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Supreme Court tackles 'Millionaires' Amendment'

  • Story Highlights
  • The Supreme Court takes on Davis v. Federal Election Commission
  • Case looks at a provision of FEC law dealing with campaign limits
  • Jack Davis, a Democrat, filed the case; he is making his third run for Congress
  • A decision is expected by late June, and will have an immediate effect on the race
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From Bill Mears
CNN Supreme Court Producer
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WASHINGTON (CNN) -- The Supreme Court on Tuesday debated whether a provision of federal election law that allows opponents of certain self-financed candidates to exceed campaign spending limits unfairly punishes those who self-finance.


The Supreme Court debated Davis v. Federal Election Commission Tuesday.

The challenge came from Jack Davis, a wealthy upstate New York businessman who is making his third run for Congress as a Democrat.

He narrowly lost in 2006 to five-term incumbent GOP Rep. Tom Reynolds, who is not running for re-election this fall.

"The wealthy candidate can spend as much as he or she wants, and the end result of this scheme is that there will be more, not less, speech," said Justice Ruth Bader Ginsburg during a spirited one-hour session of oral arguments.

But Justice Antonin Scalia said of Davis v. Federal Election Commission, "I am deeply suspicious of allowing elections to be conducted under a regime whereby Congress levels the playing field. That seems to be very dangerous."

A decision is expected by late June, and will have an immediate effect on the open seat Davis seeks. Democrats had for months targeted it as a competitive seat favoring their party in 2008.

The provision in question, part of the McCain-Feingold campaign finance reform law of 2002, was designed to reduce the spending advantage of wealthy congressional candidates.

Called the "Millionaires' Amendment," the law applies when a candidate spends more than $350,000 of their own money. Spending limits are then relaxed for opponents, letting them accept higher donor contributions to catch up.

Individual donation limits can be tripled in some cases up to $6,900. The amendment also allows greater spending by the opponent's party, and imposes added reporting requirements for spending on the self-financed candidate.

Davis, a former Republican, ran for Congress in 2004 but lost. In 2006 he spent $2.2 million of his own money but was again beaten by Reynolds.

Davis, 75, argues the amendment violates his free speech rights by treating his money different from that of other candidates, and is simply an pro-incumbent tool imposed by entrenched Congress members.

He also claims he was subject to additional accounting burdens that required greater spending disclosures in a shorter time frame than his opponents. A federal appeals court rejected his arguments.

At the Supreme Court, oral arguments did not appear to favor either side.

Davis' lawyer, Andrew Herman, said, "in essence, what [the provision] says is, 'we are going to make it easier for your [less wealthy] opponent to beat you.'"

Justice David Souter asked Herman whether, if Davis' opponent had not stood to be awarded increased spending limits, "Your client would have spent even more?"

"Potentially," replied Herman.

"That seems to substantiate at least the ostensible basis for this statute," said Souter, who noted that the amendment "clearly didn't deter your client" from spending millions of his own money for the seat.

Ginsburg rebutted suggestions the law favors those already in office. She cited what she called "startling" Federal Election Commission figures showing 110 senators or representative candidates qualified for enhanced contributions in a recent four-year period, and only six of them were incumbents.

"That could mean that the millionaires have already been elected and are now pulling up the ladder after them," Scalia replied.

If that were true and if Davis prevailed, Ginsburg responded, it might give "the public the perception that the seats in our Congress are there to be bought by the wealthiest bidder," deterring "people who are non-affluent but highly meritorious."

Chief Justice John Roberts told Herman, "Your candidate isn't subject to any restriction at all on what he can spend and his opponent is subject to less restrictions. It seems to me the First Amendment comes out better."

Arguing for the government, Solicitor General Paul Clement said there is no such thing as "a constitutional entitlement to speak freely without the opportunity for the other side to respond."

Justice Samuel Alito expressed some concern with that argument.

"Isn't there something very strange about having different contribution limits for candidates in an election," he asked Clement. "Do you think it would be constitutional for Congress to say that the contribution limits for incumbents is X, but for challengers it's 2X or one-half X?"

Scalia said he is reluctant to give Congress the power to "sit in judgment" about what is a "level playing field."

"What if one candidate is more eloquent than the other one?" he asked. "You make him talk with pebbles in his mouth or what?"

Herman suggested at one point that having more money to finance a campaign does not always mean success, citing the case of former Massachusetts Gov. Mitt Romney's recent presidential bid.

Political parties are interested in well-heeled candidates funding their own races "only inasmuch as they get elected," he said. "The moment that the public turns on them, they won't be interested. And certainly the public was not particularly interested in Mitt Romney, who spent a significant amount of money on his own behalf, and many other spectacular flameouts."

That brought nervous chuckles from the audience.

"I'm not sure we need characterizations of the political candidates in this forum," admonished the chief justice who, along with other members of the bench, could not suppress a smile.

A sheepish Herman apologized to the court. E-mail to a friend E-mail to a friend

CNN's Melis Woodham contributed to this report.

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