The Supreme Court on Tuesday had some difficulty mustering sympathy for candidates for Congress who are so wealthy that they can pay for their entire campaigns, but, perhaps more important, there was not much sympathy, either, for the way Congress has chosen to bolster the chances of those candidates’ opponents. In fact, so much doubt had been expressed about the so-called “Millionaire’s Amendment” that the Justices seriously explored what, if any parts, of it could be salvaged.

The part of the law that seemed most in jeopardy gives opponents of self-financing candidates a chance to call on a political party for a lot more financial support — even though that is denied to the wealtheir candidates themselves. Also, a provision compelling self-financed candidates to make repeated public disclosures about their spending seemed to be in some trouble, too.

The reason for the pervasive skepticism during the hour-long argument in Davis v. Federal Election Commission (07-320) was that several of the Justices voiced concern that Congress might have been trying to influence the content of the political messages that get conveyed during a congressional campaign — a potential First Amendment problem.  A move by Congress to “level the playing field” appeared to be interpreted as a reach to control those messages.  Most tellingly, Justice Samuel A. Alito, Jr., questioned whether Congress in enacting the Amendment genuinely intended to stop the corrupting influence of money in politics — the only rationale the Court has accepted for campaign finance regulation.

The argument presented a recurring difficulty for observers trying to read the Court’s reaction: once again, Justice Antonin Scalia was such a dominant figure (and such a hostile opponent of the Amendment) that one might get the impression that he was in control. This time, however, as the hearing moved along, the Amendment drew more and more adversaries on the bench — in particular, Justice Anthony M. Kennedy.

The Millionaire’s Amendment, passed as part of the massive overhaul of federal campaign finance law in 2002, goes into operation if, in a given congressional race, a wealthy candidate signals that he or she is going to spend more than $350,000 of personal funds to finance that candidacy. That triggers a right for the opponent to raise money beyond the usual contribution ceilings, and to coordinate financing with a political party, again exceeding limits. It also triggers heavy disclosure requirements on the wealthy candidates, some perhaps due on a daily basis.

The case was taken to the Court by Jack Davis, an unsuccessful candidate for Congress from upstate New York, who financed his own campaigns in 2004 and 2006.

Gong into Tuesday’s argument, the impression among observers was that Davis’ challenge was, at best, a long shot.  He was allowed to spend as he wished, so his argument that he was “chilled” in his political speech was found wanting (and, indeed, had been flatly rejected by a lower federal court).

For the first part of the oral argument, that impression held sway.  Davis’ lawyer, Washington, D.C., attorney Andrew D. Herman, was only a few seconds into his argument when Chief Justice John G. Roberts, Jr., told him: “There is no restriction whatsoever on the wealthier candidate.  He can spend as much of his money as he wants.”  And Justice Ruth Bader Ginsburg suggested that “the end result of this schme is that there will be more, not less, speech.”  Justice David H. Souter soon joined in to say that experience under the Amendment lacked any evidence that anyone was deterred by its requirements.

Throughout those exchanges, Justice Scalia interjected to help Herman’s argument, several times directly refuting comments by other Justices as soon as they had made them.  And, well into Herman’s presentation, Scalia got directly into his critique of Congress’ reason.  “Do you think,” he asked, ” that’s a valid constitutional objective, to level the playing field?  Do you think we should trust our incumbent senators and representatives to level the playing field for us?”  Herman, of course, said no.

When Justice Kennedy got involved, he went right to the question of whether it was constitutional for Congress to give challengers to wealthy candidates “more access and more support” from political parties.  “That concerns me,” Kennedy said. “And it seems to me that that distinction is somewhat questionable….It seems to me that that’s a particular vice of the statute.”

The woe that the Amendment seemed to be encountering became most vivid, though, during the argument in support of that provision by U.S. Solicitor General Paul D. Clement (making what may be his last Court argument as the SG — unless he resists the strong lure of private practice).

Perhaps the most revealing exchange was with Justice Alito.  The Justice, during Herman’s argument, had seemed to be somewhat sympathetic to Congress’ desire to “rectify” the effect of tight limits on contributions, by allowing less-well-heeled candidates to raise more to compete with self-financed candidates.

But, with Clement at the lectern, Alito suggested that there was “something very strange about having different contribution limits for candidates in an election.”

And, later, after other Justices had begun questioning whether Congress had found any problem of corruption in self-financed candidacies, Alito joined in.  “How is it,” he said, with some sarcasm, “that there is a serious corruption problem in most instances if a contributor gives more than $2,300 to a candidate [the limit on contributions to a self-financed candidate] but presumably Congress doesn’t think there is a serious corruption problem when this statute kicks in and somebody gives $6,900 to a [less-wealthy] candidate…So why would Mr. Davis be subject to potential corruption if he got $2,301 from a contributor, but his opponent in exactly the same race would not be exposed to corruption if he got $6,900?”  That, Clement replied, without answering directly, is the result of candidate choice.

In the meantime, Justice Kennedy had recharacterized the core issue in the case as one dealing not with “just money,” but with “the quality and kind of speech.”  Again, the Justice was referring to the role that the less-wealthy candidate could summon from a political party, suggesting that it was the party’s speech that was being made available unequally, with a differential impact on campaign strategy.  “The content of he speech…that’s exactly what this is,” Kennedy suggested. ”It puts this statute in the position of preferring one kind of speech over another. And we simply do not do that.”

Somewhat later, the Chief Justice brought up the disclosure requirements, saying “it strikes me as very problematic that the government requires you to disclose in a differential way how you intend — when you’re spending a particular amount of money and on such precise day-by-day requirements.”  Justice Ginsburg expressed concern about that, too.

Not long afterward, Justice Stephen G. Breyer brought up the question of whether invalid parts of the Millionaire’s Amendment were struck down, the rest could be preserved.  Yes, said Clement.  And Justice Scalia soon talked about fashioning a remedy that would eliminate the differential between the candidates in gathering contributions and joining efforts with a party, either by “leveling up” or “leveling down.”

Posted in Davis v. FEC, Uncategorized