Thursday, June 26, 2008

Davis v. FEC: The day's most important decision

Heller is a huge case, but, in terms of affecting policies that might actually be enacted, it may not be as important as today's decision in Davis v. Federal Election Commission.
Simply put, Davis involved a challenge to the "Millionaire's Amendment" to the McCain-Feingold Act (officially known as the Bipartisan Campaign Finance Reform Act of 2003 or "BCRA"). The amendment is complicated but, for our purposes, it suffices to say that it raises the campaign contribution limits applicable to a candidate whose opponent has self-financed in excess of a particular amount. For such candidates, it removes the limit on coordinated party expenditures. The idea is to "level the playing field" when someone faces a wealthy opponent. It is important to note that, when the Millionaire's Amendment becomes operative, the "self-financing" candidate (i.e., the one who has spent more than the specified amount of his own money) is still subject to the normal limits on contributions and coordinated party expenditures.

The Court found that this places an unconstitutional burden on the self-financing candidate's exercise of her First Amendment right to spend her own money to coomunicate on behalf of her campaign. For a variety of reasons that I won't get into here, I think this was the right decision.

But what I find intriguing is the implication of the decision for public financing schemes when considered in conjunction with last term's decision in Wisconsin Right to Life v. FEC. That case struck down limitations on the use of corporate and union treasury funds to communicate on matters of public interest during a period immediately prior to an election if the communication mentions a candidate running for federal office in that election and was directed toward persons who would vote in the election in which that person was running.

This means that it may well nigh be impossible to restrict independent expenditures during an election. Again, for reasons that I have given before, I think that is the right outcome.

To combat this, public financing schemes will often provide for additional public funding to be directed to the candidate against whom these expenditures are made. For example, the bill currently pending in the Wisconsin state legislature for the public funding of judicial campaigns would do exactly that.

But if asymmetrical campaign contribution limits (i.e., one side gets to raise more money than the other) burden a candidate's constitutional right to spend his own money, then asymmetrical public financing (i.e., one side gets more public money than the other) burden the constitutional right of persons to communicate on issues of public importance during an election? Wisconsin Right to Life, for example, couldn't urge Russ Feingold to vote on judicial nominees without causing Feingold to be able to raise more money.

The answer isn't foreordained. I suppose one could argue that it doesn't really burden WRTL's speech rights for Feingold to get more money since it is ostensibly not advocating Feingold's election or defeat. You may regard this as a "phony" distinction (as campaign finance reform advocates do), but maybe maintaining the fiction would preserve these schemes. You might also argue that there are corruption concerns present here that aren't present when a candidate spends her own money, but, if those concerns don't support limiting the expenditures, its not clear why they should support burdening it in this way.

But consider a world in which this distinction carried the day. Congress would not be permitted to level the playing field when someone faces a wealthy opponent, but would be able to do so when interest groups seek to speak to issues of interest during an election in a way that implicates a particular candidate, i.e., in a way that is likely to accomplish something.

Davis may signal the death of public financing. But even if it doesn't, it certainly suggests that the First Amendment and campaign finance restrictions are at war with each other in a way that suggests that advocates of the latter ought to surrender or radically rethink their approach.


Publius said...

Prof. Esenberg;

I disagree the Courts feeling that this places a burden on “Millionaire Candidates” First Amendment Rights. It does not address what they can do with their money, the decision is theirs.

It merely seeks to level the field, or future officeholders will predominantly be wealthy people.

Most wealthy people as a class are not bad people, per say; however I believe the “Intent of the Framers” was that all classes of Americans be equivalently represented.

Anonymous said...

Who is the big loser with this Supreme Court decision? In Wisconsin, it's former Assembly Speaker John Gard!