Paul Jacob

Last week, rare cheers were heard for a Supreme Court ruling. The High Court, in D.C. v. Heller, overturned the District of Columbia’s gun ban, upholding the Second Amendment.

But don’t miss another decision, handed down the very same day, dealing with the First Amendment. In Davis v. Federal Election Commission, the Court struck down the so-called “Millionaire’s Amendment” contained in the McCain-Feingold campaign finance law, thus upholding at least part of the First Amendment.

The 5-4 Court majority answered the question correctly: Yes, it is unconstitutional to jigger the system so that two candidates running for the same office might be operating under different limits — with one candidate able to gather individual donations three times larger than the other, and able to receive unlimited party transfers, while the other suffers under more stringent limits.

As Judge Samuel Alito wrote for the 5-4 majority: “We have never upheld the constitutionality of a law that imposes different contribution limits for candidates who are competing against each other . . .”

But Davis v. FEC is noteworthy not so much for its answer as for the light it shines on the hidden agendas inside today’s mess of politicized campaign regulation.

The facts are plain. Jack Davis, a wealthy Democrat, challenged Republican incumbent Congressman Thomas Reynolds for the congressional seat in New York’s 26th district in 2004 and 2006. In both races, Davis spent more than $350,000 of his own money and outspent the incumbent. Incidentally, both times he lost narrowly.

Under the Millionaire’s Amendment provision of the nightmarish McCain-Feingold law, a candidate who spends $350,000 of his own money, and, under a complicated formula, is spending $350,000 more than the other candidate, triggers a brand new scheme of contribution limits. These new limits allow the lesser-funded candidate to raise contributions that the candidate, who is largely or entirely self-financing, cannot.

Back in 1976, in Buckley v. Valeo, the High Court “soundly rejected” a limit on how much any one person can spend on his or her own campaign. The Buckley decision erred, however, in otherwise upholding a congressionally mandated contribution limit. By the Constitution, Congress has no authority to regulate speech; just read the First Amendment. And, to takes speech public, it takes money. Often, lots of it. But the Court reasoned that the “burdens” the donation limits imposed on First Amendment rights were justified by the important governmental interest in combating corruption and the appearance of corruption.

Now, granted, combating corruption is good. The appearance of corruption? Subjective . . . and inevitable, given the lack of practical limits on busybodying by government in private affairs. So, it’s hardly a proper basis for lawmaking. But the alleged specific “interest” is less problematic than the implied sleight-of-hand conception of rights. The Bill of Rights was intended to draw a clear line over which government power could not reach, while the Court’s method of weighing First Amendment issues reduces it to a flimsy compact that can be abrogated by government at any time.

Imagine going to your car dealership and seeking repair of a part under warranty, only to be told that the mechanic is weighing your right under the warranty against their compelling business interest. That, in essence, is the conventional judicial wisdom.

Buckley allowed Congress’s nose inside the tent. Since then, incumbents in Congress have been regulating the speech of their political opponents. Take a step back and consider: Why was there a Millionaire’s Amendment?

Campaign finance laws have long worked to the advantage of incumbents. This provision was no different. Incumbents in Congress wanted to blunt one of the few threats they face: a well-financed opponent. Disclosure laws already make it risky for any citizen or interest group to contribute to a challenger. Congress sought to tamp down on a remaining source for real financial competition. It is telling that even self-financing multi-millionaire challengers have a hard time defeating entrenched incumbents.

That’s why it seemed almost laughable to read Justice John Paul Stevens dissent, where he wrote that Congress was “motivated by proper and weighty goals.” Stevens went on to argue that limits on the quantity of speech were not only constitutionally permissible, but warranted.

Stevens compared voters to judges, explaining that judges are able to limit the time for argument in a case and the page length of legal briefs. He argued this allowed for greater deliberation. “It seems to me that Congress is entitled to make the judgment that voters deserve the same courtesy and the same opportunity to reflect as judges,” he wrote, “flooding the airwaves with slogans and sound-bites may well do more to obscure the issues than to enlighten listeners.”

Stevens and the speech-police style reformers first argued that there was too much money in politics. Now their true position emerges: There is too much speech.

Our problem, of course, is the very opposite of too much speech. It's too much government. And the way to start peeling back government is to enforce, once again, our basic rights, our rights as individuals.

The individual has an inalienable right to defend himself, and thus to keep, and if necessary, bear arms. Last week’s 5-4 Court ruling merely acknowledged that the prose of the Second Amendment addresses this right. And so must government.

Likewise, the individual has an inalienable right to speak out — especially politically. This can hardly co-exist with a Congress (made up of career politicians) micro-managing the finance rules for themselves and their opponents’ campaigns.

Last week’s Davis decision may not have been as sweeping as Heller, but it did two important things:

    1. It lessened the control McCain-Feingold has on our political discourse, weakening incumbents’ ability to ride herd over the democratic process, and

    2. It showed just how far the unconstitutional restriction of political speech has come, and how frighteningly far its supporters would like to go.


Paul Jacob

Paul Jacob is President of Citizens in Charge Foundation and Citizens in Charge. His daily Common Sense commentary appears on the Web and via e-mail.