Justices Hear Campaign Finance Case
ROBERT SIEGEL, Host:
Well, politics was also a topic of arguments today at the Supreme Court. The subject was the so-called millionaire's amendment to the McCain-Feingold campaign finance law.
The Supreme Court has said the Constitution does not allow limits on how much a candidate can spend of his own money. So, if you are running against a wealthy candidate, the millionaire's provision allows you to raise money from individual contributors in larger chunks than normally permitted.
NPR legal affairs correspondent Nina Totenberg has the story.
NINA TOTENBERG: The stated purpose of the millionaire's amendment is to prevent a regular candidate whose contributions are capped by law from being drowned out by a wealthy candidate who could spend unlimited amounts of his own money.
Jack Davis, a multimillionaire businessman from upstate New York, challenged the provision after he ran twice, unsuccessfully, against a powerful incumbent Republican congressman.
The incumbent raised plenty of money without raising the caps on individual contributions, but Davis still challenged the law as an unconstitutional incumbent's protection act.
M: They got together and put a millionaire's amendment in it to try to keep guys like Jack Davis from being able to challenge them on a even playing field.
BLOCK: Today in the Supreme Court, the justices appear closely divided on the constitutionality of the provision. Representing Jack Davis, lawyer Andrew Herman asserted that even if the harms to wealthy candidates are modest, the law is still unconstitutional.
He immediately faced flak from Chief Justice Roberts. There's no restriction on what a wealthy candidate can spend, said Roberts; he can spend much money as he wants. Herman replied that the law punishes the wealthy candidate by treating him differently, having different disclosure requirements, and enabling opponents to raise more money from individual contributors by tripling the caps in some cases. All of this, asserted Herman, is aimed at chilling the speech of wealthy candidates.
J: Wasn't your client's latest filing that he intends to spend a million dollars in this upcoming election, too, so it didn't deter him? Justice Ginsberg: The purpose of the law is to tell the public that seats in Congress are not there to be bought. Is there an alternative way to do that? Answer: public funding of campaigns. Justice Scalia: Public funding won't level the playing field. Millionaires still will be able to spend their money in unlimited amounts. Anyway, added Scalia, do you think we should trust members of Congress to level the playing field? Answer: No. It's like trusting basketball players to call their own out-of-bounds play.
BLOCK: The political parties are interested in having wealthy candidates run because it presents less strain on party resources. Answer: The parties are only interested in candidates if they win. They're not interested in candidates who spend their own money and lose - candidates like Mitt Romney and other spectacular flame-outs.
After the laughter died down, the Bush administration's chief advocate, Solicitor General Paul Clement, rose to defend the law, observing that candidate Davis's challenge is odd since he has no limits on what he can spend.
J: That means he has to accept the penalty of possible increases on the contribution caps for his opponent. Answer: It's only a penalty if you think there's a right for a wealthy candidate to speak all he wants, and to limit the ability of his opponent to speak.
When Clement suggested that leveling the playing field in a campaign is a legitimate thing to do, Scalia was incredulous. What if one candidate is more eloquent? Could you make him talk with pebbles in his mouth?
Other justices - Kennedy, Alito and Chief Justice Roberts - expressed skepticism about various sections of the millionaire's provision, meaning some or all parts of the law may well be struck down.
Nina Totenberg, NPR News, Washington.
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