Millionaire's Amendment Case

A three judge panel of the DC District Court has ruled that the Millionaire's Amendment does not violate the First Amendment rights of the Millionaire candidate (which is not a particularly strong argument) or the Fifth Amendment rights of equal protection.

As Bob Bauer and Allison Hayward noted, this is not the best opinion in the world and is rather sloppy, complete with assumptions and assertions without evidence.

The Davis v. FEC court doesn't do a particularly good job getting into the real heart of the issue, and that could be Davis' fault. While a millionaire candidate is not a particularly sympathetic plaintiff, the practical dimissal of the Fifth Amendment complaint screams for an appeal and a better presentation of facts. Here is the entire text of the Court's treatment of the Fifth Amendment claim:

Finally, we reject Davis’s claim that the “substantial and unjustified competitive injury inflicted on self-financed candidates” violates the Equal Protection Clause of the Fifth Amendment. Plaintiff’s Mem. of Points and Authorities at 26. The touchstone of an Equal Protection argument is that the challenged statute is flawed because it treats similarly situated entities differently. See Cal. Med. Ass’n v. FEC, 453 U.S. 182, 200 (1981) (plurality opinion); see also Islamic Am. Relief Agency v. Gonzales, 477 F.3d 728, 736 (D.C. Cir. 2007) (noting that in order “to survive summary judgment [plaintiff] must show that it was treated differently” than a party who is similarly situated).

Davis cannot make this showing because the reasonable premise of the Millionaires’ Amendment is that self-financed candidates are situated differently from those who lack the resources to fund their own campaigns and that this difference creates adverse consequences dangerous to the perception of electoral fairness. Davis, in fact, is situated quite differently from his opponent because he has chosen to finance his campaign with personal wealth, which is subject to no limits, while his opponent has chosen to finance his campaign with contributions that are subject to statutory limits. A candidate like Davis who chooses to self-finance his campaign may have access to funds that are unavailable to an opponent who cannot pay for his campaign personally or chooses not to. In Congress’s view, it was this fundamental difference between candidates that posed the problem it sought to address through the Millionaires’ Amendment. The Millionaires’ Amendment is an attempt to provide at least a partial remedy for what Congress decided was an unavoidable problem when political opponents for elected office are not similarly situated in their abilities to fund a campaign from their own resources. By trying to reduce such a disparity, Congress does not run afoul of the Equal Protection Clause:

[T]he Constitution does not require Congress to treat all declared candidates the same for public financing purposes. As we said in Jenness v. Fortson, “there are obvious differences in kind between the needs and potentials of a political party with historically established broad support, on the one hand, and a new or small political organization on the other . . . . Sometimes the grossest discrimination can lie in treating things that are different as though they were exactly alike . . . .”

Buckley, 424 U.S. at 97-98 (quoting Jenness v. Fortson, 403 U.S. 431, 441-442 (1971)) (first ellipsis in original); see, e.g., Schweiker v. Hogan, 457 U.S. 569, 590 (1982) (declining to find an equal protection violation in a state Medicaid program which provides more generous benefits to poor people because “in terms of their ability to provide for essential medical services, the wealthy and the poor are not similarly situated and need not be treated the same”). We find no Fifth Amendment violation in Davis’s claim.

That' it, two paragraphs on what is probably going to be their best argument.

Simply put, the Millionaire's Amendment does not treat candidates the same, it favors the incumbent by not treating political wealth the same as personal wealth. The best argument for a "level playing field" would be to treat each candidate's available resources the same. When a challenger enters the political arena, they are, by definition, not similarly situated. While some advantages of be the incumbent are likely inherent and cannot be over come statutorily, other can be managed with statute, such as political wealth.

Incumbents can spend years building a political warchest with the express purpose of scaring off challengers. Thus an incumbent and a challenger are not similarly situated financially from teh start. Self-financing is one mechanism by which a challenger can overcome the incumbent funding advantage. Since there is a parirty clause, meaning the non-millionaire candidate can raise money under increased limits only to 105% of the self-financed candidate's personal contribution, the same rule can apply for non-incumbent challengers, that they can raise funds under increased limits until the achieve relative parity with the incumbent's warchest.

While Davis is almost sure to appeal (which means a Supreme Court challenge), the argument should be that the Millionaire's Amendment treats personal and political wealth (that of a long-term incumbent with a massive campaign fund) differently and thus is a violation of the Fifth Amendment.