Wednesday, April 23, 2008

SCOTUS hears "Millionaire's Amendment" election law case

Yesterday, SCOTUS heard Davis v. Federal Election Commission. As posted by the Court, Section 319 of the Bipartisan Campaign Reform Act of 2002 (McCain-Feingold Act) created the "Millionaire's Amendment." The three judge-district court found that Congress enacted section 319 to achieve equity between congressional candidates utilizing personal funds for their campaigns and candidates relying mainly on contributed funds. Under the statute, when candidates for the United States House of Representatives exceed $350,000 in personal campaign expenditures their opponents may be entitled to receive:
  1. contributions from donors at triple the statutory limit;
  2. contributions from donors who have reached their statutory limit for aggregate campaign donations; and
  3. coordinated expenditures from party committees in excess to the statutory limit.
To effectuate application of section 319, the statute also imposes significant notification and disclosure obligations upon self-financed candidates. The questions presented are:
  1. Whether the three-judge district court erred in finding that Congress's attempt to equalize a potential imbalance in resources between congressional candidates violates neither the First Amendment nor the Equal Protection Clause of the Fifth Amendment of the Constitution.
  2. If equalizing a potential imbalance in resources of congressional candidates is constitutional, whether the federal statutory provision accomplishes the stated purpose.
In this case, Jack Davis is arguing his rights were violated by the "Millionaire's Amendment." in opening, Mr. Davis' counsel, Andrew D. Herman argues, "this case involves the constitutional question of whether the government may regulate the personal spending of a candidate on behalf of his own campaign. This is an activity that constitutes political expression at the core of the First Amendment, yet BCRA Section 319 seeks to deter and, failing that, penalizes such protected political expression. Even this Court finds that the harms upon speech of Section 319 are modest, the provision still fails to satisfy constitutional standard. It furthers no legitimate governmental purpose and conversely increases the undue influence of contributions upon Federal candidates."

In sum, he argues that the Millionaire's Amendment's purpose of "leveling the playing field" between congressional candidates who are self financed and not self financed is not a compelling state interest. And, even if it were a compelling state interest, the Amendment could be drafted more narrowly to meet its stated purpose.

The background for this case is Buckley v. Valeo. In Buckley v. Valeo, the Court found the state interest in preventing actual corruption or the appearance of corruption was a compelling government interest. And limits on campaign contributions was solution narrowly tailored to fit that interest. The Court, however, did not apply strict scrutiny, however, because limiting contributions was not a direction burden on speech. Campaign donations are more symbolic, in the sense that it articulates support for a candidate, not articulating a specific point of view on a specific issue. As such, a diminished form of strict scrutiny was applied.

In regards to expenditures, however, the Court found no compelling government interest in limiting independent expenditures. People are speaking directly about issues and it's impossible to corrupt an issue. As to the idea of personal expenditures, the Court found there should be no limit because it's impossible to corrupt one's self. This meant millionaire's could spend as much of their personal treasury as they'd like. Any cap on this would be a direct burden on their speech.

The Congress then passed the Millionaire's Amendment to "level the playing field." If a millionaire was going to use his personal war chest, the opposition candidate would get some additional benefits to even it out (see above.) This intersection between where personal expenditures for one's candidacy and personal contributions to an individual candidate is where the issue lies.

In arguments, Justice's Alito Scalia, and Kennedy seemed to warm to Mr. Davis' argument. Scalia and Alito point to the Buckley framework to note that the seminal case did not stand for "leveling the playing field." Buckley stood for preventing corruption. These are two distinct government interests. As Mr. Herman pointed out, in legislating against corruption, the government legislates uniformly, it doesn't take a side. When leveling the playing field, the government inherently takes a side, that of whom is being balanced out in favor of.

In addition, Justice Scalia pointed out it wasn't the government's job to "level the playing field." Candidates will always have certain advantages over each other. Simply because one candidate has a silver tongue doesn't mean the government can compel him to speak with pebbles in his mouth.

Justice Kennedy seemed most concerned with the idea that the part of the Amendment which limits party support to self-financed candidates, but allows party support for non-self-financed candidates. This, Justice Kennedy states, provides differential treatment of the candidates vis-a-vis support from their respective parties, and was "problematic." He was insistent upon this theme even when General Paul Clement argued on behalf of the government, despite General Clement pointing out that the statute couldn't be invalidated on that point because Mr. Davis never claimed this to be an injury.

Seeming to be on the side of Mr. Herman, Chief Justice Roberts' first comment seemed to sum up his entire thinking: simply because your opponent receives more money, and thus more speech, does not necessarily mean the "Millionaire's" speech is burdened. The Amendment does not prevent the self-financed from raising funds publicly, nor does it cap how much personal money the candidate can spend. In sum, there is not a limited amount of speech; simply because one candidate speaks doesn't mean the other candidate speaks less.

Justice's Ginsburg seemed to agree somewhat with Chief Justice Roberts. The government is not taking sides by allowing the non-self-financed candidate to raise more money. Therefore, the government is not speaking. Nor is the government restricting any speech. The self-financed candidate's spending of personal money is limited only by his net worth. Lastly, Mr. Herman argued that the Amendment burdened speech because it deterred speech: knowing the opponent would receive more lucrative fund raising opportunities, this might deter him from self-financing, or using less personal money. Justice Ginsburg saw no evidence of this.

Interestingly enough, Justices' Souter, Breyer, and Stevens did not have much to say. And of course, Justice Thomas did not say a word.

In all, though it seems close, it seems as if the Amendment will be upheld. The majority will likely consist of Roberts, Ginsburg, Souter, and Stevens, and Breyer. The minority, who will favor striking down the law, will likely consist of Scalia, Thomas, Kennedy, and Alito. Despite my prediction, Alito appeared to be sort of a wild card. He asked pointed questions on both sides. The same could actually be said for Roberts. So he too may play a wild card role.

One thing I found to be interesting, and Professor Rick Hasen of Loyola Law also said, was that, despite the government's entire merit brief being based on the fact the plaintiff suffered no injury and, therefore, had no standing, there was little mention of it in oral arguments. It should be interesting to see how its addressed in the opinion.

Personally, I would find to strike down the law. While I whole heartily agree with the idea of campaign finance, I cannot agree that the government "leveling the field" is something the government should be doing. While too much money in elections is problematic, I'd much rather have the money in the elections than limit the speech of candidates. I simply cannot find the government interest in "leveling the field" compelling. The government should not be in the business of picking sides.

I understand that by doing away with the Amendment it would actually limit speech. Less money could be contributed to a candidate, therefore, less speech could be made. But I don't believe the Buckley framework was implemented simply to find ways to maximize speech. If that were the case, then the Court might as well as simply declare the contributions limitations in Buckley unconstitutional because the only way to achieve this is to do away with all limitations. That way candidates who fund raise get an equal opportunity to to match those who are self financed.

One counter to this argument, however, though not addressed in oral arguments or in merit briefs (and rightly so, as it's weak), is that while the Court can determine whether a state interest is compelling, it is the business of the legislatures to determine what the contribution limits should be. Only in in Randall v. Sorrell did the Court declare that contribution limitations were too low. Never has the Court determined contribution limitations to be too high. From this point of view, it could be argued that the legislature sets contribution limits to prevent corruption. And they prevent corruption by ensuring there is a fair contest; that the symbolism of speech (contributions) doesn't drown out the direct speech (speech of candidates). It isn't the individual contributions that create fairness, but the sum of those contributions and its ability to create speech. This is what creates fairness and prevents corruption. It seems counterintuitive to think the less protected speech should receive more protection than the higher protected speech.

Of course the counter argument to that is the equal protection clause. You need to apply all standards equally. In the end though, Buckley shouldn't be changed. Buckley stood for the principle of preventing corruption and I think that's where Buckley should remain. There are other ways to resolve the issue of unfairness - public financing, or even getting rid of contribution limitations. As Scalia points out, candidates will always have certain advantages over each other. The government should not play the role of mitigator. I think the Millionaire's Amendment should be struck down.

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