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.
Justice Anthony Kennedy was clearly preoccupied by provisions that relax the limits on coordinated party spending for the opponent of a self-financed candidate, although Solicitor General Paul Clement made a valiant attempt to set this issue to the side, noting that it was severable and pointing out forcefully that the record in the case contained little evidence on this aspect of the law.
The clear low point in the argument was when, in a through-the-looking-glass exchange, it became clear that the Court's increasingly simplistic equation of money with speech may even make some Justices willing to defend the rights of the ultra-wealthy to purchase an election.
Justice Scalia threw Davis's counsel a softball question concerning the state's interest: "Who is more incorruptible than the millionaire, right?" Andrew Herman, counsel for Davis, replied that millionaires are "the ultimate independent," and Scalia concurred, to laughter, noting that the wealthiest candidates among us are "the ultimate incorruptible." While it may be true that self-financed candidates can't be bought in the traditional ways, the Court's myopic focus on corruption as the only cognizable constitutional interest transformed a discussion about the ingredients for a robust democracy into a chuckling old boys' club.
If only this minor provision at BCRA were at stake, today's argument may not have been so tragic. But far more than that may turn upon the scope of the Court's decision.
At one point, counsel for Davis raised the notion of a public funding system as a "less restrictive alternative" to the Millionaire's Amendment scheme. However, if the Justices employ broad language in striking down the amendment, their decision could jeopardize the basic functioning of most public funding systems, at least as they have been adopted in several states.
As the Brennan Center for Justice and our allies pointed out in an amicus brief, in upholding the law 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 their opposition.
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 craft a decision that knowingly or unknowingly imperils this innovative approach. If they do so, they will threaten public funding as a strategy for reducing politicians' over-reliance on wealthy corporate special interests.
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 promotes fair competition 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 progressive way forward were blocked by language--whether inadvertent or intentional--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.
Losing the capacity to create a working public funding system would be a deeply unfortunate turn of events. The Roberts Court--whose newest members bill themselves as strong advocates of judicial restraint--should confine 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.