Various Justices had various problems with the Millionaire’s Amendment.  Lyle Denniston at Scotusblog and CCP’s observer Michael Darner saw things mainly this way, as bad news for the law under review.  Rick Hasen holds out hope, for those in the market for hope, that the law could make it through this test if the Court at least allows Congress to raise contribution limits—maybe for both candidates, the millionaire and the opponent, on the theory that this facilitates "more rather than less speech."

     As a basis for hope it is not too much to go on, and perhaps it is not what the statute’s defenders should be hoping for.  For if Roberts decides that this is the course open to Congress, he will have made a point, and not a friendly one, about the evolution of the campaign finance regulatory regime.  Roberts was stressing that money is speech:  he was not drawn to the Millionaire’s Amendment as a measure of "leveling the playing field."  He was all Buckley, not at all Active Liberty. 

     So Roberts might entertain Congress’ authority to use the "millionaire" problem to de-regulate.  If a race is expensive, because a millionaire is making it so, then Roberts would be open to more expense, more money, "more speech," as the antidote.  If the millionaire’s opponent may raise funds under elevated limits, and may call on the party to spend beyond the statutory coordinated expenditure limits, the millionaire may do the same. 

     This is the core proposition:  the answer to speech is more speech, and the Government’s role in facilitating it is to relax rather than to impose limits.  And there was the suggestion that Congress might reasonably take this step because it helped create the problem by over-regulating, or foolishly regulating, in the first place.  The Millionaire’ Amendment was an answer, after all, to regulatory malfunction resulting in principal part from the operation of the contribution limits.  Justice Alito put it this way:  "So it we accept the world in which contribution limits are constitutional…does that provide a basis for Congress to try to rectify at least in part what it itself has done by imposing the contribution limits?"  Davis v. FEC, Tr. at 15.

     If this is a victory for McCain-Feingold, Jim Bopp would gladly join in the festivities held to celebrate it.  Hasen is right to caution against too much interpretation of the transcript of argument.  If, however, Roberts endorses a Congressional strategy of "leveling up" by spreading more money around to all competitors, then his purpose will not be to preserve the Millionaire’s Amendment or to expand legislative authority to engineer campaign finance policy. 

     Only in this respect—to undo regulatory damage already done—would Roberts and Alito likely consider "leveling the playing field" on which an opponent faces a millionaire.  Solicitor General Paul Clement did not make this an easy choice for them. 

     Clement coolly confronted the Justices with the ways, various and generous in scope, that a recognized Congressional authority to "level the playing field" might be exercised.  Congress could double the contribution limit for challengers, and authorize more party spending on their behalf.  Id. at 26-27.  Or it could decide that this relief would be limited to the purchase of television time when needed to answer the time purchased by self-funded candidates.  Id. at 38.  Or, troubled that newspapers were controlling to much of a debate "on a particular issue," it could exempt from tax pamphlets produced by others looking to have their say.  Id. at 40-41.  

     "So is there no limitation on the rationale of leveling the playing field throughout the First Amendment?", Roberts asked.  Id. at 42.  Clement reassured the Chief Justice, of course, that there was such a limitation.  The Chief Justice may not have felt reassured.

Bob Bauer