The US Supreme Court heard oral arguments Tuesday in a campaign finance case, Davis v. FEC. This Court has had a rather ominous track record on campaign finance reform since the appointment of Chief Justice John G. Roberts and Justice Samuel Alito, and the Court’s reactions to the argument do not bode well for those who care about limits on the role of money in politics.
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 considerable hostility to rules on campaign finance, demonstrated by two recent, closely decided decisions on contribution limits in Vermont and issue advertising in campaigns, the argument was yet another important sign of where the Court is headed on campaign finance matters.
A two-time-losing federal “millionaire” Congressional candidate, New York businessman Jack Davis 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 a non-millionaire to catch up with the level of spending by a self-financing candidate. This small exception to the general rule on contribution limits was designed to address part of the Court’s seminal ruling in Buckley v. Valeo, 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 sixty self-financed candidates triggered the Millionaire’s Amendment, and that of the 110 eligible opponents, only fifty-eight 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.
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.
In the argument Tuesday, a few opening inquiries from the Chief Justice and some questions from Justice Ruth Bader Ginsburg suggested they may doubt whether Mr. Davis’s speech is at all burdened by relaxed limits for his opponent. But for most of the time, the Justices grappled with the meat of the constitutional claims, discussing whether the state’s interest in enhancing competition was legitimate.
Justice Ginsburg even raised concerns about the burdens from the additional disclosures required under the law, which require reports of each spending increment of $10,000 or more. Disclosure obligations, in this age of the Internet and electronic filing, are normally viewed as far less intrusive than contribution limits.
Justice Antonin Scalia seized upon the argument that changing the contribution limits to accommodate this situation made them constitutionally suspect, and we should expect broad language from him on that score.