| The recent Supreme Court (SCOTUS) case Davis v. FEC, in which SCOTUS struck down the so-called "millionaire's amendment" portion of federal campaign finance law under the Bipartisan Campaign Reform Act (BCRA), also known as "McCain-Feingold," has raised concerns that the ruling might render necessary provisions Clean Money, Clean Elections (CMCE) unconstitutional.
The "millionaire's amendment" allowed congressional candidates whose opponents self-finance to a large extent, or who plan to self-finance, to receive donations up to three times the $2,300 limit from any single donor. SCOTUS ruled that it puts an undue burden on the self-financed candidates' right to spend their own money any way they wish, and violates the free speech clause of the First Amendment, as previously ruled in the landmark 1976 case Buckley v. Valeo (424 U.S. 1).
After reading the actual decision, it is obvious that this ruling is either irrelevant to CMCE, or would similarly render NYC's current campaign finance law worthless. The following arguments explain this view: |
- SCOTUS ruled that fundraising opportunities were equal until someone spent enough of his/her own money, at which point that candidate's opponents got a fundraising advantage. Under CMCE, it's the voluntary participants whose fundraising abilities are limited - the nonparticipant can raise a lot more money. Furthermore, the nonparticipant can accept larger donations from a single contributor, and can raise money from a larger pool of contributors.
- The added public funding for participants that results from a nonparticipant's spending differs significantly from the Davis case; one could more accurately argue that the "stop-limit" is the true limit, and any lower public funding amount is put into place only if all candidates choose to participate or otherwise limit their spending voluntarily. If necessary, the law could be written to reflect that argument.
- Additionally, since partial public funding systems (such as the system currently in place in NYC) provide for higher public funding and higher spending limits for candidates who are opposed by non-participating, high-spending candidates, CMCE does not differ from these systems as regards the Davis case. So if CMCE is unconstitutional under Davis, so is every other partial public funding system that has any mechanism to discourage nonparticipation.
- The Davis case relies solely on the fact that the disputed section of BCRA deals only with self-financed candidates, or rather candidates who spend a lot of their own money. CMCE doesn't care where a non-participating candidate's money comes from, so it is a materially different situation.
- A key provision of the North Carolina CMCE system for judicial elections, under which "independent" spending from any outside group triggers additional public funding for the candidate opposed by such a group, was upheld by the 4th Circuit Court of Appeals (Duke v. Leake), and SCOTUS denied cert on the appeal from that decision. This occurred after the Davis decision, and effectively overturns the earlier 8th Circuit ruling in Day v. Holahan.
Unfortunately, too many risk-averse lawyers are running around, claiming that the Davis case is going to result in a SCOTUS ruling against CMCE. If they stop whining and start acting intelligently, it won't happen. That's where we come in.
We need to let our state Senators know that CMCE is the way to go, and that the Davis case doesn't matter. We need to make sure that the groups who have been pushing for CMCE for over a decade don't back down now, just because a few chicken lawyers are whining.
It's up to you -- spread the word. |
