One of the more pernicious if deeply entrenched constitutional doctrines in this country is the idea that spending money on political campaigns is inherently an exercise of first amendment free speech rights whose regulation requires the strictest judicial scrutiny. It’s why we do not have any effective national system for campaign finance limitations, and indirectly why at any given time about half the country thinks our politicians have been bought and sold for campaign contributions. Most fundamentally, self-funding candidates can pretty much do whatever they want, and despite the hard economic times, we are seeing self-funders arise this year in extraordinary numbers, particularly on the GOP side of the battlelines.
Unfortunately, the U.S. Supreme Court seems determined to undo every effort to provide candidates who face self-funders with anything like an equalizer. In 2007, in Davis v.F.E.C., a 5-4 majority of the Court struck down the so-called “Millionaire’s Amendment” to the Feingold-McCain campaign finance law on grounds, basically, that it discriminated against millionaires by allowing the opponents of self-funders higher contribution and spending limits.
By the same dubious logic, as National Journal‘s Eliza Newlin Carney explains, the Court may be about to strike down “equalizer” provisions in six state public financing systems (Arizona, Connecticut, Maine, New Mexico, North Carolina and Wisconsin). In a case involving Arizona, the Court has issued a stay on the collection of “extra” public money from candidates facing self-funders until it can hear a constitutional challege to the system. Given the Davis precedent, campaign reform advocates are bracing for a bad result.