The New York Times today surveyed the Court term with mixed feelings and worries about the future.  Campaign finance did not make the lists of the good or of the bad.  For this paper, a hardy editorial voice for conventional reform positions, the omission is something of an event.  The possibility of an oversight cannot be discounted, but neither can the chance that the Times did not really care all that much about the Millionaire’s Amendment.  Should it?

     In 2007, when the paper reviewed the prior Term’s accomplishments, it included campaign finance, the Wisconsin Right to Life II case, among the cases distressingly suggestive of a radicalization of the Court under the new Chief Justice.  "The ruling will make it easier for corporations and lobbyists to buy the policies they want from Congress," and it was a victory, the paper declared, "for corporations and wealthy individuals." 

     The Millionaire’s Amendment was also about wealthy individuals.  The difference, perhaps, is that the wealthy individuals of concern to the Amendment are candidates; and those who are protected from their wealth are other candidates.  The Amendment may have struck the paper, as it did others, as too much of an inside game, to be defended politely, formally, but without over-committing to the fight. 

     The Millionaire’s Amendment should not, however, pass entirely into obscurity, significant only the thinness of its support among reform community members and their editorial page allies.  The Court in Davis relied on the Buckley case in rejecting the "level the playing field" rationale advanced by Amendment supporters, but it also remained explicitly faithful to Buckley’s blessing of public financing.  The Court distinguished the choice it disallowed in the Millionaire’s Amendment from the choice at the center of the public financing system:

In Buckley, we held that Congress "may engage in public financing of election campaigns and may condition acceptance of public funds on an agreement by the candidate to abide by specified expenditure limitations" even though we found an independent limit on overall campaign expenditures to be unconstitutional.  424 U. S., at 57, n. 65; see id., at 54–58.  But the choice involved in Buckley was quite different from the choice imposed by §319(a).  In Buckley, a candidate, by forgoing public financing, could retain the unfettered right to make unlimited personal expenditures. 

Davis v. FEC, slip op. at 13.

     This is not the worst that the Court could have left to a new President and new Congress taking up proposals in 2009 for the reform of the public financing system.

     There has been commentary in the other direction, suggesting that public financing schemes that offer supplementary funding to candidates facing millionaire spending have been put in peril by Davis.  This is far from certain:  Davis does not compel that conclusion.  What will make all the difference is how a legislature, if it chooses this path, structures supplementary funding for the opponents of the self-funded.  If a publicly funded candidate is provided with a reasonable amount of assistance, in the interests of keeping the system viable and attractive, then the Court may stand aside.  A more aggressive—some would say, punitive—measure to "level the playing field," such as removing the overall spending or contribution limits for the publicly funded candidate, could well provoke the Court to a Davis-like objection.

     Davis, by sticking close to Buckley, looked back and held the Congress to the first principles established in l976.  This was not all bad, and gives others, supporters of public financing a reason to look forward, to next year.

Bob Bauer