For the first half-hour of oral argument yesterday, it seemed that the Supreme Court’s traditional support of campaign-finance laws would hold.
Only Justices Antonin Scalia and Anthony Kennedy voiced skepticism about the law being challenged in the case Davis v. Federal Election Commission, the so-called “millionaire’s amendment,” which eases contribution limits for candidates who run against wealthy, self-financing candidates.
Scalia offered helpful comments to the lawyer arguing against the amendment and questioned whether the First Amendment allows government to manipulate campaign speech in this way, solely to “level the playing field” among candidates for office.
“Do you think we should trust our incumbent senators and representatives to level the playing field for us?” Scalia asked sarcastically at one point.
Kennedy, for his part, seemed troubled by the part of the amendment that allows the opponents of wealthy candidates to receive unlimited contributions from their political party, whereas the party backing the wealthy candidate has to abide by limits on what it can give.
But then, when Solicitor General Paul Clement rose to defend the law, spectators were reminded: This is a different Supreme Court from the one that upheld almost all of the McCain-Feingold campaign-finance law in the 2003 decision McConnell v. FEC. (The millionaire provision was challenged in that case too, but the Court sidestepped the issue.)
Justice Samuel Alito Jr., and to a lesser extent Chief Justice John Roberts Jr. began challenging Clement about the law, and it suddenly seemed possible that the millionaire’s amendment, or parts of it, might be struck down on First Amendment grounds.
Justice Stephen Breyer, a staunch supporter of campaign-reform laws, seemed to recognize that possibility when, toward the end of the hour, he asked Clement if parts of the law were severable — in other words, whether parts of the law could be severed and struck down, without invalidating the entire amendment. Clement said yes.
“This area of the law is all about Justice Alito and Chief Justice Roberts now,” wrote Richard Hasen, professor at Loyola Law School Los Angeles, on his Election Law blog after reading the argument transcript. Roberts and Alito were pivotal last term in striking down another part of the McCain-Feingold law that regulated campaign advertising in the case FEC v. Wisconsin Right to Life.
The case before the Court yesterday was brought by Democrat Jack Davis, a wealthy, but unsuccessful, two-time candidate for Congress in upstate New York who triggered the law by spending nearly $4 million for his 2006 campaign. He claims that the law forces him to face the unappealing and unconstitutional choice of either limiting his expenditures to stay below the limit that triggers the law or, if he goes above the limit, aiding his opponent.
Under the law, when self-financing candidates spend more than $350,000 on their own campaign, their opponent can receive individual donations from supporters of up to $6,900, or three times the usual limit of $2,300. The opponent can also receive unlimited support from his or her party, removing the usual cap of $40,900 in House races. The law also imposes extensive reporting requirements on the self-financing candidate.
During the first half-hour, justices who seemed sympathetic to the law kept asking Davis’ lawyer, Andrew Herman, whether Davis or the First Amendment had really suffered because of the law.
“Your candidate isn’t subject to any restriction at all on what he can spend,” Roberts told Herman. “And his opponent is subject to less restrictions. It seems to me the First Amendment comes out better.”
Herman replied that his client is harmed by having to abide by the limitations of the law that his opponent can ignore. But he struggled to make this point and others before skeptical justices such as David Souter and Ruth Bader Ginsburg, who appeared supportive of the law.
But the questioning of Clement was also tough.
“Isn’t there something very strange about having different contribution limits for candidates in an election?” Alito asked Clement.
Alito also noted that Congress’ original rationale for limiting individual donations to $2,300 was to prevent corruption. “Presumably Congress doesn’t think there is a serious corruption problem when this statute kicks in and someone gives $6,900 to a candidate?”
Clement replied that Congress is entitled to set varying limits that reflect “an adjustment of other interests.”
Kennedy’s concern was that by setting different rules for political parties depending on which party backed the wealthy candidate, the government would, in effect, be regulating campaign strategy. “It puts this Court ... in the position of preferring one kind of speech over another,” Kennedy said. “And we simply do not do that.”
Roberts also wondered whether the differential limits would have a chilling effect on campaign speech. “At some point, the benefit to the opponent gets to be too much of a chill on the self-financed candidate,” Roberts said.
Even though the law does not cover presidential candidates, the 2008 campaign for the White House made its way into the courtroom nonetheless.
Herman, the lawyer challenging the amendment, was suggesting that not all millionaires are such formidable candidates that their opponents need extra help.
“Certainly the public was not particularly interested in Mitt Romney, who spent a significant amount of money on his own behalf,” Herman said, pausing to add, “and many other spectacular flameouts.”
Laughter spread through the courtroom, and Chief Justice Roberts himself was chuckling when he admonished Herman, “I’m not sure we need characterizations of the political candidates in this forum.”