Expect the average net worth of a member of Congress â€” now about $1.5 million â€” to take another leap upward. That’s because five members of the Supreme Court decided that wealth, as speech, cannot be regulated. In doing so, the Roberts court continued to dismantle the “fairness” logic of past congressional attempts at campaign finance reform by labeling such reforms as censorship.
In a 5-4 decision, the Court ruled that it is unconstitutional to allow candidates facing self-financing, wealthy opponents to accept larger-than-normal contributions. This decision will decrease the number of financially viable congressional candidates.
The Court struck down a provision of the Bipartisan Campaign Reform Act known as the “millionaires’ amendment.” Congress wrote that into the reform act as a means to combat the perception that seats in Congress could be “bought” by regulating “soft money” flowing into campaigns. “Soft money” is, generally, that given to political parties but not specifically to support a particular candidate.
The case was brought by Buffalo, N.Y., businessman Jack Davis, who used about $3.5 million of his own money â€” more than 90 percent of what he raised â€” in two losing campaigns for the House. Mr. Davis argued that the amendment discriminated against those who chose to self-finance campaigns to “convey a message of independence from lobbyists, large donors and other political ‘insiders.’ ”
His argument prevailed at the Court. The wealthy who can afford to self-finance campaigns are unaffected by the decision. But the amendment’s means for the not-wealthy to challenge such rich candidates â€” higher limits on campaign contributions, $6,900 rather than $2,300 â€” has been taken away.
That’s a severe setback for such candidates, because congressional campaigns have become extraordinarily expensive. Says Public Citizen:
The cost of congressional campaigns has skyrocketed, from an average of about $87,000 spent for successful House elections in 1976 (about $308,000 in 2006 dollars) to an average of $1.3 million spent on winning campaigns in 2006. Successful Senate candidates in 1976 spent an average of $609,000 (about $2.2 million in 2006 dollars), and in 2006, the average Senate winner spent an astonishing $9.6 million.
In the wake of this decision, the not-wealthy are immediately disadvantaged.
Justice John Paul Stevens, in another stinging dissent, lampooned Mr. Davis’ argument:
The millionaireâ€™s amendment quiets no speech at all. On the contrary, it does no more than assist the opponent of a self-funding candidate in his attempts to make his voice heard; this amplification in no way mutes the voice of the millionaire, who remains able to speak as loud and as long as he likes in support of his campaign.
The Davis v. Federal Election Commission decision, written by Justice Samuel Alito, is another strike by the Roberts court against congressional attempts (albeit lukewarm and self-serving) to regulate campaign finance. In 2007, the Court, in another 5-4 decision, loosened restrictions on political advertising paid for by corporations or unions in the weeks before an election, saying such restrictions amounted to censorship.
Critics of the Davis decision fear a five-member majority of the Roberts court appears intent on dismantling all forms of campaign finance reform. Adam Liptak’s New York Times story quotes Richard L. Hasen, a professor at Loyola Law School in Los Angeles:
Supporters of reasonable campaign finance regulation are now zero for three in the Roberts court. This is a signal of what is to come. What could easily fall following this case are the longstanding limits on corporate and union spending in federal elections. [emphasis added]
Expect incumbency rates in congressional elections to rise as campaign costs rise, leaving the less well-to-do unable to afford to compete with the wealthy. The electorate will be the poorer for it.