigns of candidates for state office. See Ariz. Rev. Stat. Ann. §16–940 et seq. (West 2006 and Supp. 2010). All eligible candidates for Governor, secretary of state, attorney general, treasurer, superintendent of public instruction, the corporation commission, mine inspector, and the state legislature (both the House and Senate) may opt to receive public funding. §16–950(D) (West Supp. 2010). Eligibility is contingent on the collection of a specified number of five-dollar contributions from Arizona voters, §§16–946(B) (West 2006), 16–950 (West Supp. 2010),1 and the acceptance of certain campaign restrictions and obligations. Publicly funded candidates must agree, among other things, to limit their expenditure of personal funds to $500, §16–941(A)(2) (West Supp. 2010); participate in at least one public debate, §16–956(A)(2); adhere to an overall expenditure cap, §16–941(A); and return all unspent public moneys to the State, §16–953.

In exchange for accepting these conditions, participating candidates are granted public funds to conduct their campaigns.2 In many cases, this initial allotment may be the whole of the State’s financial backing of a publicly funded candidate. But when certain conditions are met, publicly funded candidates are granted additional “equalizing” or matching funds. §§16–952(A), (B), and (C)(4)–(5) (providing for “[e]qual funding of candidates”).

Matching funds are available in both primary and general elections. In a primary, matching funds are triggered when a privately financed candidate’s expenditures, combined with the expenditures of independent groups made in support of the privately financed candidate or in opposition to a publicly financed candidate, exceed the primary election allotment of state funds to the publicly financed candidate. §§16–952(A), (C). During the general election, matching funds are triggered when the amount of money a privately financed candidate receives in contributions, combined with the expenditures of independent groups made in support of the privately financed candidate or in opposition to a publicly financed candidate, exceed the general election allotment of state funds to the publicly financed candidate. §16–952(B). A privately financed candidate’s expenditures of his personal funds are counted as contributions for purposes of calculating matching funds during a general election. See ibid.; Citizens Clean Elections Commission, Ariz. Admin. Rule R2–20– 113(B)(1)(f) (Sept. 2009).

Once matching funds are triggered, each additional dollar that a privately financed candidate spends during the primary results in one dollar in additional state funding to his publicly financed opponent (less a 6% reduction meant to account for fundraising expenses). §16–952(A). During a general election, every dollar that a candidate receives in contributions—which includes any money of his own that a candidate spends on his campaign—results in roughly one dollar in additional state funding to his publicly financed opponent. In an election where a privately funded candidate faces multiple publicly financed candidates, one dollar raised or spent by the privately financed candidate results in an almost one dollar increase in public funding to each of the publicly financed candidates.

Once the public financing cap is exceeded, additional expenditures by independent groups can result in dollarfor-dollar matching funds as well. Spending by independent groups on behalf of a privately funded candidate, or in opposition to a publicly funded candidate, results in matching funds. §16–952(C). Independent expenditures made in support of a publicly financed candidate can result in matching funds for other publicly financed candidates in a race. Ibid. The matching funds provision is not activated, however, when independent expenditures are made in opposition to a privately financed candidate. Matching funds top out at two times the initial authorized grant of public funding to the publicly financed candidate. §16–952(E).

Under Arizona law, a privately financed candidate may raise and spend unlimited funds, subject to state-imposed contribution limits and disclosure requirements. Contributions to candidates for statewide office are limited to $840 per contributor per election cycle and contributions to legislative candidates are limited to $410 per contributor per election cycle. See §§16–905(A)(1), 16–941(B)(1); Ariz. Dept. of State, Office of the Secretary of State, 2009– 2010 Contribution Limits (rev. Aug. 14, 2009), http:// www.azsos.gov/election/2010 /Info /Campaign_Contribution _Limits_2010.htm (all Internet materials as visited June 24, 2011, and available in Clerk of Court’s case file).

An example may help clarify how the Arizona matching funds provision operates. Arizona is divided into 30 districts for purposes of electing members to the State’s House of Representatives. Each district elects two representatives to the House biannually. In the last general election, the number of candidates competing for the two available seats in each district ranged from two to seven. See State of Arizona Official Canvass, 2010 General Election Report (compiled and issued by the Arizona secretary of state). Arizona’s Fourth District had three candidates for its two available House seats. Two of those candidates opted to accept public funding; one candidate chose to operate his campaign with private funds.

In that election, if the total funds contributed to the privately funded candidate, added to that candidate’s expenditure of personal funds and the expenditures of supportive independent groups, exceeded $21,479—the allocation of public funds for the general election in a contested State House race—the matching funds provision would be triggered. See Citizens Clean Elections Commission, Participating Candidate Guide 2010 Election Cycle 30 (Aug. 10, 2010). At that point, a number of different political activities could result in the distribution of matching funds. For example: • • • If the privately funded candidate spent $1,000 of his own money to conduct a direct mailing, each of his publicly funded opponents would receive $940 ($1,000 less the 6% offset). If the privately funded candidate held a fundraiser that generated $1,000 in contributions, each of his publicly funded opponents would receive $940. If an independent expenditure group spent $1,000 on a brochure expressing its support for the privately financed candidate, each of the publicly financed candidates would receive $940 directly. If an independent expenditure group spent $1,000 on a brochure opposing one of the publicly financed candidates, but saying nothing about the privately financed candidate, the publicly financed candidates would receive $940 directly. If an independent expenditure group spent $1,000 on a brochure supporting one of the publicly financed candidates, the other publicly financed candidate would receive $940 directly, but the privately financed candidate would receive nothing. If an independent expenditure group spent $1,000 on a brochure opposing the privately financed candidate, no matching funds would be issued. • • A publicly financed candidate would continue to receive additional state money in response to fundraising and spending by the privately financed candidate and independent expenditure groups until that publicly financed candidate received a total of $64,437 in state funds (three times the initial allocation for a State House race).3

B

Petitioners in this case, plaintiffs below, are five past and future candidates for Arizona state office—four members of the House of Representatives and the Arizona state treasurer—and two independent groups that spend money to support and oppose Arizona candidates. They filed suit challenging the constitutionality of the matching funds provision. The candidates and independent expenditure groups argued that the matching funds provision unconstitutionally penalized their speech and burdened their ability to fully exercise their First Amendment rights.

The District Court agreed that this provision “constitute[d] a substantial burden” on the speech of privately financed candidates because it “award[s] funds to a [privately financed] candidate’s opponent” based on the privately financed candidate’s speech. App. to Pet. for Cert. in No. 10–239, p. 69 (internal quotation marks omitted). That court further held that “no compelling interest [was] served by the” provision that might justify the burden imposed. Id., at 69, 71. The District Court entered a permanent injunction against the enforcement of the matching funds provision, but stayed implementation of that injunction to allow the State to file an appeal. Id., at 76–81.

The Court of Appeals for the Ninth Circuit stayed the District Court’s injunction pending appeal. Id., at 84–85.4 After hearing the case on the merits, the Court of Appeals reversed the District Court. The Court of Appeals concluded that the matching funds provision “imposes only a minimal burden on First Amendment rights” because it “does not actually prevent anyone from speaking in the first place or cap campaign expenditures.” 611 F. 3d 510, 513, 525 (2010). In that court’s view, any burden imposed by the matching funds provision was justified because the provision “bears a substantial relation to the State’s important interest in reducing quid pro quo political corruption.” Id., at 513.5 We stayed the Court of Appeals’ decision, vacated the stay of the District Court’s injunction, see 560 U. S. ___ (2010), and later granted certiorari, 562 U. S. ___ (2010).

II

“Discussion of public issues and debate on the qualifications of candidates are integral to the operation” of our system of government. Buckley v. Valeo, 424 U. S. 1, 14 (1976) (per curiam). As a result, the First Amendment “ ‘has its fullest and most urgent application’ to speech uttered during a campaign for political office.” Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214, 223 (1989) (quoting Monitor Patriot Co. v. Roy, 401 U. S. 265, 272 (1971)). “Laws that burden political speech are” accordingly “subject to strict scrutiny, which requires the Government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest.” Citizens United v. Federal Election Comm’n, 558 U. S. ___, ___ (2010) (slip op., at 23) (internal quotation marks omitted); see Federal Election Comm’n v. Massachusetts Citizens for Life, Inc., 479 U. S. 238, 256 (1986).

Applying these principles, we have invalidated government-imposed restrictions on campaign expenditures, Buckley, supra, at 52–54, restraints on independent expenditures applied to express advocacy groups, Massachusetts Citizens for Life, supra, at 256–265, limits on uncoordinated political party expenditures, Colorado Republican Federal Campaign Comm. v. Federal Election Comm’n, 518 U. S. 604, 608 (1996) (opinion of BREYER, J.) (Colorado I), and regulations barring unions, nonprofit and other associations, and corporations from making independent expenditures for electioneering communication, Citizens United, supra, at ___ (slip op., at 57).

At the same time, we have subjected strictures on campaign-related speech that we have found less onerous to a lower level of scrutiny and upheld those restrictions. For example, after finding that the restriction at issue was “closely drawn” to serve a “sufficiently important interest,” see, e.g., McConnell v. Federal Election Comm’n, 540 U. S. 93, 136 (2003) (internal quotation marks omitted); Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 387– 388 (2000) (internal quotation marks omitted), we have upheld government-imposed limits on contributions to candidates, Buckley, supra, at 23–35, caps on coordinated party expenditures, Federal Election Comm’n v. Colorado Republican Federal Campaign Comm., 533 U. S. 431, 437 (2001) (Colorado II), and requirements that political funding sources disclose their identities, Citizens United, supra, at ___–___ (slip op., at 55–56).

Although the speech of the candidates and independent expenditure groups that brought this suit is not directly capped by Arizona’s matching funds provision, those parties contend that their political speech is substantially burdened by the state law in the same way that speech was burdened by the law we recently found invalid in Davis v. Federal Election Comm’n, 554 U. S. 724 (2008). In Davis, we considered a First Amendment challenge to the so-called “Millionaire’s Amendment” of the Bipartisan Campaign Reform Act of 2002, 2 U. S. C. §441a–1(a). Under that Amendment, if a candidate for the United States House of Representatives spent more than $350,000 of his personal funds, “a new, asymmetrical regulatory scheme [came] into play.” 554 U. S., at 729. The opponent of the candidate who exceeded that limit was permitted to collect individual contributions up to $6,900 per contributor—three times the normal contribution limit of $2,300. See ibid. The candidate who spent more than the personal funds limit remained subject to the original contribution cap. Davis argued that this scheme “burden[ed] his exercise of his First Amendment right to make unlimited expenditures of his personal funds because” doing so had “the effect of enabling his opponent to raise more money and to use that money to finance speech that counteract[ed] and thus diminishe[d] the effectiveness of Davis’ own speech.” Id., at 736.

In addressing the constitutionality of the Millionaire’s Amendment, we acknowledged that the provision did not impose an outright cap on a candidate’s personal expenditures. Id., at 738–739. We nonetheless concluded that the Amendment was unconstitutional because it forced a candidate “to choose between the First Amendment right to engage in unfettered political speech and subjection to discriminatory fundraising limitations.” Id., at 739. Any candidate who chose to spend more than $350,000 of his own money was forced to “shoulder a special and potentially significant burden” because that choice gave fundraising advantages to the candidate’s adversary. Ibid. We determined that this constituted an “unprecedented penalty” and “impose[d] a substantial burden on the exercise of the First Amendment right to use personal funds for campaign speech,” and concluded that the Government had failed to advance any compelling interest that would justify such a burden. Id., at 739–740.

A

1

The logic of Davis largely controls our approach to this case. Much like the burden placed on speech in Davis, the matching funds provision “imposes an unprecedented penalty on any candidate who robustly exercises [his] First Amendment right[s].” Id., at 739. Under that provision, “the vigorous exercise of the right to use personal funds to finance campaign speech” leads to “advantages for opponents in the competitive context of electoral politics.” Ibid.

Once a privately financed candidate has raised or spent more than the State’s initial grant to a publicly financed candidate, each personal dollar spent by the privately financed candidate results in an award of almost one additional dollar to his opponent. That plainly forces the privately financed candidate to “shoulder a special and potentially significant burden” when choosing to exercise his First Amendment right to spend funds on behalf of his candidacy. Ibid. If the law at issue in Davis imposed a burden on candidate speech, the Arizona law unquestionably does so as well.

The penalty imposed by Arizona’s matching funds provision is different in some respects from the penalty imposed by the law we struck down in Davis. But those differences make the Arizona law more constitutionally problematic, not less. See Green Party of Conn. v. Garfield, 616 F. 3d 213, 244–245 (CA2 2010). First, the penalty in Davis consisted of raising the contribution limits for one of the candidates. The candidate who benefited from the increased limits still had to go out and raise the funds. He may or may not have been able to do so. The other candidate, therefore, faced merely the possibility that his opponent would be able to raise additional funds, through contribution limits that remained subject to a cap. And still the Court held that this was an “unprecedented penalty,” a “special and potentially significant burden” that had to be justified by a compelling state interest—a rigorous First Amendment hurdle. 554 U. S., at 739–740. Here the benefit to the publicly financed candidate is the direct and automatic release of public money. That is a far heavier burden than in Davis.

Second, depending on the specifics of the election at issue, the matching funds provision can create a multiplier effect. In the Arizona Fourth District House election previously discussed, see supra, at 4–6, if the spending cap were exceeded, each dollar spent by the privately funded candidate would result in an additional dollar of campaign funding to each of that candidate’s publicly financed opponents. In such a situation, the matching funds provision forces privately funded candidates to fight a political hydra of sorts. Each dollar they spend generates two adversarial dollars in response. Again, a markedly more significant burden than in Davis.

Third, unlike the law at issue in Davis, all of this is to some extent out of the privately financed candidate’s hands. Even if that candidate opted to spend less than the initial public financing cap, any spending by independent expenditure groups to promote the privately financed candidate’s election—regardless whether such support was welcome or helpful—could trigger matching funds. What is more, that state money would go directly to the publicly funded candidate to use as he saw fit. That disparity in control—giving money directly to a publicly financed candidate, in response to independent expenditures that cannot be coordinated with the privately funded candidate—is a substantial advantage for the publicly funded candidate. That candidate can allocate the money according to his own campaign strategy, which the privately financed candidate could not do with the independent group expenditures that triggered the matching funds. Cf. Citizens United, 558 U. S., at ___ (slip op., at 41) (“ ‘The absence of prearrangement and coordination of an expenditure with the candidate or his agent . . . undermines the value of the expenditure to the candidate’ ” (quoting Buckley, 424 U. S., at 47)).

The burdens that this regime places on independent expenditure groups are akin to those imposed on the privately financed candidates themselves. Just as with the candidate the independent group supports, the more money spent on that candidate’s behalf or in opposition to a publicly funded candidate, the more money the publicly funded candidate receives from the State. And just as with the privately financed candidate, the effect of a dollar spent on election speech is a guaranteed financial payout to the publicly funded candidate the group opposes. Moreover, spending one dollar can result in the flow of dollars to multiple candidates the group disapproves of, dollars directly controlled by the publicly funded candidate or candidates.

In some ways, the burden the Arizona law imposes on independent expenditure groups is worse than the burden it imposes on privately financed candidates, and thus substantially worse than the burden we found constitutionally impermissible in Davis. If a candidate contemplating an electoral run in Arizona surveys the campaign landscape and decides that the burdens imposed by the matching funds regime make a privately funded campaign unattractive, he at least has the option of taking public financing. Independent expenditure groups, of course, do not.

Once the spending cap is reached, an independent expenditure group that wants to support a particular candidate—because of that candidate’s stand on an issue of concern to the group—can only avoid triggering matching funds in one of two ways. The group can either opt to change its message from one addressing the merits of the candidates to one addressing the merits of an issue, or refrain from speaking altogether. Presenting independent expenditure groups with such a choice makes the matching funds provision particularly burdensome to those groups. And forcing that choice—trigger matching funds, change your message, or do not speak—certainly contravenes “the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message.” Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 573 (1995); cf. Citizens United, supra, at ___ (slip op., at 24) (“the First Amendment stands against attempts to disfavor certain subjects or viewpoints”); Federal Election Comm’n v. Wisconsin Right to Life, Inc., 551 U. S. 449, 477, n. 9 (2007) (opinion of ROBERTS, C. J.) (the argument that speakers can avoid the burdens of a law “by changing what they say” does not mean the law complies with the First Amendment).6

2

Arizona, the Clean Elections Institute, and the United States offer several arguments attempting to explain away the existence or significance of any burden imposed by matching funds. None is persuasive.

Arizona contends that the matching funds provision is distinguishable from the law we invalidated in Davis. The State correctly points out that our decision in Davis focused on the asymmetrical contribution limits imposed by the Millionaire’s Amendment. See 554 U. S., at 729. But that is not because—as the State asserts—the reach of that opinion is limited to asymmetrical contribution limits. Brief for State Respondents 26–32. It is because that was the particular burden on candidate speech we faced in Davis. And whatever the significance of the distinction in general, there can be no doubt that the burden on speech is significantly greater in this case than in Davis: That means that the law here—like the one in Davis—must be justified by a compelling state interest. The State argues that the matching funds provision actually results in more speech by “increas[ing] debate about issues of public concern” in Arizona elections and “promot[ing] the free and open debate that the First Amendment was intended to foster.” Brief for State Respondents 41; see Brief for Respondent Clean Elections Institute 55. In the State’s view, this promotion of First Amendment ideals offsets any burden the law might impose on some speakers.

Not so. Any increase in speech resulting from the Arizona law is of one kind and one kind only—that of publicly financed candidates. The burden imposed on privately financed candidates and independent expenditure groups reduces their speech; “restriction[s] on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression.” Buckley, 424 U. S., at 19. Thus, even if the matching funds provision did result in more speech by publicly financed candidates and more speech in general, it would do so at the expense of impermissibly burdening (and thus reducing) the speech of privately financed candidates and independent expenditure groups. 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.” Id., at 48–49.7 We have rejected government efforts to increase the speech of some at the expense of others outside the campaign finance context. In Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241, 244, 258 (1974), we held unconstitutional a Florida law that required any newspaper assailing a political candidate’s character to allow that candidate to print a reply. We have explained that while the statute in that case “purported to advance free discussion, . . . its effect was to deter newspapers from speaking out in the first instance” because it “penalized the newspaper’s own expression.” Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal., 475 U. S. 1, 10 (1986) (plurality opinion). Such a penalty, we concluded, could not survive First Amendment scrutiny. The Arizona law imposes a similar penalty: The State grants funds to publicly financed candidates as a direct result of the speech of privately financed candidates and independent expenditure groups. The argument that this sort of burden promotes free and robust discussion is no more persuasive here than it was in Tornillo.8

Arizona asserts that no “candidate or independent expenditure group is ‘obliged personally to express a message he disagrees with’ ” or “ ‘required by the government to subsidize a message he disagrees with.’ ” Brief for State Respondents 32 (quoting Johanns v. Livestock Marketing Assn., 544 U. S. 550, 557 (2005)). True enough. But that does not mean that the matching funds provision does not burden speech. The direct result of the speech of privately financed candidates and independent expenditure groups is a state-provided monetary subsidy to a political rival. That cash subsidy, conferred in response to political speech, penalizes speech to a greater extent and more directly than the Millionaire’s Amendment in Davis. The fact that this may result in more speech by the other candidates is no more adequate a justification here than it was in Davis. See 554 U. S., at 741–742.

In disagreeing with our conclusion, the dissent relies on cases in which we have upheld government subsidies against First Amendment challenge, and asserts that “[w]e have never, not once, understood a viewpoint-neutral subsidy given to one speaker to constitute a First Amendment burden on another.” Post, at 16. But none of those cases—not one—involved a subsidy given in direct response to the political speech of another, to allow the recipient to counter that speech. And nothing in the analysis we employed in those cases suggests that the challenged subsidies would have survived First Amendment scrutiny if they were triggered by someone else’s political speech.9

The State also argues, and the Court of Appeals concluded, that any burden on privately financed candidates and independent expenditure groups is more analogous to the burden placed on speakers by the disclosure and disclaimer requirements we recently upheld in Citizens United than to direct restrictions on candidate and independent expenditures. See 611 F. 3d, at 525; Brief for State Respondents 21, 35; Brief for Respondent Clean Elections Institute 16–17. This analogy is not even close. A political candidate’s disclosure of his funding resources does not result in a cash windfall to his opponent, or affect their respective disclosure obligations.

The State and the Clean Elections Institute assert that the candidates and independent expenditure groups have failed to “cite specific instances in which they decided not to raise or spend funds,” Brief for State Respondents 11; see id., at 11–12, and have “failed to present any reliable evidence that Arizona’s triggered matching funds deter their speech,” Brief for Respondent Clean Elections Institute 6; see id., at 6–8. The record in this case, which we must review in its entirety, does not support those assertions. See Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485, 499 (1984).

That record contains examples of specific candidates curtailing fundraising efforts, and actively discouraging supportive independent expenditures, to avoid triggering matching funds. See, e.g., App. 567 (Rick Murphy), 578 (Dean Martin); App. to Pet. for Cert. in No. 10–239, at 329 (John McComish), 300 (Tony Bouie). The record also includes examples of independent expenditure groups deciding not to speak in opposition to a candidate, App. 569 (Arizona Taxpayers Action Committee), or in support of a candidate, id., at 290 (Club for Growth), to avoid triggering matching funds. In addition, Dr. David Primo, an expert involved in the case, “found that privately financed candidates facing the prospect of triggering matching funds changed the timing of their fundraising activities, the timing of their expenditures, and, thus, their overall campaign strategy.” Reply Brief for Petitioner Arizona Free Enterprise Club’s (AFEC) Freedom Club PAC et al. 12; see also id., at 11–17 (listing additional sources of evidence detailing the burdens imposed by the matching funds provision); Brief for Petitioner AFEC’s Freedom Club PAC et al. 14–21 (AFEC Brief) (same); Brief for Petitioner McComish et al. 30–37 (same).

The State contends that if the matching funds provision truly burdened the speech of privately financed candidates and independent expenditure groups, spending on behalf of privately financed candidates would cluster just below the triggering level, but no such phenomenon has been observed. Brief for State Respondents 39; Brief for Respondent Clean Elections Institute 18–19. That should come as no surprise. The hypothesis presupposes a privately funded candidate who would spend his own money just up to the matching funds threshold, when he could have simply taken matching funds in the first place.

Furthermore, the Arizona law takes into account all manner of uncoordinated political activity in awarding matching funds. If a privately funded candidate wanted to hover just below the triggering level, he would have to make guesses about how much he will receive in the form of contributions and supportive independent expenditures. He might well guess wrong.

In addition, some candidates may be willing to bear the burden of spending above the cap. That a candidate is willing to do so does not make the law any less burdensome. See Davis, 554 U. S., at 739 (that candidates may choose to make “personal expenditures to support their campaigns” despite the burdens imposed by the Millionaire’s Amendment does not change the fact that “they must shoulder a special and potentially significant burden if they make that choice”). If the State made privately funded candidates pay a $500 fine to run as such, the fact that candidates might choose to pay it does not make the fine any less burdensome. While there is evidence to support the contention of the candidates and independent expenditure groups that the matching funds provision burdens their speech, “it is never easy to prove a negative”—here, that candidates and groups did not speak or limited their speech because of the Arizona law. Elkins v. United States, 364 U. S. 206, 218 (1960). In any event, the burden imposed by the matching funds provision is evident and inherent in the choice that confronts privately financed candidates and independent expenditure groups. Cf. Davis, 554 U. S., at 738–740. Indeed even candidates who sign up for public funding recognize the burden matching funds impose on private speech, stating that they participate in the program because “matching funds . . . discourage[ ] opponents, special interest groups, and lobbyists from campaigning against” them. GAO, Campaign Finance Reform: Experiences of Two States that Offered Full Public Funding for Political Candidates 27 (GAO–10–390, 2010). As in Davis, we do not need empirical evidence to determine that the law at issue is burdensome. See 554 U. S., at 738–740 (requiring no evidence of a burden whatsoever).

It is clear not only to us but to every other court to have considered the question after Davis that a candidate or independent group might not spend money if the direct result of that spending is additional funding to political adversaries. See, e.g., Green Party of Conn., 616 F. 3d, at 242 (matching funds impose “a substantial burden on the exercise of First Amendment rights” (internal quotation marks omitted)); McComish v. Bennett, 611 F. 3d, at 524 (matching funds create “potential chilling effects” and “impose some First Amendment burden”); Scott v. Roberts, 612 F. 3d 1279, 1290 (CA11 2010) (“we think it is obvious that the [matching funds] subsidy imposes a burden on [privately financed] candidates”); id., at 1291 (“we know of no court that doubts that a [matching funds] subsidy like the one at issue here burdens” the speech of privately financed candidates); see also Day v. Holahan, 34 F. 3d 1356, 1360 (CA8 1994) (it is “clear” that matching funds provisions infringe on “protected speech because of the chilling effect” they have “on the political speech of the person or group making the [triggering] expenditure” (cited in Davis, supra, at 739)). The dissent’s disagreement is little more than disagreement with Davis.

The State correctly asserts that the candidates and independent expenditure groups “do not . . . claim that a single lump sum payment to publicly funded candidates,” equivalent to the maximum amount of state financing that a candidate can obtain through matching funds, would impermissibly burden their speech. Brief for State Respondents 56; see Tr. of Oral Arg. 5. The State reasons that if providing all the money up front would not burden speech, providing it piecemeal does not do so either. And the State further argues that such incremental administration is necessary to ensure that public funding is not under- or over-distributed. See Brief for State Respondents 56–57.

These arguments miss the point. It is not the amount of funding that the State provides to publicly financed candidates that is constitutionally problematic in this case. It is the manner in which that funding is provided—in direct response to the political speech of privately financed candidates and independent expenditure groups. And the fact that the State’s matching mechanism may be more efficient than other alternatives—that it may help the State in “finding the sweet-spot” or “fine-tuning” its financing system to avoid a drain on public resources, post, at 26 (KAGAN, J., dissenting)—is of no moment; “the First Amendment does not permit the State to sacrifice speech for efficiency.” Riley v. National Federation of Blind of N. C., Inc., 487 U. S. 781, 795 (1988).

The United States as amicus contends that “[p]roviding additional funds to petitioners’ opponents does not make petitioners’ own speech any less effective” and thus does not substantially burden speech. Brief for United States 27. Of course it does. One does not have to subscribe to the view that electoral debate is zero sum, see AFEC Brief 30, to see the flaws in the United States’ perspective. All else being equal, an advertisement supporting the election of a candidate that goes without a response is often more effective than an advertisement that is directly controverted. And even if the publicly funded candidate decides to use his new money to address a different issue altogether, the end goal of that spending is to claim electoral victory over the opponent that triggered the additional state funding. See Davis, 554 U. S., at 736.

B

Because the Arizona matching funds provision imposes a substantial burden on the speech of privately financed candidates and independent expenditure groups, “that provision cannot stand unless it is ‘justified by a compelling state interest,’ ” id., at 740 (quoting Massachusetts Citizens for Life, 479 U. S., at 256).

There is a debate between the parties in this case as to what state interest is served by the matching funds provision. The privately financed candidates and independent expenditure groups contend that the provision works to “level[ ] electoral opportunities” by equalizing candidate “resources and influence.” Brief for Petitioner McComish et al. 64; see AFEC Brief 23. The State and the Clean Elections Institute counter that the provision “furthers Arizona’s interest in preventing corruption and the appearance of corruption.” Brief for State Respondents 42; Brief for Respondent Clean Elections Institute 47.

1

There is ample support for the argument that the matching funds provision seeks to “level the playing field” in terms of candidate resources. The clearest evidence is of course the very operation of the provision: It ensures that campaign funding is equal, up to three times the initial public funding allotment. The text of the Citizens Clean Elections Act itself confirms this purpose. The statutory provision setting up the matching funds regime is titled “Equal funding of candidates.” Ariz. Rev. Stat. Ann. §16–952 (West Supp. 2010). The Act refers to the funds doled out after the Act’s matching mechanism is triggered as “equalizing funds.” See §§16–952(C)(4), (5). And the regulations implementing the matching funds provision refer to those funds as “equalizing funds” as well. See Citizens Clean Elections Commission, Ariz. Admin. Rule R2–20–113.

Other features of the Arizona law reinforce this understanding of the matching funds provision. If the Citizens Clean Election Commission cannot provide publicly financed candidates with the moneys that the matching funds provision envisions because of a shortage of funds, the statute allows a publicly financed candidate to “accept private contributions to bring the total monies received by the candidate” up to the matching funds amount. Ariz. Rev. Stat. Ann. §16–954(F) (West 2006). Limiting contributions, of course, is the primary means we have upheld to combat corruption. Buckley, 424 U. S., at 23–35, 46–47. Indeed the State argues that one of the principal ways that the matching funds provision combats corruption is by eliminating the possibility of any quid pro quo between private interests and publicly funded candidates by eliminating contributions to those candidates altogether. See Brief for State Respondents 45–46. But when confronted with a choice between fighting corruption and equalizing speech, the drafters of the matching funds provision chose the latter. That significantly undermines any notion that the “Equal funding of candidates” provision is meant to serve some interest other than an interest in equalizing funds.10

We have repeatedly rejected the argument that the government has a compelling state interest in “leveling the playing field” that can justify undue burdens on political speech. See, e.g., Citizens United, 558 U. S., at ___ (slip op., at 34). In Davis, we stated that discriminatory contribution limits meant to “level electoral opportunities for candidates of different personal wealth” did not serve “a legitimate government objective,” let alone a compelling one. 554 U. S., at 741 (internal quotation marks omitted). And in Buckley, we held that limits on overall campaign expenditures could not be justified by a purported government “interest in equalizing the financial resources of candidates.” 424 U. S., at 56; see id., at 56–57. After all, equalizing campaign resources “might serve not to equalize the opportunities of all candidates, but to handicap a candidate who lacked substantial name recognition or exposure of his views before the start of the campaign.” Id., at 57.

“Leveling electoral opportunities means making and implementing judgments about which strengths should be permitted to contribute to the outcome of an election,” Davis, supra, at 742—a dangerous enterprise and one that cannot justify burdening protected speech. The dissent essentially dismisses this concern, see post, at 27–29, but it needs to be taken seriously; we have, as noted, held that it is not legitimate for the government to attempt to equalize electoral opportunities in this manner. And such basic intrusion by the government into the debate over who should govern goes to the heart of First Amendment values.

“Leveling the playing field” can sound like a good thing. But in a democracy, campaigning for office is not a game. It is a critically important form of speech. The First Amendment embodies our choice as a Nation that, when it comes to such speech, the guiding principle is freedom— the “unfettered interchange of ideas”—not whatever the State may view as fair. Buckley, supra, at 14 (internal quotation marks omitted).

2

As already noted, the State and the Clean Elections Institute disavow any interest in “leveling the playing field.” They instead assert that the “Equal funding of candidates” provision, Ariz. Rev. Stat. Ann. §16–952 (West Supp. 2010), serves the State’s compelling interest in combating corruption and the appearance of corruption. See, e.g., Davis, supra, at 740; Wisconsin Right to Life, 551 U. S., at 478–479 (opinion of ROBERTS, C. J.). But even if the ultimate objective of the matching funds provision is to combat corruption—and not “level the playing field”—the burdens that the matching funds provision imposes on protected political speech are not justified.

Burdening a candidate’s expenditure of his own funds on his own campaign does not further the State’s anticorruption interest. Indeed, we have said that “reliance on personal funds reduces the threat of corruption” and that “discouraging [the] use of personal funds[ ] disserves the anticorruption interest.” Davis, supra, at 740–741. That is because “the use of personal funds reduces the candidate’s dependence on outside contributions and thereby counteracts the coercive pressures and attendant risks of abuse” of money in politics. Buckley, supra, at 53. The matching funds provision counts a candidate’s expenditures of his own money on his own campaign as contributions, and to that extent cannot be supported by any anticorruption interest.

We have also held that “independent expenditures . . . do not give rise to corruption or the appearance of corruption.” Citizens United, 558 U. S., at ___ (slip op., at 42). “By definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate.” Id., at ___ (slip op., at 44). The candidate-funding circuit is broken. The separation between candidates and independent expenditure groups negates the possibility that independent expenditures will result in the sort of quid pro quo corruption with which our case law is concerned. See id., at ___–___ (slip op., at 42–45); cf. Buckley, 424 U. S., at 46. Including independent expenditures in the matching funds provision cannot be supported by any anticorruption interest.

We have observed in the past that “[t]he interest in alleviating the corrupting influence of large contributions is served by . . . contribution limitations.” Id., at 55. Arizona already has some of the most austere contribution limits in the United States. See Randall v. Sorrell, 548 U. S. 230, 250–251 (2006) (plurality opinion). Contributions to statewide candidates are limited to $840 per contributor per election cycle and contributions to legislative candidates are limited to $410 per contributor per election cycle. See Ariz. Rev. Stat. Ann. §§16–905(A)(1), 941(B)(1); Ariz. Dept. of State, Office of the Secretary of State, 2009–2010 Contribution Limits, see supra, at 4. Arizona also has stringent fundraising disclosure requirements. In the face of such ascetic contribution limits, strict disclosure requirements, and the general availability of public funding, it is hard to imagine what marginal corruption deterrence could be generated by the matching funds provision.

Perhaps recognizing that the burdens the matching funds provision places on speech cannot be justified in and of themselves, either as a means of leveling the playing field or directly fighting corruption, the State and the Clean Elections Institute offer another argument: They contend that the provision indirectly serves the anticorruption interest, by ensuring that enough candidates participate in the State’s public funding system, which in turn helps combat corruption.11 See Brief for State Respondents 46–47; Brief for Respondent Clean Elections Institute 47–49. We have said that a voluntary system of “public financing as a means of eliminating the improper influence of large private contributions furthers a significant governmental interest.” Buckley, supra, at 96. But the fact that burdening constitutionally protected speech might indirectly serve the State’s anticorruption interest, by encouraging candidates to take public financing, does not establish the constitutionality of the matching funds provision.

We have explained that the matching funds provision substantially burdens the speech of privately financed candidates and independent groups. It does so to an even greater extent than the law we invalidated in Davis. We have explained that those burdens cannot be justified by a desire to “level the playing field.” We have also explained that much of the speech burdened by the matching funds provision does not, under our precedents, pose a danger of corruption. In light of the foregoing analysis, the fact that the State may feel that the matching funds provision is necessary to allow it to “find[ ] the sweet-spot” and “finetun[e]” its public funding system, post, at 26 (KAGAN, J., dissenting), to achieve its desired level of participation without an undue drain on public resources, is not a sufficient justification for the burden.

The flaw in the State’s argument is apparent in what its reasoning would allow. By the State’s logic it could grant a publicly funded candidate five dollars in matching funds for every dollar his privately financed opponent spent, or force candidates who wish to run on private funds to pay a $10,000 fine in order to encourage participation in the public funding regime. Such measures might well promote participation in public financing, but would clearly suppress or unacceptably alter political speech. How the State chooses to encourage participation in its public funding system matters, and we have never held that a State may burden political speech—to the extent the matching funds provision does—to ensure adequate participation in a public funding system. Here the State’s chosen method is unduly burdensome and not sufficiently justified to survive First Amendment scrutiny.

III

We do not today call into question the wisdom of public financing as a means of funding political candidacy. That is not our business. But determining whether laws governing campaign finance violate the First Amendment is very much our business. In carrying out that responsibility over the past 35 years, we have upheld some restrictions on speech and struck down others. See, e.g., Buckley, supra, at 35–38, 51–54 (upholding contribution limits and striking down expenditure limits); Colorado I, 518 U. S., at 608 (opinion of BREYER, J.) (invalidating ban on independent expenditures for electioneering communication); Colorado II, 533 U. S., at 437 (upholding caps on coordinated party expenditures); Davis, 554 U. S., at 736 (invalidating asymmetrical contribution limits triggered by candidate spending).

We have said that governments “may engage in public financing of election campaigns” and that doing so can further “significant governmental interest[s],” such as the state interest in preventing corruption. Buckley, 424 U. S., at 57, n. 65, 92–93, 96. But the goal of creating a viable public financing scheme can only be pursued in a manner consistent with the First Amendment. The dissent criticizes the Court for standing in the way of what the people of Arizona want. Post, at 2–3, 31–32. But the whole point of the First Amendment is to protect speakers against unjustified government restrictions on speech, even when those restrictions reflect the will of the majority. When it comes to protected speech, the speaker is sovereign.

Arizona’s program gives money to a candidate in direct response to the campaign speech of an opposing candidate or an independent group. It does this when the opposing candidate has chosen not to accept public financing, and has engaged in political speech above a level set by the State. The professed purpose of the state law is to cause a sufficient number of candidates to sign up for public financing, see post, at 5, which subjects them to the various restrictions on speech that go along with that program. This goes too far; Arizona’s matching funds provision substantially burdens the speech of privately financed candidates and independent expenditure groups without serving a compelling state interest.

“[T]here is practically universal agreement that a major purpose of” the First Amendment “was to protect the free discussion of governmental affairs,” “includ[ing] discussions of candidates.” Buckley, 424 U. S., at 14 (internal quotation marks omitted; second alteration in original). That agreement “reflects our ‘profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.’ ” Ibid. (quoting New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964)). True when we said it and true today. Laws like Arizona’s matching funds provision that inhibit robust and wide-open political debate without sufficient justification cannot stand.

The judgment of the Court of Appeals for the Ninth Circuit is reversed. It is so ordered.

1 The number of qualifying contributions ranges from 200 for a candidate for the state legislature to 4,000 for a candidate for Governor. Ariz. Rev. Stat. Ann. §16–950(D) (West Supp. 2010).

2 Publicly financed candidates who run unopposed, or who run as the representative of a party that does not have a primary, may receive less funding than candidates running in contested elections. See §§16–

3 Maine and North Carolina have both passed matching funds statutes that resemble Arizona’s law. See Me. Rev. Stat. Ann., Tit. 21–A, §§1125(8), (9) (2008); N. C. Gen. Stat. Ann. §163–278.67 (Lexis 2009). Minnesota, Connecticut, and Florida have also adopted matching funds provisions, but courts have enjoined the enforcement of those schemes after concluding that their operation violates the First Amendment. See Day v. Holahan, 34 F. 3d 1356, 1362 (CA8 1994); Green Party of Conn. v. Garfield, 616 F. 3d 213, 242 (CA2 2010); Scott v. Roberts, 612 F. 3d 1279, 1297–1298 (CA11 2010). public financing scheme imposes no limitations whatsoever on a candi date’s speech.” 611 F. 3d, at 527 (Kleinfeld, J.).

6 The dissent sees “chutzpah” in candidates exercising their right not to participate in the public financing scheme, while objecting that the system violates their First Amendment rights. See post, at 12 (opinion of KAGAN, J.). The charge is unjustified, but, in any event, it certainly cannot be leveled against the independent expenditure groups. The dissent barely mentions such groups in its analysis, and fails to address not only the distinctive burdens imposed on these groups—as set forth above—but also the way in which privately financed candidates are particularly burdened when matching funds are triggered by independent group speech.

8 Along the same lines, we have invalidated government mandates that a speaker “help disseminate hostile views” opposing that speaker’s message. Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal., 475 U. S. 1, 14 (1986) (plurality opinion). In Pacific Gas, we found a public utility commission order forcing a utility company to disseminate in its billing envelopes views that the company opposed ran afoul of the First Amendment. That case is of course distinguishable from the instant case on its facts, but the central concern—that an individual should not be compelled to “help disseminate hostile views”—is implicated here as well. Ibid. If a candidate uses his own money to engage in speech above the initial public funding threshold, he is forced to “help disseminate hostile views” in a most direct way—his own speech triggers the release of state money to his opponent.

10 Prior to oral argument in this case, the Citizens Clean Elections Commission’s Web site stated that “ ‘The Citizens Clean Elections Act was passed by the people of Arizona in 1998 to level the playing field when it comes to running for office.’ ” AFEC Brief 10, n. 3 (quoting http://www.azcleanelections.gov/about-us/get-involved.aspx); Tr. of Oral Arg. 48. The Web site now says that “The Citizens Clean Elections Act was passed by the people of Arizona in 1998 to restore citizen participation and confidence in our political system.”

KAGAN, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 10–238 and 10–239

_________________

ARIZONA FREE ENTERPRISE CLUB’S FREEDOM
CLUB PAC, ET AL., PETITIONERS
10–238
v.
KEN BENNETT, IN HIS OFFICIAL CAPACITY AS
ARIZONA SECRETARY OF STATE, ET AL.

JOHN MCCOMISH, ET AL., PETITIONERS
10–239
v.
KEN BENNETT, IN HIS OFFICIAL CAPACITY AS
ARIZONA SECRETARY OF STATE, ET AL.

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT

[June 27, 2011]

JUSTICE KAGAN, with whom JUSTICE GINSBURG, JUSTICE BREYER, and JUSTICE SOTOMAYOR join, dissenting.

Imagine two States, each plagued by a corrupt political system. In both States, candidates for public office accept large campaign contributions in exchange for the promise that, after assuming office, they will rank the donors’ interests ahead of all others. As a result of these bargains, politicians ignore the public interest, sound public policy languishes, and the citizens lose confidence in their government.

Recognizing the cancerous effect of this corruption, voters of the first State, acting through referendum, enact several campaign finance measures previously approved by this Court. They cap campaign contributions; require disclosure of substantial donations; and create an optional public financing program that gives candidates a fixed public subsidy if they refrain from private fundraising. But these measures do not work. Individuals who “bundle” campaign contributions become indispensable to candidates in need of money. Simple disclosure fails to prevent shady dealing. And candidates choose not to participate in the public financing system because the sums provided do not make them competitive with their privately financed opponents. So the State remains afflicted with corruption.

Voters of the second State, having witnessed this failure, take an ever-so-slightly different tack to cleaning up their political system. They too enact contribution limits and disclosure requirements. But they believe that the greatest hope of eliminating corruption lies in creating an effective public financing program, which will break candidates’ dependence on large donors and bundlers. These voters realize, based on the first State’s experience, that such a program will not work unless candidates agree to participate in it. And candidates will participate only if they know that they will receive sufficient funding to run competitive races. So the voters enact a program that carefully adjusts the money given to would-be officeholders, through the use of a matching funds mechanism, in order to provide this assurance. The program does not discriminate against any candidate or point of view, and it does not restrict any person’s ability to speak. In fact, by providing resources to many candidates, the program creates more speech and thereby broadens public debate. And just as the voters had hoped, the program accomplishes its mission of restoring integrity to the political system. The second State rids itself of corruption.

A person familiar with our country’s core values—our devotion to democratic self-governance, as well as to “uninhibited, robust, and wide-open” debate, New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964)—might expect this Court to celebrate, or at least not to interfere with, the second State’s success. But today, the majority holds that the second State’s system—the system that produces honest government, working on behalf of all the people— clashes with our Constitution. The First Amendment, the majority insists, requires us all to rely on the measures employed in the first State, even when they have failed to break the stranglehold of special interests on elected officials.

I disagree. The First Amendment’s core purpose is to foster a healthy, vibrant political system full of robust discussion and debate. Nothing in Arizona’s anticorruption statute, the Arizona Citizens Clean Elections Act, violates this constitutional protection. To the contrary, the Act promotes the values underlying both the First Amendment and our entire Constitution by enhancing the “opportunity for free political discussion to the end that government may be responsive to the will of the people.” Id., at 269 (internal quotation marks omitted). I therefore respectfully dissent.

I

A

Campaign finance reform over the last century has focused on one key question: how to prevent massive pools of private money from corrupting our political system. If an officeholder owes his election to wealthy contributors, he may act for their benefit alone, rather than on behalf of all the people. As we recognized in Buckley v. Valeo, 424 U. S. 1, 26 (1976) (per curiam), our seminal campaign finance case, large private contributions may result in “political quid pro quo[s],” which undermine the integrity of our democracy. And even if these contributions are not converted into corrupt bargains, they still may weaken confidence in our political system because the public perceives “the opportunities for abuse[s].” Id., at 27. To prevent both corruption and the appearance of corruption—and so to protect our democratic system of governance—citizens have implemented reforms designed to curb the power of special interests.

Among these measures, public financing of elections has emerged as a potentially potent mechanism to preserve elected officials’ independence. President Theodore Roosevelt proposed the reform as early as 1907 in his State of the Union address. “The need for collecting large campaign funds would vanish,” he said, if the government “provided an appropriation for the proper and legitimate expenses” of running a campaign, on the condition that a “party receiving campaign funds from the Treasury” would forgo private fundraising. 42 Cong. Rec. 78 (1907). The idea was—and remains—straightforward. Candidates who rely on public, rather than private, moneys are “beholden [to] no person and, if elected, should feel no postelection obligation toward any contributor.” Republican Nat. Comm. v. FEC, 487 F. Supp. 280, 284 (SDNY), aff’d 445 U. S. 955 (1980). By supplanting private cash in elections, public financing eliminates the source of political corruption.

For this reason, public financing systems today dot the national landscape. Almost one-third of the States have adopted some form of public financing, and so too has the Federal Government for presidential elections. See R. Garrett, Congressional Research Service Report for Congress, Public Financing of Congressional Campaigns: Overview and Analysis 2, 32 (2009). The federal program—which offers presidential candidates a fixed public subsidy if they abstain from private fundraising— originated in the campaign finance law that Congress enacted in 1974 on the heels of the Watergate scandal. Congress explained at the time that the “potentia[l] for abuse” inherent in privately funded elections was “all too clear.” S. Rep. No. 93–689, p. 4 (1974). In Congress’s view, public financing represented the “only way . . . [to] eliminate reliance on large private contributions” and its attendant danger of corruption, while still ensuring that a wide range of candidates had access to the ballot. Id., at 5 (emphasis deleted).

We declared the presidential public financing system constitutional in Buckley v. Valeo. Congress, we stated, had created the program “for the ‘general welfare’—to reduce the deleterious influence of large contributions on our political process,” as well as to “facilitate communication by candidates with the electorate, and to free candidates from the rigors of fundraising.” 424 U. S., at 91. We reiterated “that public financing as a means of eliminating the improper influence of large private contributions furthers a significant governmental interest.” Id., at 96. And finally, in rejecting a challenge based on the First Amendment, we held that the program did not “restrict[] or censor speech, but rather . . . use[d] public money to facilitate and enlarge public discussion and participation in the electoral process.” Id., at 92–93. We declared this result “vital to a self-governing people,” and so concluded that the program “further[ed], not abridge[d], pertinent First Amendment values.” Id., at 93. We thus gave state and municipal governments the green light to adopt public financing systems along the presidential model.

But this model, which distributes a lump-sum grant at the beginning of an election cycle, has a significant weakness: It lacks a mechanism for setting the subsidy at a level that will give candidates sufficient incentive to participate, while also conserving public resources. Public financing can achieve its goals only if a meaningful number of candidates receive the state subsidy, rather than raise private funds. See 611 F. 3d 510, 527 (CA9 2010) (“A public financing system with no participants does nothing to reduce the existence or appearance of quid pro quo corruption”). But a public funding program must be voluntary to pass constitutional muster, because of its restrictions on contributions and expenditures. See Buckley, 424 U. S., at 57, n. 65, 95. And candidates will choose to sign up only if the subsidy provided enables them to run competitive races. If the grant is pegged too low, it puts the participating candidate at a disadvantage: Because he has agreed to spend no more than the amount of the subsidy, he will lack the means to respond if his privately funded opponent spends over that threshold. So when lump-sum grants do not keep up with campaign expenditures, more and more candidates will choose not to participate.1 But if the subsidy is set too high, it may impose an unsustainable burden on the public fisc. See 611 F. 3d, at 527 (noting that large subsidies would make public funding “prohibitively expensive and spell its doom”). At the least, hefty grants will waste public resources in the many state races where lack of competition makes such funding unnecessary.

The difficulty, then, is in finding the Goldilocks solution—not too large, not too small, but just right. And this in a world of countless variables—where the amount of money needed to run a viable campaign against a privately funded candidate depends on, among other things, the district, the office, and the election cycle. A state may set lump-sum grants district-by-district, based on spending in past elections; but even that approach leaves out many factors—including the resources of the privately funded candidate—that alter the competitiveness of a seat from one election to the next. See App. 714–716 (record evidence chronicling the history of variation in campaign spending levels in Arizona’s legislative districts). In short, the dynamic nature of our electoral system makes ex ante predictions about campaign expenditures almost impossible. And that creates a chronic problem for lump-sum public financing programs, because inaccurate estimates produce subsidies that either dissuade candidates from participating or waste taxpayer money. And so States have made adjustments to the lump-sum scheme that we approved in Buckley, in attempts to more effectively reduce corruption.

B

The people of Arizona had every reason to try to develop effective anti-corruption measures. Before turning to public financing, Arizonans voted by referendum to establish campaign contribution limits. See Ariz. Rev. Stat. Ann. §16–905 (West Supp. 2010). But that effort to abate corruption, standing alone, proved unsuccessful. Five years after the enactment of these limits, the State suffered “the worst public corruption scandal in its history.” Brief for State Respondents 1. In that scandal, known as “AzScam,” nearly 10% of the State’s legislators were caught accepting campaign contributions or bribes in exchange for supporting a piece of legislation. Following that incident, the voters of Arizona decided that further reform was necessary. Acting once again by referendum, they adopted the public funding system at issue here.

The hallmark of Arizona’s program is its inventive approach to the challenge that bedevils all public financing schemes: fixing the amount of the subsidy. For each electoral contest, the system calibrates the size of the grant automatically to provide sufficient—but no more than sufficient—funds to induce voluntary participation. In effect, the program’s designers found the Goldilocks solution, which produces the “just right” grant to ensure that a participant in the system has the funds needed to run a competitive race.

As the Court explains, Arizona’s matching funds arrangement responds to the shortcoming of the lump-sum model by adjusting the public subsidy in each race to reflect the expenditures of a privately financed candidate and the independent groups that support him. See Ariz. Rev. Stat. Ann. §16–940 et seq. (West 2006 and West Supp. 2010). A publicly financed candidate in Arizona receives an initial lump-sum to get his campaign off the ground. See §16–951 (West 2006). But for every dollar his privately funded opponent (or the opponent’s supporters) spends over the initial subsidy, the publicly funded candidate will—to a point—get an additional 94 cents. See §16–952 (West Supp. 2010). Once the publicly financed candidate has received three times the amount of the initial disbursement, he gets no further public funding, see ibid., and remains barred from receiving private contributions, no matter how much more his privately funded opponent spends, see §16–941(A).

This arrangement, like the lump-sum model, makes use of a pre-set amount to provide financial support to participants. For example, all publicly funded legislative candidates collect an initial grant of $21,479 for a general election race. And they can in no circumstances receive more than three times that amount ($64,437); after that, their privately funded competitors hold a marked advantage. But the Arizona system improves on the lump-sum model in a crucial respect. By tying public funding to private spending, the State can afford to set a more generous upper limit—because it knows that in each campaign it will only have to disburse what is necessary to keep a participating candidate reasonably competitive. Arizona can therefore assure candidates that, if they accept public funds, they will have the resources to run a viable race against those who rely on private money. And at the same time, Arizona avoids wasting taxpayers’ dollars. In this way, the Clean Elections Act creates an effective and sustainable public financing system.

The question here is whether this modest adjustment to the public financing program that we approved in Buckley makes the Arizona law unconstitutional. The majority contends that the matching funds provision “substantially burdens protected political speech” and does not “serv[e] a compelling state interest.” Ante, at 2. But the Court is wrong on both counts.

II

Arizona’s statute does not impose a “restriction,” ante, at 15, or “substantia[l] burde[n],” ante, at 2, on expression. The law has quite the opposite effect: It subsidizes and so produces more political speech. We recognized in Buckley that, for this reason, public financing of elections “facilitate[s] and enlarge[s] public discussion,” in support of First Amendment values. 424 U. S., at 92–93. And what we said then is just as true today. Except in a world gone topsy-turvy, additional campaign speech and electoral competition is not a First Amendment injury.

A

At every turn, the majority tries to convey the impression that Arizona’s matching fund statute is of a piece with laws prohibiting electoral speech. The majority invokes the language of “limits,” “bar[s],” and “restraints.” Ante, at 8–9. It equates the law to a “restrictio[n] on the amount of money a person or group can spend on political communication during a campaign.” Ante, at 15 (internal quotation marks omitted). It insists that the statute “restrict[s] the speech of some elements of our society” to enhance the speech of others. Ibid. (internal quotation marks omitted). And it concludes by reminding us that the point of the First Amendment is to protect “against unjustified government restrictions on speech.” Ante, at 29.

There is just one problem. Arizona’s matching funds provision does not restrict, but instead subsidizes, speech. The law “impose[s] no ceiling on [speech] and do[es] not prevent anyone from speaking.” Citizens United v. Federal Election Comm’n, 558 U. S. ___, ___ (2010) (slip op., at 51) (citation and internal quotation marks omitted); see Buckley, 424 U. S., at 92 (holding that a public financing law does not “abridge, restrict, or censor” expression). The statute does not tell candidates or their supporters how much money they can spend to convey their message, when they can spend it, or what they can spend it on. Rather, the Arizona law, like the public financing statute in Buckley, provides funding for political speech, thus “facilitat[ing] communication by candidates with the electorate.” Id., at 91. By enabling participating candidates to respond to their opponents’ expression, the statute expands public debate, in adherence to “our tradition that more speech, not less, is the governing rule.” Citizens United, 558 U. S., at ___ (slip op., at 45). What the law does—all the law does—is fund more speech.2

And under the First Amendment, that makes all the difference. In case after case, year upon year, we have distinguished between speech restrictions and speech subsidies. “ ‘There is a basic difference,’ ” we have held, “ ‘between direct state interference with [First Amendment] protected activity and state encouragement’ ” of other expression. Rust v. Sullivan, 500 U. S. 173, 193 (1991) (quoting Maher v. Roe, 432 U. S. 464, 475 (1977)); see also, e.g., Federal Election Comm’n v. Massachusetts Citizens for Life, Inc., 479 U. S. 238, 256, n. 9 (1986); Regan v. Taxation With Representation of Wash., 461 U. S. 540, 550 (1983); National Endowment for Arts v. Finley, 524 U. S. 569, 587–588 (1998); id., at 599 (SCALIA, J., concurring in judgment) (noting the “fundamental divide” between “ ‘abridging’ speech and funding it”). Government subsidies of speech, designed “to stimulate . . . expression[,] . . . [are] consistent with the First Amendment,” so long as they do not discriminate on the basis of viewpoint. Board of Regents of Univ. of Wis. System v. Southworth, 529 U. S. 217, 234 (2000); see, e.g., Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 834 (1995); Finley, 524 U. S., at 587–588. That is because subsidies, by definition and contra the majority, do not restrict any speech.

No one can claim that Arizona’s law discriminates against particular ideas, and so violates the First Amendment’s sole limitation on speech subsidies. The State throws open the doors of its public financing program to all candidates who meet minimal eligibility requirements and agree not to raise private funds. Republicans and Democrats, conservatives and liberals may participate; so too, the law applies equally to independent expenditure groups across the political spectrum. Arizona disburses funds based not on a candidate’s (or supporter’s) ideas, but on the candidate’s decision to sign up for public funding. So under our precedent, Arizona’s subsidy statute should easily survive First Amendment scrutiny.3

This suit, in fact, may merit less attention than any challenge to a speech subsidy ever seen in this Court. In the usual First Amendment subsidy case, a person complains that the government declined to finance his speech, while bankrolling someone else’s; we must then decide whether the government differentiated between these speakers on a prohibited basis—because it preferred one speaker’s ideas to another’s. See, e.g., id., at 577–578; Regan, 461 U. S., at 543–545. But the candidates bringing this challenge do not make that claim—because they were never denied a subsidy. Arizona, remember, offers to support any person running for state office. Petitioners here refused that assistance. So they are making a novel argument: that Arizona violated their First Amendment rights by disbursing funds to other speakers even though they could have received (but chose to spurn) the same financial assistance. Some people might call that chutzpah.

Indeed, what petitioners demand is essentially a right to quash others’ speech through the prohibition of a (universally available) subsidy program. Petitioners are able to convey their ideas without public financing—and they would prefer the field to themselves, so that they can speak free from response. To attain that goal, they ask this Court to prevent Arizona from funding electoral speech—even though that assistance is offered to every state candidate, on the same (entirely unobjectionable) basis. And this Court gladly obliges.

If an ordinary citizen, without the hindrance of a law degree, thought this result an upending of First Amendment values, he would be correct. That Amendment protects no person’s, nor any candidate’s, “right to be free from vigorous debate.” Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal., 475 U. S. 1, 14 (1986) (plurality opinion). Indeed, the Amendment exists so that this debate can occur—robust, forceful, and contested. It is the theory of the Free Speech Clause that “falsehood and fallacies” are exposed through “discussion,” “education,” and “more speech.” Whitney v. California, 274 U. S. 357, 377 (1927) (Brandeis, J., concurring). Or once again from Citizens United: “[M]ore speech, not less, is the governing rule.” 558 U. S., at ___ (slip op., at 45). And this is no place more true than in elections, where voters’ ability to choose the best representatives depends on debate—on charge and countercharge, call and response. So to invalidate a statute that restricts no one’s speech and discriminates against no idea—that only provides more voices, wider discussion, and greater competition in elections—is to undermine, rather than to enforce, the First Amendment.4 We said all this in Buckley, when we upheld the presidential public financing system—a ruling this Court has never since questioned. The principal challenge to that system came from minor-party candidates not eligible for benefits—surely more compelling plaintiffs than petitioners, who could have received funding but refused it. Yet we rejected that attack in part because we understood the federal program as supporting, rather than interfering with, expression. See 424 U. S., at 90–108; see also Regan, 461 U. S., at 549 (relying on Buckley to hold that selective subsidies of expression comport with the First Amendment if they are viewpoint neutral). Buckley rejected any idea, along the lines the majority proposes, that a subsidy of electoral speech was in truth a restraint. And more: Buckley recognized that public financing of elections fosters First Amendment principles. “[T]he central purpose of the Speech and Press Clauses,” we explained, “was to assure a society in which ‘uninhibited, robust, and wideopen’ public debate concerning matters of public interest would thrive, for only in such a society can a healthy representative democracy flourish.” 424 U. S., at 93, n. 127 (quoting New York Times, 376 U. S., at 270). And we continued: “[L]aws providing financial assistance to the exercise of free speech”—including the campaign finance statute at issue—“enhance these First Amendment values.” 424 U. S., at 93, n. 127. We should be saying the same today.

B

The majority has one, and only one, way of separating this case from Buckley and our other, many precedents involving speech subsidies. According to the Court, the special problem here lies in Arizona’s matching funds mechanism, which the majority claims imposes a “substantia[l] burde[n]” on a privately funded candidate’s speech. Ante, at 2. Sometimes, the majority suggests that this “burden” lies in the way the mechanism “ ‘diminish[es] the effectiveness’ ” of the privately funded candidate’s expression by enabling his opponent to respond. Ante, at 10 (quoting Davis v. Federal Election Comm’n, 554 U. S. 724, 736 (2008)); see ante, at 21–22. At other times, the majority indicates that the “burden” resides in the deterrent effect of the mechanism: The privately funded candidate “might not spend money” because doing so will trigger matching funds. Ante, at 20. Either way, the majority is wrong to see a substantial burden on expression.5

Most important, and as just suggested, the very notion that additional speech constitutes a “burden” is odd and unsettling. Here is a simple fact: Arizona imposes nothing remotely resembling a coercive penalty on privately funded candidates. The State does not jail them, fine them, or subject them to any kind of lesser disability. (So the majority’s analogies to a fine on speech, ante, at 19, 28, are inapposite.) The only “burden” in this case comes from the grant of a subsidy to another person, and the opportunity that subsidy allows for responsive speech. But that means the majority cannot get out from under our subsidy precedents. Once again: We have never, not once, understood a viewpoint-neutral subsidy given to one speaker to constitute a First Amendment burden on another. (And that is so even when the subsidy is not open to all, as it is here.) Yet in this case, the majority says that the prospect of more speech—responsive speech, competitive speech, the kind of speech that drives public debate—counts as a constitutional injury. That concept, for all the reasons previously given, is “wholly foreign to the First Amendment.” Buckley, 424 U. S., at 49.

But put to one side this most fundamental objection to the majority’s argument; even then, has the majority shown that the burden resulting from the Arizona statute is “substantial”? See Clingman v. Beaver, 544 U. S. 581, 592 (2005) (holding that stringent judicial review is “appropriate only if the burden is severe”). I will not quarrel with the majority’s assertion that responsive speech by one candidate may make another candidate’s speech less effective, see ante, at 21–22; that, after all, is the whole idea of the First Amendment, and a benefit of having more responsive speech. See Abrams v. United States, 250 U. S. 616, 630 (1919) (Holmes., J., dissenting) (“[T]he best test of truth is the power of the thought to get itself accepted in the competition of the market”). And I will assume that the operation of this statute may on occasion deter a privately funded candidate from spending money, and conveying ideas by that means.6 My guess is that this does not happen often: Most political candidates, I suspect, have enough faith in the power of their ideas to prefer speech on both sides of an issue to speech on neither. But I will take on faith that the matching funds provision may lead one or another privately funded candidate to stop spending at one or another moment in an election. Still, does that effect count as a severe burden on expression? By the measure of our prior decisions—which have upheld campaign reforms with an equal or greater impact on speech—the answer is no.

Number one: Any system of public financing, including the lump-sum model upheld in Buckley, imposes a similar burden on privately funded candidates. Suppose Arizona were to do what all parties agree it could under Buckley— provide a single upfront payment (say, $150,000) to a participating candidate, rather than an initial payment (of $50,000) plus 94% of whatever his privately funded opponent spent, up to a ceiling (the same $150,000). That system would “diminis[h] the effectiveness” of a privately funded candidate’s speech at least as much, and in the same way: It would give his opponent, who presumably would not be able to raise that sum on his own, more money to spend. And so too, a lump-sum system may deter speech. A person relying on private resources might well choose not to enter a race at all, because he knows he will face an adequately funded opponent. And even if he decides to run, he likely will choose to speak in different ways—for example, by eschewing dubious, easy-to-answer charges—because his opponent has the ability to respond. Indeed, privately funded candidates may well find the lump-sum system more burdensome than Arizona’s (assuming the lump is big enough). Pretend you are financing your campaign through private donations. Would you prefer that your opponent receive a guaranteed, upfront payment of $150,000, or that he receive only $50,000, with the possibility—a possibility that you mostly get to control—of collecting another $100,000 somewhere down the road? Me too. That’s the first reason the burden on speech cannot command a different result in this case than in Buckley.

Number two: Our decisions about disclosure and disclaimer requirements show the Court is wrong. Starting in Buckley and continuing through last Term, the Court has repeatedly declined to view these requirements as a substantial First Amendment burden, even though they discourage some campaign speech. “It is undoubtedly true,” we stated in Buckley, that public disclosure obligations “will deter some individuals” from engaging in expressive activity. 424 U. S., at 68; see Davis, 554 U. S., at 744. Yet we had no difficulty upholding these requirements there. And much more recently, in Citizens United and Doe v. Reed, 561 U. S. ___ (2010), we followed that precedent.

“ ‘Disclosure requirements may burden the ability to speak,” we reasoned, but they “do not prevent anyone from speaking.’ ” Id., at ___ (slip op., at 7) (quoting Citizens United, 558 U. S., at ___ (slip op., at 51)). So too here. Like a disclosure rule, the matching funds provision may occasionally deter, but “impose[s] no ceiling” on electoral expression. Id., at ___ (slip op., at 51).

The majority breezily dismisses this comparison, labeling the analogy “not even close” because disclosure requirements result in no payment of money to a speaker’s opponent. Ante, at 18. That is indeed the factual distinction: A matching fund provision, we can all agree, is not a disclosure rule. But the majority does not tell us why this difference matters. Nor could it. The majority strikes down the matching funds provision because of its ostensible effect—most notably, that it may deter a person from spending money in an election. But this Court has acknowledged time and again that disclosure obligations have the selfsame effect. If that consequence does not trigger the most stringent judicial review in the one case, it should not do so in the other.

Number three: Any burden that the Arizona law imposes does not exceed the burden associated with contribution limits, which we have also repeatedly upheld. Contribution limits, we have stated, “impose direct quantity restrictions on political communication and association,” Buckley, 424 U. S., at 18 (emphasis added), thus “ ‘significant[ly] interfer[ing]’ ” with First Amendment interests, Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 387 (2000) (quoting Buckley, 424 U. S., at 25). Rather than potentially deterring or “ ‘diminish[ing] the effectiveness’ ” of expressive activity, ante, at 10 (quoting Davis, 554 U. S., at 736), these limits stop it cold. Yet we have never subjected these restrictions to the most stringent review. See Buckley, 424 U. S., at 29–38. I doubt I have to reiterate that the Arizona statute imposes no restraints on any expressive activity. So the majority once again has no reason here to reach a different result.

In this way, our campaign finance cases join our speech subsidy cases in supporting the constitutionality of Arizona’s law. Both sets of precedents are in accord that a statute funding electoral speech in the way Arizona’s does imposes no First Amendment injury. Federal Election Comm’n, 554 U. S. 724—and it pegs everything on that decision. See ante, at 9–12. But Davis relies on principles that fit securely within our First Amendment law and tradition—most unlike today’s opinion.

As the majority recounts, Davis addressed the constitutionality of federal legislation known as the Millionaire’s Amendment. Under that provision (which applied in elections not involving public financing), a candidate’s expenditure of more than $350,000 of his own money activated a change in applicable contribution limits. Before, each candidate in the race could accept $2,300 from any donor; but now, the opponent of the self-financing candidate could accept three times that much, or up to $6,900 per contributor. So one candidate’s expenditure of personal funds on campaign speech triggered discriminatory contribution restrictions favoring that candidate’s opponent.

Under the First Amendment, the similarity between Davis and this case matters far less than the differences. Here is the similarity: In both cases, one candidate’s campaign expenditure triggered . . . something. Now here are the differences: In Davis, the candidate’s expenditure triggered a discriminatory speech restriction, which Congress could not otherwise have imposed consistent with the First Amendment; by contrast, in this case, the candidate’s expenditure triggers a non-discriminatory speech subsidy, which all parties agree Arizona could have provided in the first instance. In First Amendment law, that difference makes a difference—indeed, it makes all the difference. As I have indicated before, two great fault lines run through our First Amendment doctrine: one, between speech restrictions and speech subsidies, and the other, between discriminatory and neutral government action. See supra, at 10–11. The Millionaire’s Amendment fell on the disfavored side of both divides: To reiterate, it imposed a discriminatory speech restriction. The Arizona Clean Elections Act lands on the opposite side of both: It grants a non-discriminatory speech subsidy.7 So to say that Davis “largely controls” this case, ante, at 10, is to decline to take our First Amendment doctrine seriously.

And let me be clear: This is not my own idiosyncratic or post hoc view of Davis; it is the Davis Court’s selfexpressed, contemporaneous view. That decision began, continued, and ended by focusing on the Millionaire Amendment’s “discriminatory contribution limits.” 554 U. S., at 740. We made that clear in the very first sentence of the opinion, where we summarized the question presented. Id., at 728 (“In this appeal, we consider the constitutionality of federal election law provisions that . . . impose different campaign contribution limits on candidates”). And our focus on the law’s discriminatory restrictions was evident again when we examined how the Court’s prior holdings informed the case. Id., at 738 (“We have never upheld the constitutionality of a law that imposes different contribution limits for candidates”). And then again, when we concluded that the Millionaire’s Amendment could not stand. Id., at 740 (explaining that the “the activation of a scheme of discriminatory contribution limits” burdens speech). Our decision left no doubt (because we repeated the point many times over, see also id., at 729, 730, 739, 740, n. 7, 741, 744): The constitutional problem with the Millionaire’s Amendment lay in its use of discriminatory speech restrictions. But what of the trigger mechanism—in Davis, as here, a candidate’s campaign expenditures? That, after all, is the only thing that this case and Davis share. If Davis had held that the trigger mechanism itself violated the First Amendment, then the case would support today’s holding. But Davis said nothing of the kind. It made clear that the trigger mechanism could not rescue the discriminatory contribution limits from constitutional invalidity; that the limits went into effect only after a candidate spent substantial personal resources rendered them no more permissible under the First Amendment. See id., at 739. But Davis did not call into question the trigger mechanism itself. Indeed, Davis explained that Congress could have used that mechanism to activate a non-discriminatory (i.e., across-the-board) increase in contribution limits; in that case, the Court stated, “Davis’ argument would plainly fail.” Id., at 737.8 The constitutional infirmity in Davis was not the trigger mechanism, but rather what lay on the other side of it—a discriminatory speech restriction.

The Court’s response to these points is difficult to fathom. The majority concedes that “our decision in Davis focused on the asymmetrical contribution limits imposed by the Millionaire’s Amendment.” Ante, at 14. That was because, the majority explains, Davis presented only that issue. See ante, at 14. And yet, the majority insists (without explaining how this can be true), the reach of Davis is not so limited. And in any event, the majority claims, the burden on speech is “greater in this case than in Davis.” Ante, at 14. But for reasons already stated, that is not so. The burden on speech in Davis—the penalty that campaign spending triggered—was the discriminatory contribution restriction, which Congress could not otherwise have imposed. By contrast, the thing triggered here is a non-discriminatory subsidy, of a kind this Court has approved for almost four decades. Maybe the majority is saying today that it had something like this case in mind all the time. But nothing in the logic of Davis controls this decision.9

III

For all these reasons, the Court errs in holding that the government action in this case substantially burdens speech and so requires the State to offer a compelling interest. But in any event, Arizona has come forward with just such an interest, explaining that the Clean Elections Act attacks corruption and the appearance of corruption in the State’s political system. The majority’s denigration of this interest—the suggestion that it either is not real or does not matter—wrongly prevents Arizona from protecting the strength and integrity of its democracy. compelling government interest. See, e.g., Davis, 554 U. S., at 741; Federal Election Comm’n v. National Conservative Political Action Comm., 470 U. S. 480, 496–497 (1985) (NCPAC). And so too, these precedents are clear: Public financing of elections serves this interest. See supra, at 4–5. As Buckley recognized, and as I earlier described, public financing “reduce[s] the deleterious influence of large contributions on our political process.” 424 U. S., at 91; see id., at 96. When private contributions fuel the political system, candidates may make corrupt bargains to gain the money needed to win election. See NCPAC, 470 U. S., at 497. And voters, seeing the dependence of candidates on large contributors (or on bundlers of smaller contributions), may lose faith that their representatives will serve the public’s interest. See Shrink Missouri, 528 U. S., at 390 (the “assumption that large donors call the tune [may] jeopardize the willingness of voters to take part in democratic governance”). Public financing addresses these dangers by minimizing the importance of private donors in elections. Even the majority appears to agree with this premise. See ante, at 27 (“We have said that . . . ‘public financing as a means of eliminating the improper influence of large private contributions furthers a significant governmental interest’ ”).

This compelling interest appears on the very face of Arizona’s public financing statute. Start with the title: The Citizens Clean Elections Act. Then proceed to the statute’s formal findings. The public financing program, the findings state, was “inten[ded] to create a clean elections system that will improve the integrity of Arizona state government by diminishing the influence of specialinterest money.” §16–940(A) (West 2006). That measure was needed because the prior system of private fundraising had “[u]ndermine[d] public confidence in the integrity of public officials;” allowed those officials “to accept large campaign contributions from private interests over which they [had] governmental jurisdiction;” favored “a small number of wealthy special interests” over “the vast majority of Arizona citizens;” and “[c]os[t] average taxpayers millions of dollars in the form of subsidies and special privileges for campaign contributors.” §16–940(B).10 The State, appearing before us, has reiterated its important anti-corruption interest. The Clean Elections Act, the State avers, “deters quid pro quo corruption and the appearance of corruption by providing Arizona candidates with an option to run for office without depending on outside contributions.” Brief for State Respondents 19. And so Arizona, like many state and local governments, has implemented public financing on the theory (which this Court has previously approved, see supra, at 5), that the way to reduce political corruption is to diminish the role of private donors in campaigns.11

And that interest justifies the matching funds provision at issue because it is a critical facet of Arizona’s public financing program. The provision is no more than a disbursement mechanism; but it is also the thing that makes the whole Clean Elections Act work. As described earlier, see supra, at 5–6, public financing has an Achilles heel— the difficulty of setting the subsidy at the right amount. Too small, and the grant will not attract candidates to the program; and with no participating candidates, the program can hardly decrease corruption. Too large, and the system becomes unsustainable, or at the least an unnecessary drain on public resources. But finding the sweet-spot is near impossible because of variation, across districts and over time, in the political system. Enter the matching funds provision, which takes an ordinary lump-sum amount, divides it into thirds, and disburses the last two of these (to the extent necessary) via a self-calibrating mechanism. That provision is just a fine-tuning of the lump-sum program approved in Buckley—a fine-tuning, it bears repeating, that prevents no one from speaking and discriminates against no message. But that fine-tuning can make the difference between a wholly ineffectual program and one that removes corruption from the political system.12 If public financing furthers a compelling interest—and according to this Court, it does—then so too does the disbursement formula that Arizona uses to make public financing effective. The one conclusion follows directly from the other. Except in this Court, where the inescapable logic of the State’s position is . . . virtually ignored. The Court, to be sure, repeatedly asserts that the State’s interest in preventing corruption does not “sufficiently justif[y]” the mechanism it has chosen to disburse public moneys. Ante, at 28; see ante, at 27. Only one thing is missing from the Court’s response: any reasoning to support this conclusion. Nowhere does the majority dispute the State’s view that the success of its public financing system depends on the matching funds mechanism; and nowhere does the majority contest that, if this mechanism indeed spells the difference between success and failure, the State’s interest in preventing corruption justifies its use. And so the majority dismisses, but does not actually answer the State’s contention—even though that contention is the linchpin of the entire case. Assuming (against reason and precedent) that the matching funds provision substantially burdens speech, the question becomes whether the State has offered a sufficient justification for imposing that burden. Arizona has made a forceful argument on this score, based on the need to establish an effective public financing system. The majority does not even engage that reasoning.

B

The majority instead devotes most of its energy to trying to show that “level[ing] the playing field,” not fighting corruption, was the State’s real goal. Ante, at 22–23 (internal quotation marks omitted); see ante, at 22–24. But the majority’s distaste for “leveling” provides no excuse for striking down Arizona’s law. the State has asserted in this Court; it is the interest predominantly expressed in the “findings and declarations” section of the statute; and it is the interest universally understood (stretching back to Teddy Roosevelt’s time) to support public financing of elections. See supra, at 4, 23–24. As against all this, the majority claims to have found three smoking guns that reveal the State’s true (and nefarious) intention to level the playing field. But the only smoke here is the majority’s, and it is the kind that goes with mirrors.

The majority first observes that the matching funds provision is titled “ ‘Equal funding of candidates’ ” and that it refers to matching grants as “ ‘equalizing funds.’ ” Ante, at 23 (quoting §16–952). Well, yes. The statute provides for matching funds (above and below certain thresholds); a synonym for “match” is “equal”; and so the statute uses that term. In sum, the statute describes what the statute does. But the relevant question here (according to the majority’s own analysis) is why the statute does that thing—otherwise said, what interest the statute serves. The State explains that its goal is to prevent corruption, and nothing in the Act’s descriptive terms suggests any other objective.

Next, the majority notes that the Act allows participating candidates to accept private contributions if (but only if) the State cannot provide the funds it has promised (for example, because of a budget crisis). Ante, at 23 (citing §16–954(F)). That provision, the majority argues, shows that when push comes to shove, the State cares more about “leveling” than about fighting corruption. Ante, at 23. But this is a plain misreading of the law. All the statute does is assure participating candidates that they will not be left in the lurch if public funds suddenly become unavailable. That guarantee helps persuade candidates to enter the program by removing the risk of a state default. And so the provision directly advances the Act’s goal of combating corruption.

Finally, the Court remarks in a footnote that the Clean Elections Commission’s website once stated that the “ ‘Act was passed by the people of Arizona . . . to level the playing field.’ ” Ante, at 24, n. 10. I can understand why the majority does not place much emphasis on this point. Some members of the majority have ridiculed the practice of relying on subsequent statements by legislators to demonstrate an earlier Congress’s intent in enacting a statute. See, e.g., Sullivan v. Finkelstein, 496 U. S. 617, 631–632 (1990) (SCALIA, J., concurring in part); United States v. Hayes, 555 U. S. 415, 434–435 (2009) (ROBERTS, C. J., dissenting). Yet here the majority makes a much stranger claim: that a statement appearing on a government website in 2011 (written by who-knows-whom?) reveals what hundreds of thousands of Arizona’s voters sought to do in 1998 when they enacted the Clean Elections Act by referendum. Just to state that proposition is to know it is wrong.

So the majority has no evidence—zero, none—that the objective of the Act is anything other than the interest that the State asserts, the Act proclaims, and the history of public financing supports: fighting corruption.

2

But suppose the majority had come up with some evidence showing that Arizona had sought to “equalize electoral opportunities.” Ante, at 24. Would that discovery matter? Our precedent says no, so long as Arizona had a compelling interest in eliminating political corruption (which it clearly did). In these circumstances, any interest of the State in “leveling” should be irrelevant. That interest could not support Arizona’s law (assuming the law burdened speech), but neither would the interest invalidate the legislation.

To see the point, consider how the matter might arise. Assume a State has two reasons to pass a statute affecting speech. It wants to reduce corruption. But in addition, it wishes to “level the playing field.” Under our First Amendment law, the interest in preventing corruption is compelling and may justify restraints on speech. But the interest in “leveling the playing field,” according to wellestablished precedent, cannot support such legislation.13 So would this statute (assuming it met all other constitutional standards) violate the First Amendment?

The answer must be no. This Court, after all, has never said that a law restricting speech (or any other constitutional right) demands two compelling interests. One is enough. And this statute has one: preventing corruption. So it does not matter that equalizing campaign speech is an insufficient interest. The statute could violate the First Amendment only if “equalizing” qualified as a forbidden motive—a motive that itself could annul an otherwise constitutional law. But we have never held that to be so. And that should not be surprising: It is a “fundamental principle of constitutional adjudication,” from which we have deviated only in exceptional cases, “that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive.” United States v. O’Brien, 391 U. S. 367, 383 (1968); see id., at 384 (declining to invalidate a statute when “Congress had the undoubted power to enact” it without the suspect motive); accord, Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 652 (1994); Renton v. Playtime Theatres, Inc., 475 U. S. 41, 47–48 (1986). When a law is otherwise constitutional—when it either does not restrict speech or rests on an interest sufficient to justify any such restriction—that is the end of the story.

That proposition disposes of this case, even if Arizona had an adjunct interest here in equalizing electoral opportunities. No special rule of automatic invalidation applies to statutes having some connection to equality; like any other laws, they pass muster when supported by an important enough government interest. Here, Arizona has demonstrated in detail how the matching funds provision is necessary to serve a compelling interest in combating corruption. So the hunt for evidence of “leveling” is a waste of time; Arizona’s law survives constitutional scrutiny no matter what that search would uncover.

IV

This case arose because Arizonans wanted their government to work on behalf of all the State’s people. On the heels of a political scandal involving the near-routine purchase of legislators’ votes, Arizonans passed a law designed to sever political candidates’ dependence on large contributors. They wished, as many of their fellow Americans wish, to stop corrupt dealing—to ensure that their representatives serve the public, and not just the wealthy donors who helped put them in office. The legislation that Arizona’s voters enacted was the product of deep thought and care. It put into effect a public financing system that attracted large numbers of candidates at a sustainable cost to the State’s taxpayers. The system discriminated against no ideas and prevented no speech. Indeed, by increasing electoral competition and enabling a wide range of candidates to express their views, the system “further[ed] . . . First Amendment values.” Buckley, 424 U. S., at 93 (citing New York Times, 376 U. S., at 270). Less corruption, more speech. Robust campaigns leading to the election of representatives not beholden to the few, but accountable to the many. The people of Arizona might have expected a decent respect for those objectives.

Today, they do not get it. The Court invalidates Arizonans’ efforts to ensure that in their State, “ ‘[t]he people . . . possess the absolute sovereignty.’ ” Id., at 274 (quoting James Madison in 4 Elliot’s Debates on the Federal Constitution 569–570 (1876)). No precedent compels the Court to take this step; to the contrary, today’s decision is in tension with broad swaths of our First Amendment doctrine. No fundamental principle of our Constitution backs the Court’s ruling; to the contrary, it is the law struck down today that fostered both the vigorous competition of ideas and its ultimate object—a government responsive to the will of the people. Arizonans deserve better. Like citizens across this country, Arizonans deserve a government that represents and serves them all. And no less, Arizonans deserve the chance to reform their electoral system so as to attain that most American of goals.

Truly, democracy is not a game. See ante, at 25. respectfully dissent. I

1 The problem is apparent in the federal system. In recent years, the number of presidential candidates opting to receive public financing has declined because the subsidy has not kept pace with spending by privately financed candidates. See Corrado, Public Funding of Presidential Campaigns, in The New Campaign Finance Sourcebook 180, 200 (A. Corrado, T. Mann, D. Ortiz, & T. Potter eds. 2005). The last election cycle offers a stark example: Then-candidate Barack Obama raised $745.7 million in private funds in 2008, Federal Election Commission, 2008 Presidential Campaign Financial Activity Summarized, June 8, 2009, online at http://www.fec.gov/press/press2009/ 20090608PresStat.shtml, in contrast with the $105.4 million he could have received in public funds, see Federal Election Commission, Presidential Election Campaign Fund, online at http://www.fec.gov/press/ bkgnd/fund.shtml (all Internet materials as visited June 24, 2011, and available in Clerk of Court’s case file).

2 And the law appears to do that job well. Between 1998 (when the statute was enacted) and 2006, overall candidate expenditures increased between 29% and 67%; overall independent expenditures rose by a whopping 253%; and average candidate expenditures grew by 12% to 40%. App. to Pet. for Cert. in No. 10–239, pp. 284–285; App. 916– 917.

3 The majority claims that none of our subsidy cases involved the funding of “respons[ive]” expression. See ante, at 17. But the majority does not explain why this distinction, created to fit the facts of this case, should matter so long as the government is not discriminating on the basis of viewpoint. Indeed, the difference the majority highlights should cut in the opposite direction, because facilitating responsive speech fosters “uninhibited, robust, and wide-open” public debate. New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964). In any event, the majority is wrong to say that we have never approved funding to “allow the recipient to counter” someone else’s political speech. Ante, at 17. That is exactly what we approved in Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam). See supra, at 5. The majority notes that the public financing scheme in Buckley lacked the trigger mechanism used in the Arizona law. See ante, at 17, n. 9. But again, that is just to describe a difference, not to say why it matters. As I will show, the trigger is constitutionally irrelevant—as we made clear in the very case (Davis v. Federal Election Comm’n, 554 U. S. 724 (2008)) on which the majority principally relies. See infra, at 17–19, 21–22. expenditure caps. Other candidates accept public financing because they believe it will enhance their communication with voters. So the system continually pushes toward more speech. That is exactly what has happened in Arizona, see n. 2, supra, and the majority offers no counter-examples.

6 I will note, however, that the record evidence of this effect is spotty at best. The majority finds anecdotal evidence supporting its argument on just 6 pages of a 4500-page summary judgment record. See ante, at 18–19. (The majority also cites sections of petitioners’ briefs, which cite the same 6 pages in the record. See ante, at 19.) That is consistent with the assessment of the District Court Judge who presided over the proceedings in this case: He stated that petitioners had presented only “vague” and “scattered” evidence of the law’s deterrent impact. App. to

8 Notably, the Court found this conclusion obvious even though an across-the-board increase in contribution limits works to the comparative advantage of the non-self-financing candidate—that is, the candidate who actually depends on contributions. Such a system puts the self-financing candidate to a choice: Do I stop spending, or do I allow the higher contribution limits (which will help my opponent) to kick in? That strategic choice parallels the one that the Arizona statute forces. See supra, at 15.

9 The majority also briefly relies on Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974), but that case is still wider of the mark. There, we invalidated a law compelling newspapers (by threat of criminal sanction) to print a candidate’s rejoinder to critical commentary. That law, we explained, overrode the newspaper’s own editorial judgment and forced the paper both to pay for and to convey a message with which it disagreed. See id., at 256–258. An analogy might be if Arizona forced privately funded candidates to purchase their opponents’ posters, and then to display those posters in their own campaign offices. But that is very far from this case. The Arizona statute does not require petitioners to disseminate or fund any opposing speech; nor does it in any way associate petitioners with that speech.

12 For this reason, the majority is quite wrong to say that the State’s interest in combating corruption does not support the matching fund provision’s application to a candidate’s expenditure of his own money or to an independent expenditure. Ante, at 25–26. The point is not that these expenditures themselves corrupt the political process. Rather, Arizona includes these, as well as all other, expenditures in the program to ensure that participating candidates receive the funds necessary to run competitive races—and so to attract those candidates in the first instance. That is in direct service of the State’s anti-corruption interest.

13 I note that this principle relates only to actions restricting speech. See Buckley, 424 U. S., at 48–49 (rejecting the notion “that government may restrict the speech of some . . . to enhance the relative voice of others”). As previously explained, speech subsidies stand on a different constitutional footing, see supra, at 10–11; so long as the government remains neutral among viewpoints, it may choose to assist the speech of persons who might not otherwise be heard. But here I am assuming for the sake of argument that the Clean Elections Act imposes the kind of restraint on expression requiring that the State show a compelling interest.

Print this transcript Transcript: 

ORAL ARGUMENT OF WILLIAM R. MAURER ON BEHALF OF THE PETITIONERS

Chief Justice John G. Roberts: We will hear argument first this morning in Case 10-238, Arizona Free Enterprise Club's Freedom Club PAC v. Bennett and the consolidated case.

Mr. Maurer.

Mr. Maurer: Mr. Chief Justice, and may it please the Court:

This case is about whether the government may insert itself into elections and manipulate campaign spending to favor its preferred candidates.

Arizona does this in a manner that is even more burdensome to free speech than the law at issue in Davis v. FEC.

Arizona burdens the law of three groups that pose no threat of corruption under this Court's precedents: Independent expenditure groups, self-financed candidates, and candidates who raise private funds under one of the lowest contribution limits in the Nation.

Under Davis v. FEC and this Court's well-established precedents, the matching funds provision is unconstitutional and should be struck down.

Justice Ruth Bader Ginsburg: Mr. Maurer, you -- you don't have any objection, you wouldn't have any objection, if Arizona trebled the amount at the outset?

In other words, there was a maximum amount, the so-called matching funds; if it were given all in one lump and the publicly funded candidate was told, give it back if you don't use it, that would be okay?

Mr. Maurer: That would be constitutional under Davis, Your Honor.

This case is not about whether the State of Arizona may provide campaign financing using public funds, nor is it about whether -- the ability of Arizona to ensure that those who receive the public funds can run effective campaigns.

What this case is about is whether the government can turn my act of speaking into the vehicle by which my political opponents benefit with direct government subsidies.

Justice Elena Kagan: Could I try to understand that argument a little bit better, Mr. Maurer?

Suppose -- and I know that you think this is not the case, but just bear with the hypothetical.

Suppose that there were, in fact, no deterrent effect on your speech or on the speech of any candidate; in other words, that people thought, well, you know, I would rather be -- have me be the only person who talks, but -- but I would rather talk than be silent, even if it means my opponent can talk, too, so that there's no deterrent effect from this law whatsoever.

Would there still be a constitutional objection?

Mr. Maurer: Your Honor, in Davis this Court recognized that a trigger like this, a -- the law that turns the choice of -- my choice to speak effectively into fundraising advantages for my opponents constitutes a substantial burden.

So even if candidates continue to speak, the law constitutes a substantial burden on their speech.

Justice Elena Kagan: Well, it constitutes a substantial burden, so even if every single person makes a choice, yes, I want to continue to speak, it does not chill any speak -- any speech.

I suppose I'm not sure what it means to constitute a substantial burden if, in fact, the law does not chill speech.

Mr. Maurer: Well, Your -- Your Honor, this Court in Davis recognized that when the government reaches into a campaign and attempts to manipulate campaign financing in order to -- in order to basically effectuate the outcome, that constitutes a -- an illegitimate governmental purpose.

Justice Antonin Scalia: Mr. Maurer, suppose -- suppose the government imposes a fine of $500 for all political speech, and people nonetheless continue to engage in political speech and pay the $500.

Would that make the $500 penalty for political speech constitutional?

Mr. Maurer: No, it would not, Your Honor.

Justice Elena Kagan: But, in fact, there's no such restriction here, is there, Mr. Maurer?

There's no restriction at all here; it's more speech all the way around?

Mr. Maurer: I would disagree with that, respectfully, Your Honor.

There is a restriction here.

Every time an independent expenditure group or a privately financed candidate speaks above a certain amount, the government creates real penalties for them to have engaged in unfettered political expression.

Justice Elena Kagan: Well, doesn't the government actually just give a selective subsidy?

It's not a penalty, it's just saying, in order to -- to run an effective public financing system, when you speak, we're going to give a subsidy over a certain amount.

So the trigger does not trigger a penalty; it triggers a subsidy.

Mr. Maurer: Your Honor, in Davis, this Court recognized that in the context of competitive elections, which are a zero-sum game, what benefits one candidate will burden, necessarily, or harm the other candidate.

Justice Antonin Scalia: Didn't they call it a subsidy in Davis?

I -- if I recall the argument, I think that's what -- what it was characterized as there, too.

Did they characterize it as a penalty?

I doubt it.

Mr. Maurer: In fact, it was not a subsidy in Davis, Your Honor.

The -- the effect of this law is considerably harsher than the law at issue in Davis.

In Davis, the non-millionaires' candidate still had to go out and actually raise the funds that the Millionaires' Amendment permitted him to raise.

In this case, the law provides direct government subsidies, based on my act of speaking, to my political opponents.

Justice Elena Kagan: There is, though, a significant difference between Davis and this case.

What the expenditure triggered in Davis was a discriminatory restriction that would never be allowed in and of itself.

What the law triggers here is something that, as Justice Ginsburg said, the government could do from the get-go, which is subsidize the speech of a candidate who decides to participate in a public financing system.

Mr. Maurer: Well, Your Honor, the -- I would point out that independent expenditure groups do not have that choice of participating in the subsidy or not.

So to the extent that Davis relied on the fact that there was a discriminatory treatment of speakers in the same race, this case -- this law replicates and actually exacerbates the harm that was at issue in Davis.

Justice Elena Kagan: But there's no particular as-applied challenge from independent speakers in this lawsuit, is there?

Mr. Maurer: Yes, there is, Your Honor.

I represent two independent expenditure groups.

Justice Elena Kagan: My -- my understanding was that the suit was brought as a facial challenge to the entire law.

Mr. Maurer: This is a facial and as-applied challenge, Your Honor.

Justice Anthony Kennedy: In -- in this case, do you think the law is content-neutral within its own universe, which applies just to political speech, so it's not content-neutral in that sense?

But within the scheme that it sets up, is it content-neutral?

Mr. Maurer: Absolutely not, Your Honor.

Justice Anthony Kennedy: Why?

Mr. Maurer: Because the only thing that will trigger matching funds, particularly for independent expenditure groups, is the content of the message.

If an independent expenditure group speaks in favor of a privately financed candidate, they will not trigger matching funds.

If they speak against a publicly financed candidate, they will trigger matching funds.

That not is only content-based; it is also a rejection of the standard this Court enunciated in Citizens United that the government cannot make distinguishing burdens on the basis of an identity of a speaker.

Justice Anthony Kennedy: In Justice Ginsburg's hypothetical -- I'm still trying to think about -- suppose there is one candidate for the -- for the pink party, and then three candidates for the orange party, and all three candidates for the orange party received the lump sum Justice Ginsburg was talking about.

But there's only one candidate on the other side, and he has to face, or she has to face, three.

Is that constitutional?

Mr. Maurer: It would not be -- I'm sorry.

It would be constitutional under Davis.

And I -- and I think that the point, Your Honor, is reflected--

Justice Antonin Scalia: I didn't understand the hypothetical.

I really didn't.

Justice Anthony Kennedy: One person is on one side; three people are on the other side.

And under the Arizona law, if the three people on the other side are all participating candidates, each of them gets a bonus if there's only one person speaking on behalf of the non-participating candidate, right?

Mr. Maurer: --Yes, that's absolutely true.

Justice Anthony Kennedy: All right.

So $10,000 by the non-participating candidate triggers off $30,000 against him?

Mr. Maurer: That's exactly right.

Justice Anthony Kennedy: All right.

In Justice Ginsburg's hypothetical, wouldn't you have the same problem in different terms, in that one candidate faces three people, all of whom are funded by the -- by the government?

Mr. Maurer: Well, this case is not challenging a public financing system, and--

Justice Anthony Kennedy: I'm just asking as a theoretical matter whether there would be a constitutional problem in the case that I put under Justice Ginsburg's hypothetical.

Mr. Maurer: --Not under Davis, Your Honor.

Justice Ruth Bader Ginsburg: How about not under Buckley?

Justice Anthony Kennedy: How about under the First Amendment?

Mr. Maurer: There may be -- there may be instances where a public financing law is so lopsided that it creates a coercive effect, and Buckley was quite clear that one of the things that was acceptable about the public financing system at issue in that case was that it was voluntary.

But in this case, we're dealing with a very different type of First Amendment harm.

The trigger matters, Your Honors.

It is, in fact, determinative.

It is exactly the same kind of trigger--

Justice Ruth Bader Ginsburg: I thought that the point of Buckley was that the public funding, which you can accept or reject, the justification for it was that it increased rather than decreased speech.

And the -- I think you were quite right in recognizing that matching funds, this Court has said, do not conflict with the -- with the First Amendment.

Mr. Maurer: --Your Honor, if I -- if I had said that, I was mistaken.

Justice Ruth Bader Ginsburg: Not matching funds.

Public funding.

Mr. Maurer: Oh, okay.

Justice Ruth Bader Ginsburg: Public funding.

And so if it turns out that the States -- public funding isn't being used because -- because the limits are low, and yet the, the State wants to conserve the public fisc.

So instead of just increasing the amount at the outset, it says the -- the -- the object is the same, but we're economizing by not giving it out in one lump sum, we're giving it out in installments.

Mr. Maurer: Your Honor, in Riley v. National Federation of the Blind, this Court recognized that -- that the government cannot sacrifice speech for efficiency, and what -- if -- if we accept the holding of Davis v. FEC and accept that that is still a holding that is viable under the First Amendment, then what the -- the position of the Respondents is, is that they, in fact, can sacrifice free speech in order to be more efficient, but--

Justice Stephen G. Breyer: Can you -- can you tell me on that, because I take it you agree with Justice Ginsburg about Buckley.

In Buckley the Court says, public financing is a means of eliminating the improper influence of large private corporations, furthers a significant government interest.

We both agree that's what it says?

Mr. Maurer: --Yes, that's what Buckley says, Your Honor.

Justice Stephen G. Breyer: I take it that's what it means.

All right.

Now, your objection is how much do they pay.

Mr. Maurer: No.

Justice Stephen G. Breyer: Here they have a trigger, not -- not quantitatively.

But here they say it's okay to finance a public candidate publicly, okay to do that.

Now, what we're going to do is give them a million dollars to start with, up to $3 million to spend, depending on how much their opponents spend.

Now, you think that's unconstitutional?

My question to you is, what would be a constitutional system in your opinion?

Mr. Maurer: Your Honor--

Justice Stephen G. Breyer: That would be helpful.

Mr. Maurer: --Your Honor, in Buckley this Court recognized--

Justice Stephen G. Breyer: I'm not interested in Buckley.

I'm interested in your opinion.

You object to the amount being paid in installments.

What, in your opinion, would be a constitutional system?

I don't need to repeat my question, which I just did, but I want that answer, your answer to that.

Justice Antonin Scalia: I assume your opinion can be based upon Buckley, however.

[Laughter]

Mr. Maurer: --Yes, the presidential financing system is constitutional, Your Honor.

And I would also -- I would also respectfully disagree with your characterization that the -- the nature of our objection has to do with the fact that our opponents are receiving money.

The problem here is not that our -- the opponents of my clients are receiving money.

It's what triggers that, and what triggers that is my exercise of my free speech rights.

Justice Samuel Alito: Would there be anything unconstitutional about a system that worked roughly like this?

At the beginning -- at some point prior to each election cycle, the commission that supervises this law would make a calculation about how much money would be needed for a candidate in a gubernatorial race or a State senate race or an assembly race, if that's what it's called in Arizona, to get that candidate's message out to the electorate, and that would be the amount of the public funding, period.

Mr. Maurer: That would be a constitutional system, Your Honor.

There is no constitutional objection or at least we're not raising any constitutional objection to the idea that there is a -- that public financing means that people can't run effective races.

You can have a public financing system with sufficient funds to run an effective race.

But what you cannot do is exactly what Arizona has done, which is turn my act of speaking into the vehicle by which my political opponents benefit.

Justice Elena Kagan: But that's interesting, Mr. Maurer, because I don't see all that much of a difference between Justice Alito's hypothetical and the facts here.

In other words, you said that Justice Alito's hypothetical would be constitutional, even though under Justice Alito's hypothetical the State is trying to figure out how much money it takes to run a competitive race and giving people who enter the public financing system that amount of money.

That's exactly what the State is doing here, but it's doing it in actually a more accurate way.

So if Justice Alito's hypothetical is constitutional, why isn't this?

They're both trying to do the same thing, which is to put sufficient money in the hands of people who enter the public financing system in order to run a competitive race.

Mr. Maurer: Your Honor, one of the things that would distinguish that is that it -- Justice Alito's hypothetical completely divorces the amount of the grant from my political activity or the political activity of people who don't want to or cannot take public funds in Arizona.

Justice Elena Kagan: Well, I think, to the contrary, in Justice Alito's hypothetical, just the State is estimating how much a person will spend.

Here the State is measuring how much a person will spend.

The only difference is that one is more accurate than the other.

Mr. Maurer: Your Honor, I believe the distinction would lie in the fact that the purpose of this law is not to provide necessarily the ability of candidates to run effective publicly financed campaigns.

The purpose of this law is to limit spending in elections and to level the playing field.

Justice Alito's hypothetical--

Justice Elena Kagan: I think the purpose of this law is to prevent corruption.

That's what the purpose of all public financing systems are.

Mr. Maurer: --Your Honor, I would respectfully disagree that the purpose of this law is to prevent corruption, and I would like to read from the executive director of the Clean Elections Commission who said that:

"It cannot be disputed that the purpose of the Clean Elections Act is to equalize the playing field and to give participating candidates equal opportunity to get their message out. "

which is at Joint Appendix 236.

Justice Elena Kagan: Well, Mr. Maurer, some people may use certain buzz words and other people don't use those buzz words, but isn't it true that for 40 years what public financing systems have been based upon is the idea that when there is a lot of private money floating around the political system, that candidates and then public office holders get beholden to various people who are giving that money and make actions based on how much they receive from those people, and that's the idea of a public financing system is to try to prevent that?

Mr. Maurer: Well, that is the basis of public financing systems in general, but this system does not actually address that because this Court--

Justice Antonin Scalia: We have the contrary argue here.

I'm sure that in some of the public financing cases that we've heard argued, it was asserted that the purpose was to level the playing field, and that that was an entirely valid purpose.

I'm unaware that all public financing laws have had as their purpose simply to avoid corruption.

Mr. Maurer: --Your Honor, it -- when this law was promoted, when it was drafted, when it was propagated and -- and -- and campaigned about to the people of the State of Arizona, it was presented as doing two things: Leveling the playing field and limiting spending in campaigns.

It wasn't until this Court's decision in -- in Davis that the State of Arizona suddenly discovered that the purpose of the law was actually to fight corruption or the primary purpose was to actually fight corruption.

Justice Ruth Bader Ginsburg: What about all the background, there had been a number of scandals in Arizona, there had been vote buying?

I thought that that was part of the origin of this law, was not as you now say had nothing to do with corruption.

I thought it emerged out of that, those startling incidents of people actually selling their votes.

Mr. Maurer: Well, they were selling their votes for outright bribes, Your Honor.

They weren't selling them for campaign contributions.

And if this law was aimed at the single narrow exception that this Court recognized to the -- to the general principle that restrictions on political activity violate the First Amendment, then they would not have structured this law in the way that they did, which is to burden the speech of three political speakers that pose no threat of corruption under this Court's precedents.

It's--

Justice Sonia Sotomayor: Counsel, you keep -- I -- I just want to understand exactly what you claim the burden is, because I thought that what the circuit and the courts below said was that there was no evidence that any candidate actually didn't speak or didn't fund raise because of this law.

There's some claims to the contrary in your briefs before us, but I've looked for that below, and there doesn't appear to be any record of that.

So, I'm going to start from that -- that assumption, that there was no evidence in the courts below that any candidate stopped speaking because of or stopped collecting money because of this.

So exactly what is the burden otherwise?

What are you claiming the burden is?

The burden is that the -- that the government is choosing to give someone else money?

Mr. Maurer: --No, Your Honor.

First, I would respectfully disagree with the characterization of the Ninth Circuit of the evidence produced at the district court.

There was considerable evidence of people not making expenditures, of slowing their fund-raising, as -- as one of my clients put it, to a crawl in order to avoid triggering matching funds.

But even if that were relevant, the -- or even if that -- that material did not exist, in Davis this Court recognized that the inherent structure of the Act constitutes a substantial burden on speech because it presents the choice of having to either engage--

Justice Sonia Sotomayor: I -- I want to go, not rely on Davis, but just articulate for me, assuming my hypothetical, the burden is that you have to delay fund-raising or delay expenditures because you're choosing to do so.

Mr. Maurer: --We are not choosing to do so.

We're -- we are being coerced into do -- doing so by the government.

Justice Sonia Sotomayor: No, if you spend it -- if you spend it at the time you want to, you collect it at the time you want, no one's -- the law's not telling you not to do it.

You find it an advantage not to do it, correct?

Mr. Maurer: No.

Justice Sonia Sotomayor: Because your opponent won't speak as loud and won't respond, correct?

Mr. Maurer: I -- I would respectfully disagree, Your Honor.

What the harm in delaying your speech is that in order to minimize the -- the triggering of substantial, and I would -- I would also add unfair benefits to a publicly financed candidate based on one's act of unfettered political expression, candidates and independent expenditure groups all testified, all the Petitioners testified that they delayed speaking in order to minimize the effect of matching funds, and the--

Justice Samuel Alito: Suppose the -- suppose the Court after this argument sent you a letter saying if you would like to file an additional brief, you have the opportunity to do so, and we're not going to allow your opponent to file a brief.

Would you take advantage of that opportunity?

Mr. Maurer: --All thing -- all else things being equal, yes, Your Honor.

Justice Samuel Alito: Now, if we said you can file an extra brief, but if you do that your opponent will also be able to file an extra brief.

Would that figure in your thinking?

Mr. Maurer: It certainly would, Your Honor; and under Arizona's system, if you applied Arizona's system to this hypothetical, not only would Mr. Phillips be able to file an additional brief, but the State of Arizona would be able to file an additional brief, and the Solicitor General's office would be able to file an additional brief, and anyone who weighed in on the other side would be able to file an additional brief.

That's the very nature of this law, in that it creates -- it is entirely structured to create disincentives, as the proponents of this act were quite clear, it was to create disincentives on people speaking or engaging in political activity more than the government preferred.

Justice Anthony Kennedy: Do you think it would be a fair characterization of this law to say that its purpose and its effect are to produce less speech in political campaigns?

Mr. Maurer: I believe that that is a -- a goal, and I believe that's the effect.

The entire -- the entire motivation of this law was to limit the -- limit spending in leveling the playing field.

Limiting spending indicates that they wanted less political speech in the State of Arizona, and that's what they've got.

Justice Stephen G. Breyer: Do you think that if Joe Smith doesn't have much money, takes public finance at all, that that could discourage some other people, Brown and Johnson, from running?

Mr. Maurer: No, I don't believe so.

Justice Stephen G. Breyer: No, there's not -- it's not going to -- it's not going to be a situation where government paying a million dollars to Smith to help him in the campaign would discourage some other person from running?

Mr. Maurer: I don't believe so, Your Honor.

It -- it's not--

Justice Stephen G. Breyer: If we -- if we say, you can file a brief and if you do, other people can file, is that my -- forget the briefs.

It's too farfetched.

[Laughter]

Justice Antonin Scalia: It's very clear, however.

[Laughter]

Justice Stephen G. Breyer: I did -- I did think you would give the other answer, to tell you the truth, because I just don't see why giving somebody a million dollars might not discourage a -- a poorer candidate from running.

Mr. Maurer: --Well, Your Honor, the courts that have looked at public financing systems, including the Buckley court, noticed or were made clear that one of the things that constitutes a constitutional public financing system is its voluntariness.

At certain margins--

Justice Stephen G. Breyer: No, no.

Joe, the guy who wants it, it's voluntary for him; but his opponents can't do anything about that.

I'm just saying Joe takes the money, so Brown and Smith say: Oh my God, he has a million dollars, forget it.

I'll stay home.

I won't run.

Mr. Maurer: --Well--

Justice Stephen G. Breyer: And you say that just doesn't happen?

Mr. Maurer: --I--

Justice Stephen G. Breyer: Never happens?

Okay.

Mr. Maurer: --I--

Justice Stephen G. Breyer: And I gather that people who have looked into the Arizona scheme also say what you think will happen never happens, either.

Mr. Maurer: --Your -- Your Honor--

Justice Stephen G. Breyer: So should we look at both instances?

Mr. Maurer: --Your Honor, it's not the question of people being dissuaded from running because their opponent may be able to mount an effective campaign.

The issue is the government turning my speech into the vehicle by which my entire political message is undercut.

And if there are no further questions, I would like to reserve the remainder of my time.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Phillips.

ORAL ARGUMENT OF BRADLEY S. PHILLIPS ON BEHALF OF THE RESPONDENTS

Mr. Phillips: Mr. Chief Justice, and may it please the Court:

Public funding of elections results in more speech and more electoral competition and directly furthers the government's compelling interest in combatting real and apparent corruption in politics.

There was a suggestion in response, I believe, to Justice Kagan's question that this law was not intended to combat corruption, but I--

Chief Justice John G. Roberts: But counsel, how -- the supposition that it results in more speech, let's take the independent expenditure example.

You've got one candidate running against three others.

There's an independent expenditure on behalf of the one candidate.

That means, say $10,000.

That means each of the other three get $10,000 of their own.

Now, that might promote more speech, but the effect may well be for the independent expenditure to say, I'm not going to spend the money, and so the other candidates don't get the money and you have less speech.

Mr. Phillips: --Well, Your Honor, it would result in more speech certainly if all the candidates got the $10,000.

There's no evidence in the record of anyone actually not spending, any independent group not spending money either in that circumstance or any other circumstance.

Chief Justice John G. Roberts: How would you -- what would that evidence look like?

Mr. Phillips: The evidence would -- would simply look -- plausibly, even just someone saying that they didn't spend money because of that, although that would be not very hard evidence.

But there isn't even that sort of evidence with respect to independent groups here, Your Honor.

And it makes sense, Your Honor--

Chief Justice John G. Roberts: Well, other than somebody saying it, I'm just curious what the evidence would look like.

You're -- it's -- you're proving a negative.

You're saying, well, this person didn't do something because of this, and that's pretty hard to do.

Mr. Phillips: --I -- that's possibly true, Your Honor.

The statistical data, however, here indicates that individual expenditures have in fact gone up since the implementation of matching funds in Arizona.

That obviously doesn't directly address the three-candidate situation, I acknowledge that.

But there's no evidence that independent expenditures have been suppressed at all, Your Honor.

And I would -- I think the question here, Your Honor, is--

Justice Antonin Scalia: May I ask how it -- how it combats corruption unless it suppresses large contributions--

Mr. Phillips: --It combats--

Justice Antonin Scalia: --by certain entities?

I mean, I can understand you say, well, it will stop big donors from giving $10 million to somebody's campaign and having that person in his pocket.

But that -- that donor is still going to have that -- that senator or whoever it is just as much indebted to him if he gives $10 million, regardless of whether everybody else gets $10 million as well.

How does it -- how does it combat corruption unless -- unless the other side is correct that its whole purpose is to suppress the contribution of $10 million, to make it unworthwhile for anybody to give $10 million?

Mr. Phillips: --Your Honor, Arizona's triggered matching funds provision combats corruption in the same manner that public funding combats corruption, because that -- the law is designed to encourage candidates to accept public funding because it offers a viable public funding option to them while conserving the State's resources.

And public funding serves the anticorruption rationale in two fundamental ways.

First, it frees the candidates who accept public funding from the need to accept potentially corrupting private contributions.

Justice Samuel Alito: Well, there are States that have public funding without having a matching fund provision.

I would appreciate it if you would compare these two regimes.

The first is exactly what Arizona has now.

The second is exactly what Arizona has now minus the matching fund provision.

So under the second one you have very strict contribution limits, and you have reporting of all contributions.

Now, why does the addition of the matching fund provision serve an anticorruption interest?

Mr. Phillips: Well, Your Honor, I think for the same reasons I think that are implicit in the Buckley Court's upholding of public funding at the same time that the Court upheld contribution limits and disclosure requirements, I think implicitly therefore holding that the three could go together, serving the anticorruption interests.

And I think it does that, first, by, first by -- first by freeing, as I said, freeing the publicly funded candidates from the need even to take the limited privately -- private contributions that would be allowed under the law, and which this Court has never held there's a minimum at which that no longer conceivably becomes corrupting.

But secondly, it -- it combats corruption by providing for more candidates running, more political speech, and more electoral competition, all of which have happened in Arizona.

And where you have more candidates and more electoral competition, you have less -- you are going to have less corruption.

The record--

Chief Justice John G. Roberts: So -- so the idea is this is a way of encouraging candidates to take the public financing, right?

Mr. Phillips: --Yes.

Chief Justice John G. Roberts: Would it encourage more candidates to do that if you doubled the amount that was available for every additional amount that the privately financed candidate spends?

He spends $1,000 over the amount and the publicly financed candidate gets $2,000.

A lot more people are going to do the publicly financing route if that were the case.

Mr. Phillips: It would encourage them more, Your Honor.

It's not our contention that anything that a State or Congress did to encourage public funding would necessarily be constitutional.

I think the question would be different if it were a two to one or, to make a more stark contrast, a ten to one match.

I think that would raise multiple questions.

One question would be, looking at the statute in its entirety, has the public funding scheme become coercive rather than voluntary?

It would raise the question whether the purpose of the law were really to simply provide viable funding to candidates--

Chief Justice John G. Roberts: But that's kind of an odd line to find in the First Amendment, isn't it?

That you get a 100 percent matching as opposed to, say, 110 percent or 150 percent?

Somewhere in the First Amendment the line is drawn on the amount?

Mr. Phillips: --I think somewhere in the First Amendment there is a line, Your Honor, implicit in Buckley, where a public funding law provides such substantial benefits without sufficient countervailing burdens to publicly funded candidates that it becomes coercive rather than voluntary, and therefore you have coerced someone into accepting a spending limit, which I believe would be certainly subject to strict scrutiny and almost surely unconstitutional.

And I think that is -- the Court would need to assess that in each instance, and I think it could be done.

I certainly don't think that here you have a coercive system.

A third of the candidates don't accept public funding, and most of those who don't and accept -- and face publicly funded candidates actually win.

Chief Justice John G. Roberts: So it doesn't work?

Mr. Phillips: Certainly it doesn't work in the sense, Your Honor, if the goal were for everyone to accept public funding, it doesn't work in that sense.

But it certainly works in the sense that two-thirds of the candidates do, and it works in the sense that there hasn't been a repeat of the public corruption scandals in Arizona since the law was passed.

Justice Anthony Kennedy: Do you think that one reason for people to decline participation in the program is because they do not want to deter independent expenditures?

And let me -- we'll talk about independent expenditures for just a few minutes if you don't mind.

You indicated independent expenditure has gone up.

I thought there was some data in the record that showed the population has gone up and so there's an argument about that.

But just as a common sense matter, if I'm someone with the capacity and the will to make an independent expenditure, why don't I think twice if this is going to generate an equal amount on the other side, which might be better spent.

Sometimes an independent expenditure is not really that effective, it's in a bad market, it's a bad message.

But this results in cash to the participating candidate, who then can use it in the most effective way.

Mr. Phillips: Your Honor, independent--

Justice Anthony Kennedy: All of which is designed to probe this idea that this somehow does not deter independent expenditures.

I frankly am tempted to believe the opposite view, so you can tell me about that.

Mr. Phillips: --Well, Your Honor, independent expenditure groups -- there's no evidence that it really in fact has been deterred.

Your Honor, independent expenditure groups essentially have to take their candidates as they find them, if you will.

There's no discrimination among someone who is speaking in favor of a privately financed candidate and one who is speaking in favor of a participating candidate.

The different treatment is the different treatment of the candidates.

Someone who speaks against a privately financed candidate runs the risk that that person is going to use the ad against them to do all of the things that the public financed candidate may not do.

He can raise private contributions, he can take money from his political party, he can spend his own money and he can spend unlimited amounts of money.

Justice Antonin Scalia: I don't know how you can say that there's no evidence that it's been deterred.

Is something true just because you say it?

There are in the briefs statistical evidence of how much the population of Arizona has increased and how much less since the enactment of this law the total expenditures have increased.

There was testimony in the, in the district court from individuals who said that they withheld their contributions because of this.

It's -- it's obvious statistically also that many of the expenditures were made late in the game, where perhaps they were not as effective, in order to be unable to trigger the matching funds in time for the opposing candidate to do anything about it.

I do not understand how you can say that there is no evidence.

I mean, maybe you might say I do not find the evidence persuasive, but don't tell me there's no evidence.

Mr. Phillips: Maybe I should say there's no significant evidence, Your Honor.

Justice Antonin Scalia: Ah.

Mr. Phillips: But with respect to each of the items that you mentioned: With respect to the population point, Your Honor, there is no evidence in the record and it does not make sense that expenditures either by candidates or by independent groups would increase proportionally to the population of a State because most of the expenses of a campaign are fixed and--

Justice Antonin Scalia: Rhode Island--

Mr. Phillips: --and not variable.

Justice Antonin Scalia: --has the same expenditures as New York State?

Mr. Phillips: No, no, Your Honor.

Of course not.

Justice Antonin Scalia: You don't expect the two to have any relationship?

Mr. Phillips: Of course not, Your Honor.

I don't suggest that there's no relationship between population and expenditures, but you wouldn't expect it to go up proportionally, which is what the argument that the Petitioners make, is that it didn't go up proportionally.

You wouldn't expect that, particularly given what the demographics of the population increase have been in Arizona and elsewhere in the country.

With respect to the evidence of individuals, there are two Petitioner independent committees in this case, Your Honor, the Arizona Taxpayers Action Committee and the Arizona Free Enterprise Club.

At Joint Appendix 584 is the testimony of the first that they never withheld money from a race because of matching funds and can't recall any contributor to them doing so.

And the Arizona Free Enterprise Club at Joint Appendix 666 and 670, the treasurer testified that matching funds never caused them not to make a contribution and that the PAC to which they contribute at JA 670 didn't recall making a decision not to spend money because of matching funds with respect to--

Chief Justice John G. Roberts: On that, there's a back and forth about the record and common sense.

As a matter of common sense -- I think this has already been asked -- if you knew that a $10,000 expenditure that you would make that would support a candidate would result in $30,000, 40,000, 50,000, depending on how many opposition candidates there were available for them, wouldn't you think twice about it?

Mr. Phillips: --I might think twice about it, Your Honor.

But first, I think thinking twice is not a severe burden.

I think I might think twice in some circumstances if I knew that by spending a certain amount of money I had to disclose the fact that I was doing that and what my political views were and lose my anonymity, but thinking twice this Court has held in that circumstance doesn't create a severe burden, and we would submit that thinking twice here similarly does not.

Chief Justice John G. Roberts: Well, if you're thinking twice and one way you're thinking is not to do it, that sounds like a sufficient burden.

Mr. Phillips: Well, Your Honor, if it were a sufficient burden, it would presumably have been a sufficient burden with respect to disclosure, where this Court has recognized that some people may not spend or contribute because of the disclosure requirements.

Chief Justice John G. Roberts: Our cases, as you know, have drawn a distinction between expression and disclosure.

Mr. Phillips: Yes.

Yes, Your Honor, but the point I'm making is that the disclosure, this Court has recognized, potentially chills, deters the expression itself.

Justice Anthony Kennedy: Are you saying that anything that has to be disclosed can also be prohibited?

I mean, I just don't see the equivalence here.

Mr. Phillips: No, Your Honor, I wasn't suggesting that.

But I--

Justice Anthony Kennedy: It seems to me that this law has a severe criticisms leveled at it, severe legal invalidities alleged, quite without reference to disclosure.

Mr. Phillips: --Well, Your Honor, I was making the analogy to disclosure in the sense of the think-twice notion that Mr. Chief Justice raised, but I don't think -- I don't think this creates any more of a burden, indeed we would submit less of a burden, than a disclosure requirement.

You would expect somebody who believes that their speech is more persuasive than the other participants in the race, whether they be an independent group or a candidate, to choose more speech, because they think that, if I speak, even if the other people speak, my message is going to get out there and it's going to be preferable.

There may be some few candidates, although there's not a record of that here, some few groups or candidates who would decide that they would prefer less speech.

It's better for me if my opponent or the other candidate doesn't speak more because he's going to be more persuasive than I am.

Chief Justice John G. Roberts: Your focus on persuasiveness -- your focus on persuasiveness is a particular view of the political process that may not be applicable in every case.

Political scientists sometimes tell you that it's not persuasion, but simply playing to your base, getting them more actively involved.

So it's not the somewhat more academic view that people are going to sit down and just regard which one is persuasive.

Is that a permissible objective for the State to pursue, to value a particular view of the electoral process over another?

Mr. Phillips: Well, Your Honor, I don't think that the State is doing that.

What I'm addressing is the effect of the law, and I think Your Honor makes a good point, which is that they assume, Petitioners assume, that essentially this is a zero-sum game and that because if I spend $10,000 the other guy is going to get $10,000 to respond, that somehow that's a wash.

Well, it's not a wash, first, because I think my speech is more persuasive so I'm going to do it anyway, because I'd rather get it out there; and secondly, because I may be spending my $10,000 on getting out my voters, and I need to do that regardless.

And that's why you don't see in the statistics any evidence that this actually suppresses speech.

And as I said, there may be some few candidates who would opt for less speech because it's strategically better for them, but we would submit that that--

Justice Samuel Alito: But even if it is the case that those candidates who choose not to participate are willing to spend additional money even though it triggers matching funds, I don't see what that proves.

A candidate who is deciding whether to participate or not presumably makes a calculation at the beginning: Do I want to spend more than the matching fund amount, even though I know that if I do that, the other side will get additional money?

Now, if they say, no, I don't -- I'm not going to do it under those circumstances, they will take the public financing.

And if they choose the private financing, it means they probably made a decision going in that they're going to -- they're going to be one of those who is willing to suffer the consequences of spending over the amount.

So I don't see what this -- I don't see what that proves.

Mr. Phillips: --Well, Your Honor, I think what it proves is that you -- the key point in here is that initial choice that is voluntarily made by each of the candidates, whether the system of public financing under which you may receive matching funds is better for them or whether the system--

Justice Samuel Alito: Could I ask a question that goes back to Justice Kennedy's question, which I don't think you fully had a chance to -- or fully answered?

And that has to do with the independent expenditures.

Let's say there are two candidates running for governor, and one who is a participating candidate is taking a position on a very controversial Arizona issue with which I disagree, and the other is a non-participating candidate who is taking a position on that controversial issue and I agree with that.

Now, if I choose to run an ad, pay for an ad supporting the non-participating candidate, I know that the -- the candidate that I dislike on that issue is going to get an additional amount of funds, and -- but if I choose to run an ad supporting the participating candidate, the opposite doesn't happen.

Now, why isn't that a clear-cut discrimination based on the content of speech?

Mr. Phillips: --Because, Your Honor, the discrimination, if you want to -- if you call it discrimination or different treatment, is based on the initial choices of the candidates as to how they're going to finance their campaigns.

It's not based on the content of the speech.

There's -- matching funds do not turn in any way on the ideas or the messages or the viewpoints or the subject matter of the candidate or the independent group's speech or on the identity of the speaker.

It turns entirely on what choice the candidate made at the outset.

And it is analogous, in a sense, Your Honor, to the situation that's faced by a contributor who is deciding whether to contribute, for example, to a 501(c)(3) or a 501(c)(4) organization.

If they contribute to the organization that can lobby, they don't get a tax deduction.

Justice Samuel Alito: But if I'm the independent -- if I'm the independent expenditure maker, I haven't made a choice at the beginning.

I haven't decided to participate or not participate.

What I care about is the issue that's being debated between these two candidates.

Mr. Phillips: And -- and, Your Honor, two points.

You're free, of course, to run an ad that addresses the issue without expressly advocating for or against any candidate without triggering matching funds.

And secondly, the candidates made a choice, and if you're the person who is -- who supports the participating candidate, you can't make a contribution to that candidate, while you could to the other candidate because of the choice that was made.

And you can be responded to, if you run an ad criticizing the non-participating candidate, you can be responded to with unlimited amounts of money from -- taken from a political party, the person's own money, whereas, too, if you attack a privately financed candidate, you would only be subject to being potentially responded to with limited matching funds.

And it all flows from the voluntary choice that is made at the outset by the candidates about which system of financing is better for them.

And this is a system, the matching funds system, is a mechanism that the State uses in order to be able to offer viable public funding to candidates without wasting public resources, and both the logic and evidence demonstrates that it is, in fact, effective, both at promoting speech by encouraging candidates to run and, indeed, particularly resulting in more competitive races for incumbents -- against incumbents in Arizona and promoting speech.

And I would just like briefly to address Justice Alito's question about the ex ante measurement of the funds.

Now, of course, we would submit that it's not relevant because we're not in -- should not be in strict scrutiny and therefore don't need to show this is the least restrictive means, Your Honor.

But, Justice Alito, an ex ante system would run substantial risks of underfunding or overfunding races, and in particular -- and therefore wouldn't serve the State's interest in saving money or in properly measuring -- but, in particular, would run the risk of having an incumbent who might have been in office for several terms unopposed and not having spent any money in those races, and now you are measuring how much his possibly now viable challenger will get in public funding based upon some minuscule amount of money that the incumbent has needed to spend.

So I think that that would not serve the State's interests in ensuring the candidates actually have viable public funding.

And I see my time has expired.

Thank you.

Chief Justice John G. Roberts: Thank you, Mr. Phillips.

Mr. Jay.

ORAL ARGUMENT OF WILLIAM M. JAY, ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE RESPONDENTS

Mr. Jay: Mr. Chief Justice, and may it please the Court:

I would like to begin, if I may, with Justice Alito's question to Mr. Phillips about whether the independent expenditure aspect of this statute is content-neutral, and I think that, looking at this in the context of a multi-candidate race, which most races in Arizona are, is important to set the context, because most races in Arizona are not one candidate against another candidate.

Every House district in Arizona has two -- has two members, so every general election has at least four candidates.

And it simply is not the case that running an ad in support of a publicly financed candidate does not trigger matching funds.

It depends not on what the ad says, not even on who the candidate is being supported, but on whether another candidate in the race takes public financing.

So money spent to support one publicly financed candidate may trigger matching funds to another.

That's not a content discrimination.

Justice Antonin Scalia: Mr. Jay -- Mr. Jay, do you agree with the -- the assertion of Mr. Phillips that this does not favor incumbents?

I would have thought that if I'm an incumbent with name recognition, I would love to be able to not raise any money and just -- just take the public funding, knowing that if worse comes to worse and I have an opponent who does have a lot of independent expenditures for him, I'll be able to get that money free from the State.

It seems to me it's very much pro-incumbent rather than anti-incumbent.

Mr. Jay: Oh, Justice Scalia--

Justice Antonin Scalia: Which -- which one should expect campaign finance restrictions to be.

Mr. Jay: --Justice Scalia, I'm happy to -- to endorse the sentiment, because I think that the Petitioners' evidence in this case, the Petitioners who were incumbent office holders and say that they did not spend money because they were -- they feared the response that would be paid for by matching funds, I think their own evidence, including the declaration that they put in at Joint Appendix 364, says: If I can keep the spending down, me as an incumbent, I have a tremendous advantage.

That's an Arizona legislator talking to one of the -- talking to the -- to one of their experts.

And that's because -- and a race that features low dollar amounts on both sides often advantages an incumbent.

And that is the purpose -- that is the purpose of the matching funds provision, to allow -- to allow challengers to be competitively funded.

That's the purpose of the initial grant.

The reason that--

Justice Antonin Scalia: Your answer -- your answer depends upon whether you believe that this scheme will keep the expenditures down, or rather, will elevate the expenditures.

And if you believe that it will deter people from making contributions, it will keep the expenditures down.

Mr. Jay: --It's not -- it's not a matter of deterring people from making contributions, Justice Scalia.

When there are competitive races, the matching funds provision provides a formula for giving the publicly funded candidate as much money as the private -- as the privately funded candidate that they're competing with.

And in most cases the incentives on both sides are for more speech, for both sides to get out their message, run their ads, and persuade the voters.

In some cases -- and we submit that the anecdotal evidence the Petitioners have submitted touches on these cases -- the privately funded candidate may have an incentive to keep spending down, but we don't think that's true systemically under this system.

We think that the -- that the public financing in general and the matching funds provision in particular facilitates speech, because the only consequence of running an independent expenditure, for example, at most, the consequence is that another party will get to run a responsive ad, and the sum of speech will be increased.

Chief Justice John G. Roberts: Counsel, do you agree that under our precedents, leveling the playing field for candidates is not a legitimate State purpose?

Mr. Jay: We do, Mr. Chief Justice.

That -- that, of course, is not what's at work here.

Chief Justice John G. Roberts: Well, I checked the Citizens' Clean Elections Commission website this morning, and it says that this act was passed to, quote, "level the playing field" when it comes to running for office.

Why isn't that clear evidence that it's unconstitutional?

Mr. Jay: Well, Mr. Chief Justice, whatever the Citizens Clean Elections Commission says on its web site I think isn't dispositive of what the voters of Arizona had in mind when they passed this initiative.

The Court -- this Court has recognized since Buckley that public financing serves a valid anticorruption purpose, and it does so because it eliminates the influence of private contributions on the candidates who take public financing.

And it--

Justice Samuel Alito: But would you agree that the matching fund provision by itself does not serve an anticorruption purpose?

Mr. Jay: --Well, Justice Alito, the matching funds provision the State of Arizona has concluded is an important way of ensuring that candidates will take public financing, because it is a formula of ensuring that candidates will have enough money to run competitive races without wasting the State's money by -- by--

Justice Stephen G. Breyer: And what about -- it's a general question.

Answer this if you wish.

Don't if you don't want to, and the same goes for your opponent.

But as I hear this argument, what's going through my mind is we are deeply into the details of a very complex bill.

McCain-Feingold is hundreds of pages, and we cannot possibly test each provision which is related to the others on such a test of whether it equalizes or incentivizes or some other thing, because the answer is normally we don't know.

And it is better to say it's all illegal than to subject these things to death by a thousand cuts, because we don't know what will happen when we start tinkering with one provision rather than another.

That thought went through my mind as I've heard this discussion.

Comment or not upon it as you wish.

[Laughter]

Mr. Jay: --I -- I will comment in this way, Justice Breyer.

I think that it's remarkable -- I appreciate the opportunity, and I will take it.

The parties in this case agree that public financing is itself not objectionable.

The parties in this case agree that even a large government grant at the outset which could be used to fund responsive ads to a -- to a privately financed candidate or to independent expenditures, that's not problematic.

Justice Antonin Scalia: But anything that, anything that makes it more attractive to take the public financing is okay?

Mr. Jay: That's not our position.

Justice Antonin Scalia: I mean, what if -- what if the State of Arizona says we're not going to give -- just give money to the other candidates; we're going to send out officers of Arizona to argue on behalf of these other candidates?

That would be clearly banned, right?

Mr. Jay: Yes--

Justice Antonin Scalia: And would you come in and say, well, it's perfectly okay because its purpose is to make public funding attractive to candidates?

The mere fact that it makes it more attractive does not answer the question whether it's constitutional.

Mr. Jay: --It doesn't make -- it doesn't just make it more attractive, Justice Scalia.

It allows publicly-funded candidates to run on the same footing as privately-funded candidates, because they can spend comparable amounts.

That is the point that we're making, not that any -- not that any incentive the State could dream up would be constitutional.

But the mere fact that there is -- that there are incentives and disincentives on both sides, I think doesn't suffice to answer the question.

The fact, as Mr. Phillips pointed out, there may be disincentives to engage in speech when a disclosure requirement takes effect.

Anyone who wishes to run an independent expenditure under the system upheld in Buckley, anyone who had spent over $100 had to disclose.

And the Court recognized in Buckley that it was undeniably the case that public disclosure would deter some individuals.

The Court nonetheless didn't apply strict scrutiny because that is not the kind of severe burden that the First Amendment recognizes.

The Court--

Justice Samuel Alito: What you just said was that this law aims to allow publicly financed candidates to run on the same footing as privately financed candidates; isn't that right?

Mr. Jay: --The same dollar amount footing, Justice Alito.

But there's a--

Justice Samuel Alito: Right, and that's equal--

Mr. Jay: --far different mix of benefits and burdens--

Justice Samuel Alito: --that's equal -- that's leveling the playing field, isn't it?

Mr. Jay: --It's not, Justice Alito, because there is a far different mix of benefits and burdens that a publicly-financed candidate takes.

There is an absolute cap -- under this matching funds provision, there is an absolute cap above which a publicly-financed candidate cannot spend, no matter what.

Once a publicly-financed candidate reaches that cap, which they've agreed to as a condition of taking public financing, independent groups and their opponents can -- can raise more money, can run more ads against them, completely without limit, and you -- you have to take that into consideration when you're considering what incentives and what deterrent effect the matching funds provision is having.

Publicly-funded candidates accept certain limits, and one of those limits is an absolute limit on spending.

The matching funds provision simply adjusts that limit based on how much is being spent in that race.

Chief Justice John G. Roberts: Why -- why do you think the elections commission then tells us its purpose is to level the playing field?

Mr. Jay: I can't -- I -- I don't speak for the elections commission, Mr. Chief Justice, but the State of Arizona has said in -- in this case that the purpose of public financing, as indeed was the purpose of the presidential public financing system that this Court upheld in Buckley, is to combat corruption.

And public financing is a recognized way of combatting corruption, and giving out these matching funds is a way of encouraging candidates to participate.

Justice Anthony Kennedy: Well, in your hypothetical of the -- of -- of a participating candidate who spends up to the limit, what happens if independent expenditures are then made on his behalf?

Mr. Jay: Independent expenditures on his behalf don't -- would trigger public matching funds to any other matching--

Justice Anthony Kennedy: No, no.

Mr. Jay: --To any other candidate in the race.

Justice Anthony Kennedy: There's -- there's -- there's two participants -- there's two candidates, one who's a participating and one who's not.

The participating candidate spends up to his limit, he can't spend any more money.

But then he gets a lot of additional support from independent groups, correct?

Mr. Jay: In a two-person race, Justice Kennedy--

Justice Anthony Kennedy: I mean, that could -- that could happen?

Mr. Jay: --It could.

And the privately financed candidate, unlike the publicly financed candidate who is the target of independent expenditures, is free to raise more money and use that -- use those additional funds to respond.

Justice Anthony Kennedy: But the -- but the point that you made that the participating candidate is limited leaves out the fact that there can be additional expenditures on his behalf by independent groups?

Mr. Jay: There can be -- may I finish the sentence?

There can be, but a candidate deciding whether to participate by definition doesn't know in advance whether there will be independent expenditures on his behalf, and the matching funds provision allows that candidate to know when he elects public financing that he will have enough money to compete.

Chief Justice John G. Roberts: Thank you, Mr. Jay.

Mr. Maurer, you have 4 minutes remaining.

REBUTTAL ARGUMENT OF WILLIAM R. MAURER ON BEHALF OF THE PETITIONERS

Mr. Maurer: Thank you, Mr. Chief Justice.

With regard to the record evidence of an actual chill, I would note that the record -- if this Court takes the opportunity, as it's obliged to do under the Bose Corp. decision to look at the entire record, the evidence is replete with examples of people not making expenditures such as Tony Bouie, who refrained from sending out mailers, making auto calls or distributing information, John McComish also had a similar response, the Arizona Taxpayers Action Committee did not engage in a particular campaign because it would have triggered matching funds.

But ultimately when we get right down to it, though, the question is does this create the same kind of burden in -- as -- as in Davis, and I could go through point by point, Mr. Phillips, and Mr. Jay's argument, but they're all answered by Davis.

Davis recognized that this type of interference with the -- with the voters' decision as to who to elect to office and the purpose of doing that in order to raise the voices of those the government thinks is speaking too little and muffle the voices of those the government think is speaking too much is completely illegitimate.

This case is determined by Davis.

For instance, the -- the argument that Mr. Phillips made that speech has gone up in -- in Arizona is -- is undone by Davis, which recognizes that increases in the aggregate of speech cannot justify restrictions on individual First Amendment rights.

Justice Elena Kagan: Mr. Maurer, Davis starts off by saying that if what had been triggered was not an inequitable contribution limit raised but instead both a contribution raised for both candidates, that would have been perfectly appropriate, notwithstanding that that would have put many independent funders to a real choice.

The independent funder says, well, I'm not taking any contributions, so that's only going to help my opponent.

What's the difference in that case?

Mr. Maurer: I think what this Court was recognizing in Davis is that when the -- when the government relaxes restrictions on free speech, when there's more freedom, that doesn't constitute a violation of the First Amendment.

That's not what the government is doing here.

It's effectuating its goal of limiting spending in leveling the playing field by burdening and disincentivizing people to engage in their First Amendment rights.

Justice Elena Kagan: Well, as I said, the Davis system that was -- the system that was specifically approved in Davis would disincentivize many people, many independent funders from speaking, would put that person to a choice of the kind that you say that your clients are being put to a choice, the exact same kind of choice.

Mr. Maurer: It would not have the unfair trigger that this system has.

The entire argument here is not that -- that our clients have a concern with too much speech.

Our concern is that their speech is turning into the mechanism by which their political goals are undercut.

So each time they speak, the more work that they do, the more their opponents benefit.

That is -- that on its face creates a -- a -- a common sense disincentive to engage in more and more political activity.

If there are no further questions, Your Honor, I'll thank the Court for its time.

Chief Justice John G. Roberts: Thank you, counsel.

Counsel.

The case is submitted.

Print this transcript Transcript: 

Justice Kagan: The First Amendment's core purpose is to foster a vibrant political system full of robust discussion and debate.

Nothing in Arizona's anti-corruption statute, the Citizens Clean Elections Act, violates this constitutional protection.

To the contrary, the Act promotes the values underlying both the First Amendment and our entire Constitution.

It does so by enhancing the opportunity for free electoral discussion while preventing the kind of corruption that can wreck democratic governance.

This Court is wrong to invalidate the State's important initiative.

The idea behind Arizona's statute is straightforward.

When elected officials are beholden to big donors, they may act to serve those special interests rather than the interests of all Americans.

To prevent corrupt deals of this kind, Arizona has turned to the public financing of elections.

By supplanting private cash in elections, public financing eliminates the source of political corruption and makes sure elected officials serve us all.

For this reason, we have previously upheld the constitutionality of public financing.

The statutory provision of the Clean Elections Act invalidated today, the so-called matching funds provision simply ensures that Arizona's public financing system works.

The provision makes public financing effective in attacking corruption and also makes public financing sustainable overtime by ensuring that its cause is not prohibitive.

The provision achieves these results by setting the amount of the public subsidy at an appropriate level for each race.

At a level, that does not waste the taxpayer dollars but that assures candidates that if they signup for public financing, they will be given sufficient resources to run a competitive campaign.

So the idea of the Clean Elections Act is just this simple.

The matching funds mechanism is necessary to make public financing work and public financing is necessary to prevent corruption to break the stranglehold of special interests on our system of government.

That was what Arizona voters thought when they passed this Act by referendum.

There is nothing unconstitutional about that.

The law here does not impose any restriction or substantial burden on speech.

It does not prevent anyone from speaking and it does not tell anyone what they should say or how they should say it.

To the contrary, this law puts into place a subsidy program that serves nearly to fund additional electoral expression.

The program does not discriminate against any idea or any speaker.

It is open to all candidates, republican or democrat, conservative or liberal who wish to avail themselves of its benefits.

All the law does is fund more speech and as this Court said just last year it is our law and our tradition that more speech, not less, is the governing rule.

That is the consistent teaching of our precedents.

When the law creates speech rather than restrict speech, it is not subject to the most rigorous form of First Amendment review so long as it is viewpoint neutral which this law clearly is.

And that is so far an obvious reason, because laws of this kind to promote First Amendment values, by fostering additional and responsive expression, so that the market place of ideas can work at its best by exposing citizens to all kinds of opinions and enabling citizens to choose among them.

Indeed, we have previously recognized as much in this very context.

In Buckley v. Valeo, our seminal campaign finance case, we held the public financing systems in addition to preventing corruption served First Amendment values by ensuring that uninhibited, robust, and wide-open public debate would thrive.

The Court forgets all this in today's opinion.

And something else is wrong with this decision.

Even if the Arizona law merited rigorous First Amendment review, it should pass that test because the state has come forward with a clear uncontestable and compelling interest attacking political corruption.

We have long recognized that combating corruption is a compelling government interest.

It is after all the point of our entire constitutional enterprise to build and maintain a government accountable to the many not beholding to the few.

And Arizona has presented a forceful argument here that a successful public financing system is necessary to this end, and if the matching funds provision is a critical piece of this system, the thing that spells the difference between its success and its failure.

The majority today does not say anything to rebut this argument.

Arizonans deserve better, like citizens across this country, Arizonans deserve a government that represents and serves them all.

And Arizonans deserve the chance to reform their electoral system to achieve this most American of goals.

For these reasons and other as elaborated in my opinion, I respectfully dissent.

Print this transcript Transcript: 

Chief Justice Roberts: I have the opinion of the Court in case 10-238, Arizona Free Enterprise versus Bennett and the consolidated case number 10-239, McComish versus Bennett.

The Arizona Citizens Clean Elections Act created a public financing system to fund the campaigns of candidates for state office.

Under that system, candidates who choose to take public financing are given a grant of state money to operate their campaigns.

If such a publicly financed candidate faces a privately financed candidate, someone who has declined state money and is instead spending his own or raising money through contributions, the publicly finance candidate can get more state money.

The State will give the publicly financed candidate roughly one additional dollar for each dollar above the grant amount that the privately financed candidate spends on election speech.

Matching funds are also given to the publicly financed candidate, again on a dollar for dollar basis in response to spending on election speech by independent groups when that speech supports the privately financed candidate, or opposes the publicly financed candidate.

The question in this case is whether this system is permissible under the First Amendment.

Now the answer to that question largely follows from a case we decided just three years ago, Davis versus the Federal Election Commission.

In Davis, we invalidated a provision of federal law that permitted the opponent of a candidate who spent over a certain amount of his money to collect -- we permitted the publicly financed candidate to collect triple the normal contribution amount.

While the candidate who spent the personal funds remains subject to the original contribution cap.

We held that this unconstitutionally forced the candidate and "to choose between the First Amendment right to engage in unfettered political speech on the one hand and subjection to discriminatory fundraising limitations on the other".

We ruled that this "unprecedented penalty" "imposed a substantial burden on the exercise of the First Amendment right to use personal funds for campaign speech."

So in Davis, if you spent more than the said amount of your own money, your opponent could raise higher amounts in contributions.

We held that that violated the First Amendment because it inhibited the free speech rights of the candidate whose speech triggered the benefit to his opponent.

Now the burdens imposed on candidate speech by the Arizona matching funds are much more severe than the burdens imposed by the law we struck down in Davis.

The penalty in Davis consisted of raising the contribution limits for one candidate, but that candidate still had to go out and raise the additional funds.

Here, the penalty for speaking is a direct and automatic payment of state money to your political opponent depending on the specifics of the election that issue, matching funds under the Arizona law can also create a multiplier effect.

Arizona elections often keep a privately financed candidate against multiple publicly financed candidates.

In such a case, every publicly funded candidate receives the matching funds.

In such a situation, the matching funds provision forces a privately funded candidate to fight a political hydra of sorts.

Each dollar he spends generates two opposing dollars in response or even more.

And unlike the law in Davis, all of these are to some extent out of the privately financed candidate's hands spending by independent groups triggers matching funds that go directly to the publicly funded candidate to use against the privately funded opponent even though that privately funded candidate had no control over the triggering funds in the first place.

That is a substantial advantage for the publicly funded candidate.

Matching funds impose similar burdens on the independent expenditure groups themselves.

The effect of a dollar spent on election speech by any such group is a direct payout to the publicly funded candidate the group opposes spending $1 can result in the flow of dollars to multiple candidates.

And in some ways, the burdens imposed on independent groups are more severe than the burdens imposed on the privately financed candidates themselves.

Independent groups of course cannot choose public financing.

As a result, those groups can only avoid triggering matching funds by changing their message or choosing not to speak at all.

Presenting independent expenditure groups with such a choice -- trigger matching funds, change your message, or do not speak is highly coercive in contrary to basic First Amendment values.

The candidates and independent groups that brought this suit contend that the purpose of the matching funds provision was to "level the playing field" to have all candidates in a political race the same financial resources.

But we have repeatedly held that leveling the playing field is not a legitimate Government objective.

As we said in Davis, "leveling electoral opportunities means the State making and implementing judge -- judges -- judgments about which strengths should be permitted to contribute to the outcome of an election."

For example, incumbents typically have an advantage in campaigns.

So how do you level the playing field to account for that?

Leveling the playing field financially may make it harder for outsiders to challenge incumbents, allowing states to make these types of judgments is a dangerous enterprise.

The First Amendment embodies our choice as a nation that, when it comes to protected political speech, the guiding principle is freedom as we have put it the "unfettered interchange of ideas" not whatever the State may view as fair.

The State disavows any interest in using matching funds to level the playing field even thought that is exactly how the system operates and even though the election commission website said that the Act was passed "to level the playing field" when it comes to running for office.

The State instead phrases the purpose of the law as being to combat corruption and argues that matching funds are necessary to attract candidates into participating in public financing so they can be sure they'll have enough money.

But this case is not about how much money the State can give the candidates that it funds.

It is about awarding extra funds in direct response to the political speech of an opposing candidate or an independent group.

The state says that matching the funds it gives out to the amount spent by privately financed candidates, plus independent groups, is not leveling the playing field.

But just an efficient way of calibrating how much is needed to make public financing attractive.

But we have clearly held over and over again that "the First Amendment does not permit the State to sacrifice speech for efficiency."

Here, the State makes its public financing system more attractive and less expensive to itself only by burdening the protected political speech of those candidates who elect to run for office without taking the states money.

Our decision in the Davis case makes clear that is not permitted.

We do not today call into question the wisdom of public financing as a means of funding political candidacy.

That is not our business.

But determining whether laws governing campaign finance violate the First Amendment is very much our business.

The goal of creating a viable public financing scheme can only be pursued in a manner consistent with the First Amendment.

Arizona's program gives money to a candidate in direct response to the campaign speech of an opposing candidate or an independent group.

The State does this when the opposing candidate has chosen not to accept public financing in the exercise of his First Amendment rights and has engaged in political speech above a level set by the State again in the exercise of his First Amendment rights.

This goes too far, Arizona's law substantially burdens political speech and does not sufficiently justified by a compelling interest.

The judgment of the Court of Appeals for the Ninth Circuit is reversed.

Justice Kagan has filed the dissenting opinion in which Justices Ginsburg, Breyer, and Sotomayor have joined.