McCain-Feingold, the signature legislation of the presumptive Republican nominee for president, took another blow yesterday as the Supreme Court struck down the so-called “Millionaire’s Amendment” in yet another 5-4 decision.
“Supporters of reasonable campaign finance regulation are now zero for three in the Roberts court,” said Richard L. Hasen, a professor at Loyola Law School in Los Angeles. “This is a signal of what is to come. What could easily fall following this case are the longstanding limits on corporate and union spending in federal elections.”
The law at issue in Thursday’s decision imposed special rules in races with candidates who finance their own campaigns. Those candidates are required to disclose more information, and their opponents are allowed to raise more money. The Supreme Court has upheld campaign finance laws meant to drive the potentially corrupting influence of large contributions out of politics. But the millionaire’s amendment, part of the 2002 McCain-Feingold campaign finance law, is based on a different rationale: that of compensating for the additional financial resources available to candidates willing to spend their own money.
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Justice Samuel A. Alito Jr., writing for the majority, said the asymmetry imposed by the law was unacceptable. “We have never upheld the constitutionality of a law that imposes different contribution limits for candidates who are competing against each other,” Justice Alito wrote.
The law allows opponents of candidates for the House who spend more than $350,000 of their own money to receive triple the usual amounts — $6,900 rather than $2,300 — from individual contributors when a complex statutory formula is met. The law also waives limits on expenditures from political parties. The law was a response to Supreme Court rulings that forbid limits on the amount that candidates can spend on their own behalf. But Justice Alito wrote that the legislative response was unconstitutional because it “imposes an unprecedented penalty on any candidate who robustly exercises” free speech rights guaranteed by the First Amendment. Rich candidates, Justice Alito said, must “choose between the First Amendment right to engage in unfettered political speech and subjection to discriminatory fund-raising limitations.”
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“Different candidates have different strengths,” Justice Alito wrote. “Some are wealthy; others have wealthy supporters who are willing to make large contributions. Some are celebrities; others 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,” Justice Alito continued. “The Constitution confers upon voters, not Congress, the power to choose the members of the House of Representatives.”
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Justice John Paul Stevens, joined by Justices Stephen G. Breyer, Ruth Bader Ginsburg and David H. Souter, dissented, saying that both “reducing the importance of wealth as a criterion for public office and countering the perception that seats in the United States Congress are available for purchase by the wealthiest bidder” offered valid justifications for the amendment. “The millionaire’s amendment quiets no speech at all,” Justice Stevens wrote. “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.”
While I firmly agree with the outcome and the reasoning of the majority, Stevens actually has the better public policy argument.
The Court here continues a long line of opinions which proclaim that, in political campaigns, the ability to spend money to buy television advertising is tantamount to speech. Yet, it also lets stand than aberrant ruling which says that the desire to protect against the theoretical corrupting influence of outside money is a sufficiently compelling public purpose for restricting said speech. Under that premise, then, it’s hard to argue that preventing rich people from outspending a candidate hamstrung by the law isn’t equally compelling. If a candidate is going to be corrupted by having a corporation or interest group donating $100,000 why isn’t it corrupt for, say, the CEO of said corporation or head of said interest group to spend $3 million getting himself elected?
For his part, John McCain is not concerned by the ruling. He notes that this provision was, as the name implies, an amendment “added on the floor during debate.” (Contra Ann Althouse, a floor amendment has little in common with a Constitutional Amendment. The former is often necessary compromise to get a larger bill passed; the latter is an independent action requiring supermajority passage.) The takeaway is that “Today’s Supreme Court decision in Davis v. FEC does not affect the Court’s landmark ruling in McConnell v. Federal Election Commission upholding the constitutionality of the soft money ban contained in BCRA. That ban is at the core of the reforms I worked for in the long bipartisan fight to pass campaign finance reform.”
He’s right. Yesterday’s Court decision protects the interests of a relative handful of millionaire candidates for office. But it does not restore the rights of tens millions of Americans who have organized themselves politically to spend their money — which the Court acknowledges is speech — as they see fit in trying to defeat said millionaires. It’s a very strange paradox.
