Arizona Advocacy Network

Government of, by and for the People

Posted on June 27, 2011 by Rick Hasen

    A possible double meaning in today’s dissent from Justice Kagan:

    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 de-signed 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.” 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.

One way of reading the bolded language is that the people of Arizona do not get what their reasonable objectives fulfilled.

But a second, more subtle message from Justice Kagan is that it is the Justices speaking “The Court” which “invalidates Arizonans’ efforts” do not get it.  Get it?