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On this day when Pennsylvania votes, we will, by NPR tradition, have a little bit less political coverage - give people some room to vote. But we do need to mention that the U.S. Supreme Court today takes up another challenge to a campaign finance law that bears the name of the one of the presidential candidates, John McCain. It's the McCain-Feingold Law.
This time, the court's considering a provision dubbed the Millionaire's Amendment. It triggers special rules when a congressional candidate spends more than $350,000 of his or her or money to try to get elected. Here's NPR legal affairs correspondent Nina Totenberg.
NINA TOTENBERG: The challenge is being brought by Jack Davis, a multimillionaire businessman who, in 2003, was escorted out of a GOP fundraiser that featured Vice President Cheney. Davis, then a Republican, incurred the wrath of GOP aides for talking to reporters about an ad he'd purchased criticizing the Bush administration's free trade policies.
Mr. JACK DAVIS (Businessman): I like being called a maverick. I'm not going to be a duck. I'm not going to fall in line.
TOTENBERG: And so Davis changed parties, became a Democrat, and in 2004 and '06, ran unsuccessfully for the House against a senior Republican congressman in the Buffalo area of New York. Each time, he promised to spend a million dollars of his own money, and each time he did.
Under the federal election law, however, when a candidate for the House spends more than $350,000 of his own money, the usual campaign finance rules are changed somewhat. First, the candidate must disclose within 24 hours any expenditure of more than $10,000 of his own money, and second, his opponent is allowed to raise more money from individual contributors than federal law would otherwise permit.
Davis claims that the disclosure provisions are unfair.
Mr. DAVIS: I was treated differently. When I got to $350,000, I had to do special reports, 24-hour reports.
TOTENBERG: Davis's lawyer, Andrew Herman, says that requiring wealthy candidates like Davis to disclose the fact that they've spent $10,000 within 24 hours gives the opponent information on strategy.
Mr. ANDREW HERMAN (Attorney): Your opponent knows he must be buying TV ads, he must be setting up campaign rallies, he must be hiring more people to help him. His opponent has no concomitant obligation to tell him when he's ramping up his expenditures.
TOTENBERG: But the law's defenders observe that the opponent has other disclosure requirements that don't apply to a candidate who is largely financing his own campaign. What's more, say the law's defenders, Davis and other wealthy candidates have a choice that most candidates do not have.
They can spend up to $350,000 of their own money, plus money from other contributors, and they don't have to disclose within 24 hours. Or they can spend more than $350,000 of their own money, in which case disclosure is required so that the Federal Election Commission, using the formula specified in the law, can figure out just how much to increase the caps on individual contributions to the opponent's campaign.
Davis's lawyer, Andrew Herman, argues that the whole structure of the law ends up chilling speech in violation of the Constitution.
Mr. HERMAN: It seeks to deter individuals from financing their own campaigns with their own money. And then if they do choose to do so, it then punishes them for their expenditures.
TOTENBERG: Herman contends that Congress, in enacting the Millionaire's Amendment, had an illegitimate purpose to level the playing field in elections, something which he contends the Supreme Court has never allowed Congress to do. But Democracy 21 president Fred Wertheimer, who helped write the law, disagrees.
Mr. FRED WERTHEIMER (President, Democracy 21): The problem is that if someone comes in and spends 10 or 20 or 30 million dollars of their own money, an opponent of that person needs to at least be able to be heard against that amount of money.
TOTENBERG: In short, says Wertheimer, the purpose of the bill is to not to level the playing field, but to keep one side from being drowned out by an individual candidate's personal wealth. The proof, say reformers, is in the pudding. Former Solicitor-General Seth Waxman.
Mr. SETH WAXMAN (Former Solicitor-General): Mr. Davis is, I would say, exhibit A in the refutation of his own contention. He has never been chilled from spending enormous amounts of money to secure his own election.
TOTENBERG: And Waxman notes that Davis is not an anomaly. In the last two federal elections, self-financed candidates spent more than $144 million of their own money, while their opponents raised a total of only 8.6 million more under the increased caps.
Candidate Davis, however, says the law is nothing more than an incumbents protection device, since most incumbents can raise money more easily than challengers. Reformers reply that the Millionaire's Amendment does not seem to have inhibited challenges to incumbents. There have been many more self-financed candidates since the law was passed than before it.
As for Davis, he's running again for Congress this year, and he seems happy whether he wins or loses his Supreme Court case.
Mr. DAVIS: If I win it, I already changed a law. I'm not even in Congress, and I've changed a law. If I lost it, so be it, not that important to me.
TOTENBERG: Nina Totenberg, NPR News, Washington.
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