Riches, elections and free speech

Florida has two very rich guys competing for high office who are self-funding their campaigns. Neither one of them has held elective office before — not even dogcatcher, if that's still elected somewhere. Even so, they are trying to win top posts in the nation's fourth largest state. Republican Rick Scott wants to be governor. Jeff Greene, a Democrat, wants to be a United States senator. There is no better evidence that money animates politics — in the way that Frankenstein's monster was animated— than seeing complete unknowns transformed into viable statewide candidates simply by writing their own checks.

The problem for candidates who are not independently wealthy is that the game is somewhat rigged. They are held to strict dollar limits from outside contributors while very rich people have a First Amendment right to freely spend their own money. This anomaly exists because candidates who depend on donations are susceptible to being bought, or at least offer the appearance of corruption by accepting huge donations from a single source. But obviously you can't corrupt yourself.

So we have a hamstrung candidate who has to continuously raise money in small amounts challenged by one who simply digs in his own pocket. Not fair, right? What to do? The answer is public financing. States have various schemes, but under Florida law there is a match over a certain spending limit. For instance, Attorney General Bill McCollum, who is running in the Republican gubernatorial primary against Scott, is entitled to $1 in public funds for every dollar spent by Scott over a $24.9 million cap.

Scott, who was mired in a huge Medicare fraud scandal as CEO of a hospital chain, is saturating the airwaves, trying to wash away the dirt and introduce himself. By today his campaign expects to hit the cap, which means the state will soon give McCollum money every time Scott spends more of his own.

Scott doesn't like that. Normally, he'd be out of luck. Not so this election season: Enter the Roberts' Court.

One of the specialties of the Supreme Court since John Roberts became chief justice has been rewriting campaign finance laws. Two years ago, in a 5-4 ruling, the high court threw out the "millionaire's amendment" in the federal McCain-Feingold campaign finance law, a provision allowing congressional candidates to raise higher dollar amounts from donors after their opponents spent more than $350,000 of personal wealth on the campaign.

Of course, there's a difference between the Florida model of public financing beyond a spending cap and the millionaire's amendment that lets donors give more money to one candidate after a trigger point. But some of the reasoning of the court in Davis vs. FEC would seem to apply to both.

The court suggests that free speech is violated when a law dissuades rich candidates from spending their own money on campaign speech because it triggers a special benefit for their opponent. Such a sweeping view would devastate public financing laws that subsidize non-self-financing candidates.

Already the ruling is creating chaos during this year's primary elections. While Scott lost an injunction request against Florida's public financing scheme in federal court on Wednesday, he has already appealed. Meanwhile self-financed candidates around the country are meeting with success. Their lawsuits have interrupted the flow of public financing to opponents in Connecticut and Arizona.

But I don't think the First Amendment is injured under the public financing model. The dissent by Justice John Paul Stevens in Davis explains why. He wrote the millionaire's amendment "quiets no speech at all" and simply assists an opponent "in his attempts to make his voice heard" — an "amplification," Stevens said, that "in no way mutes the voice of the millionaire, who remains able to speak as loud and as long as he likes."

Public financing laws have been in place for a long time without being a bar to millionaires entering politics. Without those laws, millionaires gain an unfair advantage, reinforcing the notion that high office is the province of the rich, and putting another nail in democracy's coffin.

Riches, elections and free speech 07/16/10 [Last modified: Friday, July 16, 2010 8:22pm]

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