No. 07-320

In the Supreme Court of the United States

JACK DAVIS, APPELLANT

v.

FEDERAL ELECTION COMMISSION

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

BRIEF FOR THE APPELLEE

THOMASENIA P. DUNCAN

General Counsel

DAVID KOLKER

Associate General Counsel

KEVIN DEELEY

Assistant General Counsel

HOLLY J. BAKER

CLAIRE N. RAJAN

Attorneys

Federal Election Commission

Washington, D.C. 20463

PAUL D. CLEMENT

Solicitor General

Counsel of Record

GREGORY G. GARRE

Deputy Solicitor General

MALCOLM L. STEWART

Assistant to the Solicitor

General

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217
(I)

QUESTIONS PRESENTED

Section 319 of the Bipartisan Campaign Reform Act

of 2002, Pub. L. No. 107-155, 116 Stat. 109, applies to elections for the United States House of Representatives

in which a candidate spends more than $350,000 in personal funds. In such an election, when certain conditions

are met, Section 319 modifies the contribution and coordinated-expenditure limits that would otherwise apply

to the self-financing candidate’s opponent, and it imposes certain disclosure requirements on all candidates.

The questions presented are as follows:

1. Whether this case is moot.

2. Whether appellant has standing to challenge the

modified contribution and coordinated-expenditure limits established by Section 319.

3. Whether those modified limits on their face violate the First Amendment or the equal protection component of the Due Process Clause of the Fifth Amendment.

4. Whether the disclosure requirements established

by Section 319 are unconstitutional on their face. 
(III)

TABLE OF CONTENTS

 Page

Opinions below . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Summary of argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Argument:

I. This case is moot . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

II. Appellant lacks standing to challenge the increased

contribution limits established by Section 319, and

those limits are in any event constitutional on their

face . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

A. Appellant cannot establish any actual or

imminent injury resulting from the increased

contribution limits . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

B. Section 319’s enhanced contribution limits are

consistent with the First Amendment . . . . . . . . . . . 28

C. Appellant’s equal protection challenge to

Section 319’s expanded contribution limits

lacks merit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

III. Section 319’s disclosure requirements are

constitutional on their face . . . . . . . . . . . . . . . . . . . . . . . 46

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a

TABLE OF AUTHORITIES

Cases:

Ashwander v. TVA, 297 U.S. 288 (1936) . . . . . . . . . . . . . . 24

Austin v. Michigan State Chamber of Commerce,

494 U.S. 652 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . 36, 39
IV

Cases—Continued: Page

Bates v. City of Little Rock, 361 U.S. 516 (1960) . . . . . . . 47

Blum v. Yaretsky, 457 U.S. 991 (1982) . . . . . . . . . . . . . . . . 27

Buckley v. Valeo, 424 U.S. 1 (1976) .............. passim

California Med. Ass’n v. FEC, 453 U.S. 182 (1981) . . . . . 25

City of Los Angeles v. Lyons, 461 U.S. 95

(1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 21, 22

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006) . . . 27

FEC v. Beaumont, 539 U.S. 146 (2003) . . . . . . . . . . . . 36, 37

FEC v. Colorado Republican Fed. Campaign Comm.,

533 U.S. 431 (2001) ...............................3

FEC v. Wisconsin Right to Life, Inc., 127 S. Ct. 2652

(2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20

FTC v. Standard Oil Co., 449 U.S. 232 (1980) . . . . . . . . . . 23

First Nat’l Bank v. Bellotti, 435 U.S. 765 (1978) . . . . . . . 20

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.

(TOC), Inc., 528 U.S. 167 (2000) . . . . . . . . . . . . . . . . . . . 19

Gibson v. Florida Legislative Investigation Comm.,

372 U.S. 539 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

Gonzales v. Carhart, 127 S. Ct. 1610 (2007) . . . . . . . . 15, 22

Legal Servs. Corp. v. Velazquez, 531 U.S. 533 (2001) . . . . 38

Lewis v. Casey, 518 U.S. 343 (1996) . . . . . . . . . . . . . . . . . . 27

Lewis v. Continental Bank Corp., 494 U.S. 472

(1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20, 21

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) . . . . 25

McConnell v. FEC, 540 U.S. 93 

(2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 12, 22, 36, 51, 52

Murphy v. Hunt, 455 U.S. 478 (1982) . . . . . . . . . . . . . . . . 20
V

Cases—Continued: Page

Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377

(2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35, 37, 40

North Carolina v. Rice, 404 U.S. 244 (1971) . . . . . . . . . . . 19

Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81

(2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Randall v. Sorrell, 126 S. Ct. 2479 (2006) . . . . . . . 30, 37, 43

Rodriguez v. United States, 480 U.S. 522 (1987) . . . . . . . 43

Schweiker v. Hogan, 457 U.S. 569 (1982) . . . . . . . . . . . . . . 38

Sealed Case, In re, 237 F.3d 657 (D.C. Cir. 2001) . . . . . . . 14

Southern Pac. Terminal Co. v. ICC, 219 U.S. 498

(1911) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Spencer v. Kemna, 523 U.S. 1 (1998) . . . . . . . . . . . . . . . . . 19

United States v. Salerno, 481 U.S. 739 (1987) . . . . . . . . . . 11

Whitmore v. Arkansas, 495 U.S. 149 (1992) . . . . . . . . . . . 25

Younger v. Harris, 401 U.S. 37 (1971) . . . . . . . . . . . . . . . . 23

Constitution, statutes and regulations: 

U.S. Const.:

Art. III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 46

Amend. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Amend. V (Due Process Clause) . . . . . . . . . . . . . . . . . . . 2

Administrative Procedure Act, 5 U.S.C. 704 . . . . . . . . . . . 23

Bipartisan Campaign Reform Act of 2002,

Pub. L. No. 107-155, 116 Stat. 81:

§ 304, 116 Stat. 97 (2 U.S.C. 441a(i) (Supp. V

2005)) .....................................7

§ 319, 116 Stat. 109 ....................... passim
VI

Statutes and regulations—Continued: Page

2 U.S.C. 441a-1 (Supp. V 2005) ............2

2 U.S.C. 441a-1(a)(1)(A)-(B) (Supp. V

2005) ................................2

2 U.S.C. 441a-1(a)(1)(A)-(C) (Supp. V

2005) ................................8

2 U.S.C. 441a-1(a)(1)(C) (Supp. V 2005) .....2

2 U.S.C. 441a-1(a)(2) (Supp. V 2005) ........8

2 U.S.C. 441a-1(a)(2)(B)(ii) (Supp. V

2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

2 U.S.C. 441a-1(a)(3)(A)(ii) (Supp. V

2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 42

2 U.S.C. 441a-1(b) (Supp. V 2005) . . . . . . . . . 46

2 U.S.C. 441a-1(b)(1)(A)(i) (Supp. V

2005) ................................7

2 U.S.C. 441a-1(b)(1)(A)(ii) (Supp. V

2005) ................................7

2 U.S.C. 441a-1(b)(1)(B) (Supp. V

2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 49, 53

2 U.S.C. 441a-1(b)(1)(C) (Supp. V 2005) .....9

2 U.S.C. 441a-1(b)(1)(C)-(D) (Supp. V

2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

2 U.S.C. 441a-1(b)(1)(D) (Supp. V 2005) .....9

2 U.S.C. 441a-1(b)(1)(F) (Supp. V 2005) .....9

§ 401, 116 Stat. 112 . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

§ 403(a), 116 Stat. 113 . . . . . . . . . . . . . . . . . . . . . . . . . 22

§ 403(a)(1), 116 Stat. 114 . . . . . . . . . . . . . . . . . . . . . . . 10

Federal Election Campaign Act Amendments of 1979,

Pub. L. No. 96-187, § 104, 93 Stat. 1348 (2 U.S.C.

434 (1982)) ......................................5
VII

Statute and regulations—Continued: Page

Federal Election Campaign Act of 1971, 2 U.S.C. 431

et seq. ..........................................2

2 U.S.C. 432(e)(1) . . . . . . . . . . . . . . . . . . . . . . . . . 49, 51

2 U.S.C. 433 ..................................5

2 U.S.C. 434 (2000 & Supp. V 2005) ..............5

2 U.S.C. 434(a)(2) (2000 & Supp. V 2005) ..........5

2 U.S.C. 434(a)(6) (2000 & Supp. V 2005) . . . . . . . . . 52

2 U.S.C. 434(a)(6)(A) ...........................5

2 U.S.C. 434(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

2 U.S.C. 434(f)(1) (Supp. V 2005) . . . . . . . . . . . . . . . 52

2 U.S.C. 434(f)(3) (Supp. V 2005) . . . . . . . . . . . . . . . 52

2 U.S.C. 437c(b)(1) ............................2

2 U.S.C. 437d(a)(7) ............................3

2 U.S.C. 437d(a)(8) ............................2

2 U.S.C. 437f .................................3

2 U.S.C. 437g(a)(6) (2000 & Supp. V 2005) . . . . . . . . 21

2 U.S.C. 437g(a)(12) . . . . . . . . . . . . . . . . . . . . . . . . . . 14

2 U.S.C. 438(a)(8) (Supp. V 2005) ................2

2 U.S.C. 438(d) ................................2

2 U.S.C. 441a(a)(1)(A) (Supp. V 2005) ............3

2 U.S.C. 441a(c) (2000 & Supp. V 2005) ...........3

11 C.F.R.:

Section 101.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

Section 104.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

Section 104.3(a)(3)(ii) .............................5

Section 104.3(a)(3)(vii)(B) .........................5

Section 400.30(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 53
VIII

Regulations—Continued: Page

Section 400.30(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

Sections 400.30-400.31 ............................9

Section 400.31 ...................................9

Section 400.31(e)(1)(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

Section 400.54 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

Miscellaneous:

147 Cong. Rec. (2001):

p. 3967 .........................................6

p. 3969 .........................................7

p. 3976 ..........................................6

p. 5148 .........................................8

148 Cong. Rec. (2002):

p. 1382 .........................................6

p. 3603 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Davis for Congress, Report of Receipts and

Disbursements (Mar. 10, 2007) <http://images.

nictusa.com/cgi-bin/fecimg/?F27930238050> . . . . . . . 10

Davis for Congress, 24-Hour Notice of Expenditure

from Candidate’s Personal Funds (Nov. 6, 2006)

<http://images.nictusa.com/cgi-bin/fecimg/

?_26960663096+0> . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

FEC Form 3: Report of Receipts and Disbursements

for an Authorized Committee (Feb. 2003)

<http://www.fec.gov/pdf/forms/fecfrm3.pdf> . . . . . . . 53

Richard H. Fallon, Jr., As-Applied and Facial

Challenges and Third-Party Standing, 113 Harv.

L. Rev. 1321 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
IX

Miscellaneous—Continued: Page

Jack Davis 2006 Candidacy Announcement (Mar. 29,

2006) <http://jackdavis.org/new/press/2006.asp> . . . . 50

Reynolds for Congress Disclosure Reports (visited

Mar. 18, 2008) <http://images.nictusa.com/cgibin/fecimg/ ?C00336065> . . . . . . . . . . . . . . . . . . . . . . . . . 13
(1)

In the Supreme Court of the United States

No. 07-320

JACK DAVIS, APPELLANT

v.

FEDERAL ELECTION COMMISSION

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

BRIEF FOR THE APPELLEE

OPINION BELOW

The opinion of the district court (J.S. App. 1a-18a) is

reported at 501 F. Supp. 2d 22.

JURISDICTION

The decision of the district court was issued on August 9, 2007. A notice of appeal was filed on August 16,

2007, and the jurisdictional statement was filed on September 7, 2007. On January 11, 2008, this Court postponed consideration of the question of jurisdiction to the

hearing of the case on the merits. The jurisdiction of

this Court is invoked under the Bipartisan Campaign

Reform Act of 2002 (BCRA), Pub. L. No. 107-155,

§ 403(a)(3), 116 Stat. 114; and 28 U.S.C. 1253.
2

STATEMENT

This case involves a facial constitutional challenge

to Section 319 of BCRA (Section 319), 116 Stat. 109

(2 U.S.C. 441a-1 (Supp. V 2005)), part of the so-called

“Millionaires’ Amendment.” Section 319 applies to elections for the United States House of Representatives in

which a candidate contributes more than $350,000 in

personal funds to his own campaign. If and when certain conditions are met, the opponents of such candidates may accept contributions from individuals in excess of the generally applicable limits. See 2 U.S.C.

441a-1(a)(1)(A)-(B) (Supp. V 2005). Under those circumstances, the usual statutory limits on political party expenditures that are coordinated with a candidate do not

apply to expenditures in support of an opponent of the

self-financing candidate. See 2 U.S.C. 441a-1(a)(1)(C)

(Supp. V 2005). Appellant filed suit in federal district

court, arguing that Section 319 on its face violates the

First Amendment and the equal protection component

of the Due Process Clause of the Fifth Amendment. The

three-judge district court rejected appellant’s constitutional claims and granted the government’s motion for

summary judgment. J.S. App. 1a-18a.

1. The Federal Election Commission (Commission

or FEC) is vested with statutory authority over the

administration, interpretation, and civil enforcement of

the Federal Election Campaign Act of 1971 (FECA),

2 U.S.C. 431 et seq., and other federal campaign-finance

statutes. The Commission is empowered to “formulate

policy” with respect to FECA, 2 U.S.C. 437c(b)(1); “to

make, amend, and repeal such rules * * * as are necessary to carry out the provisions of [the] Act,” 2 U.S.C.

437d(a)(8), 438(d); 2 U.S.C. 438(a)(8) (Supp. V 2005); and

to issue written advisory opinions concerning the appli-
3

cation of the Act and Commission regulations to any

specific proposed transaction or activity, 2 U.S.C.

437d(a)(7), 437f.

2. Federal law has long prohibited any person from

making contributions “to any candidate and his authorized political committee with respect to any election for

Federal office which, in the aggregate, exceed” a statutory cap, which is currently set at $2300. 2 U.S.C.

441a(a)(1)(A) (Supp. V 2005); 2 U.S.C. 441a(c) (2000 &

Supp. V 2005); see J.S. App. 3a n.4. In Buckley v. Valeo,

424 U.S. 1 (1976) (per curiam), this Court upheld the

$1000 contribution limit then imposed by FECA. See id.

at 23-35. The Court explained that “the Act’s primary

purpose—to limit the actuality and appearance of corruption resulting from large individual financial contributions—[provides] a constitutionally sufficient justification for the $1,000 contribution limitation.” Id. at 26.

In response to the contention that the contribution limit

had been set at too low a level, the Court in Buckley

stated that “[i]f [Congress] is satisfied that some limit

on contributions is necessary, a court has no scalpel to

probe, whether, say, a $2,000 ceiling might not serve as

well as $1,000. Such distinctions in degree become significant only when they can be said to amount to differences in kind.” Id. at 30 (citation and internal quotation

marks omitted). Because expenditures made in coordination with candidates have essentially the same value

to candidates as contributions, federal law has also long

treated “coordinated expenditures”—including expenditures by political parties made in coordination with their

own candidates, FEC v. Colorado Republican Fed. Campaign Comm., 533 U.S. 431, 465 (2001)—as “contributions” subject to statutory limits, see Buckley, 424 U.S.

at 46-47 & n.53.
4

While upholding statutory limits on contributions to

federal candidates, the Court in Buckley invalidated

FECA caps on the amount of personal wealth a federal

candidate could spend on his own campaign. 424 U.S. at

51-54. Those expenditure provisions barred presidential

and vice-presidential candidates from spending more

than $50,000 of their personal wealth on their campaigns, limited Senate candidates to $35,000, and limited

most House candidates to $25,000. Id. at 51. The Court

concluded that “the First Amendment simply cannot

tolerate [the statute’s] restriction upon the freedom of

a candidate to speak without legislative limit on behalf

of his own candidacy.” Id. at 54.

The Court in Buckley upheld Congress’s decision to

provide public financing for presidential campaigns and

to make the availability of public money contingent on a

candidate’s agreement to adhere to statutory expenditure limitations. 424 U.S. at 57 n.65, 92-93. Unlike mandatory expenditure caps, the Court concluded, such an

arrangement does not “abridge, restrict, or censor

speech,” but instead “facilitate[s] and enlarge[s] public

discussion and participation in the electoral process.”

Id. at 92-93. The Court explained that, “[j]ust as a candidate may voluntarily limit the size of contributions he

chooses to accept, he may decide to forgo private fundraising and accept public funding.” Id. at 57 n.65.

3. Since 1910, federal law has required disclosure of

various categories of information related to election

campaigns. See Buckley, 424 U.S. at 61. Under current

law, candidate campaign committees (among others)

must register with the Commission and file periodic

reports for disclosure to the public of all receipts and

disbursements to or from a person in excess of $200 in

a calendar year (and in some instances, of any amount),
5

as well as total operating expenses and cash on hand.

See 2 U.S.C. 433; 2 U.S.C. 434 (2000 & Supp. V 2005).

The receipts that are required to be reported include

both contributions and loans from the candidate. 11

C.F.R. 104.3(a)(3)(ii) and (vii)(B). FECA generally requires congressional candidate committees to file quarterly reports, a pre-election report no later than the

12th day before an election, and a post-election report

within 30 days after an election. 2 U.S.C. 434(a)(2) (2000

& Supp. V 2005). In addition, candidate committees

must file special notices regarding contributions of

$1000 or more received less than 20 days but more than

48 hours before an election. 2 U.S.C. 434(a)(6)(A).

The Court in Buckley generally upheld FECA’s reporting requirements at the then-applicable lower

thresholds. See 424 U.S. at 60-84. The Court held that

the required disclosures served the important government interests of (1) providing the electorate with information on campaign financing “in order to aid the voters

in evaluating those who seek federal office,” (2) “deter-

[ring] actual corruption and avoid[ing] the appearance

of corruption by exposing large contributions and expenditures to the light of publicity,” and (3) “gathering the

data necessary to detect violations of the contribution

limitations” that were simultaneously enacted. Id. at 66-

68. The Court explained that FECA’s disclosure requirements would unconstitutionally infringe associational rights only in the limited circumstance when compelled disclosure would cause a “reasonable probability”

of “threats, harassment, and reprisals” against an organization or its members. Id. at 66, 74. In 1980, Congress amended FECA to raise the reporting thresholds

to their current levels. See Federal Election Campaign
6

Act Amendments of 1979, Pub. L. No. 96-187, § 104, 93

Stat. 1348 (2 U.S.C. 434 (1982)).

4. The Court in Buckley recognized that, “[g]iven

the limitation on the size of outside contributions, the

financial resources available to a candidate’s campaign,

like the number of volunteers recruited, will normally

vary with the size and intensity of the candidate’s support.” 424 U.S. at 56. The Court acknowledged, however, that this relationship “may not apply where the candidate devotes a large amount of his personal resources

to his campaign.” Id. at 56 n.63. Based on its assessment of federal elections in the thirty years since Buckley, Congress determined that increasing numbers of

congressional candidates now choose to rely largely on

their own personal wealth to finance their campaigns.

In the debates that culminated in BCRA’s enactment, Members of Congress identified various harmful

consequences that could follow from the increasing impact of candidates’ personal wealth on elections for federal office. The disparity in campaign resources created

by wealthy candidates’ expenditures of personal funds

was thought to “ma[k]e it more difficult for non-wealthy

opponents to compete and to put their messages and

their ideas across to the public.” 147 Cong. Rec. 3967

(2001) (statement of Sen. DeWine); see 148 Cong. Rec.

1382 (2002) (statement of Rep. Davis) (explaining that

Section 319 “evens the playing field” between a nonwealthy candidate and one “who can go to McDonald’s,

have breakfast with himself, write himself a $3 million

check and have the largest fund-raising breakfast in history”). The competitive advantage of self-financing candidates in turn threatened to create the public perception that “someone today who is wealthy enough can buy

a seat” in Congress. 147 Cong. Rec. at 3976 (statement
7

1 Section 304 of BCRA, 116 Stat. 97 (2 U.S.C. 441a(i) (Supp. V 2005)),

contains comparable provisions and applies to elections for the United

States Senate. Section 304 is not at issue in this case. See J.S. App. 1a

n.1; Appellant Br. 3 n.3. In McConnell v. FEC, 540 U.S. 93 (2003), certain plaintiffs challenged the constitutionality of Sections 304 and 319

on their face, but the Court held that the plaintiffs lacked standing to

sue and accordingly did not reach the merits of their challenge. See id.

at 229-230.

of Sen. DeWine). Members of Congress also expressed

concern that party officials increasingly consider individuals’ wealth in recruiting potential candidates. See, e.g.,

id. at 3969 (statement of Sen. McCain) (“[B]oth parties

have now openly stated that they recruit people who

have sizable fortunes of their own in order to run for the

Senate.”).

To address those phenomena, Congress enacted Section 319 of BCRA, which applies to elections for the

United States House of Representatives.1 Section 319

applies only to House election campaigns in which at

least one candidate spends more than $350,000 in personal funds. For purposes of determining whether the

$350,000 threshold has been crossed, the term “expenditure from personal funds” includes “an expenditure

made by a candidate using personal funds,” 2 U.S.C.

441a-1(b)(1)(A)(i) (Supp. V 2005), as well as “a contribution or loan made by a candidate using personal funds or

a loan secured using such funds to the candidate’s authorized committee,” 2 U.S.C. 441a-1(b)(1)(A)(ii) (Supp. V

2005).

If a candidate for the House of Representatives

makes expenditures from personal funds that exceed

$350,000,

his opponent may be permitted (1) to receive contributions at three times the limit for each donor that
8

2 The formula used to calculate the OPFA during the election year

counts the expenditures from personal funds made by each candidate, adds 50% of the aggregate receipts raised by each candidate during the year prior to the election, and compares the totals. 2 U.S.C.

441a-1(a)(2) (Supp. V 2005). Only if the opponent has raised and spent

$350,000 less of those funds than the self-financing candidate will he

qualify to solicit additional financial support under the provision. The

provision applies equally to all candidates, so that even a self-financing

candidate can qualify to raise extra funds if he is running against a selffinancing opponent who has raised and spent even more under the

OPFA formula. The portion of the formula that takes into account a

candidate’s aggregate receipts during the non-election year—titled the

“gross receipts advantage” provision—was added so that incumbents

who raise a substantial amount of contributions in the year before an

election year will not unduly benefit. See 147 Cong. Rec. at 5148 (statement of Sen. Durbin) (explaining that Congress’s goal was to “get as

close [as] possible to a level playing field but not create incumbent advantage”). 

would otherwise be in place; (2) to receive contributions from individuals who have reached what would

otherwise be their statutory limit for aggregate campaign donations; and (3) to coordinate with their political party on additional party expenditures that

would otherwise be limited.

J.S. App. 3a-4a (footnotes and citations omitted); see 2

U.S.C. 441a-1(a)(1)(A)-(C) (Supp. V 2005). To determine

whether and to what extent he may accept contributions

and coordinated expenditures that would otherwise exceed the statutory limits, an opposing candidate must

calculate the “opposition personal funds amount”

(OPFA). See 2 U.S.C. 441a-1(a)(2) (Supp. V 2005); J.S.

App. 4a.2

 Section 319 limits the amount of increased

contributions and increased coordinated party expenditures a candidate may receive to the amount of the total
9

OPFA disparity between the candidates. 2 U.S.C. 441a1(a)(3)(A)(ii) (Supp. V 2005).

Section 319 also establishes reporting requirements

for self-financing candidates and their opponents. See

J.S. App. 5a. Within 15 days after becoming a candidate,

an individual must disclose the amount of personal funds

in excess of $350,000 that he intends to spend during

the campaign. 2 U.S.C. 441a-1(b)(1)(B) (Supp. V 2005).

If a candidate actually spends more than $350,000 in

personal funds on his campaign, he must file an “initial notification” of that expenditure within 24 hours

after exceeding the threshold. 2 U.S.C. 441a-1(b)(1)(C)

(Supp. V 2005). Thereafter, for each aggregate expenditure of $10,000 or more in personal funds, the candidate must file a notification within 24 hours. 2 U.S.C.

441a-1(b)(1)(D) (Supp. V 2005). Those notifications must

be filed with the Commission and provided to each opponent in the same election, and to the national party of

each opponent. 2 U.S.C. 441a-1(b)(1)(F) (Supp. V 2005).

The opponent of a self-financing candidate is also

subject to additional real-time reporting requirements.

See 11 C.F.R. 400.30-400.31. After receiving the selffinancing candidate’s initial or additional notifications of

expenditures from personal funds, the opposing candidate must calculate the current OPFA and, if and when

he becomes eligible to invoke the modified contribution

and coordinated-expenditure limits, must notify the

Commission and his political party within 24 hours. 11

C.F.R. 400.30(b). If the opposing candidate reaches the

maximum allowable amount and is no longer entitled to

solicit increased contributions and coordinated party

expenditures, he must notify the Commission and his

political party within 24 hours. 11 C.F.R. 400.31.
10

3 Appellant ultimately loaned his campaign committee $2,257,280

in 2006, including $1,520,000 for the general election. See Davis for

Congress, Report of Receipts and Disbursements (Mar. 10, 2007)

<http://images.nictusa.com/cgi-bin/fecimg/?F27930238050> (reporting

$2,257,280 in candidate loans in the 2006 election cycle); Davis for

Congress, 24-Hour Notice of Expenditure from Candidate’s Personal

Funds (Nov. 6, 2006) <http://images.nictusa.com/cgi-bin/fecimg/?_

26960663096+0> (reporting $1,520,000 in total expenditures from personal funds in the general election).

5. Appellant Jack Davis was a candidate for United

States Representative in New York’s 26th Congressional District in both 2004 and 2006. J.S. App. 1a, 5a.

In April 2006, appellant filed with the Commission a

Statement of Candidacy for that congressional seat. See

J.A. 102-103. Pursuant to Section 319, the Statement of

Candidacy included a declaration of intent on which appellant was required to state the amount of personal

funds in excess of the $350,000 threshold that he intended to spend in support of his primary and general

election campaigns. J.A. 103. Appellant entered “$0.00"

for the primary election and “$1,000,000" for the general

election. Ibid.

3

In June 2006, appellant filed suit in federal district

court, asserting a facial challenge to Section 319. J.S.

App. 5a. Pursuant to Section 403(a)(1) of BCRA, 116

Stat. 114, a three-judge district court was convened.

See J.S. App. 1a, 6a. The district court granted the

FEC’s motion for summary judgment. Id. at 1a-18a.

a. The district court held that appellant had standing to sue. J.S. App. 6a-7a. The court explained that

Section 319 “imposes new and added disclosure requirements on self-financing candidates such as [appellant].”

Id. at 6a. The court concluded that “[t]hese additional

disclosure requirements impose an injury-in-fact on self-
11

financed candidates that can be traced directly to [Section 319].” Ibid.

b. The district court noted that appellant had

brought a facial challenge to Section 319, and that such

a suit is “the most difficult challenge to mount successfully.” J.S. App. 7a (quoting United States v. Salerno,

481 U.S. 739, 745 (1987)). The district court held that

appellant’s facial challenge “fails at the outset” because

Section 319 “places no restrictions on a candidate’s ability to spend unlimited amounts of his personal wealth to

communicate his message to voters, nor does it reduce

the amount of money he is able to raise from contributors.” Id. at 9a. Rather, the district court explained,

Section 319 “preserve[s] core First Amendment values

by protecting the candidate’s ability to enhance his participation in the political marketplace.” Ibid. The court

observed that Section 319 “is similar to statutes that

permit higher contribution limits for candidates who

agree to public financing of their campaigns,” and that

such regimes have “been consistently upheld against

First Amendment challenges.” Ibid.; see id. at 9a-10a

(citing cases).

The district court rejected appellant’s contention

that Section 319, by conferring a competitive advantage

on opponents of self-financing candidates, will impermissibly deter candidates for the House of Representatives from financing their own campaigns. See J.S. App.

10a-13a. The court acknowledged that “there may be

cases in which a regulatory scheme creates a competitive advantage so extreme that it works an unconstitutional burden on a candidate’s First Amendment right to

pursue elective office.” Id. at 11a. The court observed,

however, that “no court has found such an unconstitutional burden where the disadvantage is the result of the
12

candidate’s choice to fund his campaign from one of several permissible funding sources.” Ibid. The court

noted in that regard that this Court in Buckley had “upheld expenditure limitations for candidates who chose to

participate in public financing of their campaigns.” Ibid.

(citing Buckley, 424 U.S. at 57 n.65); see p. 4, supra.

The court further explained that appellant himself had

not been deterred by Section 319, since he had chosen to

self-finance his campaigns in both 2004 and 2006. See

J.S. App. 13a.

c. The district court also rejected appellant’s challenge to the disclosure requirements imposed by Section

319. J.S. App. 14a-17a. The court noted that this Court

had upheld similar reporting obligations both in Buckley

and in McConnell v. FEC, 540 U.S. 93, 194-195 (2003).

J.S. App. 14a-15a. The court explained that, “[b]ecause

[appellant] concedes that all of the information required

by the reporting provisions would eventually have to be

disclosed to the FEC whether or not [Section 319] ever

applies,” appellant’s claim of an unconstitutional burden

“is essentially a complaint about the timing elements of

the reporting requirements.” Id. at 16a. The court

found that complaint to be unfounded, noting that “the

timing deadlines of [Section 319] are no more burdensome than other BCRA reporting deadlines that were

upheld in McConnell.” Ibid. The court further observed

that Section 319 imposes reporting obligations not only

on self-financing candidates, but also on their opponents

and on political parties. Id. at 16a-17a. 

d. The district court rejected appellant’s equal protection claim as well. J.S. App. 17a-18a. The court explained that “[t]he touchstone of an Equal Protection

argument is that the challenged statute is flawed because it treats similarly situated entities differently.”
13

Id. at 17a. The court held that appellant “cannot make

this showing because the reasonable premise of [Section

319] is that self-financed candidates are situated differently from those who lack the resources to fund their

own campaigns and that this difference creates adverse

consequences dangerous to the perception of electoral

fairness.” Ibid.

6. While this case was pending before the threejudge district court, appellant lost the 2006 general election. His opponent, Congressman Thomas Reynolds, did

not receive any increased contributions or coordinated

party expenditures pursuant to Section 319. See Reynolds for Congress Disclosure Reports (visited Mar. 18,

2008) <http://images.nictusa.com/cgi-bin/fecimg/

?C00336065> (reporting no increased contributions to

Congressman Reynolds or coordinated party expenditures on his behalf pursuant to Section 319 in the 2006

election cycle).

7. On April 19, 2006, approximately two months before appellant filed this suit, the FEC notified appellant

that the Commission had found reason to believe that

appellant had violated Section 319’s disclosure requirements during his 2004 House campaign. See App., infra,

1a-3a. On January 19, 2007, while this case was pending

in the district court, the FEC found probable cause to

believe that such violations had occurred. See Appellant

Br. App. 3a. The Commission proposed a conciliation

agreement under which appellant would acknowledge

the violations and would pay a civil penalty of $251,000.

See id. at 8a. Shortly after the district court issued its

decision in this case, appellant consented to toll the limitations period for any enforcement action the FEC

might file concerning the alleged 2004 violations, in return for the Commission’s agreement to hold the matter
14

4 The record before the district court contained no information regarding the FEC’s investigation of appellant for apparent violations of

Section 319 during the 2004 campaign. Until appellant waived his right

to confidentiality by revealing the existence and status of the investigation in his opening brief to this Court, the Commission was barred from

publicly revealing the matter. See 2 U.S.C. 437g(a)(12); In re Sealed

Case, 237 F.3d 657, 665-667 (D.C. Cir. 2001); App., infra, 3a.

in abeyance pending final resolution of this suit. See id.

at 10a.4

SUMMARY OF ARGUMENT

Section 319 represents a modest and constitutionally

appropriate attempt to counteract the perception that a

candidate who is wealthy enough can buy a seat in Congress. Section 319 serves to decrease the influence of

personal wealth in congressional elections without in any

way limiting the amount of personal funds that a candidate may spend in seeking office. Appellant has provided no basis for invalidating that law on its face. And

his challenge fails for the even more basic reason that

this Court lacks jurisdiction to entertain it.

I. This case is moot. Although appellant suffered judicially cognizable injury during the 2006 campaign as

a result of Section 319’s disclosure requirements, that

injury ceased to be redressable once the election occurred. Such a challenge would likely fall within the

“capable of repetition, yet evading review” exception to

mootness principles if the plaintiff were to express his

intent to run for the House of Representatives again.

But the appellant here notably has not stated such an

intent. Instead, appellant contends that the potential

for an FEC enforcement action concerning the 2004

campaign gives him a continuing stake in the resolution

of the disputed constitutional issues.
15

That contention is flawed. Because appellant can

raise his constitutional arguments as defenses to any

enforcement action that the FEC may file, the pertinent

issues will not “evad[e] review.” Either the FEC will

not pursue an enforcement action, in which case (given

appellant’s failure to profess an intent to run for office

again) his challenge based on past elections will be moot;

or the FEC will undertake such an action, in which case

he can raise his constitutional objections in that context

(so that those objections will not evade review). 

In other words, the only proceeding appellant identifies as giving him a continuing stake in the relevant constitutional issues has a built-in opportunity for review of

the statute’s constitutionality as applied to appellant.

That built-in opportunity means the dispute will not

evade review, and any enforcement action the FEC may

file will certainly provide a sufficient forum to test appellant’s constitutional claims. As-applied enforcement

actions are, after all, “the basic building blocks of constitutional adjudication.” Gonzales v. Carhart, 127 S. Ct.

1610, 1639 (2007) (quoting Richard H. Fallon, Jr., AsApplied and Facial Challenges and Third-Party Standing, 113 Harv. L. Rev. 1321, 1328 (2000)). Accordingly,

appellant cannot establish that he falls within an exception to mootness principles, and his suit should be dismissed for lack of jurisdiction.

II. A. Appellant’s challenge to Section 319’s increased contribution limits (as opposed to Section 319’s

disclosure requirements) suffers from an additional jurisdictional defect—lack of standing. Because appellant’s opponent did not invoke those increased limits

during the 2006 campaign, appellant suffered no injury

from those increased limits. Even if appellant could

demonstrate that the parties’ dispute is “capable of rep-
16

etition, yet evading review,” there would be no basis for

concluding that appellant will suffer in some future election an injury that he did not suffer in 2006. And because there is no prospect that appellant will be charged

with having previously violated the expanded contribution limits (which applied to the opponent’s fundraising

rather than to appellant’s own campaign), the possibility

of an FEC enforcement action concerning appellant’s

own alleged violations of Section 319’s disclosure provisions does not give appellant any continuing stake in the

question whether the increased contribution limits are

constitutional.

B. Section 319’s increased contribution limits are

consistent with the First Amendment. Those limits in

no way burden political speech because they place no

restrictions whatever on a candidate’s ability to spend

personal funds in support of his own campaign. If (as

this Court held in Buckley) Congress may condition a

presidential candidate’s own access to federal funds on

his agreement to abide by statutory spending caps, then

relaxation of the contribution limits that apply to a selffinancing candidate’s opponent does not unconstitutionally penalize the decision to self-finance. Although the

Constitution limits the means that Congress may employ

to equalize electoral opportunities for wealthy and nonwealthy candidates, nothing in this Court’s decisions

supports appellant’s contention that reducing wealthbased disparities in opportunity is an invalid governmental objective. In Section 319, Congress has sought

to pursue that objective in a manner that furthers First

Amendment values by increasing the volume of campaign-related speech without placing any restrictions

whatever on the use of a candidate’s personal wealth in

running for office.
17

Contrary to appellant’s contention, Section 319 does

not reflect an abandonment of the anti-corruption purpose that contribution limits are generally intended to

serve. Rather, they reflect Congress’s effort to balance

competing objectives in elections where a self-financing

candidate’s expenditures threaten to sever the usual link

between a candidate’s financial resources and the level

of his actual public support. And, of course, the perceptions that House and Senate seats may be bought and

are the exclusive province of the rich are corrosive perceptions that Congress can seek to address. Nor is

there any basis for appellant’s repeated assertions that

Sections 319 unconstitutionally favors incumbents over

challengers. Section 319 by its terms draws no distinction between the two classes of candidates; appellant

identifies no logical reason to suppose that challengers

are more likely than incumbents to spend personal funds

in excess of the $350,000 threshold; the available empirical evidence does not suggest that incumbents have benefitted disproportionately from Section 319’s increased

contribution limits; and any such speculation provides no

basis for facial invalidation of an Act of Congress.

C. Appellant’s equal protection challenge to Section

319’s increased contribution limits also lacks merit. This

Court has previously held that Congress may distinguish among candidates for public financing purposes

and may deny public funds to candidates who refuse to

abide by statutory spending caps. Congress therefore

acted permissibly in concluding that, for purposes of the

statutory contribution limits, appellant’s large expenditures of personal funds rendered him differently situated from his opponent.

III. Section 319’s disclosure requirements are also

constitutional on their face. Although the declaration of
18

intent required by Section 319 has no direct analog in

pre-BCRA law, its preparation is in no way burdensome,

and the declaration does not unconstitutionally interfere

with a candidate’s campaign strategy. Indeed, appellant

himself touted his personal wealth and ability to selffinance his campaign when he announced his candidacy.

The other information that Section 319 requires to be

reported would have been subject to mandatory disclosure under pre-BCRA law, and appellant identifies no

basis for concluding that the somewhat different timing

requirements imposed by Section 319 create a constitutional violation. And because a self-financing candidate’s opponent is subject to significant additional disclosure requirements as well, Section 319 does not single

out the self-financing candidate for unique burdens. In

Buckley and McConnell, this Court upheld analogous

disclosure requirements, and there is no basis for a different result here.

ARGUMENT

I. THIS CASE IS MOOT

A. Appellant’s complaint in this case was filed on

June 28, 2006, and alleged that appellant had declared

his candidacy for the 2006 House election approximately

three months earlier. See J.A. 7, 19. The complaint further alleged that appellant had been the Democratic

candidate for the same House seat in 2004. J.A. 7. The

complaint also alleged that, if appellant became the

Democratic nominee, he intended to spend more than

$350,000 of his own funds in the general election campaign, thereby triggering the application of Section 319.

See J.A. 7, 21.

The district court issued its opinion in this case on

August 9, 2007. See J.S. App. 18a. The court noted that
19

appellant had run for Congress in both 2004 and 2006.

Id. at 5a. The court held that appellant had standing to

sue because Section 319’s disclosure requirements “impose an injury-in-fact on self-financed candidates that

can be traced directly to [Section 319] and that would be

removed by a favorable decision from this court.” Id. at

6a. The court did not explain, however, why appellant’s

suit remained justiciable even after the 2006 election

had concluded.

B. “The Constitution’s case-or-controversy limitation on federal judicial authority, Art. III, § 2, underpins

* * * [this Court’s] mootness jurisprudence.” Friends

of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,

528 U.S. 167, 180 (2000). “Article III denies federal

courts the power ‘to decide questions that cannot affect

the rights of litigants in the case before them.’” Lewis

v. Continental Bank Corp., 494 U.S. 472, 477 (1990)

(quoting North Carolina v. Rice, 404 U.S. 244, 246

(1971)). “This case-or-controversy requirement subsists

through all stages of federal judicial proceedings, trial

and appellate.” Ibid.

This Court has recognized an exception to mootness principles for situations that are “capable of repetition, yet evading review.” See, e.g., FEC v. Wisconsin

Right to Life, Inc., 127 S. Ct. 2652, 2662 (2007) (WRTL);

Southern Pac. Terminal Co. v. ICC, 219 U.S. 498, 515

(1911). “[T]he capable-of-repetition doctrine applies

only in exceptional situations,” City of Los Angeles v.

Lyons, 461 U.S. 95, 109 (1983), “where the following two

circumstances [are] simultaneously present: (1) the

challenged action [is] in its duration too short to be fully

litigated prior to cessation or expiration, and (2) there

[is] a reasonable expectation that the same complaining

party [will] be subject to the same action again,” Spen-
20

5 Appellant also states (Br. 18) that, “[i]n the 2006 campaign, [appellant] suffered additional injury arising from his compliance with the

cer v. Kemna, 523 U.S. 1, 17 (1998) (internal quotation

marks omitted) (quoting Lewis, 494 U.S. at 481). For an

alleged wrong to be considered “capable of repetition,”

there must be a “reasonable expectation or a demonstrated probability that the same controversy will recur

involving the same complaining party.” WRTL, 127

S. Ct. at 2663 (internal quotation marks omitted) (quoting Murphy v. Hunt, 455 U.S. 478, 482 (1982) (per

curiam)); accord, e.g., First Nat’l Bank v. Bellotti, 435

U.S. 765, 774 (1978).

C. Typically mootness problems are alleviated in the

election context when the plaintiff alleges that he plans

to participate in future campaigns and therefore will be

subject to the same challenged laws. See WRTL, 127

S. Ct. at 2663 (holding that the plaintiff’s challenge to

BCRA’s restrictions on the financing of certain broadcast advertisements was “capable of repetition” because

the plaintiff had “credibly claimed that it planned on

running materially similar” advertisements during future election years) (internal quotation marks and citation omitted). Appellant, however, has conspicuously

failed to assert in this Court that he intends to self-finance another campaign that would trigger Section 319.

Rather, appellant rests his claim (Br. 20-21) of a continuing controversy on two principal grounds: (1) the

FEC’s pending enforcement action stemming from the

2004 election (see pp. 13-14, supra) gives him a continuing “‘personal stake’ in the constitutionality of Section

319,” and (2) the limited pre-election time period is insufficient for definitive resolution of the questions presented here.5

 Those arguments lack merit. In the ab-
21

statute’s disclosure requirements.” As the government noted in its motion to dismiss or affirm (at 24), we agree with the district court’s holding (see J.S. App. 6a-7a) that appellant suffered injury-in-fact as a

result of Section 319’s disclosure requirements. Proof of past injury,

however, cannot prevent appellant’s suit for declaratory and injunctive relief (see J.A. 18) from becoming moot. See Lewis, 494 U.S. at 477

(“To sustain [this Court’s] jurisdiction * * * it is not enough that a

dispute was very much alive when suit was filed.”); cf. Lyons, 461 U.S.

at 105-109. The government’s motion to dismiss or affirm also stated

(at 24-25 n.8) that “appellant’s prior history of participation as a

candidate in elections for the House of Representatives presumably

provides a sufficient basis for concluding that the current dispute between the parties over the constitutionality of Section 319’s disclosure

provisions is likely to recur,” but that statement was based on the assumption that appellant planned to run again. Because appellant’s opening brief contains no expression of an intent to undertake a future

self-financed campaign, the possibility of such a future campaign (without more) is insufficient to provide a basis for treating this appeal as

justiciable. If appellant makes his intent to run a future self-financed

House campaign clear in his reply brief or elsewhere, it will effectively

moot this mootness discussion.

sence of any basis for concluding that appellant himself

is likely to self-finance a future House campaign, this

case is moot and therefore non-justiciable.

1. The FEC’s finding of probable cause to believe

that appellant violated Section 319 during the 2004 campaign (see Appellant Br. App. 3a-4a), with the consequent prospect that the Commission will pursue an enforcement action pursuant to 2 U.S.C. 437g(a)(6) (2000

& Supp. V 2005) if appellant declines to enter into the

proposed conciliation agreement (see Appellant Br. App.

5a-9a), provides no sound basis for this Court to decide

the instant appeal on the merits. For purposes of the

“capable of repetition, yet evading review” exception to

mootness principles, it is doubtful that potential future

litigation concerning primary conduct that occurred be-
22

fore this suit was filed would constitute a “repetition” of

the current dispute. But in any event, it is altogether

clear that appellant’s constitutional claims will not “evad[e] review” in any enforcement action. If the FEC

does file suit alleging that appellant violated Section 319

during the 2004 campaign, appellant can raise his constitutional arguments as defenses in the enforcement proceeding. Compare Lyons, 461 U.S. at 109 (explaining

that dismissal of the plaintiff’s suit for injunctive relief

would not cause the underlying constitutional challenge

to “‘evade’ review” because that challenge “remain[ed]

to be litigated in [the plaintiff’s] suit for damages”). In

such an enforcement action, moreover, the “limited period between elections” (Appellant Br. 20) would pose no

potential obstacle to judicial resolution of the pertinent

constitutional questions.

In short, the prospect of such an enforcement action

cannot provide a sufficient stake to bring this case within the “capable of repetition, yet evading review” exception to mootness principles because the enforcement

action has a built-in mechanism to ensure that review is

provided, not evaded. And such as-applied challenges

are the preferred method of constitutional adjudication.

See Carhart, 127 S. Ct. at 1639.

2. In arguing that the FEC’s probable-cause determination gives him a continuing stake in the question

whether Section 319 is constitutional, appellant seeks in

essence to use the judicial-review provisions of BCRA

§ 403(a), 116 Stat. 113, as a mechanism for pretermitting

a possible Commission enforcement action. BCRA’s

provisions for expedited review allowed this Court to resolve a variety of constitutional challenges to the statute

well in advance of the 2004 election. See McConnell,

supra. On a going-forward basis, those provisions will
23

enable future participants in the federal electoral process to determine whether conduct in which they propose to engage is constitutionally protected. But when,

as here, a plaintiff does not assert an intent to engage in

future activities regulated by BCRA, there is no reason

and no need to use BCRA’s extraordinary judicialreview procedures—and this Court’s scarce resources

—as an alternative means of resolving the legality of

prior conduct with respect to a candidate who has not

stated an intent to run again.

Appellant’s effort to derail the FEC’s possible enforcement action is also in tension with established principles governing judicial review of Executive Branch

action. In FTC v. Standard Oil Co., 449 U.S. 232 (1980),

this Court held that the issuance by the Federal Trade

Commission (FTC) of an administrative complaint alleging reason to believe that a private party (Socal)

had violated the law was not “final agency action” subject to review under the Administrative Procedure Act,

5 U.S.C. 704. See Standard Oil Co., 449 U.S. at 239-246.

The Court explained that the FTC’s issuance of the complaint had no “legal or practical effect, except to impose

upon Socal the burden of responding to the charges

made against it.” Id. at 242. The Court further observed that “every respondent to a[n] [FTC] complaint

could make the same claim that Socal had made,” and

that “[j]udicial review of the averments in the [FTC’s]

complaints should not be a means of turning prosecutor

into defendant before adjudication concludes.” Id. at

242-243; cf. Younger v. Harris, 401 U.S. 37, 43-54 (1971)

(holding that federal courts should ordinarily decline to

entertain suits to enjoin pending state enforcement actions); id. at 54 (explaining that “the possible unconstitu-
24

6 If appellant’s suit for declaratory and injunctive relief were otherwise justiciable, as it was during the period while the 2006 campaign

tionality of a statute ‘on its face’ does not in itself justify

an injunction against good-faith attempts to enforce it”).

It is also significant that, while the FEC has found

probable cause to believe that appellant violated Section

319 during the 2004 campaign, appellant’s brief does not

concede that such a violation occurred. Thus, appellant

seeks an immediate ruling as to the validity of his constitutional defenses to any enforcement action, while reserving the option of later contending (if this Court rejects his constitutional arguments) that he complied with

Section 319 in 2004. That approach contravenes the bedrock principle that a federal court should not resolve

constitutional questions unless and until its disposition

of pertinent non-constitutional issues compels it to do

so. See, e.g., Ashwander v. TVA, 297 U.S. 288, 346-347

(1936) (Brandeis, J., concurring).

If appellant had not been a candidate in the 2006 election, but had instead premised his claim of standing on

the possibility of an FEC enforcement action concerning

his conduct in 2004, the instant suit would have been

subject to dismissal ab initio under the principles set

forth above. Although the application of Section 319’s

disclosure requirements to appellant’s 2006 campaign

subjected him to judicially cognizable injury, the injunctive and declaratory relief that appellant seeks can do

nothing to prevent or redress that harm now that the

2006 election has occurred. Because continued adjudication of appellant’s constitutional challenge is not supported either by the injury that the district court identified, or by the potential harm on which appellant now

relies, the appeal should be dismissed as moot.6
25

was ongoing, the possibility of an FEC enforcement action based on alleged violations in 2004 would not preclude the suit from going forward.

Cf. California Med. Ass’n v. FEC, 453 U.S. 182, 187-192 (1981). But

while the prospect of an enforcement action alleging prior violations

does not bar appellant’s suit, neither does it serve to keep alive claims

for prospective declaratory or injunctive relief that are otherwise moot.

II. APPELLANT LACKS STANDING TO CHALLENGE THE

INCREASED CONTRIBUTION LIMITS ESTABLISHED

BY SECTION 319, AND THOSE LIMITS ARE IN ANY

EVENT CONSTITUTIONAL ON THEIR FACE

A. Appellant Cannot Establish Any Actual Or Imminent

Injury Resulting From The Increased Contribution

Limits

1. In order to satisfy the “irreducible constitutional

minimum” of Article III standing, appellant must establish (1) an injury-in-fact that is “concrete and particularized,” not “conjectural” or “hypothetical”; (2) a causal

connection between the injury and the challenged conduct of the defendant; and (3) a likelihood that the injury

will be redressed by a favorable decision of the court.

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561

(1992) (quoting Whitmore v. Arkansas, 495 U.S. 149, 155

(1992)). Insofar as appellant challenges Section 319’s

modifications of the generally applicable limits on contributions and party coordinated expenditures, he cannot satisfy Article III’s “injury in fact” requirement.

Appellant has not shown that Section 319 caused him

any “concrete and particularized” injury in the past, or

that any such injury is imminent.

 During the 2006 election campaign, appellant’s opponent received no contributions, and the opponent’s political party made no coordinated expenditures, in excess

of the generally applicable FECA limits. See p. 13, su-
26

pra. The possibility that his opponent would invoke the

modified limits established by Section 319 did not deter

appellant from loaning his campaign approximately

$2.25 million in 2006. See note 3, supra; J.S. App. 14a

(“We struggle to see how [appellant] can credibly argue

that his speech has been ‘chilled’ in light of the fact that

he has chosen to pay for his campaign and has spent,

after all, a considerable amount of his own money in excess of the $350,000 cap.”). Although the 2006 election

campaign had not ended at the time of the summary

judgment briefing in the lower court, it is now clear that

appellant, in fact, suffered no injury from Section 319’s

modification of some of the statutory limits on financial

support for candidates.

Even if appellant could demonstrate that the “capable of repetition, yet evading review” exception to

mootness principles applies to this case, appellant could

not pursue his constitutional challenge to the aspects of

Section 319 that caused him no injury during the 2006

campaign. A showing that the parties’ dispute is “capable of repetition” would provide no basis for concluding

that appellant will be injured by Section 319’s increased

contribution limits in future election cycles in light of

the fact that appellant was not injured by those provisions in the most recent campaign. Appellant’s First

Amendment and equal protection challenges to Section

319’s modified contribution and coordinated-expenditure

limits would therefore be non-justiciable even if appellant could establish a live controversy concerning the

aspects of Section 319 (i.e., the disclosure requirements

imposed by that provision) that previously subjected him

to judicially cognizable injury.

2. Appellant contends (Br. 18) that “[t]he injuries

imposed by Section 319’s disclosure regime are suffi-
27

cient to confer standing on [appellant] to challenge the

statute in its entirety.” Standing, however, “is not dispensed in gross,” and proof of injury from one aspect of

a statutory scheme does not establish standing to challenge provisions that have not caused the plaintiff harm.

Lewis v. Casey, 518 U.S. 343, 358-359 n.6 (1996); see

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006)

(“[W]e have insisted * * * that a plaintiff must demonstrate standing separately for each form of relief

sought.”) (internal quotation marks and citation omitted); Blum v. Yaretsky, 457 U.S. 991, 999 (1982) (explaining that “a plaintiff who has been subject to injurious conduct of one kind” does not “possess by virtue of

that injury the necessary stake in litigating conduct of

another kind, though similar, to which he has not been

subject”). Although the FEC has found probable cause

to believe that appellant previously violated Section

319’s disclosure requirements, appellant has not been

accused—and, in the nature of things, could not plausibly be accused—of violating Section 319’s increased contribution limits, which applied to his opponent. Thus,

although appellant has standing to challenge Section

319’s disclosure requirements (assuming the controversy is otherwise justiciable), he lacks standing to challenge the contribution and coordinated-expenditure provisions.

3. In a related vein, appellant contends (Br. 18-19)

that he has standing to challenge Section 319’s expanded

contribution limits, notwithstanding his opponent’s failure to invoke those limits in the 2006 campaign, because

those limits cannot be severed from Section 319’s disclosure requirements. That contention ignores BCRA’s

express severability provision, which states that, if any

BCRA provision or any application of a BCRA provision
28

“is held to be unconstitutional, the remainder of this Act

* * * and the application of the provisions * * * to

any person or circumstance, shall not be affected by the

holding.” BCRA § 401, 116 Stat. 112. But, more fundamentally, appellant’s severability argument gets things

backwards. Even if appellant’s severability analysis

were correct, that would simply mean that a successful

challenge to Section 319’s disclosure requirements

would have the ultimate practical effect of invalidating

the enhanced contribution limits as well. It would not

follow that appellant has standing to challenge the contribution limits.

Moreover, this Court has not viewed disclosure requirements and substantive financing limits as standing

or falling together. Even if Section 319’s enhanced contribution limits for the opponents of self-financing candidates were held to be invalid, the disclosure requirements applicable to the self-financing candidates themselves would serve a valid informational purpose and

would remain in effect pursuant to BCRA’s severability

provision. The validity of the disclosure requirements

thus is not dependent on the validity of the enhanced

contribution limits. 

B. Section 319’s Enhanced Contribution Limits Are Consistent With The First Amendment

Section 319’s modified limits on financial support for

the opponents of self-financing candidates do not violate

the First Amendment and certainly do not do so on their

face.

1. Appellant repeatedly describes Section 319 as

“regulat[ing]” (Br. 21, 34, 44, 46), “burden[ing]” (Br. 29,

40, 47), or “punish[ing]” (Br. 34) a self-financing candidate’s campaign-related speech. As the district court
29

recognized, however, Section 319 “places no restrictions

on a candidate’s ability to spend unlimited amounts of

his personal wealth to communicate his message to voters, nor does it reduce the amount of money he is able to

raise from contributors.” J.S. App. 9a. In particular,

Section 319’s expanded contribution limits are by their

terms directed at the opponent’s fundraising and in no

way alter the range of legally permissible options that

are available to the self-financing candidate himself.

In short, as the district court explained, Section 319

“does not limit in any way the use of a candidate’s personal wealth in his run for office.” J.S. App. 9a. Thus,

contrary to appellant’s suggestion, Section 319 does not

reflect a congressional effort to “restrict the speech of

some elements of our society in order to enhance the

relative voice of others.” Br. 42 (quoting Buckley, 424

U.S. at 48-49). Rather, Congress sought to “enhance the

relative voice” of non-wealthy candidates without “restrict[ing] the [self-financing candidate’s] speech.” And

the First Amendment poses no bar to Congress’s efforts

to increase political speech. Section 319 does impose

some consequences on a candidate’s choice to self-finance beyond certain amounts. But this Court has already upheld the constitutionality of statutes imposing

similar consequences on a candidate’s spending choices.

2. The principal thrust of appellant’s First Amendment argument (see, e.g., Br. 40) is that (i) because appellant has a constitutional right to make unlimited expenditures in support of his own campaign, he cannot be

penalized for exercising that right; and (ii) because an

election can have only one winner, any benefit provided

to his opponent should be regarded for constitutional

purposes as a penalty imposed on appellant. That line of

reasoning, however, is flatly contradicted by Buckley.
30

7 Appellant characterizes Section 319 as content-based regulation of

a self-financing candidate’s speech. See Br. 35, 45. The application of

Section 319, however, does not turn on the content of a candidate’s

speech, but on the amount of personal funds expended. This Court’s

decision in Buckley makes clear that Congress may create financial disincentives to independent campaign spending without violating the Constitution. Section 319 neither deprives the self-financing candidate of

funds nor divests him of any other potential benefit; it simply loosens

the fundraising restrictions placed upon his opponents.

Appellant has not challenged the validity of Buckley,

and that decision is therefore entitled to full stare decisis effect. See Randall v. Sorrell, 126 S. Ct. 2479,

2500-2501 (2006) (Alito, J., concurring in part and concurring in the judgment).

The Court held in Buckley that, although the First

Amendment precludes Congress from placing binding

limits on a candidate’s independent campaign expenditures, Congress “may condition acceptance of public

funds on an agreement by the candidate to abide by

specified expenditure limitations.” 424 U.S. at 57 n.65.

Thus, Buckley establishes that a candidate’s insistence

on spending personal funds in amounts exceeding the

statutory threshold may legitimately be treated by Congress as a ground for withholding a federal subsidy to

which the candidate would otherwise be entitled. Moreover, the Court in Buckley recognized that a candidate’s

First Amendment right to make unlimited campaign

expenditures is not violated simply because the candidate is subjected to some practical disadvantage as a result of exercising that right.7

This case follows a fortiori from Buckley because the

disadvantage to which self-financing presidential candidates are subjected—i.e., the denial of federal funds that

would otherwise be paid to the candidate himself—is
31

much more direct and immediate than the competitive

injury that appellant claims he would suffer if an opponent were enabled to raise greater amounts of money.

If, as Buckley holds, Congress may treat a self-financing

presidential candidate’s spending decisions as a ground

for declining to provide federal money to the candidate

himself, there is no basis (especially in the context of a

facial challenge such as this) for treating the modification of limits on an opponent’s fundraising as a constitutional violation.

Appellant seeks to distinguish Buckley on the ground

that, unlike a presidential candidate who receives public

funds in exchange for his agreement to comply with statutory spending limits, appellant would have “receive[d]

no countervailing benefits” if he had decided to forgo

self-financing. Br. 55. Buckley makes clear, however,

that appellant cannot establish a First Amendment violation simply by showing (Br. 41) that Section 319 differentiates between House candidates who spend $350,000

or more on their own campaigns and House candidates

who do not. More fundamentally, however, appellant

cannot have it both ways. If he claims constitutional injury from his opponent’s increased funding options, he

cannot turn around and deny that he derives a benefit

from keeping the baseline limits in place.

The fundamental premise of appellant’s First Amendment challenge is that, in a zero-sum game like a

candidate election, any benefit to one candidate is for

constitutional purposes a burden on the other. Appellant argues on that basis that he was penalized for constitutionally protected conduct when the fundraising

restrictions on his opponent were loosened as a result

of his own campaign spending. That analysis logically

suggests, however, that appellant would derive a bene-
32

8 Likewise, Congress could have structured the relevant BCRA provisions such that the default contribution limit was higher and would be

reduced only if an opposing candidate certified that he would not selffinance beyond a certain limit. Under such a statute, spending restraint

would obviously be rewarded with reductions in an opponent’s contribution limits, but the substance of the statute would remain unchanged.

fit if the limits on contributions to his opponent were

made more restrictive. By agreeing to spend less than

$350,000, appellant could have prevented Section 319’s

expanded contribution limits from taking effect, thereby

reducing the pool of funds to which his opponent would

have access. It is therefore incorrect to say that the

candidate who forgoes self-financing derives no countervailing benefit.

Appellant contends (Br. 55) that, “[i]n the context of

the campaign finance system, imposition of the standard

contribution limits on one’s opponents—limits that are

uniformly applied to all other candidates—confers no

benefit; it simply preserves the status quo.” But as the

volume of stay requests this Court receives attests, in

many cases a party may derive substantial benefits from

simply preserving the status quo. Congress has no constitutional obligation, moreover, to limit private contributions to federal candidates at all. From a constitutional standpoint, application of the “standard contribution limits” to appellant’s opponent is just as gratuitous

as the federal subsidy involved in Buckley.

8

 In determining whether appellant could have derived a benefit

by agreeing to spend less of his own money on his campaign, the relevant question is not whether his opponent

would then have been subject to contribution limits

lower than those that applied to other House campaigns,

but whether the limits would have been lower than those
33

9 Appellant argues (Br. 46) that a self-financing candidate may sometimes “forgo substantial reliance on private contributions” in order to

convey the message “that he will best represent the electorate because

he is not beholden to individual, party, and committee donors.” But a

self-financing candidate who spends large amounts of personal wealth,

while declining on principle to accept contributions above the generally

applicable BCRA limits, is clearly better off under the BCRA regime

taken as a whole than he would be if campaign fundraising were unregulated. Such a candidate suffers no harm from the application of the

BCRA limits to his own campaign (since those limits simply bar him

from accepting contributions that he would decline in any event), and

(under appellant’s zero-sum theory) even the expanded limits that apply

to his opponent under Section 319 will place appellant in a better position than if no contribution limits existed.

that otherwise would have applied in appellant’s own

race.9

3. As the district court recognized, Congress enacted Section 319 to reduce the natural advantage that

wealthy individuals possess in campaigns for federal

office. J.S. App. 2a-3a n.2; see pp. 6-7, supra. The Court

in Buckley explained that, under the FECA contribution

limits, “the financial resources available to a candidate’s

campaign, like the number of volunteers recruited, will

normally vary with the size and intensity of the candidate’s support.” 424 U.S. at 56. The Court viewed that

correlation as a healthy byproduct of the contribution

limits it upheld.

The Court in Buckley also noted, however, that in

light of the Court’s invalidation of expenditure limits,

the “normal relationship” between a candidate’s financial resources and the level of popular support for his

candidacy “may not apply where the candidate devotes

a large amount of his personal resources to his campaign.” 424 U.S. at 56 n.63. In enacting Section 319,

Congress sought partially to restore that “normal rela-
34

tionship.” Section 319 also serves to counteract the public perception that wealthy people can buy seats in Congress, which can certainly have a corrosive effect by contributing to cynicism in the electorate. In addition, Section 319 increases the incentives for less wealthy candidates to run for office, and it encourages political parties

to recruit candidates based on merit, rather than personal financial wherewithal. See pp. 6-7, supra.

Although appellant repeatedly contends (e.g., Br. 25,

28) that attempting to level electoral opportunities for

candidates of different personal wealth is an illegitimate

governmental objective, this Court’s decisions do not

support that assertion. To be sure, the Constitution limits the means that Congress may employ to achieve that

goal. Thus, the Court in Buckley held that the “interest

in equalizing the relative financial resources of candidates competing for elective office” was a constitutionally insufficient justification for restrictions on a candidate’s own campaign spending. 424 U.S. at 54. That

holding, however, was based not on doubt as to the legitimacy of the relevant government interest, but on the

conclusion that “the First Amendment simply cannot

tolerate [the spending cap’s] restriction upon the freedom of a candidate to speak without legislative limit on

behalf of his own candidacy.” Ibid. Section 319, by contrast, reflects Congress’s effort to achieve the same objective without limiting the self-financing candidate’s

freedom of expression, in a manner calculated to increase the volume of campaign-related speech. Indeed,

not only are Congress’s goals unproblematic, but the

means it chose to pursue those objectives actually relax
35

10 Appellant cites three different passages in Buckley that, in appellant’s view, hold that leveling electoral opportunities is an illegitimate

governmental objective. See Br. 25 (citing Buckley, 424 U.S. at 48-49,

54); Br. 57 (citing 424 U.S. at 98). None of the cited passages supports

that proposition. The first passage states that “the concept that government may restrict the speech of some elements of our society in

order to enhance the relative voice of others is wholly foreign to the

First Amendment.” 424 U.S. at 48-49. By its terms, that statement

disapproves a particular means of achieving equalization (“restrict[ing]

the speech of some elements of our society”) but does not suggest that

equalization is an invalid objective. Similarly in the second passage, the

Court stated that the government’s “interest in equalizing the relative

financial resources of candidates competing for elective office * * * is

clearly not sufficient to justify the * * * infringement of fundamental

First Amendment rights” that a mandatory spending cap entails. Id.

at 54. The Court’s conclusion that the equalization interest is not

“sufficient” to justify direct restrictions on a self-financing candidate’s

speech does not imply that the interest is illegitimate. The third passage simply states that Congress need not treat all major and minor

parties identically in fashioning a public financing scheme. Id. at 98.

The conclusion that a different form of equalization is not constitutionally required says nothing about the legitimacy of the government interest asserted here.

contribution and coordinated-expenditure limits that

themselves trigger First Amendment scrutiny.10

In a related vein, appellant contends (Br. 28, 31) that

the Court’s decisions identify the prevention of actual or

apparent corruption as the only government interest

that can support campaign-finance regulation. That

argument is incorrect. It is true that, in sustaining statutory contribution limits against contentions that those

limits infringed the First Amendment rights of either

the potential recipient or the would-be donor, the Court

has relied exclusively on that anti-corruption rationale.

See, e.g., Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377,

388-389 (2000) (Shrink Mo.); Buckley, 424 U.S. at 26-27.
36

But even in that context, the Court has not identified the

rooting out of quid pro quo corruption as the only relevant interest, but has also allowed regulation of corporate electoral spending to ensure that the extent of such

spending correlates with actual public support for the

recipient or beneficiary. See, e.g., FEC v. Beaumont,

539 U.S. 146, 154, 162-163 (2003) (requirement that corporate contributions to federal candidates be made from

a separate segregated fund ensures that such contributions reflect the will of the persons from whom the corporation has obtained the money); Austin v. Michigan

State Chamber of Commerce, 494 U.S. 652, 659-660

(1990) (requirement that corporate express advocacy of

electoral results be financed from a separate fund validly addresses “the corrosive and distorting effects of

immense aggregations of wealth that * * * have little

or no correlation to the public’s support for the corporation’s political ideas”). Any public perception that

House seats are available only to the wealthy would

raise analogous concerns.

Moreover, in upholding BCRA’s disclosure requirements, the Court relied not only on the government’s

interest in “deterring actual corruption and avoiding any

appearance thereof,” but also on the separate interests

in “providing the electorate with information” and

“gathering the data necessary to enforce more substantive electioneering restrictions.” McConnell, 540 U.S. at

196; see id. 321 (Kennedy, J., concurring in the judgment in part and dissenting in part) (finding BCRA’s

disclosure requirements generally constitutional based

on the informational interest identified in the Court’s

opinion). The Court’s decisions thus do not announce a

per se rule that the prevention of actual or apparent

corruption is the only government interest that can jus-
37

11 Appellant argues (Br. 44) that “Section 319 regulates a selffinanced candidate’s speech on his own behalf” and therefore “is subject to strict scrutiny.” That is not correct. As stated, appellant’s own

spending remains unrestricted by Section 319. And to the extent Section 319 imposes consequences on anyone, it lessens the First Amendment burdens of opponents in certain circumstances. The burdens

lifted or relaxed are themselves subject to “relatively complaisant review under the First Amendment.” Beaumont, 539 U.S. at 161. In reviewing contribution limits against potential recipients’ claims that the

limits had been set too low, this Court has held that such limits should

be sustained unless they “prevent candidates from ‘amassing the resources necessary for effective [campaign] advocacy.’” Randall, 126

S. Ct. at 2492 (quoting Buckley, 424 U.S. at 21); see Shrink Mo., 528

U.S. at 397. There is no basis for applying any stricter standard of

review to the increased contribution limits at issue in this case, which

have no direct impact on the self-financing candidate’s conduct of his

own campaign, but simply expand the range of funds potentially

available to his opponent. But, in reality, the more straightforward

way to decide this case is to recognize that Section 319 allows a

potential self-financing candidate to choose which of two alternative

regimes will govern his opponent’s fundraising. Neither regime nor

the choice between them runs afoul of the First Amendment.

tify campaign-finance legislation. Rather, those decisions indicate that the range of interests that may support such legislation will vary depending on the nature

of the particular law involved and the severity of its impact on a candidate’s ability to conduct his campaign.

Because Section 319’s enhanced contribution limits impose no restrictions on a self-financing candidate’s own

electoral activities, they may be upheld based on government interests that would be insufficient to support

more intrusive regulation.11

The core rationale for Section 319—i.e., the public interest in diminishing the importance of personal wealth

as a criterion for election to federal office (and the related interest in diminishing the perception that wealth
38

has become an essential prerequisite for federal elective

office)—was not specifically identified in Buckley and is

not identical to the interests that public financing of

presidential campaigns is intended to serve. Appellant

makes no meaningful effort, however, to explain why the

reduction of wealth-based disparities in electoral opportunity should be regarded as an illegitimate government

objective. Congress has permissibly sought to reduce

such disparities in a variety of contexts. See, e.g., Legal

Servs. Corp. v. Velazquez, 531 U.S. 533, 536 (2001) (access to legal services); Schweiker v. Hogan, 457 U.S.

569, 571-572, 590 (1982) (access to medical services). Although the Constitution of course imposes important

limits on the means by which Congress may address

such disparities (e.g., Congress may not take private

property without compensation in order to transfer it to

a less wealthy individual), appellant identifies no other

sphere of endeavor in which the reduction of wealthbased disparities in opportunity has been treated as an

illegitimate governmental goal. There is no reason why

Congress is prohibited from seeking to level the playing

field when it comes to the pursuit of federal elective office, particularly when, as here, it places no restrictions

on a candidate’s ability to use his own personal wealth in

seeking office.

Appellant also argues (Br. 48-49, 50) that Section 319

fails to achieve its equalization objective because it ignores (or discounts the significance of) other sources of

funding, such as incumbents’ “war chests.” Unlike a

self-financing candidate’s personal fortune, however,

money raised (even in large aggregate amounts) through

contributions subject to the BCRA limits “will normally

vary with the size and intensity of the candidate’s support.” Buckley, 424 U.S. at 56. In enacting Section 319,
39

12 The “gross receipts advantage” is calculated based on funds acquired by each candidate as of December 31 of the year before the general election and counts 50% of gross receipts “that may be expended

in connection with the election.” 2 U.S.C. 441a-1(a)(2)(B)(ii) (Supp. V

2005). By taking account of the funds raised prior to the election year,

Congress sought to ensure that incumbents do not unduly benefit from

“war chests” they may have built up in advance.

Section 319 thus reflects a compromise between (a) treating funds

raised from private donors subject to the BCRA contribution limits in

precisely the same manner as a self-financing candidate’s accumulated

personal wealth, and (b) ignoring contributed funds altogether in calculating the self-financing candidate’s monetary advantage. That choice

was Congress’s to make. In upholding the FECA provisions that govern public financing of presidential campaigns, the Court in Buckley explained that “the choice of the percentage requirement that best accommodates the competing interests involved was for Congress to make.

* * * Without any doubt a range of formulations would [adequately

serve the relevant congressional purposes]. We cannot say that Congress’ choice falls without the permissible range.” 424 U.S. at 103-104;

see pp. 39-43, infra. The same analysis applies here.

Congress could therefore legitimately regard financial

disparities produced by one candidate’s great personal

wealth as more problematic than similar disparities created by another candidate’s superior fundraising prowess. Cf. Austin, 494 U.S. at 659-660 (noting that corporate express advocacy is potentially problematic for nonMCFL corporations because corporate wealth bears no

relationship to public support for a candidate). And, in

all events, Congress specifically adopted a “gross receipts advantage” approach (see p. 8 & note 2, supra) to

reduce any benefit to incumbents and other candidates

who may be able to raise sizable amounts in the year

prior to the election. 12

4. Appellant contends (Br. 28-29) that, because Section 319 permits opponents of self-financing candidates

to accept contributions in excess of the generally appli-
40

13 Because Congress has substantial discretion to craft the details of

a campaign-finance regime, Section 319 is not rendered unconstitutional

simply because thresholds other than $350,000 could reasonably have

been chosen (see Appellant Br. 50), or because the $350,000 threshold

is not indexed for inflation (see id. at 23).

cable FECA limit, it is inconsistent with the anti-corruption rationale on which those limits have been sustained.

That claim lacks merit.

In setting and later adjusting the FECA limit on individual contributions, Congress has sought to prevent

the actual or apparent corruption that large contributions might engender, while ensuring that candidates

can obtain the resources needed to run effective campaigns. As this Court has recognized, the task of identifying the specific dollar limit that strikes the most appropriate balance between those objectives is largely

entrusted to Congress. See Buckley, 424 U.S. at 30 (explaining that, “[i]f it is satisfied that some limit on contributions is necessary, a court has no scalpel to probe,

whether, say, a $2,000 ceiling might not serve as well as

$1,000") (citation omitted); accord Shrink Mo., 528 U.S.

at 397.13

The modified contribution and coordinated-expenditure limits contained in Section 319 do not reflect congressional abandonment of FECA’s anti-corruption purpose. Rather, they reflect Congress’s determination

that the balance should be adjusted in a subset of elections to address an additional legitimate interest that is

distinctly raised in that subset. Congress’s decision is

analogous to a State’s decision to set different contribution limits for different races based on a variety of factors such as the costs of different elections and the numbers of voters that need to be reached. This Court

might have concluded that the highest contribution limit
41

14 Section 319 was carefully crafted to target the problems that Congress identified without unduly burdening or benefitting either selffinancing candidates or their opponents. Section 319’s disclosure requirements do not apply to all self-financing candidates, but only to

those who spend more than $350,000 on their own campaigns. The

opponent’s contribution limits are relaxed only when the OPFA

disparity between the two candidates exceeds $350,000. See note 2,

supra. Section 319 caps the amount of increased contributions and

for any race must apply to every race, on the theory that

the State had apparently concluded that the highest

limit was consistent with preventing quid pro quo corruption. Instead, the Court upheld a variable-limit regime in Shrink Missouri, and struck down such a system in Randall because the applicable limits were too

low in absolute terms, not just in relation to other state

limits. There is no reason that Congress cannot make an

analogous judgment that certain kinds of House races

require higher contribution limits.

Specifically, Congress determined that, for elections

in which a self-financing candidate’s expenditures threaten to sever the usual link between a candidate’s financial resources and the level of his actual public support,

the fundraising limits applicable to opposing candidates

should be recalibrated to account for the fact that one

candidate’s spending is enhanced based on factors not

tied to any indication of popular support. See 148 Cong.

Rec. at 3603 (statement of Sen. McCain) (“Congress has

concluded that the contribution limits—despite their

fundamental importance in fighting actual and apparent

corruption—should be relaxed to mitigate the countervailing risk that they will unfairly favor those who are

willing, and able, to spend a small fortune of their own

money to win election.”). That is a permissible determination.14
42

coordinated party expenditures that an opponent may accept, and thus

in most circumstances prevents an opponent from raising more in

additional funds under the provision than the self-financing candidate’s

expenditures of personal funds on his own campaign. 2 U.S.C.

441a-1(a)(3)(A)(ii) (Supp. V 2005). In addition, the opponents of selffinancing candidates remain subject to substantial statutory fundraising

restrictions that help to reduce the possibility of corruption or the appearance thereof. Section 319 does not affect the contribution restrictions on corporations, labor unions, foreign nationals, or political

committees, and it relaxes but does not eliminate the limits on contributions by individuals.

Nothing in this Court’s decisions suggests that Congress is foreclosed from recalibrating the statutory limits for particular elections in which one candidate’s large

expenditures of personal wealth implicate a government

interest distinct from those that inform the generally

applicable caps. Cf. Buckley, 424 U.S. at 36 (explaining

that FECA “provisions [excepting some volunteers’ expenses from contribution limits] are a constitutionally

acceptable accommodation of Congress’ valid interest in

encouraging citizen participation in political campaigns

while continuing to guard against the corrupting potential of large financial contributions to candidates”).

Such accommodation of competing interests is the norm

rather than the exception in legislation, and “[c]ourts

* * * must respect and give effect to these sorts of compromises.” Ragsdale v. Wolverine World Wide, Inc., 535

U.S. 81, 94 (2002). As this Court has explained,

no legislation pursues its purposes at all costs. Deciding what competing values will or will not be sacrificed to the achievement of a particular objective is

the very essence of legislative choice—and it frustrates rather than effectuates legislative intent sim-
43

plistically to assume that whatever furthers the statute’s primary objective must be the law.

Rodriguez v. United States, 480 U.S. 522, 525-526 (1987)

(per curiam).

5. Appellant’s repeated assertions (Br. 22, 32, 34)

that Section 319 favors incumbents over challengers is

unsupported by the statutory text or by record evidence.

Section 319 draws no express distinction between incumbents and challengers; its application turns solely on

whether a particular candidate has made campaignrelated expenditures of personal funds in an amount

exceeding the statutory threshold. And the prospect of

self-financing was not a mere hypothetical possibility;

many incumbents had engaged in self-financing in the

past and would likely do so in the future.

The record evidence concerning Section 319’s actual

implementation also does not support appellant’s characterization of Section 319 as an incumbent-protective

measure. During the first four years after Sections 304

and 319 were adopted, 110 House and Senate candidates

became eligible to receive enhanced contributions under

the modified limits, but only six were incumbents. See

J.A. 86, 88. The other 104 “beneficiaries” were not incumbents. If Section 319 were designed as appellant

suggests, it has proved remarkably ineffective. Especially in the context of a facial challenge such as this,

appellant’s speculation about the impact of Section 319

on incumbents versus challengers provides no basis for

invalidating Section 319.

Appellant’s reliance (Br. 33) on the plurality opinion

in Randall, 126 S. Ct. at 2495-2496, is therefore misplaced. In Randall, the plurality’s conclusion that the

contested contribution limits would often impair a challenger’s ability to mount an effective campaign was
44

based in part on extensive record evidence. See ibid.

Because appellant has identified no comparable evidentiary basis for concluding that Section 319 is skewed in

favor of incumbents, his challenge should be rejected.

See Buckley, 424 U.S. at 31 (“Absent record evidence of

invidious discrimination against challengers as a class,

a court should generally be hesitant to invalidate legislation which on its face imposes evenhanded restrictions.”).

C. Appellant’s Equal Protection Challenge To Section 319’s

Expanded Contribution Limits Lacks Merit

Appellant contends (Br. 56) that “Section 319 violates

the equal protection component of the due process

clause of the Fifth Amendment because it subjects opposing candidates in the same election to different fundraising * * * obligations.” Appellant’s claim to a constitutional entitlement to a perfectly level playing field

is both ironic in light of the thrust of his other arguments and unavailing in any event. The district court

correctly recognized that a showing of differential treatment cannot by itself establish a constitutional violation.

Rather, “[t]he touchstone of an Equal Protection argument is that the challenged statute is flawed because it

treats similarly situated entities differently.” J.S. App.

17a (emphasis added). As the district court explained,

“[appellant] cannot make this showing because the reasonable premise of [Section 319] is that” candidates who

spend more than $350,000 of their own money on a

House campaign are “situated differently from those

who lack the resources to fund their own campaigns.”

Ibid.

The Court in Buckley held that “the Constitution

does not require Congress to treat all declared candi-
45

dates the same for public financing purposes.” 424 U.S.

at 97. The Court rejected equal protection challenges to

the FECA criteria used to determine whether and to

what extent presidential candidates would receive public

funding. Id. at 97-108. And, as explained above, the

Court held that public funds could be denied to any candidate who refused to abide by statutory spending limits. That holding establishes that, while Congress may

not require compliance with statutory spending caps, it

may permissibly treat candidates who adhere to such

limits as differently situated from those who decline to

do so, even when both candidates seek the same electoral office. Appellant is therefore wrong in arguing

(Br. 57) that, for equal protection purposes, “[a] selffinanced candidate and her opponents are fundamentally

similar because they are all competing for the same

House seat.” There is no reason to regard Section 319’s

differentials in the amounts of money that candidates

may receive from private contributions as more suspect

than analogous differentials in the distribution of federal

funds.

Appellant further contends that Section 319 violates

equal protection principles because (a) the equalization

of electoral opportunities for wealthy and non-wealthy

candidates is not a legitimate government interest (Br.

57), and (b) the statute treats accumulated personal

wealth differently from funds raised from private donors

under BCRA’s contribution limits (Br. 58). Framed as

First Amendment arguments, those contentions lack

merit for the reasons stated at pp. 34-38 and 38-39, supra. They are no more persuasive when repackaged as

equal protection theories.
46

III. SECTION 319’s DISCLOSURE REQUIREMENTS ARE

CONSTITUTIONAL ON THEIR FACE

Section 319 creates three new reporting requirements for self-financing candidates: a declaration of

intent to self-finance, an initial notification that the candidate has spent more than $350,000 of personal funds,

and additional notifications within 24 hours of each

$10,000 in aggregate expenditures of personal funds.

2 U.S.C. 441a-1(b) (Supp. V 2005). Except for the declaration of intent, similar information is ultimately disclosed under FECA provisions that long predate Section

319, and the constitutionality of those statutory predecessors was upheld by this Court in Buckley. See 424

U.S. at 66-68, 80-82; p. 5, supra. As the district court

correctly held (J.S. App. 6a-7a), appellant established a

judicially cognizable injury resulting from Section 319’s

disclosure requirements. Because appellant loaned his

campaign more than $350,000, he was subject to those

requirements even though his opponent did not ultimately invoke Section 319’s modified contribution and

coordinated-expenditure limits. And while Section 319’s

disclosure obligations do not differ substantially from

the pre-existing FECA requirements, the differences

are sufficient to constitute an Article III “injury in fact.”

On the merits, however, appellant has identified no

colorable basis for holding that the challenged disclosure requirements are unconstitutional on their face.

Because the disclosure requirements at issue here pertain solely to a self-financing candidate’s own campaign

spending, they do not implicate the privacy interests of

donors or other supporters. Appellant does not challenge the generally applicable FECA disclosure requirements, and he makes no meaningful effort to explain

why the insubstantial differences between those require-
47

ments—which this Court has upheld—and Section 319’s

disclosure provisions should be accorded any constitutional significance.

A. The provisions at issue in Buckley required disclosure by candidate committees and other political committees of the contributions of any person who had given

in excess of $100 in a calendar year, as well as disclosures by any person making an independent expenditure

of over $100. See 424 U.S. at 63, 74-75. Because compelled disclosure of contributors’ names “can seriously

infringe on privacy of association and belief guaranteed

by the First Amendment,” the Court reviewed the provisions to determine whether there was a “relevant correlation or substantial relation between the government

interest and the information required to be disclosed.”

Id. at 64 (internal quotation marks omitted) (quoting

Bates v. City of Little Rock, 361 U.S. 516, 525 (1960),

and Gibson v. Florida Legislative Investigation Comm.,

372 U.S. 539, 546 (1963)). The Court found that the disclosures required by FECA bore a “substantial relation”

to the important governmental interests of (a) encouraging maximum transparency in political activity by providing financial information to the public, (b) facilitating

enforcement of substantive funding regulations, and (c)

deterring actual or apparent corruption. Id. at 66-68,

80-82; see p. 5, supra. The disclosure of independent

expenditures, the Court noted, was “a reasonable and

minimally restrictive method of furthering First Amendment values by opening up the basic processes of our

federal election system to public view.” Buckley, 424

U.S. at 82.

The disclosure requirements at issue here are significantly less intrusive than the requirements this Court

has previously upheld. Disclosure of a self-financing can-
48

15 Appellant suggests (Br. 46) that some voters may find self-financing candidates attractive because such candidates are “not beholden

to individual, party, and committee donors.” Other voters may view

with suspicion a candidate who eschews efforts to attract the broad public support that is necessary to raise substantial funds under BCRA’s

contribution limits. Other voters may not view the information as inherently positive or negative but may be prompted to investigate the

underlying source of personal wealth being brought to bear for insights

into how the candidate may vote, much as they might do in evaluating

the sources of contributions. For any of those classes of voters, information concerning the extent to which a particular candidate relies on

personal wealth to finance his campaign is relevant to the voter’s assessment of the candidate’s worthiness for public office.

didate’s spending does not reveal the names of supporters and therefore does not implicate the privacy interests of persons other than the candidate himself. Like

the disclosure provisions upheld in Buckley, moreover,

Section 319’s disclosure requirements serve important

government interests. Knowing that a candidate is funding his campaign from accumulated wealth, rather than

from a broad base of supporters, “provides the electorate with information ‘as to where political campaign

money comes from * * * ’ in order to aid the voters in

evaluating those who seek federal office.” Buckley, 424

U.S. at 66-67 (footnote and citation omitted).15 Disclosure regarding personal spending also deters corruption

and its appearance, and enables the gathering of data

necessary to detect violations of the contribution limits,

because of the possibility that money received from private donors may be misrepresented to be part of the candidate’s personal wealth. In addition, as appellant concedes (Br. 19), timely reporting of a self-financing candidate’s expenditures of personal funds furthers the operation of Section 319’s funding provisions.
49

B. Since Buckley, FECA has subjected all federal

candidates to disclosure requirements similar to those

imposed by Section 319. See pp. 5-6, supra. A candidate’s name, the office sought, the date and amount of

each expenditure of personal funds, and the total amount of personal funds spent to date in a particular election cycle all must be publicly disclosed either in a candidate’s Statement of Candidacy, 2 U.S.C. 432(e)(1); 11

C.F.R. 101.1, or on the periodic reports each candidate’s

committee must file, 2 U.S.C. 434(b); 11 C.F.R. 104.3.

Thus, appellant would ultimately have been required to

disclose all of the information that Section 319 requires

to be contained in the initial and additional reports of

personal funds spending. Section 319’s disclosure requirements go beyond those imposed by pre-existing

provisions of law only in that (1) Section 319 requires

each candidate to file a declaration of intent regarding

projected expenditures of personal funds, and (2) Section 319 requires self-financing candidates to disclose

certain information at an earlier date than would have

been required under pre-existing FECA provisions.

Neither of those requirements imposes a burden of constitutional dimension.

1. Although Section 319’s “declaration of intent” requirement has no close analog in pre-BCRA law, that

requirement places no significant burden on self-financing candidates. Under Section 319, each candidate for

federal office must provide, within 15 days after becoming a candidate, an estimate of the amount (if any) by

which his campaign-related expenditures of personal

funds will exceed $350,000. See 2 U.S.C. 441a-1(b)(1)(B)

(Supp. V 2005); J.A. 102-103. As its name implies, the

declaration is a statement of current intent, not a binding decision as to the amount of personal funds that the
50

candidate will spend. The filing of a declaration of intent does not preclude the candidate from ultimately

spending more (or less) than the projected amount of

personal funds if circumstances change, and the Commission has never commenced an enforcement action

premised on the alleged falsity of the declaration.

The requirement that a declaration of intent be filed

does not violate the First Amendment rights of any candidate. Appellant’s contention (Br. 38) that the declaration of intent “details a candidate’s most sensitive, confidential information” is untenable. Far from describing

the nuances of a candidate’s “strategy” (ibid.), the declaration of intent simply provides an estimate of the

amount of personal funds in excess of $350,000 that a

House candidate will spend on his campaign. For appellant’s own 2006 campaign, for example, the declaration

of intent revealed only the information “$0.00” for the

primary election and “$1,000,000” for the general election. J.A. 103. Moreover, the basic information that is

the subject of the declaration of intent (the amount of

personal funds spent on a campaign) must ultimately be

disclosed in any event.

Appellant’s constitutional challenge to Section 319’s

“declaration of intent” requirement is further undermined by the fact that appellant actively publicized the

same information that he now characterizes as sensitive

strategic data. On March 29, 2006, six days after filing

his initial statement of candidacy with the FEC, see J.S.

App. 5a, appellant issued a press release announcing his

candidacy. See Jack Davis 2006 Candidacy Announcement (Mar. 29, 2006) <http://jackdavis.org/new/press/

2006.asp>. That press release stated that appellant

“self funded his campaign with over 1 million dollars in

[2004] and will do that again.” Ibid. Appellant himself
51

16 If a particular candidate believed that the declaration would impose

an unconstitutional burden because of the unique circumstances of his

own campaign, he could of course bring an as-applied challenge. The

timing and frequency of the declaration are not constitutionally burdensome. Only one declaration is required, and it covers both the primary

and general elections. See, e.g., J.A. 102-103. The declaration is incorporated into the long-required Statement of Candidacy, so that no

additional forms need be filed. Ibid. Fifteen days is the same amount

of time Congress set for all candidates to designate a campaign committee. 2 U.S.C. 432(e)(1). Advance disclosure requirements regarding expenditures of $10,000 or more for “electioneering communications”

were found constitutional in McConnell because they “d[o] not prevent

anyone from speaking.” 540 U.S. at 201 (citation omitted). The brief

report seeks only easily ascertainable information wholly within the

knowledge of the candidate and candidate’s committee, and could be

completed and filed within minutes. See, e.g., J.A. 102-103. It does not

require disclosure of the names of supporters, the source of the personal funds, or the manner in which the money will be spent to support

the candidate’s campaign.

contends (Br. 46), moreover, that a self-financing candidate’s “personal spending not only conveys his general

electoral message, it is often an integral element of that

message.” It is therefore especially unlikely that the

declaration of intent required by Section 319 will result

in the disclosure of information that the self-financing

candidate regards as sensitive or confidential. Certainly

there is no basis to assume, for purposes of a facial challenge such as this, that the declaration will typically result in disclosure of sensitive or confidential information.16

2. Section 319 further provides that a self-financing

candidate must file (a) an initial notification within 24

hours after making or obligating aggregate campaignrelated expenditures from personal funds of more than

$350,000 and (b) an additional notification whenever the

candidate spends a further increment of more than
52

$10,000 of personal funds on his campaign. See 2 U.S.C.

441a-1(b)(1)(C)-(D) (Supp. V 2005). Those provisions ensure, inter alia, that opposing candidates are promptly

apprised of information bearing on their entitlement to

invoke Section 319’s expanded contribution limits. Because every federal candidate must ultimately disclose

the amount of personal funds expended on his campaign,

Section 319’s initial and additional notification requirements affect only the timing, not the substance, of the

required disclosures. See J.S. App. 16a.

As the district court correctly concluded, Section

319’s timing requirements do not impair appellant’s

rights under the First Amendment, particularly because

those requirements “are no more burdensome than other BCRA reporting deadlines that were upheld in McConnell.” J.S. App. 16a; see McConnell, 540 U.S. at 196-

201. The 24-hour deadline to disclose the making or obligating of personal funds is not unique to Section 319.

Any person making disbursements in an aggregate amount in excess of $10,000 in a calendar year on “electioneering communications,” as defined in BCRA, 2 U.S.C.

434(f)(3) (Supp. V 2005), must report those disbursements within 24 hours. 2 U.S.C. 434(f)(1) (Supp. V

2005). This Court upheld that requirement, noting that

“the interest in assuring that disclosures are made

promptly and in time to provide relevant information to

voters is unquestionably significant.” McConnell, 540

U.S. at 200. In addition, all candidates must report contributions of $1000 or more received between two and 20

days before an election within 48 hours of receipt, even

if the contribution is from the candidate. 2 U.S.C.

434(a)(6) (2000 & Supp. V 2005).

3. The district court also correctly explained that

“any burden that [Section 319’s] reporting provisions
53

17 See Schedule A of FEC Form 3, Report of Receipts and Disbursements for an Authorized Committee (Feb. 2003) <http://www.fec.gov/

pdf/forms/fecfrm3.pdf> (providing a check-box for the committee to inform the Commission, opponents, and the public that a particular conmay hypothetically impose is not ‘unilateral’” because

“[t]he opponent of a self-financing candidate also faces

additional reporting requirements, which are similar to

those of the self-financed candidate[].” J.S. App. 16a.

Under Section 319, all candidates must file a declaration stating whether they intend to spend personal

funds in excess of the statutory threshold. 2 U.S.C.

441a-1(b)(1)(B) (Supp. V 2005); see J.A. 103 (FEC form

states: “If you do not intend to expend personal funds

exceeding the threshold amount for either [the primary

or general] election, you must enter ‘0.00' for each.”).

The opponent of a self-financed candidate must (1) calculate the OPFA when the threshold is reached and each

time the self-financed candidate reports an additional

$10,000 expenditure and file a notice within 24 hours if

and when the new OPFA entitles the candidate to solicit

increased contributions; (2) file a notice with the Commission and the national and state committees of his

political party within 24 hours if and when increased

contributions received have reached the proportionality

cap; and (3) report any refunds of money raised under

Section 319. 11 C.F.R. 400.30(b), 400.31(e)(1)(ii), 400.54.

Moreover, if the opponent of a self-financing candidate accepts increased contributions from individuals

under Section 319, these contributions must be reported

in the same format as all contributions above $200, in

mandatory periodic reports, with an indication that the

particular contribution was permitted pursuant to Section 319.17 Additionally, political parties that make coor-
54

tribution was permissible due to “Limits Increased Due to Opponent’s

Spending (2 U.S.C. §441a(i)/441a-1)”).

dinated expenditures under Section 319 must report,

within 24 hours, those expenditures to the FEC and to

the candidate on whose behalf the money was spent. 11

C.F.R. 400.30(c)(2). The reporting requirements that

apply to self-financing candidates are thus part of a

larger disclosure regime, not a unique imposition on a

discrete class of individuals. This Court has upheld such

requirements in Buckley and McConnell, and there is no

basis for a different result here.

CONCLUSION

The appeal should be dismissed on the ground that

the case is moot. In the alternative, appellant’s challenge to Section 319’s increased contribution limits

should be dismissed for lack of standing, and the judgment of the district court with respect to Section 319’s

disclosure requirements should be affirmed.

Respectfully submitted.

THOMASENIA P. DUNCAN

General Counsel

DAVID KOLKER

Associate General Counsel

KEVIN DEELEY

Assistant General Counsel

HOLLY J. BAKER

CLAIRE N. RAJAN

Attorneys

Federal Election Commission

PAUL D. CLEMENT

Solicitor General

GREGORY G. GARRE

Deputy Solicitor General

MALCOLM L. STEWART

Assistant to the Solicitor

General

MARCH 2008
(1a)

APPENDIX

[LOGO] 

FEDERAL ELECTION COMMISSION

WASHINGTON, D.C. 20463 

CERTIFIED MAIL

RETURN RECEIPT REQUESTED APR 19 2006

Jack Davis

Jack Davis for Congress

P.O. Box 2004

Akron, NY 14001

Robert R. Davis, Treasurer

Jack Davis for Congress

P.O. Box 2004

Akron, NY 14001

RE: MUR 5726

Jack Davis

Jack Davis for Congress and Robert R. Davis,

in his official capacity as treasurer

Dear Messrs. Davis:

Based on information ascertained in the normal

course of carrying out its supervisory responsibilities,

the Commission, on April 4, 2006, found that there is

reason to believe Jack Davis for Congress and Robert R.

Davis, in his official capacity as treasurer, violated

2 U.S.C. §§ 441a-1(b)(1)(C) and 441a-1(b)(1)(D), provisions of the Federal Election Campaign Act of 1971,
2a

as amended (“the Act”), and 11 C.F.R. §§ 400.21(b)

and 400.22(b). Additionally, the Commission found that

there is reason to believe that Jack Davis violated

2 U.S.C. §§ 441a-1(b)(1)(C) and 441a-1(b)(1)(D). The

Factual and Legal Analyses, which formed a basis for

the Commission’s findings, are attached for your information. 

You may submit any factual or legal materials that

you believe are relevant to the Commission’s consideration of this matter. Please submit such materials to the

General Counsel’s Office within 15 days of receipt of this

letter. Where appropriate, statements should be submitted under oath. In the absence of additional information, the Commission may find probable cause to believe

that a violation has occurred and proceed with conciliation.

In order to expedite the resolution of this matter, the

Commission has also decided to offer to enter into negotiations directed towards reaching a conciliation agreement in settlement of this matter prior to a finding of

probable cause to believe. Enclosed is a conciliation agreement that the Commission has approved. If you are

interested in expediting the resolution of this matter

by pursuing pre-probable cause conciliation, and if you

agree with the provisions of the enclosed agreement,

please sign and return the agreement, along with the

civil penalty, to the Commission. In light of the fact that

conciliation negotiations, prior to a finding of probable

cause to believe, are limited to a maximum of 30 days,

you should respond to this notification as soon as possible.
3a

Requests for extensions of time will not be routinely

granted. Requests must be made in writing at least five

days prior to the due date of the response and specific

good cause must be demonstrated. In addition, the Office of the General Counsel ordinarily will not give extensions beyond 20 days.

If you intend to be represented by counsel in this

matter, please advise the Commission by completing the

enclosed form stating the name, address, and telephone

number of such counsel, and authorizing such counsel to

receive any notifications and other communications from

the Commission.

This matter will remain confidential in accordance

with 2 U.S.C. §§ 437g(a)(4)(B) and 437g(a)(12)(A), unless

you notify the Commission in writing that you wish the

investigation to be made public. If you have any questions, please contact Zachary Mahshie, the attorney assigned to this matter, at (202) 694-1650.

Sincerely,

Michael E. Toner

Chairman

Attachments

 

1. Davis Factual and Legal Analysis

2. Jack Davis for Congress Factual and Legal 

Analysis

3. Proposed Conciliation Agreement

4. Designation of Counsel Form