But the specific argument against the Millionaires'
Amendment risks undercutting conservatives' case against campaign-finance
restrictions in general, which maintains that speech is not zero-sum: Candidates
should be permitted to raise and spend unlimited amounts of money because doing
so doesn't interfere with their opponents' rights to convey their own messages
to the public. In this case, however, those siding with Davis contend that, in the context of a
political campaign, speech is
zero-sum. Letting the poorer candidate raise more money limits the richer one’s
freedom to speak. As Davis
argued in his brief
for the Court, "to the extent that Section 319 ... enhances her opponent's
campaign, the self-financed candidate's political speech is impaired."
Solicitor General Paul Clement, in arguing the case for the
FEC, described that assertion as "an odd sort of First Amendment
claim." It has a number of troubling implications. For one, it would cast
a pall on the constitutionality of the presidential public finance system, as
well as similar systems for some state-level offices, which provide public
money to candidates who agree to abide by spending limits and forgo private
financing. By Davis'
logic, these rules would seem to unconstitutionally burden the free-speech
rights of their opponents, though his lawyers claim otherwise.
This points toward the larger political landmine
conservatives are tiptoeing around by supporting Davis' suit. If speech in the context of
political campaigns is really zero-sum after all, we have far greater problems
than the one Davis
brought before the Court. Davis'
supporters are trying to have it two ways, by arguing both that the benefit
available to candidate Richie Rich's
opponent impinges on Richie’s free speech, and also that when Richie outspends
his opponent 20-to-1, that opponent’s free speech isn’t impinged at all. Any
notion of leveling the playing field in political campaigns--even if no limits are
placed on any candidate's expenditures--would go out the window. Ultimately, the
premise that citizens (potential candidates all) enjoy genuine political
equality would be called into question, as would the fundamental bargain
underlying a liberal society: that the exercise of your basic rights doesn't intrude
upon mine.