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Our Field of Dreams ? May Government Do the Leveling?

By Eric L. Lipman

In an interesting term-ending opinion issued on Thursday, the U.S. Supreme Court struck down a portion of the Bi-Partisan Campaign Reform Act. The Court set aside the so-called "Millionaire?s Amendment;" a provision that adjusted both contribution and coordinated party expenditure limits in those federal races in which a candidate contributes more than $350,000 of personal funds to his or her own campaign.

In setting aside this provision as violative of the First Amendment, a 5-4 majority of the Court declared that preventing corruption or the appearance of corruption were the only legitimate and compelling government interests ?thus far identified for restricting campaign finances.? Therefore, because Congress' interest in ?leveling the playing field? among candidates of different personal wealth was not a compelling interest of government, Congress could not burden fundraising activities that are protected by the First Amendment.

As I am always reading with such decisions with an eye to how they might impact events here in Minnesota, I noted two items: First, the Court majority cites approvingly the famous Eighth Circuit case from Minnesota, Day v. Holahan. The case is cited for the proposition that adjusting a candidate?s expenditure limits and eligibility for public funds based upon independent expenditures against her candidacy, was a burden to the speech of those making the independent expenditures. The vibrancy of this case has waxed and waned over the 14 years since it was handed down by the Eighth Circuit ? as U.S. Supreme Court jurisprudence above it has moved ? and so its resurgence in the opinion on Thursday was certainly noteworthy.

Second, and much more importantly, a key feature of the October 2007 Report of the Ad Hoc Advisory Committee to Review the Minnesota Code of Judicial Conduct seems to be even more doubtful and frail following the issuance of the decision on Thursday. As readers of these pages will recall, the Ad Hoc Advisory Committee has recommended that the Minnesota Supreme Court adopt an ethics rule restricting the time period within which candidates for judicial office may raise campaign funds. The Committee urges these restrictions so as to create a ?level playing field? among candidates for judicial office and to save incumbents from lengthy periods of fundraising. The Committee argues:

[The Committee's proposed] Rule 4.2(B) provides for a period of two years prior to the first applicable primary election for the candidate to engage in specified campaign activities. The committee discussed various time frames with a goal that judges should not be engaged perpetually in campaign activities during the term of office. The committee further recognized that a level playing field in terms of campaign restrictions is desirable for all candidates for judicial office. Two years appears to be reasonable.

To my mind, there is a big gap between the U.S. Supreme Court?s critique of government efforts to level electoral playing fields and the Ad Hoc Committee?s recommendation that this practice be extended with a round new state rules.

The High Court?s complete analysis in F.E.C. v. Davis is accessible here and the Ad Hoc Committee?s report is accessible here.

Full post as published by Within the Scope on June 29, 2008 (boomark / email).