Right-Wing, Business Groups Try to Undermine Publicly Funded Elections

The US Supreme Court will hear oral argument this week on the Millionaire's Amendment of the Bipartisan Campaign Reform Act of 2002 (BCRA), “MCCain Feingold.” The Millionaire's Amendment is a provision that requires self funded candidates for the Senate or House to make a series of reports on their expenditures. When the reports show that the candidate has spent personal funds in excess of a threshold (the thresholds differ in the states and congressional districts), the opponent may collect greater amounts from donors–up to triple the individual contribution limit (now at $2,300 per person), even from donors who are maxed-out for their federal contributions. It also allows for greater coordinated spending with political parties.

Jack Davis ran two campaigns for Congress, and challenged the Millionaire's Amendment on the grounds that it unconstitutionally chills millionaires like him from running self-financed campaigns by forcing him to reveal “sensitive, strategic information” regarding his personal expenditures, exposing the information to opponents who benefit from that disclosure and increasing his chances of investigation. Davis contends this different treatment between candidates who self-fund and those who don't violates the equal protection component of the due process clause of the Fifth Amendment.

Davis’s arguments are weak, but court-watchers are concerned that SCOTUS may use the occasion to undermine state public funding--precisely what is being urged by the social conservatives and business interests in the “friends of the court” briefs. The lower court had found that the disclosure requirements were not burdensome. In its opinion it relied on the reasoning of other lower courts which have approved state public financing measures which give extra money to opponents of self-financed candidates.

State public funding legislation varies, and CFR advocates hope SCOTUS will avoid some sweeping statements which will allow new challenges to state efforts to control money in politcs.

Each system differs on the facts from the Millionaire’s Amendment. For example. under some state public funding schemes, a publicly-financed candidate who is outspent by a candidate not participating in the public funding system is allowed to raise and spend more private money. Minn. Stat. Ann.§ 10A.25(10), upheld in Rosenstiel v. Rodriguez,101 F.3d 1544, 1549-1552 (8th Cir. 1996). In other states candidates are provided additional public funds when a high-spending opponent exceeds certain expenditure or contribution amounts, or when independent spending occurs. Me. Rev. Stat. Ann. tit. 21-A § 1125(9), upheld in Daggett v. Commission on Governmental Ethics & Election Practices, 205 F.3d 445, 451, 464 (1st Cir. 2000)

There are many other statutes: Ariz. Rev. Stat. Ann. § 16-952 (providing increased public funds to participating candidates when the expenditures of a non-participating candidate exceed a certain triggering amount); Fla. Stat. Ann. § 106.355 (relieves a candidate who is participating in public system from expenditure limits if non-participating opponent exceeds limits applicable to publicly-financed candidates); Neb. Rev. Stat. Ann.. § 32-1604 (conditions receipt of public funds by participating candidate on non-participating candidate exceeding a minimum expenditure).