$71,100 Civil Penalty In Millionaire's Amendment Case

Last year, I asked the question of whether or not someone was going to step up and take on a constitutional challenge to the Millionaire's Amendment, that abomination attached to BCRA that supposedly levels the playing field but actually protects incumbents. Well the FEC has closed yet another case under the amendment to the tune of a $71,000 fine.

I have long believed this amendment to be unconstitutional (even wrote a paper arguing against its constitutionality in law school). But in order for a challenge to occur, someone has to be punished. Broyhill is in a position to do so and if I had the expertise, I would take on the case. But that is another matter.

Not only is the amendment unconstitutional in my view, the regulations are pretty complex. According to the FEC press release:

Under the Millionaire’s Amendment, House candidates must notify the FEC and their opponents when they exceed $350,000 in personal spending and also with each additional $10,000 in expenditures of personal funds thereafter. The law allows opponents of these candidates to receive larger individual contributions than would otherwise be permitted. Mr. Broyhill and Broyhill for Congress failed to file a notification within 24 hours of the candidate making a loan to the campaign that brought his spending of personal funds to more than $350,000 in the primary, and they subsequently failed to file notifications within 24 hours regarding additional expenditures of personal funds totaling $365,000.

Because challengers are the candidates who are most likely to spend of their own money, and the relative inexperience of these candidates, it is easy to see why some violations are bound to occur.

For just a little history on the Millionaire's Amendment, you have to go to the Congressional record and debates on the Senate floor for BCRA. The amendment did not appear in committee during debates there, nor was it debated much in the House. But Senator after Senator, from both sides of the aisle, stood up to say the amendment was needed to ensure "a level playing field." The amendment was approved in a bipartisan vote that included Jon Corzine, the former NJ Senator and now Governor who spent $62 million of his own money to become Senator and didn't want someone else to do the same. The practical effect of the amendment is that challengers (those most likely to spend from their own pocket) who spend too much then allows the incumbent (and other canddiates) to raise money under increased contribution limits. But the challenger facing an incumbent with a $2 million warchest cannot do the same to make up the difference. Not particularly fair, in my mind.

Allison had this to say.