By Brenda Wright, director of the Democracy Program at Demos. This post is part of an ACSblog symposium marking the one-year anniversary of the landmark decision Citizens United v. FEC.
The one-year anniversary of Citizens United v. FEC has prompted many insightful examinations of what the decision has wrought in the past year; but equally important is an assessment of the future of the First Amendment in light of the Supreme Court's current docket - which includes McComish v. Bennett, a challenge to Arizona's public financing law that will be argued on March 28.
One year ago, I noted that the Roberts Court had, in Citizens United, created the Anatole France First Amendment: in its "majestic impartiality," the First Amendment permits massive corporations and ordinary citizens alike to spend as much as they want to elect their preferred candidates to office.
In 2011, opponents of public financing now ask the Supreme Court to create the Cowardly Lion First Amendment. You will recall that the Cowardly Lion, when he first appears in "The Wizard of Oz," tries to attack Toto, a tenth of his size; but then is reduced to indignant tears when little Dorothy stands up to him and slaps his nose. In like manner, the McComish petitioners claim a debilitating fear that under Arizona's system, privately financed candidates - the Lions of campaign finance, who can spend as much as they want, without any limit - are facing "hostile speech" (their words) from the Totos - the publicly financed opponents. They cite this fear as creating a constitutional injury requiring Court intervention. In short, the Supreme Court is being asked to declare that the First Amendment exists to ensure the right of privately financed candidates to speak without being responded to by publicly financed candidates.
Let's put this in context. In recent weeks we've been vividly reminded that persons seeking public office in these rancorous times must all too often be prepared to face death threats and worse. Yet the McComish petitioners argue that these same aspiring public servants must be considered so emotionally fragile that they will be afraid to spend money on their campaigns if they know it could merely trigger additional funds to their opponents to use on responsive campaign ads or mailings - and that the First Amendment must protect them from such a terrible fear.