Election Fairness for Millionaires

Today, the Supreme Court heard oral arguments in a campaign finance case, Davis v. Federal Election Commission. A rather ominous track record for the court on campaign finance reform since the appointment of Justices Roberts and Alito suggests reform proponents may have reason for concern.

The lawsuit concerns an obscure area of a major federal law enacted in 2003, the Bipartisan Campaign Reform Act (BCRA). But given the Court’s demonstrated hostility to rules on campaign finance, as shown by two recent, closely-decided decisions on contribution limits in Vermont and issue advertising in campaigns, this case is likely to be a further important signal about where the Court is headed on money in politics.

A two-time losing federal “millionaire” candidate is challenging the so-called “Millionaire’s Amendment” section of BCRA, which relaxes various contribution limits for opponents of candidates who intend to spend more than $350,000 of their own money on a campaign for federal office.

Limits are relaxed only to allow the non-millionaire to catch up to the level of spending by the self-financing candidate. This small exception to a general rule on contribution limits was designed to address part of the Court’s seminal ruling in Buckley, which declared that because self-financed candidates cannot corrupt themselves, campaign contributions from their private coffers could not be limited.

Mr. Davis’s improbable claim is that the additional contributions allowed for his non-millionaire opponent are a burden on his own speech under the First Amendment.

Filings in the case show that, at the FEC’s last count, since BCRA’s enactment in 2003, only 60 self-financed candidates triggered the millionaire’s amendment, and that of the 110 eligible opponents, only 58 candidates accepted enhanced contributions. And while the pool of self-financed candidates spent more than $144 million, their non-“millionaire” opponents raised only about $8 million in contributions over the general limits.

Notwithstanding the near-irrelevance of this provision, anti-reform groups are using the provision to attack generally applicable contribution limits, arguing that Congress cannot care about contribution limits in one context for one purpose and relax them in the narrow circumstance of self-financing.

The Court will, with luck, disagree that there is a burden on the speech of Mr. Davis and therefore not need to reach this question. It could and should also defer to the policy judgment of Congress on such a matter of degree. But another, even more frightening, aspect of this challenge is the back-door threat it poses to public funding systems adopted in several states.

As we pointed out in an amicus brief, in upholding the law below, a federal three-judge panel drew upon the provision’s similarity to “trigger provisions” used in systems of public funding for elections in several states. These provide participating, publicly funded candidates with more money to match either the spending of a non-participating opponent or hostile independent spending, up to a pre-set threshold. Matching funds are critical to ensuring that the voluntary spending limits on which public funding is conditioned do not make participating candidates into sitting ducks in the face of massive outspending by opponents.

At least one amicus brief filed with the Court takes clear aim at such measures. It is possible that a few of the more conservative Justices may provide a ready ear. If they do so, they will threaten a new and emerging option for reducing politicians’ over-reliance on wealthy corporate special interests: creation of meaningful public funding systems.

While most reforms concern limits of one sort or another, Buckley recognized that public funding systems produce more speech, not less. A robust system of public funding not only reduces the risk of campaign money corruption, it levels the playing field among participants, encourages a diverse pool of candidates to run for office, and allows officeholders to concentrate on the difficult policy questions they should be confronting rather than running off to fundraisers. In Maine, where 80 percent of statehouse candidates use public funding, a single mother and former waitress ran for office and won.

It would be a shame if this clear way forward were blocked by careless, or even intentional, language from a court decision on an anomalous section of BCRA. Viable public funding systems require a means to allow more spending when truly needed in order to maintain lower costs in general. The Court should tailor its decision to the facts at hand and reserve judgment on the balance of factors at play in a public funding case for another, and we hope far distant, day.