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Davis: Leveling rich candidates' speech unjustified

By Tony Mauro
First Amendment Center legal correspondent
06.30.08

WASHINGTON — It got lost in the glare of attention paid to the Supreme Court’s decision declaring an individual Second Amendment right to keep and bear arms. But an important First Amendment ruling also came down on that final day of the Supreme Court’s session June 26, one that could threaten other parts of the decades-long effort by Congress to reform the way money flows into and out of political campaigns.

In Davis v. Federal Election Commission, the Court by a 5-4 vote struck down a little-known provision of the McCain-Feingold campaign-finance law aimed at leveling the playing field for opponents of wealthy candidates who can finance their own campaigns.

That goal of leveling or equalizing speech is not sufficient to justify the law, and would have “ominous implications” if accepted, the Court ruled, because government in effect would be manipulating candidate speech.

“The First Amendment secured an important victory today," said Bradley Smith, chairman of the Center for Competitive Politics, former FEC chair and a longtime critic of McCain-Feingold.

The Court now has a solid majority of five justices — Antonin Scalia, Clarence Thomas, Anthony Kennedy, Samuel Alito Jr. and Chief Justice John Roberts Jr. — who are hostile to campaign-finance reform on First Amendment grounds, says University of Chicago law professor Geoffrey Stone. The shift is attributable to the arrival in 2006 of Alito — who authored the Davis ruling — as the successor to Sandra Day O’Connor, who generally supported campaign-finance laws.

Rick Hasen, election-law expert Loyola Law School in Los Angeles, says the rationale of the Davis opinion puts in jeopardy spending limits on corporations and unions and may even threaten public financing of campaigns.

The so-called “millionaire’s amendment” ruled on in Davis requires self-financing candidates to declare their intention to spend more than $350,000 of their own funds, and then to report when they cross that line. Opponents of those candidates are then allowed to raise more money from individuals ($6,900 as opposed to the usual maximum of $2,300), among other benefits.

Jack Davis, a self-financing congressional candidate in upstate New York, challenged the provision, claiming that it in effect forced him to aid his opponent and to diminish the force of his own free speech.

Justice Alito, writing for the majority, said this “asymmetrical” treatment of opposing candidates “impermissibly burdens [Davis’] First Amendment right to spend his own money for campaign speech.” Alito said the law forced a self-financing candidate to make the unappealing choice between limiting his or her own spending and triggering a system that helps his or her opponent raise significantly more money.

That kind of government-compelled choice violates the First Amendment unless it serves a “compelling state interest,” Alito said. Eliminating corruption or the appearance of corruption would be a compelling interest, but Alito said the millionaire amendment does exactly the opposite, because using one’s own funds has been viewed as a way of reducing the threat of corruption.

Alito rejected the government’s main justification for the provision, namely that it would “level electoral opportunities for candidates of different political wealth.” That is not a compelling government interest, Alito said, and it gives to Congress the power that belongs to the people in deciding the merits of different candidates.

“Some are wealthy; others have wealthy supporters who are willing to make large contributions. Some are celebrities; others have the benefit of a well-known family name,” Alito wrote. “Leveling electoral opportunities means making and implementing judgments about which strengths should be permitted to contribute to the outcome of an election,” Justice Alito continued. “It is a dangerous business for Congress to use the election laws to influence the voters’ choices.”

The majority also struck down the disclosure requirements imposed on wealthy candidates under a standard of heightened scrutiny that could call into question other disclosure requirements in campaign laws.

Dissenters, led by Justice John Paul Stevens, said the provision was a reasonable and constitutional effort to reduce the influence of wealth in political campaigns and counter “the perception that seats in the United States Congress are available for purchase by the wealthiest bidder.”

Stevens added, “The Millionaire’s Amendment quiets no speech at all.” The provision may help the opponent get his message heard, but that “in no way mutes the voice of the millionaire.”

Also in dissent were Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer.

Hasen suggested that if the Court disapproves limits on the spending of millionaire candidates, it may also reverse its endorsement of limits on corporate and union spending. “The corporate and union spending limits are clearly on borrowed time,” said Hasen on his Election Law blog.

James Bopp Jr. of the James Madison Center for Free Speech, a longtime opponent of campaign-finance laws, said the Davis ruling “has broad implications for other cases.” Bopp added, “Candidates have a First Amendment right to fund their own speech without being burdened by government provision of benefits to their opponents. This has broad implication for public-funding schemes.”


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