Davis v. FEC oral argument: first impressions

CCP was present in the Supreme Court this morning for oral argument in the next chapter of the campaign finance reform wars, Davis v. Federal Election Commission.  For those who are not familiar with the case, Davis is a facial constitutional challenge to the so-called Millionaire’s Amendment of the Bipartisan Campaign Reform Act of 2002, which raises the contribution limits of congressional candidates who face well-funded opponents.  As has been the trend in recent cases of this type, Justices Scalia and Kennedy were vocal in citing their concerns about the First Amendment ramifications of the law, while Justice Breyer was in damage control mode.

Preceding oral argument, various commentators had emphasized that Davis’ Achilles Heel was his weak standing argument.  Because Davis’ opponent, Rep. Tom Reynolds, had not availed himself of the increased contribution limits that Mr. Davis’ spending unleashed, these voices argued that Mr. Davis had suffered little or no harm.  For whatever reason, the Court spent little time debating the merits of this point and instead focused the vast majority of their questions on the substance of Mr. Davis’ First Amendment claim.  When Solicitor General Clement briefly attempted to bring the Court’s attention back to the standing issue, several Justices argued that the law "punished" individual candidate spending, which seemed to settle the issue.

Justice Scalia was openly skeptical of the government interest underpinning the Millionaire’s Amendment – leveling the electoral playing field – because of the leeway such an interest could provide Congress to legislate in ways that favor one type of candidate over another.  The Justice elucidated this concern aptly when he asked the Solicitor General facetiously at one point if Congress could mitigate the natural advantages of an eloquent candidate by forcing him to put pebbles in his mouth.     

Perhaps the most interesting and surprising development during the course of the argument was Justice Kennedy’s open hostility towards a provision within the Amendment that lifts the caps on political party coordinated expenditures made in support of a self-funded candidate’s opponent.  Justice Kennedy left little doubt as to whether or not he believed the provision was constitutionally deficient; his description of the legislation spoke volumes.  Kennedy stated that he believed the provision resulted in the government favoring the speech of the non-self-funded candidate’s political party over the speech of the self-funded candidate’s party.  Describing the provision as being content based – a fatal characterization in First Amendment jurisprudence — almost guarantees that Kennedy will vote to strike down this portion of the law. 

Whether or not Justice Kennedy’s characterization is adopted by the rest of the Court, his analysis raises interesting questions that were not addressed by either party during the briefing process.  Can Congress disparately restrict the associational rights of candidates and political parties based on the availability of candidate resources?  One would think not, as the Court generally frowns on congressional attempts to create different requirements for the exercise of fundamental rights by similarly situated parties. 

Perhaps moved to action by Justice Kennedy’s strong statements and by the Court’s general hostility towards the Amendment, Justice Breyer focused his questioning on whether not the statute could be salvaged if one or more of its portions were struck down as unconstitutional.  This is a familiar role for the Justice, who sees most campaign finance reform as a legitimate means of promoting democratic self-rule.

Overall, the oral argument showed again that campaign finance is an area where the Roberts Court is intellectually engaged and where its jurisprudence is in flux.  While it remains to be seen whether the Court will build on its recent decisions in Randall v. Sorrell and FEC v. Wisconsin Right to Life, the statements emanating from the bench this morning should encourage supporters of the First Amendment.