Legal News

Scalia: ?Who Is More Incorruptible Than the Millionaire??

By Dan Slater

The Law Blog has tried to stay away from the Supreme Court battle over the so-called millionaire’s amendment. Mainly because we took election law as a 3L and found it, well, a good bit drier than most elections.

But the Supremes seem to have a way of enlivening almost any topic, and they did so yesterday when they heard Davis v. Federal Election Commission, a battle over the constitutionality of the so-called “millionaire’s amendment,” part of the 2002 McCain-Feingold campaign-finance reform law.

The millionaire’s amendment works like this: in races with self-financing (read: wealthy) candidates, the amendment “levels the playing field” by requiring those candidates to disclose more information and permitting their opponents to raise more money. (Here’s a report from the WaPo, one from the WSJ, and a post from the Election Law Blog’s Rick Hasen, who predicts that the Court could uphold the provision increasing contribution limits for candidates who face self-financed opponents.)

As Adam Liptak points out in today’s NYT, “the court has upheld campaign finance laws meant to drive the potentially corrupting influence of large contributions out of politics. But the millionaire’s amendment . . . . is animated by a different rationale: that of compensating for the additional financial resources available to candidates willing to spend their own money.” Its purpose, said Justice Ginsburg at yesterday’s argument, was to combat “the perception that the seats in our Congress are there to be bought by the wealthiest bidder.”

Justice Scalia disliked that rationale, on constitutional and practical grounds. “Who is more incorruptible than the millionaire, right?” he asked.

Andrew Herman, the lawyer for Jack Davis, a self-financing Democrat who twice ran for the House from western New York, argued that the law violated Davis’s rights to free speech and equal protection. To this, Chief Justice Roberts said: “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.”

To this, Scalia asked: “Do you think that’s a valid constitutional objective, to level the playing field? Do you think we should trust our incumbent senators and representatives to level the playing field for us?” If leveling the playing field is the goal, Scalia went on, there is no reason to stop with money. “What if one candidate is more eloquent than the other one?” he asked. “You make him talk with pebbles in his mouth?”

Full post as published by Law Blog - WSJ.com on April 23, 2008 (boomark / email).