Next Tuesday, the Supreme Court will hear oral arguments in a case that will decide how tightly Congress can regulate candidates and campaigns.
Before they wrap up their term in June or July, the justices will determine the fate of the so-called “millionaires’ amendment,” a provision in the McCain-Feingold campaign finance law which helps candidates who face self-financed opponents.
If you’re a candidate running against a self-financing millionaire, Sen. John McCain and his fellow designers of the 2001 law have “leveled the playing field” by allowing your donors to give your campaign three times more money than the normal contribution limit.
In a House race, if a self-funded candidate spends more than $350,000 in personal funds on his campaign, each donor to his opponent can give $6,900, three times the usual statutory maximum.
The rule applying to Senate races is more complex, entailing calculations pegged to each state’s voting-age population and other factors.
So who benefits? Candidates like Obama
One of those who benefited from the millionaires’ amendment is Barack Obama, who in his 2004 Senate primary race was able to raise an additional $3 million in excess of the ordinary limits, because one of the Democratic candidates he was running against, Blair Hull, spent $28.6 million of his own money.
For both House and Senate races, the law requires the self-financed candidate to report his spending more frequently than the opposing candidate.
Self-funded millionaire candidate Jack Davis, a Democrat who lost races in 2004 and 2006 to Rep. Tom Reynolds, R-N.Y., filed a suit contending that the law violated his First Amendment free speech rights by forcing him to reveal “sensitive, strategic information” about his spending on the campaign.
Davis’s lawyers also contend that “leveling the playing field” for candidates has no connection to the purpose that Supreme Court approved in the 1976 Buckley v. Valeo decision: preventing wealthy donors from exercising undue influence on candidates.
'A fork in the road'
The outcome of the Davis case “turns entirely on the question of whether or not you think that this law burdens the speech rights of the self-financing candidate,” said Prof. Richard Briffault, a campaign finance law expert at Columbia University Law School in New York.
“It’s a fork in the road. If the court thinks this is not a burden on First Amendment rights, then Congress doesn’t have to have a very heavy burden to make in justifying it,” he said.
But if the justices look at the millionaire’s amendment as a penalty for exercising one’s First Amendment rights, then they’d require a higher level of justification from Congress, Briffault said.
If the court concludes that it is a constitutional problem to allow a candidate to raise more money because his self-funded foe has been able to do so, "this could raise questions for some of the state public funding laws out there," Briffault said. Some state laws provide more public (taxpayer) funding if a candidate goes up against an opponent who spends freely from his own pocket.
In making the case for the law, Solicitor General Paul Clement argues that “the reduction of wealth-based disparities in electoral opportunity” is a legitimate objective for Congress.
After all, Clement said, “Congress has permissibly sought to reduce such disparities in a variety of contexts,” such as requiring taxpayer-funded access to legal services and to medical care for poor people.
Standing on the sidelines to all of this is McCain. Never before has a presidential candidate had one of his legislative creations scrutinized by the high court at the moment he is running for the White House.
But there are two ironies here. One is that while McCain’s work on campaign finance is one of his “reformer” credentials, it’s also what many Republican conservatives most dislike about him.
The other irony is that the millionaire’s amendment was not McCain’s idea at all.
It was added to the bill by Sens. Pete Domenici, R-N.M., Dick Durbin, D-Ill., and Mike DeWine, R-Ohio.
A McCain advisor familiar with the passage of the McCain-Feingold bill in 2001 explained how the “level playing field” amendment got into the bill by saying, “When you're negotiating a complicated piece of legislation, particularly when it directly affects the members who are voting on it, it is an arduous negotiation to bring in the 60 votes you need in the Senate.”
The advisor added, "Some people figure McCain wrote a bill and it was passed and nothing was added by other members. I'm not saying that he was for or against it (the millionaire’s amendment), I'm just saying that’s what happens as you move a bill through the Senate."
In making the case for the amendment, Durbin told his fellow senators on March 20, 2001, "We are addressing probably one of the most complicated problems we face, a Supreme Court decision in Buckley v. Valeo which said that a person who decides to run for office and is personally wealthy cannot be limited in the amount of personal wealth they spend in order to obtain this office."
“Meanwhile, other candidates who are not personally wealthy face all sorts of limitations on how much money they can raise,” the Illinois Democrat said.
DeWine told his colleagues that the amendment would “enhance the marketplace of ideas — the very foundation of our democracy — by giving candidates who are not independently wealthy an opportunity to get their message across to the voters as well.”
DeWine predicted that “the courts are likely to uphold this provision because it addresses the public perception that there is something inherently corrupt about a wealthy candidate who can use a substantial amount of his or her own personal resources to win an election….”
He contended that “the public looks at this (phenomenon of self-funded candidates) and, frankly, says something is just wrong with this.”
But one of DeWine's colleagues mocked the notion that incumbents needed help against millionaire challengers.
“This is what I would call incumbency protection,” said Sen. Christopher Dodd, D-Conn. He ridiculed the idea that “somehow we (incumbent senators) are sort of impoverished candidates” and noted that senators “raise money all the time during our incumbency.”
There’s evidence that not all voters are disturbed by wealthy candidates who decide to write their own checks to win office.
Cases in point:
- New Jersey’s Jon Corzine spent $60 million of his own fortune in 2000 to win a Senate seat.
- Michael Bloomberg spent more than $50 million of his money to become mayor of New York City in 2001.
- Herb Kohl spent $7 million to win a Senate seat in Wisconsin in 1994 and another $5 million when he won a second term in 2000. Kohl loaned his campaign $6.25 million for his 2006 race, which he won by a landslide.
- In this year's Republican presidential race, former Massachusetts governor Mitt Romney lent his campaign more than $42 million from his own bank account. On the Democratic side, Hillary Clinton has so far lent her campaign $5 million.
Voters seem able to discriminate between self-funded candidates whom they like, such as Kohl, Corzine, and Bloomberg, and ones they reject, such as Ross Perot, who spent $60 million on his futile presidential bid in 1992.
McCain still 'proud of the accomplishment'
McCain himself is not likely to be in the audience at the Supreme Court Tuesday morning when the millionaires' amendment case is argued.
McCain senior advisor Mark Salter said, “There are obviously the Republicans that didn't like it [McCain-Feingold], but he hasn't changed his views about it or anything else. He's proud of the accomplishment.”
So far, the McCain-Feingold law has not been a major theme of McCain's campaign, which is no surprise given his need in the primaries to appeal to conservatives who may abhor the law.
Adam Aigner-Treworgy of NBC News and National Journal contributed to this story.