CONGRESS is less divided by partisanship than it is united by devotion to protecting incumbents. Doing this, for example, with the bipartisan embrace of spending “earmarks” is unseemly. But occasionally, incumbent protection is also unconstitutional.
It was in 2002, when Congress was putting the final blemishes on the McCain-Feingold law that regulates and rations political speech by controlling the financing of it. The law’s ostensible purpose is to combat corruption or the appearance thereof. But, by restricting the quantity and regulating the content and timing of political speech, the law serves incumbents – who are better known than most challengers, more able to raise money and uniquely able to use aspects of their offices (legislative initiatives, C-SPAN, news conferences) for self-promotion.
Not satisfied with such advantages, legislators added to McCain-Feingold the Millionaires’ Amendment to punish wealthy, self-financing opponents. The amendment revealed the cynicism behind campaign regulation’s faux idealism.
The amendment says: When a self-financing House candidate exceeds the personal spending threshold of $350,000, his opponent gets three benefits: 1) The opponent can get contributions triple the per election limit of $2,300 from each donor. 2) The donors’ now-tripled contributions are not counted against those donors’ aggregate contribution limits for the two-year election cycle. 3) The opponent can coordinate with his political-party committee unlimited party expenditures that otherwise would be limited. (Senate campaigns are subject to similar provisions.)
In 2006, Jack Davis, a wealthy Buffalo-area Democrat, self-financed his House campaign against Rep. Tom Reynolds. As a four-term incumbent and a former chairman of the National Republican Congressional Committee, Reynolds knows how to raise money. Benefiting from the added advantages under the Millionaires’ Amendment’s provisions, he narrowly won, 52-48.
Davis wants the Supreme Court to rule that the Millionaires’ Amendment unconstitutionally burdens the First Amendment right of political advocacy and violates the Constitution’s guarantee of equal protection of the law. It does both.
In 1976, examining a 1974 law restricting both campaign contributions and expenditures, the court affirmed two principles: 1) Corruption arises from quid-pro-quo arrangements connecting contributions with actions of a public official. 2) Because corruption arises from contributions, restrictions on expenditures are much more problematic, constitutionally.
The court noted that candidates spending their own money reduce their susceptibility to coercive pressures, and hence serve the purported purpose of regulation – preventing corruption. So the court rejected the limits on candidates’ personal spending, and dismissed as merely “ancillary” the objective of “equalizing the financial resources of candidates.”
In 2001, the court affirmed the limits on party-coordinated expenditures because they are “tailor-made to undermine contribution limits.” With that in mind, reread, five paragraphs above, the third provision of the Millionaires’ Amendment.
So, that amendment punishes candidates who use their own noncorrupting money to disseminate their political speech. Such candidates are penalized for exercising a right – political speech – that Congress cannot constitutionally curtail.
The amendment does this by increasing the access of the wealthy candidates’ opponents to the supposedly corrupting sort of money – political contributions from donors who can give triple the amount that McCain-Feingold says can corrupt.
McCain-Feingold’s authors wrote this provision while pretending to reduce the influence of donors, but while actually engaged in incumbent protection.
Davis’ appeal to the Supreme Court asks: “If the answer to the corrupting influence of campaign donations is the application of uniform limits, how can the answer to noncorrupting expenditures be found in higher limits made available only to those candidates most susceptible to corruption?”
If the court answers that question reasonably, it will accelerate the unraveling of McCain-Feingold. Meanwhile, both parties increasingly try to recruit self-financing candidates, because “reforms” imposing limits on the size of contributions have increased the cost, in candidates’ time and money, of raising campaign funds.
In 1976, the court stressed how crucial it is “that candidates have the unfettered opportunity to make their views known.” In 2003, however, the court affirmed McCain-Feingold’s fetters on political advocacy. The court has some contradictions to correct and an immediate reason – the Millionaires’ Amendment – to begin.