Document Type

Article

Publication Date

2008

Abstract

In Davis v. FEC,1 decided on the last day of the October 2007 Term, a closely divided Supreme Court invalidated the so-called Millionaires' Amendment, which was a provision added to the Federal Election Campaign Act ("FECA") as part of the Bipartisan Campaign Reform Act ("BCRA") of 2002 to make it easier for Senate and House candidates to raise private contributions when they run against an opponent who uses a substantial amount of personal wealth to pay for his or her campaign.2 From the reform perspective, the loss of the Millionaires' Amendment was not of great moment. The Amendment was not part of the original McCain-Feingold and Shays-Meehan reforms at the heart of BCRA. Many observers had expressed concern about the Amendment's arguably pro-incumbent bias. Furthermore, the Amendment had had very little impact on elections, including those races in which opponents of self-financing candidates could have taken advantage of its provisions.3

But Davis has seriously troubling implications for the future of campaign finance reform. First, it extends and deepens the Supreme Court's anti-campaign finance reform trend. For the third time in the three years since Justice Alito replaced Justice O'Connor, who had generally voted for reform measures, the Court struck down or sharply limited a reform measure.4Two of those three decisions were by five-four votes, with Justice Alito and Chief Justice Roberts in the majority for all three. In the two earlier cases, the majority was fragmented and unable to produce a single majority opinion. Davis marks the first time this new anti-reform majority managed to join in a single majority opinion and the first time the Roberts Court flatly held unconstitutional a federal campaign finance law.

Second, the tone of Justice Alito's majority opinion was sharply critical of one of the longstanding underpinnings of reform-the goal of reducing the role of economic inequality in elections. Although the Court had previously held that controlling the electoral consequences of wealth inequality could not justify limits on spending, this was the first time the Court indicated that equality in campaign financing is not a "legitimate government objective" at all.5 Justice Alito contended that any legislative attempt to revise election law to "level[] electoral opportunities" for candidates is an inherently "dangerous" effort "to influence the voters' choices."6

Finally, although Davis did not deal with the public funding of candidates, the decision calls into serious question the constitutionality of a provision in many state public funding laws that relaxes public funding spending limits or offers candidates additional public funds when they run against high-spending privately-funded opponents. Such measures-sometimes known as "trigger" or "fair fight" laws-have been seen as crucial to persuading candidates to accept public funding and the spending limit that always accompanies public subsidies. Without the option of raising and spending above the public funding spending limit when running against a high-spending candidate, few serious candidates would accept public funding. Nearly all of the lower federal courts that, prior to Davis, had heard challenges to state laws triggering a release from the spending limit or the provision of additional public funds in response to high levels of opposition funding upheld those laws.7 But Davis, which cited the one lower federal court that went the other way, 8 suggests that these state laws may now be in serious constitutional difficulty. Indeed, in a decision handed down a few months after Davis a federal district court determined that Arizona's law violated the First Amendment, although it declined to enjoin the use of the trigger provision in the 2008 election due to the lateness of the suit.9

Davis is thus an important milestone in the Roberts Court's ongoing challenge to campaign finance regulation. It is likely to embolden reform opponents to mount new legal attacks on existing campaign laws as well as to make it difficult to adopt new ones, such as the provision of public funding of candidates. It is a particularly striking decision because virtually all of the previously invalidated campaign finance laws sought to limit the role of money in campaigns while the Millionaires' Amendment actually sought to make it easier for some candidates to raise money. Davis indicates that in the view of the current Supreme Court even laws that expand, rather than contract, campaign money can be subject to a successful First Amendment challenge if they have the forbidden purpose of leveling the electoral playing field. That surely does not bode well for the future of campaign finance reform.

This article provides a brief analysis of Davis v. FEC and its consequences for campaign finance jurisprudence. Part I examines the Millionaires' Amendment, the issue of self-financed candidates, and the history of the Davis case. Part II analyzes Justice Alito's majority opinion, its determination that a law that relaxed the contribution restrictions for some candidates burdened the constitutional rights of others, and its determination that "leveling the playing field" by making it easier for a non-self-financing candidate to raise money could not justify the burden the Court found. Part III considers the implications of Davis for the trigger provisions of state and local public funding laws. Part IV concludes with an assessment of the campaign finance decisions of the Roberts Court thus far and what that they tell us about the likely future of campaign finance law.

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