an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Who Thinks the Millionaire’s Amendment Was Incumbent Protecting? Those Who Voted For It.
In response to my last post, one commentor, Jeff, quite fairly asks why the Millionaire’s Amendment (MA) should be seen as an incumbent-protecting provision smuggled into the McCain-Feingold law. After all, don’t challengers running against wealthy, self-financed incumbents have just as much a right to the higher contribution limits as do incumbents running against wealthy, self-financed challengers?
There are lots of ways to try to show this. As another commentor, Jack White Jr., points out, one could look to the process by which the MA made it into law: the provision was added in a low-visibility floor debate and was not part of the general campaign-finance legislation that was the focus of national attention. But better yet, let’s look at a few comments from the Senators themselves. It was Senator McCain himself who directly expressed the point my post made, although the Senator did not seem to recognize how much his comment undermined the provision. When the MA was pending, McCain said: "Everyone is scared to death of waking up in the morning and reading in the newspaper that some Fortune 500 CEO or some heir or heiress is gonna run against them and spend $15 million of their own money."
And other Senators, otherwise supportive of the McCain-Feingold Act, themselves called the MA incumbent protection. Here is what Sen. Dodd said on the floor: "[T]his is what I would call incumbency protection... I understand the concern my colleagues ... have about facing the wealthy opponent. But ... it looks to me as though all we are doing is trying to protect ourselves rather than to level that playing field."
Even wealthy incumbents do not have to do much self-financing once they are in office. They have access to plenty of donors. Moreover, under parts of the MA the Court did not talk about directly, the formula used counts at almost zero those funds raised in prior election cycles. Thus, the plaintiff Davis's opponent, Tom Reynolds, could have spent another $1.4 million even though he outspent Davis by over $3 million, and he'd entered the election with $1.15 million in warchest from prior cycles.). I could add more, but for now I hope that’s enough to respond to Jeff’s good question. My thanks to Professor Roy Schotland, who provided some of the specifics here through a post to an election law discussion list. Posted
by Guest Blogger [link]
Thanks for addressing this question. I think my perception of self-financing candidates may be biased by my own experiences living in the Northeast where both Governor Corzine and Mayor Bloomberg have largely relied on self-financed campaigns to get elected and re-elected and in neither case used their personal fortunes to defeat an incumbent.