The 5-to-4 decision, legal experts said, was significant for rejecting the rationale behind the law, known as the “millionaire’s amendment,” and for confirming the court’s continuing skepticism about the constitutionality of campaign finance regulations.
“Supporters of reasonable campaign finance regulation are now zero for three in the Roberts court,” said Richard L. Hasen, a professor at Loyola Law School in Los Angeles. “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.”
The law at issue in Thursday’s decision imposed special rules in races with candidates who finance their own campaigns. Those candidates are required to disclose more information, and their opponents are allowed to raise more money.
The Supreme Court has upheld campaign finance laws meant to drive the potentially corrupting influence of large contributions out of politics. But the millionaire’s amendment, part of the 2002 McCain-Feingold campaign finance law, is based on a different rationale: that of compensating for the additional financial resources available to candidates willing to spend their own money.
The case was brought by Jack Davis, a Democrat who twice ran for the House of Representatives from western New York, spending or lending himself millions of dollars of his own money. He lost both times.
Justice Samuel A. Alito Jr., writing for the majority, said the asymmetry imposed by the law was unacceptable. “We have never upheld the constitutionality of a law that imposes different contribution limits for candidates who are competing against each other,” Justice Alito wrote.
The law allows opponents of candidates for the House who spend more than $350,000 of their own money to receive triple the usual amounts — $6,900 rather than $2,300 — from individual contributors when a complex statutory formula is met. The law also waives limits on expenditures from political parties.
The law was a response to Supreme Court rulings that forbid limits on the amount that candidates can spend on their own behalf. But Justice Alito wrote that the legislative response was unconstitutional because it “imposes an unprecedented penalty on any candidate who robustly exercises” free speech rights guaranteed by the First Amendment. Rich candidates, Justice Alito said, must “choose between the First Amendment right to engage in unfettered political speech and subjection to discriminatory fund-raising limitations.”
In the case, Davis v. Federal Election Commission, No. 07-320, Mr. Davis’s lawyer argued that the law had an ulterior motive, that of protecting incumbents against rich challengers. The court did not address that point, but the majority did express skepticism about allowing Congress to decide how to level the political landscape.
“Different candidates have different strengths,” Justice Alito wrote. “Some are wealthy; others have wealthy supporters who are willing to make large contributions. Some are celebrities; others have the benefit of a well-known family name.”
“Leveling electoral opportunities means making and implementing judgments about which strengths should be permitted to contribute to the outcome of an election,” Justice Alito continued. “The Constitution confers upon voters, not Congress, the power to choose the members of the House of Representatives.”
Justice Alito’s decision was joined by Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Antonin Scalia and Clarence Thomas.
Led by those justices, “the court is increasingly hostile to campaign finance reform,” said Richard Briffault, a professor at Columbia Law School. “It underscores the importance of Alito’s replacement of O’Connor.”
Justice Sandra Day O’Connor, who retired in 2006, was a co-author of the 2003 decision that upheld the major provisions of the McCain-Feingold law of 2002.
Justice John Paul Stevens, joined by Justices Stephen G. Breyer, Ruth Bader Ginsburg and David H. Souter, dissented, saying that both “reducing the importance of wealth as a criterion for public office and countering the perception that seats in the United States Congress are available for purchase by the wealthiest bidder” offered valid justifications for the amendment.
“The millionaire’s amendment quiets no speech at all,” Justice Stevens wrote. “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.”
Richard H. Pildes, a professor at New York University Law School, said the result in Thursday’s decision was correct. “It’s deeply dangerous for Congress to change the ground rules for individual races based on a judgment about what’s fair,” Professor Pildes said.
More broadly, he said, “the opinion is written in a way that portends an unsympathetic response to campaign finance regulations to go anywhere beyond the existing structure.”