A millionaire candidate, Jack Davis, complained about McCain-Feingold’s Millionaire’s Amendment, filing an action that was rejected yesterday by a three-judge district court.  Davis alleged First Amendment and Equal Protection violations. The Court showed no interest, giving him a written opinion but not a particularly considered one.  This comes as little surprise, since there are few plaintiffs with less chance of drawing a sympathetic audience than the very rich one bidding for office with fistfuls of his own money.

      The opinion in Davis v. Federal Election Commission does not leave the reader with an impression of an active engagement with the constitutional question.  The statute in question, after all, might seem to give cause for concern:  an enactment to equalize, to a degree, campaign resources in a competitive race, by altering the allowance for the class of candidates seen to be at an unacceptable disadvantage.  The Court finds safety in the public financing cases, but the case before it is not a public financing case.  The Millionaire’s Amendment does not entitle any candidate to a penny of taxpayer resources.  It merely works within the regulatory system to dispense relief from its burdens to some but not to others.

      This translation from the public financing context to the case before the Court is heavy with implications for Congress’ authority to engineer political equity.  One of the cases on which the Court heavily relies, Vote Choice v. DiStefano, (4 F.3d 26 (1st Cir. 1993)), upheld a Rhode Island law which provides candidates who accept public funding (for gubernatorial elections) with a higher ($2,000) contribution limit than available to competitors campaigning without taxpayer support.  Yet Vote Choice tied this entitlement firmly to the public funding benefit:  “Logic suggests that the higher cap is, therefore, a premium earned by meeting statutory eligibility requirements rather than a penalty imposed on those who either cannot or will not satisfy the requirements.”  Vote Choice at 38.  The Davis Court extracts the rationale from its proper context, endorsing Congress’ authority to jigger the contribution limits to achieve a campaign “equality” goal without an investment of public resources. 

     The Court states, without qualification:

The First Circuit  [in Vote Choice]  determined that the statute, which, like the Millionaires’ Amendment, provided the benefit of increased contribution limits to the challenging candidate’s opponent, was constitutional because it merely “facilitate[d] communication by candidates with the electorate” and “a [non-participating] candidate suffer[ed] no more than a countervailing denial” of the benefit.  Id. at 39 (quotation marks omitted).

Davis at 10.

     On this reasoning, the Congress could—not that it foreseeably would—layer or calibrate the contribution limits to help the underfunded challenger.  Or to assist the minor party, or the independent candidate.  It could, in other words, utilize the regulatory system, established to guard against corruption, to bring about other political changes or to strive to realize other notions of political fairness.  The sky could be the constitutional limit.  

     The Court in Davis, untroubled by these possibilities, turns in a day’s work and sends Davis, the wealthy candidate, packing.  He has raised a First Amendment claim but the Court can see no burden on his speech—the speech of a wealthy candidate.  Davis tries to spark the Court’s interest by pointing out that, to counter his use of his own, non-corrupting money, the Congress has authorized his opponent to raise money well over the threshold of corruptibility written into the contribution limits.  There is here a fair question—why the donor giving well over the limits puts a candidate in less danger of corruption just because his or her opponent is self-financed.  The Court can’t rouse itself to even raise an eyebrow.

     Perhaps neither Davis nor any wealthy candidate is a credible plaintiff for these purposes.  And the Court might not worry too much about the implications for future Congressional uses of its regulatory toolkit for political purposes.  It might assume that those uses will be bounded by a limited set of interests—the interests of incumbents and dominant parties.

Bob Bauer