Bench Memos

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Davis v. FEC: Alito’s Majority Opinion


While most eyes are focused on the Heller ruling, let’s take a quick look at the campaign-finance case (Davis v. FEC). 


Federal campaign-finance law generally provides the same restrictions on competitors for a seat in Congress and on their authorized committees:  Contributions from individuals to a candidate or his committee during a 2-year election cycle are subject to a cap (currently $2300); no individual may give aggregate contributions (aggregated, that is, across candidates and their committees) above a limit (currently $42,700); and no candidate may accept coordinated expenditures from national or state party committees above a certain limit.


Under the so-called “Millionaire’s Amendment” (section 319(a)) to the Bipartisan Campaign Reform Act, this whole scheme changes when a candidate expends his own personal funds in excess of $350,000.  At that point, the self-financing candidate remains subject to the limitations, but his opponent may receive individual contributions at triple the ordinary amount, may receive contributions from individuals who have reached the aggregate limit, and may receive unlimited coordinated party expenditures.


Noting that the Court has “never upheld the constitutionality of a law that imposes different contribution limits for candidates who are competing against each other,” Justice Alito’s majority opinion holds that the Millionaire’s Amendment impermissibly burdens the First Amendment rights of candidates to spend their own money for campaign speech.  Drawing on the Court’s “emphasis [in its 1976 ruling in Buckley v. Valeo] on the fundamental nature of the right to spend personal funds for campaign speech,” Alito finds that section 319(a) “imposes an unprecedented penalty on any candidate who robustly exercises that First Amendment right.”  That penalty cannot stand unless it is “justified by a compelling state interest,” and Alito finds no such interest.  In particular, relying on Buckley, he rejects the argument that there is a compelling state interest in “level[ing] electoral opportunities.”  Indeed, that argument “has ominous implications because it would permit Congress to arrogate the voters’ authority to evaluate the strengths of candidates competing for office.”


In a follow-up post, I will address Justice Stevens’s dissent.

Tags: Whelan


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