Multimillionaire Relief

Rick Hasen reports that the Supreme Court has agreed to consider the constitutionality of the “Millionaire’s Amendment’ in the Bipartisan Campaign Finance Reform Act. Here’s Hasen’s rundown:

Roughly speaking, this provision requires self funded candidates for the Senate or House to report their expenditures. When the expenditures exceed a certain amount, the opponent(s) of the self-financed candidate can accept contributions from individuals in an amount triple the individual contribution limit (now at $2,300 per person), even from people who have maxed out their federal contributions for the year. The opponent can also get more coordinated spending with his or her political party. [The appellant] essentially argues that the Millionaire’s Amendment is unconstitutional because it creates an additional burden on him (a series of disclosures of spending in a short time frame) and is not justified by any accepted government interest.

Prospectively, I think this is a Court that’s going to make extant campaign finance regulation meaningless within a decade. Hasen’s insightful and well-written article Beyond Incoherence provides some reasons for my suspicions here. Those who care about a level electoral playing field are probably going to have to round up money for public financing, and move beyond traditional forms of regulation increasingly challenged by an activist base of the politically involved.

Retrospectively, my sense is that a good comparative political history of the US and Canada could be based on the difference between these two sentiments from the countries’ highest courts:

[T]he concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.

That’s from the US’s Buckley v. Valeo; here’s the counterpoint from Harper v. Canada (Attorney General) [2001] 9 WWR 650, at para. 62:

The Court’s conception of electoral fairness as reflected in the foregoing principles is consistent with the egalitarian model of elections adopted by Parliament as an essential component of our democratic society. This model is premised on the notion that individuals should have an equal opportunity to participate in the electoral process. Under this model, wealth is the main obstacle to equal participation;. . . . Thus, the egalitarian model promotes an electoral process that requires the wealthy to be prevented from controlling the electoral process to the detriment of others with less economic power.

The state can equalize participation in the electoral process in two ways . . . First, the State can provide a voice to those who might otherwise not be heard. The Act does so by reimbursing candidates and political parties and by providing broadcast time to political parties. Second, the State can restrict the voices which dominate the political discourse so that others may be heard as well. In Canada, electoral regulation has focussed on the latter by regulating electoral spending through comprehensive election finance provisions. These provisions seek to create a level playing field for those who wish to engage in the electoral discourse. This, in turn, enables voters to be better informed; no one voice is overwhelmed by another.

Some fruits of the American approach are amply chronicled in David Cay Johnston’s new book, Free Lunch.

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