Supreme Court considers the ‘millionaire’s amendment’

Life can be unfair, even for wealthy candidates who can run for public office without asking others for money, the Supreme Court was told Tuesday.

Lawyers for a New York industrialist who aspires to win a seat in Congress said his rights were violated by a little-known provision in the McCain-Feingold campaign finance law, not because it limited how much he could spend, but because it allowed his opponent to raise more money.

In the past, the court has said candidates have a free-speech right to spend as much as they choose to seek office. This in turn has encouraged many wealthy individuals to run for office.

In response, Congress moved to level the playing field in these races. In House contests, for example, candidates facing opponents who spend more than $350,000 of their own money may accept higher contributions than normally would be allowed. If, for example, contributions are limited to $2,300 per donor per race, this special provision would allow donors to give three times that amount, or $6,900.

On Tuesday, lawyers tried, without apparent success, to persuade the court that the so-called millionaire’s amendment was unconstitutional.

Jack Davis, a New York Democrat who spent more than $3 million in losing races in 2004 and 2006, said the law violated his rights to free speech and equal protection of the law.

His opponent, incumbent Rep. Thomas M. Reynolds (R-N.Y.), spent even more but did not take advantage of the special rule that would have allowed him to accept larger contributions.

Nonetheless, Davis went to court to challenge the law as unconstitutional.

His lawyer argued he could have been penalized for funding his own candidacy.

Chief Justice John G. Roberts Jr. disagreed. “There is no restriction whatsoever on the wealthier candidate. He can spend as much of his money as he wants,” he said.

Andrew Herman, Davis’ lawyer, countered that the special rule was unfair to “the self-financed candidate” because it said “we are going to make it easier for your opponent to beat you.” If left standing, the rule will deter candidates from funding their own campaigns, he said.

“It clearly didn’t deter your client,” replied Justice David H. Souter.

Justices Antonin Scalia and Anthony M. Kennedy indicated they agreed with Davis’ claim. Both have voted in the past to strike down campaign funding laws on free-speech grounds, and both said they were troubled by the millionaire’s amendment.

Scalia questioned whether it was a “proper function of government to look out over there and say, ‘We’re going to even the playing field in this election.’ What if one candidate is more eloquent than the other one? You make him talk with pebbles in his mouth or what?”

The court will rule on Davis vs. Federal Election Commission by late June. If the millionaire’s amendment is struck down, it could give some wealthy candidates a boost in the fall campaign because their opponents would have to abide by the current limits on contributions.

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david.savage@latimes.com