No. 07-320

In the Supreme Court of the United States

JACK DAVIS, APPELLANT

v.

FEDERAL ELECTION COMMISSION

ON APPEAL FROM THE 

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

MOTION TO DISMISS OR AFFIRM

THOMASENIA P. DUNCAN

General Counsel

DAVID KOLKER

Associate General Counsel

KEVIN DEELEY

Acting Assistant General

Counsel

HOLLY J. BAKER

CLAIRE N. RAJAN

Attorneys

Federal Election

Commission

Washington, D.C. 20463

PAUL D. CLEMENT

Solicitor General

Counsel of Record

GREGORY G. GARRE

Deputy Solicitor General

MALCOLM L. STEWART

Assistant to the Solicitor

General

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217
(I)

QUESTIONS PRESENTED

Section 319 of the Bipartisan Campaign Reform Act

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

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

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

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

in such elections. The questions presented are as follows:

1. Whether appellant has standing to challenge the

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

2. Whether those modified limits on their face violate

the First Amendment or the equal protection component

of the Due Process Clause of the Fifth Amendment.

3. Whether the disclosure requirements established

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

TABLE OF CONTENTS

 Page

Opinion below . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

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

Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

TABLE OF AUTHORITIES

Cases:

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

Daggett v. Committee on Gov’t Ethics & Election

Practices, 205 F.3d 445 (1st Cir. 2000) . . . . . . . . . . . . . 20

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

FEC v. Colorado Republican Fed. Campaign Comm.,

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

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

(2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

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

denied, 525 U.S. 1177 (1999) . . . . . . . . . . . . . . . . . . . . . . 20

Lewis v. Continental Bank Corp., 494 U.S. 472 (1990) . . 13

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) . . . . . 12

McConnell v. FEC, 540 U.S. 93 (2003) . . . . . . . . . 5, 6, 10, 26

Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377 (2000) . . . . 18

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

(2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Rodriguez v. United States, 480 U.S. 522 (1987) . . . . . . . . 20

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

Cases—Continued: Page

United States v. Salerno, 481 U.S. 739 (1987) ...........9

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

1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Constitution, statutes and regulations:

U.S. Const.:

Art. III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13, 24

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

Amend. V (Due Process Clause) . . . . . . . . . . . . . . . . . 2, 12

Bipartisan Campaign Reform Act of 2002, Pub. L. No.

107-155, 116 Stat. 81 ..............................9

§ 304, 116 Stat. 97 . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 23

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

§ 403(a)(1), 116 Stat. 114 ........................9

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

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

2 U.S.C. 432(e)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

2 U.S.C. 434(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

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

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

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

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

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

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

2 U.S.C. 441a(i) (Supp. v 2005) ................ 5

2 U.S.C. 441a(a)(1)(A) (2000 & Supp. V 2005) ......3

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

Statutes and regulations—Continued: Page

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

2 U.S.C. 441a-1(a)(1)(B)-(C) (Supp. V 2005) ....... 6

2 U.S.C. 441a-1(a)(1)(C) (Supp. V 2005) . . . . . . . . . 2, 6

2 U.S.C. 441a-1(a)(2) (Supp. V 2005) . . . . . . . . . . . . 6, 7

2 U.S.C. 441a-1(a)(2)(B)(ii) (Supp. V 2005) . . . . . . . . 23

2 U.S.C. 441a-1(a)(3)(A)(ii) (Supp. V 2005) . . . . . . 7, 19

2 U.S.C. 441a-1(b) (Supp. V 2005) . . . . . . . . . . . . . . . 25

2 U.S.C. 441a-1(b)(1)(A)(i) (Supp. V 2005) .........6

2 U.S.C. 441a-1(b)(1)(A)(ii) (Supp. V 2005) .........6

2 U.S.C. 441a-1(b)(1)(B) (Supp. V 2005) . . . . . . . . 7, 26

2 U.S.C. 441a-1(b)(1)(C) (Supp. V 2005) ...........7

2 U.S.C. 441a-1(b)(1)(D) (Supp. V 2005) ...........7

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

11 C.F.R.:

Section 101.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Section 104.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Sections 400.30-400.31 ............................8

Section 400.30(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 26

Section 400.30(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Section 400.31 ...................................8

Section 400.31(e)(1)(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Miscellaneous:

147 Cong. Rec. (2001):

p. 3967 .........................................5

p. 3969 .........................................5

p. 3976 .........................................5
VI

Miscellaneous—Continued: Page

p. 5148 .........................................7

148 Cong. Rec. (2002):

p. 1382 .........................................5

p. 3603 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Davis for Congress, Report of Receipts and

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

nictusa.com/cgi-bin/fecimg/?F279302380507 .........7

Davis for Congress, 24-Hour Notice of Expenditure

from Candidates Personal Funds (Nov. 6, 2006)

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

26960663096to> .................................8

Reynolds for Congress Disclosure Reports (visited

Dec. 4, 2007) <http://images.nictusa.com/cgi-bin/

fecimg/?C00336065> . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

FEC’s Statement of Material Facts Not in Genuine

Dispute (Sept. 8, 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . 23
(1)

In the Supreme Court of the United States

No. 07-320

JACK DAVIS, APPELLANT

v.

FEDERAL ELECTION COMMISSION

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

MOTION TO DISMISS OR AFFIRM

OPINION BELOW

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

reported at 501 F. Supp. 2d 22.

JURISDICTION

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

2007, and the jurisdictional statement was filed on September 7, 2007. The jurisdiction of this Court is invoked

under the Bipartisan Campaign Reform Act of 2002

(BCRA), Pub. L. No. 107-155, § 403(a)(3), 116 Stat. 114;

and 28 U.S.C. 1253.

STATEMENT

This case involves a facial constitutional challenge to

Section 319 of BCRA, 116 Stat. 109 (2 U.S.C. 441a-1

(Supp. V 2005)). Section 319 applies to elections for the
2

United States House of Representatives in which a candidate contributes more than $350,000 in personal funds

to his own campaign. If and when certain conditions are

met, the opponents of such candidates may accept contributions from individuals in excess of the generally applicable limits. See 2 U.S.C. 441a-1(a)(1)(A)-(B) (Supp.

V 2005). Under those circumstances, the usual statutory

limits on political party expenditures that are coordinated with a candidate do not apply to expenditures in

support of an opponent of the self-financing candidate.

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

filed suit in federal district court, arguing that Section

319 on its face violates the First Amendment and the

equal protection component of the Due Process Clause

of the Fifth Amendment. The three-judge district court

rejected appellant’s constitutional claims and granted

the government’s motion for summary judgment. J.S.

App. 1a-18a.

1. The Federal Election Commission (Commission

or FEC) is vested with statutory authority over the administration, interpretation, and civil enforcement of the

Federal Election Campaign Act of 1971 (FECA),

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

statutes. The Commission is empowered to “formulate

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

“to make, amend, and repeal such rules * * * as are

necessary to carry out the provisions of [the] Act,”

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

2005); and to issue written advisory opinions concerning

the application of the Act and Commission regulations to

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

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

2. Federal law has long prohibited any person from

making contributions “to any candidate and his autho-
3

rized political committee with respect to any election for

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

441a(a)(1)(A) (2000 & Supp. V 2005); see J.S. App. 3a

n.4. In Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam),

this Court upheld the $1000 contribution limit then imposed by FECA. See id. at 23-35. The Court explained

that “the Act’s primary purpose—to limit the actuality

and appearance of corruption resulting from large individual financial contributions—[provides] a constitutionally sufficient justification for the $1,000 contribution

limitation.” Id. at 26. In response to the contention that

the contribution limit had been set at too low a level, the

Court in Buckley stated that “if [Congress] is satisfied

that some limit on contributions is necessary, a court has

no scalpel to probe, whether, say, a $2,000 ceiling might

not serve as well as $1,000. Such distinctions in degree

become significant only when they can be said to amount

to differences in kind.” Id. at 30 (citations and internal

quotation marks omitted). Because expenditures made

in coordination with candidates have essentially the

same value to candidates as contributions, federal law

has also long treated “coordinated expenditures”—including expenditures by political parties made in coordination with their own candidates, FEC v. Colorado Republican Fed. Campaign Comm., 533 U.S. 431, 465

(2001)—as “contributions” subject to statutory limits,

see Buckley, 424 U.S. at 46-47 & n.53.

While upholding statutory limits on contributions to

federal candidates, the Court in Buckley invalidated

FECA caps on the amount of personal wealth a federal

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

51-54. Those provisions barred presidential and vicepresidential candidates from spending more than
4

$50,000 of their personal wealth on their campaigns,

limited Senate candidates to $35,000, and limited most

House candidates to $25,000. Id. at 51. The Court concluded that “the First Amendment simply cannot tolerate [the statute’s] restriction upon the freedom of a candidate to speak without legislative limit on behalf of his

own candidacy.” Id. at 54.

The Court in Buckley upheld Congress’s decision to

provide public financing for presidential campaigns and

to make the availability of public money contingent on a

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

arrangement does not “abridge, restrict, or censor

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

discussion and participation in the electoral process.”

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

he chooses to accept, he may decide to forgo private

fundraising and accept public funding.” Id. at 57 n.65.

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

limitation on the size of outside contributions, the financial resources available to a candidate’s campaign, like

the number of volunteers recruited, will normally vary

with the size and intensity of the candidate’s support.”

424 U.S. at 56. The Court acknowledged, however, that

this relationship “may not apply where the candidate

devotes a large amount of his personal resources to his

campaign.” Id. at 56 n.63. Based on its assessment of

federal elections in the thirty years since Buckley, Congress determined that increasing numbers of congressional candidates now choose to rely largely on their

own personal wealth to finance their campaigns.
5

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

contains comparable provisions and applies to elections for the United

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

n.1; J.S. 6 n.3. In McConnell v. FEC, 540 U.S. 93 (2003), certain plaintiffs challenged the constitutionality of Sections 304 and 319, but the

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

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

by wealthy candidates’ expenditures of personal funds

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

opponents to compete and to put their messages and

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

(2001) (Sen. DeWine); see 148 Cong. Rec. 1382 (2002)

(Rep. Davis) (explaining that Section 319 “evens the

playing field” between a non-wealthy candidate and one

“who can go to McDonald’s, have breakfast with himself,

write himself a $3 million check and have the largest

fund-raising breakfast in history”). The competitive

advantage of self-financing candidates in turn threatened to create the public perception that “someone today who is wealthy enough can buy a seat” in Congress.

147 Cong. Rec. at 3976 (Sen. DeWine). Members of Congress also expressed concern that party officials increasingly consider individuals’ wealth in recruiting potential

candidates. See, e.g., id. at 3969 (Sen. McCain) (“[B]oth

parties have now openly stated that they recruit people

who have sizable fortunes of their own in order to run

for the Senate.”). 

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

United States House of Representatives.1

 Section 319
6

Court held that the plaintiffs lacked standing to sue and accordingly did

not reach the merits of their challenge. See id. at 229-230.

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

counts the expenditures from personal funds made by each candidate,

applies only to House election campaigns in which at

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

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

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

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

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

2005).

If a candidate for the House of Representatives

makes expenditures from personal funds that exceed

$350,000,

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

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

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

would otherwise be limited.

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

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

whether and to what extent he may accept contributions

and coordinated expenditures that would otherwise exceed the statutory limits, a candidate must calculate the

“opposition personal funds amount” (OPFA). See 2

U.S.C. 441a-1(a)(2) (Supp. V 2005); J.S. App. 4a.2

 Sec-
7

adds 50% of the aggregate receipts raised by each candidate during the

year prior to the election, and compares the totals. 2 U.S.C.

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

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

qualify to solicit additional financial support under the provision. The

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

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

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

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

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

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

election year will not unduly benefit. See 147 Cong. Rec. at 5148 (Sen.

Durbin) (explaining that Congress’s goal was to “get as close [as] possible to a level playing field but not create incumbent advantage”). 

tion 319 limits the amount of increased contributions

and increased coordinated party expenditures a candidate may receive to 100% of the amount of the total

OPFA disparity between the candidates. 2 U.S.C.

441a-1(a)(3)(A)(ii) (Supp. V 2005).

Section 319 also imposes reporting requirements for

self-financing candidates and their opponents. See J.S.

App. 5a. Within 15 days after becoming a candidate, an

individual must disclose the amount of personal funds in

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

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

candidate actually spends more than $350,000 in personal funds on his campaign, he must file an “initial notification” of that expenditure within 24 hours after exceeding the threshold. 2 U.S.C. 441a-1(b)(1)(C) (Supp. V

2005). Thereafter, for each aggregate expenditure of

$10,000 or more in personal funds, the candidate must

file a notification within 24 hours. 2 U.S.C.

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

be filed with the Commission and provided to each oppo-
8

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

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

Congress, Report of Receipts and Disbursements 4 (Mar. 10, 2007)

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

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

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

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

26960663096+0> (reporting $1,520,000 in total expenditures from

personal funds in the general election).

nent in the same election, and to the national party of

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

The opponent of a self-financing candidate is also

subject to additional real-time reporting requirements.

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

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

he becomes eligible to invoke the modified contribution

and coordinated-expenditure limits, must notify the

Commission and his political party within 24 hours.

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

the maximum allowable amount and is no longer entitled

to solicit increased contributions and coordinated party

expenditures, he must notify the Commission and his

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

4. Appellant Jack Davis was a candidate for United

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

spring of 2006, appellant filed with the Commission a

Statement of Candidacy indicating that he intended to

spend no personal funds in support of his primary campaign and to spend $1 million in personal funds during

the general election campaign. Ibid.

3

 In June 2006, appellant filed suit in federal district court, asserting a
9

facial challenge to Section 319. Ibid. Pursuant to Section 403(a)(1) of BCRA, 116 Stat. 114, a three-judge district court was convened. See J.S. App. 1a, 6a. The district court granted the FEC’s motion for summary judgment. Id. at 1a-18a.

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

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

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

disclosure requirements impose an injury-in-fact on selffinanced candidates that can be traced directly to [Section 319].” Ibid.

b. The district court noted that appellant had

brought a facial challenge to Section 319, and that such

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

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

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

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

communicate his message to voters, nor does it reduce

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

Section 319 “preserve[s] core First Amendment values

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

observed that Section 319 “is similar to statutes that

permit higher contribution limits for candidates who

agree to public financing of their campaigns,” and that

such regimes have “been consistently upheld against

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

(citing cases).
10

The district court rejected appellant’s contention

that Section 319, by conferring a competitive advantage

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

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

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

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

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

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

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

participate in public financing of their campaigns.” Ibid.

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

further explained that appellant himself had not been

deterred by Section 319, since he had chosen to self-finance his campaigns in both 2004 and 2006. See J.S.

App. 13a.

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

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

had upheld similar reporting obligations both in Buckley

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

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

[appellant] concedes that all of the information required

by the reporting provisions would eventually have to be

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

applies,” appellant’s claim of an unconstitutional burden

“is essentially a complaint about the timing elements of

the reporting requirements.” Id. at 16a. The court
11

found that complaint to be unfounded, noting that “the

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

upheld in McConnell.” Ibid. The court further observed

that Section 319 imposes reporting obligations not only

on self-financing candidates, but also on their opponents

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

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

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

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

this showing because the reasonable premise of [Section

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

own campaigns and that this difference creates adverse

consequences dangerous to the perception of electoral

fairness.” Ibid.

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

not receive any increased contributions or coordinated

party expenditures pursuant to Section 319. See

Reynolds for Congress Disclosure Reports (visited Dec.

4, 2007) <http://images.nictusa.com/cgi-bin/fecimg/

?C00336065> (reporting no increased contributions to

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

election cycle).
12

ARGUMENT

Appellant contends that Section 319’s relaxed contribution and coordinated-expenditure limits for opponents

of self-financed candidates on their face violate his

rights under the First Amendment and under the equal

protection component of the Fifth Amendment. Appellant lacks standing to raise those claims, since he has

identified no actual or imminent injury to himself resulting from that aspect of Section 319. In any event, the

district court correctly held that those facial challenges

lack merit. Appellant’s challenge to the disclosure requirements of Section 319 also presents no substantial

federal question on the merits. The appeal should therefore be dismissed for lack of a substantial federal question. In the alternative, the judgment of the court of

appeals should be affirmed.

1. In order to satisfy the “irreducible constitutional

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

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

will be redressed by a favorable decision of the court.

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

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

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

Appellant has not shown that Section 319 caused him

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

that any such injury is imminent.

 During the 2006 election campaign, appellant’s opponent received no contributions, and the opponent’s political party made no coordinated expenditures, in excess
13

of the generally applicable FECA limits. See p. 11, supra. The possibility that his opponent would invoke the

modified limits established by Section 319 did not deter

appellant from loaning his campaign approximately

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

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

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

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

after all, a considerable amount of his own money in excess of the $350,000 cap.”). Although the election campaign had not ended at the time of the summary judgment briefing in the lower court, it is now clear that appellant suffered no injury from Section 319’s modification of some of the statutory limits on financial support

for candidates.

By the time that the district court issued its decision

in this case, the 2006 election had taken place. Because

Article III’s “case-or-controversy requirement subsists

through all stages of federal judicial proceedings,” Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990),

the possibility that this case has become moot would

present another potential obstacle to its adjudication by

this Court, even if appellant had initially established his

standing to sue. If appellant had been injured during

the 2006 campaign by the relaxed contribution and

coordinated-expenditure limits contained in Section 319,

the prospect that appellant will self-finance a future federal electoral campaign would likely bring this case

within “the established exception to mootness for disputes capable of repetition, yet evading review.” FEC v.

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

see id. at 2662-2663. The fact that the events precipitating the parties’ dispute are “capable of repetition,” however, provides no basis for concluding that appellant will
14

be injured in future election cycles in light of the reality

that he did not suffer any injury in the most recent campaign. Appellant’s First Amendment and equal protection challenges to Section 319’s modified contribution

and coordinated-expenditure limits are therefore nonjusticiable.

2. Section 319’s modified limits on financial support

for the opponents of self-financing candidates do not

violate the First Amendment and certainly do not do so

on their face.

a. Appellant characterizes the instant case as one

“involving the regulation of a candidate’s personal expenditures.” J.S. 11. As the district court recognized,

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

wealth to communicate his message to voters, nor does

it reduce the amount of money he is able to raise from

contributors.” J.S. App. 9a. In short, as the district

court explained, Section 319 “does not limit in any way

the use of a candidate’s personal wealth in his run for

office.” Ibid. Section 319 therefore is not naturally described as “regulation” of a self-financing candidate’s

campaign-related activities.

b. The principal thrust of appellant’s First Amendment argument is that (i) because appellant has a constitutional right to make unlimited expenditures in support

of his own campaign, he cannot be penalized for exercising that right; and (ii) because an election can have only

one winner, any benefit provided to his opponent should

be regarded for constitutional purposes as a penalty

imposed on appellant. That line of reasoning cannot be

reconciled with Buckley (whose validity appellant does

not question). The Court held in that case that, although

the First Amendment precludes Congress from placing
15

4 Appellant contends (J.S. 12) that “[t]he government may not attach

either direct or indirect financial disincentives upon a particular speaker based on the content of that speech.” The application of Section 319,

however, does not turn on the content of a candidate’s speech, but on

the amount of personal funds expended. This Court’s decision in Buckley makes clear that Congress may create “financial disincentives” to

independent campaign spending without violating the Constitution.

The cases on which appellant relies (see J.S. 12-13), moreover, all involved extractions of funds directly from persons engaged in First Amendment activity. Section 319, by contrast, neither deprives the self-financing candidate of funds nor divests him of any other potential benefit;

it simply loosens the fundraising restrictions placed upon his opponents.

binding limits on a candidate’s independent campaign

expenditures, Congress “may condition acceptance of

public funds on an agreement by the candidate to abide

by specified expenditure limitations.” 424 U.S. at 57

n.65. The obvious consequence of that holding is that a

candidate’s insistence on spending personal funds in

amounts exceeding the statutory threshold may legitimately be treated as a ground for withholding a federal

subsidy to which the candidate would otherwise be entitled. 

The Court in Buckley thus recognized that a candidate’s First Amendment right to make unlimited campaign expenditures is not violated simply because the

candidate is subjected to some practical disadvantage as

a result of exercising that right.4 The disadvantage to

which self-financing presidential candidates are subjected—i.e., the denial of federal funds that would otherwise be paid to the candidate himself—is much more

direct and immediate than the competitive injury that

appellant claims he would suffer if his opponent were

enabled to raise greater amounts of money. If, as

Buckley holds, use of a self-financing presidential candidate’s spending decisions as a ground for withholding
16

federal money from that candidate does not unconstitutionally burden the candidate’s First Amendment rights,

there is no basis (especially in the context of a facial

challenge such as this) for treating the modification of

limits on an opponent’s fundraising as a constitutional

violation.

c. As the district court recognized, Congress enacted

Section 319 to reduce the natural advantage that

wealthy individuals possess in campaigns for federal

office. J.S. App. 2a-3a n.2; see p. 5, supra. The Court in

Buckley explained that, under the FECA contribution

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

campaign, like the number of volunteers recruited, will

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

as a healthy byproduct of the contribution limits it upheld. The Court also noted, however, that, in light of the

Court’s invalidation of expenditure limits, “[t]his normal

relationship may not apply where the candidate devotes

a large amount of his personal resources to his campaign.” Id. at 56 n.63. In enacting Section 319, Congress sought partially to restore the “normal relationship” between the resources that a candidate can acquire through private contributions and the level of public support that the candidate has mustered. Section 319

also serves to counteract the public perception that

wealthy people can buy seats in Congress, to increase

the incentives for less wealthy candidates to run for office, and to encourage political parties to recruit candidates based on merit, rather than personal financial

wherewithal. See p. 5, supra.

Nothing in this Court’s decisions supports appellant’s suggestion (see J.S. 10-11) that the equalization

(or relative equalization) of electoral opportunities for
17

wealthy and non-wealthy candidates is an illegitimate

governmental objective. To be sure, the Constitution

limits the means that Congress may employ to achieve

that goal. Thus, the Court in Buckley held that the “interest in equalizing the relative financial resources of

candidates competing for elective office” was a constitutionally insufficient justification for restrictions on a candidate’s own campaign spending. 424 U.S. at 54. That

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

conclusion that “the First Amendment simply cannot

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

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

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

Congress chose to do so by relaxing contribution and

coordinated-expenditure limits that themselves trigger

First Amendment scrutiny.

d. Appellant contends (J.S. 9-10) that, because Section 319 permits opponents of self-financing candidates

to accept contributions in excess of the generally applicable FECA limit, it is inconsistent with the anti-corruption rationale on which those limits have been sustained.

That claim lacks merit.

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

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

can obtain the resources needed to run effective campaigns. As this Court has recognized, the task of identifying the specific dollar limit that strikes the most ap-
18

propriate balance between those objectives is largely

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

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

$1,000”) (citation omitted); accord Nixon v. Shrink Mo.

Gov’t PAC, 528 U.S. 377, 397 (2000). The modified contribution and coordinated-expenditure limits contained

in Section 319 do not reflect congressional abandonment

of FECA’s anti-corruption purpose. Rather, they reflect

Congress’s determination to adjust the balance in a subset of elections to address an additional legitimate interest that is distinctly raised in that subset. Specifically,

Congress determined that, for elections in which a selffinancing candidate’s expenditures threaten to sever the

usual link between a candidate’s financial resources and

the level of his actual public support, the fundraising

limits applicable to opposing candidates should take into

account the distinct public interest in equalizing electoral opportunities for wealthy and non-wealthy individuals. As Senator McCain explained:

Congress has concluded that contributions in excess

of $2,000 present a risk of actual and apparent corruption. Section [319] 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 election.
19

5 Section 319 was carefully crafted to target the problems that Congress identified without unduly burdening or benefitting either selffinancing candidates or their opponents. The provision does not apply

to all self-financing candidates, but only to those who spend more than

$350,000 on their own campaigns. Section 319 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. 2 U.S.C. 441a-1(a)(3)(A)(ii) (Supp. V 2005). In

addition, the opponents of self-financing candidates remain subject to

substantial statutory fundraising restrictions that help to reduce the

possibility of corruption or the appearance thereof. Section 319 does

not affect the contribution restrictions on corporations, labor unions,

foreign nationals, or political committees, and it relaxes but does not

eliminate the limits on contributions by individuals. 

148 Cong. Rec. at 3603.5

Nothing in this Court’s decisions suggests that Congress is foreclosed from adjusting the statutory contribution and coordinated-expenditure limits for particular

elections in which one candidate’s large expenditures of

personal wealth implicate a government interest distinct

from those that underlie the generally applicable caps.

Cf. Buckley, 424 U.S. at 36 (explaining that FECA “provisions [excepting some volunteers’ expenses from contribution limits] are a constitutionally acceptable accommodation of Congress’ valid interest in encouraging citizen participation in political campaigns while continuing

to guard against the corrupting potential of large financial contributions to candidates”). Such accommodation

of competing interests is the norm rather than the exception in legislation, and “[c]ourts * * * must respect

and give effect to these sorts of compromises.”

Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 94

(2002) (citation omitted). As this Court has explained,
20

6 Nor is it obvious why Congress’s use of higher limits in this one

context would lead to invalidation of the higher limits imposed by

Section 319, as opposed to calling into question whether the basic limits

are “too low.” Appellant does not make the latter challenge, and it is

foreclosed by precedent.

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

the very essence of legislative choice—and it frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute’s primary objective must be the law.

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

(1987).6

e. The courts of appeals have consistently rejected

First Amendment challenges to campaign-finance statutes similar to Section 319, including statutes that permit increased contribution limits for certain qualifying

candidates, on the ground that such laws do not restrict

the speech of opposing candidates. See Daggett v. Committee on Gov’t Ethics & Election Practices, 205 F.3d

445, 464-465 (1st Cir. 2000) (upholding statute that provided public matching funds to candidate who accepted

public financing when independent expenditures were

made against him or on behalf of non-participating opponent; court explained that the matching funds provision

“in no way limits the quantity of speech one can engage

in or the amount of money one can spend engaging in

political speech, nor does it threaten censure or penalty

for such expenditures”); Gable v. Patton, 142 F.3d 940,

948 (6th Cir. 1998) (upholding statute that provided 2-1

public matching funds for candidates who agreed to limit

expenditures and that waived the expenditure limit
21

7 Unlike the state law at issue in Day, Section 319 is triggered only

by substantial expenditures of personal funds made by the candidate

himself, not by independent expenditures made by the candidate’s

supporters. Also unlike the law struck down in Day, Section 319 does

not make public funds available to the opponent of a self-financing

candidate. Two years after its decision in Day, the Eighth Circuit

upheld against First Amendment challenge a state law under which a

candidate’s own expenditures above a threshold amount triggered the

elimination of limits on his publicly-financed opponent’s campaign

spending. See Rosenstiel, 101 F.3d at 1551-1552.

when a non-participating opponent raised funds in excess of that amount; court explained that “a statutorily

created benefit does not per se result in an unconstitutional burden”) (internal quotation marks omitted), cert.

denied, 525 U.S. 1177 (1999); Rosentiel v. Rodriquez,

101 F.3d 1544, 1551 (8th Cir. 1996) (upholding statute

that provided public financing to candidates who agreed

to limit overall expenditures and that raised the expenditure limit when a privately-financed opponent spent in

excess of the limit); Vote Choice, Inc. v. DiStefano, 4

F.3d 26, 37 n.13, 39 (1st Cir. 1993) (upholding statute

that permitted candidates who agreed to public financing and to limit their expenditures to accept contributions of $2000, while limiting non-participants to $1000

contributions). But cf. Day v. Holahan, 34 F.3d 1356,

1359-1362 (8th Cir. 1994) (striking down state law that

increased a candidate’s expenditure limits and provided

the candidate with public funds when any person made

independent expenditures in support of the candidate’s

opponent).7

3. Appellant’s equal protection claim would present

no substantial federal question even if appellant had

standing to contest Section 319’s modifications of the

contribution and coordinated-expenditure limits that

apply to his opponent. Appellant contends (J.S. 13) that
22

“Section 319 violates basic principles of equal protection

to the extent that it regulates speech by some candidates but not the speech of other similarly situated candidates.” As the district court explained, however, “the

reasonable premise” underlying Section 319 is that candidates who spend more than $350,000 of their own

money on a House campaign are “situated differently

from those who lack the resources to fund their own

campaigns.” J.S. App. 17a.

The Court in Buckley held that “the Constitution

does not require Congress to treat all declared candidates the same for public financing purposes.” 424 U.S.

at 97. The Court rejected equal protection challenges to

the FECA criteria used to determine whether and to

what extent various presidential candidates would receive public funding. Id. at 97-108. And, as explained

above, the Court held that public funds could be denied

to any candidate who refused to abide by statutory

spending limits. That holding establishes that, while

Congress may not require compliance with statutory

spending caps, it may permissibly treat candidates who

adhere to such limits differently from those who decline

to do so. There is no reason to regard Section 319’s differentials in the amounts of money that candidates may

receive from private sources as more suspect than analogous differentials in the distribution of federal funds.

While acknowledging that the public financing system upheld in Buckley “furthers legitimate government

interests,” appellant contends that “[n]o equivalent benefits can be found in expanding contribution limits for a

candidate who happens to be in a race with a self-financed opponent.” J.S. 14. Appellant is correct that the

core rationale for Section 319—i.e., the public interest in

diminishing the importance of personal wealth as a crite-
23

rion for election to federal office—was not specifically

identified in Buckley and is not identical to the interests

that public financing of presidential campaigns is intended to serve. Appellant makes no effort, however, to

refute Congress’s determination that the interests underlying Section 319 are legitimate and weighty ones.

Because Section 319 serves important government interests, and because Buckley makes clear that Congress

may differentiate between candidates who abide by statutory spending thresholds and candidates who choose to

exceed them, appellant’s equal protection claim lacks

merit.

Appellant’s contention (J.S. 15) that Section 319 on

its face favors incumbents over challengers is unsupported by the record. To the contrary, Congress adopted a

“gross receipts advantage” approach (see note 2, supra)

to reduce any benefit to incumbents and other candidates who may be able to raise sizable amounts in the

year prior to the election. The “gross receipts advantage” in the election year is calculated based on funds

acquired by each candidate as of December 31 of the

year before the general election and counts 50% of gross

receipts “that may be expended in connection with the

election.” 2 U.S.C. 441a-1(a)(2)(B)(ii) (Supp. V 2005).

By taking account of the funds raised prior to the election year, Congress sought to ensure that incumbents do

not unfairly benefit from “war chests” they have built up

in advance. Indeed, during the first four years after

Sections 304 and 319 were adopted, 110 House and Senate candidates became eligible to receive enhanced contributions under the modified limits, but only six were

incumbents. See FEC’s Statement of Material Facts

Not in Genuine Dispute paras. 63, 75 (Sept. 8, 2006). If
24

8 Whether appellant’s challenge to Section 319’s disclosure provisions

remained justiciable after the 2006 election presents a closer question.

Appellant has not filed with the Commission a Statement of Candidacy

for the 2008 election cycle or otherwise indicated to the Court that he

intends to run another self-financed federal campaign. On balance,

however, appellant’s prior history of participation as a candidate in

elections for the House of Representatives presumably provides a

sufficient basis for concluding that the current dispute between the

Section 319 were designed as appellant suggests, it has

proved remarkably ineffective.

Finally, appellant’s complaints (J.S. 16) about the

details of the percentages, dates, and calculations included in Section 319 are not of constitutional dimension. In upholding the FECA provisions that govern

public financing of presidential campaigns, the Court in

Buckley explained that “the choice of the percentage

requirement that best accommodates the competing interests involved was for Congress to make. Without any

doubt a range of formulations would [adequately serve

the relevant congressional purposes]. We cannot say

that Congress’ choice falls without the permissible

range.” 424 U.S. at 103-104. The same analysis applies

here.

4. As the district court correctly held (J.S. App. 6a7a), appellant has standing to challenge the disclosure

requirements imposed by Section 319. Because appellant loaned his campaign more than $350,000, he was

subject to those disclosure requirements even though

his opponent did not ultimately invoke Section 319’s

modified contribution and coordinated-expenditure limits. And while Section 319’s disclosure obligations do

not differ substantially from the pre-existing FECA

requirements, the differences are sufficient to constitute

an Article III “injury in fact.” 8
25

parties over the constitutionality of Section 319’s disclosure provisions

is likely to recur.

On the merits, however, appellant’s constitutional

challenge raises no substantial federal question. Appellant contends (J.S. 13) that Section 319’s disclosure requirements “single out appellant and reward his opponent simply because [appellant] has chosen to spend his

own money on his campaign.” That is incorrect. For

two reasons, Section 319’s disclosure provisions do not

impermissibly “single out” self-financing candidates.

a. The disclosure requirements that Section 319 imposes on self-financing candidates do not differ substantially from the obligations that are imposed on all candidates for federal elective office. Section 319 requires

self-financing candidates to file (i) a declaration of intent

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

and (iii) additional notifications within 24 hours after

each $10,000 in aggregate expenditures. 2 U.S.C. 441a1(b) (Supp. V 2005). Except for the declaration of intent,

similar information is ultimately disclosed under preexisting FECA provisions. See, e.g., 2 U.S.C. 432(e)(1),

434(b); 11 C.F.R. 101.1, 104.3; J.S. App. 16a (noting appellant’s concession that “all of the information required

by [Section 319’s] reporting provisions would eventually

have to be disclosed to the FEC whether or not [Section

319] ever applies”).

As the district court explained, this Court “has consistently upheld against First Amendment challenges

statutes that impose the burden of reporting campaign

finance fundraising and expenditures no less onerous

than those that trouble [appellant].” J.S. App. 14a. The

district court noted in particular that, because appel-
26

lant’s challenge “is essentially a complaint about the

timing elements of the reporting requirements,” the

challenge must fail because “the timing deadlines of

[Section 319] are no more burdensome than other BCRA

reporting deadlines that were upheld in McConnell.” Id.

at 16a. Even the requirement that a self-financing candidate report within 24 hours each additional expenditure of $10,000 in personal funds after spending

$350,000 “mirrors the deadline for reporting each

$10,000 expenditure on electioneering communications

upheld by the McConnell Court.” Ibid.; see id. at 15a

(explaining that the Court in McConnell, 540 U.S. at

194-202, upheld a 24-hour deadline for reporting each

$10,000 expenditure on electioneering communications).

Because Section 319’s disclosure provisions are substantially similar to requirements that have previously been

upheld by this Court, they impose no unconstitutional

burden on appellant’s political expression, and they cannot properly be said to “single out” self-financing candidates.

b. The district court also correctly explained that

“any burden that [Section 319’s] reporting provisions

may hypothetically impose is not ‘unilateral’” because

“[t]he opponent of a self-financed candidate also faces

additional reporting requirements, which are similar to

those of the self-financed candidate[].” J.S. App. 16a.

Under Section 319, all candidates must file a declaration

about whether they intend to spend personal funds. 2

U.S.C. 441a-1(b)(1)(B) (Supp. V 2005). The opponent of

a self-financed candidate must (i) calculate the OPFA

when the threshold is reached and each time the selffinanced candidate reports an additional $10,000 expenditure; (ii) file a notice within 24 hours if and when the

new OPFA entitles the candidate to solicit increased
27

contributions; (iii) file a notice with the Commission and

the national and state committees of his political party

within 24 hours if and when increased contributions received have reached the proportionality cap; and (iv)

report any refunds of money raised under Section 319.

11 C.F.R. 400.30(b), 400.31(e)(1)(ii). In addition, political parties that make coordinated expenditures pursuant

to Section 319 must report, within 24 hours, those expenditures to the FEC and to the candidate on whose

behalf the money was spent. 11 C.F.R. 400.30(c)(2). For

those reasons as well, appellant is wrong in arguing that

Section 319’s disclosure provisions “single out” self-financing candidates.

CONCLUSION

The appeal should be dismissed for lack of a substantial federal question. In the alternative, the judgment of

the district court should be affirmed.

Respectfully submitted.

THOMASENIA P. DUNCAN

General Counsel

DAVID KOLKER

Associate General Counsel

KEVIN DEELEY

Acting Assistant General

Counsel

HOLLY J. BAKER

CLAIRE N. RAJAN

Attorneys

Federal Election

Commission

PAUL D. CLEMENT

Solicitor General

GREGORY G. GARRE

Deputy Solicitor General

MALCOLM L. STEWART

Assistant to the Solicitor

General

DECEMBER 2007