Supreme Court to Review 'Millionaires' Amendment'

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By Robert Barnes
Washington Post Staff Writer
Saturday, January 12, 2008

The Supreme Court announced yesterday that it will review the constitutionality of the so-called Millionaires' Amendment, which allows opponents of some self-funded congressional candidates to raise more money than federal law normally allows.

The court's decision would come in time to affect the 2008 congressional campaigns.

The law is being challenged by Democrat Jack Davis, who lost in 2004 and 2006 to Rep. Thomas M. Reynolds (R-N.Y.). In the 2006 race, Davis spent more than $2.2 million of his own money, and lost 52 percent to 48 percent.

The provision is part of the Bipartisan Campaign Reform Act of 2002, commonly known as the McCain-Feingold Act. It allows a House candidate who receives notice that his opponent will spend more than $350,000 of his own money to receive triple the individual campaign contribution limit of $2,300, even if the individual giver has already contributed the maximum. The provision also permits coordination with party officials about campaign spending. There are similar provisions for Senate candidates.

Davis contends that the amendment violates his free-speech rights, imposing additional disclosure requirements, and cannot be justified by the government. He charges that its inclusion in the law is only to protect incumbents from self-financed challenges.

A three-judge panel in Washington upheld the law, saying that Davis was not compelled to spend his own money and subject himself to the requirements.

"The Millionaires' Amendment does not create disparities, but rather seeks to reduce them by 'leveling the playing-field' between candidates," said the opinion written by U.S. Appeals Judge Thomas B. Griffith.

But Davis contends that the Supreme Court has not recognized such a goal as being enough to justify the restrictions, and even so, the amendment "fails to achieve parity for self-financed candidates facing well-funded opponents.

"Instead, it rewards incumbents and others who have previously amassed large campaign 'war chests,' " he alleges.

Besides, he said, the government's interest in limiting campaign contributions is to lessen the chance of corruption that comes from large individual contributions. Davis said that goal cannot be met by allowing candidates to receive triple the limit.

U.S. Solicitor General Paul D. Clement said the lower court got it right, and that Reynolds did not take advantage of the loosened restrictions, either on raising more money than campaign limits allow or on coordinating spending with his party.

Because Davis's challenge is to the constitutionality of the campaign finance act, his appeal goes directly to the Supreme Court, and the justices must address the lower court's decision by either affirming or reversing it.

The case is Davis v. FEC.

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