[JURIST] The US Supreme Court [official website, JURIST news archive] heard oral arguments [day call, PDF] Monday in two consolidated cases concerning campaign financing [JURIST news archive]. In Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett [oral arguments transcript, PDF; JURIST report], the court heard arguments on whether the First Amendment [text] forbids states from providing publicly financed candidates with additional government subsidies, which are triggered by independent expenditure groups’ speech against such candidates or by the candidates’ privately financed opponents. In McComish v. Bennett, the court will determine whether Arizona’s matching funds and the law regulating campaign financing to equalize resources among candidates and interest groups, rather than advancing a compelling state interest in the least restrictive manner, violate the First and Fourteenth Amendments [text]. The US Court of Appeals for the Ninth Circuit concluded [opinion, PDF] that the Arizona public financing scheme and matching funds provision did not offend the First Amendment. The appeals court declined to reach a conclusion as to the equal protection claim. Counsel for the petitioner argued that Arizona’s matching funds provision is unconstitutional and should be struck down:

[T]his case is about whether the government can turn my act of speaking into the vehicle by which my political opponents benefit with direct government subsidies. … This Court … recognized that when the government reaches into a campaign and attempts to manipulate campaign financing in order to basically effectuate the outcome, that constitutes an illegitimate governmental purpose. … The purpose of this law is to limit spending in elections and to level the playing field. … [The law] is entirely structured to create disincentives … on people speaking of engaging in political activity more than the government preferred.

Counsel for the respondent argued that “public funding of elections results in more speech and more electoral competition” and furthers a governmental interest of combating “real and apparent corruption in politics.” Further, that public funding combats corruption by freeing candidates from the “need to accept potentially corrupting private contributions,” and allows for more candidates to run, “more political speech, and more electoral competition.” Arizona’s matching funds system both promoted speech and encouraged candidates to run against incumbents. The government argued, as amicus curiae, supporting the respondents that the matching funds provision “provides a formula for giving the publicly funded candidate as much money as the privately funded candidate.” The government agreed that public financing facilitated speech and allowed candidates to run on the same footing.

In CSX Transportation v. McBride [oral arguments transcript], the court heard arguments on whether recovery under the Federal Employers’ Liability Act (FELA) [45 USC §§ 51-60 text] requires proof of proximate causation. The US Court of Appeals for the Seventh Circuit declined to hold [opinion, PDF] that common-law proximate causation is required to establish liability under FELA. Counsel for the petitioner argued that FELA was intended to follow the ordinary common law procedural approaches in respect to proximate cause:

Just five years after the enactment of FELA, the Court declared that it was obvious that the statute contained a proximate cause requirement. Proximate cause … is an element of the cause of action. … So proximate cause has been regarded as an essential component of the tort law. And that being so, FELA creates a Federal cause of action for negligence, it creates a Federal tort law. A fundamental principle of statutory interpretation … [is] that when Congress creates a Federal tort, it means to adopt the general background of tort law.

Counsel for the respondent argued that the case presents a non-existent problem and that the court should adhere to the traditional approach. Counsel explained that FELA relaxed the causation standard saying, “FELA, by its plain terms, did away with the first concept of proximate cause because it limited the duty to the employee by the employer.” Further, FELA is only a compensatory damages structure, providing no punitive damages, attorney’s fees, or treble damages.