Supreme Court majority says candidates must have unfettered right to turn personal wealth into political advantage

By Jeff Milchen
First published July 8, 2008 in the Baltimore Sun

Building atop the rotten foundation it laid three decades ago, the Supreme Court (Federal Election Commission v Davis) has struck down the “Millionaires' Amendment,” a federal law that helped keep Congressional elections competitive when a candidate funded their own campaign with a personal fortune. The law could have applied to 28 or more races this year.

The Court's ruling repeatedly references its 1976 Buckley v. Valeo decision, which wrote between the lines of the First Amendment passage, “Congress shall make no law…abridging the freedom of speech,” to declare spending money to influence elections is constitutionally-protected free speech.

Since then, the Justices have struck down numerous laws designed to limit the power of money over election outcomes (and ballot initiatives).

What's shocking about the Supreme Court's opinion in Davis, however, is the disputed 2002 Millionaires' Amendment to the McCain-Feingold Bill made no attempt to limit spending. To the contrary, it merely enabled candidates competing against a free-spending millionaire or billionaire to raise more money. According to the Court's own logic, this simply enabled more “speech.”

The amendment allowed House candidates whose opponents spent $350,000 or more in personal funds to accept up to three times the current $2,300 per-donor limit (but only until their spending equaled that of the self-funding candidate). The law also allowed for raising contribution limits to in U.S. Senate races, with the threshold varying based on state population.

Writing the (5-4) majority opinion (pdf), Justice Alito said, "Different candidates have different strengths. Some are wealthy; others have wealthy supporters who are willing to make large contributions. Some are celebrities…” Trouble is, those advantages almost invariably accrue to the same individuals, not “different candidates.”

Alito absurdly argued that leveling the playing field actually impeded voters' ability to make informed choices, then added, "The argument that a candidate's speech may be restricted in order to level electoral opportunity has ominous implications.”

Restriction of speech? The amendment's sole impact was to help prevent the candidate with the loudest amplification from drowning out all other voices. Jack Davis, the plaintiff, may have been deprived of the anti-competitive advantage he hoped to enjoy, but for a majority of the Court to claim his rights were violated is laughable.

Despite the Court's ideological split, this is not a Republican-Democrat conflict. The plaintiff, Mr. Davis, is a Democrat who twice spent his own millions in losing bids for a U.S. House seat in New York. The 28 candidates spending enough to trigger the Amendment this year were split (text doc) between the dominant parties, though none are independents or “third party” representatives.

Ironically, the candidate who recently abandoned public financing for the general presidential election benefited directly from the amendment in 2004. Barack Obama was able to raise $3 million more than he otherwise could have in Illinois ' Democratic primary for Senate because one of his opponents, Blair Hull, spent nearly $30 million of his own money. It's quite possible the Amendment already has changed the course of U.S. history.

The Justices' ruling may affect just a few dozen congressional races this year, but the overall trend is more disturbing. Viewed in conjunction with their 2006 decision to strike down Vermont 's limits on campaign contributions in Randall v Sorrell*, it seems the Court steadily is diminishing the chance of any citizen winning a seat in Congress without huge sums of money. The Justices are accelerating the trend toward Congress becoming a rarified club populated by elites distinctly unrepresentative of average citizens.**

Not only will the Davis ruling impede citizens from learning the views of worthy candidates in several races, its language ominously suggests the Court may overturn long-standing limits on corporate and union campaign spending.*** Further, it implicitly attacks the most hopeful avenue for democratizing elections without overturning Buckley -- public campaign financing (our Alaska chapter is advancing a clean elections initiative for 2008).

When the Court majority declares easing barriers to competitive elections an unconstitutional “burden” on wealthy candidates, it leaves little space for hope. With the existing majority likely to dominate the Court for a decade or more, reformers must confront a hard truth: the Supreme Court is a barrier to democratic elections and will be for many years. It's time to aim below the beltway -- away from legislative solutions subject to the Court's approval and toward building bottom-up support to overrule the Court.

Ultimately, we need a constitutional Amendment to declare that investing cash in candidates is a privilege subject to democratic controls to prevent the buying both of elected offices and political influence -- not free speech as intended by our Bill of Rights.

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 By Jim Shultz 

In La Paz today, President Morales and two key state governors, Rubén Costas of Santa Cruz and Mario Cossío of Tarija, signed an agreement to begin a new round of talks aimed at resolving the country's deep political crisis. The agreement will launch talks starting on Thursday in Cochabamba, and will focus on four main issues of contention: the division of gas and oil revenue (IDH); the proposed new Constitution; regional autonomy; and pending appointments to the nation's judicial bodies. The agreement was also signed by Bolivia's Catholic Cardinal, Julio Terrazas.

Nothing in the agreement changes the difficulties that Morales and the Governors have had up to now in finding agreement on these issues, but the fact that talks will happen at all indicates that, as in Cochabamba in January 2007, the country's fall into deep violence has created pressure to back up and try another way, for now. Not participating in the talks will be Pando Governor Leopoldo Fernandez, arrested Tuesday and transported to La Paz where he will be charged with murder in connection with last weeks massacre of campesino supporters of Morales. Here's Erbol's report on the accord.

South American Presidents Meet in Chile

The leaders of nine South American nations held an emergency summit in Chile yesterday to address the Bolivian crisis. The Presidents declared their strong support for Morales, denounced the Pando massacre and violent attacks against government facilities, called for dialog to resolve the crisis and established a committee to assist in that dialog. The Presidents rejected an effort by Venezuelan President Hugo Chavez to denounce the U.S. role in Bolivian events, leaving the U.S. out of the discussions entirely. The Bush Administration has yet to issue any denouncement of the Pando massacre, one of the few moves it could make right now that would be both a positive development for Bolivia and useful to the U.S. as well. I think it is also worth noting that it was the two women Presidents, of Argentina and Chile, that initiated the high level peace effort.

Testimonies from the Pando Massacre

Bolivian news outlets have begun to publish the wrenching testimonies of survivors and witnesses from the campesino massacres in Pando last week. The on-line publication Ukhampacha Bolivia has translated a number of these as reported by Radio Erbol. Here is one excerpt:

Vanesa Yubacero, a campesino, recounts the ambush she fell victim to, her voice at times broken by tears: “I was coming from the Nuevo Triunfo community, we arrived within five meters of the Puente Pozo bridge, and we were there when dawn came, and they told us that we should go back and they followed us… We continued moving forward and the police detained us, we waited but no one gave us water, they surrounded us without giving us any time, and they shot the children, they died just like that, with bullets in their hearts, how those children cried, facing those machine guns."

U.S. Orders Peace Corps Out of Bolivia, Evacuates Families

On Monday the U.S. government announced that it had temporarily suspended the Peace Corps program in Bolivia and evacuated all Peace Corps volunteers out of the country, to Lima, Peru. In the same communication the U.S. Embassy announced that it is offering the families of Embassy staff and all "non-emergency personnel" passage out of the country. It has also announced that it is offering some flights out of Bolivia to other U.S. citizens who wish to leave (they still don’t let you take your dogs) and have encouraged those who can to leave and those planning to come to stay home.

The question we are frequently asked when the U.S. issues such communications is, "What do they know?" While no one can state for sure what might happen here in the next few weeks, my sense is that the Embassy's caution is more about the past than the future. In October 2003 during the crisis leading to President Gonzalo Sanchez de Lozada's resignation, the Embassy did not evacuate and found its staff stranded in La Paz after the airport there was closed and the main roads in and out of the city blockaded. Since then the Embassy has erred on the side of caution, including its evacuation of DEA families and others in 2005 following the resignation of President Carlos Mesa, when the country had already returned to calm. I am not criticizing the Embassy, it is doing its job. This is just some additional analysis as people evaluate their choices.

Tens of Thousands March in Buenos Aires to Support Morales

As the continent's Presidents met in Chile and with more reports surfacing of massacres against Morales backers, the streets of downtown Buenos Aires filled with at least 20,000 people Monday afternoon, proclaiming their support for Bolivia's President (photo above by The Democracy Center's Melissa Draper). Many held aloft banners reading "30,000 Reasons Why," referring to the estimated number of disappeared and killed during this country's "Dirty War" era of repression in the late 1970s and early 1980s. The march was a reminder of how fresh those memories still remain in Argentina and the dangers that many people across Latin America see being repeated in the opposition violence in Bolivia the past week.

A Pair of Clarifications

We have had two readers write to us asking for clarifications from our special report and we are happy to post those here.

First, in our post I reported that U.S. House Member Eliot Engel, a Democrat, had joined Republican Dan Burton to call for an end to the APTDEA trade agreement between the U.S. and Bolivia. This was how the story was reported in the Bolivian media. Congressman Engel's office e-mailed me with this clarification:

Cong. Eliot Engel has called for reviewing American aid and trade programs with Bolivia. He did not withdraw his support for trade but said the actions of the Bolivian government have made it difficult to support the Andean trade agreement in Congress.

Second, regarding the scandal earlier this year over U.S. Embassy pressure on Fulbright Scholars and Peace Corps volunteers to provide it with intelligence on Cubans and Venezuelans in the country, I wrote, "Again [Ambassador] Goldberg tried to downplay the incident as an innocent error." A Peace Corps staff member wrote us, "This was indeed a mistake made by an embassy official about which the Ambassador was very angry."

The Ambassador may well have been extremely angry in public, and with good cause, but all the public statements were far more muted. As ABC News reported at the time:


"The U.S. Embassy in La Paz acknowledges the July incident, having received complaints from Peace Corps staff last year about the matter. But both the embassy and the State Department claim it was "an error," emphasizing that it should not have been interpreted as a request for U.S. citizens to spy."

We hope that clarifies both points.

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