Thoughts on Davis

Before McCain-Feingold even became law, First Amendment and campaign finance attorneys knew that its wreckage would keep them busy for years to come. 

"I feel like the tow truck driver who just heard about the 100-car pileup on the freeway," said respected campaign finance attorney Jan Baran.

Today, the Supreme Court removed more of the debris caused by the law when it issued its decision in a case challenging the so-called Millionaires’ Amendment provisions of McCain-Feingold.

The court’s decision had the potential to impact campaign finance jurisprudence even more profoundly -either positively or negatively – than last summer’s successful challenge to McCain-Feingold’s "electioneering communications" provision. 

The electioneering communications provision severely restricted the ability of grassroots organization to advocate close to an election. While highly objectionable, McCain-Feingold’s electioneering communications provision relied on a pre-existing court-recognized government interest.

The Millionaires’ Amendment, however, relied on a never before accepted "egalitarian" interpretation of the First Amendment. Fortunately, the Court rejected this egalitarian interpretation.

Instead, CCP chairman Brad Smith observed that "the Court’s decision has ramifications beyond the ‘Millionaire’s Amendment.’ It also calls into question state public financing laws that effectively penalize candidates who choose to fund their campaigns with voluntary, private contributions. And it makes an important reaffirmation of the privacy rights of citizens, noting that compelled disclosure can only be imposed when justified by a compelling state interest."

But, if the "leveling the playing field" rationale had been accepted by the court, Congress would have been given another weapon with which to bludgeon First Amendment speech rights. 

As mentioned above, this interpretation of the First Amendment has been consistently rejected by the Courts and this rejection was reaffirmed yet again in the decision handed down today.

The Supreme Court declared in the landmark campaign finance case Buckley v. Valeo, that "[T] he concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment." 

Similarly in Hurley v. Irish American Gay, Lesbian and Bisexual Group of Boston, the Court said that manipulating different groups’ relative ability to speak "is a decidedly fatal objective."

In the opinion issued today, Alito wrote that "the argument that a candidate’s speech may be restricted in order to ‘level electoral opportunities’ has ominous implications."

Justice Alito reaffirmed the Buckley as the constitutional floor by recognizing the incongruence of the Millionaire’s Amendment with Buckley. He noted that the Millionaire’s Amendment asymmetrical contribution limits and coordinated party expenditures are "at war with Buckley’s analysis of expenditure and contribution limits."

But, while the Supreme Court did not overturn the constitutionality of contribution limits, the Millionaires’ Amendment – which tripled contribution limits to candidates facing a self-financed opponent – still suggests that contribution limits should be at least three times higher than the current limit of $2,300 per election.  

After all, there is no way to credibly argue that receiving a contribution in excess of $2,300 is corrupting when facing an opponent of ordinary financial means, but then, if your opponent happens to be rich, that same contribution amount no longer corrupts. 

And Alito suggests that if one believes that contribution limits "make it harder for candidates who are not wealthy to raise funds and therefore provide a substantial advantage for wealthy candidates" – as the asymmetrical contribution limits suggest- and the current contribution limits are not needed in order to combat corruption (also suggested by the asymmetrical contribution limits), "then the obvious remedy is to raise or eliminate those limits."

But, instead of taking the route suggested by Alito, Congress through the Millionaire’s Amendment made "a legislative effort to mitigate the untoward consequences of Congress’ own handiwork."

The contribution limit paradox indicates that the real aim of the Millionaire’s Amendment was to protect incumbents.   None other than Jack Davis’s former opponent Rep. Tom Reynolds, who voted against the House version of McCain-Feingold, declared during debate over the bill that, "my colleagues should live in fear, all 435 of us, that a wealthy American decides to run."

"Mr. Reform," John McCain, said the Millionaires’ Amendment would pass because, "everyone [was] scared to death of waking up one morning and reading in the newspaper that some Fortune 500 C.E.O. or heiress is going to run against them."

 "This is what I would call incumbency protection," Sen. Christopher Dodd insisted.

Simply put, there are few things an incumbent fears more than a well-financed challenger.  Unfortunately for the officeholders considering the Millionaires’ Amendment, the Supreme Court had already determined that lawmakers cannot restrict how much money individuals can spend on their own campaigns.

So, lawmakers did what they could and made sure that contribution limits would be tripled if they ever faced a self-financed challenger.  In just the two elections following the passage of McCain-Feingold, the Millionaires’ Amendment has been triggered more than 100 times.  And while the provision applied equally to self-financing incumbents and challengers, it is often only the incumbent who has an established fundraising list, full of previously tapped out contributors, to which they can turn back to in their time of need.

McCain-Feingold generally, and the Millionaires’ Amendment specifically, reveal much of what is wrong with our highly regulated campaign finance system.  Too often, the effect of regulation is to shield officeholders from criticism and protect them from serious challenge.

The Court, in reviewing the Millionaires’ Amendment, implored to Congress that "enough is enough."