Supreme Court to weigh McCain-Feingold law

Tom Curry National affairs writer • Profile • E-mail

WASHINGTON - 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.

Video McCain on Obama's comments on small towns April 14: Sen. John McCain analyzes Sen. Barack Obama's remarks about small-town Americans who "cling to guns or religion or antipathy to people who aren't like them." NBC News Web Extra

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.

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