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The Poor Little Rich Candidate

If the government helps a poor candidate compete against a millionaire opponent, is the millionaire's free speech threatened?
AmericaI Squared R Element CompanyDavisNew York

Davis, not one to take defeat sitting down, found a new outlet for his ire: Section 319 of the McCain–Feingold campaign finance law, known colloquially as the Millionaires' Amendment. It permits congressional candidates running against self-financed opponents to raise up to three times the normal $2,300 per-donor limit--which Davis claims has an unconstitutional chilling effect on the free-speech rights of self-financed candidates. (Although not too chilling: self-financed candidates are signing up to run for Congress in droves, and Davis himself plans to spend in the neighborhood of $3 million of his own money running for the same seat yet again this year.) A three-judge district court panel ruled against Davis unanimously; undeterred, he appealed to the Supreme Court, which heard oral argument in the case Tuesday.

At first glance, this looks like an ordinary campaign-finance case: Conservatives and libertarians (with the notable exception of the Bush administration) backed Davis's claim that the law is unconstitutional, while liberals and good-government groups urged the Court to uphold it. The Washington Times calls the Millionaires' Amendment "a particularly unsavory portion of an altogether unsavory law," while the New York Times deems it a "modest effort to help candidates who rely on outside contributions to get their messages out to the voters."

The oral argument at the Court fell mostly along similar ideological lines. Justices Scalia and Alito seemed inclined to accept Davis's contention that the Millionaires' Amendment, in Scalia's words, "penalized his speaking." Scalia pronounced himself "deeply suspicious of allowing elections to be conducted under a regime whereby Congress levels the playing field." Justice Ginsburg, on the other hand, objected to the characterization of the law as burdening Davis's right to speak. "The end result is that there will be more, not less, speech," she said.

The Court's four liberals seem likely to vote to uphold the law, but it's unclear whether they'll be joined by a fifth justice. Chief Justice Roberts and Justice Kennedy questioned both attorneys aggressively, but could end up siding with the three other conservative-leaning justices to strike down the law, in whole or in part. Bob Bauer, a partner at Perkins Coie and a leading Democratic campaign-finance law expert, thinks that may be the most likely outcome. "In the Roberts Court, I think the decision to take up this case is probably best interpreted as a sign that there's trouble ahead for the Millionaires' Amendment," he told me before the argument.

From a political standpoint, though, it's a bit surprising that so many conservatives are up in arms about the Millionaires' Amendment. Given that the Court has already upheld most of the key provisions of McCain–Feingold, it's hard to see how Section 319 is particularly objectionable. It imposes no new limit on campaign spending or contribution, and in fact facilitates political speech by loosening contribution limits that conservatives find too stifling. The assault on it seems to stem in large measure from a sort of kitchen-sink strategy that envisions challenging as many different parts of the law as possible, in order to, as George Will put it, "accelerate the unraveling of McCain–Feingold."

But the specific argument against the Millionaires' Amendment risks undercutting conservatives' case against campaign-finance restrictions in general, which maintains that speech is not zero-sum: Candidates should be permitted to raise and spend unlimited amounts of money because doing so doesn't interfere with their opponents' rights to convey their own messages to the public. In this case, however, those siding with Davis contend that, in the context of a political campaign, speech is zero-sum. Letting the poorer candidate raise more money limits the richer one’s freedom to speak. As Davis argued in his brief for the Court, "to the extent that Section 319 ... enhances her opponent's campaign, the self-financed candidate's political speech is impaired."

Solicitor General Paul Clement, in arguing the case for the FEC, described that assertion as "an odd sort of First Amendment claim." It has a number of troubling implications. For one, it would cast a pall on the constitutionality of the presidential public finance system, as well as similar systems for some state-level offices, which provide public money to candidates who agree to abide by spending limits and forgo private financing. By Davis' logic, these rules would seem to unconstitutionally burden the free-speech rights of their opponents, though his lawyers claim otherwise.

This points toward the larger political landmine conservatives are tiptoeing around by supporting Davis' suit. If speech in the context of political campaigns is really zero-sum after all, we have far greater problems than the one Davis brought before the Court. Davis' supporters are trying to have it two ways, by arguing both that the benefit available to candidate Richie Rich's opponent impinges on Richie’s free speech, and also that when Richie outspends his opponent 20-to-1, that opponent’s free speech isn’t impinged at all. Any notion of leveling the playing field in political campaigns--even if no limits are placed on any candidate's expenditures--would go out the window. Ultimately, the premise that citizens (potential candidates all) enjoy genuine political equality would be called into question, as would the fundamental bargain underlying a liberal society: that the exercise of your basic rights doesn't intrude upon mine.

This may not bother people like George Will, who's no egalitarian, political or otherwise. The public, though, might be less inclined to accept the widening class gap if it begins to perceive that political power is becoming increasingly concentrated in the hands of economic elites. An increasingly influential chorus of voices on the populist left claims that economic inequality must be mitigated, through redistributive taxation, in large part because such inequality is, in the words of Paul Krugman, "inherently undemocratic." Should the Court rule for Davis, that view would be bolstered. This would be a major blow to moderates who would like to preserve a vibrant, inclusive democracy without reverting to postwar-era confiscatory tax rates. But it would also threaten the long-term prospects of the political ideology in America broadly tolerant of economic inequality--namely, conservatism.

Note: This article has been corrected. It originally misidentified "I Squared R" as the formula for voltage. In fact, it is the formula for power.

Josh Patashnik is a reporter–researcher at The New Republic.