No. 07-320

In The

Supreme Court of the

United States

____________

JACK DAVIS, Appellant,

v.

FEDERAL ELECTION COMMISSION, Appellee.

____________

On Appeal from the United States District Court

for the District of Columbia

 ____________

Brief of Amici Curiae James Madison Center

for Free Speech and Citizens United 

Supporting Appellant

____________

February 27, 2008

James Bopp, Jr.

 Counsel of Record

Richard E. Coleson

Anita Y. Woudenberg

BOPP, COLESON & BOSTROM

THE JAMES MADISON CENTER

FOR FREE SPEECH

1 South 6th Street

Terre Haute, IN 47807-3510

812/232-2434 (telephone)

812/235-3685 (facsimile)
(i)

Questions Presented

1. Whether the reporting requirements of § 319 of

the Bipartisan Campaign Act of 2002 (“BCRA”), 116

Stat. 109 (codified at 2 U.S.C. § 441a-1) ( “Self-Funding

Candidate Provision”), unconstitutionally burden free

speech.

2. Whether the raised contribution limits of the

Self-Funding Candidate Provision unconstitutionally

burden free speech.
(ii)

Table of Contents

Table of Authorities ................................................. iv

Statement of Interest ................................................ 1

Summary of Argument ............................................. 2

Argument ................................................................... 4

I. The Reporting Requirements Unconstitutionally Burden Core Political Speech ............. 5

A. The Requirements Burden Free Speech . 5

B. Strict Scrutiny Is Required .................... 13

C. The Requirements Fail Strict Scrutiny . 17

1. No Anti-Corruption Interest Applies 18

2. No Informational Interest Applies .... 19

3. No Equality Interest Applies ............. 21

II. The Raised Contribution Limits Unconstitutionally Burden Core Political Speech ....... 24

A. The Adversely-Affected Person’s Perspective Is Paramount ........................... 24

B. The Raised Limits Burden Core Political

Speech ..................................................... 29

C. The Raised Limits Fail Strict Scrutiny . 32

1. No Equality Interest Applies. ............ 33

2. No Public-Financing Interest 

Applies ................................................ 34
(iii)

3. No Anti-Corruption Interest 

Applies. ............................................... 35

Conclusion ............................................................... 37
(iv)

Table of Authorities

Cases

AFL-CIO v. FEC, 333 F.3d 168 (D.C. Cir.

2003) .................................. 6, 8, 10 n.5, 11, 16 n.8

Austin v. Mich. State Chamber of Commerce, 494

U.S. 652 (1990) ................................ 18 n. 9, 35-36

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

Cal. Pro-Life Council v. Getman, 328 F.3d 1088

(9th Cir. 2003) ............................................. 16 n.8

Citizens Against Rent Control v. Berkeley, 454

U.S. 290 (1981) ...................................... 21, 29, 36

Daggett v. Comm’n on Governmental Ethics and

Election Practices, 205 F.3d 445 (1st Cir.

2000) ............................................ 26-27, 30, 31-32

Day v. Holahan, 34 F.3d 1356 (8th Cir. 1994) . 25, 27

FEC v. Fla. for Kennedy Comm., 681 F.2d 1281

(11th Cir. 1982) ........................................... 10 n.5

FEC v. Machinists Non-Partisan Political

League, 655 F.2d 380 (D.C. Cir. 1981) ...... 10 n. 5

FEC v. Wisc. Right to Life, 127 S. Ct. 2652 (2007) .. 1

First Nat’l Bank of Boston v. Bellotti, 435 U.S.

765 (1978) ............................................... 15-16, 23

Fla. Star v. B.J.F., 491 U.S. 524 (1989) ................. 21

Gable v. Patton, 142 F.3d 940 (6th Cir. 1998) ... 27-30
(v)

Jackson v. Leake, 476 F. Supp. 2d 515 (E.D.N.C.

2006) .................................................................. 32

McConnell v. FEC, 540 U.S. 93 (2003) .... 1, 16-17, 23

McIntyre v. Ohio Elections Comm’n, 514 U.S. 334

(1995) ................................................................. 15

NAACP v. Ala. ex rel. Patterson, 357 U.S. 449

(1958) ................................................................. 25

Rosenthiel v. Rodriguez, 101 F.3d 1544 (8th Cir.

1996) ............................................................ 27, 30

Republican Party of Minn. v. White, 536 U.S. 765

(2002) ................................................................. 20

Roth v. United States, 354 U.S. 476 (1957) ............ 24

Rutan v. Republican Party of Ill., 497 U.S. 62

(1990) ................................................................. 25

Shelton v. Tucker, 364 U.S. 479 (1960) .................. 15

Sweezy v. New Hampshire, 354 U.S. 234 

(1957) ........................................................... 10 n.5

VoteChoice, Inc. v. DiStefano, 4 F.3d 26 (1st Cir.

1993) ...................................................... 26, 28, 30

Wisc. Right to Life v. FEC, 546 U.S. 410 (2006) ....... 1

Constitution, Statutes, Regulations & Rules

U.S. Const. amend I ........................................ passim

U.S. Const. amend XVI ................................... passim

2 U.S.C. § 431(26) ................................................ 4 n.2
(vi)

2 U.S.C. § 437g .................................................... 8, 11

2 U.S.C. § 441a-1(a)(1) ............................................ 24

2 U.S.C. § 441a-1(a)(1)(C) ............................... 24 n.11

2 U.S.C. § 441a-1(a)(2)(B)(ii)(I) ............................... 33

2 U.S.C. § 441a-1(a)(3)(A) ....................................... 24

2 U.S.C. § 441a-1(a)(3)(B) ....................................... 24

2 U.S.C. § 441a-1(b)(1)(A)(ii) ............................... 4 n.2

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

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

2 U.S.C. § 441a-1(b)(1)(D) ......................................... 9

2 U.S.C. § 441a-1(b)(1)(E) ......................................... 9

2 U.S.C. § 441a-1(b)(3) ........................................ 8, 11

26 U.S.C. § 501(c)(3) .................................................. 1

Other Authorities

148 Cong. Rec. at S2153 (Mar. 20, 2002) ............... 35

FEC Adv. Op. 2003-31 (Dec. 19, 2003) ............... 5 n.2

Instructions for FEC Form 3 and Related Schedules at 3 (available at www.fec.gov) ........... 9 n.4
1No counsel for a party authored this brief in whole or

in part, and no counsel or party made a monetary contribution intended to fund the preparation or submission of this

brief. No person other than amicus curiae, its members, or

its counsel made a monetary contribution to its preparation

or submission. The parties have consented to the filing of

this brief.

Statement of Interest1

The mission of the James Madison Center for Free

Speech (“Madison Center”) is to support litigation and

public education activities to defend the First Amendment rights of citizens and citizen groups to free political expression and association. The Madison Center is

named for James Madison, the author and principal

sponsor of the First Amendment, and is guided by

Madison’s belief that “the right of free discussion . . .

[is] a fundamental principle of the American form of

government.” The Madison Center also provides nonpartisan analysis and testimony regarding proposed

legislation. The Madison Center is an internal educational fund of the James Madison Center, Inc., a

District of Columbia nonstock, nonprofit corporation.

The James Madison Center for Free Speech is recognized by the Internal Revenue Service as nonprofit

under 26 U.S.C. § 501(c)(3).Seehttp://www.jamesmadisoncenter.org. The Madison Center and its counsel

have been involved in numerous election-law cases,

including the challenges to the Bipartisan Campaign

Act of 2002 (“BCRA”) in McConnell v. FEC, 540 U.S. 93

(2003), Wisconsin Right to Life v. FEC, 546 U.S. 410

(2006) (“WRTL I”), and FEC v. Wisconsin Right to Life,

127 S. Ct. 2652 (2007) (“WRTL II”).

Citizens United is a nonprofit (§ 501(c)(4)) Virginia
2

corporation with its principal office in Washington,

D.C. Citizens United was founded in 1988. Its purpose

is to promote the social welfare through informing and

educating the public on conservative ideas and positions on issues, including national defense, the free

enterprise system, belief in God, and the family as the

basic unit of society. A principal means by which

Citizens United fulfills its purposes is by producing

documentary films. Citizens United joins this brief to

advocate for free expression.

Summary of Argument

The district court decided that “Davis’s First

Amendment facial challenge fails at the outset because

the Millionaires’ Amendment does not ‘burden[] the

exercise of political speech.’” JS-App. 9a (citation

omitted in original). This is erroneous because this

Self-Funding Candidate Provision (see infra at n.3)

imposes cognizable burdens on core political speech

that trigger strict scrutiny.

The reporting requirements by themselves create

cognizable burdens on a self-funding speaker. This

adversely-affected candidate is forced to suffer the

burdens of unilateral (1) long-range, advanced disclosure of strategic campaign funding information, (2) 24-

hour disclosure of strategic expenditure information,

(3) heightened risk of investigation and penalties, and

(4) heightened recordkeeping and reporting.

Since Buckley v. Valeo, 424 U.S. 1, 64 (1976), this

Court has recognized that “compelled disclosure, in

itself,” creates a sufficient burden to require “exacting

scrutiny.” In Buckley and subsequent precedents, this

Court has made clear, including in the disclosure con-
3

text, that “exacting scrutiny” means strict scrutiny,

under which the government must show that a First

Amendment burden is narrowly tailored to a compelling interest.

The reporting requirements fail strict scrutiny

because (a) no anti-corruption interest is at issue since

spending one’s own money is non-corrupting and since

Congress raised contribution limits for the candidate

speaking with other people’s money; (b) no informational interest may be considered because reporting is

unilateral, making any assertion of interest underinclusive; and (c) no equality interest is cognizable. Because the Amendment requires reporting in order to

function, the unconstitutionality of the reporting

requirements makes the Self-Funding Candidate Provision entirely unconstitutional.

The raised contribution limits also unconstitutionally burden the self-funding candidate. The First

Amendment requires that any burdens on free speech

rights be viewed from the adversely-affected person’s

perspective. Two candidates vying for office are in a

zero-sum competition, so benefits to one adversely

affect the other. The district court was wrong in saying

that there was no burden on the self-funding candidate, only a benefit to his opponent. The self-funding

candidate suffers a cognizable First Amendment burden where—based on his expenditures of his own

money for his own speech—the government rewards

his opponent with the unilateral opportunity to receive

substantial additional contributions from contributors

who have already contributed at the level at which the

government has asserted an interest in reducing quidpro-quo corruption or its appearance.
4

2Self-Funding Candidate Provision is a more neutral term than Millionaire’s Amendment for BCRA § 319.

And self-funding candidate is more neutral than millionaire as a term for the adversely-affected candidate, although

the term must be understood in a context where both

candidates may self-fund up to $350,000, and only the one

who self-funds above that trigger is adversely affected by

the Provision. Use of millionaire seems designed to tap

social antipathy toward persons perceived to be wealthy.

And it is flawed analytically.

Millionaire status is not the trigger. In a race the

incumbent and challenger may both be millionaires and selffund up to $350,000, but one funds her speech over the

trigger amount with other people’s money while her opponent feels the need for some self-funding above the trigger.

A candidate need not even be a millionaire to loan, see 2

U.S.C. § 441a-1(b)(1)(A)(ii), his campaign committee more

than $350,000 secured by “personal funds,” which include

“any asset.” 2 U.S.C. § 431(26). It is easy to imagine a nonThis burden on the adversely-affected candidate

fails strict scrutiny because (a) it is unsupported by

any anti-corruption interest, (b) precedent precludes

the equality interest on which the Amendment relies,

and (c) no compelling interest in promoting a publicfunding scheme exists or is at issue.

Argument

There are burdens at issue here. The district court

erroneously decided that “Davis’s First Amendment

facial challenge fails at the outset because the Millionaires’ Amendment does not ‘burden[] the exercise of

political speech.’” JS-App. 9a (citation omitted in

original). But the reporting requirements of the SelfFunding Candidate Provision (or “Provision”) 2

 impose
5

millionaire challenger, lacking the incumbent’s name

recognition, who is willing to “bet the farm” as collateral to

launch his campaign, expecting to regain the family farm by

successful fundraising. This farmer hopes not to actually

part with “personal funds,” and might not. But he would yet

be burdened by his opponent’s increased contribution

limits—even if that loan is quickly repaid. See FEC Adv. Op.

2003-31 (Dec. 19, 2003). Congress provided no provision for

reducing contribution limit waivers when campaigns repay

such loans—which would be required by strict-scrutiny

narrow tailoring (if a compelling interest existed).

four cognizable burdens. The raised contribution limits

also impose a burden when properly viewed from the

adversely-affected candidate’s perspective. These burdens on core political speech trigger, and fail, strict

scrutiny.

I. The Reporting Requirements Unconstitutionally Burden Core Political Speech.

The Self-Funding Candidate Provision depends on

unilateral, compelled disclosure of strategic campaign

information in order to function. Since the reporting

requirements create burdens triggering strict scrutiny,

which they fail, see infra, the whole Provision is unconstitutional, even without considering the raised contribution limits.

A. The Requirements Burden Free Speech.

The reporting requirements burden free speech because “compelled disclosure” is automatically a First

Amendment privacy burden: “[C]ompelled disclosure,

in itself, can seriously infringe on privacy of association

and belief guaranteed by the First Amendment.” Id. at

64. Buckley identified interests in protecting privacy
6

and in avoiding harassment of those associated with a

group. Id. at 64-66.

This case also involves compelled disclosure and a

First Amendment privacy right, but it is based on the

candidate’s free speech rights, not association. Compelled disclosure of private, strategic campaign information also violates the self-funding candidate’s First

Amendment right to engage in the “effective advocacy”

that Buckley recognized as a candidate’s right. Id. at 21

(emphasis added). Cf. AFL-CIO v. FEC, 333 F.3d 168,

177-78 (D.C. Cir. 2003) (compelled disclosure of “confidential internal materials” violates privacy right and

“seriously interferes with internal group operations

and effectiveness”). The fact that the disclosure is

about reporting money does not alter the free-speech

nature of the analysis because “this Court has never

suggested that the dependence of a communication on

the expenditure of money operates itself to introduce a

nonspeech element or to reduce the exacting scrutiny

required by the First Amendment.” Buckley, 424 U.S.

at 16. “[V]irtually every means of communicating ideas

in today’s mass society requires the expenditure of

money.” Id. at 19.

The reporting requirements impose four distinct

burdens on a self-funding candidate’s free-speech

rights to privacy and effective-advocacy—whether or

not they “chill” the self-funding candidate.

A “chill” is not required, although handicaps might

well chill candidate contributions, loans, speech, and

participation. The district court correctly “recogniz[ed]

that electoral politics may be a zero-sum game in

which a benefit conferred on one candidate is a disadvantage to his opponent,” JS-App. 11a, but it then
7

3Compare the situation of a defendant charged with

illegal speech, e.g., under an obscenity statute, who may

always raise a First Amendment defense even though he

was obviously not chilled from speaking.

erroneously declared that Davis “fails to address the

only issue that might raise constitutional concerns:

whether the benefit conferred chills political speech.”

Id. But handicapping burdens must be justified apart

from whether a candidate is “chilled” from speaking or

participation by them. For example, Buckley spoke of

“chilling” resulting from vague laws, 424 U.S. at 40

n.47, and potential “chill and harassment” of contributors to unpopular groups resulting from compelled

disclosure. Id. at 74. But in the relevant context of a

limit on candidate expenditures, a “handicap” burden

was cognizable, whether or not the candidate was

chilled from participation: “[T]he equalization of

permissible campaign expenditures might serve not to

equalize the opportunities of all candidates, but to

handicap a candidate who lacked substantial name

recognition or exposure of his views before the start of

the campaign.” Id. at 56-57. A candidate might well be

willing to assume the handicaps of the Provision presently at issue and run for office, as Davis did, but the

willingness to assumeunconstitutional handicaps does

not make the burdens constitutional.3

The four distinct burdens imposed by the reporting

requirements are unilateral. Nothing comparable is

required of the opponent.

First, the Provision burdens the self-funding candidate by requiring him to provide long-range, advanced

disclosure of strategic campaign receipt information.
8

4Campaign committee receipts (or expenditures) on

Cf. AFL-CIO, 33 F.3d at 178 (“substantial First

Amendment interests in the disclosure of . . . internal

materials that included “activities, strategies and

tactics,” id. at 177). Within 15 days of becoming a

candidate, the candidate must file (with the FEC, the

opposing candidate, and the opposing candidate’s

national party) a Declaration of Intent “stating the

total amount of expenditures from personal funds that

the candidate intends to make . . . that will exceed

$350,000.” 2 U.S.C. § 441a-1(b)(1)(B). The Declaration

is filed on FEC Form 2 and signed under the penalties

in 2 U.S.C. § 437g (investigations, enforcement actions,

and fines and imprisonment for violations, including

the submission of false, erroneous, or incomplete

information)—a point that the Provision specially

points out by including an atypical reference to the

enforcement and penalty provision. See 2 U.S.C.

§ 441a-1(b)(3).

Only the self-funding candidate must disclose this

strategic planning information about his campaign

budget. Other candidates simply state “$0” on Form 2,

revealing nothing about projected levels of spending

(and nothing about their possible self-funding up to

$350,000). Strategic information about projected resources and spending is closely protected by campaigns, which would never voluntarily disclose such

information in advance because it would help the

opposition. Candidates normally disclose receipts and

expenditures (on FEC Form 3) in quarterly reports

that can permit disclosure to occur up to 4 months after

these transactions occur,4 so that opposing campaigns
9

October 1 of a non-election year would not be disclosed until

January 31, keeping the opposition in the dark as to

available funds for four months. See Instructions for FEC

Form 3 and Related Schedules at 3 (available at

www.fec.gov). Other quarterly reports are due April 15, July

15, and October 15. Id. A 12-Day Pre-Election Report

provides additional disclosure before primaries and general

elections. Id. And a 48-Hour Notice of Last-Minute Contributions within 20 days of the election is required (FEC

Form 6).

must try to figure out an opponent’s financial strength

based on past (never projected) receipts. This requirement imposes a clear handicap on the self-funding

candidate and also provides a disincentive to using his

own money to speak.

Second, the self-funding candidate is burdened by

the 24-hour expenditure disclosure requirements.

Within 24 hours after he “makes or obligates to make,”

more than the trigger amount, he must file an “initial

notification.” 2 U.S.C. § 441a-1(b)(1)(C). Within 24

hours of each additional $10,000 of expenditures or

obligations, another notification must be filed. 2 U.S.C.

§ 441a-1(b)(1)(D). These notifications (on FEC Form

10) must be filed with the FEC, the opposing candidate(s), and the opposing political party, and they

require the strategic information of the “date and amount of each expenditure.” 2 U.S.C. § 441a-1(b)(1)(E).

This reporting, both as to actual and planned

expenditures (obligations), provides valuable information to an opposing candidate as to when major media

buys and other readily-identifiable, big-ticket expenses

are in the works—all long before they would be known

under the regular reporting required of every candi-
10

5The investigative process itself “tends to impinge upon

such highly sensitive areas as freedom of speech or press,

freedom of political association, and freedom of communication of ideas.” Sweezy v. New Hampshire, 354 U.S. 234, 245

(1957). This is particularly true with FEC investigations

because “[t]he sole purpose of the FEC is to regulate

activities involving political expression, the same activities

that are the primary object of the first amendment’s protection.” FEC v. Florida For Kennedy Comm., 681 F.2d 1281,

1284 (11th Cir. 1982). See also FEC v. Machinists NonPartisan Political League, 655 F.2d 380, 387 (D.C. Cir. 1981)

(Because “[t]he subject matter which the FEC oversees . . .

relates to behavior of individuals and groups only insofar as

they act, speak and associate for political purposes,” the

Commission’s investigative authority is subject to “extracareful scrutiny from the court.”); AFL-CIO, 333 F.3d at 170

(“Commission investigations . . . frequently involve subpoenaing materials...‘represent[ing] the very heart of the

organism which the first amendment was intended to

nurture and protect’. . . .”).

date. The self-funding candidate must make disclosures that might not have to be made otherwise for up

to 4 months—the time that he will have to await information as to the date and amount of his opponent’s

expenditures. Information on spending is strategic

information that a candidate would ordinarily keep

private until all candidates are equally required to

disclose their activities. These ongoing, unilateral disclosures of strategic information impose a clear handicap, and also disincentives, to self-funded speech.

Third, the self-funding candidate is burdened by a

unilateral, heightened risk of investigation5

 and

penalties triggered by the requirement of declaring

how much a candidate intends to spend for the primary
11

and general elections. As noted above, the Provision

atypically includes a specific reference to the penalties.

See 2 U.S.C. § 441a-1(b)(3). FEC Form 2 includes the

following caveat under the Declaration of Intent to

Expend Personal Funds: “NOTE: Submission of false,

erroneous, or incomplete information may subject the

person signing this Statement to penalties of 2 U.S.C.

§437g.”

If the self-funding candidate ends up using more

personal funds than he declared that he intended to

spend many months ago, there will be questions as to

whether he should be subjected to penalties for filing

a false report. His opponent will want to know whether

the self-financing candidate was trying to keep that

strategic information from her, even though she has no

parallel advanced disclosure obligation. A complaint

and investigation are highly likely, in which the FEC

will seek more private campaign information in the

form of strategic plans and internal correspondence to

determine if there is evidence to counter the declared

intent. Dealing with all the requests made in an FEC

investigation is time-consuming and costly, imposing

a serious burden on the ability of a campaign to function. See, e.g., AFL-CIO, 333 F.3d at 172 (three-year

investigation).

Yet given the vicissitudes of political campaigns,

how can a self-funding candidate project, months in

advance, how much money his campaign might need?

Experience might help inform such a projection, but

that would favor incumbents, not newcomer challengers. A candidate making a low projection might have

simply been optimistic that more contributions from

others would be forthcoming, but is at the same height-
12

6The $10,000 expenditure reports do require the opposing candidate to file a 24-Hour Notice of Opposition Personal Funds Amount (FEC Form 11), calculating and

reporting the extra funds that the candidate may receive.

But this lesser reporting burden is offset for this candidate

by the benefit of the raised contribution limits. Nothing

provides compensation for the self-funding candidate’s

handicaps.

ened risk for a complaint and investigation as if he had

sandbagged his opponent. Only the self-funding speaker is forced to assume the burden of this risk.

Fourth,the self-funding candidate is burdened, not

just by the disclosure of strategic information as

described above, but also by doing heightened recordkeeping and reporting not required of his opponent.

While all campaigns must keep records of receipts and

expenditures and disclose them in generally-applicable

reports, the self-funding candidate must do more. The

requirement to file another 24-hour report every time

$10,000 is expended is especially problematic (apart

from the compelled disclosure of strategic information

discussed supra) because the too-low (and so not narrowly tailored) threshold requires continuous, contemporaneous reporting. In a race that runs to $2 million

dollars in expenditures for a candidate, the repeatreporting trigger would be just .5% of expenditures.

Staff must be hired to do this burdensome compliance,

which requires a substantial amount of time, and for

which there are penalties for late or missing reports.6

These are four distinct burdens—in addition to the

more general burden of compelled disclosure itself,

with the concomitant loss of privacy rights—on the

self-funding candidate’s efforts to get his campaign
13

7Buckley established this Court’s “unambiguously campaign related” requirement as a separate test in addition to

“exacting scrutiny”: “We also have insisted that there be a

‘relevant correlation’ or ‘substantial relation’ between the

governmental interest and the information required to be

disclosed.” Id. at 64 (emphasis added; footnotes and citamessage out. These handicaps make it clear that the

Self-Funding Candidate Provision burdens his First

Amendment rights to free speech and effective advocacy. They are handicaps that might also chill candidate speech and participation, although the handicaps

alone are enough to establish a burden regardless of

whether the candidate is chilled, and a chill is unnecessary to trigger strict scrutiny. As shown next, these

burdens trigger strict scrutiny.

B. Strict Scrutiny Is Required.

The reporting requirements are “compelled disclosure,” which, “in itself, can seriously infringe on” First

Amendment rights. Buckley, 424 U.S. at 64 (emphasis

added) (collecting cases). Since the First Amendment

mandates that “Congress shall make no law

. . . abridging the freedom of speech,” and this “‘guarantee has its fullest and most urgent application precisely

to the conduct of campaigns for political office,’” id. at

15 (citation omitted), how may government violate one

candidate’s First Amendment privacy and effectivecampaign rights to be free from burdensome compelled

speech disclosing campaign plans and activities? An

election-related disclosure requirement must clear two

hurdles to escape the First Amendment’s prohibition.

First, it must be “unambiguously campaign related.” Id. at 81.7
14

tions omitted). In applying the unambiguously-campaignrelated requirement, this Court held that disclosure must be

“unambiguously related to the campaign of a particular federal candidate,” id. at 80, so that “the relation of the information sought to the purpose of the Act [is not] too remote”

and “impermissibly broad.” Id. at 80. This Court said that

the requirement assures that the compelled disclosure is

properly related to “[t]he constitutional power of Congress

to regulate federal elections.” Id. at 13 (footnote omitted). A

law that survives this threshold test (as does the one at

issue here) must yet be narrowly tailored to a compelling

governmental interest, such as preventing quid-pro-quo

corruption.

Second, an election-related disclosure requirement

must survive strict scrutiny. Id. at 64, 66. Buckley used

“exacting scrutiny” as a synonym for “strict scrutiny”:

We long have recognized that significant encroachments on First Amendment rights of the

sort that compelled disclosure imposes cannot

be justified by a mere showing of some legitimate governmental interest. Since NAACP v.

Alabama we have required that the subordinating interests of the State must survive

exacting scrutiny. [Id. at 64 (footnote and

citations omitted).]

Buckley and subsequent precedent make clear that

“exacting scrutiny” means “strict scrutiny.”

In Buckley, it was clear, by the term “exacting” and

the rejection of mere “legitimate” interests, that strict

scrutiny was intended. Id. This Court expressly described “exacting scrutiny” as “[t]he strict test.” Id. at

66. And it included a discussion of “least restrictive

means,” id. at 68, a hallmark of strict scrutiny. See,
15

e.g., Shelton v. Tucker, 364 U.S. 479, 488 (1960).

Moreover, this “exacting scrutiny” is stricter than

Buckley’s scrutiny for contribution limits, in which the

government must show “a sufficiently important

interest and employ[] means closely drawn to avoid

unnecessary abridgment of associational freedoms.”

424 U.S. at 25.

In McIntyre v. Ohio Elections Commission, 514

U.S. 334 (1995) (dealing with disclosure), this Court

expressly equated “exacting scrutiny” with strict scrutiny: “When a law burdens core political speech, we

apply ‘exacting scrutiny,’ and we uphold the restriction

only if it is narrowly tailored to serve an overriding

state interest.” Id. at 347 (citing First Nat’l Bank of

Boston v. Bellotti, 435 U.S. 765, 786 (1978)). McIntyre

termed this “the strictest standard of review.” Id. at

348. Note the further use of synonyms when McIntyre

equated “overriding state interest” with compelling

interest. Id. at 347.

The Bellotti decision to which McIntyre referred

also plainly equated “exacting scrutiny” with strict

scrutiny:

[E]xacting scrutiny [is] necessitated by a stateimposed restriction of freedom of speech.

Especially where, as here, a prohibition is

directed at speech itself, and the speech is

intimately related to the process of governing,

“the State may prevail only upon showing a

subordinating interest which is compelling,”

“and the burden is on the Government to show

the existence of such an interest.” Even then,

the State must employ means “closely drawn to

avoid unnecessary abridgment.”
16

8Lower courts have concluded that compelled disclosure

requires strict scrutiny. See AFL-CIO, 333 F.3d at 176

(Buckley “conclud[ed] that the disclosure requirements . . .

survived strict scrutiny”); Cal. Pro-Life Council v. Getman,

328 F.3d 1088, 1101 n.16 (9th Cir. 2003) (“we subject

California’s disclosure requirements to strict scrutiny”).

Id. at 786 (citations omitted). Note the further use of

synonyms as Bellotti equated “subordinating interest”

with compelling interest, and “closely drawn” with narrowly tailored, id., and then proceeded to equate

“critical scrutiny” with strict scrutiny. Id.8

McConnell v. FEC, 540 U.S. 93 (2003), neither addressed nor altered the precedential standard of review. It did speak of the “important” interests identified in Buckley:

We agree with the District Court that the

important state interests that prompted the

Buckley Court to uphold FECA’s disclosure

requirements—providing the electorate with

information, deterring actual corruption and

avoiding any appearance thereof, and gathering the data necessary to enforce more substantive electioneering restrictions—apply in

full to BCRA. [Id. at 196.]

But, given the facts that (1) McConnell was not addressing or deciding the standard of review, (2) the

cited Buckley decision was applying strict scrutiny, and

(3) this Court often uses synonyms for analytical

terms, nothing can properly be read into McConnell’s

use of “important.”

Nor can a new standard of review be properly read

into McConnell’s statement that “disclosure require-
17

9The assertion that the reporting requirements are

necessary to implement the Provision fails strict scrutiny.

Both means and ends must be constitutionally permissible

or else any means could be imposed to achieve some arguably permissible end. While the end sought here (purported

ments are constitutional because they ‘“d[o] not prevent anyone from speaking.”’” 540 U.S. at 201 (citations omitted). The statement was not in the context of

discussing the applicable scrutiny. McConnell was not

purporting to alter the controlling standard of review.

And such language could not constitute a test because

it would grant Congress carte blanche for any disclosure scheme—regardless of interest, tailoring, or

burden—so long as it does not “prevent” speech. If

mere non-prohibition were the test, then McConnell’s

own identification of “important state interests,” id. at

196, was an unnecessary, meaningless analysis.

In sum, the reporting requirements impose distinct, constitutionally-cognizable burdens in the form

of violations of a candidate’s First Amendment rights

to free speech, informational privacy, and effective

campaigning. These are unconstitutional handicaps,

which might also chill speech and participation, that

are cognizable burdens regardless of whether the

candidate is chilled. Strict scrutiny of the reporting

requirements is required. As shall be shown next,

those requirements fail strict scrutiny.

C. The Requirements Fail Strict Scrutiny.

Strict scrutiny requires a compelling interest to

justify the First Amendment burdens. The three possible interests, i.e., anti-corruption, informational, and

equality,9

 are examined next and found lacking.
18

equality) is itself unconstitutional, see infra, the burdens

imposed by the means must also be independently justified

by the government under strict scrutiny.

A corporate-form interest has been found compelling in

some campaign-finance contexts, see, e.g., Austin v. Mich.

State Chamber of Commerce, 494 U.S. 652 (1990), but that

interest is inapplicable in this context.

1. No Anti-Corruption Interest Applies.

No interest in limiting corruption justifies the reporting requirements. Buckley upheld $1,000 limits on

contributions to candidates, deciding that an interest

in “limit[ing] the actuality and appearance of corruption resulting from large individual financial contributions,” 424 U.S. at 26, was “a sufficiently important interest,” id. at 25, to justify the “abridgement of associational freedoms.” Id. But no anti-corruption interest

is cognizable in the present strict-scrutiny, free-expression context.

There is no quid-pro-quo corruption as to the selffunding candidate’s speaking with his own money

because Buckley held that a candidate cannot corrupt

himself. Buckley expressly recognized this in striking

down limits on a candidate’s expenditures: “[T]he

prevention of actual and apparent corruption of the

political process . . . does not support the limitation on

the candidate’s expenditure of his own personal funds.”

Id. at 53. “Indeed,” the Court added, “the use of personal funds reduces the candidate’s dependence on

outside contributions and thereby counteracts the

coercive pressures and attendant risks to which the

Act’s contribution limits are directed.” Id.

As to the raised contribution limits that the self-
19

10The setting of a contribution limit is the government’s

assertion that candidates might be “bought” above this

price. Since the government has raised the contribution

limits, it has necessarily decided that the opponents of selffunding candidates can’t be “bought” at the usual rate that

it believes to apply. Unlike usual candidates, these moral

paragons won’t exchange financial quids for legislative quos,

so the usual anti-corruption interest is waived. The government does not explain why these candidates are less

susceptible to corruption by the sole reason of having an

opponent who is spending inherently non-corrupting funds.

One might rather expect that these candidates would be

extra-grateful to those who came to their aid at a rate much

beyond the usual going rate for contributions. In any event,

for present purpose, raised contributions are a clear indication that the government perceives little or no risk of quidpro-quo corruption in such situations.

funding candidate’s opponent receives (whichcould not

corrupt the self-funding candidate), there is also no

cognizable corruption interest because the contribution

limits are being raised. Waiving is not asserting.10

Permitting liberty of contribution is not in itself corrupting.

The reporting requirements are not about thirdparty contributions, which are the source of potential

corruption. They have nothing to do with a quid-proquo corruption interest on either side of the election

contest. So the corruption interest cannot justify the

First Amendment burdens that the reporting requirements impose.

2. No Informational Interest Applies.

The burdens of the reporting requirements cannot

be justified with an informational interest. The general
20

disclosure requirements that apply to all candidates,

e.g., quarterly reports of contributions and expenditures and special pre-election reports, were approved

in Buckley on the basis of three interests advanced by

disclosure: (1) informing the electorate, (2) preventing

corruption, and (3) collecting data to detect violations

of contribution limits. 424 U.S. at 66-68. None of these

is applicable to support the special reporting imposed

on a self-financing candidate. The second and third

interests can be immediately dismissed because no

anti-corruption interest applies, see supra, and none of

the data required to be reported has any application to

detecting circumvention of contribution limits.

The first interest, the informational interest, is not

cognizable because the required reporting is underinclusive as to that interest. See Republican Party of

Minn. v. White, 536 U.S. 765, 780 (2002) ( “[T]he Court

need not decidewhether achieving “impartiality” (or its

appearance) in the sense of openmindedness is a

compelling state interest because, as a means of

pursuing this interest, the announce clause is so

woefully underinclusive that the Court does not believe

it was adopted for that purpose.”) While the selffunding candidate must provide long-range, private,

strategic information about his campaign’s funding, his

opponent need not reveal anything about the planned

level of her campaign funding. While the self-funding

candidate must report within 24 hours of expending

over $350,000, and each $10,000 thereafter, his opponent can sit back and wait to disclose her spending at

the next quarterly (or other scheduled) report, keeping

him in the dark about her activities. If Congress really

had an interest in providing the public with the infor-
21

mation that these reporting requirements provide,

then it would also require the non-self-funding candidate to disclose long-term, advanced information about

her campaign’s intended funding level along with 24-

hour reporting of expenditures aggregating $10,000.

The government’s failure to do so means that it is not

really asserting an interest in informing the public.

Where considerable First Amendment freedoms are at

stake, a state must “demonstrate its commitment to

advancing [its] interest by applying its [requirements]

evenhandedly.” Fla. Star v. B.J.F., 491 U.S. 524, 540

(1989).

In any event, the public will receive full information about campaign contributions and receipts in the

less-restrictive quarterly and pre-election reports that

both candidates must file, so the special, unilateral

disclosurerequirements are redundant as to any public

informational interest. Any asserted informational

interest would be “insubstantial because voters may

identify [the relevant information] under [other]

provisions. Citizens Against Rent Control v. Berkeley,

454 U.S. 290, 298-99 (1981). “It is clear, therefore, that

[the challenged disclosure provision] does not advance

a legitimate governmental interest significant enough

to justify its infringement of First Amendment rights.”

Id. at 299.

3. No Equality Interest Applies.

The burdens of the reporting requirements cannot

be justified with an equality interest. This Court

rejected such an interest in Buckley: “[T]he 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 Amend-
22

ment . . . .” 424 U.S. at 48-49. This principle was stated

in the context of striking down a statutory limit on

independent expenditures by persons or groups in support of, or opposition to, candidates. The Court repeated its rejection of an equality principle: “The First

Amendment’s protection against government abridgement of free expression cannot properly be made to

depend on a person’s financial ability to engage in public discussion.” Id. at 49. Again the Court declared that

“[n]either the voting rights cases nor the Court’s

decision upholding the . . . fairness doctrine support

[the] position that the First Amendment permits

Congress to abridge the rights of some persons to

engage in political expression in order to enhance the

relative voice of other segments of our society.” Id. at

49 n.55.

Buckley again rejected an equality interest when it

struck down an expenditure limit on a candidate’s use

of his own money to campaign: “[T]he First Amendment simply cannot tolerate [a] restriction upon the

freedom of a candidate to speak without legislative

limit on behalf of his own candidacy.” Id. at 54. The

Court provided an additional rationale that should

guide the present analysis: “[T]he limitation may fail

to promote financial equality among candidates. A

candidate who spends less of his personal resources on

his campaign may nonetheless outspend his rival as a

result of more successful fundraising efforts.” Id.

“Indeed,” the Court concluded, “a candidate’s personal

wealth may impede his efforts to persuade others that

he needs their financial contributions or volunteer

efforts to conduct an effective campaign.” Id.

In short, the people—potential contributors and
23

voters—are the ones to evaluate and possibly act on

equality principles, not Congress. “[G]overnment is

forbidden to assume the task of ultimate judgment, lest

the people lose their ability to govern themselves.”

Bellotti, 435 U.S. at 791 n.31. “The First Amendment

rejects the ‘highly paternalistic’ approach,” id. (citation

omitted), which the assertion of an equality interest

constitutes. And the people receive the information

they need for their consideration of equality factors

from the ordinary quarterly and near-election candidate reports required of all candidates. And only the

people may take into account all of the myriad factors

that must be considered to even attempt to level the

playing field for candidates—factors that extend far

beyond personal financial resources, or incumbents’

war chests to such intangibles as name recognition,

fame, family history, connections, appearance (overly

or inadequately photogenic), communication skills,

endorsements, etc.

If there is any doubt left that equality may not be

considered, note that this Court again rejected the

equality rationale in McConnell. The Court noted that

“equal resources,” or “equalizing,” is “not . . . a legally

cognizable right.” 540 U.S. 227. And it cited, inter alia,

Buckley. Id. (citing 424 U.S. at 48).

As may be seen from the foregoing Part I analysis,

the reporting requirements impose distinctburdens, so

strict scrutiny is required, which the requirements fail.

The Court need go no further because without the

reporting requirements the Self-Funding Candidate

Provision cannot function and should be struck in its

entirety.
24

11Coordinated expenditure limits are also waived. 2

U.S.C. § 441a-1(a)(1)(C).

II. The Raised Contribution Limits Unconstitutionally Burden Core Political Speech.

The Self-Funding Candidate Provision allows the

opposing candidate’s contribution limits to be tripled if

her opponent’s personal funds for his campaign exceed

$350,000. 2 U.S.C. § 441a-1(a)(1).11 Should her “aggregate amount of contributions previously accepted and

party expenditures previously made under the increased limits . . . exceed[ ] 100 percent of the opposition personal fund amount,” she ceases to enjoy the

raised limits. 2 U.S.C. § 441a-1(a)(3)(A). Likewise, if

his opponent withdraws from the race, the limits

return to the original $2,300. 2 U.S.C. § 441a1(a)(3)(B).

For the raised limits to violate the First Amendment, they must unconstitutionally burden speech.

Buckley, 424 U.S. at 44. Because Davis is adversely

affected by the raised contribution limits that impose

a cognizable burden on core political speech, the limits

must satisfy strict scrutiny. Because they do not, the

limits should be declared facially unconstitutional. 

A. The Adversely-Affected Person’s Perspective

Is Paramount.

The First Amendment protects the free-speech

rights of citizens from governmental restriction “to

assure [the] unfettered interchange of ideas for the

bringing about of political and social changes desired

by the people.” Roth v. United States, 354 U.S. 476, 484

(1957). At its core it protects those whose free-speech

rights are adversely affected by the law and requires
25

that any analysis of its violation be viewed from the

perspective of the adversely-affected party. 

This Court’sdecisions have recognized this requirement. Buckleyupheld contributions limitsbecause they

did not have “any dramatic adverse effect on the

funding of campaigns and political associations,” that

is, those who sought to have their rights protected. Id.

at 21. Likewise, this Court struck down as unconstitutional compelled disclosures in NAACP v. Ala. ex rel.

Patterson, 357 U.S. 449 (1958) because they “adversely

affected” the NAACP and its members’ ability to “to

pursue their collective effort to foster beliefs which

they admittedly have the right to advocate.” Id. at 462-

63. See also Rutan v. Republican Party of Ill., 497 U.S.

62, 73-74 (1990) (determining that employment promotion, transfer, recall, or hiring decisions adversely

affected employees such that they burdened free

speech and were subject to strict scrutiny).

Adhering to the requirement of employing the

adversely-affected party’s perspective is of particular

importance in the context of elections and campaigns.

As discussed above, supra Part I.A., campaigns involve

core political speech in a closed environment that is

fundamentally a zero sum game. As the Eighth Circuit

has aptly stated, “to the extent that a candidate's

campaign is enhanced by the operation of the statute,

the [opposing] political speech of the individual or

group who made the independent expenditure . . . is

impaired.” Day v. Holahan, 34 F.3d 1356, 1360 (8th

Cir. 1994). Because fundamental speech rights are at

stake, the proper evaluation of those rights is critical

to a just and proper result.

The district court below relied on public-funding
26

cases that disregard the First Amendment’s core

requirement. See JA-9a-13a. Those cases involve

similar triggers with correlating disclosure requirements that modify either the spending or contribution

limits of a class of candidates. But those cases are

inconsistent with the First Amendment's requirement

and this Court’s jurisprudence regarding the proper

perspective from which to review a purported speech

injury—that of the adversely-affected party.

In VoteChoice, Inc. v. DiStefano, 4 F.3d 26 (1st Cir.

1993), the court reviewed Rhode Island’s contribution

“cap gap” that doubled the contributions a publicfunding participant could receive from a person or PAC

in a given year if triggered. Id. at 30. The court held

that the cap gap was merely a part of Rhode Island’s

voluntary public-funding scheme and neither penalized

nor coerced candidates into participating. Id.at 39. The

court disregarded the effect the scheme has on the

nonparticipating candidate, noting in passing that the

“non-complying candidate suffers no more than a

countervailing denial” of a benefit and focusing instead

on the “rough proportionality” of burdens and benefits

on those who participate in the scheme. Id.

The First Circuit affirmed its VoteChoice rationale

in Daggett v. Comm’n on Governmental Ethics and

Election Practices, 205 F.3d 445 (1st Cir. 2000), upholding Maine’s public-funding scheme. Id. at 472. The

scheme provided matching funds to participants (made

possible by reporting requirements of independent expenditures in excess of $50) and reduced contribution

limits for nonparticipants to between $250 and $500,

depending on the office sought. Id. at 451-52. The

court was dismissive of any adverse affect on the
27

complaining party, noting that the scheme “in no way

limits the quantity of speech . . . nor . . . threaten[s]

censure or penalty,” id. at 464, and focuses on the

voluntary nature of the scheme. Id. at 466-67.

Daggett expressly discounts the rationale of Day v.

Holahan, 34 F.3d 1356, notably omitted by the present

district court below. Daggett, 205 F.3d at 464. In Day,

a public-funding scheme that afforded matching funds

based on the independent expenditures of both the

nonparticipating candidate and third parties supporting that candidate was challenged. The Eighth Circuit

struck down the scheme as a content-based burden

that chilled speech and failed strict scrutiny. Id. at

1360-61.

In a subsequent Eighth Circuit decision, Rosenthiel

v. Rodriguez, 101 F.3d 1544 (8th Cir. 1996), the court

held that Minnesota’s public-funding scheme, with its

$50 contribution refund to taxpayers giving to candidates participating in the scheme, was not coercive

and, thus, did not burden First Amendment rights. Id.

at 1552-53. It distinguished Day on factual grounds

and adopted the rationale of VoteChoice, contending

that because the public-funding scheme involved an

exchange of voluntary restrictions for a benefit, it was

not coercive. Id. at 1550-51.

Similarly, the Sixth Circuit in Gable v. Patton, 142

F.3d 940 (6th Cir. 1998) adoptedVoteChoice’s rationale

to uphold Kentucky’s $2-for-$1 matching provision for

public-funding participants because the court could not

determine whether the scheme clearly was coercive. Id.

at 948-49. 

These decisions, with the exception of Day, adopt

an approach that is fundamentally flawed in two ways:
28

12A discussion of burden analysis can be found infra

Part II.B.

They do not properly evaluate the First Amendment

burden from the perspective of the adversely-affected

party, and they improperly assume thatthe nonparticipant can only be burdened if he or she is effectively

coerced to participate.12

Instead of evaluating the specific circumstances of

the challenged provision’s adverse effects on a party,

these courts have instead opted to generally evaluate

the voluntariness of the scheme. In doing so, they

dismiss these adverse effects as mere benefits to a

participating opponent, even though it is clear that the

benefits participating candidates receive are to the

clear detriment to the nonparticipant. See VoteChoice,

4 F.3d at 38 (“whether Rhode Island’s system . . .

imposes a penalty . . . [or] confers a benefit . . . [is]

comparable to bickering over whether a glass is half

full or half empty.”) Yet by doing so, they release free

speech analysis from its foundational moorings to

unnecessarily develop a novel jurisprudence for a

deeply-rooted right. Only in such a circumstance could

the district court conclude that raised limits “place[d]

no restrictions on a candidate’s ability to spend unlimited amounts of his personal wealth” but instead “provides a benefit to his opponent.” JS-9a.

When framed properly, it is clear that Davis is

adversely affected by the raised limits. His opponent

enjoys higher contribution limits than Davis merely

because Davis decided to spend in excess of $350,000 of

his own funds on his campaign. This disadvantages his

ability to advocate on his own behalf as a candi-
29

date—an adverse effect on his political speech. 

B. The Raised Limits Burden Core Political

Speech.

Of course, an adverse effect of a law must also be

a cognizable burden on free speech. See Berkeley, 454

U.S. at 295-96. Here, the adverse effects on self-funding candidates are a burden on core political speech. 

The right to self-fund has been afforded substantial

protection by this Court: 

[I]t is of particular importance that candidates

have the unfettered opportunity to make their

views known so that the electorate may intelligently evaluate the candidates’ personal qualities and their positions on vital public issues

before choosing among them on election day. 

Buckley, 424 U.S. at 52-53. Candidates can be chilled

from either self-funding their own campaign from the

outset or from funding their campaigns beyond the

$350,000 trigger amount. Crucially, this makes the

raised limits’ burden involuntary: a candidate can (1)

self-fund, and either be chilled from spending more

than $350,000 or trigger the raised limits, benefitting

his opponent and burdening his own campaign, or (2)

forego self-funding completely and effectively selfcensor to avoid the raised limits matter entirely. 

Given that Davis would either forfeit or substantially encumber his free-speech rights regardless of the

option he chose, one can hardly criticize him for selffunding his campaign. Yet the district court used this

decision to conclude that Davis suffered no burden,

stating that “[Davis] has failed to show that his speech

has been limited in any way because of the benefits the
30

13The district court also concluded that because any

burden Davis experienced is justified by legitimate interests, he suffered no burden. JS-12a-13a. This analysis confuses determining whether a burden exists with strict

scrutiny itself.

Amendment provides his opponent. In fact, Davis

himself has twice elected to self-finance.” JS-13a.13 This

myopic burden analysis mirrors the public-funding

cases on which the district court relied, which required

coercion in order for a recognized burden to exist.

The public-funding cases all held that nonparticipants are only unconstitutionally burdened by a

public-funding scheme when the benefits and burdens

that their participating opponent is subject to are so

disparate as to have coerced them to participate. See

Gable, 142 F.3d at 949; Rosenthiel, 101 F.3d at 1552-

53; Daggett, 205 F.3d at 470-71; VoteChoice, 4 F.3d at

38-39. While it is true that such a circumstance would

amount to a burden—a particularly egregious form of

chill on those who might want to self-fund or raise

their own funding—nothing in First Amendment jurisprudence suggests that coercion is the only legitimate

burden. Moreover, these cases focus on whether there

is a broadly coercive nature to the scheme, instead of

evaluating the legitimacy of the specific claimed

burdens placed upon the adversely-affected person

before it.

This analytical shift substitutes for the preliminary

question of whether an adversely-affected individual

suffers a cognizable burden to his free speech rights a

required generalized showing that the burdens and

benefits of a scheme are so disproportionate as to be
31

coercive. This shifts the burden of proof away from

those advancing the law, who traditionally must

justify the infringement of a constitutional right, to the

adversely-affected party, who must now show that his

right is completely subverted by the scheme so that he

is forced to become part of it. This is a particularly

difficult task if the adversely-affected party is not part

of that scheme, and it is contrary to this Court’s jurisprudence. 

Each of these public-funding cases purports to

derive its analysis from Buckley. Buckley upheld a

public-financing scheme that encouraged participation

by giving free money to qualified participants in

exchange for adherence to certain restrictions. 424 U.S.

at 95. Buckley found public-funding to be constitutional

because the trade-off that participating candidates

made was voluntary. Id. In other words, the burden on

the participating candidate was voluntarily agreed

upon in exchange for a benefit. 

By relying on Buckley as they did, the publicfunding cases illogically extend this Court’s consideration of a voluntary relinquishment of a right to more

elaborate schemes that involve matching funds and

impose disclosure requirements on those not participating in the scheme. These cases all involve publicfunding schemes that have matching funds contingent

on the amount spent by their nonparticipating opponent. They also place additional burdens on nonparticipants and, in some cases, those making independent expenditures, through elaborate reporting

requirements in a purported effort to ensure the

success of the public-funding scheme. See, e.g.,Daggett,

205 F.3d at 465 (discussing Maine’s $50 reporting
32

requirements). See also Jackson v. Leake, 476 F. Supp.

2d 515, 523-24 (E.D.N.C. 2006), on appeal sub nom.

Duke v. Leake, No. 07-1454 (4th Cir. 2007). Yet these

cases neglect to adequately weigh these additional burdens placed upon nonparticipants, burdens that were

not part of the Buckley court’s analysis in upholding

the public-financing scheme before it. They emphasize

the purported voluntariness of participation in the

fund in an effort to tie their analysis to Buckley, all the

while imposing a coerciveness standard that affords all

but the most egregious burdens on free speech a free

pass. 

Yet the logical extension of Buckley is that any

public-financing scheme (and any similar provisions)

that involuntarily deprives a candidate of his right or

unburdened ability to speak, regardless of his decision

to participate, is unconstitutional or, at minimum,

creates a cognizable burden subject to scrutiny. See

Buckley, 424 U.S. at 95. Because the raised contribution limits substantially undermine Davis’ right to

speak, regardless of whether he self-finances, the

raised limits burden core political speech.

C. The Raised Limits Fail Strict Scrutiny.

Unlike Buckley, whichheld that contribution limits

restrict “one aspect of the contributor’s freedom of

political association,” Buckley, 424 U.S. at 24-25, the

present raised limits directly affect core political

speech—the candidate’s self-funded speech. So strict

scrutiny applies.

Three possible interests might be served by the

raised contribution limits: (a) an interest in equality,

(b) an interest in promoting a public-funding scheme,

and (c) an anti-corruption interest. The raised limits
33

serve none of these interests.

1. No Equality Interest Applies.

As discussed above, this Court has rejected an

interest in equality as being compelling. See supra Part

I.C.3. Even if such an interest were recognized as

compelling, the raised limits do not legitimately serve

this interest. First, the funds used to calculate when

the raised limits are triggered include only those funds

raised through December 31 of the prior year. 2 U.S.C.

§ 441a-1(a)(2)(B)(ii)(I). This inherently advantages

incumbents, who, because they have run before and

have significant connections, can raise money after

that time with greater ease than a self-funding challenger, who lacks those advantages.

If the interest supporting this provision were truly

in equality, the advantages incumbents enjoy would be

included in the equation. It would take into account the

advantages of holding office—an established staff, paid

travel, franking privileges, media access—along with

the benefits derived from having run for office before.

But instead, the raised limits are underinclusive,

targeting the one thing that is not necessarily inherent

to incumbents and quite possibly the only advantage a

challenger might have over an incumbent: wealth. 

Moreover, in assessing whether a candidate is

entitled to raised limits under the Self-Funding Candidate Provision, the provision fails to consider the

circumstances surrounding a candidate's intent to

spend in excess of $350,000. Raised limits are offered

even in the circumstance where a candidate loans his

campaign money with the hope of being reimbursed

through fundraising at some later date. Non-millionaires, such as a farmer who puts up his farm as collat-
34

14The congressional decision to protect only senators

and representatives and not presidential candidates indicates both an incumbent-protective motive and a lack of

seriousness about the asserted equality interest, due to

underinclusiveness.

eral to run for office, or a candidate who, like Hillary

Clinton, loans her campaign $5 million,14 can trigger

the increased limits through such a loan, even though

not a penny of their own money may ultimately be

spent towards their campaign. If the intent in providing raised limits was to only reach independently

wealthy candidates, this oversight renders the raised

limits overinclusive. The raised limits do not serve an

equality interest.

2. No Public-Financing Interest Applies.

Despite the public-funding cases on which the

district court relies, no public-financing scheme is

involved in this matter that might serve to justify the

raised limits. And public financing is only a legitimate,

not a compelling, interest.

Buckley acknowledged a legitimate interest in

public-financing because it was designed to avoid quidpro-quo corruption. 424 U.S. at 96. Recognizing that

the lower contribution limits asserted as necessary to

minimize corruption were a burden, Congress sought

to give the money directly to candidates who qualified

for the funds. Id. The public-financing scheme before

the Buckley court involved a voluntary bargain between the candidate and the government. Buckley, 424

U.S. at 95. No First Amendment burdens were in play,

so a rational basis for the scheme was sufficient. First

Amendment burdens are in play here. So only a
35

compelling governmental interest would suffice. 

While the creation of a public-financing scheme

might be motivated to minimize quid-pro-quo corruption, the matching funds aspect of public-funding

schemes shift the interest from corruption to equality,

which is illegitimate. The same can be said of the

raised limits here.

3. No Anti-Corruption Interest Applies.

Given that the raised limits are triggered by the

exercise of a candidate’s decision to self-fund his or her

own campaign, any suggestion of quid-pro-quo corruption is unfounded. See id. at 96 (“the limits on contributions necessarily increase the burden of fundraising,

and Congress properly regarded public financing as an

appropriate means of relieving . . . candidates from the

rigors of soliciting private contributions”) (emphasis

added). But the FEC has asserted below and the

Congressional Record reflects that the raised limits

oppose the perceived corruption of self-funding. See 148

Cong. Rec. 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”). In other words, there is

allegedly something inherently corrupt about selffunding that warrants its regulation.

This Court addressed the infusion of large sums of

money into election campaigns in Austin v. Michigan

Chamber of Commerce, 494 U.S. 652 (1990). The Austin

court expressed concern with large amounts of corporate money being spent supporting a candidate and

recognized that “[c]orporate wealth can unfairly in-
36

fluence elections when it is deployed in the form of

independent expenditures, just as it can when it assumes the guise of political contributions.” Id. at 660.

This was particularly troubling to the Court because

the corporate form, as a creature of the state, was

created in such a way that large sums of money could

be amassed and then expended on campaigns in a

manner not indicative of popular support. Id. While

these effects might be of concern in the corporate

context, such is not the case for self-funding candidates. 

Self-funding candidates are not creatures of the

state, but individuals. And because “the First Amendment’s protection against governmental abridgment of

free expression cannot properly be made to depend on

a person’s financial ability to engage in public discussion,” Berkeley, 454 U.S. at 296, self-funding candidates are entitled to the same protections as any other

candidate.

Further, public support is not only measured by

financial support, but ultimately through voter support. It is up to the people to weigh and balance personal wealth when voting for the most qualified candidate. Austin’s analysis should not be extended. 
37

Conclusion

The Self-Funding Candidate Provision, with its

reporting requirements and raised limits, adversely

affects Davis and burdens core political speech. It does

not serve a compelling interest and should be struck

down.

Respectfully submitted,

James Bopp, Jr.,

Counsel of Record

Richard E. Coleson

Anita Y. Woudenberg

BOPP, COLESON & BOSTROM

THE JAMES MADISON CENTER

FOR FREE SPEECH

1 South 6th Street

Terre Haute, IN 47807-3510

812/232-2434 (telephone)

812/235-3685 (facsimile)