Supreme Court Reviews "Millionaire's Amendment"

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Washington - Chief Justice John Roberts, author of last year's decision striking down a campaign finance measure, could play the pivotal role in the Supreme Court's consideration of a law that allows candidates to receive larger contributions when their wealthy opponents spend heavily from their personal fortunes.

The court heard arguments Tuesday about the "millionaire's amendment" that kicks in to help candidates stay financially competitive against wealthy opponents.

It is being challenged by Jack Davis, a New York Democrat who has so far spent nearly $4 million of his own money in two losing campaigns for Congress and says he will spend another $3 million this year.

Davis says the law unfairly rewards his opponents by allowing them to exceed campaign fundraising limits simply because Davis has chosen to dip into his personal funds.

Andrew Herman, Davis' lawyer, told the court Tuesday that the law, in effect, says "we're going to make it easier for your opponent to beat you." Davis claims the provision unfairly protects incumbents who can easily tap campaign contributors for larger donations.

Roberts voiced some skepticism about the measure Tuesday, but he sounded far less hostile to the law than in his opinion a year ago that ruled unconstitutional the limits Congress placed on corporate- and union-financed television ads.

"There is no restriction whatsoever on the wealthy candidate. He can spend as much of his money as he wants," Roberts said.

While it seemed probable that the other justices would align the way they did in last year's 5-4 decision - split along ideological grounds - a shift by Roberts could allow the law to be upheld.

A decision is expected by late June, and could affect campaigns for Congress this year. "If the statute is declared unconstitutional, the ability of candidates to obtain stepped-up contributions will be ended," said Michael Toner, former chairman of the Federal Election Commission. Toner said it is hard to predict how the decision would affect specific races.

The millionaire's amendment is part of the 2002 campaign finance law, but has come into play in relatively few races. Its most prominent beneficiary so far has been Sen. Barack Obama, who was able to attract additional contributions for his Democratic senatorial primary campaign in Illinois because an opponent spent nearly $29 million of his own money.

Davis lost in 2004 and 2006 to Republican Rep. Tom Reynolds, who spent more than $5 million in winning re-election two years ago 51 percent to 49 percent.

Reynolds chose not to solicit increased contributions after Davis triggered the millionaire's amendment by putting at least $350,000 of his own money into the race. Reynolds could have received $6,900 from individual donors, triple the limit otherwise. Reynolds is retiring at the end of this term.

Roberts' conservative colleagues questioned the law's validity to varying degrees.

Justice Antonin Scalia said he is "deeply suspicious" of the provision. "Do you think we should trust our incumbent senators and representatives to level the playing field for us?" he said.

Justice Samuel Alito said he found it hard to reconcile the higher contribution limits with the law's goal of reducing corrupting influences in politics. "How is it that...Congress doesn't think there is a serious corruption problem when this statute kicks in and somebody gives $6,900 to a candidate?" Alito asked.

Justice Anthony Kennedy said he was troubled by the part of the law that allows a political party to spend more money to help a candidate facing a wealthy opponent, while the party of the wealthy candidate must abide by stricter limits.

"It puts this court, it puts this statute, in the position of preferring one kind of speech over another. And we simply do not do that," Kennedy said.

Solicitor General Paul Clement, representing the FEC, said there may have been just one campaign in which a political party took advantage of the limits being removed.

The court's liberal justices, who dissented from last year's ruling, seemed more favorably inclined toward the millionaire's amendment.

Reacting to Herman's contention that the law makes it less likely that candidates will finance their own campaigns, Justice David Souter said, "It didn't deter your client. There is no indication that it would deter anybody else and I have to say I don't see why it would."

The case is Davis v. Federal Election Commission, 07-320.