The Supreme Court last week set April 22 as the date for oral arguments in Davis v. FEC – the case challenging the Millionaires’ Amendment.
The challenge to the provision, part of the "McCain-Feingold" campaign finance law, exposes the dubious underlying rationale behind our campaign finance laws.
Advocates of strict campaign finance regulations have justified restrictions on political speech by arguing for years that campaign finance laws guard against corruption and the "appearance of corruption." Davis’s complaint brings to light the paradoxical defense of contribution limits and the Millionaires’ Amendment.
Davis v. FEC challenges the constitutionality of the so-called Millionaire’s Amendment, which increases contribution limits by at least threefold if a candidate faces a self-financed opponent and allows the candidate unlimited coordination with state and national political party committees. The law also mandates more onerous reporting requirements for the self-financed candidate – essentially giving the opponent a preview of a campaign’s strategy.
The lawsuit is brought forward by a former Democratic congressional candidate in New York’s 26th District named Jack Davis.
In his challenge, Davis makes a compelling three-pronged argument against the constitutionality of the Millionaire’s Amendment. He contends that the Millionaire’s Amendment undermines the rationale used to justify contribution limits, is blatantly designed to protect incumbents, and relies on an egalitarian interpretation of the First Amendment.
Most damaging to proponents of strict campaign finance laws is the outright assault on the fallacy of contribution limits brought to light in this complaint.
The Supreme Court, in Buckley v. Valeo, upheld limits on contributions by accepting the theory that government has a compelling interest in protecting against the corruption or appearance of corruption of candidates and officeholders. By tripling contribution limits – currently set at $2,300 – when faced with a self-financed opponent the Millionaire’s Amendment suggests that, at a minimum, the contribution amount that could even begin to pose an appearance of corruption is at least $6,900.
After all, an incumbent facing a well-financed opponent has a much greater need for campaign cash than an officeholder facing an under-funded challenger. And yet, the Millionaire’s Amendment triples the contribution limit for the desperate officeholder while maintaining that the safe incumbent could be corrupted by one-third the amount of money.
This contribution limit paradox reveals that the true motive behind the Millionaire’s Amendment is the protection of incumbents. Incumbents begin every election with significant financial and non-monetary advantages. They are able to generate positive press coverage through their official duties, enjoy a franking privilege worth tens of thousands of dollars, and begin each campaign with much higher name identification.
Often, the only way for a challenger to counter the incumbent’s built-in advantages is to spend money to get out his or her message. Not surprisingly, incumbents generally support restrictions on the ability of challengers to raise campaign funds.
But since the Supreme Court ruled that lawmakers can not restrict the amount of money that someone can spend funding their own race, they did the next best thing. Members of Congress ignored every argument they ever made in favor of contribution limits, allowing them to triple the resources available to them if ever faced with a serious, self-financed challenge.
This justification of the Millionaire’s Amendment, an attempt to "level the playing field" so that it tilts back in favor of the incumbent, relies on an interpretation of the First Amendment that has been consistently rejected by the Courts.
The Supreme Court has declared 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, any argument in this case based on the "level playing field" premise is unlikely to garner much sympathy from the bench. And, as discussed above, the usually dependable "corruption" rationale offers no defense for this law – in fact, it undermines it.
The best hope for supporters of the Millionaire’s Amendment is that it wins on a "technicality." The Department of Justice (DOJ), charged with defending the case, will likely argue that Davis does not "have standing" because his opponent did not accept any contributions in excess of the normal statutory contribution limit. The DOJ will also say that Davis’s speech was not chilled by the Millionaire’s Amendment because he still loaned his campaign $2.25 million.
But Davis v. FEC is no isolated case that affects a lone millionaire. Provisions of the Millionaire’s Amendment have been triggered more than 100 times since 2002. The issue will not go away even if the Court grants a stay of execution.
No matter the immediate outcome, Davis v. FEC strikes a blow to any effort to justify the current campaign finance regime as anything other than a blatant attempt to protect incumbent officeholders and restrict free speech.
