Justices Assail 'Millionaires' Amendment'
Whether Majority Will Junk Measure Is Not Yet Clear

By Robert Barnes
Washington Post Staff Writer
Wednesday, April 23, 2008

The conservative justices on the Supreme Court yesterday all seemed to find something not to like about the McCain-Feingold campaign finance act's "Millionaires' Amendment," which provides special fundraising opportunities to congressional candidates who run against wealthy opponents.

But it was unclear at the end of a lively hour-long oral argument whether a majority of the entire court disliked it enough to junk the whole thing, or if there was a way to keep the essential elements and prune the parts deemed especially objectionable.

Congress's stated goal in the 2002 legislation, known formally as the Bipartisan Campaign Reform Act, was to combat the perception that wealthy, self-financed candidates could "buy" a congressional seat. For example, if a House candidate spends $350,000 or more of his own money, his opponents are allowed to accept campaign contributions in excess of contribution limits, and to receive additional help from their political parties.

New York industrialist Jack Davis, a Democrat who spent millions of dollars on two unsuccessful congressional attempts and is ready to spend $3 million on another, is challenging the law. He says it violates his First and Fifth Amendment rights and protects incumbents by discouraging wealthy challengers.

He had a vocal and inexhaustible supporter in Justice Antonin Scalia. Scalia, a longtime opponent of the campaign finance act, said that bringing a sense of fairness to elections is neither Congress's role nor something it should be trusted to do.

"The campaign finance regimes we've approved up to now, the significant limitations, have had an anti-corruption rationale," Scalia said. "The only purpose of this is to level the playing field. And I am deeply suspicious of allowing elections to be conducted under a regime whereby Congress levels the playing field. That seems to be very dangerous."

Scalia mocked the idea that the incumbents in Congress are dedicated to competitive races. Perhaps, he speculated, "the millionaires have already been elected and are now pulling up the ladder after them."

Justice Ruth Bader Ginsburg pointed out that, of 110 congressional candidates since the law's enactment entitled to additional fundraising because of a wealthy opponent, only six were incumbents.

Additionally, Ginsburg said Davis's contention that his First Amendment rights were impaired by giving his opponent the opportunity to raise more money made no sense. "The end result of this scheme is that there will be more, not less, speech because the non-affluent opponent will now have money to spend that he didn't have before," Ginsburg said.

Chief Justice John G. Roberts Jr. seemed to agree. "There is no restriction whatsoever on the wealthier candidate," Roberts said. "He can spend as much of his money as he wants."

But Davis's attorney Andrew D. Herman, who said having Congress decide how to make races competitive was "like saying that we're going to trust basketball players to call their own out-of-bounds plays,'' seemed to have more success with his argument that his client and other self-financed candidates were treated unfairly.

Justice Anthony M. Kennedy said he found it "a particular vice" of the amendment that it allows the opponent of a self-financing candidate to have greater ties and to receive more money from his political party. "It puts this statute in the position of preferring one kind of speech over another. And we simply do not do that," Kennedy said.

Roberts expressed reservations about the part of the law that required greater and more frequent disclosures for the wealthy candidate than for his or her opponent.

Justice Samuel A. Alito Jr. said that if Congress believes that a $2,300 contribution limit is necessary to prevent the perception of corruption, why would it think it acceptable to allow the opponent of a wealthy candidate to raise three times as much?

Solicitor General Paul D. Clement, representing Congress in defense of the law, called Congress's solution an "adjustment of interests." It is an attempt to level the playing the field without violating the court's long-held ruling that a candidate cannot be restricted in how much he spends on his own campaign, he said.

Clement told Roberts that the disclosure requirements are not much greater than those imposed on other campaign spending. And he agreed with Justice Stephen G. Breyer that if a majority of the court shared Kennedy's concern about party spending, that part of the law could be severed without disposing of the entire amendment.

Campaign finance questions seem to expose the philosophical divisions on the court, which upheld key provisions of the McCain-Feingold act in 2003 with a massive, 5 to 4 decision. Last year, with Roberts and Alito on the bench, it voted 5 to 4 to loosen a critical part of the law regarding corporate and union financing of broadcast advertising.

And six justices felt the need to write opinions when the court in 2006 considered Vermont's stringent limits on campaign contributions.

The case, Davis v. Federal Elections Commission, will be decided before the court adjourns at the end of June.