WASHINGTON -- Congress is less divided by partisanship than it is united by devotion to the practice of protecting incumbents. Doing this with, for example, the bipartisan embrace of spending "earmarks" is routinely unseemly. But occasionally, incumbent protection is also unconstitutional.
It was in 2002, when Congress was putting the final blemishes on the McCain-Feingold law that regulates and rations political speech by controlling the financing of it. The law's ostensible purpose is to combat corruption or the appearance thereof. But by restricting the quantity and regulating the content and timing of political speech, the law serves incumbents, who are better known than most challengers, more able to raise money and uniquely able to use aspects of their offices -- franked mail, legislative initiatives, C-SPAN, news conferences -- for self-promotion.
Not satisfied with such advantages, legislators added to McCain-Feingold the Millionaires' Amendment to punish wealthy, self-financing opponents. The amendment revealed the cynicism behind campaign regulation's faux idealism about combating corruption.
The amendment says: When a self-financing House candidate exceeds the personal spending threshold of $350,000, his opponent gets three benefits. First, the opponent can receive contributions triple the per election limit of $2,300 from each donor. Second, the donors' now-tripled contributions are not counted against those donors' aggregate contribution limits for the two-year election cycle. Third, the opponent is permitted to coordinate with his political party committee unlimited party expenditures that otherwise would be limited by statute. Senate campaigns are subject to similar provisions, which are even more generous to candidates opposed by wealthy, self-financing individuals.
In 2006, Jack Davis, a wealthy Buffalo-area Democrat, self-financed his House campaign against Rep. Tom Reynolds who, as a four-term incumbent and a former chairman of the National Republican Congressional Committee, knows how to raise money. Benefiting from the additional advantages conferred by the Millionaires' Amendment's provisions, Reynolds narrowly won, 52-48.
Davis wants the Supreme Court to rule that the Millionaires' Amendment unconstitutionally burdens the First Amendment right of political advocacy and violates the Constitution's guarantee of equal protection of the law. The Millionaires' Amendment does both -- and it reveals how the corruption rationale for campaign finance regulation is a charade.
In 1976, examining a 1974 law restricting both campaign contributions and expenditures, the court affirmed two principles. First, corruption arises from quid pro quo arrangements connecting contributions with particular actions of a public official. Second, because corruption arises from contributions, restrictions on expenditures are much more problematic, constitutionally.
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