Saturday, January 12, 2008

Excellent News from SCOTUS

Friday was a good day for defenders of the First Amendment. From an article in today's Washington Post:

The Supreme Court announced yesterday that it will review the constitutionality of the so-called Millionaires' Amendment, which allows opponents of some self-funded congressional candidates to raise more money than federal law normally allows.

The court's decision would come in time to affect the 2008 congressional campaigns.

The law is being challenged by Democrat Jack Davis, who lost in 2004 and 2006 to Rep. Thomas M. Reynolds (R-N.Y.). In the 2006 race, Davis spent more than $2.2 million of his own money, and lost 52 percent to 48 percent.

The provision is part of the Bipartisan Campaign Reform Act of 2002, commonly known as the McCain-Feingold Act. It allows a House candidate who receives notice that his opponent will spend more than $350,000 of his own money to receive triple the individual campaign contribution limit of $2,300, even if the individual giver has already contributed the maximum. The provision also permits coordination with party officials about campaign spending. There are similar provisions for Senate candidates.

McCain-Feingold was a cynical exercise in incumbent protection generally, but the Millionaires' Amendment is arguably the most cynical and unjustified provision in the Act. If, as the legislators who pushed McCain-Feingold told us, the Act was meant to combat the influence that "special interests" obtain by giving money to politicians and political groups, shouldn't they have rejoiced at the existence of wealthy, self-funded challengers -- who are above the need to raise money -- rather than penalizing them and helping their incumbent opponents?

As for the case itself, why be so optimistic after a mere cert grant? Because, to refresh memories, five members of the current Court (including Chief Justice Roberts and Justice Alito) looked very unfavorably on the constitutionality of another McCain-Feingold provision last year in Wisconsin Right to Life v. FEC. This case presents an even easier call.

Update/Correction: The case actually comes to the Court in the form of a rare direct appeal from a three judge panel (as allowed by a provision in McCain-Feingold), not through a cert grant. Also, there is a jursidictional issue that the Court must decide before hearing the merits. However, I still think that ultimate prospects for the petitioners are quite good. More here from SCOTUSblog.

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