Supreme Court strikes down 'millionaire's amendment'

McClatchy NewspapersJune 26, 2008 

WASHINGTON — Wealthy political candidates caught a break Thursday as the Supreme Court struck down a campaign finance rule that benefits their opponents.

By 5-4, the court ruled that Congress went too far when it loosened fundraising restraints for politicians facing millionaires who invest in their own campaigns. The court's majority declared that the campaign-finance double standard violated First Amendment free-speech guarantees.

"The argument that a candidate's speech may be restricted in order to level electoral opportunity has ominous implications because it would permit Congress to arrogate the voters' authority to evaluate the strength of candidates competing for office," Justice Samuel Alito wrote for the majority.

The decision, arising out of a New York state congressional race, marks the second time in as many years that the court has undercut a 2002 campaign finance law co-authored by Republican Sen. John McCain of Arizona. The now-diminished law is the signature Capitol Hill accomplishment for McCain, the all-but-certain Republican presidential nominee.

Dubbed the "millionaire's amendment," the provision struck down Thursday was billed as a way to level the campaign-funding playing field. It didn't restrict how much money the wealthy candidate could spend.

"The millionaire's amendment does not impose any burden whatsoever on the self-funding candidate's freedom to speak," Justice John Paul Stevens wrote in dissent, adding that "it does no more than diminish the unequal strength of the self-funded candidate."

The opinion, one of the last to be issued by the court for the now-concluded 2007-08 term, broke down along predictable fault lines. Chief Justice John G. Roberts and Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas joined Alito in striking down the provision. Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer joined Stevens in the main dissent.

Even with the November election months away, the broader consequences of the ruling in Davis v. Federal Election Commission may unfold slowly.

Sen. Russ Feingold, the Wisconsin Democrat who co-authored the overall campaign finance bill with McCain, stressed that the case left intact key elements of the 2002 law, including a ban on so-called "soft money," unlimited donations, even from corporate and union treasuries, that could be used for voter mobilization and party-building efforts.

Still, dozens of candidates have been eligible for the millionaire's amendment provisions since the law was enacted. They include, most notably, then-Senate candidate Barack Obama in 2004. Obama was able to collect larger contributions because his Democratic primary opponent, Blair Hull, spent $28.6 million of his own money.

Bradley A. Smith, a campaign-finance law skeptic formerly of the Federal Election Commission and now with the Center for Competitive Politics, predicted that the ruling "calls into question" other campaign laws that provide public financing to candidates who voluntarily restrict spending.

"It is potentially a blow to public financing systems, which were already undermined earlier this week by Barack Obama's decision not to take presidential public funding" this fall, Columbia Law School professor Richard Briffault said.

The provision affected candidates in the House of Representatives and the Senate differently. The New York businessman who successfully challenged it, Jack Davis, had been a failed House candidate.

In the House, the provision kicked in once a candidate — the presumed millionaire — spent at least $350,000 of his or her own money. The opponent then could collect significantly larger campaign contributions. The usual $2,300 limit on individual contributions would triple, and the $40,900 limit on political party expenditures would be lifted altogether.

The provision also imposed hefty reporting requirements that skeptics considered onerous. For instance, former California Rep. Doug Ose had to file multiple reports this year as he spent more than $2.8 million of his own money in an unsuccessful effort to win back a House seat.

Another failed self-financing House candidate, J. Edgar Broyhill II of North Carolina, paid a $71,100 fine for allegedly failing to file the required spending reports.

"The disclosure rules are not only burdensome but perilous," Stanford Law School professor Kathleen M. Sullivan wrote in a brief filed for Broyhill.

Alito and the court's majority agreed, concluding that the congressional "scheme impermissibly burdens his First Amendment right to spend his own money for campaign speech." The burden, Alito said, comes when "discriminatory" larger contribution limits kick in for the opponent.

"Leveling electoral opportunities means making and implementing judgments about which strengths and weaknesses should be permitted to contribute to the outcome of an election," Alito wrote.

Davis spent about $1.2 million on his failed 2004 House race and about $2.2 million on his failed 2006 race. He came closest in 2006, losing to incumbent Republican Thomas Reynolds by 52-48 percent.

Reynolds formerly chaired the National Republican Congressional Committee, the Republican Party's fundraising arm in the House. Politically weakened for an assortment of reasons, Reynolds has since announced that he'll retire next year.

(Greg Gordon contributed to this report.)

ON THE WEB

Supreme Court opinion in Davis v. F.E.C.

McClatchy Newspapers 2008

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