Who Wants to Face a Millionaire?

An unintended consequence of campaign finance restrictions has been the rise of the millionaire candidate. In Shays-Meehan, reformers have attempted to solve the unfair advantage filthy rich candidates enjoy over ordinary souls by allowing increased contributions to candidates facing free-spending rich opponents. In races involving two ordinary candidates, the contribution limit would be $2,000 per election. But a Senate candidate facing a full-bore millionaire challenge could take up to $12,000 per donor per election. A House candidate could take up to $6,000 per donor per election.

Supporters of this amendment spoke passionately about the “millionaire peril.” Apparently, this amendment is required so worthy candidates of modest means can match the spending power of the Perot, Forbes, Huffington and Corzine-esque juggernauts of the day. More than one Member in debate noted that the amendment would “level the playing field” in such elections. (Nevermind for the moment that while congressional candidate John Doe is desperately trying to find dozens of dozens of $6,000 donors for his race, Mr. Moneybags, who doesn’t need to do any fundraising, is out at rallies in the precincts.)

There is good reason to think that this proposal won’t pass a constitutional challenge intact. That may seem odd, since it loosens the present contribution limits. But the cases in this area have long held that the only permissible purpose served by a contribution limit is to prevent corruption or the appearance of corruption. “Leveling” the field is specifically rejected by courts as a permissible purpose.

It is difficult to see how an anti-corruption rationale could be created post hoc for this regulation. If a $6,000 or $12,000 donor doesn’t corrupt a candidate when he faces the race of his life against Mr. Moneybags, it won’t ever corrupt him. He should therefore be able to accept a contribution of that size in any race, and opponents should be able to, also. The rationale for any lower limit falls apart.

By larding the Congressional Record with pleas of fairness, Members may have gotten more than they bargained for. If a legal challenge goes the way the cases indicate it should, the only defensible limit becomes the maximum limit. Goodbye lower limits, and good riddance.

Allison R. Hayward is an attorney in California and an Adjunct Fellow of the Ashbrook Center for Public Affairs.