RACHEL MARTIN, host:
Thanks, Mark. You know, when I go back to Idaho, where I'm from, which is kind of trapped in a time warp in some ways, my mom seriously...
PESCA: As opposed to the Rocky Mountain time zone...
MARTIN: The inter-mountain - west - the Rocky Mountain time zone. My mother still goes through the drive through of the bank with that tubie thing that you send the check in through to the lady and she sends out lollipops.
PESCA: It's space-age technology.
MARTIN: It's pretty cool.
PESCA: It reminds me of what the astronauts used with their ice cream in the packets. I'd like to react to another story out of that newscast.
MARTIN: Please react, react.
PESCA: I will be personally reacting to this as I go home and clean out all my baby bottles. I don't know which ones have the, Mark, what was the name of that, B...?
MARK GARRISON: Just BPA. If you want to be overly scientific, you could say bisphenol-A, but...
PESCA: And also CDs and DVDs. So, I've got to get Milo not to eat any of those DVDs.
GARRISON: Give him an iPod. I mean, mp3s, apparently they apparently don't have it.
PESCA: Yeah. No, you know, it's one of those discussions where my wife always says, everything is going to kill him! And I say nothing is going to kill him, and it turns out...
MARTIN: It's probably somewhere in the middle.
PESCA: Yeah.
MARTIN: Some things...
PESCA: Can we say closer to me? I hope. All right. Well, let's go on to other legal matters. Is that a legal matter? Well, maybe there'll be a lawsuit rendered in the baby-bottle case. But right now we are going to talk about the highest court in the land, and if you've been following the Supreme Court, like we have here at the BPP, you know it's a busy session.
The court has heard arguments over everything from the rights of detainees at Guantanamo Bay, to lethal injections for death-row inmates, to photo-ID requirements for voters. Today the U.S. Supreme Court takes up yet another challenge to the Bipartisan Campaign Reform Act of 2002, which we call McCain-Feingold.
This time the case is over a provision called the Millionaires' Amendment, which triggers special rules when a congressional candidate spends more than 350,000 dollars in personal money. Here's NPR's legal affairs correspondent Nina Totenberg with a preview of that case.
NINA TOTENBERG: The challenge is being bought by Jack Davis, a multi-millionaire businessman, who, in 2003, was escorted out of a GOP fundraiser that featured Vice President Cheney. Davis, then a Republican, incurred the wrath of GOP aides for talking to reporters about an ad he'd purchased criticizing the Bush administration's free-trade policies.
Mr. JACK DAVIS (Congressional Hopeful; Founder, Save Jobs Party): I like being called a maverick. I'm not going to be a duck. I'm not going to fall in line.
TOTENBERG: And so, Davis changed parties, became a Democrat, and in 2004 and 2006 ran unsuccessfully for the House against a senior Republican congressman in the Buffalo area of New York. Each time he promised to spend a million dollars of his own money, and each time he did. Under the Federal Election Law, however, when a candidate for the House spends more than 350,000 dollars of his own money, the usual campaign finance rules are changed somewhat.
First, the candidate must disclose within 24 hours any expenditure of more than 10,000 dollars of his own money, and second, his opponent is allowed to raise more money from individual contributors than federal law would otherwise permit. Davis claims that the disclosure provisions are unfair.
Mr. DAVIS: I was treated differently. When I got to 350,000 dollars, I had to do special reports, 24-hour reports.
TOTENBERG: Davis's lawyer, Andrew Herman, says that requiring wealthy candidates like Davis to disclose the fact that they've spent 10,000 dollars within 24 hours gives the opponent information on strategy.
Mr. ANDREW HERMAN (Attorney, Brand Law Group): Your opponent knows, he must be buying TV ads, he must be setting up campaign rallies, he must be hiring more people to help him. His opponent has no concomitant obligation to tell him when he's ramping up his expenditures.
TOTENBERG: But the law's defenders observe that the opponent has other disclosure requirements that don't apply to a candidate who's largely financing his own campaign. What's more, say the law's defenders, Davis and other wealthy candidates have a choice that most candidates do not have. They can spend up to 350,000 dollars of their own money, plus money from other contributors.
And they don't have to disclose within 24 hours, or they can spend more than 350,000 dollars of their own money, in which case disclosure is required so that the Federal Election Commission, using the formula specified in the law, can figure out just how much to increase the caps on individual contributions to the opponent's campaign. Davis's lawyer, Andrew Herman, argues that the whole structure of the law ends up chilling speech, in violation of the Constitution.
Mr. HERMAN: It seeks to deter individuals from financing their own campaigns with their own money, and then if they do choose to do so, it then punishes them for their expenditure.
TOTENBERG: Herman contends that Congress, in enacting the Millionaires' Amendment, had an illegitimate purpose - to level the playing field in elections, something which he contends the Supreme Court has never allowed Congress to do. But Democracy 21 president Fred Wertheimer, who helped write the law, disagrees.
Mr. FRED WERTHEIMER (President, Democracy 21): The problem is that if someone comes in and spends 10, or 20, or 30 million dollars of their own money, an opponent of that person needs to at least be able to be heard against that amount of money.
TOTENBERG: In short, says Wertheimer, the purpose of the bill is not to level the playing field, but to keep one side from being drowned out by an individual candidate's personal wealth. The proof, say reformers, is in the pudding. Former Solicitor General Seth Waxman.
Mr. SETH WAXMAN (Chair, Appellate and Supreme Court Litigation Practice Group): Mr. Davis is, I would say, exhibit A in the refutation of his own contention. He has never been chilled from spending enormous amounts of money to secure his own election.
TOTENBERG: And Waxman notes that Davis in not an anomaly. In the last two federal elections, self-financed candidates spent more than 144 million dollars of their own money, while their opponents raised only a total of 8.6 million more under the increased caps. Candidate Davis, however, says the law is nothing more than an incumbent's protection device, since most incumbents can raise money more easily than challengers.
Reformers reply that the Millionaires' Amendment does not seem to have inhibited challengers to incumbents. There have been many more self-financed candidates since the law was passed than before it. As for Davis, he's running again for Congress this year, and he seems happy whether he wins or loses his Supreme Court case.
Mr. DAVIS: if I win it, I already changed the law. I'm not even in Congress. I've changed the law. If I lost it, so be it, not that important to me.
MARTIN: NPR's Nina - and you can follow this story throughout the day at npr.org. Transcript provided by NPR, Copyright NPR.