Analysis

Eighteen years ago, Justice Antonin Scalia complained that a Supreme Court decision he did not join carried an Orwellian message, abhorrent to the Constitution.  He wrote, sarcastically: “Attention all citizens. To assure the fairness of elections by preventing disproportionate expression of the views of any single powerful group, your Government has decided that the following associations of persons shall be prohibited from speaking or writing in support of any candidate: ___.”  Such a proclamation, he said, violated the “absolutely central truth of the First Amendment: that government cannot be trusted to assure, through censorship, the ‘fairness’ of political debate.”

With Justice Scalia now in the majority, the Court has just provided someting of an echo of that 1990 sentiment. “It is a dangerous business,” Justice Samuel A. Alito, Jr., wrote for a majority on Thursday, “for Congress to use the election laws to influence the voters’ choices….The Constitution…confers upon voters, not Congress, the power to choose the Members of the House of Representatives.” Thus, Congress may not legislate to “level electoral opportunities.”

What Scalia denounced — in a colorful dissent — in Austin v. Michigan Chamber of Commerce in 1990, Alito has now led a majority to condemn in dispassionate terms in Davis v. Federal Election Commission.  In Davis, the Court said in the clearest terms yet that it is unconstitutional for Congress to try to level the playing field in campaign finance.

If Congress passes campaign finance controls, and can show clearly that it did so to stop corruption or the appearance of corruption, that is all that it can do, the Court made clear.  Whenever Congress seeks to go beyond corruption-correction, in order to promote “fairness” in politics, or equal political opportunity for the candidates, it exceeds its constitutional reach, it now seems plain.

It is difficult to say, at this point, just how far that limiting principle will go to undo campaign finance laws and regulations from here on. 

There is no doubt that Congress has believed, for years, that it can constitutionally adjust the campaign money system to try to reduce the influence of wealth — individual wealth, the treasure in corporate or union coffers, the wealth of activist organizations.

And, in passing what is called the “Millionaire’s Amendment” in 2002 to govern races for Congress, the lawmakers definitely believed they had the authority to promote equality of spending by giving some opponents of wealthy candidates a chance to raise money up to the level where they could compete, equally or close to that. This was the reverse of putting caps on campaign outlays: it lifted the caps for one side, to promote equality.

But both of those assumptions may not have survived the Davis decision, striking down the “Millionaire’s Amendment” on First Amendment grounds.  For the first time, the Court has said explicitly that, even if wealth imbalances candidate competition, Congress cannot cure that by authorizing what amounts to a subsidy for the lesser-financed candidate.

Its explanation for why that is a First Amendment violation is an argument never before advanced: that a candidate with the “natural advantage” of access to more money has a constitutional right to bar Congress from intervening to enable a would-be rival to mount  tougher competition. Shifting the “advantage” that way, the Court appeared to indicate, is a kind of forbidden tax or penalty levied on the political speech of the better-financed contender.

Some election-law experts immediately detected in those notions a threat to long-standing federal curbs on spending by Big Business or Big Labor.  The theory those experts offered was that, if wealth-equalization is not a valid basis for restricting campaign finance activity, corporations and labor unions perhaps could not validly be restricted from engaging in political speech through their unequal assets.  Does it not diminish their political speech, it was suggested, for Congress to say they can buy too much speech?  Justice Alito did say, explicitly, that spending large sums on politics is the constitutional equivalent of “robustly” exercising First Amendment rights.

And, some of those experts added, does it not substitute legislative choices for those of voters if Congress or state legislatures doled out public funds to finance campaigns in lieu of private wealth?

The Alito opinion in Davis provides no more than hints, some only between the lines, that such major shifts in constitutional understandings about campaign finance restrictions will follow from this new opinion.  The opinion and its internal logic were crafted to hew rather closely to the vices the majority found in the “Millionaire’s Amendment.”

But it was enough of a departure from conventional wisdom that lawyers looking for new ways to lift financial restraints on political utterances have reason to think it worth a try to extend that logic.

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