Campaign Finance Less-form

Yesterday, the Supreme Court stuck down the so-called “millionaire’s amendment” to the McCain-Feingold campaign finance reform law. The amendment basically said that when a candidate for congress is facing a self-funding rich person, he or she can raise money from individual donors in increments up to $6900, which is triple the usual limit of $2300. In a 5-4 decision, the highest court in the land said this was too meddlesome.

The highest court in my head also returns a 5-4 decision – it’s close, but I go the other way.

The elephant in the campaign finance room is the Buckley v. Valeo decision from 1976, which basically said that political money equals political speech. But only sometimes. Money does not equal speech when you are spending it on someone else’s campaign, it only equals speech when you are spending it on your own campaign. This makes some sense – it seems like a more serious restriction on speech to say you can’t pay for advertising to tell people about yourself than to say that you can’t pay for advertising about someone else. But the admission that it must be constitutional to limit spending money to advertise about someone else admits either that money isn’t exactly speech, or that clean elections are a public good that can sometimes compete with free speech. Both are probably true to some extent. Either way, saying nothing about the just-ness of the Buckley decision, it draws a line with the pen of judgment, making it somewhat arbitrary.

But if we’re going to draw the line there, then you have to wrestle with the gaping hole in fairness that is rip-open-able by rich people, who are much more likely to be able to become elected representatives by virtue of the fact that they can buy it. Not good. Not good at all. If we aren’t going to allow lawmakers to limit spending by individuals on their own campaigns, and if we aren’t happy with rich people having an advantage in elections by virtue of being rich, there are really a limited number of options left on the table. The millionaire’s amendment is one of them. A strong system of public financing is another.

Alito's argument, writing for the majority, is that you can’t have different contribution rules based on the different strengths and weaknesses of the candidates. Let’s admit it; that’s a damn good point. $2300 when you are running against John and $6900 when you are running against Jim is trouble, and we want to do as little of that kind of thing as possible. I’m not sure the millionaire’s amendment takes the right approach. But if we insist on the money-speech connection, there is no simple outcome that is 100% democratically satisfying. The millionaire’s amendment is not free of arbitrary-ness, but neither is Buckley. The majority is right to be troubled by the millionaire’s amendment. But I think they are wrong not to be at least as troubled by the fact that, in 2006, the average net worth of the 435 US House members was about $5 million.