No. 07-320

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In The 

Supreme Court of the United States 

-------------------------- ♦ -------------------------- 

JACK DAVIS, 

Appellant,

v. 

FEDERAL ELECTION COMMISSION, 

Appellee.

-------------------------- ♦ -------------------------- 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

-------------------------- ♦ -------------------------- 

BRIEF OF AMICUS CURIAE 

THE CATO INSTITUTE 

IN SUPPORT OF NEITHER PARTY 

-------------------------- ♦ --------------------------

Ilya Shapiro Benjamin D. Wood* 

CATO INSTITUTE William J. McGinley 

1000 Massachusetts Ave., N.W. Glenn M. Willard 

Washington, DC 20001 Samantha R. Petrich 

(202) 218-4600 PATTON BOGGS LLP 

 2550 M Street, N.W. 

 Washington, DC 20037 

 (202) 457-6000 

 * Counsel of Record 

 Counsel for Amicus Curiae 

 Dated: February 27, 2008
i

TABLE OF CONTENTS 

Page 

TABLE OF AUTHORITIES...................................... iii 

INTEREST OF THE AMICUS CURIAE................... 1 

SUMMARY OF ARGUMENT .................................... 2 

ARGUMENT............................................................... 4 

I. Section 319 Imposes an Unconstitutional 

Penalty on the Exercise of Fundamental 

First Amendment Rights to One’s Own 

Political Speech................................................ 4 

A. By Penalizing Protected Speech, 

Section 319 Burdens the Exercise of 

Political Speech by Self-Financed 

Candidates .................................................. 4 

B. Section 319’s Burden on Self-Financed 

Political Speech Serves No Compelling 

Governmental Interest..............................13 

1. Section 319 Does Not Serve, and 

Indeed Undermines, a 

Governmental Interest in 

Preventing Corruption or the 

Appearance of Corruption....................13 

2. Leveling the Playing Field Is Not a 

Compelling Governmental Interest.....16 
ii

II. Section 319’s Compelled Disclosure 

Provisions Unconstitutionally Infringe 

First Amendment Rights................................20 

A. Section 319’s Disclosure Requirements, 

With Attendant Personal Civil and 

Criminal Liability, Burden the Exercise 

of First Amendment Freedoms of 

Speech and Association .............................21 

B. Section 319’s Burdensome Disclosure 

Provisions Serve No Compelling 

Governmental Interest..............................25 

1. Section 319 Does Not Provide the 

Electorate Additional Information or 

Data Beyond That Already Required 

to be Disclosed Elsewhere....................26 

2. Section 319’s Disclosure 

Requirements Do Not Prevent 

Corruption or the Appearance of 

Corruption ............................................27 

CONCLUSION ..........................................................28 
iii

TABLE OF AUTHORITIES 

Page(s) 

CASES

Austin v. Mich. Chamber of Commerce, 

 494 U.S. 652 (1990) ......................................passim

Boy Scouts of Am. v. Dale, 

 530 U.S. 640 (2000) ..............................................25 

Buckley v. Valeo, 

 424 U.S. 1 (1976) ..........................................passim 

Cal. Democratic Party v. Jones, 

 530 U.S. 567 (2000) ..............................................25 

Colo. Republican Fed. Campaign Comm. v. FEC, 

 518 U.S. 604 (1996) ..........................................5, 16 

Daggett v. Comm’n on Governmental Ethics & 

Election Practices, 

 205 F.3d 445 (1st Cir. 2000).................................11 

Davis v. FEC, 

 501 F. Supp. 2d 22 (D.D.C. 2007) ................passim 

Day v. Holahan, 

 34 F.3d 1356 (8th Cir. 1994), cert. denied, 

 513 U.S. 1127 (1995) ....................................8, 9, 23 

Dombrowski v. Pfister, 

 380 U.S. 479 (1965) ..............................................24 
iv

Elrod v. Burns, 

 427 U.S. 347 (1976)................................................7

FEC v. Mass. Citizens for Life, Inc., 

 479 U.S. 238 (1986)..............................................17 

FEC v. Nat’l Conservative PAC, 

 470 U.S. 480 (1985) ........................................14, 15 

FEC v. Wis. Right to Life, Inc., 

 127 S. Ct. 2652 (2007) ................................4, 14, 24 

First Nat’l Bank of Boston v. Bellotti, 

435 U.S. 765 (1978)......................................4, 9, 23 

Gable v. Patton, 

 142 F.3d 940 (6th Cir. 1998)................................11 

Kruse v. City of Cincinnati, 

 142 F.3d 907 (6th Cir. 1998)................................19 

McConnell v. FEC, 

 540 U.S. 93 (2003) ........................................passim

Nike, Inc. v. Kasky, 

 539 U.S. 654 (2003)..............................................24 

Neb. Press Ass’n v. Stuart, 

 427 U.S. 539 (1976)..............................................24 

New York Times Co. v. Sullivan, 

 376 U.S. 254 (1964)..............................................24 

Perry v. Sindermann, 

 408 U.S. 593 (1972) ............................................6, 7 
v

Red Lion Broad. Co. v. FCC, 

 395 U.S. 367 (1969) ........................................19, 20 

Reno v. ACLU, 

 521 U.S. 844 (1997) ..............................................24 

Roberts v. U.S. Jaycees, 

 468 U.S. 609 (1984) ..............................................25 

Rosenstiel v. Rodriguez, 

 101 F.3d 1544 (8th Cir. 1996) ......................passim 

Sherbert v. Verner, 

 374 U.S. 398 (1963) ............................................... 6 

Shrink Mo. Gov’t PAC v. Maupin, 

 71 F.3d 1422 (8th Cir. 1995), cert. denied, 

 518 U.S. 1033 (1996) ..................................9, 10, 18 

Speiser v. Randall, 

 357 U.S. 513 (1958) ............................................... 6 

Toledo Area AFL-CIO v. Pizza, 

 154 F.3d 307 (6th Cir. 1998) ................................19 

Virginia v. Hicks, 

 539 U.S. 113 (2003) ..........................................4, 24 

Vote Choice, Inc. v. DiStefano, 

 4 F.3d 26 (1st Cir. 1993).......................................11 

CONSTITUTIONAL PROVISION

U.S. CONST. amend. I ........................................passim 
vi

STATUTES & REGULATIONS

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

2 U.S.C. § 437g ..........................................................23 

2 U.S.C. § 437g(a)(5)(B).............................................24 

2 U.S.C. § 437g(a)(6)(C).............................................24 

2 U.S.C. § 437g(d)(1)(A)(i) .........................................24 

2 U.S.C. § 441a-1 .........................................................2 

2 U.S.C. § 441a-1(b)(1) ..............................................22 

2 U.S.C. § 441a-1(b)(3) ..............................................23 

18 U.S.C. § 3551(b)(2)................................................24 

18 U.S.C. § 3551(b)(3)................................................24 

18 U.S.C. § 3571(b)(3)................................................24 

11 CFR § 101.1(a) ......................................................22 

11 CFR § 104.19.........................................................22 

11 CFR § 400.20(a) ....................................................22 

11 CFR § 400.20(b)(2)................................................22 

11 CFR § 400.21(b) ....................................................22 
vii

11 CFR § 400.22.........................................................22 

11 CFR § 400.24.........................................................22 

OTHER AUTHORITIES

FEC Matter Under Review 5648 (Broyhill), Second 

General Counsel’s Rep. at 9 (Mar. 1, 2006).........23 
1

INTEREST OF THE AMICUS CURIAE1

The Cato Institute was established in 1977 as a 

nonpartisan public policy research foundation 

dedicated to advancing the principles of individual 

liberty, free markets, and limited government. 

Cato’s Center for Constitutional Studies was 

established in 1989 to help restore the principles of 

limited constitutional government that are the 

foundation of liberty. Toward those ends, the Cato 

Institute publishes books and studies, conducts 

conferences and forums, publishes the annual Cato 

Supreme Court Review, and files amicus briefs with 

the courts. The instant case is of central concern to 

Cato because it addresses the further collapse of 

constitutional protections for political speech and 

activity, which lies at the very heart of the First 

Amendment. 

 

1 This brief is filed with the written consent of all parties. No 

counsel for a party authored this brief in whole or in part, nor 

did any person or entity, other than Amicus or their counsel, 

make a monetary contribution to the preparation or submission 

of this brief. 
2

SUMMARY OF ARGUMENT 

Section 319 of the Bipartisan Campaign Finance 

Reform Act of 2002 (“BCRA”), 2 U.S.C. § 441a-1, is 

facially unconstitutional because it burdens the 

exercise of protected self-financed political campaign 

speech without serving any compelling governmental 

interest. Section 319 penalizes a candidate who 

spends more than $350,000 from personal funds by 

enhancing the political speech of that candidate’s 

opponent through increased contribution limits and 

unlimited coordinated party expenditures. Section 

319 thus creates an unconstitutional de facto

expenditure limit by chilling a self-financing 

candidate from engaging in protected political 

speech beyond that personal funds ceiling. 

Section 319 also serves no compelling 

governmental interest. It does not prevent actual or 

apparent corruption because there is no threat of 

quid pro quo corruption from a candidate’s 

expenditure of her own funds. Instead, the provision 

undermines the governmental interest in combating 

corruption by deterring self-financing candidates 

from reducing their dependence on outside 

contributions – all while increasing significantly the 

purportedly corruptive contributions and 

coordinated expenditures available to their 

opponents. Moreover, this Court has expressly 

rejected the district court’s rationale for upholding 

Section 319 – “leveling the playing field” of financial 

resources – as an interest sufficient to justify 

infringement of First Amendment rights. 

In addition to penalizing political speech, Section 

319 further burdens protected speech and 
3

association with compelled disclosure requirements. 

Those reporting provisions impose significant civil 

and criminal liability on the candidate personally, 

chilling the right to engage in unlimited selffinanced political speech. The disclosure 

requirements also infringe on a candidate’s 

associational right not to associate with campaign 

contributors. These additional disclosure burdens do 

not serve any informational interest because the 

underlying information ultimately is redundant of 

that disclosed to the FEC under preexisting 

requirements. Nor do they deter actual or apparent 

corruption, as disclosure of expenditures from 

personal funds cannot expose quid pro quo

arrangements.
4

ARGUMENT

I. Section 319 Imposes an Unconstitutional 

Penalty on the Exercise of Fundamental 

First Amendment Rights to One’s Own 

Political Speech. 

As the three-judge district court correctly noted, 

to determine whether BCRA Section 319 is facially 

unconstitutional because it “punishes a ‘substantial’ 

amount of protected free speech,” Virginia v. Hicks, 

539 U.S. 113, 118 (2003), the Court “must ascertain 

whether it burdens the exercise of political speech 

and, if it does, whether it is narrowly tailored to 

serve a compelling state interest.” Austin v. Mich. 

Chamber of Commerce, 494 U.S. 652, 657 (1990) 

(citing Buckley v. Valeo, 424 U.S. 1, 44-45 (1976) (per 

curiam)). See also McConnell v. FEC, 540 U.S. 93, 

205 (2003) (applying strict scrutiny in facial 

overbreadth challenge to BCRA Section 203, Court 

“must examine the degree to which BCRA burdens 

First Amendment expression and evaluate whether 

a compelling governmental interest justifies that 

burden.”) (citing Austin, 494 U.S. at 657). 

A. By Penalizing Protected Speech, Section 

319 Burdens the Exercise of Political 

Speech by Self-Financed Candidates. 

“‘The freedom of speech . . . guaranteed by the 

Constitution embraces at the least the liberty to 

discuss publicly and truthfully all matters of public 

concern without previous restraint or fear of 

subsequent punishment.’” FEC v. Wis. Right to Life, 

Inc., 127 S. Ct. 2652, 2666 (2007) (quoting First Nat’l 

Bank of Boston v. Bellotti, 435 U.S. 765, 776 (1978)). 
5

In Buckley, this Court held that the expenditure 

limitations contained in FECA constituted 

“substantial rather than merely theoretical 

restraints on the quantity and diversity of political 

speech,” because “[a] restriction on the amount of 

money a person or group can spend on political 

communication during a campaign necessarily 

reduces the quantity of expression by restricting the 

number of issues discussed, the depth of their 

exploration, and the size of the audience reached.” 

424 U.S. at 19. The Court found that monetary 

expenditure limits directly restrain political speech 

“because virtually every means of communicating 

ideas in today’s mass society requires the 

expenditure of money.” Id. 

Specifically with respect to FECA’s limits on 

expenditures by candidates from their personal 

funds, the Court found that a “ceiling on personal 

expenditures by candidates on their own behalf . . . 

imposes a substantial restraint on the ability of 

persons to engage in protected First Amendment 

expression,” and “thus clearly and directly interferes 

with constitutionally protected freedoms.” Id. at 52-

53. Therefore, the Court held the restriction on a 

candidate’s personal expenditures unconstitutional, 

concluding that “fundamentally, the First 

Amendment simply cannot tolerate [FECA]’s 

restriction upon the freedom of a candidate to speak 

without legislative limit on behalf of his own 

candidacy.” Id. at 54. See also Colo. Republican 

Fed. Campaign Comm. v. FEC, 518 U.S. 604, 627 

(1996) (Kennedy, J., concurring in the judgment and 

dissenting in part) (“The central holding in [Buckley] 

is that spending money on one’s own speech must be 

permitted.”). 
6

Relying on the absence of a direct expenditure 

limit such as those invalidated in Buckley, the 

district court erroneously concluded that “the 

Millionaires’ Amendment does not ‘burden[ ] the 

exercise of political speech’” because it “does not 

limit in any way the use of a candidate’s personal 

wealth in his run for office.” Davis v. FEC, 501 F. 

Supp. 2d 22, 29 (D.D.C. 2007). Instead, the court 

found that Section 319 merely “provides a benefit to 

his opponent, thereby correcting a potential 

imbalance in resources available to each candidate.” 

Id. This Court long has held, however, that 

Congress may not use the provision of such a 

“benefit” to indirectly “place limitations upon the 

freedom of speech which if directly attempted would 

be unconstitutional,” for to deny such benefit to 

speakers “who engage in certain forms of speech is in 

effect to penalize them for such speech.” Speiser v. 

Randall, 357 U.S. 513, 518 (1958). “Its deterrent 

effect is the same as if the State were to fine them 

for this speech.” Id. See also Sherbert v. Verner, 374 

U.S. 398, 406 (1963) (“Likewise, to condition the 

availability of [unemployment] benefits upon this 

appellant’s willingness to violate a cardinal principle 

of her religious faith effectively penalizes the free 

exercise of her constitutional liberties.”). 

In Perry v. Sindermann, 408 U.S. 593 (1972), the 

Court further considered impermissible interference 

with First Amendment rights through the imposition 

of unconstitutional conditions on a governmentconferred benefit, echoing Speiser in holding that the 

government “may not deny a benefit to a person on a 

basis that infringes his constitutionally protected 

interests--especially, his interest in freedom of 

speech.” Perry, 408 U.S. at 597. “For if the 
7

government could deny a benefit to a person because 

of his constitutionally protected speech or 

associations, his exercise of those freedoms would in 

effect be penalized and inhibited.” Id. See also 

Elrod v. Burns, 427 U.S. 347, 359 (1976) (holding 

that the practice of conditioning a public benefit on 

the limitation of protected expression both “inhibits” 

that expression and “penalizes its exercise”). A 

statute burdening First Amendment rights by 

indirectly penalizing protected expression is subject 

to the same strict scrutiny as a direct limitation. 

Buckley, 424 U.S. at 65 (“This type of scrutiny is 

necessary even if any deterrent effect on the exercise 

of First Amendment rights arises, not through direct 

government action, but indirectly as an unintended 

but inevitable result of the government’s conduct[.]”). 

Indeed, Section 319 penalizes protected 

expression far more directly than would 

unconstitutional conditions, because it provides only 

penalties for self-financed political speech on behalf 

of one’s own candidacy: any purported countervailing 

benefit is contingent and wholly illusory. Section 

319 creates a de facto $350,000 limit on expenditures 

from personal funds, avoiding Buckley’s proscription 

on explicit ceilings by instead penalizing the exercise 

of a First Amendment right to speak in amounts 

exceeding that threshold (by increasing contribution 

limits and eliminating coordinated party 

expenditure limits for the self-financing candidate’s 

opponent). A candidate approaching that de facto

ceiling will be deterred from engaging in further 

protected self-financed speech because of the 

certainty that such exercise of her constitutional 

rights will result in conferring a significant 

competitive advantage to her opponent. Such forced 
8

“self-censorship” burdens First Amendment rights as 

surely and heavily as direct statutory restriction. 

See Rosenstiel v. Rodriguez, 101 F.3d 1544, 1562 (8th 

Cir. 1996) (Lay, J., dissenting) (finding that 

Minnesota’s campaign finance scheme impermissibly 

“burdens a candidate’s free speech rights by chilling 

her decision to increase her political speech” beyond 

the set spending limits). 

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

cert. denied, 513 U.S. 1127 (1995), the court, 

construing a Minnesota statute that “enhanced” the 

political speech of candidates against whom 

independent expenditures were made, held: 

The knowledge that a candidate who one does 

not want to be elected will have her spending 

limits increased and will receive a public 

subsidy equal to half the amount of the 

independent expenditure, as a direct result of 

that independent expenditure, chills the free 

exercise of that protected speech. This “selfcensorship” . . . is no less a burden on speech 

that is susceptible to constitutional challenge 

than is direct government censorship. . . . 

Therefore, even if section 10A.25 subd. 13 

were content-neutral, the statute’s negative 

impact on political speech must be a violation 

of the First Amendment rights of those who 

wish to make the independent expenditures at 

issue. The statute’s burden on First 

Amendment rights does not satisfy strict, 

intermediate, or even the most cursory 

scrutiny. 
9

34 F.3d at 1360, 1362. Similarly, in penalizing selffinanced candidates’ speech by favoring and 

enhancing their contribution-financed opponents’ 

speech, Section 319 inexorably burdens self-financed 

candidates’ protected political speech. See Bellotti, 

435 U.S. at 784-85 (“In the realm of protected 

speech, the legislature is constitutionally 

disqualified from dictating . . . the speakers who may 

address a public issue. . . . Such power in 

government to channel the expression of views is 

unacceptable under the First Amendment.”). 

Moreover, this statutory penalty cannot credibly 

be characterized as merely a benefit conferred upon 

candidates choosing not to exceed the threshold, 

because any such benefit is contingent on facing a 

candidate who spends more than $350,000 in 

personal funds – the very contingency the penalty is 

designed to eliminate. Rosenstiel, 101 F.3d at 1563 

& n.26 (Lay, J., dissenting) (Minnesota campaign 

finance scheme unconstitutionally burdens free 

speech rights because the purported “incentives to 

publicly financed candidates here are contingent on 

their opponents’ decision.”). 

Indeed, in most circumstances, the candidate who 

relinquishes her First Amendment right to speak 

without limit on behalf of her own candidacy 

receives no countervailing benefit whatsoever from 

Section 319, but rather is subjected to the same 

FECA contribution limits and coordinated party 

expenditure limits to which she otherwise would 

have been subject. See Shrink Mo. Gov’t PAC v. 

Maupin, 71 F.3d 1422, 1425 (8th Cir. 1995), cert. 

denied, 518 U.S. 1033 (1996) (holding that 

expenditure “limits are not voluntary because they 
10

provide only penalties for non-compliance rather 

than an incentive for voluntary compliance.”). 

In Maupin, the court held that the challenged 

provision impermissibly penalized candidates 

exercising their right to speak without expenditure 

limits, by foreclosing otherwise available sources of 

funding and by imposing daily reporting 

requirements, and could not credibly be construed as 

an incentive because “complying” candidates 

received no benefit other than the continued status 

quo (i.e., avoidance of the penalty). Id. The court 

explained: 

No candidate would voluntarily agree to 

comply with the expenditure limits in 

exchange for access to sources of funding to 

which he or she already has a constitutional 

right of access. Rather, [the Missouri statute] 

forces compliance by imposing substantial 

penalties for non-compliance. The purported 

benefit is illusory, and the statute is coercive. 

Id. Similarly, the only benefit Section 319 provides 

in return for a candidate’s forfeiting her right to 

spend personal funds on political speech without 

limit is the avoidance of its penalty, which is no true 

benefit at all. 

In this way, Section 319 operates solely as a stick 

deterring protected self-financed expenditures rather 

than as a carrot encouraging participation in an 

alternative campaign financing scheme, burdening 

protected speech to the same extent as a direct 

expenditure limitation. The district court’s analogy 
11

to public funding statutes therefore is inapt. Unlike 

Section 319, the public financing schemes provide a 

participating candidate the benefit of public funds, 

therefore any additional statutory disparities or 

advantages arguably may be interpreted as 

incentives to encourage voluntary participation in an 

alternative scheme that provides a tangible benefit 

to which the participating candidate would not 

otherwise have been entitled. See Rosenstiel, 101 

F.3d at 1550 (finding that “the State’s scheme in this 

case provides certain inducements--the expenditure 

limitation waiver and the contribution refund in 

addition to a public cash subsidy--in order to 

encourage maximum candidate participation.”);

Gable v. Patton, 142 F.3d 940, 949 (6th Cir. 1998) 

(holding that, while Kentucky’s public financing 

scheme exerted “financial pressure to participate” on 

candidates, that pressure was constitutionally 

acceptable because “a voluntary campaign finance 

scheme must rely on incentives for participation, 

which, by definition, means structuring the scheme 

so that participation is usually the rational choice.”); 

Daggett v. Comm’n on Governmental Ethics & 

Election Practices, 205 F.3d 445, 467, 471 (1st Cir. 

2000) (explaining “that the government may create 

incentives for candidates to participate in a public 

funding system” and finding that the Maine statute 

provided, in addition to the public funds themselves, 

“benefits [such as] the release from the rigors of 

fundraising, the assurances that contributors will 

not have an opportunity to seek special access, and 

the avoidance of any appearance of corruption.”); 

Vote Choice, Inc. v. DiStefano, 4 F.3d 26, 39 (1st Cir. 

1993) (“Establishing unequal contribution caps 
12

serves this multifaceted network of interests by 

making it more probable that candidates will choose 

to partake of public financing.”). 

By contrast, Section 319 does not incentivize 

participation in anything but the status quo of 

contribution limits and coordinated party 

expenditure limits, and thereby provides only 

disincentives and penalties for protected selffinanced expression. For example, in his dissent in 

Rosenstiel, Judge Lay rejected the majority’s 

characterization of the Minnesota statute’s penalties 

for private financing as mere “inducements” for 

participation in the public finance scheme, arguing 

instead that they unconstitutionally burdened a 

candidate’s free speech: 

I respectfully submit such an analysis is 

irrelevant in evaluating the concerns of 

whether the non-public financed candidate’s 

First Amendment rights are chilled. This case 

is not about the publicly financed candidate’s 

free speech rights. It is not a matter of 

balancing benefits with restrictions. . . . The 

issue is whether a candidate who faces a 

choice not to limit her full access to political 

speech will be any worse off in choosing to do 

so. . . . When such a choice is made, however, 

Minnesota’s campaign finance scheme adds 

disincentives which make a privately financed 

candidate worse off than she otherwise would 

be. . . . The disincentives are invoked as a 

means to influence directly a candidate’s 

choice (to keep the candidate in line within 

the spending limit). To call such coercive 
13

conduct by any other name does not diminish 

the effect upon the candidate’s choice. The 

issue is whether a candidate’s decision to 

exercise her constitutional right to free speech 

has been chilled. 

101 F.3d at 1560-61 & n.20 (Lay, J., dissenting). 

This reasoning, persuasive even as to public 

financing schemes conferring benefits upon 

participating candidates, applies a fortiori to Section 

319, which provides no incentive or countervailing 

benefit to candidates who abandon their rights but 

rather only penalties to those retaining their full 

right to unlimited self-financed political expression. 

Section 319 burdens the political speech of selffinanced candidates, and therefore must be narrowly 

tailored to serve a compelling governmental interest 

to survive constitutional scrutiny. Austin, 494 U.S. 

at 657. 

B. Section 319’s Burden on Self-Financed 

Political Speech Serves No Compelling 

Governmental Interest. 

1. Section 319 Does Not Serve, and 

Indeed Undermines, a Governmental 

Interest in Preventing Corruption or 

the Appearance of Corruption. 

In Buckley, the Court held the governmental 

interest in limiting “the actuality and appearance of 

corruption resulting from large individual financial 

contributions” a “constitutionally sufficient 

justification” for FECA’s $1,000 contribution limit. 

424 U.S. at 26. The Court further explained that the 
14

particular corruption constituting that government 

interest was quid pro quo corruption, noting that 

“[t]o the extent that large contributions are given to 

secure a political quid pro quo from current and 

potential office holders, the integrity of our system of 

representative democracy is undermined.” Id. at 26-

27. See also FEC v. Nat’l Conservative PAC, 470 

U.S. 480, 497 (1985) (explaining that “[t]he hallmark 

of corruption is the financial quid pro quo: dollars for 

political favors” whereby “[e]lected officials are 

influenced to act contrary to their obligations of 

office by the prospect of financial gain to themselves 

or infusions of money into their campaigns.”); Wis. 

Right to Life, 127 S. Ct. at 2672 (holding that the 

advertisements at issue “are by no means equivalent 

to contributions, and the quid pro quo corruption 

interest cannot justify regulating them.”). 

The Buckley Court went on to clarify that the 

“appearance of corruption” justification is similarly 

related to quid pro quo arrangements, explaining 

that “[o]f almost equal concern as the danger of 

actual quid pro quo arrangements is the impact of 

the appearance of corruption stemming from public 

awareness of the opportunities for abuse inherent in 

a regime of large individual financial contributions.” 

424 U.S. at 27. This Court since has reiterated “that 

preventing corruption or the appearance of 

corruption are the only legitimate and compelling 

government interests thus far identified for 
15

restricting campaign finances.” Nat’l Conservative 

PAC, 470 U.S. at 496-97.2

Section 319 does not prevent corruption or the 

appearance of corruption because there is a complete 

“absence of any threat of corruption” from “a 

candidate’s expenditure of his own funds,” for which 

there can be no quid pro quo. Buckley, 424 U.S. at 

53 n.59. In Buckley, the Court squarely rejected the 

argument that a limitation on a candidate’s 

expenditure of personal funds served the interest in 

preventing corruption or the appearance of 

corruption: 

The primary governmental interest served by 

the Act the 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. As the 

Court of Appeals concluded: “Manifestly, the 

core problem of avoiding undisclosed and 

undue influence on candidates from outside 

interests has lesser application when the 

monies involved come from the candidate 

himself[.]” 

Id. at 53 (internal citation omitted). 

 

2 The Court has recognized a variation on this interest specific 

only to “the unique state-conferred corporate structure,” a 

variation clearly inapplicable to Section 319’s burdens on 

individual candidates. See Austin, 494 U.S. at 660 

(emphasizing that the interest recognized was not applicable to 

the mere accumulation of large amounts of wealth, but rather 

only to “the unique state-conferred corporate structure that 

facilitates the amassing of large treasuries[.]”). 
16

To the contrary, limiting or chilling a candidate’s 

use of her own personal funds for political speech 

actually undermines the governmental interest in 

preventing corruption, as the “use of personal funds 

reduces the candidate’s dependence on outside 

contributions and thereby counteracts the coercive 

pressures and attendant risks of abuse to which the 

Act’s contribution limits are directed.” Id. Indeed, 

Section 319 undermines that interest not only by 

deterring potential self-financing candidates from 

reducing their dependence on outside contributions, 

but also by increasing the size and availability of 

outside contributions to a self-financer’s opponent 

through increased contribution limits and 

coordinated party expenditure limits. Section 319’s 

burdens on protected political expression therefore 

cannot be justified as serving a governmental 

interest in preventing corruption or the appearance 

of corruption.

2. Leveling the Playing Field Is Not a 

Compelling Governmental Interest. 

In Buckley, this Court rejected the proposed 

“ancillary interest in equalizing the relative financial 

resources of candidates competing for elective office” 

as “clearly not sufficient to justify the . . . 

infringement of fundamental First Amendment 

rights.” Id. at 54; cf. Colo. Republican Campaign 

Comm., 518 U.S. at 609 (in its original form, prior to 

Buckley, FECA “sought both to remedy the 

appearance of a corrupt political process (one in 

which large contributions seemed to buy legislative 

votes) and to level the electoral playing field by 

reducing campaign costs.”). Rejecting the “level 

playing field” rationale, the Buckley Court explained: 
17

But the concept that government may restrict 

the speech of some elements of our society in 

order to enhance the relative voice of others is 

wholly foreign to the First Amendment, which 

was designed “to secure ‘the widest possible 

dissemination of information from diverse and 

antagonistic sources,’ ” and “ ‘to assure 

unfettered interchange of ideas for the 

bringing about of political and social changes 

desired by the people.’” . . . The First 

Amendment’s protection against 

governmental abridgement of free expression 

cannot properly be made to depend on a 

person’s financial ability to engage in public 

discussion. 

424 U.S. at 48-49 (internal quotations and citations 

omitted). See also Austin, 494 U.S. at 705 (Kennedy, 

J., dissenting) (“[T]he notion that the government 

has a legitimate interest in restricting the quantity 

of speech to equalize the relative influence of 

speakers on elections is antithetical to the First 

Amendment.”) (citing Buckley, 424 U.S. at 48-49); 

FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238, 

257 (1986) (“Political ‘free trade’ does not necessarily 

require that all who participate in the political 

marketplace do so with exactly equal resources.”); 

McConnell, 540 U.S. at 227 (citing Buckley, 424 U.S. 

at 48-49, for its rejection of asserted governmental 

interest in equalizing the relative abilities of 

speakers to justify a burden on speech). 

Specifically with respect to candidates’ 

expenditures from personal funds, this Court held 

that equalizing candidates’ relative financial 

resources was “fundamentally” an insufficient 
18

government interest as “the First Amendment 

simply cannot tolerate ... restriction upon the 

freedom of a candidate to speak without legislative 

limit on behalf of his own candidacy.” Buckley, 424 

U.S. at 54. In addition to rejecting “leveling the 

playing field” as a compelling government interest, 

the Court further noted that limiting expenditures 

from a candidate’s personal funds does not even 

serve that rejected interest because a candidate 

relying on self-financing easily may be outspent by 

an opposing candidate relying on outside 

contributions, and in fact reliance on personal funds 

may even exacerbate that disparity. Id. (“Indeed, 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.”). 

Ignoring this Court’s clear rejection of the 

relative “enhancement” interest in Buckley, the 

district court nevertheless held that Section 319 

“accomplishes its sponsors’ aim to preserve core First 

Amendment values by protecting the candidate’s 

ability to enhance his participation in the political 

marketplace” and reduces disparities “by ‘leveling 

the playing-field’ between candidates who are able to 

spend large amounts of personal wealth on their 

campaigns and those who cannot.” Davis, 501 F. 

Supp. 2d at 29-31. The district court stands alone in 

this rejection of Buckley’s holding. See, e.g., Maupin, 

71 F.3d at 1426 (“The state’s interest in maintaining 

individual participation is what the District Court 

correctly described as an effort to ‘level the playing 

field between the rich and the poor.’ The Supreme 

Court in Buckley, however, specifically held that the 

government may not ‘restrict the speech of some 
19

elements of our society in order to enhance the 

relative voice of others,’ and no subsequent decision 

of the Court has undermined that holding.”) 

(citations omitted); Kruse v. City of Cincinnati, 142 

F.3d 907, 917 (6th Cir. 1998) (“These arguments, all 

concerning or stemming from the notion that the 

government has an interest in eliminating the 

advantage of wealth in the electoral process, or 

‘leveling the playing field,’ are directly rebutted by 

Buckley[.]”) (citation omitted); Toledo Area AFL-CIO 

v. Pizza, 154 F.3d 307, 317 n.10 (6th Cir. 1998) (“To 

the extent that this is an effort to ‘level the playing 

field’ and enhance the voice of other less organized or 

less affluent segments of society . . . relative to that 

of unions and corporations, it is impermissible.”). 

In a further departure from Buckley, the district 

court cites Red Lion Broad. Co. v. FCC, 395 U.S. 367 

(1969) in support of its ‘relative enhancement’ 

conclusion. Davis, 501 F. Supp. 2d at 29. In Red 

Lion, this Court upheld portions of the FCC’s nowdefunct “fairness doctrine,” which required licensees 

of scarce public broadcast frequencies to cover both 

sides of controversial public issues. 395 U.S. at 400-

01. In Buckley, however, this Court specifically 

rejected Red Lion as support for the very position 

advanced by the district court, finding that “[n]either 

the voting rights cases nor the Court’s [Red Lion] 

decision upholding the Federal Communication 

Commission’s fairness doctrine lends support to 

appellees’ 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.” 424 U.S. at 49 n.55. 
20

Distinguishing Red Lion as limited to broadcast 

media licenses, which “pose unique and special 

problems not present in the traditional free speech 

case,” this Court concluded that “Red Lion therefore 

undercuts appellees’ claim that [FECA]’s limitations 

may permissibly restrict the First Amendment 

rights of individuals in this ‘traditional free speech 

case.’” Id. Therefore, Buckley directly rebuts the 

district court’s asserted “leveling the playing-field” 

interest and its supporting citation to Red Lion. The 

desire to equalize relative financial resources of 

candidates for public office is not a compelling 

governmental interest and cannot justify the 

burdens Section 319 imposes on constitutionally 

protected political speech.

II. Section 319’s Compelled Disclosure 

Provisions Unconstitutionally Infringe First 

Amendment Rights. 

In addition to its penalizing and chilling burden 

discussed above, Section 319 further burdens First 

Amendment freedoms of speech and association 

through its imposition of compelled disclosure 

requirements, including exposure to personal civil 

and criminal liability for the candidate forced to 

disclose. See Buckley, 424 U.S. at 64 (“But we have 

repeatedly found that compelled disclosure, in itself, 

can seriously infringe on privacy of association and 

belief guaranteed by the First Amendment.”). Those 

additional burdens, specific to compelled disclosure, 

subject Section 319 to strict scrutiny to determine 

whether it is “narrowly tailored to serve a compelling 

state interest.” Austin, 494 U.S. at 657; see also 

Buckley, 424 U.S. at 64-65 (holding “that significant 

encroachments on First Amendment rights of the 
21

sort that compelled disclosure imposes . . . must 

survive exacting scrutiny.”). 

A. Section 319’s Disclosure Requirements, 

With Attendant Personal Civil and 

Criminal Liability, Burden the Exercise 

of First Amendment Freedoms of Speech 

and Association. 

The district court rejected the argument “that the 

new and added disclosure requirements on selffinanced candidates created by the Millionaires’ 

Amendment burden [Petitioner’s] First Amendment 

right to participate freely in political activities.” 

Davis, 501 F. Supp. 2d at 32. Noting that “[t]he 

Supreme 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 Davis[,]” the district court misconstrued the 

holdings in Buckley and McConnell as “illustrat[ing]” 

that Section 319’s “reporting provisions do not in fact 

burden First Amendment speech rights.” Id. at 32-

33 (emphasis added). 

In Buckley and McConnell, however, this Court 

held that the compelled disclosure provisions at 

issue did burden speech or associational rights, but 

the provisions survived strict scrutiny because they 

were justified by compelling governmental interests. 

See Buckley, 424 U.S. at 66 (holding that three 

categories of governmental interests served by 

FECA’s disclosure requirements were “sufficiently 

important to outweigh the possibility of 

infringement” upon the exercise of First Amendment 

rights); McConnell, 540 U.S. at 196 (holding “that 
22

the important state interests that prompted the 

Buckley Court to uphold FECA’s disclosure 

requirements . . . apply in full to BCRA.”). In fact, 

the district court contradicts its conclusion that 

Section 319’s reporting provisions do not burden 

protected speech rights not only by acknowledging 

that the statutes challenged in Buckley and 

McConnell “impose the burden of reporting,” but also 

by previously finding that “[t]hese additional 

disclosure requirements impose an injury-in-fact on 

self-financed candidates” sufficient for Petitioner to 

have standing. Davis, 501 F. Supp. 2d at 27, 32. 

At the outset, Section 319’s disclosure 

requirements burden the exercise of protected 

speech by imposing new reporting obligations based 

solely on a candidate’s decision to exercise what this 

Court found in Buckley to be a First Amendment 

right “of particular importance.” 424 U.S. at 52 & 

n.58, 53 (describing a candidate’s right to make 

expenditures from personal funds “in furtherance of 

his own candidacy” that “directly facilitates his own 

political speech”). Those reporting burdens include 

filing amended FEC Form 2, FEC Form 3Z-1, and 

most notably the disclosure of additional information 

in FEC Form 10 within twenty-four hours of each 

expenditure greater than $10,000 from personal 

funds upon exceeding the $350,000 triggering 

threshold. See 2 U.S.C. § 441a-1(b)(1); see also 11 

CFR §§ 101.1(a); 104.19; 400.20(a), (b)(2); 400.21(b); 

400.22; 400.24. 

Not only do these provisions impose self-evident 

mechanical calculation and reporting burdens upon 

the exercise of protected self-financed political 

speech, but the requirement to provide FEC Form 10 
23

to one’s opponent within twenty-four hours of each 

qualifying personal expenditure inevitably signals 

certain elements of a self-financing candidate’s 

political strategy to her opponent in ways not 

previously required, conferring a competitive 

advantage upon the opponent that chills and deters 

the exercise of First Amendment rights to unfettered 

self-financed political speech. See Bellotti, 435 U.S. 

at 785-86 (“Especially where, as here, the 

legislature’s suppression of speech suggests an 

attempt to give one side of a debatable public 

question an advantage in expressing its views to the 

people, the First Amendment is plainly offended.”);

Rosenstiel, 101 F.3d at 1562 n.25 (Lay, J., 

dissenting) (“A candidate’s interest in speaking is in 

winning the election in which she is running; her 

speech will clearly be chilled if, by speaking she 

advances the campaign of her opponent.”); Day, 34 

F.3d at 1360 (“This ‘self-censorship’ ... is no less a 

burden on speech that is susceptible to constitutional 

challenge than is direct government censorship.”). 

However slight the district court may have 

perceived the reporting burdens, Section 319’s 

additional disclosure requirements also carry 

significant civil and criminal liability, personal to 

the candidate. See 2 U.S.C. §§ 441a-1(b)(3), 437g. 

See also FEC Matter Under Review 5648 (Broyhill), 

Second General Counsel’s Rep. at 9 (Mar. 1, 2006) 

(“The ‘Millionaire’s Amendment,’ unlike other 

[federal campaign finance] statutes, specifically 

assigns responsibility for compliance with its 

reporting requirements to the candidate.”). 

Accordingly, a candidate who does not properly 

comply with Section 319’s reporting requirements, 

triggered solely by the exercise of protected self-
24

financed political speech on behalf of one’s own 

candidacy, is personally subject to civil penalties of 

up to two hundred percent of the expenditure 

involved, see 2 U.S.C. § 437g(a)(5)(B), (6)(C), and 

criminal penalties of up to $250,000 in fines and five 

years imprisonment. See 2 U.S.C. § 437g(d)(1)(A)(i); 

18 U.S.C. §§ 3551(b)(2), (b)(3), 3571(b)(3). 

This significant civil and criminal liability, 

overlooked by the district court, burdens First 

Amendment rights by chilling protected speech. See, 

e.g., Nike, Inc. v. Kasky, 539 U.S. 654, 668 (2003) 

(“[A] threat of a civil action, like the threat of a 

criminal action, can chill speech.”) (citing New York 

Times Co. v. Sullivan, 376 U.S. 254, 278 (1964)); 

Reno v. ACLU, 521 U.S. 844, 872 (1997) (noting 

“deterrent effect” whereby “criminal sanctions may 

well cause speakers to remain silent rather than 

communicate” at the risk of prosecution); Neb. Press 

Ass’n v. Stuart, 427 U.S. 539, 559 (1976) (noting 

“that a threat of criminal or civil sanctions after 

publication ‘chills’ speech”); Dombrowski v. Pfister, 

380 U.S. 479, 494 (1965) (“So long as the statute 

remains available to the State the threat of 

prosecutions ... [has a] chilling effect on protected 

expression.”). See also Wis. Right to Life, 127 S. Ct. 

at 2666 (noting potential for “chilling speech through 

the threat of burdensome litigation.”) (citing Hicks, 

539 U.S. at 119). Section 319 thus burdens the 

exercise of protected self-financed campaign speech. 

In addition to the burdens on protected speech, 

“compelled disclosure, in itself, can seriously infringe 

on privacy of association and belief guaranteed by 

the First Amendment.” Buckley, 424 U.S. at 64 

(citations omitted). “[A] corollary of the right to 
25

associate is the right not to associate.” Cal. 

Democratic Party v. Jones, 530 U.S. 567, 574 (2000). 

See also Boy Scouts of Am. v. Dale, 530 U.S. 640, 648 

(2000) (“‘[F]reedom of association . . . plainly 

presupposes a freedom not to associate.’”) (quoting 

Roberts v. U.S. Jaycees, 468 U.S. 609, 623 (1984)). 

Section 319’s compelled disclosure provisions 

infringe on a candidate’s right not to associate with 

campaign contributors by instead self-financing his 

campaign. See Buckley, 424 U.S. at 53 (“Indeed, the 

use of personal funds reduces the candidate’s 

dependence on outside contributions and thereby 

counteracts the coercive pressures and attendant 

risks of abuse to which the Act’s contribution 

limitations are directed.”). By forcing a selffinancing candidate to disclose regularly the nature 

and extent of his association or disassociation, with 

attendant civil and criminal liability for 

misreporting, Section 319 makes it more difficult for 

a candidate to eschew outside contributors and thus 

burdens his right not to associate. 

B. Section 319’s Burdensome Disclosure 

Provisions Serve No Compelling 

Governmental Interest. 

The governmental interests recognized by this 

Court as “sufficiently important” to vindicate 

compelled disclosure requirements “fall into three 

categories,” Buckley, 424 U.S. at 66, summarized as 

“providing the electorate with information, deterring 

actual corruption and avoiding any appearance 

thereof, and gathering the data necessary to enforce 

more substantive . . . restrictions[.]” McConnell, 540 
26

U.S. at 196. Section 319’s disclosure requirements 

serve none of these interests. 

1. Section 319 Does Not Provide the 

Electorate Additional Information or 

Data Beyond That Already Required 

to be Disclosed Elsewhere. 

The first of the three recognized interests is in 

“provid[ing] the electorate with information ‘as to 

where political campaign money comes from and 

how it is spent by the candidate’ in order to aid the 

voters in evaluating those who seek federal office.” 

Buckley, 424 U.S. at 66-67 (internal quotation 

omitted). By providing such information, disclosures 

“allow[] voters to place each candidate in the 

political spectrum” and “alert the voter to the 

interests to which a candidate is most likely to be 

responsive and thus facilitate predictions of future 

performance in office.” Id. at 67. Similarly, another 

recognized “informational” interest is providing “an 

essential means of gathering the data necessary to 

detect violations” of substantive federal campaign 

finance restrictions. Id. at 67-68. 

Section 319’s disclosure requirements do not 

serve either of the informational interests because, 

as the district court recognized, “all of the 

information required by the reporting provisions 

would eventually have to be disclosed to the FEC 

whether or not the Millionaires’ Amendment ever 

applies[.]” Davis, 501 F. Supp. 2d at 32; see also 2 

U.S.C. § 434(a)(2). Instead, Section 319’s 

disclosures, which are expedited but ultimately 

redundant, merely enable the candidate’s opponent 

to calculate the extent to which she can utilize 
27

increased contribution limits, which serves only the 

illegitimate “interest in equalizing the relative 

financial resources of candidates competing for 

elective office[.]” Buckley, 424 U.S. at 54; see also 

Section I.B.2., supra. The informational interests 

are inapplicable and cannot justify Section 319’s 

compelled disclosure burdens. 

2. Section 319’s Disclosure Requirements 

Do Not Prevent Corruption or the 

Appearance of Corruption. 

The final recognized interest, listed second in 

Buckley, is to “deter actual corruption and avoid the 

appearance of corruption by exposing large 

contributions and expenditures to the light of 

publicity.” Id. at 67. Disclosure serves this interest 

if it “may discourage those who would use money for 

improper purposes” or “detect any post-election 

special favors that may be given in return.” Id. As 

discussed in Section I.B.1., supra, however, this 

Court has held that there is an “absence of any 

threat of corruption” from “a candidate’s expenditure 

of his own funds,” for which there can be no quid pro 

quo. Id. at 53 n.59. Section 319’s disclosure 

provisions, designed to enable an opposing candidate 

to calculate his OPFA and thereby receive increased 

contributions and increased coordinated party 

expenditures, cannot be upheld as serving a 

compelling government interest in deterring actual 

or apparent corruption.
28

CONCLUSION

For the reasons stated above, the Court should 

find BCRA § 319 facially unconstitutional and 

reverse the district court judgment. 

Respectfully submitted, 

ILYA SHAPIRO BENJAMIN D. WOOD* 

CATO INSTITUTE WILLIAM J. MCGINLEY

1000 Massachusetts Ave., NW GLENN M. WILLARD

Washington, DC 20001 SAMANTHA R. PETRICH

(202) 218-4600 PATTON BOGGS LLP 

 2550 M Street, NW 

 Washington, DC 20037 

 (202) 457-6000 

 *Counsel of Record 

February 27, 2008