Another Provision of the Incumbent Protection Act Falls

On Thursday, the same day it upheld the Second Amendment right to keep and bear arms, the Supreme Court upheld the First Amendment right to freedom of speech by rejecting one of the most blatantly self-serving provisions of the McCain-Feingold campaign finance law. The same legislators who did not like being criticized on radio and TV close to elections also were dismayed by the prospect that their huge electoral advantages as incumbents might be overcome by wealthy challengers freely spending their own money. Hence Congress decreed that in such races the less wealthy candidate would be allowed to collect three times the standard limit from each contributor, although his opponent would still be bound by the usual rules.

Without speculating about the motivation for such decidedly unevenhanded treatment, the Court ruled that it violates the First Amendment. "We have never upheld the constitutionality of a law that imposes different contribution limits for candidates who are competing against each other," Justice Samuel Alito wrote for the majority. Under "millionaire's amendment" to the Bipartisan Campaign Reform Act, he noted, candidates who want to spend their own money on their own campaigns must "choose between the First Amendment right to engage in unfettered political speech and subjection to discriminatory fund-raising limitations."

This burden, Alito added, "is not justified by any governmental interest in eliminating corruption or the perception of corruption," the rationale the Court has cited in upholding campaign contribution limits. Instead the government argued that "asymmetrical limits are justified because they would 'level electoral opportunities for candidates of different personal wealth.'" Alito found this rationale troubling: 

The argument that a candidate's speech may be restricted in order to "level electoral opportunities" has ominous implications because it would permit Congress to arrogate the voters' authority to evaluate the strengths of candidates competing for office….Different candidates have different strengths. Some are wealthy; others have wealthy supporters who are willing to make large contributions. Some are celebrities; some have the benefit of a well-known family name. Leveling electoral opportunities means making and implementing judgments about which strengths should be permitted to contribute to the outcome of an election. The Constitution, however, confers upon voters, not Congress, the power to choose the Members of the House of Representatives.