This article originally provided by The Washington Post

June 29, 2008

Millionaires Win

A Supreme Court ruling puts public financing of elections at risk.

IT'S UNFORTUNATE but not disastrous for the McCain-Feingold campaign finance law that the Supreme Court struck down its so-called Millionaire's Amendment. The core of that statute -- the prohibition against unlimited "soft money" donations -- was left undisturbed by the case decided Wednesday. What is ominous, however, is the rationale the court's five-justice majority used in finding the provision unconstitutional -- a rationale that could threaten efforts to provide for public financing of elections and jeopardize existing restrictions on corporate and union spending.

The Millionaire's Amendment was designed to apply to situations where wealthy candidates were bankrolling their own campaigns. It allowed rival candidates to raise money in larger increments; they could accept triple the maximum donation, now $2,300, when the self-financed candidate spent $350,000 of his or her own money. The court, in a ruling by Justice Samuel A. Alito Jr., found that the measure "imposes an unprecedented penalty on any candidate who robustly exercises that First Amendment right" to "engage in unfettered political speech." We view the "penalty" -- letting the competing candidate take bigger checks -- as far less onerous. The dissenting justices rightly concluded that this was "a modest, sensible, and plainly constitutional attempt by Congress" legitimately aimed at "reducing the importance of wealth as a criterion for public office and countering the perception that seats in the United States Congress are available for purchase by the wealthiest bidder."

Losing the Millionaire's Amendment is not in itself a huge problem; in any event, it could easily be tweaked by letting all candidates, rich and poor alike, raise money in larger chunks. The bigger threat is the implication of the majority's approach for the constitutionality of various state public financing systems. Because under previous Supreme Court rulings participation in such systems must be voluntary, many rely on a "trigger" mechanism by which participating candidates are given, or permitted to raise, extra funds if they are running against a deep-pocketed opponent or if outside groups spend large sums. The majority's conclusion that the Millionaire's Amendment could not be justified by a desire to level the political playing field could invalidate such arrangements. Indeed, the court approvingly cited one appeals court ruling that struck down a public financing scheme.

In addition, the majority appears increasingly intolerant of restrictions on corporate spending, which have traditionally been justified by the desire not to have candidates' voices drowned by corporate speech. The ruling pointedly cited Justice Anthony M. Kennedy's dissent in a 1990 case upholding Michigan's prohibition on independent expenditures by corporations for or against political candidates. "The corporate and union spending limits are clearly on borrowed time," election law expert Rick Hasen wrote in the aftermath of the ruling. The future of campaign finance legislation looks awfully shaky in the hands of this court.