THE BLOG
07/11/2008 05:12 am ET Updated May 25, 2011

The Millionaire's Amendment

The power of wealth in the political process was endorsed last week by the Supreme Court. Its decision to strike down the "Millionaire's Amendment" to the Bipartisan Campaign Finance Act (BCRA) was all but overlooked because of the media's attention to the Court's DC handgun
decision. But the majority opinion, written by Justice Samuel Alito in the case known as Davis v. Federal Election Commission, may have even more profound long-term consequences than the overthrow of Washington's gun law.

This decision was handed down hard on the heels of Senator Obama's rejecting public funds in the general election. It is the latest evidence of what looks like a disturbing trend reinforcing the pervasive role of big money in American political life.

The provision ruled unconstitutional by the Court was designed to prevent a "millionaire" -- someone who spent more than $350,000 of his or her personal funds -- from buying an election with personal funds. Under the Amendment's terms, limits on campaign donations had been relaxed for a candidate facing a "millionaire" opponent who had contributed more than a specified amount to his or her own campaign. The intent was to reduce the political advantage of personal wealth.

Admittedly, the Millionaire's Amendment, as written, was constitutionally flawed. It raised contribution limits for a millionaire's opponents but not for the millionaire, thereby establishing a double standard: self-funded candidates were faced with more demanding contribution restrictions than donation-funded candidates. The Court rejected this mechanism. Its view was that the double standard effectively violated the First Amendment because it conferred an unfair "fundraising advantage for opponents in the competitive context of electoral politics."

The Court was right to reject different contribution limits for competing candidates. It would not take much to turn such a provision to partisan advantage. But unfortunately, the Court did not stop there. The 5-4 majority opinion went beyond the question of differing contribution rules. It used the occasion to question whether any form of a Millionaire's Amendment would be constitutionally acceptable, strongly hinting that it would not be.

The majority actually argued -- contrary to a vast amount of scholarship and common sense -- that wealth was not important politically. "Different candidates have different strengths," Writing for the majority, Justice Alito claimed that wealth is on a par with having "the benefit of a well-known family name" or being a celebrity.

This trivializes the role of wealth in politics. The fact of the matter is that it takes vast amounts of money to become a successful candidate. Virtually no one can be elected to office without either being rich or having access to wealthy donors. Funders exercise substantial leverage in determining political outcomes.

The fundamental question here is whether a commitment to democracy requires that the political system be designed to maximize political equality. Should the Mayor of New York or the Governor of New Jersey be able to overwhelm their opponents with vast personal fortunes?

Alito in effect says, "yes." Indeed, he comes very close to saying that it is impermissible for the Congress to make rules to achieve the kind of electoral equality that BCRA sought. In his words, Congress should refrain from "making judgments" about the extent to which factors such as private financing should be permitted to influence the electoral process. "It is a dangerous business," he writes, "for Congress to use the election laws to influence the voters' choices."

But it is just as dangerous to abandon rules to limit the influence private wealth on elections as it is to over-reach in the opposite direction, as the Millionaire's Amendment did. All election systems require rules and legal limits; those rules cannot help but influence political outcomes. But the absence of regulations restricting wealthy, self-financing candidates undermines democracy. The Court's ruling in effect affirms the power of the rich.

This is a worrisome sign. The tone of the opinion suggests that even if the double standard problem had been corrected, the Court would have found a reason to rule against the Millionaire's Amendment. If this is an indication of how this Court will rule on the influence of big money on elections, it points to a formidable barrier to strengthening our democracy.

Jay Mandle is the author of Democracy, America, and the Age of Globalization