When Money Is Speech, Speech Is Not Free

Supreme Court majority says candidates must have unfettered right to turn personal wealth into political advantage

By Jeff Milchen

This expands on an article first published
July 8, 2008 in the Baltimore Sun

Building atop the rotten foundation it laid three decades ago, the Supreme Court (Federal Election Commission v Davis) has struck down the “Millionaires’ Amendment,” a federal law that helped keep Congressional elections competitive when a candidate funded their own campaign with a personal fortune. The law could have applied to 28 or more races this year.

The Court’s ruling repeatedly references its 1976 Buckley v. Valeo decision, which wrote between the lines of the First Amendment passage, “Congress shall make no law…abridging the freedom of speech,” to declare spending money to influence elections is constitutionally-protected free speech.

Since then, the Justices have struck down numerous laws designed to limit the power of money over election outcomes (and ballot initiatives).

What’s shocking about the Supreme Court’s opinion in Davishowever, is the disputed 2002 Millionaires’ Amendment to the McCain-Feingold Bill made no attempt to limit spending. To the contrary, it merely enabled candidates competing against a free-spending millionaire or billionaire to raise more money. According to the Court’s own logic, this simply enabled more “speech.”

The amendment allowed House candidates whose opponents spent $350,000 or more in personal funds to accept up to three times the current $2,300 per-donor limit (but only until their spending equaled that of the self-funding candidate). The law also allowed for raising contribution limits to in U.S. Senate races, with the threshold varying based on state population.

Writing the (5-4) majority opinion (pdf), Justice Alito said, “Different candidates have different strengths. Some are wealthy; others have wealthy supporters who are willing to make large contributions. Some are celebrities…” Trouble is, those advantages almost invariably accrue to the same individuals, not “different candidates.”

Alito absurdly argued that leveling the playing field actually impeded voters’ ability to make informed choices, then added, “The argument that a candidate’s speech may be restricted in order to level electoral opportunity has ominous implications.”

Restriction of speech? The amendment’s sole impact was to help prevent the candidate with the loudest amplification from drowning out all other voices. Jack Davis, the plaintiff, may have been deprived of the anti-competitive advantage he hoped to enjoy, but for a majority of the Court to claim his rights were violated is laughable.

Despite the Court’s ideological split, this is not a Republican-Democrat conflict. The plaintiff, Mr. Davis, is a Democrat who twice spent his own millions in losing bids for a U.S. House seat in New York. The 28 candidates spending enough to trigger the Amendment this year were split  between the dominant parties, though none are independents or “third party” representatives.

Ironically, the candidate who recently abandoned public financing for the general presidential election benefited directly from the amendment in 2004. Barack Obama was able to raise $3 million more than he otherwise could have in Illinois ‘ Democratic primary for Senate because one of his opponents, Blair Hull, spent nearly $30 million of his own money. It’s quite possible the Amendment already has changed the course of U.S. history.

The Justices’ ruling may affect just a few dozen congressional races this year, but the overall trend is more disturbing. Viewed in conjunction with their 2006 decision to strike down Vermont ‘s limits on campaign contributions in Randall v Sorrell*, it seems the Court steadily is diminishing the chance of any citizen winning a seat in Congress without huge sums of money. The Justices are accelerating the trend toward Congress becoming a rarified club populated by elites distinctly unrepresentative of average citizens.**

Not only will the Davis ruling impede citizens from learning the views of worthy candidates in several races, its language ominously suggests the Court may overturn long-standing limits on corporate and union campaign spending.*** Further, it implicitly attacks the most hopeful avenue for democratizing elections without overturning Buckley— public campaign financing (our Alaska chapter is advancing a clean elections initiative for 2008).

When the Court majority declares easing barriers to competitive elections an unconstitutional “burden” on wealthy candidates, it leaves little space for hope. With the existing majority likely to dominate the Court for a decade or more, reformers must confront a hard truth: the Supreme Court is a barrier to democratic elections and will be for many years. It’s time to aim below the beltway — away from legislative solutions subject to the Court’s approval and toward building bottom-up support to overrule the Court.

Ultimately, we need a constitutional Amendment to declare that investing cash in candidates is a privilege subject to democratic controls to prevent the buying both of elected offices and political influence — not free speech as intended by our Bill of Rights.

Jeff Milchen serves on the board of ReclaimDemocracy.org , a non-profit organization that has long advocated for a constitutional Amendment to overturn Buckley v Valeo.

*  ReclaimDemocracy.org engaged the court with this amicus brief in that case — a useful read for anyone seeking to dig deeper on this issue.

** Milchen details these impacts in this related 2006 commentary

*** e.g. Austin v. Michigan Chamber of Commerce (1990)

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