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The Supreme Court on April 22 served up another reminder that its formerly predictable support for most kinds of campaign finance reform can no longer be taken for granted. Justices appeared more divided than expected over the constitutionality of the so-called “Millionaire’s Amendment,” a provision that allows the opponents of rich, self-financing candidates for Congress to receive higher contributions from individuals and parties than would otherwise be allowed. Led by Justice Antonin Scalia, several justices expressed doubt that the First Amendment allows government to manipulate campaign speech in this way, solely to “level the playing field” among candidates for office. “Do you think we should trust our incumbent senators and representatives to level the playing field for us?” Scalia asked at one point. At another, Scalia asked whether, under the same theory, Congress could pass a law to help those who go up against candidates who are eloquent. “You make him talk with pebbles in his mouth, or what?” If the high court does strike down some or all of the amendment, it would be the second part of the Bipartisan Campaign Reform Act of 2002 invalidated by the Roberts Court. Last June, in Federal Election Commission v. Wisconsin Right to Life, the Court said some aspects of a restriction on pre-election advertising by unions and corporations violated the First Amendment. Even though the Millionaire’s Amendment does not cover presidential campaigns, the 2008 campaign for the White House made its way into the courtroom nonetheless. Andrew Herman, the lawyer arguing against the provision in the case Davis v. FEC, was suggesting that not all millionaires are such formidable candidates that their opponents need extra help. “Certainly the public was not particularly interested in Mitt Romney, who spent a significant amount of money on his own behalf,” Herman said, pausing to add, “and many other spectacular flameouts.” Amid laughter, Chief Justice John Roberts Jr. himself was chuckling when he admonished Herman, “I’m not sure we need characterizations of the political candidates in this forum.” Herman, a lawyer with the Brand Group in D.C., said, “I apologize.” Herman represented Democrat Jack Davis, a wealthy but unsuccessful two-time candidate for Congress in upstate New York who triggered the law by spending nearly $4 million for his 2006 campaign. He claims that the law forces him to face the unappealing and unconstitutional choice of either limiting his expenditures to stay below the limit that triggers the law or, if he goes above the limit, aiding his opponent. Under the law, when self-financing candidates spend more than $350,000 on their own campaign, their opponent can receive individual donations from supporters of up to $6,900, or three times the usual limit of $2,300. The opponent can also receive unlimited support from his or her party, removing the usual cap of $40,900 in House races. The law also imposes extensive reporting requirements on the self-financing candidate. Justices who seemed sympathetic to the law kept questioning Herman about the harm Davis or the First Amendment suffered because of the law. “Your candidate isn’t subject to any restriction at all on what he can spend,” Roberts said. “And his opponent is subject to less restrictions. It seems to me the First Amendment comes out better.” Herman argued that his client is harmed by having to abide by the limitations of the law that his opponent can ignore. But he struggled to make this point and others before skeptical justices like David Souter and Ruth Bader Ginsburg. Yet several justices also challenged Solicitor General Paul Clement as he defended the law as a modest effort to blunt the public perception that seats in Congress can be bought. “Isn’t there something very strange about having different contribution limits for candidates in an election?” Justice Samuel Alito Jr. asked Clement. Alito also noted that the original reason for limiting individual donations to $2,300 was to prevent corruption. “Presumably Congress doesn’t think there is a serious corruption problem when this statute kicks in and someone gives $6,900 to a candidate?” Clement replied that Congress is entitled to set limits that reflect “an adjustment of other interests.” Justice Anthony Kennedy, whose vote in the case could be pivotal, seemed most bothered by the provision of the law that limits the ability of the wealthy candidate’s party to support its candidate, thereby affecting each party’s election strategy. “It puts this Court … in the position of preferring one kind of speech over another,” Kennedy said. “And we simply do not do that.” Roberts also appeared at times skeptical of the government’s position, commenting, “At some point, the benefit to the opponent gets to be too much of a chill on the self-financed candidate.”
Tony Mauro can be contacted at [email protected].

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