Supreme Court reviews the Millionaires Amendment of the BCRA

Another provision of the Bipartisan Campaign Reform Act (BCRA), better known as McCain-Feingold, has come under the scrutiny of the Supreme Court. The BCRA contained an amendment that relaxed campaign finance limitations for candidates facing off against self-financed opponents. Yesterday the Supreme Court heard arguments in a challenge to the amendment, and expressed skepticism about Congress’ role in ensuring a level playing field in elections at all:

The conservative justices on the Supreme Court yesterday all seemed to find something not to like about the McCain-Feingold campaign finance act’s “Millionaires’ Amendment,” which provides special fundraising opportunities to congressional candidates who run against wealthy opponents.

But it was unclear at the end of a lively hour-long oral argument whether a majority of the entire court disliked it enough to junk the whole thing, or if there was a way to keep the essential elements and prune the parts deemed especially objectionable.

Congress’s stated goal in the 2002 legislation, known formally as the Bipartisan Campaign Reform Act, was to combat the perception that wealthy, self-financed candidates could “buy” a congressional seat. For example, if a House candidate spends $350,000 or more of his own money, his opponents are allowed to accept campaign contributions in excess of contribution limits, and to receive additional help from their political parties.

New York industrialist Jack Davis, a Democrat who spent millions of dollars on two unsuccessful congressional attempts and is ready to spend $3 million on another, is challenging the law. He says it violates his First and Fifth Amendment rights and protects incumbents by discouraging wealthy challengers.

The absurdity of this provision starts with the fact of the BCRA itself. Its Byzantine regulations, combined with its prohibitions on political criticisms of candidates before elections by issues organizations, impinge on free speech and common sense in a manner that would have left the authors of the First Amendment aghast. The Supreme Court should have tossed the entire measure out as unconstitutional on its face years ago. Instead, they now are relegated to picking over which of its provisions are least objectionable.

The approach taken by the BCRA in limiting contributions has led to the problem the amendment attempted to solve. Since even Congress couldn’t have passed a limitation on personal spending in pursuit of public office, they attempted to work the problem of rich candidates backwards. Garnering contributions in excess of the arbitrary caps established by the BCRA and its predecessor acts supposedly perverts the electoral process, but not when the other person can use their own money; then excessive fundraising becomes the antidote instead of the poison.

If that’s true, why isn’t it the antidote to a poor candidate? A Democratic or Republican candidate? Doesn’t an imbalance of fundraising point to a credibility gap in the electorate? Besides, as we saw with Howard Dean, Mitt Romney, and last night with Barack Obama, fundraising and spending don’t always equate to victories. Hillary Clinton got outspent 3-1 by Obama and outraised 2-1, and yet managed to beat him by 10 points in Pennsylvania.

Congress has a role in ensuring that election laws get applied fairly, but they have no business handicapping elections in such a bald and grubby manner. Either the fundraising and spending limitations have a legitimate and rational basis and should be enforced consistently regardless of who runs, or the entire system should get scrapped. Setting up exceptions to allow for what amounts to legitimized violations of fundraising caps simply because the opponent has more personal resources smacks of micromanagement of results and hypocrisy of process.

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