Chipping away at McCain-Feingold

Attn: Political writers, Editorial writers
     As it was getting ready to call it a “term” and leave town for its annual summer recess (a quaint custom that predates the invention of air conditioning), the U.S. Supreme Court performed a bit of cosmetic surgery on the Bipartisan Campaign Reform Act (also known as the McCain-Feingold law) by exorcising its so-called “millionaire’s amendment.”
     The offending provision was added to the measure while it was being debated in the Senate, supported by incumbent senators who sensed an opportunity to add yet another wrinkle into their already substantial list of “incumbent protection” defenses.
     Under it, whenever a candidate for Congress supplied $350,000 or more to finance his or her own campaign, the $2,000 per election contribution limit (since raised to $2,300 as an adjustment for inflation) would be tripled for the self-financed candidate’s opponent. Since incumbents rarely if ever use their own money to pay for their election campaigns, the amendment was seen for what it was: an insurance policy for incumbents whose future re-elections might be made vulnerable to defeat by wealthy opponents.
     Jack Davis, a Democrat who challenged and lost elections in 2004 and 2006 to incumbent New York Rep. Thomas Reynolds, was the nightmare that incumbents had in mind when they stuck the “millionaire’s amendment” into the campaign finance reform law. Davis raised a paltry $126,000 for his 2006 campaign, and tapped his own bank account for $2.2 million more. That would have created a $1.5 million fundraising opportunity for Reynolds who did not take advantage of it.
     Typically, 98% of incumbent lawmakers who seek re-election are winners. They start out with enormous name recognition and fundraising advantages that are rarely overcome by challengers. Unless a challenger has substantial personal wealth or is a nationally recognized celebrity, they are usually doomed to failure. Fundraising for most challengers is restricted to a small pool of potential donors who are mainly friends, neighbors, relatives and co-workers. In contrast, incumbents add more lobbyists and PACs to their fundraising lists each time they cast a vote in Congress.
     In Davis v. Federal Election Commission, Justice Samuel Alito noted that the Court has never upheld an election law that sets different contribution limits for candidates who are seeking election to the same office. In the landmark 1976 Buckley v. Valeo opinion, the Court rejected a Federal Election Campaign Act provision that set a limit on a candidate’s use of personal funds, holding instead that “a candidate…has a First Amendment right to…vigorously and tirelessly…advocate his own election,” Alito wrote.
     Imposing a limit on campaign contributions, the Buckley court agreed, was an infringement on the First Amendment. The ability to spend money is the essential equivalent of being able to amplify a candidate’s speech. But Buckley’s main point was to declare that contribution limits were nonetheless permissible because they served a “compelling governmental interest;” namely, the avoidance of actual or perceived corruption.
     In the case just decided, Justice Alito said the government had no compelling interest in enforcing a law that punishes a candidate who uses personal funds to finance a congressional election campaign. The use of a candidate’s own funds can hardly be a source of real or imagined corruption.
     It was the second time that a McCain-Feingold provision fell onto the heap of unconstitutionalities. Last year, in a suit brought by Wisconsin Right to Life Inc., the high court overturned the election reform law’s so-called “gag rule” against broadcast messages that are aired within 30 days of a primary election or 60 days of a general election if they mention the name of an identifiable candidate for federal office. The court ruled that the provision could not be applied to Wisconsin Right to Life because it prevented the group from airing legitimate “express advocacy” messages pertaining to pending legislation in Congress. McCain-Feingold made it unlawful to broadcast an ad within the 30- and 60-day blackout zones that urged listeners and viewers to contact a specifically-named lawmaker with their personal plea to support or oppose legislation.
     Former FEC Commissioner Bradley A. Smith, now the chairman of an election law watchdog group in Washington called the Center for Competitive Politics, said the Court’s decision has ramifications for states that sponsor taxpayer-financed election campaign programs. Most of the state programs, Smith noted in a press release, penalize candidates who choose to finance their campaigns with private contributions or personal funds.
     The “millionaire’s amendment” was based on an unreasonable justification; namely, that government can level the playing field between candidates. But, Smith explained, “such a concept is wholly foreign to the First Amendment. Congress is not allowed to tinker with people’s speech rights because it thinks some people are speaking too much, or others not enough.”
–EZ