November 09, 2007

Election Law Supreme Court Petition to Watch---Davis v. FEC

I have just had a chance to review the jurisdictional statement in Jack Davis v. FEC. According to the Supreme Court Docket for No. 07-320, the government's response is due on November 13.

Davis raises a very interesting issue under BCRA (the McCain-Feingold law) that was not addressed on the merits in the McConnell v. FEC case, the constitutionality of the "Millionaire's Amendment" in BCRA. Roughly speaking, this provision requires self funded candidates for the Senate or House to report their expenditures. When the expenditures exceed a certain amount, the opponent(s) of the self-financed candidate can accept contributions from individuals in an amount triple the individual contribution limit (now at $2,300 per person), even from people who have maxed out their federal contributions for the year. The opponent can also get more coordinated spending with his or her political party.

Davis essentially argues that the Millionaire's Amendment is unconstitutional because it creates an additional burden on him (a series of disclosures of spending in a short time frame) and is not justified by any accepted government interest. The measure cannot be justified as an anticorruption measure, Davis argues, because his (constitutionally protected) spending allows his opponents to raise larger campaign contributions from individuals, increasing, rather than decreasing the chances for corruption. And he argues that the law cannot be justified on equality/level the playing field grounds, because the Supreme Court in Buckley v. Valeo rejected equality as an acceptable rationale for campaign finance regulation. Davis also suggests the measure was not in fact passed by Congress to "level the playing field;" instead it was an incumbency protection measure to insulate incumbents from having to run against well-financed challengers.

Under BCRA, Davis's challenge was heard originally by a three judge district court, with direct appeal (not cert.) to the Supreme Court. The district court opinion (contained in an appendix to the jurisdictional statement) did not address the Buckley point, but found that Davis was not unconstitutionally burdened. The Millionaire's Amendment does not limit what he could spend; it only gives his opponents a fundraising benefit. Lower courts have approved public financing measures which give extra money to opponents of self-financed candidates on similar grounds. The three-judge district court here relled on those cases, which Bob Bauer criticized at the time of the opinion's issuance. The court also found that the disclosure requirement were not burdensome.

If this case were coming up on cert., I don't think I'd expect the Supreme Court to take the case. After all, it has had its fill of Supreme Court cases in recent years and this issue is not the most pressing one right now. (Indeed, during McConnell, my main worry about the Millionaire's Amendment was that a majority of the court would use it for an argument that the federal contribution limit was not necessary to prevent corruption---after all, it can be tripled just by the spending of a wealthy candidate. This case presents the question less directly.) But because this is up on appeal, the Court cannot just decline to hear it. Even a summary affirmance, by which the Court agrees with the lower court result, serves as valid precedent that the lower court got the result right (though not necessarily the reasoning). I think some Justices could be bothered by the fact that the lower court relied upon an equality argument to sustain this law, and may view it as another incumbency protecting aspect of BCRA. On the other hand, it is hard to see much harm that Davis suffers by this measure.

If the Court notes probable jurisdiction and sets this case for argument, it could be heard this term (there are still a number of slots to fill in the spring) with a decision expected by late June.

Posted by Rick Hasen at November 9, 2007 02:23 PM