No Fair Play for Millionaires? McCain-Feingold's Wealthy Candidate Restrictions and the First Amendment

Abstract

In 2002, Congress passed and President George W. Bush signed the first comprehensive changes to federal campaign finance law since 1974.' The new law, the Bipartisan Campaign Reform Act of 2002 (BCRA), better known as McCain-Feingold, included a provision to deal with the so-called Loophole, which allows wealthy candidates to spend unlimited personal funds on their own campaigns, without regard for contribution restrictions or voluntary spending limits.' BCRA's Millionaire Provision represents a new attempt to solve an old dilemma. Over thirty years ago, the Federal Election Campaign Act of 1971 (FECA)3 attempted to address the same problem: candidates willing to spend their own money liberally to ensure victory. FECA prohibited candidates from spending personal funds in excess of statutory limits.' This prohibition, however, did not survive the Supreme Court's seminal campaign finance decision, Buckley v Valeo,' which held that restrictions on campaign spending violated the First Amendment.6 The Supreme Court's decision in Buckley governs all aspects of federal elections, including a self-funded candidate's right to spend her own funds in pursuit of federal office. By invalidating limits on selffunding while generally upholding contribution limits, Buckley created