CQ TODAY PRINT EDITION
– LEGAL AFFAIRS
June 27, 2008 – 12:17 a.m.
High Court Ruling May Revive Push for Campaign Finance Amendment
By Bart Jansen, CQ Staff
The Supreme Court’s decision to overturn part of the federal campaign finance law could threaten some state laws and spur two senators to revive their push for a constitutional amendment.
The high court on Thursday threw out the so-called millionaires’ amendment, a portion of the law (PL 107-155) that raised the per-donor limits on contributions for congressional candidates facing wealthy, self-funded opponents.
Justice Samuel A. Alito Jr. , writing for the 5-4 majority, said the provision was “at war” with rulings such as the 1976 decision in Buckley v. Valeo, which equated money with political speech.
Some in Congress were already disenchanted with Buckley v. Valeo. Sens. Charles E. Schumer , D-N.Y., and Arlen Specter , R-Pa., want to overturn it with a constitutional amendment (
“It is clear the only way to preserve meaningful campaign finance reform is to repeal the Buckley v. Valeo ruling, one of the court’s worst decisions of the last 50 years,” Schumer said.
Their resolution, introduced in October, had not picked up steam, but Thursday’s court decision could help Schumer and Specter renew their efforts.
Too Late for Rich Losers
The decision came too late to help wealthy candidates who already lost their primary elections but because of the law had to comply with extra paperwork requirements. Under the provision, self-financing wealthy candidates were required to disclose every expenditure of at least $10,000 within 24 hours.
In the current campaign cycle, 25 House candidates have filed the special “millionaires’ amendment” disclosure forms. Of those, 10 remain active, while others either lost a primary or dropped out. In the Senate, at least four candidates had triggered the amendment by April, two of whom are still active.
Jack Davis, a Democratic candidate in New York’s 26th Congressional District and the suit’s successful plaintiff, has given his campaign more than $2 million but refused to file the required forms with the Federal Election Commission (FEC).
He took a victory lap Thursday, praising the justices for a decision that “returns power to the voters and taxpayers.”
“When I spend my own money to finance my campaigns, I am beholden only to the voters and my own conscience,” Davis said.
The millionaire’s amendment allowed a House candidate whose opponent spends at least $350,000 of his or her own money to collect contributions at triple the standard limit of $2,300 per donor per election.
High Court Ruling May Revive Push for Campaign Finance Amendment
Senate candidates also were able to increase their per-donor contribution limits under a formula based on state population.
Among the few current races to have triggered the now-defunct provision was the contest to succeed retiring Democratic Rep. Darlene Hooley in Oregon’s 5th District. Businessman Mike Erickson gave or loaned his campaign $591,420 during the Republican primary.
The millionaires’ amendment also was triggered in New York’s 20th Congressional District, where Republican Sandy Treadwell has given or loaned his campaign $948,759. Treadwell’s personal wealth has made him by far the best-funded candidate in the Sept. 9 primary to choose a challenger to Democratic Rep. Kirsten Gillibrand .
Within hours of the decision, nimble campaigns were using it in fundraising appeals.
Typical was the one sent out by the campaign of Christine Jennings, the Democrat challenging Republican Vern Buchanan in Florida’s 13th District. Donors were told that the “millionaire’s amendment” was no more and reminded that “ Vern Buchanan put $5.5 million of his own money into the last election, and he will likely spend millions again this campaign.”
“Please contribute today and send a message that Florida’s votes aren’t for sale!!!” the e-mail concluded.
Soft-Money Ban Still in Force
The authors of the campaign finance law, Sens. John McCain , R-Ariz., and Russ Feingold , D-Wis., were quick to point out that their initial legislation did not include the millionaire’s amendment, and the part of the law they championed still stands — the end of so-called “soft money” from corporations, unions and wealthy individuals.
“The soft-money ban, which the Supreme Court has upheld, remains intact,” Feingold said.
“That ban is at the core of the reforms I worked for in the long bipartisan fight to pass campaign finance reform,” McCain said. “The millionaire’s amendment was not part of the original legislation and was added on the floor during debate.”
Campaign watchdog groups lamented the decision, saying it continues the court’s trend under Chief Justice John G. Roberts Jr. of chipping away at the 2002 campaign finance law.
But Bradley A. Smith, a former FEC chairman who is now chairman of the Center for Competitive Politics, called it a First Amendment victory.
“Congress is not allowed to tinker with people’s speech rights because it thinks some people are speaking too much, or others not enough,” Smith said.
High Court Ruling May Revive Push for Campaign Finance Amendment
‘Burden Is Not Justified’
In the decision, Alito called the millionaires’ amendment unconstitutional for allowing different contribution limits in the same race and requiring quick expenditure disclosures by self-financing candidates.
“The burden is not justified by any governmental interest in eliminating corruption or the perception of corruption,” wrote Alito, with Roberts as well as Justices Anthony M. Kennedy , Antonin Scalia and Clarence Thomas concurring.
“The argument that a candidate’s speech may be restricted in order to ‘level electoral opportunities’ has ominous implications because it would permit Congress to arrogate the voters’ authority to evaluate the strengths of candidates competing for office,” the majority opinion said.
Justice John Paul Stevens dissented, joined by Justices Stephen G. Breyer , Ruth Bader Ginsburg and David H. Souter . Ginsburg and Breyer wrote an additional dissent.
Stevens called the millionaire’s amendment “a modest, sensible, and plainly constitutional attempt by Congress to minimize the advantages enjoyed by wealthy candidates vis-a-vis those who must rely on the support of others to fund their pursuit of public office.”
The decision also threatened state and local public financing systems.
In laying out the high court’s reasoning, Alito endorsed an opinion from the 8th U.S. Circuit Court of Appeals that said providing different public funding based on an opponent’s spending was a burden on the political speech of the wealthy candidate.
The endorsement of the Day v. Holohan decision “calls all such provisions in public financing into question,” said Rick Hasen, a professor at Loyola Law School of Los Angeles.
James Bopp Jr., a lawyer at the James Madison Center for Free Speech who has repeatedly challenged the campaign law, concurred. “This has broad implications for public funding schemes,” he said.
Emily Cadei, Rachel Kapochunas and Marie Horrigan contributed to this story.
POST A COMMENT
Oops! The following errors must be addressed: