On June 26, the U.S. Supreme Court ruled part of the McCain-Feingold campaign finance law unconstitutional. Davis v Federal Election Commission, 07-320. The vote was 5-4. Here is the opinion.

This case concerned the “Millionaire’s Amendment”, which relaxes contribution limits for any congressional candidate who has a wealthy opponent. Specifically, if any congressional candidate spends at least $350,000 of his or her own funds on the campaign, then the opponents of that candidate are released from the $2,300 limit on contributions to their campaign. The majority opinion, by Justice Samuel Alito, says that the Constitution does not permit the government to set unequal contribution limits. The opinion’s key sentence, on page 16 of the majority opinion, says, “It is a dangerous business for Congress to use the election laws to influence the voters’ choices.” Also, on page 18, “The unprecedented step of imposing different contribution and coordinated party expenditure limits on candidates vying for the same seat is antithetical to the First Amendment.”

This language should make it easier to win lawsuits against state public funding laws which set unequal rewards for some candidates, relative to other candidates. Public funding laws in Maine, Arizona, and New Mexico, treat all candidates exactly the same. The public funding that formerly existed in Massachusetts also treated all candidates equally. But public funding laws in Connecticut and New Jersey, and a pending bill in California, do not treat all candidates the same; qualifications to get public funding are easier for Republicans and Democrats than for other candidates.

Justice Stevens dissented, and said that the 1976 U.S. Supreme Court decision Buckley v Valeo was mistaken when it struck down limits on campaign expenditures. He expressed the view that too much campaign advertising “obscures the issues.” He also said that “the Constitution does not require Congress to treat all declared candidates the same.” This contradicts his opinion in Cook v Gralike, 531 U.S. 510 (2001). In that opinion, he said states may not “favor or disfavor a class of candidates.” That decision struck down a Missouri state law that provided that candidates for Congress should have labels on the ballot that said what their position is, on amending the U.S. Constitution to provide for term limits for Congress.

Justices David Souter, Ruth Ginsburg, and Stephen Breyer voted that the Millionaires’ Amendment is constitutional, but they didn’t join the portion of Justice Stevens’ dissent that said Buckley v Valeo should be overturned.

As I see it the entire McCain-Feingold law is antithetical to the 1st.