Remember the Millionaire's Amendment? Basically, it says that if a candidate self-funds his House or Senate campaign beyond a certain level (and the math is complicated) and makes the race less competitive, the challenger can start raising funds at twice or even three times ($6900/election) the contribution limits otherwise applicable, and the self-funder becomes subject to various mandatory disclosure requirements regarding his use of his own funds.
Well, based on today's 5-4 Supreme Court decision authored by Justice Alito, it's just a memory now. Since I can't imagine Congress acting anytime soon, in the 2008 cycle millionaire self-funding candidates can spend to their heart's content without there being any recourse for their opponents.
Essentially, what killed this law was that the raised contribution limits applied were only available to the challenger, and the Court found this to be unduly discriminatory:
In Buckley, we soundly rejected a cap on a candidate’s expenditure of personal funds to finance campaign speech. We held that a "candidate . . . has a First Amendment right to engage in the discussion of public issues and vigorously and tirelessly to advocate his own election" and that a cap on personal expenditures imposes "a substantial," "clea[r]" and "direc[t]" restraint on that right. We found that the cap at issue was not justified by "[t]he primary governmental interest" proffered in its defense, i.e., "the prevention of actual and apparent corruption of the political process." Far from preventing these evils, "the use of personal funds," we observed, "reduces the candidate’s dependence on outside contributions and thereby counteracts the coercive pressures and attendant risks of abuse to which . . . contribution limitations are directed.". We also rejected the argument that the expenditure cap could be justified on the ground that it served "[t]he ancillary interest in equalizing the relative financial resources of candidates competing for elective office." This putative interest, we noted, was "clearly not sufficient to justify the . . . infringement of fundamental First Amendment rights." Buckley’s emphasis on the fundamental nature of the right to spend personal funds for campaign speech is instructive. While BCRA does not impose a cap on a candidate’s expenditure of personal funds, it imposes an unprecedented penalty on any candidate who robustly exercises that First Amendment right. Section 319(a) requires a candidate to choose between the First Amendment right to engage in unfettered political speech and subjection to discriminatory fundraising limitations. Many candidates who can afford to make large personal expenditures to support their campaigns may choose to do so despite §319(a), but they must shoulder a special potentially significant burden if they make that choice.
The majority determined that "leveling the playing field" was not a legitimate reason to burden that First Amendment right:
The argument that a candidate’s speech may be restricted in order to "level electoral opportunities" has ominous implications because it would permit Congress to arrogate the voters’ authority to evaluate the strengths of candidates competing for office. See Bellotti, supra, at 791–792 ("[T]he people in our democracy are entrusted with the responsibility for judging and evaluating the relative merits of conflicting arguments" and "may consider, in making their judgment, the source and credibility of the advocate"). Different candidates have different strengths. Some are wealthy; others have wealthy supporters who are willing to make large contributions. Some are celebrities; some have the benefit of a well-known family name. Leveling electoral opportunities means making and implementing judgments about which strengths should be permitted to contribute to the outcome of an election. The Constitution, however, confers upon voters, not Congress, the power to choose the Members of the House of Representatives, Art. I, §2, and it is a dangerous business for Congress to use the election laws to influence the voters’ choices.
Justice Stevens writes for the four dissenters, who maintain that the Millionaire's Amendment reflected a reasonable choice for Congress to make:
The thrust of Davis’ First Amendment challenge is that by relaxing the contribution limits applicable to the opponent of a self-funding candidate, the Millionaire’s Amendment punishes the candidate who chooses to self-fund. Extrapolating from the zero-sum nature of a political race, Davis insists that any benefit conferred upon a self-funder’s opponent thereby works a detriment to the self-funding candidate. Accordingly, he argues, the scheme burdens the self-funding candidate’s First Amendment right to speak freely and to participate fully in the political process. But Davis cannot show that the Millionaire’s Amendment causes him -- or any other self-funding candidate -- any First Amendment injury whatsoever. The Millionaire’s Amendment quiets no speech at all. On the contrary, it does no more than assist the opponent of a self-funding candidate in his attempts to make his voice heard; this amplification in no way mutes the voice of the millionaire, who remains able to speak as loud and as long as he likes in support of his campaign. Enhancing the speech of the millionaire’s opponent, far from contravening the First Amendment, actually advances its core principles. If only one candidate can make himself heard, the voter’s ability to make an informed choice is impaired. And the self-funding candidate’s ability to engage meaningfully in the political process is in no way undermined by this provision.
Minimizing the effect of concentrated wealth on our political process, and the concomitant interest in addressing the dangers that attend the perception that political power can be purchased, are, therefore, sufficiently weighty objectives to justify significant congressional action. And, not only was Congress motivated by proper and weighty goals in crafting the Millionaire’s Amendment, the details of the scheme it devised are genuinely responsive to the problems it identified. The statute’s "Opposition Personal Funds Amount" formula permits a self-funding candidate to spend as much money as he wishes, while taking into account fundraising by the relevant campaigns; it thereby ensures that a candidate who happens to enjoy a significant fundraising advantage against a self-funding opponent does not reap a windfall as a result of the enhanced contribution limits. Rather, the self-funder’s opponent may avail himself of the enhanced contribution limits only until parity is achieved, at which point he becomes again ineligible for contributions above the normal maximum.
It seems uncontroversial that "there is no good reason to allow disparities in wealth to be translated into disparities in political power. A well-functioning democracy distinguishes between market processes of purchase and sale on the one hand and political processes of voting and reasongiving on the other." Sunstein, Political Equality and Unintended Consequences, 94 Colum. L. Rev. 1390 (1994). In light of that clear truth, Congress’ carefully crafted attempt to reduce the distinct advantages enjoyed by wealthy candidates for congressional office does not offend the First Amendment.
In addition, Justice Stevens offers thoughts of his own, thankfully shared by none of his fellow dissenting justices, beacuse this is just thoroughly repugnant to the First Amendment:
In my view, a number of purposes, both legitimate and substantial, may justify the imposition of reasonable limitations on the expenditures permitted during the course of any single campaign. For one, such limitations would "free candidates and their staffs from the interminable burden of fundraising." Moreover, the imposition of reasonable limitations would likely have the salutary effect of improving the quality of the exposition of ideas. After all, orderly debate is always more enlightening than a shouting match that awards points on the basis of decibels rather than reasons. Quantity limitations are commonplace in any number of other contexts in which high-value speech occurs. Litigants in this Court pressing issues of the utmost importance to the Nation are allowed only a fixed time for oral debate and a maximum number of pages for written argument. As listeners and as readers, judges need time to reflect on the merits of an issue; repetitious arguments are disfavored and are usually especially unpersuasive. Indeed, experts in the art of advocacy agree that "lawyers go on for too long, and when they do it doesn’t help their case." It seems to me that Congress is entitled to make the judgment that voters deserve the same courtesy and the same opportunity to reflect as judges; flooding the airwaves with slogans and sound-bites may well do more to obscure the issues than to enlighten listeners. At least in the context of elections, the notion that rules limiting the quantity of speech are just as offensive to the First Amendment as rules limiting the content of speech is plainly incorrect.
This may not have been a perfect law -- and it's certainly easy enough to raise the limits symmetrically instead -- but from a political perspective I worry about the implications of changing the rules with about four months to go before Election Day. After all, part of how Barack Obama was able to remain competitive his 2004 Senate primary against Blair Hull -- who spent $28,000,000+ of his own money on the race -- is that Obama was able to secure larger checks from his supporters. (It also, to be sure, aided Joe Lieberman in his race against Ned Lamont.) 2008's candidates will have to find other ways to remain competitive.
The more ominous implication is what this may mean for public financing systems, which after all are premised on government's ability to institute measures to level the electoral playing field. Rick Hasen, Bob Bauer have more.
