SCOTUS Strikes Down Millionaire's Amendment

Lost in the punditry about Barak Obama’s decision to opt-out of public funding for the general election is Thursday’s United States Supreme Court ruling eviscerating part of the McCain-Feingold federal election reforms, and giving the wealthiest another tool with which to dominate federal politics. In Davis v. FEC SCOTUS struck down the “Millionaire’s Amendment” of “McCain-Feingold” which allowed federal candidates who were outspent by personally wealthy opponents to raise funds in excess of federal contribution limits. Here in Oregon, Senate candidate Gordon Smith can now dig deeper into his own pockets to finance his re-election bid without his opponent, Jeff Merkely, being able to raise more cash than the current restrictions.

The constitutionality of the “Millionaire’s Amendment” was challenged as part of the many wide-ranging assaults on the 2002 campaign finance law--the Bipartisan Campaign Reform Act of 2002–(BCRA or “McCain-Feingld.”) The treatment of campaign finance reform over the past five years shows how the balance of SCOTUS has changed with the appointments of CJ Roberts and AJ Alito.

Congress adopted Section 319 of BCRA as a way to correct an inequity resulting from the 1971 SCOTUS decision in Buckley v. Valeo. There, the Court struck down an earlier law’s cap on the amount of personal funds that a candidate could spend on her election, leaving wealthy candidates free to spend as much as they wanted to try to get elected. At the same time, the Court left in place strict limits on the amount of campaign cash that a candidate could collect from the public. That made it very difficult for candidates who had to raise money from the public to compete with “millionaire” opponents. In 2002, with Section 319 to BCRA, Congress tried to level the field a little. It relaxed the limits on contributions that a candidate could raise if he or she had an opponent whose personal fortune was being tapped for the campaign-- the “Millionaire’s Amendment.” Predictably a perennial loser for an upstate New York congressional seat, Jack Davis (a Democratic nominee), filed suit claiming that the restrictions on the use of his personal wealth in pursuit of office violated his federal constitutional rights to free speech and equal protection.

SCOTUS held that the unequal treatment of self-financed candidates was unconstitutional.

This decison is the second Roberts Court blow to federal campaign finance reform. Last year SCOTUS opened a wide loophole to the advertising restrictions that the Rehnquist Court had allowed to stand when McCain-Feingold first came before it in 2003.

In 2003, in response to challenges that the law was too broad and unnecessarily regulated conduct that had not been shown to cause corruption (such as advertisements paid for by corporations or unions), the Court found that such regulation was necessary to prevent the groups from circumventing the law. Justices O'Connor and Stevens wrote that "money, like water, will always find an outlet" and that the government was therefore justified in taking steps to prevent schemes developed to get around the contribution limits.

But in 2007 the Roberts Court held that the only advertisements that can be kept off the air in the pre-election period covered by the law — the 30 days before a primary election and the 60 days before a general election — are those that are “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.”

Effectively overruling the 2003 decision and dismissing its rationale for the advertising restrictions, CJ Justice Roberts summed up the new majority’s view toward campaign finance regulation. “Enough is enough,” the CJ wrote. The attacks on campaign spending limits have wide support from the A.F.L.-C.I.O., as well as the United States Chamber of Commerce and the National Rifle Association. In its pursuit of “purity” over common sense, the American Civil Liberties Union supports the rights of monied special interests to dominate election discourse and circumvent Congressional reforms by filing an Amicus (“friend of the court”) brief.