Jack Davis is complaining to the Supreme Court about the Millionaire’s Amendment, but his is the complaint of a wealthy candidate, and it might be discounted for that reason.  After all, he can spend what he wants and should have no ground to quarrel with whatever assistance the government chooses to provide to his opponent.  It is held that this is the reason why the Court may turn its back on him:  no harm, no foul.  But the assumption about the lack of injury is wrong.

     Begin with the standing established by other litigious Congressional candidates whose injuries were far more speculative than Davis':  these would be the Congressional sponsors of McCain-Feingold, who have reserved a permanent place on the docket of Judge Kollar-Kotelly for challenges to the McCain-Feingold implementing regulations.  Messrs. Shays and Meehan have argued successfully that regulations to which they object, which have authorized fundraising practices they abhor, injure them as candidates—not as sponsors of the legislation.  Their competitors, they say, will do things they shouldn’t, by leave of rules inconsistent with the law, putting the sponsors as candidates at a disadvantage.  And of course, these are not spending practices that the sponsors, opposed to seedy campaign finance, could bear to adopt in response to these competitive pressures.

     This argument has improbably won over the courts, which are now open to any disagreement that these "candidates" wish to lodge against agency enforcement policy.  It is not easy to see how the complaint of a millionaire like Davis is weaker—and easy to see how it is stronger—than this fish tale by the Congressional sponsors. 

     Davis argues that the government has, in the Millionaire’s Amendment, done just what the name proudly advertises:  it has targeted a class of candidates who are exercising a protected right and awarded to their opponents special rights improving their chances of raising money.  If it is true, as reformers say, that there is a direct relationship between fundraising and success—and indeed the Millionaire’s Amendment has been defended as a measure to "level the playing field"—then the Amendment is, in fact, designed to help the millionaire’s opponents win.  This seems injury enough for a millionaire to consider raising with a federal court, is it not?

     The means by which the Amendment achieves its intended effect is a separate source of injury.  The law does not simply note the millionaire’s spending and license the non-millionaire to spend more.  It forces a series of reporting requirements on the wealthy candidate to aid her opponent in calculating and acting on the special advantages the law allows.  Though not in the millionaire’s interest—in fact, sharply at odds with it—he is pressed into the opposition campaign’s service, delivering information under the command of the government so that the opponent can raise the money needed to counter the millionaire’s and to improve the odds of defeating him.

     The purpose of these disclosure requirements, it bears stressing, is not to enlighten the general public about the progress of the wealthy candidate’s spending, and it is not to help the FEC enforce the law’s limits as they apply—since in this instance they do not—to the millionaire candidate.  This is for the benefit of the opposition candidate, who needs the information, on the schedule and in the form provided, to collect additional private contributions and use them to beat the reporting party, his opponent.

     This morning, the New York Times reports on the Republican Party’s frantic recruitment of millionaires who have the money that the struggling party does not.  Millionaires get little sympathy in a story such as this, and there is no reason why they should.  Office becomes another luxury for those who have it all, and the party recruiting them does not come off so well either, looking for the rich to buy a way around the Republican’s unpopularity.  But the Supreme Court may well find that, from a First Amendment perspective, this is beside the point:  that an offense to the Amendment is not excused because only a certain class of candidates, with little popular appeal as a class, is offended. 

Bob Bauer