Balkinization: Who Thinks the Millionaire’s Amendment Was Incumbent Protecting? Those Who Voted For It.

Who Thinks the Millionaire’s Amendment Was Incumbent Protecting? Those Who Voted For It.

Guest Blogger

Rick Pildes

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 3:55 PM by Guest Blogger [link]