The Supreme Court on Thursday overturned the so-called "millionaires' amendment" of campaign finance law — a move that had been widely predicted.
Experts in campaign finance law say the future is easy to predict as well: challenges to some fundamental tenets of the law. What isn't so clear, of course, is whether those challenges will succeed, even in the conservative Supreme Court led by Chief Justice John Roberts.
"This is now the third time that the Roberts court has considered a campaign finance law," said Rick Hasen, a law professor at Loyola Law School of Los Angeles, who studies campaign finance issues. "And in every case, it's either struck down the law or said the law was unconstitutional as applied to a particular group of people."
The plaintiff who challenged the millionaires' amendment is Jack Davis, a wealthy Democratic businessman in upstate New York. During his second challenge to well-funded Republican incumbent Tom Reynolds, in 2006, Davis filed suit to overturn the millionaires' amendment. Reynolds declined to use the higher contribution limits granted by the amendment, and won anyway. Now Reynolds is retiring, and in addition to Davis, three other Democrats and a Republican are seeking the seat.
Davis argued that by allowing his opponents to raise money above the usual contribution limits, the amendment diminished his First Amendment right to unfettered political speech. (The court bypassed a second argument, that the amendment violated his Fifth Amendment right to due process.)
He said he's pleased with the decision and will spend $3 million in this year's contest. "I haven't asked for a dime" from anyone else, he said.
Justice Samuel Alito — like Roberts, an appointee of President Bush — wrote the majority opinion, in which he said that the amendment "imposes an unprecedented penalty on any candidate who robustly exercises that First Amendment right" to spend his or her own money.
Alito dismissed the question of fairness this way: "Different candidates have different strengths. Some are wealthy; others have wealthy supporters who are willing to make large contributions. Some are celebrities; some have the benefit of a well-known family name."
The majority, which also included Roberts and Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas, scolded Congress for passing the millionaires' amendment to "level electoral opportunities." The justices wrote that Congress could limit campaign money only to prevent "corruption or the appearance of corruption," a standard set by a landmark ruling in 1976.
"The majority is very carefully drawing a line that says the only compelling interest that's at work in this area is combating corruption or the appearance of corruption," said Derek Shaffer, founder of the Stanford Constitutional Law Center, which filed a brief in support of Davis.
The millionaires' amendment was part of the Bipartisan Campaign Reform Act, or McCain-Feingold law, passed in 2002. But it was added as a floor amendment during Senate debate, and on Thursday, Sen. John McCain issued a statement putting distance between the amendment and his own goals for campaign finance reform.
McCain, now the Republican candidate for president, said the new ruling doesn't affect the court's 2002 decision upholding BCRA's ban on unlimited "soft money" contributions to national party committees.
But the court majority also labeled as unconstitutional the millionaires' amendment mandate that self-financed candidates disclose their intent to spend, before they actually lay out the cash. The justices said mandatory disclosure can impinge on the First Amendment right to privacy of association. That language led Jim Bopp, the attorney in several key cases challenging BCRA, to say the decision "brings into play all disclosure requirements."
Right now, there are seven House and four Senate races in which one of the candidates had spent enough to trigger the millionaires' amendment.