Posted April 17, 2008 by Tara Malloy
The Latest Challenge Before the Roberts Court
The following piece ran as a guest opinion column in The Politico on April 17, 2008 .
Challenges to our nation’s election laws have surged since the appointment of Justices John Roberts and Samuel Alito significantly altered the composition of the U.S. Supreme Court.
Multiple campaign finance cases have been accepted by the Roberts court, and still more test cases are in the pipeline of lower federal courts. To date, the new court’s decisions have not been encouraging for the reform community, with recent decisions scaling back federal restrictions on corporate and union issue ads and overturning Vermont’s contribution limits.
On Tuesday, the high court will hear the latest challenge to a provision of the Bipartisan Campaign Reform Act in Davis v. Federal Election Commission. Jack Davis, a millionaire Democratic candidate who ran two self-financed campaigns for the House of Representatives in upstate New York, has challenged the so-called Millionaires’ Amendment.
This BCRA provision raises the limits on contributions to a congressional candidate if his or her opponent spends above a threshold amount of personal funds on his or her campaign. It also relaxes the limits on political party spending in coordination with a candidate whose opponent is self-financed.
In light of the Supreme Court’s enthusiasm for re-examining its precedent on campaign finance law, reformers fear that the Davis case, although relatively limited in its focus, may have broader repercussions for campaign finance regulation. While the Campaign Legal Center has urged the Supreme Court to uphold the Millionaires’ Amendment, our paramount concern is that the court refrain from any sweeping judgments that could jeopardize campaign finance laws and, more broadly, public financing programs.
Congress enacted the Millionaires’ Amendment to address the concern that candidates of modest means were at a competitive disadvantage in increasingly expensive federal elections. In 2006, the average cost of winning a seat in the U.S. House of Representatives was approximately $1,263,000, according to the Center for Responsive Politics. On the Senate side, the average cost of winning a seat in 2006 was a staggering $8,817,000 — almost double the cost in 2002.
Given these spiraling expenses, the public may well wonder if federal politics is becoming a game that only the wealthy can play. This is particularly the case because the Supreme Court has consistently invalidated any limits on a candidate’s expenditure of personal funds. Given these political and legal circumstances, it comes as no surprise that the Republican Party, now reduced to minority status and facing the inherent fundraising hurdles such status entails, has turned to recruiting wealthy candidates able to underwrite their own campaigns.
Davis claims that the Millionaires’ Amendment violates the First Amendment because it impermissibly burdens his speech and deters self-financing candidates from running for Congress by conferring benefits on their opponents. He maintains that this burden on speech is not justified by any compelling state interest, claiming that Congress’ desire to level the playing field is not a legitimate goal.
In a friend-of-the-court brief filed with the Supreme Court, the Legal Center joined a coalition of reform groups to argue that the Millionaires’ Amendment places no restraints on candidates who choose to self-finance their political campaigns — and that, consequently, the government’s goals need not be closely scrutinized by the court.
Instead of setting a ceiling on the expenditures a wealthy candidate may make, the provision simply relaxes certain contribution and coordinated-expenditure limits that would otherwise apply to his or her opponent. Further, while it is true that an interest in “leveling the playing field” has not been deemed by courts to be a sufficiently compelling government goal to justify the heavy burden of an expenditure limit, the Millionaires’ Amendment entails no such limit.
And the Supreme Court has never ruled on whether Congress may take more modest steps to counteract the public perception that congressional seats have a price tag that only the affluent can afford. A law that provides benefits to candidates, such as the Millionaires’ Amendment, would seem to warrant less stringent review than a law that directly limits campaign expenditures or contributions.
Ultimately, Davis’ challenge is not about a burden on his own speech, but rather about his concern that an opponent might receive more funds — and engage in more speech — because of the Millionaires’ Amendment. But Davis has no constitutional right to outspend his opponents. To hold that a benefit to a political opponent constitutes an automatic injury to Davis’ speech rights would be a dangerous turn for First Amendment jurisprudence.
This stance would seem to foreclose governmental attempts to enhance political discourse, through, for example, state public financing programs that give participating candidates additional public funds if they face a high-spending opponent who opts out of the program.
Lower courts have almost uniformly approved such programs, holding that the provision of benefits to candidates participating in public financing programs facilitates more speech and does not necessarily chill the speech of those candidates who voluntarily decline to participate in such programs. The 1st U.S. Circuit Court of Appeals has explicitly acknowledged that high-spending candidates have “no right to speak free from response.”
In our brief, we at the Legal Center urge the Supreme Court to uphold the Millionaires’ Amendment. Regardless of the outcome, however, the court should not disturb the principles set forth in the lower court decisions upholding state public financing programs. The First Amendment establishes the right to speak, not a right to limit the speech of one’s adversaries. We hope this Supreme Court respects this distinction.
