Report on Davis v. FEC

Lyle Denniston at SCOTUSblog has a report on the Davis v. FEC case heard at the Supreme Court yesterday. As Denniston puts it, the Justices seemed to be unable to muster sympathy for either side, the self-funded candidates or the Congressional effort.

In fact, so much doubt had been expressed about the so-called “Millionaire’s Amendment” that the Justices seriously explored what, if any parts, of it could be salvaged.

The part of the law that seemed most in jeopardy gives opponents of self-financing candidates a chance to call on a political party for a lot more financial support — even though that is denied to the wealtheir candidates themselves. Also, a provision compelling self-financed candidates to make repeated public disclosures about their spending seemed to be in some trouble, too.

The reason for the pervasive skepticism during the hour-long argument in Davis v. Federal Election Commission (07-320) was that several of the Justices voiced concern that Congress might have been trying to influence the content of the political messages that get conveyed during a congressional campaign — a potential First Amendment problem. A move by Congress to “level the playing field” appeared to be interpreted as a reach to control those messages. Most tellingly, Justice Samuel A. Alito, Jr., questioned whether Congress in enacting the Amendment genuinely intended to stop the corrupting influence of money in politics — the only rationale the Court has accepted for campaign finance regulation.

To be honest, I had not considered the increases party spending matter. Under the campaign finance laws, a candidate can only get a limited amount of coordinated party expenditures (although the party can make unlimited independent expenditures on behalf of a candidate). An opponent of a self-funded candidate can get more party suppport, which means that outside agents (the parties themselves) are subject to different rules--a sort of equal protection argument by proxy.

The public disclosure rules are probably toast--it is the most clear cut equal protection argument out there. Whether other provisions get struck down is a little bit more of an open question. As I noted before, the whole Amendment, can be attacked on equal protection grounds, but also on the grounds that if Congress' goal is to limit the influence of so-called "special interest" money in politics, increasing the contribution limits for one candidate seems like an illogical method of accomplishing that goal.

Prof. Hasen thinks that the Court will strike some parts of the law and uphold others.

The Center for Competitive Politics report notes suprise in Justice Kennedy's line of questioning regarding the party coordinated expenditures as well as the fact that the Court seemed to dismiss what many commentators thought was Davis' weak standing argument. But if the Justices are pre-disposed to consider the increased disclosures as the injury, such a move to ignore the standing issue is not surprising.

Bob Bauer doesn't have any post-argument comments up yet, but his pre-argument post which included this comment:

Here is irony: if the Amendment can be traced to soft money at all—and if soft money is broadly defined to mean all money raised and spent beyond the law’s established limits—then the Amendment legalized a form of "soft money." Now a candidate with a millionaire opponent could qualify for a special limit, elevated well above the one within which other candidates have to operate. This is the only other choice on hand for describing of this law: either it has nothing to do with soft money, or if it does, it authorized for certain candidates, with certain opponents, access to a freshly created class of soft money donations.

Bauer presented this in context of commenting on this article.

A transcript of the hearing is here.