Thursday, June 26, 2008

Supreme Court Invalidates Millionaire's Amendment

In an 5-4 opinion written by Justice Alito, the Supreme Court has invalidated the Millionaire's amendment to the McCain-Feingold law, also known as BCRA.

First, the Justices had to determine if the Court had juristiction to hear the case, which it determined it did, largely on the grounds that the issue was one capable of repitition but evading review. Davis had suffered a concrete enough injury to have standing, the arguments of the FEC notwithstanding.

Second, the Court ruled that the Millionaire's Amendment violated the First Amendment. Justice Alito notes that because the increased limits for candidates facing self-financed opponents were the only one permitted increase limits, there is a rather clear equal protection argument and that it impermissibly burdens Davis' right to spend his own money on his campaign. The Millionaires Amendment "requires a candidate to choose between the First Amendment right to engage in unfettered political speech and sujection to discriminatory fundraising limitations." Slip Op. at 12. Justice Alito notes that this is very different from the public funds limitations imposed by the FECA and discussed in Buckley v. Valeo. In Buckley, a candidate who decided to forgo the public funding retained the complete right to spend of his own pocket freely. Under teh Millionaire's amendment, the right to spend freely is abridged by the discriminatory contribution limits imposed on the different candidates. Slip. Op. at 13.

Justice Alito notes that there is not compelling reason for limiting the self-funding of candidate personal funds. There is no corruptive influence. Furthermore, the asserted grounds, that the asymmetrical contribution limits serve to level the playing field is not a legitimate governmental interest.

The Court also rejected the disclosure requirements of the Millionaire's Amendment, which basically stated that because the asymmetrial contribution limits are unconstitutional because there is not legitimate govenrmental interest to support them, it follows that since the dislcosure requirements were imposed only to support the imposition of the asymmetrical limits, the disclosure requirements are also unconstitutional.

The full opinion can be found here.

All in all, I think this is the right opinion. There are a couple of points where I think the Court is a shakier ground. I think that the equal protection arguement is sound reasoning, but the comparison to limits on spending by taking public funding is a little suspect. Clearly, candidates operating under different limits focuses a spotlight on different rules for similarly situated persons--that is equal protection. The different contribution limits is a distincition in kind that simply cannot stand. However, if the law treated all wealth, personal and political wealth (that is treating massive campaign warchests like someone's personal bank account) then you might be on better grounds, although based on the reasoning presented here, I am not sure of that any more.

A number of commentators wondered if the Court would simply reject the case for lack of standing, i.e. that Davis had lost both elections and therefore the issue was moot. I had always thought that the Court was going to have to use the "capable of repetition but evading review" standard to even take a look at this case. I am glad they did.

I have long oppose the Millionaire's Amendment, believing its effect to be nothing more than blatant incumbent protection. To say that I am glad to see it go is a solid victory for the First Amendment.

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