When money is speech, speech is no longer free

Building atop the rotten foundation it laid three decades ago, the Supreme Court late last month struck down the "millionaire's amendment," a federal law that helped keep congressional elections competitive when a candidate used a personal fortune to fund a campaign. The law could have applied to 28 or more races this year.

The court's ruling in Federal Election Commission v. Davis repeatedly references its 1976 Buckley v. Valeo decision, which wrote between the lines of the First Amendment passage, "Congress shall make no law ... abridging the freedom of speech," to declare that spending money to influence elections is constitutionally protected free speech. Since then, the justices have struck down numerous laws designed to limit the power of money over election outcomes.

What's shocking about the Davis opinion, however, is that the law in question - the 2002 "millionaire's amendment" to the Bipartisan Campaign Reform Act - made no attempt to limit spending or communication. To the contrary, that amendment to the bill, known as McCain-Feingold, merely enabled a candidate competing against a free-spending multimillionaire to raise more money. According to the court's previous rulings, this simply enabled more "speech."

The amendment allowed a House candidate whose opponent spent $350,000 or more in personal funds to accept up to three times the current $2,300-per-donor limit (but only until such contributions equaled the self-funding candidate's). Thresholds for U.S. Senate races varied based on state population.

Writing the 5-4 majority opinion, Justice Samuel A. Alito Jr. said, "Different candidates have different strengths. Some are wealthy; others have wealthy supporters who are willing to make large contributions. Some are celebrities." The trouble is, those advantages tend to accrue to the same individuals - not "different candidates."

Justice Alito strangely argued that helping all serious candidates be heard would prevent voters from independently evaluating their choices. He added, "The argument that a candidate's speech may be restricted in order to level electoral opportunity has ominous implications."

What restriction of speech? The amendment's sole effect was to help prevent the candidate with the loudest amplification from drowning out all other voices.