Consumer Sovereignty Trumps Popular Sovereignty: The Economic Explanation for Arizona Free Enterprise v. Bennett

72 Pages Posted: 5 Feb 2013 Last revised: 21 Aug 2013

Date Written: September 4, 2012

Abstract

Arizona Free Enterprise v. Bennett, 131 S. Ct. 2806 (2011), invalidates the matching funds provision of Arizona’s clean elections law, one of the most effective forms of public financing for political campaigns. Bennett has tremendous implications for democracy and the increasing role of money in politics. This essay shows how the majority opinion employs economic theory as judicial reasoning, construing the First Amendment as a guarantee that political expenditures and contributions shall have their optimal, market-determined effect. Earlier cases had struck down certain limitations on political spending on the theory that money was speech and Congress could not “abridge the freedom of speech.” Although many disagree with the notion that private political spending is speech in the meaning of the First Amendment, it was at least clear that the laws at issue in earlier cases restricted that spending. The Roberts Court has now redefined the First Amendment. Even if the government does not restrict private political spending, Bennett prohibits it from providing electoral subsidies that might diminish the effectiveness of that private spending. Public financing systems such as the one contained in the Arizona law have thus become unconstitutional government interventions into the market for political power. Bennett goes beyond Buckley v. Valeo’s dictate the money is speech and democracy is a market; it even goes beyond Citizen United’s holding that corporations have a First Amendment right to political expenditures. Bennett establishes a far broader proposition: the First Amendment protects consumer sovereignty, not popular sovereignty.

Keywords: Bennett, Davis, money in politics, First Amendment, campaign finance reform, democratic theory, public financing

Suggested Citation

Kuhner, Timothy K., Consumer Sovereignty Trumps Popular Sovereignty: The Economic Explanation for Arizona Free Enterprise v. Bennett (September 4, 2012). Indiana Law Review, Vol. 46, No. 3, 2013; Georgia State University College of Law, Legal Studies Research Paper No. 2013-10. Available at SSRN: https://ssrn.com/abstract=2211779

Timothy K. Kuhner (Contact Author)

University of Auckland ( email )

Private Bag 92019
Auckland Mail Centre
Auckland, 1142
New Zealand

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