Brennan Center for Justice

Cross-posted from the ACS Blog 

April 22, the Supreme Court will
hear oral arguments in a case testing the constitutionality of the so-called
"Millionaires' Amendment" of the Bipartisan Campaign Reform Act ("BCRA," also
known as "McCain-Feingold").  The Millionaires'
Amendment passed in 2002 as part of a reform package to update and improve the
nation's campaign finance laws. 

The Millionaires'
Amendment,
somewhat
levels the playing field for opponents of self-financed candidates who plan to spend
$350,000 or more of their own money on their campaign for federal office.  Once a candidate for federal office spends
more than $350,000 of personal funds on a campaign, their opponent
will be allowed to raise private funds in amounts that are triple the normal
limits—up to $6,900/person/election—and can coordinate additional expenditures
with his or her political party, up to a cap. 
The Amendment also requires certain financial disclosures from both
candidates so that the FEC can monitor when the cap has been reached.  In all cases, the self-financed candidate can
spend as much money as he or she desires.  

The law was
challenged by Jack Davis, of New York,
who alerted the FEC that he intended to spend $1 million dollars of his own
money in his 2006 run for Congress.  In
the case, he argues that it is unconstitutional under First and Fifth
Amendments, and
claims that the additional benefits for his opponents chilled his own
speech. 

Mr. Davis lost
on all counts in the lower court, which
found that the Millionaires' Amendment did not burden his speech since it "places
no restrictions on a candidate's ability to spend unlimited amounts of his
personal wealth to communicate his message to voters, nor does it reduce the
amount of money he is able to raise from contributors."

Instead, the court
held, the statute merely "provides a benefit to his opponent, thereby
correcting a potential imbalance in resources available to each candidate."  Thus, the statute "preserve[s] core First
Amendment values by protecting the [opposing] candidate's ability to enhance
his participation in the political marketplace."  The court also rejected Mr. Davis's equal
protection argument, because he had failed to show that Section 319 treats
similarly situated persons differently.  It
is this opinion that Davis
seeks to overturn in the Supreme Court.  The Brennan
Center for Justice submitted
an amicus brief in support of the FEC's
position. 
 

The Davis case has
its roots in the seminal case of Buckley
v. Valeo, which (in)famously stands for
the proposition that money is speech.  What
Buckley actually says is,

A
restriction on the amount of money a person or group can spend on political
communication during a campaign necessarily reduces the quantity of expression
by restricting the number of issues discussed, the depth of their exploration,
and the size of the audience reached.  This is because virtually every means
of communicating ideas in today's mass society requires the expenditure of
money.  

242 U.S.
1, 19 (1976).  Buckley stuck an uneven balance that we have been living with ever
since.  It is constitutional to regulate
political contributions but it is unconstitutional to regulate expenditures, including
expenditures by a wealthy candidate on his own candidacy.  Despite the fact that most self-financed
candidates end up losing their elections for lack of a strong base of support
among voters, post-Buckley,
self-financed candidates, who can make a huge media buy with a single check,
have often had a demonstrable funding advantage over other candidates, who must
gather hundreds of small contributions before making a similar advertising purchase.  As races for Congress have grown more
expensive over time, parties have increasingly turned to candidates who can
afford to self-finance to run for election. 
This trend could discourage candidates of lesser means from running for
office.  The Millionaires' Amendment was
a response by Congress to this Buckley-inspired
doctrinal inequity.

This case will
be a key test of how hostile the Roberts Court has actually become to campaign
finance regulation on the heels of 2006's
Randall v.
Sorrell (striking down $200-$400 contribution limits as being
too low and invalidating expenditure limits in Vermont) and 2007's FEC v. Wisconsin
Right to Life II (invalidating the application of BCRA's electioneering
communications regulations to a political ad by a nonprofit.  BCRA defines "electioneering communications"
as television and radio communications that refer to a clearly identified
candidate for federal office, that are publicly distributed within 60 days
before a general election or 30 days before a primary election, and are targeted
to the relevant electorate.)  

Mr. Davis and his amici have argued that disclosure under the Millionaires' Amendment is
particularly burdensome.  This is the
first chance since the 2003 decision in McConnell for
the Court to opine on disclosure burdens, a subject which at that time garnered
8 supportive votes from Justices on the Court.  Disclosure is widely viewed as the least
restrictive tool in the campaign finance toolbox.  

This case is
also an opportunity for the Court to clarify (1) whether the specific $350,000 "trigger"
provision in the Millionaires' Amendment is permissible, and (2) whether
generally mechanisms to equalize funding among candidates with different
financial resources are allowable.  While
the endorsement of such a mechanism has been adopted by lower courts in the
public financing context, the Davis case is
the first time that the Supreme Court will entertain this type of argument when
both candidates are using private funds.

If the Court
would like to rid itself of this case on mootness grounds,
it certainly has the opportunity, since the 2006 election is undoubtedly
over.  If the Court would like to avoid
the merits it could also punt based on Mr. Davis's failure to establish an
actual injury since although Mr. Davis spent significant sums of his own money in
his 2006 race for Congress, his opponent did not utilize of any of the
Millionaires' Amendment's benefits.