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High Court Deals Blow To Campaign Finance Law
'Millionaire's Amendment' Is Ruled Unconstitutional

By Matthew Mosk and Robert Barnes
Washington Post Staff Writers
Friday, June 27, 2008

The Supreme Court dealt another blow yesterday to the landmark 2002 campaign finance law crafted by Sens. John McCain and Russell Feingold, declaring unconstitutional a provision that eased fundraising restrictions for political candidates running against wealthy opponents who were bankrolling their own bids for federal office.

In a 5 to 4 decision, the court said the "Millionaire's Amendment" to the law imposes an "unprecedented penalty" on candidates who sought to underwrite their own campaigns.

Justice Samuel A. Alito Jr. wrote in the majority opinion that Jack Davis, the wealthy New York industrialist who brought the lawsuit, was forced "to choose between the right to engage in unfettered political speech and subjection to discriminatory fundraising limitations" and that "the resulting drag on First Amendment rights is not constitutional."

Campaign finance lawyers pored over the decision yesterday, and they concluded that while the Millionaire's Amendment represents only a small and discrete component of the McCain-Feingold law, the justices' opinion could have lasting significance.

"What's most significant here is what this means for the future," said Rick Hasen, a professor at Loyola Law School. "It tells us that the long-standing limits on corporate and union campaign spending are in grave danger."

James Bopp Jr., an Indiana lawyer who has brought several court challenges against the legislation, known formally as the Bipartisan Campaign Reform Act, said that yesterday's ruling was the fourth in a series that has steadily chipped away at the foundations of the law.

"What we're seeing is the court wants to limit the ability of the government to regulate political speech," he said. "I think there are few restrictions on political speech that will survive this court's analysis."

Bopp said he thinks the ruling could doom public financing programs in states, including North Carolina and Maine, where candidates can receive more public funding if their opponents or independent groups opposing them spend more than a certain amount.

Several of those who were involved in crafting the McCain-Feingold provisions said yesterday that while they are disappointed by the decision, it leaves the central portion of the law intact -- a prohibition on individuals making unlimited contributions to political parties for use in federal campaigns.

"The Supreme Court decision today on the millionaire's amendment has no impact on the central component of McCain-Feingold, which is the soft money ban," Feingold (D-Wis.) said in an e-mailed statement. "That soft money ban, which the Supreme Court has upheld . . . has revolutionized political fundraising in this country."

He also noted that the Millionaire's Amendment was not part of the initial legislation but was added on the floor. He said he "never believed it was a core component of campaign finance reform."

Congress's stated goal in including the provision was to combat the perception that wealthy, self-financed candidates could "buy" a seat in Congress. Although it is called the Millionaire's Amendment, the provision begins when a House candidate spends $350,000 of his or her own 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 on the candidate's behalf. Similar provisions exist for Senate races.

Davis, a Democrat who spent millions of dollars on two unsuccessful congressional races and says he is ready to spend $3 million on another, argued that the provision violates his First and Fifth amendment rights and that it protects incumbents by discouraging wealthy challengers.

Davis's was the latest constitutional challenge to the law. Justices upheld key elements of the act in 2003, but last year the court, now led by Chief Justice John G. Roberts Jr., loosened a critical part of the law regarding corporate and union financing of advertising.

Davis and Washington lawyer Stanley Brand say the provision discriminates against candidates who prefer to fund their own campaigns 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.

A panel of the U.S. District Court for the District of Columbia disagreed and granted summary judgment in favor of the Federal Election Commission.

That 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 that the amount of personal money that candidates spend on their campaigns cannot be restricted.

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