The three-judge panel that will have its handiwork reviewed by the Supreme Court, in the case testing the “millionaire’s amendment,” can expect no mercy to be shown.  Its reasoning cannot stand.  It misused precedent and relied on an “equality” rationale that the Supreme Court has repeatedly rejected as a basis for campaign finance regulation.  The result it reached is grotesquely odd: that a candidate threatened by the use of an opponent’s wealth ought to be able to accept contributions well over the normal limit—a limit designed to separate corruptive from safer giving—in order to compete with a candidate spending only “clean” personal money. 

     It is a world gone mad.  The statute sacrifices its anti-corruption rationale to “equalize” competition: it sheds the constitutionally approved interest for one that has been disapproved, repeatedly.  And it makes this move for this one case, the case of millionaire opponents, which has caused eyes to turn suspiciously to incumbent self-dealing as the motive.

     In all this the millionaire is a bystander:  no one worries too much about her.  So it is said that even if the law calls on the millionaire to file special reports of her spending, with the purpose of enabling aid to be timely delivered to her opponent, this is no or little harm. 

     We may find out that the Court thinks differently about this question presented by the Amendment’s enforcement mechanism.  Here one candidate is asked to account for her spending for the benefit of another: the wealthy candidate must report her spending so that her opponent can, with the government’s help, put up a more vigorous, well-funded fight.  This underscores the government determination to see the race conducted on more “equal terms”; and not limiting itself to providing for a more generous contribution limit, it enters directly into the competition on behalf of one candidate and forces the opponent to disgorge information about the levels (and necessarily, the timing) of her spending. 

     Having been advised that she is free to spend at will because her own money is pure speech, posing no danger of corruption, the wealthy candidate finds that she is a target.  The government asks of the millionaire disclosures asked of all other candidates, and then also this additional one, special to the millionaire and meant to help boosts the competitive position of her opponent.  It seems that just this differential treatment is a harm, and it is all the more so because the harm is visited on a candidate whose personal spending, the target of regulation, has been singled out specifically for constitutional protection.

     So while the Court may have a doctrinal point to make in this review, trimming rationales back to the Buckley-approved set, it may show more solicitude for the millionaire than some expect.  It is never enough to say that there is no harm, because it is "just disclosure."

Bob Bauer