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Let A Thousand Mitt Romneys Bloom

Today's opinion in the DC gun-ban case is getting all the headlines today, but Phillip Carter makes a compelling case that its practical impact will be limited--there just aren't that many gun laws out there nearly as restrictive as DC's draconian version, and Justice Scalia's opinion (pdf) goes out of its way to emphasize its compatibility with more tempered efforts at gun control (assault weapons bans, waiting periods, etc.). 

It's also worth paying attention to the Supreme Court's decision (pdf) in Davis v. FEC, in which the Court (again split 5-4 along the usual liberal–conservative lines), in a remarkable act of judicial activism, struck down the so-called "Millionaires' Amendment" to the McCain–Feingold campaign finance law. I wrote about the case in April after attending the oral argument, and Rick Hasen has some good analysis here. The basic question (or one of them, anyway) amounted to this: Does it unconstitutionally burden a self-financing candidate's First Amendment rights if his expenditures above and beyond a certain threshold trigger relaxed contribution limits to this opponent? Here's what Justice Alito had to say:

While BCRA does not impose a cap on a candidate’s expenditure of personal funds, it imposes an unprecedented penalty on any candidate who robustly exercises that First Amendment right. Section 319(a) requires a candidate to choose between the First Amendment right to engage in unfettered political speech and subjection to discriminatory fundraising limitations. Many candidates who can afford to make large personal expenditures to support their campaigns may choose to do so despite 319(a), but they must shoulder a special and potentially significant burden if they make that choice.

That is, political speech is zero-sum: If you run for office and your opponent is, say, Mitt Romney, it unconstitutionally burdens Romney's speech if the government tries to level the playing field--not by restricting his right to spend money, but by enhancing your ability to do the same. It's a bit of an odd concept for conservatives to embrace, because the most compelling argument against campaign-finance restrictions is that speech is not zero-sum: More money means more speech, and more speech is better for democracy.

It's one thing to maintain that it's wrong, useless, or arbitrary for Congress to try to give a boost to the little guy; indeed it may well be, and as a practical matter the law has had little discernable impact. But to claim that it's actually an unconstitutional infringement on the rich guy's free speech--even though he's free to spend as much money as he wants--displays a degree of extreme sensitivity to the plight of wealthy office-seekers that the Court has been reluctant to extend to, say, workers who've been subject to pay discrimination. Justice Stevens's dissent (at least, once you get past the part where he bizarrely recommends overruling Buckley v. Valeo) is more compelling:

Davis cannot show that the Millionaire’s Amendment causes him--or any other self-funding candidate--any First Amendment injury whatsoever. The Millionaire’s Amendment quiets no speech at all. On the contrary, it does no more than assist the opponent of a self-funding candidate in his attempts to make his voice heard; this amplification in no way mutes the voice of the millionaire, who remains able to speak as loud and as long as he likes in support of his campaign.

We'll have to wait and see whether this ruling entices more self-financing candidates to run for Congress in 2010. It's not as though there's a shortage of them as it is.

--Josh Patashnik