The Supreme Court's Fat Cat Decision Is OK - Page 3

Under Section 319 of the Act, when a candidate spends more than $350,000 in personal funds, his opponent may qualify to receive both larger individual contributions than would otherwise be allowed and unlimited coordinated party expenditures. Moreover, Section 319(b) includes substantial rather burdensome and disparate reporting requirements, and failure to comply with them is subject to criminal prosecution.

Perhaps the main point made by the Court in failing to find the necessary public interest in infringing upon the First Amendment is as follows:

Different candidates have different strengths. Some are wealthy; others have wealthy supporters who are willing to make large contributions. Some are celebrities; some have the benefit of a well-known family name. Leveling electoral opportunities 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, Art. I, §2, and it is a dangerous business for Congress to use the election laws to influence the voters' choices.

Here, I think the Court got it right. If Winfred Megabucks III, a Rich Fat Cat (and therefore, of course, a despicable person) with no public name recognition and no membership in the Established Elite Politician's Club, decides to run against a Kennedy or even a Clinton, and cares enough about it to spend his own money, he should not be unduly impeded in his efforts. The electorate can reject him simply because he has too damn much money, or because his views are unpopular, or for whatever reason they choose. And that, in essence is what the Davis Court held.

Mr. Justice Stevens wrote a dissenting opinion, in which Justices Souter, Ginsburg, and Breyer concurred in part and dissented in part. Mr. Justice Steven's dissent should, but does not, evoke Diana Moon Glampers, the title character in the play,The Handicapper General, by Kurt Vonnegut and Pat Cook. People who have too much money and are prepared to spend it to get elected to public office should be handicapped, just as a ballet dancer who can jump higher and more beautifully than a ballet dancer who is less talented should have weights attached to his legs to promote equality. Mr. Justice Stevens laments the "purchase by the wealthiest bidder" of elected office. That is surely something about which to complain, and if votes were for sale to the highest bidder, we would all be in serious trouble. Although the electorate may indeed be stupid, it is not that stupid; if it is, I guess we deserve what we get. One hopes that the electorate listens to campaign speeches and commercials, and at least tries to make a reasoned judgment on the merits. This may not be true, but one can always hope that it is. If it is not, no law can reasonably be expected to make it so.

Article Author: Dan Miller

Dan was graduated from Yale University in 1963 and from the University of Virginia School of Law in 1966. He practiced law in Washington, D.C., retiring in 1996 to sail with his wife in the Caribbean. They settled in a rural area in Panama in 2001. …

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