Millionaires’ Amendment Challenged

Posted November 13, 2007 at 6:49pm

A Buffalo-area factory owner who nearly knocked off powerful Rep. Tom Reynolds (R-N.Y.) in the previous cycle may soon argue before the Supreme Court whether the “Millionaires’ Amendment” trampled his Constitutional rights in his 2006 bid to topple the former National Republican Congressional Committee chairman.

Jack Davis, who dumped nearly $2.3 million of his own money into his campaign to unseat Reynolds last year, is disputing a provision included in the Bipartisan Campaign Reform Act of 2002 intended to mitigate the upper hand that wealthy, self-funding candidates have in federal elections.

The Supreme Court is expected to decided whether it will take up the case, Jack Davis v. Federal Election Commission, by early 2008. If so, Davis’ lawyers could make their arguments as early as this winter, with a decision handed down in early summer 2008.

Andrew Herman, Davis’ lawyer, said the high court is expected to take up the case, which he said addresses a flawed BCRA section he suggested was written solely as an incumbent job-protection provision.

Herman argues that the provision not only gives a leg up to lawmakers by allowing them to recirculate the collection plate when a wealthy challenger starts digging in his pockets, but also injects even “more corrupting money into the system” by adjusting the amount the non-millionaire candidate can accept.

“The Supreme Court has said that when you spend your own money on your own campaign that is First Amendment protected speech — it’s like writing an essay and posting it on a tree,” he said.

“Even if it were formulaically designed to make things equal, there’s still the constitutional question: Is it a proper response to someone’s use of their own money — their own speech — to allow the other individual to raise more money?” Herman continued. “After all, the only reason we have campaign limits to begin with is because Congress has made a finding that satisfied the Supreme Court that unlimited contributions were corrupting.”

The McCain-Feingold law, as BCRA came to be known, included a complicated formula used by the Federal Election Commission to determine campaign contribution limit increases for lesser-heeled candidates with self-funding opponents.

Even at the time of BCRA’s passage, lawmakers assumed that federal courts would for years be sorting through wrinkles of the new McCain-Feingold law.

“I don’t think this bill is the end of the world, as some have indicated,” then-Sen. Don Nickles (R-Okla.) said of BCRA on the Senate floor in March 2002. “We will let the courts decide whether or not it is constitutional.”

In an interview on Tuesday, Rick Hasen, a professor at Loyola Law School in Los Angeles, said the case, which is not required to go through the typical judicial channels to the Supreme Court, could present another important election law case to the John Roberts-led court, which has not been hesitant to assert itself on the topic.

“We’ve seen in the last two Supreme Court campaign finance cases … that this is not a Supreme Court that’s shy about rethinking precedent,” Hasen said. “On the other hand, I don’t think the chief justice or Justice [Samuel] Alito necessarily have an appetite for getting into a campaign finance issue which is controversial — if it could be avoided.”

Late last summer, the court narrowly lifted the broadcasting advertising blackout period some outside groups face in the runup to federal elections, a decision widely seen as a loosening of BCRA restrictions.

Hasen said the Davis case is worth watching no matter how the court acts: Should the court pass on the case, the lower court ruling denying Davis’ appeal stands and a once-controversial portion of the law is finally settled.

But because of the complicated elements the Davis case addresses, should the court take it up, it may bust open a plethora of election-law-related free-speech issues going back decades.

“It wouldn’t be at the top of the Supreme Court’s decisions to take like it would in a petition for certiorari, But because it’s also up on appeal from a three-judge court, even it does nothing it still has some significance,” Hasen said. “[But] if the court has to give it some thought, it does raise some interesting questions: Whether this was an incumbency protection measure or whether it trying to level the playing field?”

“If it’s about leveling playing field, then there’s some tension between that rationale and [earlier rulings arguing] that you can’t use campaign finance laws to violate [free] speech,” Hasen said.

Herman said Congress wrote the Millionaires’ Amendment out of fear without regard to the way it would be applied.

“What Congress did was say we’re afraid we’re going to get priced out of this by Internet millionaires … meanwhile, we have to go around getting $2,300 from every individual,” Herman said. “[Members] set up a very complicated system, where you have to report when you spend your own money, how much you spend … then there’s a formula to determine how much extra money the person who’s using contributed money gets.”

He added: “But what they didn’t do is write the formula, so that Congressmen have to account for their war chests.”