UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA

JACK DAVIS, 

 Plaintiff, 

 v. 

FEDERAL ELECTION COMMISSION, 

 Defendant. 

) 

) 

) Case No. 1:06CV01185 (TG)(GK)(HK) 

) 

) Three-Judge Court 

) 

) 

) 

) 

DEFENDANT FEDERAL ELECTION COMMISSION’S MEMORANDUM IN 

SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT AND IN 

OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 

Lawrence H. Norton 

General Counsel 

Richard B. Bader 

Associate General Counsel 

(D.C. Bar # 911073) 

Colleen T. Sealander 

Assistant General Counsel 

Holly J. Baker 

 Attorney 

Claire N. Rajan 

Attorney 

 

FOR THE DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, D.C. 20463 

September 8, 2006 (202) 694-1650 
TABLE OF CONTENTS 

 Page 

BACKGROUND ............................................................................................................2 

I. PARTIES............................................................................................................2 

A. Federal Election Commission ...................................................................2 

 B. Jack Davis .................................................................................................2

II. THE MILLIONAIRES’ AMENDMENT ...........................................................3 

A. The Purpose Of The Millionaires’ Amendment ........................................3 

B. The Operation Of The Millionaires’ Amendment In Campaigns For 

 The House Of Representatives...................................................................7 

C. The Proportionality Provision....................................................................8 

D. The Millionaires’ Amendment’s Reporting Requirements........................9 

ARGUMENT................................................................................................................10 

I. STANDARD OF REVIEW...............................................................................10 

II. THE MILLIONAIRES’ AMENDMENT IS CLOSELY DRAWN TO 

 SERVE COMPELLING GOVERNMENTAL INTERESTS............................11 

III. THE MILLIONAIRES’ AMENDMENT DOES NOT RESTRICT 

 SPEECH.............................................................................................................16 

 A. The Millionaires’ Amendment Places No Restrictions On A 

 Candidate’s Right To Spend His Own Money On Campaign 

 Speech......................................................................................................16 

 B. The Millionaires’ Amendment Does Not Chill Speech ............................20 

IV. THE REPORTING PROVISIONS OF THE MILLIONAIRES’ 

 AMENDMENT DO NOT VIOLATE THE FIRST AMENDMENT.................23 

A. The Reporting Provisions Are Essential To The Operation Of The 

 Millionaires’ Amendment.........................................................................23 

B. The Reporting Requirements Do Not Burden Speech..............................25 
V. THE MILLIONAIRES’ AMENDMENT DOES NOT VIOLATE A 

 SELF-FINANCING CANDIDATE’S FIFTH AMENDMENT RIGHT 

 TO EQUAL PROTECTION...............................................................................27 

A. Self-Financed Candidates Are Not Similarly Situated to Privately 

 Financed Candidates.................................................................................28 

B. Treating Self-Financed Candidates Differently Under the Millionaires’ 

 Amendment Is Justified ............................................................................29 

C. The Millionaires’ Amendment Does Not Favor Incumbents 

Over Challengers.......................................................................................30 

CONCLUSION.............................................................................................................33 

ii
TABLE OF AUTHORITIES 

 Page

Broadrick v. Oklahoma, 413 U.S. 601 (1973)..............................................................11 

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

California Medical Assoc. v. FEC, 453 U.S. 182 (1981) .............................................28 

Carey v. Brown, 447 U.S. 455 (1980) ....................................................................19, 28 

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) .............................................................10 

Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290 (1981)....................23 

Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985)..........................................27 

Clement v. Fashing, 457 U.S. 957 (1982).....................................................................28 

Colorado Republican Federal Campaign Committee, 518 U.S. 604 (1996) .................7 

Craig v. Boren, 429 U.S. 190 (1976)............................................................................27 

Daggett v. Committee on Gov’t Ethics and Election Practices, 205 F.3d 445 

 (1st Cir. 2000)..........................................................................................................19 

 

Daggett v. Webster, 74 F.Supp.2d 53, aff’d sub nom., Daggett v. Committee

 on Gov’t Ethics and Election Practices, 205 F.3d 445 (1st Cir. 2000)..............23, 25 

Day v. Holahan, 34 F.3d 1356 (8th Cir. 1994).............................................................21 

FEC v. Colorado Republican Federal Campaign Committee, 533 U.S. 431 (2001)......7 

FEC v. National Right to Work Committee, 459 U.S. 197 (1982)...............................13 

First National Bank of Boston v. Belotti, 435 U.S. 765 (1978)....................................13 

FW/PBS, Inc. v. Dallas, 493 U.S. 215 (1990)..............................................................11 

Gable v. Patton, 142 F.3d 940 (6th Cir. 1998)..............................................................19 

Heller v. Doe, 509 U.S. 312 (1993)..............................................................................28 

Kennedy v. Gardner, 1999 WL 814273 (D.N.H. 1999) ...............................................19 

iii
McConnell v. FEC, 540 U.S. 93 (2003) ................................................................passim

Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 

 789 (1984)................................................................................................................11 

NAACP v. Jones, 131 F.3d 1317 (9th Cir. 1997)........................................................28 

National Endowment for the Arts v. Finley, 524 U.S. 569 (1998)...............................11 

Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000).............................14 

Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37 (1983)....................19 

Plyler v. Doe, 457 U.S. 202 (1977)...............................................................................30 

Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81 (2002) ....................................14 

Randall v. Sorrell, 126 S.Ct. 2479 (June 26, 2006) ......................................................13 

Republican National Comm. v. FEC, 487 F.Supp 280 (S.D.N.Y.) 

 (three-judge district court), aff’d, 445 U.S. 955 (1980)...........................................18 

Rodriguez v. United States, 480 U.S. 522 (1987).........................................................14 

Rosentiel v. Rodriguez, 101 F.3d 1544 (8th Cir. 1996)...........................................21, 22 

Rust v. Sullivan, 500 U.S. 173 (1991)..........................................................................11 

San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1 (1973) ....................28 

Tele-Communications of Key West v. United States, 757 F.2d 1330 

 (D.C. Cir. 1985) .......................................................................................................19 

United States v. UAW, 352 U.S. 567 (1957)................................................................13 

Vote Choice, Inc. v. DiStefano, 4 F.3d 26 (1st Cir. 1993) ............................................19 

STATUTES AND REGULATIONS 

Federal Election Campaign Act of 1971, as amended, codified at 2 U.S.C. 

 431-455 .............................................................................................................passim

Bipartisan Campaign Reform Act of 2002, Public Law 107-155, 

 116 Stat. 81 (2002)............................................................................................passim

2 U.S.C. 431(2)...............................................................................................................3

iv
2 U.S.C. 432(e)(1).........................................................................................................26 

2 U.S.C. 434(a)(6).........................................................................................................26 

2 U.S.C. 434(b).............................................................................................................26 

2 U.S.C. 434(f)(1).........................................................................................................26 

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

2 U.S.C. 437d(a)(6).........................................................................................................2 

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

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

2 U.S.C. 437d(e) ............................................................................................................2 

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

2 U.S.C. 437f(a)(1) .......................................................................................................24 

2 U.S.C. 437g(a)(1).........................................................................................................2 

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

2 U.S.C. 438(a)(8)...........................................................................................................2 

2 U.S.C. 441a ..................................................................................................................5 

2 U.S.C. 441a(a)..............................................................................................................1

2 U.S.C. 441a(a)(1)(A) ...................................................................................................7 

2 U.S.C. 441a(a)(3)(A) ...................................................................................................7 

2 U.S.C. 441a-1...........................................................................................................1, 4 

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

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

2 U.S.C. 441a-1(a)(3)......................................................................................................9 

2 U.S.C. 441a-1(a)(3)(ii)...........................................................................................9, 15 

v
2 U.S.C. 441a-1(a)(4) .....................................................................................................9 

2 U.S.C. 441a-1(a)(4)(A)................................................................................................9 

2 U.S.C. 441a-1(b)(1)(A)................................................................................................7 

2 U.S.C. 441a-1(b)(1)(B)........................................................................................10, 27 

2 U.S.C. 441a-1(b)(1)(C)..........................................................................................3, 10 

2 U.S.C. 441a-1(b)(1)(D)..........................................................................................3, 10 

2 U.S.C. 441a-1(b)(1)(F) ..............................................................................................10 

2 U.S.C. 441a(d) ...................................................................................................1, 7, 15 

2 U.S.C. 441a(i)..............................................................................................................4

11 C.F.R. 101.1 ............................................................................................................26 

11 C.F.R. 104.3.............................................................................................................26 

11 C.F.R. 110.1(b) ..........................................................................................................5

11 C.F.R. 400.30...........................................................................................................10 

11 C.F.R. 400.30(b) ......................................................................................................10 

11 C.F.R. 400.30(c)(2)..................................................................................................10 

11 C.F.R. 400.31...........................................................................................................10 

11 C.F.R. 400.31(e)(1)(ii).......................................................................................10, 27 

LEGISLATIVE HISTORY 

147 Cong. Rec. S2433-02 (daily ed. Mar. 19, 2001)......................................................4 

147 Cong. Rec. S2434 (daily ed. Mar. 19, 2001) ...........................................................4 

147 Cong. Rec. S2536-02 (daily ed. Mar. 20, 2001)......................................................4 

147 Cong. Rec. S2536-38 (daily ed. Mar. 20, 2001)......................................................4 

147 Cong. Rec. S2537 (daily ed. Mar. 20, 2001) ...........................................................7 

vi
147 Cong. Rec. S2537-38 (daily ed. Mar. 20, 2001)......................................................5 

147 Cong. Rec. S2538 (daily ed. Mar. 20, 2001) .......................................................5, 9 

147 Cong. Rec. S2540 (daily ed. Mar. 20, 2001) ...........................................................6 

147 Cong. Rec. S2546 (daily ed. Mar. 20, 2001) .....................................................6, 17 

147 Cong. Rec. S2546-47 (daily ed. Mar. 20, 2001)......................................................4 

147 Cong. Rec. S2547 (daily ed. Mar. 20, 2001) ...........................................................5 

147 Cong. Rec. S2845-02 (daily ed. Mar. 21, 2001)......................................................4 

147 Cong. Rec. S2845-52 (daily ed. Mar. 21, 2001)......................................................4 

147 Cong. Rec. S3084-02 (daily ed. Mar. 29, 2001)......................................................4 

147 Cong. Rec. S3084-122 (daily ed. Mar. 29, 2001)....................................................4 

147 Cong. Rec. S3124-41 (daily ed. Mar. 29, 2001)......................................................4 

147 Cong. Rec. S3183-01 (daily ed. Mar. 30, 2001)......................................................4 

147 Cong. Rec. S3192 (daily ed. Mar. 30, 2001) ...........................................................8 

147 Cong. Rec. S3194-95 (daily ed. Mar. 30, 2001)......................................................8 

147 Cong. Rec. S3283-98 (daily ed. Mar. 30, 2001)......................................................4 

147 Cong. Rec. S3233-06 (daily ed. Apr. 2, 2001) ........................................................4 

147 Cong. Rec. S3233-61 (daily ed. Apr. 2, 2001) ........................................................4 

148 Cong. Rec. S2096 (daily ed. Mar. 20, 2002) ...........................................................4 

148 Cong. Rec. S2142 (daily ed. Mar. 20, 2002) .....................................................4, 14 

148 Cong. Rec. S2153 (daily ed. Mar. 20, 2002) .......................................................4, 5 

148 Cong. Rec. H369-01 (daily ed. Feb. 13, 2002)........................................................4 

148 Cong. Rec. H371-76 (daily ed. Feb. 13, 2002)........................................................4 

148 Cong. Rec. H386-92 (daily ed. Feb. 13, 2002)........................................................4 

vii
148 Cong. Rec. H402-11 (daily ed. Feb. 13, 2002)........................................................4 

148 Cong. Rec. H413-16 (daily ed. Feb. 13, 2002)........................................................4 

148 Cong. Rec. H429-432 (daily ed. Feb. 13, 2002)......................................................4 

148 Cong. Rec. H430 (daily ed. Feb. 13, 2002) .........................................................6, 9 

148 Cong. Rec. H431 (daily ed. Feb. 13, 2002) .............................................................5 

viii
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

JACK DAVIS, 

 Plaintiff, 

 v. 

FEDERAL ELECTION COMMISSION, 

 Defendant. 

) 

) 

) Case No. 1:06CV01185 (TG)(GK)(HHK) 

) 

) Three-Judge Court 

) 

) MEMORANDUM IN SUPPORT 

) AND OPPOSITION 

) 

DEFENDANT FEDERAL ELECTION COMMISSION’S MEMORANDUM IN 

SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT AND IN OPPOSITION TO 

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 

 

Plaintiff Jack Davis has brought a facial challenge to the constitutionality of the so-called 

Millionaires’ Amendment, Section 319 of the Bipartisan Campaign Reform Act of 2002 

(“BCRA”), Public Law 107-155, 116 Stat. 81 (March 27, 2002) (“Section 319”), which added 

new provisions to the Federal Election Campaign Act (“Act” or “FECA”) (codified at 2 U.S.C. 

431-455). The Millionaires’ Amendment permits an opponent of a candidate for the House of 

Representatives who contributes more than $350,000 in personal funds to his campaign to accept 

contributions from individuals in excess of the usual limits, 2 U.S.C. 441a(a), and allows the 

opponent’s political party to make coordinated expenditures in excess of the usual limits, 

2 U.S.C. 441a(d), if and when certain specified conditions are met. See generally 2 U.S.C. 

441a-1. We demonstrate below that the Millionaires’ Amendment is constitutional and 

consistent with Buckley v. Valeo, 424 U.S. 1 (1976), and that it does not infringe the First or 

Fifth Amendment rights of a candidate who chooses to finance his campaign with his personal 

wealth instead of small contributions from citizens. 
BACKGROUND

I. PARTIES 

A. Federal Election Commission 

The Federal Election Commission (“Commission” or “FEC”) is the independent agency 

of the United States government with exclusive jurisdiction over the administration, 

interpretation, and civil enforcement of the Federal Election Campaign Act of 1971, as amended 

(“Act” or “FECA”), codified at 2 U.S.C. 431-455. The Commission is empowered to “formulate 

policy” with respect to the Act, 2 U.S.C. 437c(b)(1); to make rules and issue advisory opinions, 

2 U.S.C. 437d(a)(7) and (8), 437f, 438(a)(8); and to institute investigations of possible violations 

of the Act, 2 U.S.C. 437g(a)(1) and (2). Congress also gave the Commission exclusive 

jurisdiction to initiate civil actions in the United States district courts to obtain enforcement of 

the Act. 2 U.S.C. 437c(b)(1); 437d(a)(6); 437d(e). 

B. Jack Davis 

Jack Davis is an unopposed candidate for the 2006 Democratic nomination for the United 

States House of Representatives in New York’s 26th District. Complaint ¶ 5, Davis Decl. ¶ 3, 

Davis 2d Decl. at ¶ 1. On March 23, 2006, Davis signed the Statement of Candidacy he filed 

with the Commission, which stated (after a later amendment) his intent to spend no personal 

funds in support of his primary campaign and to spend $1,000,000 in personal funds during the 

general election. FEC Ex. 1, 2. According to financial disclosure reports on file with the 

Commission, as of August 24, 2006, Davis had spent $939,280 in personal funds on his 2006 

primary election campaign even though he is effectively unopposed. FEC Ex. 3. 1 

 

1 New York employs a “fusion ballot” system in which a major party candidate may also 

be on the ballot for a minor party’s primary election. Davis is also on the Independence Party 

primary ballot in the 26th District, running against Robert M. Pusateri. FEC Facts at ¶ 2. 

2
Jack Davis was also a candidate for the same office in the 2004 election cycle, losing to 

then-incumbent Republican Thomas Reynolds, the same candidate Davis anticipates will again 

be his major party opponent in the 2006 general election. Complaint ¶ 2; Davis 2d Decl. ¶¶ 2, 5. 

During the 2004 general election, Davis made contributions and loans to his principal campaign 

committee, Jack Davis for Congress, totaling $1,257,280, but he never filed any of the required 

notifications of expenditures from personal funds required by the Millionaires’ Amendment. See

2 U.S.C. 441a-1(b)(1)(C) and (D); FEC Ex. 11 at ¶ 5. 

II. THE MILLIONAIRES’ AMENDMENT 

A. The Purposes Of The Millionaires’ Amendment 

Congress enacted the Millionaires’ Amendment in order to address what it perceived as a 

long-standing inequity created when the Supreme Court invalidated provisions of FECA that 

placed a limit on the amount of personal wealth a federal candidate could spend on his campaign. 

Buckley v. Valeo, 424 U.S. 1, 51-54 (1976). The provisions struck down in Buckley limited 

privately financed Presidential and Vice-Presidential candidates to spending no more than 

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

House candidates to $25,000. Id. at 51.2

 In the years since Buckley, increasing numbers of 

Congressional candidates have chosen to rely largely on their own personal wealth to finance 

their campaigns, rather than seeking financial support from constituents and other citizens. FEC 

Facts at ¶¶ 41-42. 

 

However, Mr. Pusateri has not filed any reports with the Commission and unless he raises or 

spends in excess of $5,000 on his campaign he is not a “candidate” under FECA. 2 U.S.C. 

431(2). See FEC Ex. 11 at 2. 

2

 The Supreme Court upheld a $50,000 limit on use of personal wealth by presidential 

candidates who choose to participate in the presidential public financing system. 

3
The Millionaires’ Amendment originated on the floor of the Senate during debate on the 

Bipartisan Campaign Reform Act of 2002 (“BCRA”), 116 Stat. 81 (2002). See 147 Cong. Rec. 

S2433-02, S2434 (daily ed. Mar. 19, 2001).3

 A variation fashioned to apply to elections for the 

House of Representatives was added during the House debates. 148 Cong. Rec. H369-01, H371-

76, H386-92, H402-11, H413-16, H429-432 (daily ed. Feb. 13, 2002).4

 Congress had several 

reasons for enacting the Millionaires’ Amendment. First, it wanted to provide privately financed 

candidates who are dependent on statutorily limited contributions from citizens an opportunity to 

compete on a more equal footing when running against opponents with sufficient personal 

wealth to finance their own campaign.5

 As one of the provision’s original sponsors in the Senate 

explained: 

The Buckley decision has effectively created a substantial disadvantage for 

opposing candidates who must raise all campaign funds under the current 

fundraising limitations . . . So you have the situation where the candidate 

who cannot self-finance has to raise money in a maximum of $1,000 

increments but has to then go up against another candidate who can put in 

maybe an unlimited amount of money – millions and millions of dollars . . . 

 

3

 The Senate debate on the Millionaires’ Amendment is reported at 147 Cong. Rec. S2433-

02, S2434-69 (daily ed. Mar. 19, 2001); 147 Cong. Rec. S2536-02, S2536-38, S2546-47 (daily 

ed. Mar. 20, 2001); 147 Cong. Rec. S2845-02, S2845-52 (daily ed. Mar. 26, 2001); 147 Cong. 

Rec. S3084-02, S3084-122, S3124-41 (daily ed. Mar. 29, 2001); 147 Cong. Rec. S3183-01, 

S3283-98 (daily ed. Mar. 30, 2001); 147 Cong. Rec. S3233-06, S3233-61 (daily ed. Ap. 2, 

2001), 148 Cong. Rec. S2096, S2142, S2153 (daily ed. Mar. 20, 2002). 

4

 “[This] is an amendment that allows House Members to have the same kind of 

amendment. It would be compatible with the Senate amendment. It works in harmony with it.” 

148 Cong. Rec. at H430 (Rep. Shays). 

5

 The Millionaires’ Amendment includes separate and similar (though not identical) 

provisions for elections to the United States Senate and to the House of Representatives, though 

the purposes of the two provisions are the same. Section 304 of BCRA, codified at 2 U.S.C. 

441a(i), applies to Senate races, and Section 319, codified at 2 U.S.C. 441a-1, sets out the 

provisions applicable to House races. As a candidate for the House of Representatives, Davis 

does not have standing to challenge the constitutionality of the somewhat different BCRA 

provisions that apply only to Senate elections, nor does his opening brief address those 

provisions. Accordingly, this brief generally addresses only the statutory provisions that apply to 

campaigns for the House of Representatives.

4
[E]veryone in the country is limited to $1,000 they can put into a candidate’s 

campaign – everybody in the country except one person. That one person 

who has the ability to put money in, in an unlimited fashion, in an unlimited 

amount, is, of course, the candidate. 

147 Cong. Rec. at S2537-38 (daily ed. Mar. 20, 2001) (Sen. DeWine).6

 See also 148 Cong. Rec. 

at H431 (Feb. 13, 2002) (Rep. Davis) (“This evens the playing field for candidates who are 

challenging millionaires or who are challenged by millionaires; the individual 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”). 

Second, Congress sought to “address[] the public perception that there is something 

inherently corrupt about a wealthy candidate who can use a substantial amount of his or her own 

personal resources to win an election . . . .” 147 Cong. Rec. at S2538 (daily ed. Mar. 20, 2001) 

(Sen. DeWine). It acted to counteract the perception that “someone today who is wealthy 

enough can buy a seat” in Congress. 147 Cong. Rec. at S2547 (daily ed. Mar. 20, 2001) (Sen. 

DeWine). See also 148 Cong. Rec. at S2153 (Mar. 20, 2002) (Sen. Domenici) (“The large 

number of extremely wealthy candidates who spend large amounts of their own money to 

finance their campaigns reinforces this perception. Many people believe that candidates are 

attempting to buy their way into office”). See also FEC Facts at ¶¶ 11-14. 

Finally, Congress intended the Amendment to reduce the financial disincentive for less

wealthy candidates to run for office, and encourage political parties to select candidates on merit 

rather than personal wealth. Congress concluded that because of the Buckley decision, political 

 

6

 In 2002, when it adopted BCRA, Congress raised the maximum amount an individual 

may contribute to a candidate per election from $1,000 to $2,000 and indexed it for inflation. 

See 2 U.S.C. 441a. For the 2006 elections, the limit is $2,100. 11 C.F.R. 110.1(b); Notice, 70 

Fed. Reg. 11658 (Mar. 9, 2005). 

5
parties felt pressure to recruit not the best candidates, but those who could finance their own 

campaigns: 

[W]hat has happened is there has become a great search every election 

cycle, where both the Republicans and the Democrats go out and they 

don’t look for people with great ideas. . . . What they look for and what the 

great search around the country is for is people who have money . . . The 

reality is that in the last several election cycles, both parties have looked 

around the country to try to find wealthy candidates who can self-finance 

their own campaigns. 

147 Cong. Rec. at S2546 (daily ed. Mar. 20, 2001) (Sen. DeWine). See also id. at S2540 (Sen. 

McCain) (“as we know both parties have now openly stated that they recruit people who have 

sizable fortunes of their own in order to run for the Senate”). FEC Facts at ¶¶ 47-49. 

The only way a pure American democracy can work is if people have faith 

in the system and if they participate. That includes running for office. It 

is time to recognize that the realities of today’s elections prevent many 

from participating. 

148 Cong. Rec. at H430 (Rep. Capito). 

The Millionaires’ Amendment was designed to comport with the First Amendment as 

construed in Buckley by accomplishing those purposes without placing any restriction on the 

right of candidates to spend as much of their own wealth as they want to promote their 

candidacies. Rather than limiting a wealthy candidate’s speech, the Amendment operates to 

increase public political debate by providing a candidate opposing a self-funded candidate a 

limited opportunity to engage in more communication with the electorate. Thus, as one of its 

sponsors explained, “[t]his amendment attempts to bring about equity and fairness and also, quite 

6
candidly, to increase the opportunity for all candidates to get their ideas to the public.” 

147 Cong. Rec. at S2537 (daily ed. Mar. 20, 2001) (Sen. DeWine). 

B. The Operation Of The Millionaires’ Amendment In Campaigns For The House 

Of Representatives 

In a nutshell, once one candidate passes a $350,000 self-financing threshold, the 

Millionaires’ Amendment compares the amount of personal funds a candidate spends on his own 

campaign, combined with some of the receipts he has received from others, with the amount of 

personal funds that his opponent has spent on the opponent’s campaign, combined with some of 

the receipts he has received from others.7

 If there is a sufficient discrepancy between the 

candidates’ respective totals under this calculation, the candidate with the smaller amount may 

be entitled to solicit contributions from individuals in amounts no more than three times the 

usual contribution limit, 2 U.S.C. 441a(a)(1)(A), to solicit contributions from individuals who 

have already reached the statutory limit on their total contributions to all candidates during an 

election cycle, 2 U.S.C. 441a(a)(3)(A), and to coordinate with their political party on additional 

party expenditures that would otherwise be limited by 2 U.S.C. 441a(d),8

 in an aggregate amount 

roughly equal to the difference. 

To make this financial comparison, the Millionaires’ Amendment uses a complicated 

series of thresholds, calculations and definitions. First, there is a threshold of $350,000 in 

 

7

 An expenditure from personal funds includes a contribution from the candidate to his 

campaign made with personal funds, a direct expenditure made by a candidate using personal 

funds, loans made by a candidate using personal funds, and loans to the candidate’s campaign 

secured by the candidate’s personal funds. 2 U.S.C. 441a-1(b)(1)(A). 

8

 Political parties are entitled to make unlimited independent expenditures in support of all 

their candidates, including those who self-finance. Colorado Republican Federal Campaign

Committee, 518 U.S. 604, 618 (1996) (plurality opinion). Only expenditures actually 

coordinated with a candidate are limited by Section 441a(d). See FEC v. Colorado Republican 

Federal Campaign Committee, 533 U.S. 431, 465 (2001). 

7
personal spending by a candidate; the Amendment has no application to any House election 

campaign in which no candidate spends more than $350,000 in personal funds. If this threshold 

is passed, the opponent must calculate the “opposition personal funds amount” (“OPFA”) to 

determine whether he is entitled to take advantage of the provision’s increased limits under the 

Amendment. 2 U.S.C. 441a-1(a)(1). 

The formula used to calculate the OPFA during the election year counts the expenditures 

of personal funds 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). Only if the 

calculation reveals that the opponent has raised and spent less of these funds than the selffinancing candidate will he qualify to solicit additional financial support under the provision. 

The provision applies equally to all candidates, so even a self-financing candidate can qualify to 

raise extra funds if he is running against a self-financed opponent who has raised and spent even 

more under the OPFA formula. See FEC Facts at ¶¶ 79-88. The portion of this formula that 

takes into account a candidate’s aggregate receipts during the non-election year – the “gross 

receipts advantage” provision – was added during the Senate debate for the purpose of reducing 

the potential benefit to an incumbent who has raised a substantial amount of contributions in the 

year before the election year. See 147 Cong. Rec. at S3194-95 (daily ed. Mar. 30, 2001). 

Senator Durbin explained that “we want to get as close to possible to a level playing field but not 

create incumbent advantage.” Id. at S3192 (daily ed. Mar. 30, 2001) (Sen. Durbin). 

C. The Proportionality Provision 

Congress added a provision to the Millionaires’ Amendment designed to avoid giving an 

unfair benefit to the opponent of a self-financing candidate. This “proportionality provision,” 

8
 2 U.S.C. 441a-1(a)(3)(ii), caps the amount of increased contributions and increased coordinated 

party expenditures a candidate may receive at 100% of the amount of the total OPFA disparity 

between the candidates. 

Proportionality is important because it really helps level the playing field from

both directions so the wealthy candidate is not punished or is not inhibited 

from putting his or her own money into the campaign, which is very 

important. What this means . . . is that we try to increase free speech; we give 

that non-wealthy candidate the opportunity to get his or her message out. We

do not punish the wealthy candidate. And we take care of that in this wellcrafted amendment by saying how much that nonwealthy candidate can raise 

above . . . the limits . . . So the wealthy candidate, again, is not punished, is 

not inhibited, is not discouraged from putting in his or her own money. 

147 Cong. Rec. at S2538 (daily ed. Mar. 20, 2001) (Sen. DeWine). Thus, if “parity is achieved, 

the regular contribution limits go back into effect.” 148 Cong. Rec. at H430 (Rep. Capito). 

The Millionaires’ Amendment includes other provisions that also serve this purpose. Thus, an 

opponent’s eligibility to accept increased contributions ends if the self-financing candidate 

withdraws, 2 U.S.C. 441a-1(a)(4)(A), and the eligible candidate must return any contributions 

raised under increased limits that are unspent at that time. 2 U.S.C. 441a-1(a)(3), 441a-1(a)(4). 

The statute also ensures that contributions raised under increased limits cannot be carried over to 

any subsequent election by requiring that unspent funds be returned to donors within 50 days 

after the election for which they were raised. 2 U.S.C. 441a-1(a)(4). 

D. The Millionaires’ Amendment’s Reporting Requirements

In order to enable a candidate to calculate during the campaign whether and when he is 

entitled to seek additional financial support from individuals, and to enable political parties to 

decide whether and when they can make additional coordinated expenditures, the Millionaires’ 

Amendment includes three special reporting provisions for House elections. A candidate must 

disclose, within 15 days of becoming a candidate, the amount the candidate intends to spend in 

9
personal funds in excess of $350,000. 2 U.S.C. 441a-1(b)(1)(B). Once 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 of exceeding the threshold. 2 U.S.C. 

441a-1(b)(1)(C). For each additional 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). These 

notifications must be filed with the Commission and provided to each opponent in the same

election and the national party of each opponent. 2 U.S.C. 441a-1(b)(1)(F). 

An eligible opposing candidate who elects to seek additional financial support under the 

Millionaires’ Amendment is also subject to additional reporting requirements. See 11 C.F.R. 

400.30 and 400.31. After receiving the self-financing candidate’s initial or subsequent 

notification of expenditures from personal funds, the opposing candidate must, within 24 hours, 

notify the Commission and his political party of the OPFA. 11 C.F.R. 400.30(b). If the 

opposing candidate receives increased individual contributions and increased coordinated party 

expenditures equal to 100% of the OPFA, the opposing candidate must notify his political party 

and the Commission of that fact within 24 hours. 11 C.F.R. 400.31(e)(1)(ii). Political parties 

that make coordinated party expenditures under the Millionaires’ Amendment in excess of the 

normal limits also must notify the Commission, as well as the candidate on whose behalf the 

party expenditure is made, within 24 hours. See 11 C.F.R. 400.30(c)(2). 

ARGUMENT

I. STANDARD OF REVIEW 

Summary judgment is appropriate when there is no genuine issue of material fact and the 

moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). See Celotex 

Corp. v. Catrett, 477 U.S. 317, 323 (1986). “The plain language of Rule 56(c) mandates the 

10
entry of summary judgment . . . against a party who fails to make a showing sufficient to 

establish the existence of an element essential to that party’s case, and on which that party will 

bear the burden of proof at trial.” Id. at 322-23. 

Since this is a facial challenge to the Millionaires’ Amendment, Davis confronts a “heavy 

burden,” National Endowment for the Arts v. Finley, 524 U.S. 569, 580 (1998). 

A facial challenge to a legislative Act is, of course, the most difficult 

challenge to mount successfully, since the challenge must establish that no set 

of circumstances exists under which the Act would be valid. The fact that the 

statute might operate unconstitutionally under some conceivable set of 

circumstances is insufficient to render it wholly invalid. 

Rust v. Sullivan, 500 U.S. 173, 183 (1991) (citation omitted). See also Members of City

Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 796 (1984). “Facial 

invalidation ‘is, manifestly, strong medicine’ that ‘has been employed by the Court sparingly and 

only as a last resort.’” Finley, 524 U.S. at 580 (quoting Broadrick v. Oklahoma, 413 U.S. 601, 

613 (1973)). See also FW/PBS, Inc. v. Dallas, 493 U.S. 215, 223 (1990) (“facial challenges to 

legislation are generally disfavored”). “To prevail, [Davis] must demonstrate a substantial risk 

that application of the provision will lead to the suppression of speech.” Finley, 524 U.S. at 580 

(emphasis added). 

II. THE MILLIONAIRES’ AMENDMENT IS CLOSELY DRAWN TO SERVE 

COMPELLING GOVERNMENTAL INTERESTS 

The Act’s system of campaign contribution limits and prohibitions was originally 

designed to ensure that it applied equally to the campaign financing of all candidates running for 

the same office. “[T]he Act applies the same limitations on contributions to all candidates 

regardless of their present occupations, ideological views, or party affiliations.” Buckley, 424 

U.S. at 31. While some candidates would inevitably end up with more campaign funds than 

others, the Act provided all with the same opportunity to raise campaign funds from supporters. 

11
“Given 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.” Id. at 56. 

 However, Buckley’s invalidation of the statute’s limit on candidates’ expenditure of 

personal funds undermined the evenhandedness of the statute’s system of limits on campaign 

financing. This decision altered the system by creating a class of candidates able to rely upon a 

source of funding – their own personal wealth – that is not subject to any of the statutory limits 

under which their opponents’ campaign chests must be raised. The Supreme Court itself 

acknowledged that the “normal relationship” of financial resources to the size and intensity of a 

candidate’s support “may not apply where the candidate devotes a large amount of his personal 

resources to his campaign.” Id. at 56 n. 63. 

The legislative history discussed above shows that the Millionaires’ Amendment was 

enacted to ameliorate this distortion in the statutory scheme by relaxing (but not eliminating) 

some of the statutory limits on financial support for some candidates who are competing with 

candidates who choose to finance their campaigns with large amounts of their personal wealth. 

Congress concluded that the advantages in the existing system for wealthy candidates willing to 

finance their own campaigns had resulted in candidates without personal wealth being 

discouraged from running for office, political parties increasingly recruiting candidates on the 

basis of wealth rather than merit, and a public perception that wealthy candidates were able to 

use their own deep pockets to buy their way into office. See generally FEC Facts at ¶¶ 9-40. 

See also FEC Facts at ¶¶ 44-49. Congress sought to reduce these effects without interfering with 

a wealthy candidate’s right to spend unlimited amounts of his own money to campaign for office, 

by enhancing the opportunity of an opposing candidate, in limited circumstances, to solicit 

12
financial support under somewhat higher contribution limits than applicable when all competing 

candidates build their campaign funds with contributions subject to the statutory limits. 

All of the goals Congress identified in adopting the Millionaires’ Amendment represent 

compelling governmental interests well established in the law. The Supreme Court has long 

recognized that Congress has a compelling interest in preserving “‘the integrity of our electoral 

process, and . . . the responsibility of the individual citizen for the successful functioning of that 

process.’” FEC v. National Right to Work Committee, 459 U.S. 197, 208 (1982) (quoting United

States v. UAW, 352 U.S. 567, 570 (1957)). The Court has also recognized that broadening 

“public discussion and participation in the electoral process” are “goals vital to a self-governing 

people.” Buckley, 424 U.S. at 92-93. Finally, the “[s]tate’s interest in sustaining the active role 

of the individual citizen in the electoral process and thereby preventing diminution of the citizen’s 

confidence in government” are also “weighty interests . . . in the context of partisan elections.” 

First National Bank of Boston v. Bellotti, 435 U.S. 765, 787 (1978). 

Davis argues (Memorandum of Points and Authorities in Support of Plaintiff Jack 

Davis’s Motion for Summary Judgment (“Br.”) at 14-15, 18, 27) that any relaxation of the 

contribution limits contravenes the Supreme Court’s holdings in Buckley and its progeny that 

Congress is entitled to restrict contributions and coordinated expenditures in an effort to reduce 

corruption and the appearance of corruption. This argument turns those cases on their heads. 

The Supreme Court held that avoiding the actuality and appearance of corruption is a compelling 

interest that permits Congress to limit contributions, not that requires Congress to do so. See, 

e.g., Randall v. Sorrell, 126 S.Ct. 2479, 2492 (June 26, 2006) (plurality opinion) (“[T]hat 

rationale does not simply mean ‘the lower the limit, the better’”). In fact, the Court has explicitly 

stated that determining the appropriate level of contribution limits is a matter of legislative 

13
discretion that is not of constitutional moment unless the limit is so low as to make it impossible 

to accumulate sufficient funds to be heard. Nixon v. Shrink Missouri Government PAC, 528 

U.S. 377, 397 (2000); Buckley, 424 U.S. at 30. Accordingly, while constitutional questions may 

arise if contribution limits are too strict, the Court has never recognized any constitutional 

restriction on a legislature’s relaxing such a limit, as the Millionaires’ Amendment does. 

In the Millionaires’ Amendment Congress did not abandon limits on contributions to 

candidates opposing self-financed candidates; it retained restrictions to avoid the appearance of 

corruption but relaxed them in order to serve the competing interests identified above. 

Congress has concluded that contributions in excess of $2,000 present a risk 

of actual and apparent corruption. [The Millionaires’ Amendment] does not 

take issue with this conclusion. In this limited context, however, 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 

elections. 

148 Cong. Rec. at S2142 (daily ed. Mar. 20, 2002) (Sen. McCain). 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) (citation omitted). 

[N]o 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 simplistically to assume that whatever furthers 

the statute’s primary objective must be the law. 

Rodriguez v. United States, 480 U.S. 522, 525-26 (1987) (emphasis in original). See also

Buckley, 424 U.S. at 84 n.112 (exception from reporting requirements available only to 

incumbents “represents a reasonable accommodation between the legitimate and necessary 

efforts of legislators to communicate with their constituents and activities designed to win 

14
elections by legislators in their other role as politicians”); id. at 36 (“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”). 

The solution Congress devised in the Millionaires’ Amendment was carefully crafted to 

target the problems it identified without unduly benefiting or burdening either self-financing 

candidates or their opponents. The provision applies only to the biggest self-financers, not every 

candidate who spends personal funds on his own campaign – self-financing candidates who 

spend $350,000 or less on their campaigns do not trigger application of the provision. As we 

have described supra at pp. 8-9, the proportionality provision of the Millionaires’ Amendment, 

2 U.S.C. 441a-1(a)(3)(ii), caps the amount of increased contributions and 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. In addition, under the Millionaires’ 

Amendment the opponents of self-financing candidates remain subject to substantial statutory 

fundraising restrictions that help reduce the possibility of corruption or its appearance. Thus, the 

Amendment makes no change in the contribution restrictions on corporations, labor unions, 

foreign nationals, or political committees, and it only raises, but does not eliminate, the limits on 

contributions by individuals. Even the Amendment’s waiver of the limit on coordinated party 

expenditures made pursuant to 2 U.S.C. 441a(d) is effectively capped by the overall limit 

imposed by the proportionality provision. See p. 7 n.8, supra. Moreover, in the 2004 elections, 

no political party engaged in additional coordinated spending under this provision in any 

15
campaign, and none has done so to date in 2006. FEC Facts at ¶ 53. 9 Thus, the Millionaires’ 

Amendment is closely drawn to address the compelling governmental interests Congress 

identified. 

III. THE MILLIONAIRES’ AMENDMENT DOES NOT RESTRICT SPEECH 

A. The Millionaires’ Amendment Places No Restrictions On A 

Candidate’s Right To Spend His Own Money On Campaign Speech 

Although the Millionaires’ Amendment is narrowly tailored to serve compelling 

governmental interests that would satisfy strict scrutiny, in fact the Amendment accomplishes its 

goals without infringing a self-financing candidate’s freedom to spend unlimited amounts of his 

own money to advocate his election to office. Like the public financing provisions upheld in 

Buckley, the Millionaires’ Amendment does not “abridge, restrict, or censor speech,” but rather 

is designed to “facilitate and enlarge public discussion and participation in the electoral process, 

goals vital to a self-governing people.” Buckley, 424 U.S. at 92-93 (footnote omitted). The 

statute places no restriction whatsoever on the amount of personal funds a candidate may use to 

support his own campaign, nor does it reduce the amount a self-financing candidate is entitled to 

raise from others if he chooses to self-finance. Instead it relaxes the limits on two types of

contributions – individual donations and coordinated party expenditures – that can be made to 

opposing candidates who finance their campaign through contributions subject to the statutory 

 

9 Davis speculates (Br. at 14-15) that without specific limits on coordinated party 

expenditures, unscrupulous contributors may illegally “earmark” contributions made to the 

parties for coordinated spending in favor of their favorite candidate. But “[t]here is no indication 

that the substantial criminal penalties for violating the contribution ceilings combined with the 

political repercussions of such violations will be insufficient to police the contribution

provisions.” Buckley, 424 U.S. at 56. 

16
limits. As Senator DeWine explained: 

[T]his amendment will enhance free speech . . . [T]he end result will be not 

that the candidate who is the millionaire will have a smaller megaphone – that 

millionaire who is putting in his or her own money will have the same

megaphone they had before this amendment – but what it means is that the 

candidate who is facing that multimillionaire will also have the opportunity to 

have a bigger megaphone, to grow that megaphone. [I]t will put more money 

into the political system [and] the effect of that money will be to enhance the 

first amendment. It will be to enhance people’s ability to communicate and 

get a message across without in any way hurting someone else’s ability – 

namely the millionaire – to get their message across. 

147 Cong. Rec. at S2546 (daily ed. Mar. 20, 2001) (Sen. DeWine). 

In drafting the Amendment Congress followed, rather than violated, the Supreme Court’s 

teaching in Buckley. In that case the Court found unconstitutional provisions that placed a 

ceiling on the amount that a candidate, or any other person, could spend of his own money to 

advocate the election or defeat of candidates. The Court explained 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,” so that the “First

Amendment’s protection against governmental abridgement of free expression cannot properly 

be made to depend on a person’s financial ability to engage in public discussion.” 424 U.S. at 48-

49 (emphases added). 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 (emphasis added). Thus, the Buckley Court invalidated 

legislative ceilings on the expenditure of one’s own money to advocate an election result, but it 

did not hold that the First Amendment forecloses Congress from seeking to enhance some

people’s opportunity for speech, so long as it does so without placing a limit on anyone’s speech. 

For example, the Court contrasted its holding on expenditure limits from its earlier decision 

17
upholding the FCC’s “fairness doctrine” because “the presumed effect of the fairness doctrine is 

one of ‘enhancing the volume and quality of coverage’ of public issues.” 424 U.S. at 49-50 

n.55 (citation omitted). The Court also noted that “[l]egislation to enhance...First Amendment 

values” such as by “providing financial assistance to the exercise of free speech” is “the rule, not 

the exception.” Id. at 93 n.127. The Court even found limits on overall campaign spending and 

upon spending from a candidate’s personal funds to be constitutional, when they are applicable 

only to candidates who voluntarily choose to accept public financing to subsidize their campaign 

speech. 424 U.S. at 57 n.65, 85-109. 

The Millionaires’ Amendment leaves wealthy candidates entirely free to decide whether 

to rely on statutorily limited contributions from others to finance their campaigns or instead to 

use enough of their personal wealth to trigger their opponent’s opportunity to seek additional 

financial support. In either event, the wealthy candidate remains entirely free to spend an 

unlimited amount of his personal fortune to communicate with the electorate. “Since the 

candidate remains free to choose between funding alternatives, he or she will opt for [limiting 

personal expenditures] only if, in the candidate’s view, it will enhance the candidate’s powers of 

communication and association.” Republican National Comm. v. FEC, 487 F. Supp 280, 285 

(S.D.N.Y.) (three-judge district court), aff’d, 445 U.S. 955 (1980). “[A]s long as the candidate 

remains free to engage in unlimited private funding and spending . . . the law does not violate the 

First Amendment rights of the candidate or supporters.” Id. at 284. Whether to self-finance, 

how much to self-finance, and when to self-finance are all decisions the statute leaves within the 

18
exclusive control of the self-financing candidate. The choice belongs to him, not to the statute, 

and without some governmental abridgement the First Amendment is not violated. 10

Other federal courts have concluded that statutes permitting increased contributions to 

certain qualifying candidates do not unconstitutionally restrict the speech of their opponents. 

See Vote Choice, Inc. v. DiStefano, 4 F.3d 26, 39 (1st Cir. 1993) (“we have difficulty believing 

that a statutory framework which merely presents candidates with a voluntary alternative to an 

otherwise applicable, assuredly constitutional, financing option imposes any burden on first 

amendment rights”); Daggett v. Committee on Gov’t Ethics and Election Practices, 205 F.3d 

445, 464 (1st Cir. 2000) (plaintiffs “have no right to speak free from response”); Gable v. 

Patton, 142 F.3d 940, 948 (6th Cir. 1998) (“a statutorily created benefit does not per se result in 

an unconstitutional burden”(internal quotes omitted)); Kennedy v. Gardner, 1999 WL 814273 

*6 (D.N.H. 1999) (where a statute relaxed to $5,000 the contribution limit for candidates 

agreeing to limit expenditures, “[t]he only ‘burden’ imposed upon candidates who elect not to 

limit campaign expenditures is the $1,000 cap on individual contributions. That cap is plainly 

constitutional.”). The First Circuit’s decision in Daggett is illustrative. Daggett involved a 

constitutional challenge to a Maine statute that granted additional matching funds to candidates 

who participated in the state-financed funding program when non-candidates made independent 

expenditures either against them or in favor of their opponent. The court found decisive that the 

matching funds provision “in no way limits the quantity of speech one can engage in or the 

 

10 Davis mistakenly relies (Br. at 18, 26) on the public forum doctrine, which “defines 

situations in which the government cannot close government-owned property to parties who 

desire to use that property as a forum for exercising their First Amendment rights.” TeleCommunications of Key West v. United States, 757 F.2d 1330, 1337 (D.C. Cir. 1985). See also

Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 49 n.9 (1983) (distinguishing, 

inter alia, Carey v. Brown, 447 U.S. 455 (1980), as “cases invalidating restricted access to public 

forums”). The Millionaires’ Amendment does not involve restrictions on access to public 

property, so the public forum doctrine is wholly inapplicable. 

19
amount of money one can spend engaging in political speech, nor does it threaten censure or 

penalty for such expenditures.” 205 F.3d at 464. “These facts,” the court stated, “allow us 

comfortably to conclude that the provision of matching funds [to one candidate] based on 

independent expenditures does not create a burden on [independent] speakers’ First Amendment 

rights.” Id.

 11

B. The Millionaires’ Amendment Does Not Chill Speech 

Unable to show any statutory restriction on his own spending, Davis argues that the 

Millionaires’ Amendment will have a “chilling” effect on the speech of self-financing candidates

(Br. at 24). Davis himself is plainly not chilled, since he has already spent about a million 

dollars on his primary campaign and has stated an intent to spend another million dollars on his 

general election campaign. See pp. 2-3, supra. Moreover, Davis has offered no evidence that the 

Millionaires’ Amendment has reduced the quantity of speech engaged in by self-financing House 

candidates or caused anyone who otherwise might have self-financed their own campaign to 

forgo that option. Dozens of candidates running for the House of Representatives have financed 

their campaigns with sufficient personal funds to exceed the $350,000 threshold since the 

Millionaires’ Amendment went into effect, FEC Facts at ¶¶ 57, 58, and Davis has offered no 

evidence indicating that this is not comparable to the number who did so before the Amendment 

was enacted. To paraphrase the Supreme Court, “[p]lainly, campaigns can be successfully 

carried out by [self-financing]; they have been up to this date, and this avenue is still open to all 

candidates.” Buckley, 424 U.S. at 101. 

 

11 Davis relies (Br. at 20) on decisions invalidating provisions that placed discriminatory tax 

burdens on particular speakers. Unlike the Millionaires’ Amendment, these provisions directly 

penalized certain speakers by extracting additional money from them in the form of taxes. 

Accordingly, these decisions are not contrary to Daggett. 

20
Even if Davis could show that more candidates were choosing to forgo self-financing 

after enactment of the Millionaires’ Amendment, however, this would not make the Amendment

unconstitutional. As discussed above, such a choice remains entirely with the candidate, and any 

candidate’s decision to forgo self-financing would presumably be based upon his own political 

calculation of which course would maximize his chances of winning election. See Rosenstiel v. 

Rodriguez, 101 F.3d 1544, 1552 (8th Cir. 1996) (“candidates will presumably select the option 

that they feel is most advantageous to their candidacy”). So long as the candidate remains free to 

make that decision, without limit or coercion by the government, the statute is not 

unconstitutional. If this were not so, the denial of public funding to candidates who decline to 

limit their personal spending to $50,000 would constitute an unconstitutional “chill” on such 

personal spending, a result the Supreme Court rejected in Buckley, 424 U.S. at 57 n.65. The 

cases cited on pp. 19-20, supra, also concluded that a statute designed only to assist one 

candidate to compete more fairly with an opponent in communicating with voters does not 

unconstitutionally coerce the opponent’s choice of funding options.12

Ignoring all the cases discussed supra at pp. 19-20, Davis cites (Br. at 22-23) a single 

case, Day v. Holahan, 34 F.3d 1356 (8th Cir. 1994), for his claim that encouraging the speech of 

an opponent of a self-financing candidate unconstitutionally chills the speech of the selffinancer. The statute at issue in Day provided that whenever an independent expenditure was 

made in opposition to a candidate participating in Minnesota’s public financing program, the 

candidate whose defeat was advocated (or whose opponent’s election was advocated) was 

 

12 Contrary to Davis’s argument (Br. at 20, 23-24), the Millionaires’ Amendment is 

triggered solely by the financial formulae we have discussed, and does not depend in any way on 

the viewpoint the self-financing candidate may express on any issue. While Davis apparently is 

trying to make a campaign issue out of his reliance upon his own funds instead of contributions, 

the statute applies in the same way to a self-financing candidate who chooses to avoid making an 

issue of his personal wealth. 

21
permitted to spend additional money and was provided with an additional public subsidy with 

which to do so. The court emphasized in Day that it was the combination of “increas[ing] the 

maximum amount she may spend and giv[ing] her the wherewithal to increase that spending” 

that led to its conclusion that the statute was “directly responsible for adding to her campaign 

coffers” and impermissibly discouraged the speech of the independent spender. Id. at 1360 

(emphasis in original). The Millionaires’ Amendment, in contrast, does not provide a selffinancing candidate’s opponent with any money at all – it simply permits an opponent, under 

limited circumstances, to seek additional funds from two specific types of contributor – if he 

chooses to exert the effort to do so and if he has any such large contributions to be solicited. A 

candidate choosing to solicit additional contributions is not guaranteed by the statute that anyone 

will agree to give additional funds. Moreover, unlike the statute in Day, the Millionaires’ 

Amendment can be triggered only by the spending of a candidate, not by the actions of 

independent spenders beyond either candidate’s control. In a subsequent case, the Eighth Circuit 

found no unconstitutional burden on a candidate’s First Amendment rights where the candidate’s 

own expenditures above a threshold amount triggered the elimination of limits on his publicly 

financed opponent’s spending. Rosenstiel, 101 F.3d at 1551-52. Thus, like the First and Sixth 

Circuit decisions discussed above, the Eighth Circuit’s case law relied upon by Davis does not 

support his claim of unconstitutional “chill” from the Millionaires’ Amendment.

Finally, Davis alleges that he is “harmed by having to anticipate how [his] opponent will 

take advantage of the regulations to raise funds in ways that would normally be barred under the 

nation’s campaign finance laws,” Davis 2d Decl. at ¶ 9, and that “the statute requires [a selffinancing candidate] to undergo the expense of soliciting more contributions than her opponent” 

(Br. at 25). It is hard to imagine why a self-financing candidate would need to “solicit[] more 

22
contributions that his opponent,” whose entire campaign chest is built with limited contributions, 

and trying to anticipate an opponent’s actions is the sort of tactical planning all candidates must 

make during a campaign to effectively compete with their opponents. After all, regardless of the 

level of the contribution limits, no candidate ever knows in advance the total his opponent will 

actually be able to raise. 

What Davis’s argument actually boils down to, then, is a claim not of a constitutional 

right to preserve his own right to speak, which is unaffected by the statute, but of a constitutional 

right to outspend his opponent. But Buckley invalidated limits on a candidate’s expenditure of 

personal funds only to preserve “the freedom of a candidate to speak without legislative limit on 

behalf of his own candidacy.” Buckley, 424 U.S. at 54. The Court did not suggest such a 

candidate has a constitutional right to maintain whatever political advantages his personal wealth 

may give him over his opponent. 

The general premise of the First Amendment as interpreted by the Supreme 

Court, on the other hand, is that it preserves and fosters a marketplace of 

ideas. See, e.g., Citizens Against Rent Control v. City of Berkeley, 454 U.S. 

290, 295 (1981).... In that view of the world, more speech is better.... This 

“marketplace of ideas” metaphor does not recognize a disincentive to speak in 

the first place merely because some other person may speak as well. 

Daggett v. Webster, 74 F.Supp.2d 53, 58 (D.Me. 1999) (footnote omitted), aff’d sub nom., 

Daggett v. Committee on Gov’t Ethics and Election Practices, 205 F.3d 445 (1st Cir. 2002). 

IV. THE REPORTING PROVISIONS OF THE MILLIONAIRES’ AMENDMENT DO 

NOT VIOLATE THE FIRST AMENDMENT 

A. The Reporting Provisions Are Essential to the Operation of the Millionaires’ 

Amendment 

 As described supra at pp. 9-10, the Millionaires’ Amendment imposes three additional 

reporting provisions for self-financed candidates over and above the generally applicable 

reporting requirements of FECA: a simple declaration of intent to spend more than $350,000 in 

23
personal funds that must be filed within fifteen days of becoming a candidate,13 an initial 

notification that the candidate has exceeded $350,000 in personal funds that must be filed within 

24 hours of exceeding that threshold; and additional notifications for aggregate expenditures of 

$10,000 or more in personal funds that must be filed within 24 hours of making the 

expenditure.14 

Political campaigns move rapidly, and a candidate may become eligible to seek 

additional funds relatively late in the campaign. See FEC Facts at ¶ 43. Without a mechanism to 

enable such a candidate to calculate his eligibility quickly, the Millionaires’ Amendment would 

have no effect on an election campaign. Neither the opponent of the self-financing candidate nor 

the Commission nor the opponent’s political party have any other way to obtain timely notice (1) 

that the Millionaires’ Amendment has been triggered, or (2) of the amount the opponent is 

entitled to seek, or the party is entitled to spend, under the Amendment. Any delay would reduce 

the opportunity to raise, or prepare to raise, contributions in increased amounts in time to use 

 

13 Davis complains (Br. at 8) that “[n]either the statute nor regulations provide guidance to 

candidates for how, at the very outset of their candidacy, they should divine their intent to exceed 

the threshold.” A candidate’s then-current intent to spend his own money, if he has one, would 

necessarily be known to the candidate, and a declaration of intent is simply that, not a binding 

commitment to spend any amount at all, let alone the amount anticipated. Since Davis filed his 

declaration of intent well before he filed this lawsuit it is doubtful that he even has standing to 

seek review of that requirement, and it is apparent that he was able to discern his own intent 

when he filed that form. However, if Davis were truly confused about how to divine his own 

intent, he could have sought an “advisory opinion[] for clarification, 2 U.S.C. 437f(a)(1), and 

thereby remove[d] any doubt there may be as to the meaning of the law.” McConnell v. FEC, 

540 U.S. 93, 170 n.64 (2003) (internal quotation and citation omitted). 

14 Davis asserts (Br. at 8) that a personal expenditure of $10,000 is “marginal,” but this is 

the same threshold amount used in BCRA’s electioneering message reporting provisions that 

were upheld by the Supreme Court in McConnell, 540 U.S. 194, and it is well above the $100 

independent expenditure reporting provision upheld in Buckley, 424 U.S. at 76. Reporting 

thresholds are matters of legislative discretion. Buckley, 424 U.S. at 83 (upholding $100 

reporting threshold for contributions). 

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such funds before the election. Cf. McConnell, 540 U.S. at 200 (“Given the relatively short 

timeframes in which electioneering communications are made [within the last 30-60 days before 

the election], the interest in assuring that disclosures are made promptly and in time to provide 

relevant information to voters is unquestionably significant”). “To avoid this type of 

gamesmanship,” requiring prompt notification of the self-financed candidate’s spending “is a 

legitimate approach for the legislation to take” to implement the statutory design. Daggett, 74 

F.Supp.2d at 59. 

B. The Reporting Requirements Do Not Burden Speech 

The Millionaires’ Amendment requires only the disclosure of amounts of money spent by 

the candidate himself. It does not require disclosure of the names of supporters or even of the 

manner in which the money is spent to support the candidate’s campaign. Davis does not 

describe any way in which this limited disclosure burdens his First Amendment rights. Compare

Buckley, 424 U.S. at 68 (“public disclosure of contributions to candidates and political parties 

will deter some individuals who otherwise might contribute” and “may even expose contributors 

to harassment or retaliation”). In McConnell, the Supreme Court considered the constitutionality 

of provisions in BCRA that mandate “advance” disclosure of expenditures of $10,000 or more 

made for a particular type of communication called electioneering communications. The Court 

concluded that those advance disclosure requirements do not violate the First Amendment 

because they “‘d[o] not prevent anyone from speaking.’” McConnell, 540 U.S. at 201 (quoting 

the district court’s opinion). Since the disclosure reports required by the Millionaires’ 

Amendment similarly do not “prevent anyone from speaking” there is no basis for concluding 

that they burden Davis’s constitutional rights at all. 

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Moreover, virtually all of the information required to be disclosed by the Millionaires’ 

Amendment would have to be disclosed later in any event under other provisions that long 

predate the Millionaires’ Amendment. 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, the essence of the new reporting 

requirements is timing, not substance, and that is not a significant burden on a candidate’s First 

Amendment rights. See McConnell, 540 U.S. at 196-201. 

The deadlines for these notifications are also not significantly more onerous than those 

contained in the disclosure requirements that all federal candidates must satisfy under other 

provisions, many of which were upheld in Buckley and McConnell. The fifteen-day deadline for 

a self-financed candidate to file a notice of intent to spend personal funds, for example, is the 

same deadline Congress set for candidates to designate a campaign committee. 2 U.S.C. 

432(e)(1). Similarly, the 24-hour deadline for the initial notification and all subsequent 

notifications that a candidate has spent personal funds in excess of $350,000 and $10,000 

respectively, mirror the timing required for reporting information concerning electioneering 

communications under 2 U.S.C. 434(f)(1), see McConnell, 540 U.S. at 194-95 and all candidates 

must report contributions of $1,000 or more received between two and twenty days prior to an 

election within 48-hours of receipt, even if the contribution is from the candidate. 2 U.S.C. 

434(a)(6).15 Thus, since the Supreme Court has already upheld the constitutionality of other 

 

15 The 24-hour report required by the Millionaires’ Amendment is in lieu of this 48-hour 

notice required of all candidates. See FEC Ex. 4. 

 

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reporting provisions that require far more disclosure than the notifications mandated under the 

Millionaires’ Amendment, and that must be filed within similar timeframes, the Millionaires’ 

Amendment’s disclosure requirements cannot be found impermissible under the First 

Amendment.

16

V. THE MILLIONAIRES’ AMENDMENT DOES NOT VIOLATE A SELFFINANCING CANDIDATE’S FIFTH AMENDMENT RIGHT TO EQUAL 

PROTECTION 

“Equal protection analysis in the Fifth Amendment area is the same as that under the 

Fourteenth Amendment.” Buckley, 424 U.S. at 93. Strict scrutiny applies when a restriction 

substantially burdens a suspect class or a fundamental right, see Cleburne v. Cleburne Living 

Center, 473 U.S. 432, 440 (1985), and intermediate scrutiny applies when a quasi-suspect class, 

such as gender, is at issue, see Craig v. Boren, 429 U.S. 190, 191-192 (1976). We have already 

shown, supra at pp. 16-23, that the Millionaires’ Amendment does not actually burden a selffinancing candidate’s freedom of speech and “[w]ealth is not a suspect category in Equal 

 

16 Davis makes several erroneous factual claims about the details of the reporting provisions 

contained in the Millionaires’ Amendment. He claims (Br. at 8) that an opponent of a selffinanced candidate is not obligated to declare his intent to spend personal funds, but the statute 

actually provides that “a candidate for the office of Representative . . . shall file a declaration 

stating the total amount of expenditures from personal funds that the candidate intends to make, 

or to obligate to make, with respect to the election that will exceed $350,000.” 2 U.S.C. 441a1(b)(1)(B). The Commission has interpreted this to require a candidate who intends to spend no 

funds in excess of the threshold to file a report stating that. See FEC Ex. 5. Davis must be aware 

of this requirement since he filed a report declaring his intent to spend nothing in excess of the 

threshold for the 2006 primary election. FEC Facts ¶ 4; FEC Ex.2. 

Davis also incorrectly asserts (Br. at 22) that while a self-financed candidate “must 

satisfy [] onerous disclosure requirements,” an opponent of such a candidate “faces no

comparable burden.” As we have explained, the opponent of a self-financed candidate must file 

a similar notice of intent, and he must also calculate and file notices concerning the OPFA, the 

amount he has qualified to raise (or his party is entitled to spend) in extra funds, each time the 

self-financed candidate discloses that he has spent additional funds. See p. 10, supra. 

In addition, an opponent must file a notice if he raises sufficient extra funds to reach the 

proportionality cap, and has special reporting obligations should he have to refund excess 

contributions. 11 C.F.R. 400.31(e)(1)(ii); FEC Ex. 6. 

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Protection jurisprudence.” NAACP v. Jones, 131 F.3d 1317, 1321 (9th Cir. 1997). See also

San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 24 (1973) (“at least where 

wealth is involved, the Equal Protection Clause does not require absolute equality or precisely 

equal advantages”).17 Thus, the applicable standard of review for Davis’s equal protection 

claims is whether the Millionaires’ Amendment is rationally related to a legitimate purpose. See, 

e.g., Heller v. Doe, 509 U.S. 312, 320 (1993); Clement v. Fashing, 457 U.S. 957, 963 (1982).18

A. Self-Financed Candidates Are Not Similarly Situated to Privately Financed 

Candidates 

At the threshold of his Equal Protection claim, Davis must show that the provision treats 

similarly situated candidates differently. California Medical Assoc. v. FEC, 453 U.S. 182, 200 

(1981) (plurality opinion). However, Davis is not situated similarly to his opponent because he 

has chosen to finance his campaign largely with personal wealth that is not subject to the Act’s 

contribution limits, while his opponent is financing his campaign with private contributions 

subject to the statutory limits. Because, as we have explained, the statutory contribution limits 

 

17 The Millionaires’ Amendment does not actually discriminate on the basis of wealth. It 

applies only to candidates who choose to pour substantial amounts of personal funds into their 

election campaigns, and has no application to wealthy candidates who choose instead to finance 

their campaigns by soliciting campaign contributions. 

18 Davis relies on an equal protection standard that was rejected by the Buckley Court in 

reviewing the public financing provisions’ differential impact on different classes of candidates 

and political parties. Buckley does not, as Davis claims, “further instruct[]” that a “‘restriction 

can be sustained only if it furthers a vital governmental interest that is achieved by a means that 

does not unfairly or unnecessarily burden either a minority party’s or an individual candidate’s 

equally important interest in the continued availability of political opportunity.’” Br. at 26 

(quoting Buckley, 424 U.S. at 95). Buckley instead explained that this standard applied only to 

“direct burdens . . . on the candidate’s ability to run for office [and] on the voter’s ability to voice 

preferences regarding representative government and contemporary issues,” such as ballot-access 

restrictions. 424 U.S. at 95. “In contrast, the denial of public financing to some Presidential 

candidates is not restrictive of voters’ rights and less restrictive of candidates’.” Id. 

Davis also cites (Br. at 26) Carey v. Brown, 447 U.S. 455 (1980), to support his claim 

that this Court should apply some sort of heightened scrutiny to his Fifth Amendment claim, but 

we have already shown, p. 19, n.10, supra, that Carey is a “public forum” case that has no 

application to the Millionaires’ Amendment. 

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have entirely different effects on these different methods of campaign financing, Davis and his 

opponent are not similarly situated with respect to the Millionaires’ Amendment’s provisions 

relaxing the impact of the contribution limits on candidates running against self-financing 

opponents. 

B. Treating Self-Financed Candidates Differently Under the Millionaires’ 

Amendment Is Justified 

Even if Davis could satisfy the threshold test for an equal protection claim, the 

Millionaires’ Amendment is rationally related to a legitimate government purpose. As we have 

already described supra at pp. 3-7, the purposes of the Millionaires’ Amendment are to 

encourage those who must rely on small contributions from others to run for office, to encourage 

political parties to select candidates based on their merits rather than their wealth, to promote 

greater public debate in election campaigns, and to counter the public perception that federal 

office is available to the highest bidder. As we have shown, these are more than legitimate 

governmental purposes – they are compelling governmental interests that would satisfy strict 

scrutiny. 

The Constitution does not require opposing candidates to be subject to identical

regulations without regard to their sources of campaign funding. That is why the Buckley Court 

upheld public financing for major party candidates that was unavailable to minor party 

candidates, 424 U.S. at 93-97, upheld public financing in presidential primaries that “limit[ed] 

subsidization to those candidates with a substantial chance of being nominated,” id. at 106, and 

upheld expenditure limits on publicly financed candidates that did not apply to their privately 

financed opponents, id. at 108-9. We have already explained that the Supreme Court has 

recognized that because of contribution limits, the financial resources available to a candidate’s 

campaign “will normally vary with the size and intensity of the candidate’s support,” 424 U.S. at 

29
56, but that this “normal relationship” may not apply when a candidate devotes a large amount of 

personal wealth to his campaign. Id. at 56 n.63. “[T]he Constitution does not require things that 

are different in fact or opinion to be treated in law as though they were the same. The initial 

discretion to determine what is different and what is the same resides in the legislatures,” Plyler 

v. Doe, 457 U.S. 202, 216 (1982) (citation and internal quotations omitted), and “[s]ometimes 

the grossest discrimination can lie in treating things that are different as though they were exactly 

alike.” Buckley, 424 U.S. at 97-98. 

C. The Millionaires’ Amendment Does Not Favor Incumbents Over Challengers 

Davis provides no evidence to support his assertion that the Millionaires’ Amendment 

was structured by Congress to provide an advantage to incumbents in qualifying for increased 

contributions. To the contrary, Congress adopted an amendment to the provision for the very 

purpose of reducing any benefit the Millionaires’ Amendment gives incumbents and other 

candidates who may be able to raise sizeable amounts in private contributions in the year prior to 

the election. The “gross receipts advantage” provision of the Millionaires’ Amendment takes 

into account that incumbents may be in a better position to accumulate large “war chests” during 

the year before the election year, when potential challengers may not yet have begun to organize 

a campaign. See p. 8, supra.

Davis complains about the details of the formulae for calculating the “gross receipts 

advantage” because it counts only 50% of a candidate’s gross receipts (Br. at 12) and it looks at 

receipts only as late as December 31 of the year before the election (Br. at 3, 9-10).19 However, 

 

19 Davis also asserts (Br. at 10) that an FEC Form could enable incumbents to “stash” funds 

in their primary campaign accounts and “create the illusion of poverty” for the general election. 

But incumbents facing a contested primary may well need to spend their funds to win 

nomination, in which case their financial status entering the general election will be no

“illusion.” In any event, since Davis attributes this “loophole” to a Commission form and admits 

30
because the calculation uses gross receipts during the non-election year, rather than net receipts, 

it includes all the money that a campaign has already spent before the beginning of the election 

year on such continuous expenses such as fundraising and administrative costs, not just the 

candidate’s remaining cash on hand when the election year begins. Congress apparently found 

50% to be a fair rough approximation of the amount likely to be left in a candidate’s account at 

the start of the election year, after such expenses are paid, and that it is appropriate to calculate 

the “gross receipts advantage” at the end of the year before the election because the purpose of 

that provision is to ensure that incumbents do not unfairly benefit from the “war chest” they may 

have built up in advance. See supra at 8. While Congress could have accounted for any other 

perceived advantages incumbents might have, “a statute is not invalid under the Constitution 

because it might have gone farther than it did,” Buckley, 424 U.S. at 105 (citations and internal 

quotations omitted).20 

Just as the Buckley Court stated about a similar argument against FECA’s original 

contribution limits, “[t]here is no []evidence to support the claim that the [Millionaires’ 

 

that it is “not detailed in the statute” (Br. at 10), this Court has no jurisdiction to hear any 

challenge to its validity. The extraordinary forum of a three-judge district court is only available 

under BCRA’s judicial review provision for constitutional challenges to the statute itself, not to a 

Commission regulation or form. McConnell v. FEC, 540 U.S. 93, 223 (2003) (“issues 

concerning the regulations are not appropriately raised in this facial challenge to BCRA, but 

must be pursued in a separate proceeding”). 

20 Davis’s focus on ways in which he thinks the provisions of the Amendment can be 

manipulated by a privately financed incumbent (Br. at 10-11, 15) ignores that the self-financed 

candidate is actually in full control of the flow of his own money, which is what determines his 

opponent’s ability to benefit from the statute. For example, a self-financed candidate could 

allow his committee to incur debt up until the last few weeks of the election cycle and then pour 

in hundreds of thousands of dollars of personal funds to pay those bills. By the time his 

opponent would be able to calculate whether he is entitled to solicit increased contributions there 

would be little time to raise additional money that could be used during the campaign. In fact, a 

self-financed candidate could incur campaign debts and repay the debts with personal funds after 

the election, which would completely foreclose his opponent’s opportunity to seek increased 

contributions under the Amendment.

31
Amendment] in [itself] discriminate[s] against major-party challengers to incumbents.” 424 U.S. 

at 32. In the four years since the Millionaires’ Amendment was adopted, 110 House and Senate 

candidates have become eligible to accept increased contributions, but only six have been 

incumbents. FEC Facts at ¶ 76. Of the six incumbents who qualified, two are 2006 candidates 

who have not reported raising any additional funds so far in the campaign, and two were 2004 

candidates who did not report raising any extra funds under the Amendment. Id. at ¶¶ 63, 64. 

The fifth incumbent raised less than 2% of what the Amendment would have permitted, and the 

sixth raised only 16% of the additional amount he was entitled to seek. Id. at ¶¶ 69, 73. On the 

other hand, two incumbents spent enough of their own personal funds to exceed the threshold 

under the Millionaires’ Amendment that would permit any opposing candidates to raise 

increased contributions to offset any OPFA discrepancy. See FEC Facts at ¶¶ 59, 60. Thus, 

there is no evidence to support the claim that incumbents as a class have benefited more than 

others from the Millionaires’ Amendment. 

In any event, Davis’s complaints about the details of the percentages, dates and 

calculations included in the Millionaires’ Amendment are not of constitutional stature. As the 

Supreme Court stated in Buckley in response to claims that the then-$1,000 contribution limit was 

too low: “[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.” 424 U.S. at 30. See also id. at 103-04 (“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 sufficiently [serve the competing statutory interests]. We cannot say 

that Congress’ choice falls without the permissible range” (internal citation omitted)). If the 

32
Millionaires’ Amendment needs fine tuning to make it function better in serving the compelling 

interests identified by Congress, that is a matter for legislative, rather than judicial, action. Since 

none of Davis’s complaints about the mathematical details of the Millionaires’ Amendment 

amounts to a “difference in kind,” he has offered no evidence that it has consistently favored 

incumbents in operation, and the provision is narrowly tailored to serve compelling governmental 

interests, any suggestion for improving its financial formulae should be directed to Congress. 

CONCLUSION

For the foregoing reasons, this Court should grant the Commission’s motion for summary 

judgment, deny plaintiff’s motion for summary judgment, and dismiss the case. 

Respectfully submitted, 

_______/s/________________________ 

Lawrence H. Norton 

General Counsel 

_______/s/________________________ 

Richard B. Bader 

Associate General Counsel 

(D.C. Bar # 911073) 

______/s/_________________________ 

Colleen T. Sealander 

Assistant General Counsel 

 _____/s/__________________________ 

Holly J. Baker 

 Attorney 

33
_____/s/__________________________ 

Claire N. Rajan 

Attorney 

 

FOR THE DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W.

Washington, D.C. 20463 

September 8, 2006 (202) 694-1650 

34