Justices to Hear Challenge of Law That Affects Self-Funded Candidates

By Robert Barnes
Washington Post Staff Writer
Monday, April 21, 2008

Wealthy, self-financed congressional candidate Jack Davis says the McCain-Feingold Act's "Millionaire's Amendment," which raises the contribution limits for opponents of wealthy, self-financed candidates, is not only unfair but also unconstitutional, and his lawyers will try to persuade the Supreme Court of that tomorrow.

The provision violates his rights under the First and Fifth amendments, gives an advantage to his opponent and imposes reporting requirements that force him to reveal his campaign strategy, says Davis, an industrialist who unsuccessfuly ran for Congress as a Democrat in 2004 and 2006.

But that hardly means he has tired of trying. He announced last week that he will again run for the western New York seat of Rep. Thomas M. Reynolds (R), who is departing the House. This time Davis, 75, is pledging to spend $3 million of his money on the effort.

That would bring to about $7 million the amount Davis has spent trying to be elected to Congress -- a total that might serve as Exhibit A in Congress's defense of the law, which was passed to combat the impression that congressional seats can be "bought."

Davis says that is rich. "Look at the big contributors, look at the lobbyists that run things there," he said in an interview. "Are you telling me someone's not buying the election?"

Davis's is the latest constitutional challenge to the McCain-Feingold Act, named for Sens. John McCain (R-Ariz.) and Russell Feingold (D-Wis.) and formally known as the Bipartisan Campaign Reform Act of 2002. Justices upheld key elements of the act in 2003, but last year the reconstituted court led by Chief Justice John G. Roberts Jr. loosened a critical part of the law regarding corporate and union financing of advertising.

The court has not ruled on the issue at hand in Davis v. Federal Elections Commission.

Although it is called the Millionaire's Amendment, the provision kicks in when a House candidate spends $350,000 of his money. It imposes additional reporting requirements, allows the candidate's opponent to solicit three times the normal limit of $2,300 per contributor and grants greater spending by the opponent's party. There are similar provisions for Senate races.

Davis and Washington lawyer Stanley Brand say the provision discriminates against candidates who prefer to fund their own campaigns in order to "convey a message of independence from lobbyists, large donors and other political 'insiders.' " The amendment "infringes on the core political speech of self-financed candidates and violates their right to equal protection of the law," Davis's brief maintains.

But a panel of the U.S. District Court for the District of Columbia disagreed and granted summary judgment in favor of the FEC.

The court held that Davis's challenge "fails at the outset" because the amendment "places no restriction 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."

Solicitor General Paul D. Clement, representing the FEC and Congress, said in his brief to the Supreme Court that the provision is a "modest and constitutionally appropriate attempt to counteract the perception that a candidate who is wealthy enough can buy a seat in Congress."

Clement said the law was carefully tailored to comply with the court's 1976 landmark campaign finance ruling in Buckley v. Valeo. That decision upheld limits on campaign contributions but said candidates could not be restricted in how much of their own money is spent on their campaigns.

Clement said Congress has a legitimate role in reducing the disparities between wealthy candidates and others. "The perception that House and Senate seats may be bought and are the exclusive province of the rich are corrosive perceptions that Congress can seek to address," he wrote.

Davis argues that combating the corruption that could accompany large donations is what the court has approved, not simply leveling the playing field. Even if it had, he maintains, the amendment gives advantages to incumbents by not counting in its complicated formula money they carry over from previous campaigns.

"It's not a millionaire's amendment," Davis said. "It's an incumbent's amendment."

Clement said the numbers do not bear that out. During the first four years after the act was adopted, 110 House and Senate candidates became eligible to receive enhanced contributions under the modified limits, but only six were incumbents, he said.

One of those was Reynolds, who did not take advantage of the law.

Jennifer A. Steen, a Boston College professor who has studied the effects of the amendment, said she has not found many.

"Few candidates have benefited significantly from increased individual contribution limits, and among those who did no candidate enjoyed unfettered party spending,'' she wrote in a paper for the FEC. "Even those candidates who enjoyed Millionaire's Amendment benefits did not do so at the political expense of a self-financer.''

Coincidentally, one who did benefit from the McCain-Feingold provision was the man who may end up being McCain's opponent for president. Barack Obama faced an opponent in the Democratic primary of his 2004 Senate race in Illinois who spent more than $28 million of his own money; Obama took advantage of the increased limits to raise an additional $3 million for his campaign.