IN THE EXCITEMENT over the Supreme Court's decision in the D.C. gun ban case, almost overlooked was a second decision that struck another blow against the McCain-Feingold federal campaign finance law. In Davis v. FEC, a 5-4 majority found the "Millionaire's Amendment" to be unconstitutional, holding that it imposed an unprecedented penalty on any candidate who robustly exercises his First Amendment rights by requiring him to choose between the right to engage in unfettered political speech or to be subject to discriminatory fundraising limitations. This was a significant decision reaffirming First Amendment principles and rejecting a new and dangerous justification for campaign restrictions.
The 2002 Millionaire's Amendment tripled the $2,300 contribution limit for a federal candidate facing a self-financed opponent who spent more than $350,000 of his own funds. It also lifted the limit on money spent by the political party on behalf of the candidate who was not self-funded, while imposing substantial reporting requirements on his freespending opponent. At first blush, this would seem like a good change in the law to everyone who believes that the current contribution limit of $2,300 is too low and that the party coordination limits make no sense since political parties are supposed to help elect their candidates. The problem, however, was the rationale used by Congress for this amendment.
Starting with the Buckley decision 30 years ago, the Supreme Court has approved campaign finance laws that regulate and restrict contributions and political activity on the basis that they prevent corruption or the appearance of corruption. Since the Millionaire's Amendment raised the contribution limit, it obviously could not be justified on that basis. If limiting contributions to $2,300 is necessary to avoid corrupting a candidate, then allowing $6,900 to be contributed would pose a much greater danger. Instead, Congress justified this provision on egalitarian grounds--it was required to level the playing field and reduce the "natural" advantage that wealthy candidates have in campaigns for federal office.
The danger of this rationale is that it could be used by Congress to justify almost any restriction on political speech, political activity, and electoral campaigns. Fortunately, a majority of the Court led by Justice Alito recognized the complete fallacy of this argument. As Justice Alito wrote, "[t]he argument that a candidate's speech may be restricted in order to 'level electoral opportunities' has ominous implications because it would permit Congress to arrogate the voters' authority to evaluate the strengths of candidates competing for office." Alito concluded that no interest in leveling electoral opportunities for candidates of different personal wealth could justify the asymmetrical contribution limits imposed by the Millionaire's Amendment.
The Court also threw out the disclosure requirements since it found the basic provision of the law unconstitutional, a holding that has other implications. Last year, the Supreme Court found the electioneering communications provision of McCain-Feingold unconstitutional. This provision had banned certain advertisements that named a federal candidate even if the ad had nothing to do with an upcoming election, such as an issue ad urging a senator to vote a particular way on upcoming legislation. However, when the FEC implemented this exemption with a new regulation in November, it still imposed a disclosure requirement. I was the only commissioner on the FEC who opposed this regulation because the agency had no authority to require disclosure of activity that the Supreme Court had found the FEC had no power to regulate. The holding in Davis makes it clear that this regulation is unconstitutional. The newly approved commissioners on the FEC should promptly eliminate it.
The most disturbing aspect of the Davis case is the dissenting opinion written by Justice Stevens. Stevens believes that leveling the political playing field represents a "modest, sensible, and plainly constitutional" basis for congressional action. The fact that it would limit political speech "would likely have the salutary effect of improving the quality of the exposition of ideas." He says that it would be better if political campaigns were conducted in a more "orderly" manner such as oral argument before the Supreme Court since that produces "high-value" speech: "flooding the airwaves with slogans and sound-bites may well do more to obscure the issues than to enlighten listeners." Unbelievably, Stevens posits that in elections, "the notion that rules limiting the quantity of speech are just as offensive to the First Amendment as rules limiting the content of speech is plainly incorrect."
The fact that four justices of the U.S. Supreme Court would actually assert that there is nothing wrong with limiting the amount of political speech engaged in during an election is shocking. It is scary to think of such a constitutional doctrine becoming accepted precedent if just one justice had switched his vote. It graphically illustrates just how important the next president's appointments to the Supreme Court will be to preserving our First Amendment rights in the political arena.
Hans A. von Spakovsky is a former commissioner on the Federal Election Commission and a former counsel to the Assistant Attorney General for Civil Rights at the Justice Department.