Senator Domenici, a leader in the successful affixation of the Millionaire’s Amendment to McCain-Feingold, called it "very complicated."  147 Cong. Rec. S2542 (daily ed. March 20, 2001).  At least one brief filed with the Supreme Court has made the same point:  "the so-called "Millionaires’ Amendment" governing House races, is complex in its mechanics …."  Davis v. FEC, No. 07-320, Br. of Amici DeRossett and Broyhill at 3.  The Amendment may certainly be deemed complex if it is judged by comparison to other provisions of the law, because once a millionaire candidate throws her wallet into the ring, each candidate—the millionaire and the opponent—must perform a calculation or file paperwork, or both, to set the Amendment into motion.  The millionaire candidate reports what she is planning to spend or has spent; the opponent determines whether this is enough to buy him special relief from the limits, taking into account, under the formula provided by law, his own personal funding and any overall fundraising advantage he enjoys. 

     "Complexity" is a term appropriate enough for all this mandated math and associated activity.  Yet it seems to have been easily enough mastered by the candidates who have to work with it.  Does this mean it is not really all that complex, or is the question of complexity to be understood differently, as getting at a more profound problem with all this accounting?  It is a question of particular interest as the days pass and bring closer the Supreme Court’s decision in the Davis case.

     The Millionaire’s Amendment uniquely involves the government in managing the financial competition in particular races.  The statute sets spending thresholds; as noted, it makes assumptions about how much personal spending or other fundraising by a wealthy candidate’s opponent should cost him the benefits of relief through enhanced contribution limits.

     Under the Amendment, candidates hoping for help must figure out the "opposition personal funds" amount, along with their "gross receipts advantage."  There are rules for the disposition of funds left over, and a stringent deadline for repayment to the candidate of any amounts provided to her campaign in the form of a loan.  The Federal Election Commission must do its part by considering, as it has, how the Amendment applies in specific races, such as in Advisory Opinion 2006-6, when the question was how all these requirements applied to a California special election to be held with the contingency of a run-off which would occur on the same day as a regularly scheduled primary election.

    The Justices, rendering their decision, will have grasped the full architecture of the Amendment as a necessary condition of confronting the specific issues before it.  And this could be just as damning, for some Justices, as the more crisply identified constitutional issues—such as the alleged First Amendment harms done to the wealthy.  Before the Court is a law that aims to adjudicate fairness in elections featuring candidates within a specified category.  It is not only the personal resources of the "millionaire" that is subject to government review.  The opponent, too, must account for his spending—for what he also donated from personal assets, considered together with the success of his other fundraising.  The Amendment, meant to help the government achieve what it terms its "equalization objective" in races involving personal spending, leads almost necessarily to complexity of execution.  Davis v. FEC, Br. of Appellee at 38. 

     In this way the Amendment is complex because its mission is complex.  It is not hard to imagine that the Chief Justice and Justice Alito, joined by Justice Scalia, Thomas and Kennedy, will conclude that this complex Amendment, one of a kind, should be the last of its kind.

Bob Bauer