As Pennsylvania Democrats went to the polls last month in the
last big primary before the party’s nominating convention, the
Supreme Court heard yet another challenge to campaign finance
regulation. Whether Barack or Hillary finally wins the Democratic
nomination, and no matter who wins the White House in November, the
outcome of this case will color the Congress the new president has
to work with.
The “Millionaires’ Amendment” of the McCain-Feingold law
discourages congressional candidates from using their own funds to
finance their campaigns. The supposed reason for this blatant
restriction on free speech is to prevent people from “buying” a
seat in Congress, but its actual effect is to protect officials
who’ve already been elected and who plan to stay that way.
When a candidate decides to run for Congress, he has to file,
under penalty of criminal law, a statement of how much he intends
to spend out of his own pocket. But if the amount is over $350,000
(less than a quarter of the expected cost of a House race this
year), then his opponent — typically the incumbent — is allowed
not to comply with some of McCain-Feingold’s anti-corruption
“reforms.”
For example, the incumbent enjoys a tripling of the $2,300
individual contribution limit, and a total exemption from the
restrictions on coordinating expenditures with the national
party.
Moreover, once the “statement of intent” to spend over $350,000
is filed — or once the limit is reached, if it is reached
unexpectedly, which could itself give rise to criminal and civil
liability — then that self-funded candidate has to disclose every
expenditure of $10,000 or more to his opponent within 24 hours of
spending that money.
This disclosure signals the self-funded candidate’s tactics,
enabling his opponent to infer and counteract television and radio
advertising, leafleting, and the like.
SO NOT ONLY DOES the opponent of a self-funded candidate (again,
almost always the incumbent) enjoy relaxed campaign finance
restrictions, he gains a strategic advantage over his hapless
challenger!
And remember, $350,000 — a figure set in 2002 and not indexed
to inflation — simply does not go far in competitive races.
Especially when you’re running against an incumbent who has built
up a war chest, which doesn’t count for calculating the “gross
receipts differential” at the heart of the convoluted formula used
to determine the extent to which the opponent can use the relaxed
contribution and coordination limits.
Not to mention the other inherent advantages of incumbency:
greater name recognition, “franking” privileges to get your message
out to constituents without mailing costs, the ability to gain
publicity by securing earmarks and otherwise going about your
“public service,” and, of course, taxpayer-funded travel home.
So instead of “leveling the playing field” between candidates
for office, the Millionaires’ Amendment further tilts it the
incumbents’ way. That’s the other unfortunate aspect of this mess:
Not only is this tremendously complex regulation bad policy, it’s
also unconstitutional.
FIRST, THE PROVISION burdens the exercise of political campaign
speech without serving any compelling governmental interest. By
enhancing the political speech of a self-funded candidate’s
opponent — through the increased contribution limits and unlimited
coordinated party expenditures — it creates a de facto
expenditure limit, in essence restricting speech beyond the
$350,000 threshold. The Supreme Court ruled in the famous 1976 case
of Buckley v. Valeo that expenditure limits were
unconstitutional.
Second, the Millionaires’ Amendment does not prevent actual or
apparent corruption because there is no threat of a quid pro quo
from a candidate spending his own funds. The provision actually
undermines the stated interest in combating corruption by
preventing candidates from reducing their dependence on outside
contributions — and increasing their opponents’ purportedly
corrupt contributions and coordinated expenditures.
Finally, the compelled disclosure requirements further penalize
candidates for exercising their right to engage in political
discourse by imposing significant personal liability on them. The
disclosure requirements also infringe on a candidate’s First
Amendment right not to associate with campaign
contributors. And they do so without serving any informational
interest the public may have, because the underlying information is
already disclosed to the FEC under other McCain-Feingold
requirements.
In short, the “Millionaires’ Amendment” is nothing more than
incumbency protection disguised as a good-faith effort to cleanse
our political system, much like most campaign finance “reform.”
