By Bart Jansen, CQ Staff

Supreme Court justices seemed skeptical Tuesday about a part of the 2002 campaign finance law that allows candidates facing wealthy self-funding opponents to collect larger contributions from donors than the law otherwise would allow.

The court is considering whether the so-called millionaires’ amendment in the McCain-Feingold campaign finance law (PL 107-155) is constitutional. The provision allows a congressional candidate whose opponent spends at least $350,000 of his or her own money to collect contributions at triple the customary limit of $2,300 per donor per election.

In the current election cycle, 20 candidates have spent enough of their own money to trigger the millionaires’ amendment.

During oral arguments, Justice Antonin Scalia repeatedly criticized the provision for treating the two candidates differently — and penalizing the more affluent one.

“What if one candidate is more eloquent than the other?” Scalia asked. “Do you make him put pebbles in his mouth?”

Justices Ruth Bader Ginsburg and David H. Souter defended the provision as a way to prevent wealthy candidates from evading contribution limits that apply to others. Congress sought to address “the perception that seats in Congress can be bought,” Ginsburg said.

Jack Davis lost House races around Buffalo, N.Y., as a Democrat in 2004 and 2006 despite spending $1.3 million in his first campaign and $2.4 million in the second.

Davis, who is running again this year, filed the lawsuit challenging the provision that has now reached the Supreme Court. He argued that helping his opponent chilled his own right to free speech. He also complained that having to report every $10,000 expenditure within 24 hours was onerous. He filed dozens of reports.

A three-judge District Court panel ruled Aug. 9 the provision “places no restrictions 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.”

“He really wants to keep the yoke of relatively low contribution limits on his opponents,” Solicitor General Paul D. Clement told the justices.

But Andrew D. Herman, the lawyer representing Davis, argued that the law says “we’re going to make it easier for your opponents to beat you.”

Justice Samuel Alito suggested that Congress was trying to counter the impact of limits on campaign contributions for those who can’t afford to finance their own campaigns.

“Even if leveling the playing field is not generally a compelling or even a permissible interest, is it a stronger interest when one of the reasons why the playing field is not level is other action that Congress has taken?” Alito asked.