. . . And Davis, Too

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The New York Sun

The freedom expressly given in the Second Amendment isn’t the only right New Yorkers may, thanks to the Supreme Court’s work last week, have the opportunity to reclaim. The Court’s decision in Davis v. Federal Election Commission, struck a blow for political free speech, a right that, despite the First Amendment, New Yorkers are presently inhibited from exercising at both the federal and local level.

What the Court ruled in Davis is that the so-called “Millionaire’s Amendment” to the McCain-Feingold Bill is unconstitutional. The amendment effectively punished wealthy candidates for spending their own money by changing the rules for their opponents, allowing them to raise more money from political parties and private donors than is ordinarily allowed under McCain-Feingold. While the Court ruled against only this particular amendment to McCain-Feingold, the bold language in the majority opinion, written by Justice Alito, ensures that the decision will have implications for all burdensome campaign regulation.

“Leveling electoral opportunities,” Justice Alito wrote, “means making and implementing judgments about which strengths should be permitted to contribute to the outcome of an election. The Constitution, however, confers upon voters, not Congress, the power to choose the Members of the House of Representatives, and it is a dangerous business for Congress to use the election laws to influence the voters’ choices.”

We called James Bopp, lead counsel in a lawsuit against New York City’s Campaign Finance Board, to see if he thought the Court’s ruling would have any bearing on his case. Mr. Bopp was struck by the question. He’d been working on other cases, and hadn’t yet considered it, but yes, he said, the Court’s ruling on Davis “has direct applicability to our case.”

In Davis, Mr. Bopp said, the Court “disapproved of discriminatory contribution limits.” The rules imposed by New York’s Campaign Finance Board have precisely this effect. The Board places severe campaign contribution limits on personal or organizational donors that fit under a broad definition of “having business dealings with the city.” A regular contributor, for instance, can donate up to $4,500 to a candidate for mayor; a contributor defined as having a business interest with the city has his rights restricted and can only donate $400.

Meanwhile, the Campaign Finance Board exempts unions and other associations from the lower, business-interest limits, even when these entities have a clear business interest with the city. The reason for the exemption is purely ideological, to put it politely, or political, to put it plainly. The Board is essentially saying that contributions from labor unions are more to its liking than those from business interests. Furthermore, campaign contributions from unions can be matched with public funds; business-interests contributions, as defined by the Board, are unmatchable.

So the New York City government is meddling in the city’s electoral process in a way that is astounding in light of Davis v. FEC. New York’s campaign finance rules directly benefit candidates favored by unions, thereby disadvantaging those supported by certain businesses or entrepreneurs. Even worse, taxpayer money is confiscated to subsidize certain candidates in accordance with these ideologically tilted rules.

***

How New York’s politicians will respond to the Court’s ruling remains unclear. Mayor Bloomberg was a fierce critic of the city’s campaign financing system when he first ran for office, calling it an “incumbent protection program.” And as a millionaire many times over, one would think he would be on the barricades in defense of his own rights. Yet the mayor has tightened the very regulatory system he once opposed, signing new campaign finance legislation as recently as July. It would be nice to think that the Supreme Court’s decision in Davis will persuade the mayor to return to his earlier view. And not only the mayor. This is a moment of truth for all politicians, local and national. Legislation, written and passed by those occupying public office and curtailing the free speech of those seeking public office, is inherently unconstitutional. Such legislation will always serve, as Mr. Bloomberg once put it, as an “incumbent protection program.” Now that the Supreme Court has been spoken, we look forward to the adjustments that will logically come in New York as well as the rest of the nation.


The New York Sun

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