The Cato Institute argues that the millionaires’ amendment is unconstitutional

The Cato Institute held a briefing today on “What to do about Self-Funded Campaigns?” to discuss the Supreme Court case Davis v. FEC. The Cato Institute’s argument is that Section 319 of the Bipartisan Campaign Finance Reform Act of 2002, also known as the millionaires’ amendment, is unconstitutional.

Ilya Shapiro, senior fellow of the Center for Constitutional Studies and editor in chief of the Cato Supreme Court Review, said that the amendment gives an advantage to opponents running against candidates for the House of Representatives that plan to use more than $350,000 of their own money. He said the same rule applies for the Senate, but with different dollar amounts. Shapiro said the amendment acts as incumbency protection, since the advantage given to the opponent, which is usually the incumbent, increases the amount of contributions they can receive and no longer limits coordinated party expenditures.

Shapiro said Section 319 was only concerned with preventing people from “buying” seats in Congress, but does not include the advantages and resources incumbents already have. The amendment also requires candidates to declare within 24 hours if they are going to spend more than $350,000, which he said puts them at a strategic disadvantage.

Shapiro said that for this amendment does not have compelling government interest, and that it infringes on the First Amendment. He said the Supreme Court has allowed other provisions of McCain-Feingold law that infringed on the First Amendment, but that these provisions had compelling government interest.

John Samples, director of the Center for Representative Government at the Cato Institute, said it is difficult to generalize the impact of McCain-Feingold after only two election cycles. He also said self-funded candidates usually do not do well, which has proven that you can’t just “buy” a seat in Congress.