Rick Hasen notes that the Washington State primary case, "barely noticed," was handed down without making much of a sound.  This is because few outside the election law bar, or the State of Washington, or the community of political parties, cared particularly whether parties controlled the designation of party association on the ballot.  Hasen says that the decision was a good one, allowing voters to have the type of primary they preferred.  But it was not a good one for parties, whose misery might have loved but got precious little company. 

     Now as the Supreme Court prepares to hear the Millionaire’s Amendment case, there is not much of stir anywhere:  this case will be decided in an environment rich in indifference to the profiled victims of millionaire spending.  If the Court strikes the Amendment down, elites may bemoan another blow to McCain-Feingold.  Their complaint may be more pro forma than not, and they will know that voters won’t see much to worry about in the provision’s collapse. 

     Voters don’t seem inclined to brood darkly about millionaire candidacies:  experts familiar with the polling data advise that voters don’t blame the rich for using their fortunes to pursue public office.  All things being equal, self-financing is a point in the millionaires' favor, a protection against corruptibility, and millionaires play well on the point.  ("Self-financed candidates often run on campaign platforms that emphasize the independence of their ideas from those espoused by the special interests upon whom non-self-financed candidates depend."  Amicus Brief of DeRossett and Broyhill, in Davis v. FEC, at 19-20).  Nor are voter sympathies brought out by the competitive agonies faced by the millionaires’ opponents.  It may be that Congress had the interests of the public in mind when giving support to candidates running against millionaires.  It is certainly not obvious that the public believes it or could be sold on this explanation of motive.

     Indifference to those on the losing side of these cases—losers whose interests are seen to be separate and severable from the public’s or the voters’—creates the conditions for the Court to do as a majority pleases with little or nothing to consider in the way of adverse or critical public reaction.  So it was with the friendless parties in the Washington State case; so it will be with the opponents of millionaire candidates.  The Millionaire’s Amendment case may make more of a splash than the Washington State case, having the visibility of a federal case and the McCain-Feingold story-line to help build the audience.  The truth in both cases will be the same:  the victims, those pleading injury, have the smallest of followings, and there will be few to shed a tear for their troubles.

Bob Bauer