Posted March 27, 2008 by Legal Center Staff

A Millionaire's Quest to Silence Opponents in the Name of Free Speech

The Campaign Legal Center, joined by three other organizations (Democracy 21, the Brennan Center for Justice at NYU School of Law, and Public Citizen) filed a friend of the court brief yesterday with the Supreme Court in a case challenging the so-called Millionaire's Amendment to the Bipartisan Campaign Reform Act of 2002 (BCRA). You can access the brief here. A provision of BCRA that temporarily raises contribution limits and suspends limits on spending coordinated with political parties, the Millionaire’s Amendment has made it possible for candidates to run against wealthy, self-financing opponents who spend personal funds in excess of a specified monetary threshold.

Jack Davis, who ran two self-financed campaigns for Congress, challenged the Millionaire's Amendment on the ground that it unconstitutionally chills millionaires like himself from running self-financed campaigns. A three-judge district court in Washington , D.C. rejected the claim.

The Legal Center 's friend-of-the-court brief argued, among other things, that the Millionaire's Amendment actually "expands, and does not restrict, the opportunities for speech in the political process" by enabling non-wealthy candidates to raise the funds necessary to compete against wealthy opponents. The Legal Center's brief also made the point that there have been no limits placed on Davis' right to spend as much money as he wants, and thus his speech is not in any way chilled or infringed by the challenged provision. Instead, the provision actually relaxes, in some circumstances, otherwise applicable contribution and coordinated- expenditure rules with regard to opponents of self-financing candidates who spend more than $350,000 from personal funds.

The Legal Center also urged rejection of Davis's and his amici's efforts inviting the Court opine on the validity of lower court decisions upholding state public financing laws.  The three-judge court below had analogized the Millionaire's Amendment to “trigger” provisions in state public financing programs which give candidates who voluntarily participate in such programs additional benefits (such as larger public funds grants) if they face a high-spending candidate who opts out of the program.  Amici supporting Davis attempted to use this line of reasoning as pretext for requesting the Supreme Court to rule upon the constitutionality of such programs.  The Legal Center’s brief argued that such matters were not before the Court and therefore was inappropriate.  The Legal Center also distinguished such state public financing schemes from the Millionaire's Amendment, and noted that such schemes "involve a unique set of governmental interests that must be evaluated on their own terms and in the context of the specific statutory incentives used."

The fact that the Millionaire’s Amendment relaxes certain contribution limits in no way impugns the general validity of the anti-corruption rationale supporting campaign contribution limits, the Legal Center’s brief noted.  In making this argument, the Legal Center stated that Congress carefully balanced its interest in preventing corruption with its concerns that non-wealthy candidates were being driven from the political process.

The legal team that submitted the brief was led by attorneys Seth Waxman, former Solicitor General of the United States, and Roger Witten, of the law firm of WilmerHale.