No. 07-320 

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002

IN THE

Supreme Court of the United States 

———— 

JACK DAVIS, 

Appellant,

v. 

FEDERAL ELECTION COMMISSION, 

Appellee. 

———— 

On Appeal from the United States District Court 

for the District of Columbia 

———— 

BRIEF FOR APPELLANT 

———— 

ANDREW D. HERMAN * 

STANLEY M. BRAND

BRAND LAW GROUP, PC 

923 Fifteenth Street, N.W. 

Washington, D.C. 20005 

(202) 662-9700 

ELIZABETH F. GETMAN

SANDLER, REIFF & YOUNG, P.C. 

300 M Street, SE 

Suite 1102 

Washington, DC 20003 

* Counsel of Record Attorneys for Appellant 

February 20, 2008 
(i) 

QUESTIONS PRESENTED 

Section 319 of the Bipartisan Campaign Reform 

Act of 2002 created the so-called “Millionaires’ 

Amendment.” Congress purportedly enacted Section 

319 to equalize the resources among congressional 

candidates utilizing personal funds for their campaigns and candidates relying mainly on contributed 

funds. Under the statute, when candidates for the 

United States House of Representatives exceed 

$350,000 in personal campaign expenditures, their 

opponents may be entitled to receive: (1) individual 

contributions at triple the statutory limit, from 

donors who have reached the limit for aggregate 

campaign donations; and (2) coordinated expenditures from party committees in excess of the 

statutory limit. To effectuate application of Section 

319, the statute mandates burdensome disclosures 

for self-financed candidates, but not for their 

opponents if they do not self-finance. The questions 

presented are: 

1. Whether the three-judge district court erred 

in finding that Congress’s attempt to equalize a potential imbalance in resources among congressional 

candidates violates neither the First Amendment to 

the United States Constitution nor the equal protection component of the due process clause of the 

Fifth Amendment. 

2. If equalizing a potential imbalance in resources among congressional candidates is constitutional, whether the statute accomplishes the stated 

purpose.
ii 

PARTIES TO THE PROCEEDING 

Jack Davis is the appellant in this Court and was 

the plaintiff in the three-judge district court. 

The Federal Election Commission is the appellee in 

this Court and was the defendant in the three-judge 

district court. 
(iii) 

TABLE OF CONTENTS 

Page 

QUESTIONS PRESENTED ............................... i 

PARTIES TO THE PROCEEDING .................... ii 

OPINION BELOW .............................................. 1 

CONSTITUTIONAL PROVISIONS AND 

STATUTES INVOLVED ................................. 1 

JURISDICTION .................................................. 2 

STATEMENT OF THE CASE ............................ 2 

SUMMARY OF THE ARGUMENT .................... 14 

ARGUMENT........................................................ 17 

 I. THIS COURT HAS JURISDICTION 

OVER THIS MATTER BECAUSE 

APPLICATION OF SECTION 319 

INJURED MR. DAVIS IN BOTH THE 

2004 AND 2006 ELECTIONS AND HE 

RETAINS A “PERSONAL STAKE” IN 

ITS INVALIDATION................................ 17 

 II. SECTION 319 UNCONSTITUTIONALLY BURDENS SELF-FINANCED 

CANDIDATES’ POLITICAL SPEECH 

AND EXACERBATES INCUMBENTS’ 

INHERENT ADVANTAGES.................... 21 

 A. Section 319 Favors Incumbents by 

Subverting Standard Contribution 

Limits and Increasing Financial 

Inequality............................................. 22 

 B. Discouraging Personal Expenditures 

for the Benefit of Some Candidates is 

an Impermissible Legislative Purpose . 24
iv 

TABLE OF CONTENTS—Continued 

Page 

 1. Congress’s Stated Governmental 

Interests are Novel and Unconstitutional ....................................... 24 

 2. None of the Equality Interests Expressed by Congress is 

Compelling...................................... 28 

 C. Section 319 Has a Negative Effect on 

Democracy Because It Does Not 

Serve an Anticorruption Interest And 

Increases the Public Perception of 

Corruption in the Electoral System.... 31 

 D. In Scrutinizing Section 319, This 

Court Need Not Defer to Incumbents 

Who Legislate to Serve Their Own 

Interests............................................... 32 

 III. SECTION 319’S ENTIRE FINANCING 

SCHEME, ENACTED TO “LEVEL THE 

PLAYING FIELD,” VIOLATES THE 

FIRST AMENDMENT.............................. 34 

 A. Personal Campaign Spending is 

“Core” First Amendment Speech ........ 34 

 B. Section 319’s Reporting Requirements Impose a Substantial Burden 

on Political Expression by Compelling Disclosure of Campaign 

Strategy................................................ 37 

 C. Section 319’s Differential Treatment 

of Opposing Candidates Violates the 

First Amendment ................................ 40 
v 

TABLE OF CONTENTS—Continued 

Page 

 D. Section 319 is Subject to Strict 

Scrutiny Because it Burdens Political 

Expression ........................................... 44 

 IV. SECTION 319 IS NOT NARROWLY 

TAILORED TO ADDRESS A COMPELLING STATE INTEREST................. 47 

 A. Section 319 is Not Narrowly Tailored 

to Foster Equality................................ 48 

 1. Because it Accounts for Personal 

Expenditures and Contributed 

Funds Differently, Section 319 Is 

Underinclusive ............................... 48 

a. Section 319 is Not Narrowly 

Tailored Because It Does Not 

Account for Significant Sources 

of Contributed Funds ................. 49 

b. Section 319 Does Not Create 

Equality for Candidates Without Access to Large Donors or 

National Political Parties......... 51 

c. Section 319 Does Not Regulate Political Expression from 

Other Sources ........................... 51 

 2. Section 319 is Not the Least 

Restrictive Alternative for 

Regulating Political Speech........... 52 

 V. SECTION 319 DOES NOT ADVANCE 

LEGITIMATE ELECTORAL INTERESTS IN THE SAME MANNER AS A 

PUBLIC FUNDING REGIME ................. 53 
vi 

TABLE OF CONTENTS—Continued 

Page 

 VI. BECAUSE SECTION 319 TREATS 

SIMILARLY SITUATED CANDIDATES 

DIFFERENTLY, IT VIOLATES THE 

FIFTH AMENDMENT’S EQUAL 

PROTECTION GUARANTEE ................. 56 

 A. Section 319 Treats Political Opponents Differently.................................... 56 

 B. Section 319 Treats a Self-Financed 

Candidate Differently From Others 

Participants in the Political Process..... 59 

CONCLUSION .................................................... 60 

ADDENDUM ....................................................... 1a 
vii 

TABLE OF AUTHORITIES 

CASES Page 

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

2003).......................................................... 18, 38 

Alaska Airlines, Inc. v. Brock, 480 U.S. 678 

(1987)......................................................... 19 

Block v. Meese, 793 F.2d 1303 (D.C. Cir. 

1986).......................................................... 38 

Boos v. Barry, 485 U.S. 312 (1988) .............. 46 

Bose Corp. v. Consumers Union of United 

States, Inc., 466 U.S. 485 (1984) .............. 22 

Brown v. Hartlage, 456 U.S. 45 (1982)........ 30, 41 

Broadrick v. Oklahoma, 413 U.S. 601 

(1973)......................................................... 47 

Buckley v. Valeo, 424 U.S. 1, 54 (1976) ......passim

Burson v. Freeman, 504 U.S. 191 (1992) ..... 44, 56 

Carey v. Brown, 447 U.S. 455 (1980)........... 56 

Daggett v. Committee on Governmental 

Ethics & Election Practices, 205 F.3d 

445 (1st Cir. 2000)................................ 53-54, 55 

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

1994).......................................................... 43-44 

Erznoznik v. Jacksonville, 422 U.S. 205 

(1975)......................................................... 47 

FEC v. Colo. Republican Fed. Campaign 

Comm., 533 U.S. 431 (2001) ..................... 15, 32 

FEC v. Mass. Citizens for Life, Inc., 479 

U.S. 238 (1986).....................................25, 37, 47 

FEC v. Nat’l Right to Work Comm., 459 

U.S. 197 (1982).......................................... 26 

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

Ct. 2652 (2007).........................................passim

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

U.S. 765 (1978)...............................20, 21, 43, 46 

Florida Star v. B.J.F., 491 U.S. 524 (1989)..47, 49, 50 
viii 

TABLE OF AUTHORITIES—Continued 

 Page 

Hurley v. Irish-American Gay, Lesbian 

and Bisexual Group of Boston, Inc., 515 

U.S. 557 (1995).......................................... 42 

Ladue v. Gilleo, 512 U.S. 43 (1994) ........ 48-49, 56 

Linda R.S. v. Richard D., 410 U.S. 614 

(1973)......................................................... 20 

Lujan v. Defenders of Wildlife, 504 U.S. 

555 (1992).............................................17, 18, 20 

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

McIntyre v. Ohio Elections Comm’n, 514 

U.S. 334 (1995).......................................... 44, 46 

Meyer v. Grant, 486 U.S. 414 (1988).......42, 44, 46 

Miami Herald Publishing Co. v. Tornillo, 

418 U.S. 241 (1974)................................... 43 

Miller v. Albright, 523 U.S. 420 (1998)........ 19 

Miller v. Cunningham, U.S. App. Lexis 

29882 (4th Cir. Dec. 20, 2007).................. 32-33 

Minneapolis Star & Tribune Co. v. Minn. 

Comm’r of Revenue, 460 U.S. 575 (1983) . 40 

NAACP v. Alabama ex rel. Patterson, 357 

U.S. 449 (1958).......................................... 18 

New York Times Co. v. Sullivan, 376 U.S. 

254 (1964).................................................. 22, 40 

Nixon v. Shrink Missouri Gov’t PAC, 528 

U.S. 377 (2000).......................................... 33 

Plyler v. Doe, 457 U.S. 202 (1982)................ 57

Police Dept. of Chicago v. Mosley, 408 U.S. 

92 (1972).........................................30, 40, 56, 58 

R.A.V. v. St. Paul, 505 U.S. 377 (1992) .......... 41 

Randall v. Sorrell, 126 S. Ct. 2479 (2006) .... passim

Republican Party of Minnesota v. White, 

416 F.3d 738 (8th Cir. 2005)..................... 47-48 
ix 

TABLE OF AUTHORITIES—Continued 

 Page 

Republican Party of Minnesota v. White, 

563 U.S. 765 (2002)..............................35, 46, 50 

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

Cir. 1996)................................................... 54 

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

62 (1990).................................................... 47 

Shays v. FEC, 414 F.3d 76 (D.C. Cir. 2005)... 19-20 

Simon & Schuster, Inc. v. Members of N.Y. 

State Crime Victims Bd., 502 U.S. 105 

(1991)......................................................... 35, 47 

Storer v. Brown, 415 U.S. 724 (1974) .......... 20 

Turner Broad. Sys., Inc. v. FEC, 512 U.S. 

622 (1994).................................................. 44-45 

United States v. Automobile Workers, 352 

U.S. 567 (1982).......................................... 26 

United States v. O’Brien, 391 U.S. 367 

(1968)......................................................... 29 

United States Parole Comm’n v. Geraghty, 

445 U.S. 388 (1980)................................... 20 

United States v. Playboy Entm’t Group, 

Inc., 529 U.S. 803 (2000)........................... 46, 52 

Vote Choice, Inc. v. DiStefano, 4 F.3d 26 

(1st Cir. 1993) ........................................... 55 

Williams v. Rhodes, 393 U.S. 23 (1968)....... 34 

CONSTITUTIONAL PROVISIONS 

U.S. Const.: 

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

 Amend. V..................................................passim

FEDERAL STATUTES AND REGULATIONS 

11 C.F.R.: 

pt. 104........................................................ 7, 39 
x 

TABLE OF AUTHORITIES—Continued 

 Page 

 § 104.5(f).................................................... 40 

 § 104.19(b)(2)............................................. 11 

 § 109.32(b)(ii) ............................................ 4 

 § 110.1(b)(1)(i),(ii)...................................... 4, 24 

 § 110.3(c)(3) ............................................... 11 

 § 110.17 ..................................................... 4 

 § 400.2 ....................................................... 6 

 § 400.4(a)(1)-(4) ......................................... 7 

 § 400.8 ....................................................... 6 

 § 400.10 ....................................................passim

 § 400.10(a)(3)(i) ......................................... 11 

 § 400.10(b) ................................................. 10 

 § 400.20-25 ................................................ 8 

 § 400.20 ..................................................... 52 

 § 400.20(a)(2)............................................. 7, 38 

 § 400.20(b)(2)............................................. 38 

 § 400.21(b)................................................. 7, 52 

 § 400.22(b) ................................................. 9 

 § 400.23(c)-(d)............................................ 8 

 § 400.30(b) ................................................. 8 

 § 400.31(e) ................................................. 10 

 § 400.31(e)(1)(ii) ........................................ 8 

. § 400.41 ..................................................... 22 

 § 400.53 ..................................................... 10 

2 U.S.C.: 

 § 431-455 ................................................... 2 

 § 437g(a)(5)................................................ 12, 38 

 § 437g(a)(6)................................................ 12, 38 

 § 437g(a)(6)(C)........................................... 12 

 § 437g(d)(1)(A)........................................... 12, 38 

 § 437h ........................................................ 21 

 § 441a-1 ....................................................passim

 § 441a-1(a)(2) ............................................ 9 
xi 

TABLE OF AUTHORITIES—Continued 

 Page 

 § 441a-1(a)(2)(B)(ii)................................... 10 

 § 441a-1(b)(1)(B) ....................................... 7 

 § 441a-1(b)(1)(C) ....................................... 7 

 § 441a-1(b)(1)(D) ....................................... 8 

 § 441a-1(b)(1)(F)........................................ 8 

 § 441a(i)..................................................... 3 

28 U.S.C.: 

 § 1253 ........................................................ 2 

Bipartisan Campaign Reform Act of 2002: 

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

(“BCRA”)...................................................passim

 § 304(a)...................................................... 3, 24 

 § 319 .........................................................passim

 § 403 .......................................................... 5 

 § 403(a)(4).................................................. 21 

Federal Election Campaign Act of 1971: 

 Pub. L. No. 92-225, 86 Stat. 3 (1972), as 

amended in 1974, Pub. L. No. 93, 88 

Stat. 1263 (“FECA”).................................passim

 § 608(a)(1).................................................. 2 

OTHER AUTHORITIES 

FEC Adv. Op. 2003-31 (Dec. 19, 2003) ........ 8 

147 Cong. Rec. (2001): 

 p. S2433, S2464......................................... 28 

 p. S2536-S2548 ........................................passim

 p. S3183, S3195......................................... 10, 24 

148 Cong. Rec. (2002): 

 p. H339, H351 ........................................... 28 

 p. S2096, S2142......................................... 27, 31 

 p. S2096, S2153......................................... 27 
xii 

TABLE OF AUTHORITIES—Continued 

 Page 

68 Fed. Reg. 3970, 3987-94 (Jan. 27, 2003.. 16 

H.R. Rept. No. 107-131 (Part 1) July 10, 

2001 ........................................................... 34 

2006 Official Election Results for U.S. 

House of Representatives http://www.fec. 

gov/pubrec/fe2006/2006house.pdf............. 13 

The Campaign Finance Institute, Tbl. 3-1: 

The Cost of Winning an Election http:// 

www.cfinst.org/data/pdf/VitalStats_t1. pdf 

(last visited Feb. 19, 2008) .................. 39, 52-53 

Davis for Congress, 2006 Amended PostGeneral Report. FEC Form 3 (filed Mar. 

10, 2007) http://images.nictusa.com/cgibin/fecimg/?_27930237960+0.................... 13 

Davis for Congress Disclosure Reports (visited Feb. 19, 2008) http://images.nictusa. 

com/cgi-bin/fecimg/?C00421909................ 13 

Fed. Elections 2004: Election Results for 

the U.S. House of Representatives http:// 

www.frc.gov/pubrec/fe2004/2004congres

ults.pdf ...................................................... 4 

Reynolds for Congress, 2006 Amended 

Post-General, Report, FEC Form 3 (filed 

Feb. 15, 2007) http://images.nictusa.com/ 

cgi-bin/fecimg/?_27950065152+0.............. 13 
IN THE

Supreme Court of the United States 

———— 

No. 07-320 

———— 

JACK DAVIS, 

Appellant,

v. 

FEDERAL ELECTION COMMISSION, 

Appellee. 

———— 

On Appeal from the United States District Court 

for the District of Columbia 

———— 

BRIEF FOR APPELLANT 

———— 

OPINION BELOW 

The opinion of the district court is reported at 501 

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

CONSTITUTIONAL PROVISIONS AND 

STATUTES INVOLVED 

The First Amendment and the equal protection 

component of the due process clause of the Fifth 

Amendment to the United States Constitution are 

printed in the Appendix to the Jurisdictional 

Statement (“J.S. App.”) at 20a. BCRA § 319 (“Section 
2 

319”) (codified at 2 U.S.C. § 441a-1 and printed at 

J.S. App. 21a-26a) is printed at J.S. App. 27a-31a. 

JURISDICTION 

The decision of the district court was issued on 

August 9, 2007. Appellant filed his notice of appeal 

on August 16, 2007, and his 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 (2002); and 28 U.S.C. 

§ 1253. 

STATEMENT OF THE CASE 

This is a First and Fifth Amendment facial 

challenge to the so-called “Millionaires’ Amendment” 

of the Bipartisan Campaign Reform Act of 2002 

(“BCRA”), Pub. L. No. 107-155, § 319, 116 Stat. 109-

12 (2002) (codified as amended at 2 U.S.C. § 441a-1). 

Congress ostensibly enacted Section 319 to “level 

the playing-field” among United States House of 

Representatives candidates who utilize personal 

funds for their campaigns and those who rely primarily on contributed funds. 

Section 319 is Congress’s second attempt to regulate candidates’ spending on their own campaigns. In 

1972, the Federal Election Campaign Act (“FECA”), 

Pub. L. No. 92-225, 86 Stat. 3 (1972) (codified as 

amended at 2 U.S.C. § 431-455), as amended in 1974, 

see Pub. L. No. 93-443, 88 Stat. 1263, established 

limits on expenditures by a candidate “from his 

personal funds, or the personal funds of his 

immediate family, in connection with his campaigns 

during any calendar year.” FECA § 608(a)(1).1

 In 

 1

 FECA imposed a $25,000 limit for most candidates for the 

House of Representatives. 
3 

Buckley v. Valeo, 424 U.S. 1, 54 (1976) (per curiam), 

this Court struck down those limits, holding that any

ceiling on personal expenditures violates the First 

Amendment.2 In 2002, Congress imposed new burdens on personal expenditures, creating an alternative system of higher contribution limits, strategy 

disclosure obligations, and other requirements in 

elections where one or more candidates spends a 

substantial amount of personal funds. 

Federal election law generally applies uniform 

contribution limits and regulations to campaigns 

where all candidates rely on private contributions. 

BCRA § 319 (“Section 319”), however, confers advantages on the opponents of a candidate for the United 

States House of Representatives whose personal 

expenditures exceed $350,000, and also imposes additional reporting requirements that apply only to 

a self-financing candidate who might cross the 

$350,000 threshold.3 Once a candidate’s personal 

expenditures surpass that threshold, Section 319 

may enable her opponents to match these expenditures by: (1) receiving contributions at triple the 

$2,300 per election limit, from donors who have 

already reached the $42,700 per election cycle limit 

for aggregate campaign donations; and (2) receiving 

unlimited coordinated party expenditures (normally 

subject to a $40,900 per election ceiling for most 

House races).4

 Congress also created a new reporting 

 2

 “Congress shall make no law . . . abridging the freedom of 

speech.” U.S. Const. amend I. 

3

 BCRA § 304(a) (2 U.S.C. § 441a(i)) applies parallel regulations to campaigns for the United States Senate. Appellant 

does not challenge this provision. 

4

 These limits are indexed for inflation. Since BCRA’s 

enactment in 2002, the individual contribution limit has in-
4 

regime for candidates who intend to spend more than 

$350,000 of their own money, which requires the disclosure of their personal campaign expenditure plans. 

In both 2004 and 2006, Appellant Jack Davis ran 

as the Democratic Party’s nominee for New York’s 

26th Congressional District seat to the United States 

House of Representatives, challenging the Republican incumbent Thomas Reynolds. Mr. Davis funded 

his 2004 campaign primarily, though not exclusively, 

with personal expenditures. Mr. Davis spent over 

$1.2 million, but lost the 2004 election to Mr. 

Reynolds. See Davis FEC Form 3, J.A. 54; Fed. 

Elections 2004: Election Results for the U.S. House of 

Representatives, at 72, http://www.fec.gov/pubrec/ 

fe2004/2004congresults.pdf. In 2006, the FEC began 

an investigation into alleged violations of Section 319 

stemming from Mr. Davis’s campaign committee’s 

alleged failure to report his personal expenditures 

made during the 2004 campaign.5

 Aug 16, 2006 FEC 

Letter, Addendum (“Add.”) 1a-2a. In January 2007, 

the FEC proposed a “conciliation agreement” in 

which Mr. Davis would pay a $251,000 civil penalty. 

Conciliation Agreement, Add. 8a. On August 27, 

2007, Mr. Davis agreed to toll the statute of 

limitations for the action until final resolution of this 

case. See Consent, Add. 10a. 

In 2006, Mr. Davis again challenged Mr. Reynolds. 

On June 28, 2006—prior to the start of the general 

election campaign and in anticipation of personally 

spending more than a million dollars—Mr. Davis 

 

creased from $2,000, 11 C.F.R. § 110.1(b)(1)(i),(ii), and the ceiling on coordinated party communication has increased from 

FECA’s original $10,000 limit. 11 C.F.R. §§ 109.32(b)(ii), 110.17. 

5 Documents relating to the FEC’s investigation are printed 

in an Addendum (“Add.”) to this brief at Add. 1a-10a.
5 

filed suit in United States District Court for the 

District of Columbia. See Complaint, J.A. 5. In his 

complaint and supporting declaration, Mr. Davis 

alleged that application of Section 319’s disclosure 

requirements and expanded contribution limits to his 

race violated his First and Fifth Amendment rights. 

He requested that the court declare Section 319 

unconstitutional and enjoin the FEC from enforcing 

the provision. See Complaint, J.A. 5; Davis Declaration, J.A. 20. 

At the same time, Mr. Davis moved to expedite this 

case pursuant to BCRA § 403, which instructs the 

district court to “expedite to the greatest possible 

extent the disposition of the action and appeal.” Mr. 

Davis asked the court to decide his claims before the 

September 12, 2006 start of the general election 

campaign. See Mot. to Expedite. The FEC opposed 

the request, asserting that it required extensive 

discovery to defend the matter. 

On July 11, 2006, the district court granted Mr. 

Davis’s application for a three-judge court. On July 

28, the district court denied Mr. Davis’s request to 

expedite, and set a briefing schedule. The parties 

filed cross-motions for summary judgment, and the 

district court heard oral argument on October 20, 

2006. On August 9, 2007, the court granted the 

FEC’s motion for summary judgment. 

A. Section 319, the So-Called “Millionaires’ 

Amendment.” Congress enacted Section 319 to 

address a perceived disparity in resources. As one 

Senator explained, personal campaign spending 

makes it “more difficult for nonwealthy opponents to 

compete and to get their messages and their ideas 

across to the public.” 147 Cong. Rec. S2536, S2538 

(daily ed. Mar. 20, 2001) (Sen. DeWine). It also 
6 

identified a public perception “that someone today 

who is wealthy enough can buy a [congressional] 

seat.” Id. at S2547 (Sen. DeWine). 

To implement its remedy, Congress developed the 

means to compare opponents’ respective financial 

data in an election campaign. These statutory 

formulae measure the pool of funds—comprised of 

personal expenditures and contributed funds—

available to each candidate. If, under the formulae, a 

candidate relying primarily on contributions has 

received less money than his opponent’s personal 

expenditures, Section 319 applies. The formulae first 

calculate “gross receipts,” essentially the amount of 

private contributions received by a candidate. See 11 

C.F.R. § 400.8. During an election cycle, this number 

may be calculated three separate times; the general 

election tally accounts for contributions received by 

December 31 of the year before the general election.6

 

This amount remains fixed during the year of the 

general election. The formulae next measure the 

difference between these receipts and the respective 

amounts of personal funds expended by the candidates. This measure, which determines the amount 

of benefits available to a candidate, is called 

the “opposition personal funds amount” (“OPFA”). 

Because candidate committees’ finances are in flux, 

Congress confronted measurement issues relating 

to the comparison of contributions and personal 

spending, when to authorize extra-limit funds, and 

how to determine when additional funds have 

eliminated the purported inequities in the race. 

 6

 Section 319 applies to primary and general elections, 

differentiating only as to the schedule for making calculations. 

See 11 C.F.R. §§ 400.2; 400.10. The Statement of the Case addresses the general election provisions only. 
7 

1.a. Disclosure of Personal Expenditures. To utilize this regime, candidates require access to accurate, 

contemporaneous data about their opponents’ personal expenditures. Before passage of Section 319, 

FECA’s regulations provided for quarterly financial 

disclosures, with additional reports required near 

elections. See 11 C.F.R. pt. 104. To accelerate 

disclosure of personal spending, Congress imposed a 

24-hour notification scheme, commencing at the start 

of a campaign. Candidates must “file a declaration 

[of intent] stating the total amount of expenditures 

from personal funds . . . that will exceed $350,000” 

within 15 days of declaring their candidacy. 2 U.S.C. 

§ 441a-1(b)(1)(B). Candidates who do not intend to 

exceed the $350,000 threshold “may state the amount 

as $0.” 11 C.F.R. § 400.20(a)(2). The requirement 

applies to the primary and general elections, 

respectively. If, at any time during an election, 

candidates make aggregate personal campaign 

expenditures in excess of the threshold amount of 

$350,000, they must, within 24 hours, file an “initial 

notification” with the FEC, each opponent, and the 

national party of each opponent. 2 U.S.C. § 441a1(b)(1)(C); see also 11 C.F.R. § 400.21(b). This filing 

notifies their opponents that they may be eligible for 

Section 319’s extra-limit funds. 

For purposes of Section 319, the FEC defines 

personal expenditures as: (1) personal funds spent in 

support of a candidate’s own campaign; (2) personal 

contributions or loans made to a candidate’s campaign; (3) loans by any other person to a candidate’s 

committee that are secured using the candidate’s 

personal funds; and (4) “any obligation to make 

an expenditure from personal funds that is 

legally enforceable” against a candidate. 11 C.F.R. 

§ 400.4(a)(1)-(4). If a candidate subsequently repays 
8 

personal expenditures or loans with contributed 

funds, Section 319 does not reduce its measure of her 

aggregate personal spending. See, e.g., FEC Adv. Op. 

2003-31 (Dec. 19, 2003) (no reduction in candidate’s 

gross receipts advantage if personal loans are later 

repaid with contributions). 

Exceeding the $350,000 personal spending threshold triggers the 24-hour notification requirement for 

aggregate personal expenditures of $10,000 or more.7

 

2 U.S.C. § 441a-1(b)(1)(D); e.g., Davis FEC Form 10, 

J.A. 106. Candidates provide the date and amount of 

each personal expenditure made since the last notification and calculate aggregate personal expenditures for the election. See 11 C.F.R. § 400.23(c)-(d). 

Candidates disclose this information to the same 

entities that receive the Declaration of Intent form. 

2 U.S.C. § 441a-1(b)(1)(F). All disclosure requirements persist through Election Day. See 11 C.F.R. 

§§ 400.20-25.

1.b. Disclosure of Receipt of Extra-Limit Contributions. Once a candidate determines that he is 

eligible for extra-limit funds, he must notify the FEC 

and his political party within 24 hours. 11 C.F.R. 

§ 400.30(b). He files another notice when he is 

no longer eligible for additional benefits. Id.

§ 400.31(e)(1)(ii). The regulations do not, however, 

require a candidate receiving extra-limit funds to 

notify his opponents of his receipt or expenditure of 

those benefits. 

2. Calculation of Available Extra-Limit Contributions. Candidates utilize the various notices to 

calculate whether, and to what amount, they may 

 7

 Neither the threshold nor aggregate expenditure amount is 

indexed for inflation.
9 

accept funds under the expanded limits. This is 

called the “opposition personal funds amount” 

(“OPFA”). 2 U.S.C. § 441a-1(a)(2); 11 C.F.R. § 400.10. 

The FEC dubbed this calculation the “Proportionality 

Provision.” See Def. Mem. Summ. J. at 8-9. 

Similarly, the district court concluded that Section 

319, and specifically the OPFA calculation, “provides 

a benefit to [a self-financed candidate’s] opponent, 

thereby correcting a potential imbalance in resources 

available to each candidate.” J.S. App. 9a. The 

opinion summarizes the OPFA calculation: 

[T]he opponent determines the amount of 

personal funds spent by each candidate (i.e., the 

self-financed candidate and himself), adds 50% of 

the total funds raised by each candidate during 

the year prior to the election, and compares 

the totals. [2 U.S.C.] § 441a-1(a)(2). If the 

opponent’s OPFA is above that of the selffinanced candidate, he may not take advantage 

of the relaxed limits and coordinated expenditures. If it is not, then he may take advantage 

of the relaxed limits, but only until parity is 

achieved under the OPFA formula. 

J.S. App. 4a. Because the OPFA, which determines 

the application of benefits, measures personal funds 

and contributions in significantly different ways, the 

formulae merit additional discussion. 

2.a. “Amount of Personal Funds Spent by Each 

Candidate.” Each time a self-financed candidate 

personally spends $10,000 or more, she must report 

the expenditures. 11 C.F.R. § 400.22(b). This notice 

authorizes her opponents to calculate (or recalculate) 

their OPFAs using her new aggregate personal 

expenditures. Accordingly, the OPFA formula 

ensures that the amount available to offset personal 
10 

spending increases after each additional expenditure. 

Opponents may match up to 100% of the personal 

funds spent, at which point their limits return to 

standard levels. Id. § 400.31(e).8

2.b. “50% of the Total Funds Raised by Each 

Candidate During the Year Prior to the Election.” 

The OPFA measures contributions and personal 

funds differently. Section 319 measures only contributions that are received in the year preceding the 

year of the election, an amount that it designates as 

the “gross receipts advantage.” 2 U.S.C. § 441a1(a)(2)(B)(ii). During the 2008 election cycle, for 

example, the gross receipts advantage measures 

funds contributed to candidates’ authorized committees during 2007. The calculation does not 

account for contributions left over from previous 

elections: funds known as the “war chest”. See, e.g.,

147 Cong. Rec. S3183, S3195 (daily ed. Mar. 30, 2001) 

(Sen. Dodd) (discussing differential treatment of 

“incumbent’s war chest [from] a challenger’s personal 

wealth”). The gross receipts advantage also omits 

contributions received by candidates during the ten 

months before Election Day on November 4, 2008. 

From February 1, 2008, when the calculation is 

effective, through Election Day, the gross receipts 

advantage simply utilizes the “[a]ggregate amount 

of the gross receipts of the candidate’s authorized 

committee . . . on December 31 of the year preceding 

the year in which the general election is held.” See 

11 C.F.R. § 400.10(b) (defining variables (e) and (f) of 

the general election OPFA). 

 8

 Candidates must return all unused contributions received 

under Section 319 at the end of a campaign, or if their selffinanced opponent withdraws from the race at any time. 11 

C.F.R. § 400.53. 
11 

Section 319 further winnows the gross receipts 

advantage by segregating primary and general 

election contributions.9

 Accordingly, candidates utilize their total primary receipts on December 31, 2007 

for calculations relating to their 2008 primary 

opponents and their total general receipts on that 

date for their general opponents. E.g., Reynolds FEC 

Form 3Z-1, J.A. 62; see also 11 C.F.R. § 104.19(b)(2). 

The OPFA uses these totals, without further 

adjustment, for all calculations in the respective 

elections. 11 C.F.R. § 400.10. For example, a candidate who received no contributions designated for 

the general election between January 1, and 

December 31, 2007 would use “$0” for all 2008 OPFA 

general election calculations. 

Finally, the statute halves the aggregate contributions before calculating the gross receipts 

advantage. See id. § 400.10(a)(3)(i). Personal expenditures are not reduced. 

Ultimately, the gross receipts advantage measures 

a candidate’s aggregate personal expenditures, plus: 

all contributions: (a) made to that candidate during 

the year preceding the year of the election; (b) that 

are designated for the applicable election; (c) totaled, 

and divided by half. Id. § 400.10. At its most basic, 

the OPFA formula operates as such: general election 

Candidate A receives $1 million in individual 

contributions to his general election account through 

December 31, 2007, which divided in half equals 

$500,000. His opponent, Candidate B, receives 

 9

 Because FEC regulations permit candidates to redesignate 

unused primary funds for use in the general election, 

individuals generally designate contributions made in the year 

before the election year to the primary election. See 11 C.F.R. § 

110.3(c)(3); see, e.g., Reynolds FEC Form 3Z-1, J.A. 62. 
12 

$600,000 in individual contributions to her general 

election account, which divided in half equals 

$300,000; the difference of Candidate A’s $500,000 

and Candidate B’s $300,000 is $200,000, providing 

the gross receipts advantage between the two 

candidates during the election. Because no candidate 

has exceeded the $350,000 personal expenditure 

threshold, Section 319’s benefits are not applicable. 

Subsequently, Candidate B personally spends 

$350,000 on the general election and files her 24-hour 

notice. Candidate A may now recalculate his OPFA 

to account for this expenditure. The difference 

between Candidate B’s personal spending ($350,000) 

and Candidate A’s gross receipts advantage 

($200,000) equals $150,000, which is the amount of 

extra-limit funds that Candidate A may receive.

3. Penalties and Enforcement. FECA provides for 

civil penalties for submission of false, erroneous, or 

incomplete information on any of the forms relating 

to Section 319. See 2 U.S.C. § 437g(a)(5), (6). 

Penalties may match the expenditures involved 

and double for “knowing and willful” violations. 

Id. § 437g(a)(6)(C). FECA also authorizes criminal 

penalties—including both fines and imprisonment for 

less than five years—for “knowing and willful” 

violations. Id. § 437g(d)(1)(A). 

B. Application of Section 319 to Mr. Davis’s 2004 

and 2006 Election Campaigns.

During the 2006 campaign, Mr. Davis’s opponent, 

incumbent Thomas Reynolds, did not avail himself of 

his right to raise extra-limit funds. Mot. to Dismiss 

or Affirm at 12. However, Mr. Reynolds still enjoyed 

the benefits, and Mr. Davis assumed the burdens, of 

the unilateral reporting requirements imposed on 
13 

Mr. Davis. Mr. Davis filed numerous 24-hour

notifications of personal expenditures. See Davis for 

Congress Disclosure Reports, http://images.nictusa. 

com/cgi-bin/fecimg/?C00421909 (last visited Feb. 19, 

2008). At the end of the 2006 campaign—including a 

primary in which he ran unopposed and the general 

election against Mr. Davis—Mr. Reynolds received 

over $4.2 million in contributions (and other financial 

benefits) and expended more than $5.1 million. He 

reported no personal expenditures. See Reynolds for 

Congress, 2006 Amended Post-General Report, FEC 

Form 3, at 2 (filed Feb. 15, 2007), http://images. 

nictusa.com/cgi-bin/fecimg/?_27950065152+0. At the 

beginning of the 2006 election cycle, Mr. Reynolds’s 

war chest totaled approximately $1,149,000; he finished the election cycle with approximately $260,000 

cash-on-hand. Id. During the same election, Mr. 

Davis reported spending about $2.3 million on the 

primary and general elections, with his personal 

expenditures accounting for all but about $126,000 of 

that total. See Davis for Congress, 2006 Amended 

Post-General Report, FEC Form 3, at 2 (filed Mar. 10, 

2007), http://images.nictusa.com/cgi-bin/fecimg/?_279 

30237960+0. He finished the election with $23,657 

cash-on-hand. Id. Based on Mr. Davis’s disclosures, 

Mr. Reynolds’s OPFA at the conclusion of the 

campaign authorized him to receive $1,459,562.50 in 

Section 319 benefits. See supra Reynolds Form 3. 

Mr. Reynolds ultimately prevailed in 2006, winning 

reelection by a 52%-48% margin, receiving 109,257 

votes to Mr. Davis’s 100,914 votes. See 2006 Official 

Election Results for U.S. House of Representatives, at 

61, http://www.fec.gov/pubrec/fe2006/2006house.pdf. 
14 

SUMMARY OF THE ARGUMENT 

Section 319 infringes on the core political speech of 

self-financed candidates and violates their right to 

equal protection of the law. The provision targets 

a class of candidates who are exercising their 

fundamental right to pay for their own electoral 

efforts and diminishes the exercise of that right in a 

direct and substantial manner. Section 319 violates 

the First Amendment by compelling the publication 

of sensitive, strategic information relating to a selffinanced candidate’s personal expenditures and 

by enabling opposing candidates to benefit from 

those expenditures. This differential treatment of 

candidates for the same seat in the United States 

House of Representatives also offends the equal 

protection component of the due process clause of the 

Fifth Amendment. In both the 2004 and 2006 

elections, Appellant Jack Davis suffered direct injury 

from the application of Section 319, and he retains a 

personal stake in the invalidation of that provision. 

Section 319 favors incumbents by discouraging 

challengers from personally financing their campaigns. For those who remain undeterred, the statute punishes them for making personal expenditures 

by rewarding their opponents. Section 319 provides 

benefits to the opponents of candidates who 

personally spend more than $350,000 on their 

campaigns. The statute authorizes opponents of selffinanced candidates to match personal spending with: 

(1) contributions at triple the $2,300 individual limit 

that do not apply toward a donor’s aggregate election 

cycle contribution limit; and (2) unlimited coordinated national party communications (normally 

capped at $40,900 per candidate). To provide access 

to these benefits, the statute measures all personal 
15 

expenditures, within 24 hours, through Election Day. 

In contrast, the statute counts only contributed funds 

received in the year before the year of the election. 

Accordingly, it ignores both an incumbent’s “war 

chest,” stocked with excess funds from previous 

election cycles, and all additional contributions that 

she receives during the year of the election. 

Although applied “evenhandedly,” the availability 

of extra-limit funds also confers an advantage on 

incumbents. See Buckley, 424 U.S. at 31 n.33 (“[T]he 

appearance of fairness . . . may not reflect political 

reality.”). Many self-financed candidates are challengers who do not have access to high dollar donors. 

Or, as in this matter, candidates self-finance to 

convey a campaign message of independence from 

lobbyists, large donors, and other political “insiders.” 

In raising the ceiling for hard money contributions, 

Congress sought to dampen the influence of large 

personal expenditures that could offset the natural 

financial benefits of incumbency. See id. (“[I]t is 

axiomatic that an incumbent usually begins the race 

with significant advantages.”). As this Court first 

recognized in Buckley, 424 U.S. at 32 n.37, incumbents receive the lion’s share of “hard money” 

contributions. See also McConnell v. FEC, 540 U.S. 

93, 249 (2003) (“Is it accidental, do you think, that 

incumbents raise about three times as much ‘hard 

money’ . . . as do their challengers?”) (Scalia, J., 

concurring in part, dissenting in part). This Court 

also upheld a ceiling on party coordinated communications because it believed that the absence of 

limits would foster circumvention of individual 

contribution limits and result in the improper use of 

party funds. See FEC v. Colo. Republican Fed. 

Campaign Comm. (“Colorado II”), 533 U.S. 431, 465 

(2001); see also id. at 460 n.23 (incumbent may use 
16 

coordinated communications to “become a player 

beyond his own race” by raising money for others). 

Section 319 abolishes the limit on these communications, as well. 

Congress crafted Section 319 to resemble a public 

financing regime. However, unlike such provisions, 

the statute does not substitute public funds for 

contributed money. Conversely, it promotes increased expenditures of the latter. Section 319 is also 

coercive because it provides potential self-financers 

with no beneficial option; they either forgo their 

constitutional right to fund their own campaigns or 

they provide opponents with financial benefits 

correlated to their personal expenditures. 

Section 319 is a provision of significant complexity, 

in operation and in effect. See McConnell, 540 U.S. 

at 264 (Scalia, J., concurring in part, dissenting in 

part) (the “federal election campaign laws . . . are 

already . . . so voluminous, so detailed, so complex, 

that no ordinary citizen dare run for office . . . 

without hiring an expert adviser in the field.”). 

Section 319’s intricacies include, inter alia, multiple 

formulae applied differently in different years, 

significantly varied calculations and benefits for 

House and Senate candidates, and a burdensome 

reporting regime applicable to self-financers only. 

The hypothetical published by the FEC to “provide a 

better understanding” of the statute is over 8,000 

words long. See 68 Fed. Reg. 3970, 3987-94 (Jan. 27, 

2003). 

Congress also larded Section 319 with invented 

terminology. “Opposition personal funds amount” 

(“OPFA”) and “gross receipts advantage” are terms 

that provide little insight into their measure. Even 

Congress’s chosen name for Section 319, the “Mil-
17 

lionaires’ Amendment,” is a misnomer. The statute 

applies to any candidate contemplating expending 

personal funds, and the House provision is triggered 

after a candidate expends or secures a campaign loan 

of $350,000, a modest amount in the current electoral 

landscape. 

Finally, Congress claimed a governmental and 

public interest in creating equality in races involving 

personal expenditures. But the statute leaves 

incumbents free to raise extra-limit funds even while 

maintaining a significant financial advantage over 

their opponents. In this case, the statute authorized 

the incumbent to receive over $1.4 million in extralimit funds in the 2006 election, even though he had 

already outspent Mr. Davis by more than $3 million 

dollars. Even if this Court had recognized that 

“leveling the playing field” was an independent, 

sufficient governmental interest, Section 319 fails to 

advance that goal. 

ARGUMENT 

 I. THIS COURT HAS JURISDICTION OVER 

THIS MATTER BECAUSE APPLICATION 

OF SECTION 319 INJURED MR. DAVIS 

IN BOTH THE 2004 AND 2006 ELECTIONS AND HE RETAINS A “PERSONAL 

STAKE” IN ITS INVALIDATION. 

Mr. Davis has suffered injuries-in-fact sufficient to 

confer Article III standing to challenge Section 319. 

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

61 (1992).10 As described in the Statement of the 

 10 In its Motion to Dismiss or Affirm, the Government conceded that Section 319’s notice and disclosure provisions injured 

Mr. Davis, but asserted that because his opponent did not avail 

himself of the increased contribution limits, Mr. Davis “has 
18 

Case, see supra p. 13, in both 2004 and 2006, Section 

319 obligated Mr. Davis to provide a series of public 

disclosures, commencing with his Declaration of 

Intent to exceed the $350,000 personal expenditure 

limit, and continuing through Election Day. The 

injuries imposed by Section 319’s disclosure regime 

are sufficient to confer standing on Mr. Davis to 

challenge the statute in its entirety. 

First, the FEC has alleged that Mr. Davis failed to 

comply with Section 319’s disclosure requirements 

during the 2004 election and seeks a significant 

monetary penalty. Add. 1a-9a. This pending action 

against Mr. Davis satisfies the test for standing 

articulated in Lujan, 504 U.S. at 560-61 (injury must 

be “concrete”). In the 2006 campaign, Mr. Davis 

suffered additional injury arising from his compliance 

with the statute’s disclosure requirements. “This 

Court has long recognized that compelled disclosure 

of political affiliations and activities can impose just 

as substantial a burden on First Amendment rights 

as can direct regulation.” AFL-CIO v. FEC, 333 F.3d 

168, 175-76 (D.C. Cir. 2003) (citing Buckley, 424 U.S. 

at 64-68 (disclosure of campaign contributions)); 

NAACP v. Alabama ex rel. Patterson, 357 U.S. 

449, 462-63 (1958) (disclosure of membership lists). 

Indeed, Mr. Davis filed this matter prior to the 2006 

general election in order to avoid the unconstitutional 

burden imposed by these obligations. 

His opponent’s decision not to raise funds pursuant 

to Section 319 does not deprive Mr. Davis of standing 

to challenge the statute. Severability of a statute is 

 

identified no actual or imminent injury to himself resulting from 

that aspect of Section 319.” Mot. to Dismiss or Affirm at 12 

(emphasis added). 
19 

only appropriate where the invalidation of an 

unconstitutional provision does not affect the rest of 

the statute. The power to sever a statute exists only 

“on the basis of the Court’s assessment as to whether 

Congress would have enacted the remainder of the 

law without the invalidated provision.” Miller v. 

Albright, 523 U.S. 420, 457 (1998) (citations omitted); 

see also Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 

684 (1987) (severing a line-item veto provision 

because congressional intent to allow such severability was clear and remaining statute could operate 

independently). 

Congress enacted Section 319 as a unified scheme 

involving the disclosure of personal expenditures and 

the establishment of alternative limits based on 

those disclosures. Without immediate access to 

information about a candidate’s personal spending, 

opponents would be unable to use the formulae to 

calculate the availability of Section 319’s extra-limit 

funds. Prior to the enactment of Section 319, no 

reporting mechanism existed to provide this data. 

Section 319’s disclosure obligations cannot be 

separated from the monetary benefits contingent 

upon that disclosure. 

Mr. Davis has also suffered significant injury due 

to the availability of the extra-limit funds to his 

opponent. Litigants have established Article III 

standing in cases with far more speculative injuries 

than are presented here. In Shays v. FEC, the 

plaintiffs had standing simply because they were 

candidates who were obligated to comply with a 

fundraising regime with which they disagreed. See

Shays v. FEC, 414 F.3d 76, 83 (D.C. Cir. 2005) (“[T]he 

statute’s regulation of candidates is part of the 

reason why candidates like Shays and Meehan 
20 

possess APA standing, for who suffers more directly 

when political rivals get elected using illegal 

financing?”). This Court has also recognized that 

“Congress may enact statutes creating legal rights, 

the invasion of which creates standing, even though 

no injury would exist without the statute.” Linda 

R.S. v. Richard D., 410 U.S. 614, 617 n.3 (1973); see 

also Lujan, 504 U.S. at 578 (reaffirming this principle 

of standing). Were it not for Section 319, Mr. 

Davis would be free to make personal expenditures 

without conferring electoral advantages on his 

opponents. 

Because the FEC maintains a pending enforcement 

action against Mr. Davis, stemming from his campaign committee’s alleged failure to comply with 

Section 319 during the 2004 election, this case is 

not moot. Mr. Davis’s “personal stake” in the 

constitutionality of Section 319 presents this Court 

with a live dispute that it is capable of resolving. See

United States Parole Comm’n v. Geraghty, 445 U.S. 

388, 397 (1980). 

Separate from the FEC enforcement action, Mr. 

Davis’s challenge falls within the “established 

exception to mootness for disputes capable of repetition, yet evading review.” FEC v. Wisconsin Right 

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

see also Storer v. Brown, 415 U.S. 724, 737 n.12 

(1974) (in electoral context the issues persist after 

conclusion of the elections). The limited period between elections does not leave “ample time” for 

litigation of electoral challenges. WRTL, 127 S. Ct. at 

2662-63; see also First Nat’l Bank of Boston v. 

Bellotti, 435 U.S. 765, 774 (1978) (challenge to a state 

referendum was not moot after the election, because 

the time between legislative approval of the measure 

and submission to the voters was too short a period 
21 

in which to litigate). Finding that Mr. Davis’s claims 

are moot because they were not litigated within the 

2006 election cycle would also thwart Congress’s 

intention that challenges to BCRA should be 

expedited. See 2 U.S.C. § 437h; WRTL, 127 S. Ct. at 

2662 (granting review to Wisconsin Right to Life, 

Inc. in light of “BCRA’s command that the cases 

be expedited ‘to the greatest possible extent,’ 

§ 403(a)(4).”). 

 II. SECTION 319 UNCONSTITUTIONALLY 

BURDENS SELF-FINANCED CANDIDATES’ POLITICAL SPEECH AND EXACERBATES INCUMBENTS’ INHERENT 

ADVANTAGES. 

Section 319 is Congress’s second attempt to 

regulate personal spending. After Buckley struck 

down FECA’s ceilings on personal expenditures, 

Congress responded with this BCRA provision 

expanding contribution limits for the opponents of 

self-financers. The district court, however, failed to 

examine whether Section 319 actually advances the 

purported equality interest. See J.S. App. 9a (Section 

319 corrects a “potential imbalance in resources”) and 

J.S. App. 17a (It is a “reasonable premise” that selffinancers are “dangerous to the perception of 

electoral fairness.”). This deference does not rise to 

the level of strict scrutiny. See WRTL, 127 S. Ct. at 

2664 (“[T]he burden is on the government to show the 

existence of [a compelling] interest.” (quoting Bellotti, 

435 U.S. at 786 (footnote omitted))). Because the 

district court did not address Mr. Davis’s claim that 

Section 319 creates an advantage for incumbents, 

its opinion is ill-suited to a matter “raising First 

Amendment issues, [where] we have repeatedly held 

that an appellate court has an obligation to ‘make an 
22 

independent examination of the whole record’ in 

order to make sure that ‘the judgment does not 

constitute a forbidden intrusion on the field of free 

expression.’” Bose Corp. v. Consumers Union of 

United States, Inc., 466 U.S. 485, 499 (1984) (quoting 

New York Times Co. v. Sullivan, 376 U.S. 254, 284-86 

(1964)). In its plurality opinion in Randall, this 

Court applied such scrutiny to limits set well below 

the norm. See Randall v. Sorrell, 126 S. Ct. 2479, 

2492 (2006) (plurality opinion). Equal care should 

apply here. 

 A. Section 319 Favors Incumbents by 

Subverting Standard Contribution 

Limits and Increasing Financial 

Inequality. 

Section 319 favors incumbents by providing 

informational and financial benefits to the opponents 

of candidates who personally spend more than 

$350,000 on their campaign. It provides advance 

strategic information about the self-financed 

candidate’s budget and authorizes their opponents to 

match their personal spending with: (1) contributions 

at triple the $2,300 individual limit which do not 

apply to a donor’s aggregate election cycle contribution ceiling; and (2) unlimited coordinated 

national party communications (normally capped at 

$40,900 per candidate). See 11 C.F.R. § 400.41.

The provision favors incumbents over challengers 

with the personal wealth sufficient to offset some of 

the financial advantages of incumbency. As Justice 

Scalia noted in McConnell, “[a]ny restriction upon a 

type of campaign speech that is equally available 

to challengers and incumbents tends to favor 

incumbents. . . . Is it accidental, do you think, that 

incumbents raise about three times as much ‘hard 
23 

money’—the sort of funding generally not restricted 

by this legislation—as do their challengers?” 

McConnell, 540 U.S. at 249 (Scalia, J., concurring in 

part, dissenting in part). Section 319 exacerbates the 

advantages of incumbency. While it discounts the 

presence of incumbents’ war chests, Section 319 does 

not provide additional money for challengers without 

access to a preexisting source of funds. The provision 

also ignores other advantages of incumbency, including: greater voter recognition, the ability to 

earmark funds for one’s district, mail franking 

privileges, and paid travel for official duties. See 

Buckley, 424 U.S. at 31 n.33 (discussing advantages 

of incumbency). Addressing the Vermont campaign 

finance law’s contribution and expenditure limits in 

Randall, Justice Breyer observed that the “typically 

higher costs that a challenger must bear to overcome 

the name-recognition advantage enjoyed by an 

incumbent” created too many obstacles to challengers 

for the law to be constitutional. 126 S. Ct. at 

2496 (plurality opinion). Section 319’s advantages 

for those who already enjoy the benefits of incumbency similarly serve to make a challenger’s 

burden heavier. 

This boost to incumbents extends to the provision’s 

disclosure triggers. For example, because neither the 

$350,000 personal expenditure threshold nor the 

$10,000 reporting level is indexed for inflation, 

“limits which are already suspiciously low . . . will 

become almost inevitably low over time . . . thereby 

impos[ing] the burden of preventing the decline upon 

incumbent legislators who may not diligently police 

the need for changes in limit levels to assure adequate financing of electoral challenges.” Randall, 

126 S. Ct. at 2499 (plurality opinion). In contrast, 

the standard contribution limits are adjusted for 
24 

inflation every two years. 11 C.F.R. § 110.1(b)(i), (ii). 

Thus, the thresholds for Section 319 decline, while 

the expanded contribution levels maintain their 

value. 

By burdening self-financed challengers, Section 

319 “targets for prohibition certain categories of 

campaign speech that are particularly harmful to 

incumbents,” McConnell, 540 U.S. at 249 (Scalia, J., 

concurring in part, dissenting in part). Some 

members of Congress recognized the biases inherent 

in Section 319. One Senator stated that “[t]here is 

simply no way to justify treating an incumbent’s war 

chest differently than a challenger’s personal wealth 

. . . [there is] a substantial loophole for incumbents.” 

147 Cong. Rec. S3183, S3195 (daily ed. Mar. 30, 2001) 

(Sen. Dodd).11 Another Senator concluded that this 

regime “flies in the face of McCain-Feingold. There is 

nothing in the spirit of McCain-Feingold in this 

amendment. This is not reform. This makes a 

mockery of reform.” 147 Cong. Rec. S2536, S2544 

(daily ed. Mar. 20, 2001) (Sen. Daschle). 

 B. Discouraging Personal Expenditures 

for the Benefit of Some Candidates is 

an Impermissible Legislative Purpose. 

 1. Congress’s Stated Governmental 

Interests are Novel and Unconstitutional. 

Congress originally imposed contribution limits in 

election campaigns to address concerns about the 

appearance and actuality that large campaign 

donations could unduly influence politicians. See 

 11 The Senate debate addressed BCRA § 304(a), enacting 

regulations for United States Senate elections parallel to 

Section 319. 
25 

Buckley, 424 U.S. at 26-28. Yet, Congress did not 

advance this interest in enacting Section 319. Even 

with evidence of the most sincere congressional 

intent to compensate for some inequality, this Court 

has repeatedly rejected campaign finance reforms 

that simply seek to “level the playing field” for all 

candidates. See id. at 48-49, 54 (no relevant interest 

exists in “equalizing the relative ability of individuals 

and groups to influence the outcome of elections”); see 

also McConnell, 540 U.S. at 138 n.40, 227 (“Less 

rigorous scrutiny [applied] to contribution restrictions aimed at the prevention of corruption” but no 

deference given when a statute is aimed at equalizing 

resources in the “political marketplace.”). No decision by this Court—whether addressing contributions, disclosure requirements, or expenditure 

limits—has held otherwise. McConnell dismissed a 

previous challenge to, inter alia, Section 319 by 

individuals who asserted that the statute’s increased 

limits “deprive[d] them of an equal opportunity to 

participate in the election process based on their 

economic status.” 540 U.S. at 227. In finding that 

the appellants lacked standing, McConnell held that 

a claim of “curtailment of the scope of their 

participation in the electoral process” did not confer 

injury “fairly traceable” to the statute. Id. at 227, 

230 (citing FEC v. Mass. Citizens for Life, Inc.

(“MCFL”), 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.”)). Randall’s plurality 

opinion continues the thread. In invalidating the 

Vermont campaign finance law’s unconstitutionally 

restrictive contribution limits, the plurality opinion 

found that such limits exacted too great a burden on 

the First Amendment rights of contributors. See 
26 

126 S. Ct. at 2492 (contribution limits may create 

more harm than can be justified by purported 

anticorruption objectives). 

Congress has also asserted a related interest in 

countering negative public perception about the 

integrity of the electoral process and eliminating 

wealth as a prerequisite for running for office. 

Certainly, this a congressional interest that “directly 

implicate[s] ‘the integrity of our electoral process and, 

not less, the responsibility of the individual citizen 

for the successful function of that process.’” FEC v. 

Nat’l Right to Work Comm., 459 U.S. 197, 208 (1982) 

(quoting United States v. Automobile Workers, 352 

U.S. 567, 570 (1957)). This Court, however, has 

never separated that interest from the corruption 

concerns articulated in Buckley. WRTL explained 

that, “to 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.” 127 S. Ct. 

at 2672 (quoting Buckley, 424 U.S. at 26-27). 

Accordingly, this Court has found that uniform 

contribution limits, and to some extent expenditure 

limits, adequately address concerns about electoral 

integrity. See WRTL, 127 S. Ct. at 2672.

During debate, Senator McCain, the co-sponsor of 

BCRA, acknowledged that raising limits creates 

tension with preexisting regulations: 

Congress has concluded that contributions in 

excess of $2,000 present a risk of actual and 

apparent corruption. [Regulation of self-financers] 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 
27 

and apparent corruption—should be relaxed to 

mitigate the countervailing risk that they will 

unfairly favor those who are willing, and able, 

to spend a small fortune of their own money to 

win elections. 

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

(Sen. McCain). Congress provided a related justification for allowing some candidates to bypass the 

standard contribution scheme, “leveling the playing 

field” for all candidates, regardless of financial 

resources. Apparently, Congress determined that 

Buckley’s rejection of a ceiling on personal expenditures, in tandem with its acceptance of generally 

applied contribution limits, created a financial 

disparity for candidates who rely primarily on 

contributions. See 147 Cong. Rec. S2536, S2536 

(daily ed. Mar. 20, 2001) (Sen. Durbin) (discussing 

Buckley). As one Senator asserted, the provision is 

an “attempt to correct the inequities in the system 

and establish fairness in the process. . . . Proportionality is important because it really helps level 

the playing field from both directions so the wealthy 

candidate is not punished or is not inhibited. . . .” Id.

at S2538 (Sen. DeWine). 

Congress also expressed a concern about the 

“public perception that there is something inherently 

corrupt about a wealthy candidate who can use a 

substantial amount of his or personal resources to 

win an election.” Id. “Many people believe that 

candidates are attempting to buy their way into 

office.” 148 Cong. Rec. S2096, S2153 (daily ed. Mar. 

20, 2001) (Sen. Domenici). The district court agreed, 

holding that this rationale justified the unequal 

treatment imposed by Section 319: “[T]he reasonable 

premise of the Millionaires’ Amendment is that self-
28 

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.” J.S. App. 17a. 

Finally, members voiced concern that party recruitment of wealthy candidates prevents nonwealthy individuals from participating in elections. 

See 147 Cong. Rec. S2433, S2464 (daily ed. Mar. 19, 

2001) (Sen. Sessions). As one member stated: 

“Running for office has become increasingly expensive, forcing candidates to spend unacceptable 

amounts of time fundraising, and discouraging 

qualified challengers from running for office because 

they cannot afford the price of admission.” 148 

Cong. Rec. H339, H351 (daily ed. Feb. 13, 2002) 

(Rep. Kind). 

No member of Congress offered justification for 

Section 319’s compelled disclosure of self-financed 

candidates’ strategic spending plans. 

 2. None of the Equality Interests Expressed by Congress is Compelling. 

In disavowing any interest in the actuality or 

appearance of quid pro quo corruption, Congress 

disregarded the only sanctioned justification for 

regulation of political speech. Congress’s purported 

interest in “leveling the playing field” is neither a 

legitimate, nor compelling, governmental interest. 

Section 319 provides a conflicting message to 

candidates and voters. First, Congress asserts that 

the statute promotes “equality” by permitting an 

increase in contributed funds for some “underfunded” 

candidates. Yet for this limited purpose, it maintains 

that these increased limits—normally deemed “cor-
29 

ruptive”—actually decrease influence and buttress 

the integrity of the electoral process. Congress “put 

more money into the political system . . . [and] the 

effect of that money will be to enhance the first 

amendment.” 147 Cong. Rec. S2536, S2546 (daily ed. 

Mar. 20, 2001) (Sen. DeWine). However, Congress 

fails to explain how Section 319 transmutes 

purportedly corruptive contributions into ameliorative ones. Neither Congress nor the district court 

explains why a legitimate congressional response to 

“core” protected political expression is the authorization of contributions and expenditures which, in 

every other circumstance, allegedly increase the 

influence of donors and the appearance of corruption. 

If application of uniform limits addresses the 

corrupting influence of campaign donations, higher 

limits made available only to the candidates supposedly most susceptible to corruption cannot be 

the appropriate response to benign personal 

expenditures. 

By its operation, Section 319 also conveys Congress’s belief that more than $350,000 in personal 

expenditures in an election is deleterious speech. 

“[I]t is beyond dispute that the interest in regulating 

the alleged ‘conduct’ of giving or spending money 

‘arises in some measure because the communication 

allegedly integral to the conduct is itself thought to 

be harmful.” Buckley, 424 U.S. at 17 (quoting United 

States v. O’Brien, 391 U.S. 367, 382 (1968)). Yet, it is 

hard to reconcile Section 319’s burden on personal 

spending with Buckley’s holding that “the use of 

personal funds reduces the candidate’s dependence 

on the coercive pressures and attendant risks of 

abuse to which the Act’s contribution limits are 

directed.” Id. at 53. 
30 

Finally, Congress asserted that Section 319 lowers 

barriers to entry for candidates without substantial 

personal wealth. Again, because the statute raises or 

abolishes the ceilings on contributions to candidates 

and thus encourages more spending, it does not 

reduce the amount of money necessary (whether 

personal or contributed) to run a competitive campaign. It may, in some situations, encourage a 

spending battle between a candidate with a sizable 

personal fortune and one with a sizable war chest, to 

the detriment of those candidates without access 

to large amounts of money from either source. 

One Senator commented that any equality interest 

was specious: “The contest is between the wealthy 

with financial resources versus the people who have 

access and are dependent upon the wealthy with 

financial resources.” 147 Cong. Rec. S2536, S2544 

(daily ed. Mar. 20, 2001) (Sen. Wellstone). 

In sum, Section 319’s unmistakable message is 

that personal expenditures over $350,000 in a House 

race detrimentally effect voters and elections in 

general. Congress, by making this determination, 

has run afoul of this Court’s admonition in Brown v. 

Hartlage that the government’s “fear that voters 

might make an ill-advised choice does not provide the 

State with a compelling justification for limiting 

speech. It is simply not the function of government to 

‘select which issues are worth discussing or debating,’ 

Police Dept. of Chicago v. Mosley, 408 U.S. 92, 96 

(1972), in the course of a political campaign.” Brown 

v. Hartlage, 456 U.S. 45, 59-60 (1982). 
31 

 C. Section 319 Has a Negative Effect on 

Democracy Because It Does Not Serve 

an Anticorruption Interest and Increases the Public Perception of 

Corruption in the Electoral System. 

Congress expressed concern that the supposed 

increased participation of wealthy candidates creates 

the public perception that great wealth is a 

prerequisite for access to a House seat. However, 

Section 319 does not address this issue. Indeed, by 

raising the contribution limits for some candidates, 

the statute is likely to increase the total amount of 

money ultimately spent on campaigns. As such, 

Congress has exacerbated the problem that it 

purportedly tried to solve. 

Addressing quid pro quo corruption remains the 

only accepted justification for campaign finance 

restrictions. See WRTL, 127 S. Ct. at 2676-78 

(Scalia, J., concurring in part, concurring in the 

judgment) (discussing Supreme Court jurisprudence 

regarding corruption). 

Section 319 advances no anticorruption interest. 

See 148 Cong. Rec. S2096, S2142 (daily ed. Mar. 20, 

2002) (Sen. McCain) (Congress “relax[ed]” limits 

to “mitigate” influence of personal expenditures). 

Rather, the provision allows wealthy donors to 

subvert limits regulating both contributions to 

individual candidates and the donors’ aggregate 

contribution levels. The only way for candidates to 

garner Section 319’s extra-limit funds is to solicit 

more money from donors who have already reached 

the standard limits, and have likely made similar 

contributions in previous elections. But the entire 

justification for contribution limits is to free candidates from the influence of a few wealthy donors. 
32 

See, e.g., Buckley, 424 U.S. at 26-28. By allowing 

select candidates and donors to bypass the standard 

campaign finance regulations, Congress undermines 

its assertion that contribution limits are the best tool 

to combat the perception of corruption in the electoral 

system. 

Abolishing the coordinated party expenditure 

limits may also increase circumvention of individual 

contribution limits. Colorado II held that “[c]oordinated expenditures of money donated to a party are 

tailor-made to undermine contribution limits.” 533 

U.S. at 464; see also id. at 458-59. “[T]here is good 

reason to expect that a party’s right of unlimited 

coordinated spending would attract increased 

contributions to parties to finance exactly that kind 

of spending.” Id. at 464.12 Apart from any putative 

corruptive effect, this Court also received evidence 

that incumbents use coordinated communications to 

fund other candidates and “increase personal power 

and a claim to party leadership.” Id. at 460 n.23. 

Unlimited funds for coordinated communication 

accentuate this perk of incumbency. 

 D. In Scrutinizing Section 319, This Court 

Need Not Defer to Incumbents Who 

Legislate to Serve Their Own Interests.

Section 319 preserves the power of incumbents at 

the expense of fairness in the political system. “‘The 

first instinct of power is the retention of power,’ and 

those who hold public office can be expected to 

attempt to insulate themselves from meaningful 

electoral review.” Miller v. Cunningham, 2007 U.S. 

 12 The dissent in Colorado II expressed skepticism about the 

harmful effects of unlimited coordinated spending. See 533 U.S. 

at 481-82 (Thomas, J., dissenting) 
33 

App. LEXIS 29882, *13 (4th Cir. Dec. 20, 2007) 

(Wilkinson, J., dissenting from the denial of 

rehearing en banc) (quoting McConnell, 540 U.S. 

at 263 (Scalia, J., concurring in part, dissenting 

in part)). In the case of incumbents, and “under 

a Constitution that requires periodic elections, 

[retention of power] is best achieved by the suppression of election-time speech,” McConnell, 540 U.S. at 

263 (Scalia, J., concurring in part, dissenting in part), 

particularly the speech of candidates who possess 

the financial resources to challenge those in power. 

Generally, Congress is afforded some deference in 

its legislative determinations, but Section 319 does 

not deserve such respect: “Where a legislature has 

significantly greater institutional expertise, as, for 

example, in the field of election regulation, the Court 

in practice defers to empirical legislative judgment—

at least where that deference does not risk such 

constitutional evils as, say, permitting incumbents to 

insulate themselves from effective electoral challenge.” 

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

402 (2000) (Breyer, J., concurring) (emphasis added). 

It is not dispositive that, on its face, Section 319 

applies to all candidates. Despite the presence of 

higher expenditure limits for challengers, the 

Randall plurality opinion found that excessively low 

contribution limits imposed too great a financial 

burden on challengers to be constitutional. 126 S. Ct. 

at 2495-96. As Justice Scalia has observed: 

If all electioneering were evenhandedly prohibited, incumbents would have an enormous 

advantage. Likewise, if incumbents and challengers are limited to the same quantity of 

electioneering, incumbents are favored. In other 

words, any restriction upon a type of campaign 
34 

speech that is equally available to challengers 

and incumbents tends to favor incumbents. 

McConnell, 540 U.S. at 249 (Scalia, J., concurring in 

part, dissenting in part). The Committee on House 

Administration’s Adverse Report reveals Congress’s 

view of the regulation. The report, issued prior to the 

insertion of Section 319 into BCRA, laments its 

absence: “Senate candidates receive more preferential treatment in the form of a “millionaire’s 

amendment” . . . House candidates who find themselves in a race against a wealthy opponent receive 

no such relief.” H.R. Rept. No. 107-131 (Pt. 1), July 

10, 2001 (accompanying H.R. 2356). Although the 

provision applies evenhandedly, Congress had no 

ambivalence about its operation. 

 III. SECTION 319’S ENTIRE FINANCING 

SCHEME, ENACTED TO “LEVEL THE 

PLAYING FIELD,” VIOLATES THE FIRST 

AMENDMENT. 

 A. Personal Campaign Spending is “Core” 

First Amendment Speech. 

In regulating personal spending by candidates, 

Section 319 punishes what this Court has described 

as “political expression ‘at the core of our electoral 

process and of the First Amendment freedoms.’” 

Buckley, 424 U.S. at 39 (quoting Williams v. Rhodes, 

393 U.S. 23, 32 (1968)). Section 319 seeks to 

discourage the use of, and diminish the effectiveness 

of, personal campaign expenditures, ostensibly to 

“level the playing field” among opposing candidates 

for Congress. Under Justice Kennedy’s framework, 

last articulated in his concurrence in Republican 
35 

Party of Minnesota v. White, this Court would require 

no further analysis to strike down Section 319: 

[C]ontent-based speech restrictions that do not 

fall within any traditional exception should be 

invalidated without inquiry into narrow tailoring 

or compelling government interests. The speech 

at issue here does not come within any of the 

exceptions to the First Amendment recognized by 

the Court. “Here, a law is directed to speech 

alone where the speech in question is not 

obscene, not defamatory, not words tantamount 

to an act otherwise criminal, not an impairment 

of some other constitutional right, not an 

incitement to lawless action, and not calculated 

or likely to bring about imminent harm the State 

has the substantive power to prevent. No 

further inquiry is necessary to reject the State’s 

argument that the statute should be upheld.” 

The political speech of candidates is at the heart 

of the First Amendment, and direct restrictions 

on the content of candidate speech are simply 

beyond the power of government to impose. 

536 U.S. 765, 793 (2002) (Kennedy, J., concurring) 

(quoting Simon & Schuster, Inc. v. Members of N.Y. 

State Crime Victims Bd., 502 U.S. 105, 124 (1991) 

(Kennedy, J., concurring in judgment)). 

Even employing its traditional inquiry into 

tailoring and governmental interests, this Court has 

repeatedly invalidated regulations, like Section 319, 

that diminish core political speech. Again, this Court 

has never found that a governmental interest in 

equality alone constitutes a compelling justification 

for the infringement of political speech. 
36 

Buckley struck down a ceiling on personal expenditures that “clearly and directly interfere[d] with 

constitutionally protected freedoms”: 

The candidate, no less than any other person, 

has a First Amendment right to engage in the 

discussion of public issues and vigorously and 

tirelessly to advocate his own election and the 

election of other candidates. Indeed, it is of 

particular importance that candidates have the 

unfettered opportunity to make their views 

known so that the electorate may intelligently 

evaluate the candidates’ personal qualities and 

their positions on vital public issues before 

choosing among them on election day. 

424 U.S. at 52-53. Personal expenditure limitations 

impose a “substantial restraint on the ability of 

persons to engage in protected First Amendment 

expression.” Id. at 52. Further, “prevention of actual 

and apparent corruption of the political process does 

not support the limitation on the candidate’s 

expenditure of his own personal funds.” Id. at 53. 

Buckley also established that although contribution 

limitations implicate First Amendment rights of free 

speech and free association, restrictions on expenditures are “significantly more severe.” See id. at 19-

23. In contrast to ceilings for individual contributions, limits on personal expenditures actually 

“reduce[] the candidate’s dependence on outside 

contributions and thereby counteract[] the coercive 

pressures and attendant risks of abuse to which the 

Act’s contributions limitations are directed.” Id. at 

53. As recently as its plurality opinion in Randall, 

this Court reaffirmed that limitations on personal 

campaign spending infringe upon the core of political 

speech protected by the First Amendment. See 126 S. 

Ct. at 2490-91. 
37 

 B. Section 319’s Reporting Requirements 

Impose a Substantial Burden on 

Political Expression by Compelling 

Disclosure of Campaign Strategy. 

Section 319 burdens protected First Amendment 

rights to political expression by compelling intrusive 

and unilateral reporting obligations on candidates 

who contemplate spending substantial personal 

funds on their campaign. And upon exceeding 

the $350,000 personal expenditure threshold, the 

reporting burden grows heavier. 

No less than direct regulation, “compelled disclosure [of political activities], in itself, can seriously 

infringe” on First Amendment guarantees. Buckley, 

424 U.S. at 64. Buckley held that a governmental 

interest in disclosure of campaign finance data is 

permissible only when the requirement is necessary 

to: (1) enable the voting public to place each 

candidate along the political spectrum by alerting it 

to the interests to which the candidate is likely to be 

responsive; (2) deter both corruption and the 

appearance of corruption by exposing large contributions and expenditures to scrutiny; and (3) 

detect violations and enforce the previous two 

interests. 424 U.S. at 66-67. For example, in 

McConnell, this Court upheld BCRA’s notice and 

disclosure requirement for executory contracts for 

electioneering communications, 540 U.S. at 201, 

reasoning that the regulation addressed both a 

corruption interest and provided voters with information about the entity making the communication. 

Id. at 196-97. This Court has recognized however, 

that additional burdensome disclosure regulations 

may “create a disincentive” to engage in political 

speech. MCFL, 479 U.S. at 254 n.7. 
38 

Section 319’s Declaration of Intent satisfies no 

legitimate interests and is particularly burdensome. 

Self-financed candidates are required to disclose 

planned personal expenditures for both the primary 

and general elections. See 11 C.F.R. § 400.20(a)(2). 

In McConnell, this Court acknowledged that the First 

Amendment contemplates “some form of protection 

against premature disclosure of campaign strategy.” 

540 U.S. at 242-43. This information is protected 

speech, because candidates, including those who are 

merely contemplating spending personal funds, must 

reveal their strategy to all potential primary and 

general election opponents. This disclosure details 

a candidate’s most sensitive, confidential campaign 

information. Publishing the information assists 

opponents in tailoring their own fund-raising, expenditure, and campaign strategies, while self-financers 

receive no opportunity to anticipate their opponents’ 

financial plans. 

Moreover, a candidate’s Declaration of Intent must 

reveal the amount by which she “intends to exceed 

the threshold amount.” Id. § 400.20(b)(2).13 This 

requirement, at the campaign’s outset, forces the selffinanced candidate to publicize his campaign 

strategy. See AFL-CIO, 333 F.3d at 176 (Even where 

disclosure to the government may be necessary, 

“‘compelled public disclosure presents a separate 

first amendment issue’ that requires a separate 

justification.” (quoting Block v. Meese, 793 F.2d 1303, 

1315 (D.C. Cir. 1986)). Because self-financers are the 

only candidates reporting at the start of the 

campaign, disclosure does not enable the voting 

 13 As with all disclosures, this statement is subject to the 

FEC’s civil and criminal enforcement rules. See 2 U.S.C. 

§§ 437g(a)(5), (6), 437g(d)(1)(A). 
39 

public to “place each candidate in the political 

spectrum” by alerting it to the interests to which 

candidates are likely to be responsive. Buckley, 424 

U.S. at 67.14 If Congress intended to deter precampaign corruption, it did not achieve this end by 

subjecting only self-financed candidates’ strategies to 

public scrutiny. See id. 

The aggregate $10,000 expenditure disclosure 

requirement provides no informational benefit either, 

because, like all candidates, a self-financer files 

standard quarterly and pre-election FEC reports 

disclosing total personal expenditures. See 11 C.F.R. 

pt. 104. Yet contemporaneous notification of personal 

expenditures subjects contribution-financed 

candidates to a significant burden. In the 2006 

election, $10,000 represented a modest sum in 

competitive House campaigns. See The Campaign 

Finance Institute, Tbl. 3-1: The Cost of Winning an 

Election, 1986-2006, http://www.cfinst.org/data/pdf/ 

VitalStats_t1.pdf (last visited Feb. 19, 2008). In Mr. 

Davis’s race in 2006, the candidates combined to 

spend over seven million dollars. See supra p. 13. 

An aggregate $10,000 reporting threshold imposes a 

continual reporting burden on the self-financed 

candidate. Although all candidates do share some 

 14 It is particularly quixotic that a candidate who chooses to 

spend less than $350,000 need only indicate “$0” on her 

Declaration of Intent. See, e.g., Davis FEC Form 2, J.A. 103. 

This belies any informational rationale for early disclosure of a 

candidate’s intent to make personal expenditures. Full disclosure would require accurate statements of self-financing by 

all candidates, not merely those who may exceed the statute’s 

$350,000 threshold. 
40 

reporting burdens,15 the self-financed candidate bears 

the most intrusive responsibilities. 

The district court concluded that Mr. Davis’s 

complaint focused on Section 319’s “timing deadlines.” J.S. App. 16a. Burdensome as the 24-hour 

reporting rule may be, timing is not Section 319’s 

primary flaw. The self-financer’s unilateral 

disclosure of sensitive campaign strategy disclosure 

directly infringes his First Amendment rights. 

 C. Section 319’s Differential Treatment of 

Opposing Candidates Violates the 

First Amendment. 

To the extent that Section 319 burdens a selffinanced candidate’s campaign, or enhances her 

opponent’s campaign, the self-financed candidate’s 

political speech is impaired. In New York Times Co., 

376 U.S. at 270, this Court spoke of a “profound 

national commitment to the principle that debate 

on public issues should be uninhibited, robust, and 

wide-open.” This Court has subsequently held that 

“differential treatment . . . suggests that the goal of 

the regulation is not unrelated to suppression of 

expression, and such a goal is presumptively 

unconstitutional.” Minneapolis Star & Tribune Co. v. 

Minn. Comm’r of Revenue, 460 U.S. 575, 585 (1983) 

(rejecting tax on paper and ink that only applied to 

large newspapers); Mosley, 408 U.S. at 95-96 

(rejecting picketing ordnance that distinguished 

between peaceful labor picketing and other peaceful 

 15 In the last 20 days of a campaign, all candidates must 

report, within 48 hours, the receipt of all contributions of $1,000 

or more. See 11 C.F.R. § 104.5(f). 
41 

picketing).16 In the context of political speech, this 

Court has rejected any attempt to govern the 

messages of candidates for elected office: 

Th[e First] Amendment embodies our trust in 

the free exchange of ideas as the means by which 

the people are to choose between good ideas and 

bad, and between candidates for political office. 

The State’s fear that voters might make an illadvised choice does not provide the State with a 

compelling justification for limiting speech. It is 

simply not the function of government to “select 

which issues are worth discussing or debating” in 

the course of a political campaign. 

Hartlage, 456 U.S. at 60 (citation omitted). Section 

319 does not regulate candidates who do not expend 

personal funds on their election (or spend less than 

$350,000); it applies only when the candidate exceeds 

the threshold. “The First Amendment denies government the power to determine that spending to 

promote one’s political views is wasteful, excessive, or 

unwise.” Buckley, 424 U.S. at 57 (discussing FECA’s 

expenditure limits). 

Section 319 subjects candidates’ speech to 

differential regulation. Self-financed candidates use 

one set of contribution limits, while their opponents 

campaign with a higher ceiling. A candidate’s additional expenditure of personal funds allows her 

opponents to raise additional funds in excess of the 

standard limits. As such, a self-financed candidate’s 

speech amplifies her opponent’s voice as well. 

 16 The government has “no such authority to license one side 

of a debate to fight freestyle, while requiring the other to follow 

Marquis of Queensberry rules.” R.A.V. v. St. Paul, 505 U.S. 377, 

392 (1992). 
42 

Congress asserted that Section 319 does not 

penalize self-financed candidates because it imposes 

no ceiling on expenditures, and, by authorizing 

higher contributions for some candidates, similarly 

encourages more political speech. See 147 Cong. Rec. 

S2536, S2546 (daily ed. Mar. 20, 2001) (Sen. 

DeWine). This claim ignores the realities of any 

competitive election campaign. See also J.S. App. 13a 

(Davis “has failed to show that his speech has been 

limited in any way because of the benefits the 

Amendment provides his opponent.”). That the 

burden is not an absolute limit does not mitigate the 

harm. The First Amendment does not permit state 

regulation to burden speech so long as speakers 

“remain free to employ other means to disseminate 

their ideas.” Meyer v. Grant, 486 U.S. 414, 424 

(1988). While it may be less burdensome for some 

candidates to fund their own campaigns than to rely 

on contributions, that choice should be of no concern 

to the government. The First Amendment “protects” 

a self-financed candidate’s “right not only to advocate 

their cause but also to select what they believe to be 

the most effective means for so doing.” Id. “Such 

notions run afoul of ‘the fundamental rule of protection under the First Amendment, that a speaker has 

the autonomy to choose the content of his own 

message.’” WRTL, 127 S. Ct. at 2671-72 n.9 (quoting 

Hurley v. Irish-American Gay, Lesbian and Bisexual 

Group of Boston, Inc., 515 U.S. 557, 573 (1995)). 

In striking down FECA’s personal expenditure 

limits, Buckley rejected the “wholly foreign” idea 

“that government may restrict the speech of some 

elements of our society in order to enhance the 

relative voice of others.” 424 U.S. at 48-49. By 

providing an avenue for candidates to benefit from 

their opponents’ personal expenditures, Section 319 
43 

resembles the “right of reply” provision struck down 

in Miami Herald Publishing Co. v. Tornillo, 418 U.S. 

241, 256 (1974) (rejecting law granting candidates 

right to equal space to answer criticism and attacks 

by newspapers). The First Amendment does not 

permit Congress to choose sides in a political forum. 

See Bellotti, 435 U.S. at 785-86 (Where “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.”) (footnote 

omitted).

Application of this one-sided benefit will discourage 

or “chill” some self-financed candidates from making 

personal expenditures.17 In Day v. Holahan, 34 F.3d 

1356, 1366 (8th Cir. 1994), the Eighth Circuit struck 

down a similarly structured law affecting independent expenditures in Minnesota state campaigns. 

Under that provision, when an entity made independent expenditures on behalf of one candidate, his 

opponents received: (1) corresponding increases in 

their independent expenditure limits; and (2) 

matching funds from the state campaign commission, 

if they otherwise qualified. See id. at 1360. 

 17 It is true, as the district court recognized, that Mr. Davis 

spent significant personal funds on his campaigns, and, thus, 

may be hard-pressed to argue that Section 319 “chilled” his 

speech. J.S. App. 14a. However, despite the significant personal expenditures, his opponent outspent Mr. Davis by more 

than a 5 to 2 ratio. And despite this significant financial 

advantage, Section 319 authorized his opponent to collect 

approximately $1.4 million more in statutory benefits. See 

supra p.13. As such, it is not unreasonable for a candidate who 

has exceeded the threshold to curtail additional personal 

spending because of concerns that he will eventually spur his 

opponent to utilize Section 319’s benefits. 
44 

Assessing these benefits, the Eighth Circuit found 

that “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.” Id. As 

with the provision in Day, Section 319 improperly 

“enhance[s] the relative voice” of self-financed 

candidates’ opponents. Buckley, 424 U.S. at 48-49. 

Finally, candidates who are dissuaded by Section 

319 from making expenditures in excess of the 

$350,000 threshold are also burdened because they 

abandon their right to make unlimited expenditures 

on their own behalf. As such, Section 319 may reduce 

the “total quantum of speech,” Meyer, 486 U.S. at 

423, in an election.

 D. Section 319 is Subject to Strict 

Scrutiny Because it Burdens Political 

Expression. 

Because Section 319 regulates a self-financed 

candidate’s speech on his own behalf, it burdens 

political speech and is subject to strict scrutiny. See 

WRTL, 127 S. Ct. at 2664. Regulations of “pure 

speech” applying “evenhandedly to advocates of 

differing viewpoints” can constitute “direct regulation 

of the content of speech.” McIntyre v. Ohio Elections 

Comm’n, 514 U.S. 334, 345 (1995) (applying exacting 

scrutiny to anonymous speech ban); see also Burson 

v. Freeman, 504 U.S. 191, 198 (1992) (applying 

exacting scrutiny to law forbidding campaign-related 

speech within 100 feet of a polling place); see also id. 

at 212-13 (Kennedy, J., concurring); id at 217 

(Stevens, J., dissenting). This Court applies the 

“most exacting scrutiny to regulations that suppress, 
45 

disadvantage, or impose differential burdens upon 

speech because of its content.” Turner Broad. Sys., 

Inc. v. FEC, 512 U.S. 622, 642 (1994). For purposes 

of disclosure, there must be a “relevant correlation 

or substantial relation between the governmental 

interest and the information required to be 

disclosed.” 424 U.S. at 64 (footnotes and quotations 

omitted). Such scrutiny applies even when the 

“deterrent effect on the exercise of First Amendment 

rights arises . . . indirectly as an unintended but 

inevitable result of the government’s conduct in 

requiring disclosure.” Id. at 65. 

This Court should apply a content-based standard 

of review because Section 319 regulates speech based 

on its content. The trigger for regulation is selffunded, core political speech by a candidate promoting his candidacy. His funding of speech 

unrelated to his candidacy, at the same expenditure 

levels, would not trigger regulation. For example, he 

could produce a documentary or finance a publication 

on a political issue without being subjected to 

regulation. Nor would the provision apply to the 

funding of his campaign speech with an equivalent 

amount of contributed money. Therefore, Section 319 

imposes a content-based regulation. 

A “candidate’s expenditure of his personal funds 

directly facilitates his own political speech,” Buckley, 

424 U.S. at 52 n.58, and the candidate has a “First 

Amendment right to engage in the discussion of 

public issues and vigorously and tirelessly to advocate his own election.” Id. at 52. Both the content 

and the financial basis of a candidate’s communication constitute protected expression, particularly in the context of a winner-take-all election. 

In Mr. Davis’s campaigns—as with many candidates 
46 

who forgo substantial reliance on private contributions—his expenditures and public statements 

conveyed the complementary message that he will 

best represent the electorate because he is not 

beholden to individual, party, and committee donors. 

See Davis Second Declaration, J.A. 31, ¶ 5. As such, 

a self-financed candidate’s personal spending not 

only conveys his general electoral message, it is often 

an integral element of that message. 

It is irrelevant that Section 319 imposes no ceiling 

on personal expenditures. “When the purpose and 

design of a statute is to regulate speech by reason of 

its content, special consideration or latitude is not 

accorded to the Government merely because the law 

can somehow be described as a burden rather than 

outright suppression.” United States v. Playboy 

Entm’t Group, Inc., 529 U.S. 803, 826 (2000).18

Because Section 319 is a direct regulation of 

political speech at the “core” of the First Amendment, 

this case “‘involves a limitation on political expression subject to exacting scrutiny.’” McIntyre, 

514 U.S. at 346 (quoting Meyer, 486 U.S. at 420). As 

such, Section 319 can survive a constitutional 

challenge only if the government can show that it is 

narrowly drawn to serve a compelling state interest. 

See WRTL, 127 S. Ct. at 2664; Boos v. Barry, 

485 U.S. 312, 321 (1988); see also Bellotti, 435 U.S. 

at 786.19

 18 In his concurrence in Republican Party of Minn. v. White, 

Justice Kennedy maintained that all content-based restrictions 

“that do not fall within any traditional exception should be 

invalidated without inquiry into narrow tailoring or compelling 

government interests.” 536 U.S. at 793. 

19 Section 319 is also susceptible to a facial challenge. While 

the availability of expanded limits varies depending on the 
47 

 IV. SECTION 319 IS NOT NARROWLY 

TAILORED TO ADDRESS A COMPELLING STATE INTEREST. 

Because Section 319 burdens political speech at the 

core of the First Amendment it must be narrowly 

tailored to address a compelling state interest. 

WRTL, 127 S. Ct. at 2664. In scrutinizing state 

regulation of expression, this Court has applied 

“rigorous constitutional standards. Where First 

Amendment freedoms are at stake we have 

repeatedly emphasized that precision of drafting and 

clarity of purpose are essential.” Erznoznik v. 

Jacksonville, 422 U.S. 205, 217-18 (1975). To meet 

this standard, Section 319 must satisfy three 

conditions: it must be “necessary,” Buckley, 424 U.S. 

at 44-47; be neither “overinclusive” nor “underinclusive,” compare Simon & Schuster, Inc. v. 

Members of N.Y. State Crime Victims Bd., 502 U.S. 

105, 121-23 (1991) (regulation not narrowly tailored 

if it is overinclusive) with Florida Star v. B.J.F., 491 

U.S. 524, 540-41 (1989) (underinclusive); and 

constitute the least restrictive means available, 

Rutan v. Republican Party of Ill., 497 U.S. 62, 74 

(1990); MCFL, 479 U.S. at 262. The Eighth Circuit 

stated that the “seriousness with which the regulation of core political speech is viewed under the 

First Amendment requires such regulation to be as 

 

statute’s assessment of the candidates’ financial status, application of those benefits is governed by defined formulae. See 11 

C.F.R. § 400.10. Accordingly, this Court can readily discern the 

consequences of any hypothetical. No additional insight into 

Section 319 would be gained by a “case-by-case analysis of the 

fact situations.” Broadrick v. Oklahoma, 413 U.S. 601, 615-16 

(1973). 
48 

precisely tailored as possible.” Republican Party of 

Minnesota v. White, 416 F.3d 738, 751 (8th Cir. 2005). 

Congress expressed three related interests in 

enacting Section 319: (1) creating a “level playing 

field” for all House candidates; (2) combating the 

public perception that wealthy individuals can buy 

their way into the electoral process by spending large 

sums of their own money; and (3) lowering barriers of 

entry to the electoral system. See, supra p. 21. But 

while these may be weighty general concerns about 

the integrity of the political system, Section 319 is 

not narrowly tailored to address any of them. 

 A. Section 319 is Not Narrowly Tailored 

to Foster Equality. 

The district court afforded significant deference to 

Congress’s stated interests, an approach that does 

not satisfy the burdens demanded by strict scrutiny. 

See WRTL, 127 S. Ct. at 2664; see supra p. 21. 

Where “danger signs, that such risks [of incumbent 

advantage] exist (both present in kind and likely 

serious in degree), courts . . . must review the record 

independently and carefully with an eye toward 

assessing the statute’s ‘tailoring,’ that is, toward 

assessing the proportionality of the restrictions.” 

Randall, 126 S. Ct. at 2492 (plurality opinion). 

 1. Because it Accounts for Personal 

Expenditures and Contributed 

Funds Differently, Section 319 Is 

Underinclusive.

Section 319 does not foster equality because it 

does not accurately account for all sources of funds 

available to candidates. “Exemptions from an 

otherwise legitimate regulation of a medium of 
49 

speech may be noteworthy for a reason quite apart 

from the risks of viewpoint and content discrimination: They may diminish the credibility of the 

government’s rationale for restricting speech in the 

first place.” Ladue v. Gilleo, 512 U.S. 43, 52-53 

(1994); see also Florida Star, 491 U.S. at 540 (facial 

underinclusiveness of a statute “raises serious 

doubts” about whether the statute actually serves the 

state’s purported interest). 

a. Section 319 is Not Narrowly Tailored 

Because It Does Not Account for 

Significant Sources of Contributed 

Funds. 

In determining the extra-limit funds available to 

each candidate, the OPFA calculation measures 

every dollar employed by a substantial self-financer. 

The OPFA presumes, however, that all candidates 

begin the election cycle with no contributed funds 

on hand. Discussing this provision, Justice Scalia 

asked: 

Is it an oversight, do you suppose, that the socalled “millionaire provisions” raise the contribution limit for a candidate running against 

an individual who devotes to the campaign (as 

challengers often do) great personal wealth, but 

do not raise the limit for a candidate running 

against an individual who devotes to the 

campaign (as incumbents often do) a massive 

election “war chest”? 

McConnell, 540 U.S. at 249 (Scalia, J., concurring in 

part, dissenting in part). Mr. Davis’s opponent began 

the 2006 election cycle with a $1.15 million war 

chest, yet Section 319 authorized him to raise and 

spend about $1.4 million more under the increased 
50 

limits. See Reynolds FEC Form 3Z-1, J.A. 62; see also 

supra at p. 13. 

By ignoring war chests, and all contributions made 

during the year of the election, and by halving the 

funds that it does recognize, Section 319 ignores 

a significant proportion (arguably the majority) of 

contributions made to candidates. Given Congress’s 

concerns about “leveling the playing field,” these 

omissions are unjustifiable and do not evince narrow 

tailoring. “[A] law cannot be regarded as protecting 

an interest of the highest order, and thus as 

justifying a restriction upon truthful speech, when it 

leaves appreciable damage to that supposedly vital 

interest unprohibited.” Florida Star, 491 U.S. at 541-

42 (Scalia, J., concurring in part, concurring in 

judgment) (quotation and citation omitted); see also 

White, 536 U.S. at 783 (“[T]he announce clause still 

fails strict scrutiny because it is woefully underinclusive, prohibiting announcements by judges (and 

would-be judges) only at certain times and in certain 

forms.”). Section 319 does not accurately measure 

the relative wealth of opponents in the same race. To 

achieve even rough equality, the statute would have 

to account for all available sources of campaign funds 

in a consistent and contemporaneous manner. 

The statute also fails to reach candidates who 

make personal expenditures but remain below the 

$350,000 threshold. Congress did not explain why a 

candidate who spends $349,999 creates different 

equality concerns than one who spends one dollar 

more. 
51 

b. Section 319 Does Not Create 

Equality for Candidates Without 

Access to Large Donors or National 

Political Parties. 

For all of its discussion of equality, Section 319 

provides no aid for candidates who rely on small 

donors and do not have large national parties 

supporting them. In “leveling the playing field,” 

Congress did not address why these candidates need 

less assistance than those who can solicit extra-limit 

contributions. If this concept of equality is narrowly 

tailored, Congress could, in the name of fairness, 

adjust contribution limits for any group of candidates 

that it deemed worthy of assistance. 

c. Section 319 Does Not Regulate 

Political Expression from Other 

Sources. 

While Section 319 burdens personal spending for 

equality purposes in one’s own election campaign, it 

does not address individuals who spend personal 

funds on behalf of others. In Buckley, this Court 

found that independent expenditures merit the 

highest protection as “core First Amendment expression.” 424 U.S. at 48. While independent 

expenditures are not the functional equivalent of a 

candidate’s own speech, id. at 47, Section 319 treats a 

candidate’s message with less deference than that of 

an outside party. This cannot be what Buckley

intended in prescribing an “unfettered opportunity” 

for a candidate to “vigorously and tirelessly advocate 

. . . his own election.” Id. at 52-53. 

Section 319 also omits other sources of political 

communication that may influence the financial 

equities of an election. For example, it provides no 
52 

assistance for opponents of a candidate who receives 

a celebrity endorsement, which may generate 

significant public and media attention to a campaign 

and encourage additional contributions to the 

endorsed candidate. 

 2. Section 319 is Not the Least Restrictive 

Alternative for Regulating Political 

Speech.

Section 319 does not constitute the least restrictive 

alternative to addressing the “problem” of selffinanced candidates. “Absent a showing that the 

proposed less restrictive alternative would not be as 

effective . . . the more restrictive option preferred by 

Congress [can]not survive strict scrutiny.” Playboy 

Entm’t Group, Inc., 529 U.S. at 826 (reversing adult 

programming regulation because “[t]he record is 

silent as to the comparative effectiveness of the two 

alternatives”). 

For example, the Declaration of Intent disclosure 

identifying candidates who intend to self-finance is 

not the least restrictive alternative. See 11 C.F.R. 

§ 400.20. Given that Section 319 requires immediate 

notification once a self-financed candidate has 

reached the $350,000 threshold, id. § 400.21(b), it is 

unclear what purpose the earlier declaration serves. 

Nor does the $350,000 threshold constitute the least 

restrictive means to determine which candidates are 

too “wealthy” for an equitable election. Congress 

provided no basis for setting the threshold at 

$350,000. In 2002, when Congress enacted BRCA, 

that amount represented approximately one-third of 

the cost of the average winning House race. See 

supra The Campaign Finance Institute, Tbl. 3-1: The 

Cost of Winning an Election, 1986-2006 (average cost 
53 

of House race in 2002 was about $912,000). For the 

2006 election, the threshold amount covered about 

27% of the $1.26 million average cost. Id; see also 

supra p. 23 (discussing indexing). As the $350,000 

threshold declines in relative value in future election 

cycles, Section 319 will only become more and more 

restrictive. 

 V. SECTION 319 DOES NOT ADVANCE 

LEGITIMATE ELECTORAL INTERESTS 

IN THE SAME MANNER AS A PUBLIC 

FUNDING REGIME. 

The district court found that Section 319’s 

expanded limits “correct[] a potential imbalance in 

resources available to each candidate” and that 

Section 319 “is similar to statutes that permit higher 

contribution limits for candidates who agree to 

public financing of their campaigns.” J.S. App. 9a10a (citing precedent upholding public financing 

schemes). The decision ignores the significant 

functional distinction between the two funding 

regimes and disregards Section 319’s coercive effect, 

not present in any constitutional public funding 

provision. 

Buckley held that public funding generally does not 

infringe on the First Amendment because such 

schemes represent a “congressional effort, not to 

abridge, restrict, or censor speech, but rather to 

use public money to facilitate and enlarge public 

discussion and participation in the electoral process.” 

424 U.S. at 92-93; see also Daggett v. Committee on 

Governmental Ethics & Election Practices, 205 F.3d 

445, 464 (1st Cir. 2000) (Public funding “in no way 

limits the quantity of speech one can engage in or the 

amount of money one can spend engaging in political 
54 

speech, nor does it threaten censure or penalty for 

such expenditures.”). “Public funding for candidates 

of major parties is intended as a substitute for 

private contributions,” Buckley, 424 U.S. at 98, and 

as a “means of eliminating the improper influence of 

large private contributions furthers a significant 

governmental interest.” Id. at 96. 

Section 319 involves no public funds, providing, 

instead, an avenue for more private money to enter 

the system. A competitive candidate contemplating 

self-financing can either stay under the threshold 

and rely more heavily on contributed funds or exceed 

the threshold and authorize opponents to match 

personal expenditures with extra-limit funds. In 

either case, Section 319 likely increases the amount 

and influence of contributed funds in an election. In 

Mr. Davis’s 2006 race, for example, his opponent 

spent over $5 million in contributed funds to win 

reelection. See supra p. 13. Had he not exceeded the 

$350,000 personal expenditure threshold, Mr. Davis 

would have required millions of dollars in private 

contributions to remain competitive in the race. 

The district court correctly noted that a public 

funding system does not pose 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.” J.S. App. 12a. 

(quoting Buckley, 424 U.S. at 57 n.65 (“Just as a 

candidate may voluntarily limit the size of contributions he chooses to accept, he may decide to forgo 

private fundraising and accept public funding.”)). 

“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.” Rosentiel v. 

Rodriguez, 101 F.3d 1544, 1560-61 (8th Cir. 1996) 

(Lay, J., dissenting). Thus, the court held that 
55 

Section 319 does not infringe on speech because a 

candidate’s decision to exceed the personal spending 

threshold is a choice which provides a basis for the 

government to authorize his opponents to benefit 

from the expanded limits. However, Section 319 

provides a self-financed candidate with no beneficial 

option. It either coerces him to forgo political 

expression in the form of personal campaign expenditures or burdens his full exercise of that right. 

Buckley also held that a public funding scheme 

must provide “countervailing” benefits and burdens 

for all candidates. 424 U.S. at 94-96. “[A]cceptance 

of public financing entails voluntary acceptance of an 

expenditure ceiling” and refusal of, or the failure to 

qualify for, such funding frees candidates from these 

limitations. Id. at 95. See also Daggett, 205 F.3d at 

467 (The appropriate First Amendment benchmark is 

“whether the system allows candidates to make a 

‘voluntary’ choice about whether to pursue public 

funding.”) (quotation omitted); Vote Choice, Inc. v. 

DiStefano, 4 F.3d 26, 38-39 (1st Cir. 1993) (same). 

Unlike recipients of public funds, however, selffinanced candidates receive no countervailing 

benefits in return for their burdens. According to the 

district court, candidates who limit spending to the 

threshold amount benefit because their opponents do 

not receive funds at Section 319’s higher ceilings. 

J.S. App 11a-12a. In the context of the campaign 

finance system, imposition of the standard contribution limits on one’s opponents—limits that are 

uniformly applied to all other candidates—confers no 

benefit; it simply preserves the status quo. And from 

the perspective of the opponent of the self-financed 

candidate, Section 319 presents no countervailing 

burden in return for its benefits. Either her selffinancing opponent limits his personal expenditures 
56 

in their race or she receives access to Section 319’s 

extra-limit funds. 

 VI. BECAUSE SECTION 319 TREATS 

SIMILARLY SITUATED CANDIDATES 

DIFFERENTLY, IT VIOLATES THE 

FIFTH AMENDMENT’S EQUAL PROTECTION GUARANTEE. 

Section 319 violates the equal protection component of the due process clause of the Fifth Amendment because it subjects opposing candidates in the 

same election to different fundraising and disclosure 

obligations. This Court has “frequently condemned 

such discrimination among different users of the 

same medium for expression.” Mosley, 408 U.S. at 

96; see also Burson, 504 U.S. at 197 n.3. “Like other 

classifications, regulatory distinctions among different kinds of speech may fall afoul of the Equal 

Protection Clause.” Ladue, 512 U.S. at 51 n.9; Carey 

v. Brown, 447 U.S. 455, 459-71 (1980) (ordinance that 

exempted labor picketing from picketing ban violated 

Clause). “As in all equal protection cases . . . the 

critical question is whether there is an appropriate 

government interest suitably furthered by the 

differential treatment.” Mosley, 408 U.S. at 95.20

 

 A. Section 319 Treats Political Opponents 

Differently. 

The district court rejected the claim that Section 

319 violated to the Fifth Amendment, holding that 

 20 The government’s obligation to act neutrally among 

speakers is found not only in the concept of equal protection, but 

also in the First Amendment itself. Mosley, 408 U.S. at 96. 

Section 319’s differential burden on First Amendment speech 

similarly violates the Fifth Amendment. See supra pp. 40-44. 
57 

the “reasonable premise of [Section 319] is that selffinanced candidates are situated differently from 

those who lack the resources to fund their own 

campaigns” because a substantial self-financer is 

“subject to no limits, while his opponent has chosen 

to finance his campaign with contributions that are 

subject to statutory limits.” J.S. App. 17a-18a.21 The 

court cited Buckley’s rejection of minority party 

claims that public funding subjected them to unequal 

treatment. See id. However, Buckley expressly 

rejected the concept, at the heart of Section 319, that 

equalizing resources for candidates provides a 

legitimate basis for public funding. 424 U.S. at 98. 

Instead, Buckley permitted differential treatment 

because the provision merely “substitute[d] public 

funding for what the parties would raise privately 

and additionally impose[d] an expenditure limit.” 

424 U.S. at 96 n.129. The district court incongruously utilizes Buckley’s analysis to uphold a 

statute that, for purposes of equality, provides more 

funds to candidates without any corresponding 

diminution in funding from other sources. 

A self-financed candidate and her opponents are 

fundamentally similar because they are all competing 

for the same House seat. “All persons similarly 

circumstanced shall be treated alike.” See Plyler v. 

Doe, 457 U.S. 202, 216 (1982) (quotation omitted). 

Section 319 is based on the premise that one 

candidate’s personal expenditures distinguish her 

from her opponents. But, unlike in a public financing 

context, a self-financed candidate does not opt into a 

state-created financing regime, she simply exercises 

 21 The district court again relied on Buckley’s public financing 

discussion. 424 U.S. at 97-98. As discussed supra pp. 53-56, 

public financing has no relevance to this matter. 
58 

her First Amendment right to fund her own political 

expression. Her exercise of political speech in her 

campaign should not operate to create any distinction 

from other candidates. 

“Congress is fully entitled to consider the realworld differences between political parties and 

interest groups when crafting a system of campaign 

finance regulation.” McConnell, 540 U.S. at 188 

(rejecting argument that restrictions on political 

parties were discriminatory). In this matter, 

however, Congress ignored the real-world similarities 

among candidates. As detailed supra pp. 22-24, 

Section 319 does not accurately compare all funds 

utilized by competing candidates; it accurately 

measures only personal expenditures. Section 319 

ignores both the war chests that incumbents often 

accumulate and the election year contributions 

received in greater amounts by incumbents. Indeed, 

rather than considering “real-world differences,” 

Section 319 contemplates an alternative reality 

without these sources of money. Section 319 applies 

to a self-financed candidate who spends $350,000, but 

ignores an opponent who spends one dollar less. 

Only the latter is eligible for benefits, and the 

formulae for determining extra-limit funds would 

apply as if he had spent no personal funds at all. The 

“differential burdens,” Mosley, 408 U.S. at 95-96, 

imposed on self-financed candidates do not reflect the 

electoral reality. 

To the extent that a self-financed candidate also 

solicits contributions, the statute requires her to do 

so at standard levels, rather than at the increased 

limits applicable to her opponents. Again, this differential treatment occurs simply because one candidate 

has exercised her fundamental right to expend 
59 

personal funds on her own behalf. Her party 

committee may not coordinate with her, nor may her 

individual donors exceed their limits. The effect of 

this discrimination is to limit self-financed 

candidates’ First Amendment rights in a manner not 

faced by other candidates. 

 B. Section 319 Treats a Self-Financed 

Candidate Differently From Others 

Participants in the Political Process. 

A self-financed candidate is also treated differently 

from both individuals or committees who wish to 

make independent expenditures opposing her candidacy and other individuals or entities participating 

in the political process. Her spending enables her 

opponents to add to their own political speech. Yet 

personal expenditures by the entities opposing a selffinanced candidate, regardless of the source of those 

funds, provide no concomitant benefit to the selffinanced candidate. 
60 

CONCLUSION 

For the reasons stated above, this Court should 

find that, on its face, BRCA § 319’s disclosure 

requirements for self-financed candidates and authorization of extra-legal funds for their opponents 

unconstitutionally infringes on self-financed candidates’ First Amendment rights of political expression 

and violates their right to equal protection of the law 

under the Fifth Amendment. This case should be 

remanded for entrance of appropriate declaratory 

and injunctive relief. 

Respectfully submitted, 

ANDREW D. HERMAN * 

STANLEY M. BRAND

BRAND LAW GROUP, PC 

923 Fifteenth Street, N.W. 

Washington, D.C. 20005 

(202) 662-9700 

ELIZABETH F. GETMAN

SANDLER, REIFF & YOUNG, P.C. 

300 M Street, SE 

Suite 1102 

Washington, DC 20003 

* Counsel of Record Attorneys for Appellant 

February 20, 2008
1a 

ADDENDUM 

[LOGO] 

FEDERAL ELECTION COMMISSION 

Washington, DC 20463 

VIA FAX AND CERTIFIED FIRST CLASS MAIL 

Helen-Mary B. McGovern Aug. 16, 2006 

Brand Law Group 

923 Fifteenth Street, N.W. 

Washington, D.C. 20005 

RE: MUR 5726 

Jack Davis for Congress and Robert R. Davis, 

in his official capacity as treasurer 

Dear Ms. McGovern: 

After considering all the available evidence, the 

Office of the General Counsel is prepared to recommend that the Federal Election Commission (the 

“Commission”) find probable cause to believe that 

your client, Jack Davis for Congress and Robert R. 

Davis, in his official capacity as treasurer, violated 

2 U.S.C. §§ 441a-1(b)(1)(C) and 441a-1(b)(1)(D), provisions of the Federal Election Campaign Act of 1971, 

as amended, and 11 CFR §§ 400.21(b) and 400.22(b). 

Enclosed for your review is a brief stating the position of the General Counsel on the legal and factual 

issues of this matter. 

You may file a brief stating your position on the 

issues and replying to the brief of the General Counsel. Your brief should be submitted to the Secretary 

of the Commission (ten copies if possible) within 

fifteen days of receipt of this notice. Three copies of 

your brief should also be forwarded to the Office of 

the General Counsel, if possible. The General Counsel’s brief and any brief you submit will be considered 
2a 

by the Commission before proceeding to a vote of 

whether there is probable cause to believe a violation 

has occurred. 

If you are unable to file a responsive brief within 

fifteen days, you may submit a written request for an 

extension of time. All requests for extensions of time 

must be submitted in writing at least five days prior 

to the due date, and good cause must be demonstrated. In addition, the Office of the General Counsel ordinarily will not grant extensions greater than 

twenty days. 

The Commission may or may not approve the 

General Counsel’s probable cause recommendation. 

If the Commission finds probable cause to believe a 

violation has occurred, the Office of the General 

counsel will contact you and attempt for a period of 

not less than thirty days, hut not more than ninety 

days to settle this matter through conciliation. 

Should you have any questions, please contact 

Zachary Mahshie, the attorney assigned to this matter, at (202) 694-1650. 

Sincerely, 

Lawrence H. Norton 

General Counsel 

Enclosure 

Brief 
3a 

[LOGO] 

FEDERAL ELECTION COMMISSION 

Washington, DC 20463 

VIA FACSIMILE AND FIRST CLASS MAIL 

Helen-Mary B. McGovern Jan. 31, 2007 

Brand Law Group 

923 Fifteenth Street, N.W. 

Washington, D.C. 20005 

RE: MUR 5726 

Jack Davis for Congress and Robert R. Davis, 

in his official capacity as treasurer Jack Davis 

Dear Ms. McGovern: 

On January 19, 2007, the Federal Election Commission found that there is probable cause to believe 

your clients, Jack Davis and Jack Davis for Congress 

and Robert R. Davis, in his official capacity as treasurer, violated 2 U.S.C. § 441a-1(b)(1)(C) and 441a1(b)(1)(D), provisions of the Federal Election Campaign Act of 1971, as amended, and that Jack Davis 

for Congress and Robert R. Davis, in his official capacity as treasurer, violated 11 C.F.R. §§ 400.21(b) 

and 400.22(b) in connection with the failure to timely 

report expenditures made by Mr. Davis during the 

2004 general election campaign. 

The Commission has a duty to attempt to correct 

such violations for a period of at least 30 days and no 

more than 90 days by informal methods of conference, conciliation, and persuasion, and by entering 

into a conciliation agreement with a respondent. If 

we are unable to reach an agreement after 30 days, 

the Commission may institute a civil suit in United 

States District Court and seek payment of a civil 

penalty. 
4a 

Enclosed is a conciliation agreement that the Commission has approved in settlement of this matter. If 

you agree with the provisions of the enclosed agreement, please sign and return it, along with the civil 

penalty, to the Commission within ten days. I will 

then recommend that the Commission accept the 

agreement. Please make the check for the civil penalty payable to the Federal Election Commission. 

If you have any questions or suggestions for changes 

in the enclosed conciliation agreement, or if you wish 

to arrange a meeting in connection with a mutually 

satisfactory conciliation agreement, please contact 

Zachary Mahshie, the attorney assigned to this matter, at (202) 694-1650. 

Sincerely. 

Lawrence H. Norton 

General Counsel 

/s/ Rhonda J. Vosdingh

By: Rhonda J. Vosdingh 

Associate General Counsel 

for Enforcement 

Enclosure 

Conciliation Agreement 
5a 

BEFORE THE FEDERAL 

ELECTION COMMISSION 

In the Matter of MUR: 5726 

Jack Davis for Congress and 

Robert R. Davis, in his official 

capacity as treasurer Jack Davis 

CONCILIATION AGREEMENT 

This matter was initiated by the Federal Election 

Commission (“Commission”), pursuant to information 

ascertained in the normal course of carrying out its 

supervisory responsibilities. The Commission found 

probable cause to believe that Jack Davis violated 

2 U.S.C. § 441a-1(b)(1)(C) and 2 U.S.C. § 441a1(b)(1)(D), and Jack Davis for Congress and Robert R. 

Davis, in his official capacity as treasurer, violated 

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

11 C.F.R. § 400.21(b), and 11 C.F.R. § 400.22(b). 

NOW, THEREFORE, the Commission and Jack 

Davis, Jack Davis for Congress and Robert R. Davis, 

in his official capacity as treasurer, having duly 

entered into conciliation pursuant to 2 U.S.C. 

§ 437g(a)(4)(A)(i), do hereby agree as follows: 

I. The Commission has jurisdiction over Jack 

Davis, Jack Davis for Congress and Robert R. Davis, 

in his official capacity as treasurer (collectively, “the 

Respondents”) and the subject matter of this proceeding. 

II. Respondents have had a reasonable opportunity to demonstrate that no action should be taken in 

this matter. 

III. Respondents enter voluntarily into this agreement with the Commission. 
6a 

IV. The pertinent facts in this matter are as 

follows: 

1. Jack Davis for Congress is a political committee 

within the meaning of 2 U.S.C. § 431(4). It was the 

principal campaign committee for Jack Davis, a candidate for the Democratic Party’s nomination for the 

louse of Representative from the 26th Congressional 

District in New York in 2004. 

2. Robert R. Davis is the treasurer of Jack Davis 

for Congress. 

3. If a candidate makes an aggregate amount of 

expenditures from personal funds in excess of 

$350,000, the candidate or authorized committee 

shall file a notification of the expenditure within 24 

hours of exceeding the threshold (FEC Form 10). 

2 U.S.C. § 441a-1(b)(1)(C); 11 C.F.R. § 400.21(b). For 

each additional expenditure of $10,000 or more, the 

candidate is required to file additional notifications. 

2 U.S.C. § 441a-1(b)(1)(D); 11 C.F.R. § 400.22. 

4. These notifications must be filed with the Commission, each candidate in the same election, and 

the national party of each such candidate. 2 U.S.C. 

§ 441a-1(b)(1)(F); 11 C.F.R. §§ 400.21(b) and 400.22(b).1

 1

 A candidate’s personal expenditures could entitle his opponents to a 

threefold increase in the contribution limit under 2 U.S.C. § 441a(a)(1)(A) 

and a waiver of the limits on coordinated party expenditures under 2 

U.S.C. § 441a(d). See 2 U.S.C. § 441a-1(a)(1); 11 C.F.R. § 400.41. Candidates are entitled to higher limits when the “opposition personal funds 

amount” exceeds $350,000. The opposition personal funds amount is distinct from the threshold reporting amount of $350,000 because it takes 

into account the personal funds expenditures of the other candidates and, 

depending on the date of calculation, may also take into account the gross 

receipts of both candidates. 2 U.S.C. § 441a-1(a)(2); 11 C.F.R. § 400.10. 

A candidate with a significant “gross receipts advantage” is less likely to 

qualify for the higher limits. See 2 U.S.C. § 441a-1(a)(2)(B)(ii); 11 C.F.R. 
7a 

Although FEC Form 10 is signed by the committee 

treasurer, the candidate is responsible for ensuring 

that it is filed in a timely manner. See 11 C.F.R. 

§ 400.25. 

5. Each Form 10 filed with the Commission must 

include, among other things, “the total amount of 

expenditures from personal funds that the candidate 

has made, or obligated to make, with respect to 

an election as of the date of the expenditure that 

is the subject of the notification.” 2 U.S.C. § 441a1(b)(1)(E)(iii). 

6. Between March 18, 2004 and August 11, 2004, 

Mr. Davis expended $347,280 in personal funds on 

his campaign. 

7. On September 2, 2004, Mr, Davis made an 

$80,000 loan to the Committee, increasing his total 

personal expenditures to $427,280. By expending 

over $350.000, the Committee and candidate were 

obligated to file with the Commission and with Mr. 

Davis’s opponents an FEC Form 10, Notification of 

Expenditures from Personal Funds, within 24 hours 

of the threshold expenditure, or by September 3, 

2004. See 2 U.S.C. § 441a-1(b)(1)(C). The Committee 

never filed this Form 10 with the Commission. 

8. In addition, the Committee failed to file six additional FEC Form 10s regarding additional loans in 

excess of $10,000 made by Mr. Davis to the Committee on September 17, September 25, September 28, 

October 12, October 13, and October 22, 2004, in the 

amounts of $80,000, $100,000, $200,000, $150,000, 

$200,000, and $100,000, respectively. 

 

§ 400.10. Similarly, a candidate seeking higher limits may be limited 

by the amount of personal funds that he or she expended. See 11 C.F.R. 

§ 400.10.
8a 

V. Respondents committed the following violations: 

1. Respondent Jack Davis violated 2 U.S.C. 

§ 441a-1(b)(1)(C) by failing to file an initial notification disclosing that the candidate expended personal 

funds in excess of $350,000 and violated 2 U.S.C. 

§ 441a-1(b)(1)(D) by failing to file six additional notifications following additional expenditures of personal funds in excess of $10,000. 

2. Respondent Jack Davis for Congress and 

Robert R. Davis, in his official capacity as treasurer, 

violated 2 U.S.C. § 441a-1(b)(1)(C) and 11 C.F.R. 

§ 400.21(b) by failing to file an initial notification 

disclosing that the candidate expended personal 

funds in excess of $350,000 and violated 2 U.S.C. 

§ 441a-1(b)(1)(D) and 11 C.F.R. § 400.22(b) by failing 

to file six additional Form 10s following additional 

expenditures of personal funds in excess of $10,000. 

VI. Respondents will take the following actions: 

1. Respondents will pay a civil penalty to the Federal Election Commission in the amount of two hundred fifty-one thousand dollars, ($251,000), pursuant 

to 2 U.S.C. § 437g(a)(5)(A). 

2. Respondents will cease and desist from violating 

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

11 C.F.R. § 400.21(b), and 11 C.F.R. § 400.22(b). 

VII. The Commission, on request of anyone filing 

a complaint under 2 U.S.C. § 437g(a)(1) concerning 

the matters at issue herein or on its own motion, may 

review compliance with this agreement. If the Commission believes that this agreement or any requirement thereof has been violated, it may institute a 
9a 

civil action for relief in the United States District 

Court for the District of Columbia. 

VIII. This agreement shall become effective as of 

the date that all parties hereto have executed same 

and the Commission has approved the entire agreement. 

IX. Respondents shall have no more than thirty 

(30) days from the date this agreement becomes effective to comply with and implement the requirements 

contained in this agreement and to so notify the Commission. 

X. This Conciliation Agreement constitutes the 

entire agreement between the parties on the matters 

raised herein, and no other statement, promise, or 

agreement, either written or oral, made by either 

party or by agents of either party, that is not contained in this written agreement shall he enforceable. 

FOR THE COMMISSION: 

Lawrence H. Norton 

General Counsel 

BY: _______________________ 

Rhonda J. Vosdingh Date 

Associate General Counsel 

for Enforcement 

FOR THE RESPONDENTS: 

_______________________ 

Robert R. Davis Date 

Treasurer 
10a 

BEFORE THE FEDERAL 

ELECTION COMMISSION 

In the Matter of MUR 5726 

Jack Davis for Congress and 

Robert R. Davis, in his official 

capacity as treasurer Jack Davis 

CONSENT TO EXTEND THE TIME TO 

INSTITUTE A CIVIL LAW ENFORCEMENT SUIT 

As consideration for the Federal Election Commission’s agreement to hold MUR 5726 in abeyance 

until the constitutional challenge to the Millionaire 

Amendment to the Federal Election Campaign Act of 

1971, as amended, filed by Jack Davis has been fully 

litigated, Jack Davis for Congress and Robert R. 

Davis, in his official capacity as treasurer, and Jack 

Davis hereby consent to toll the statute of limitations 

for any civil enforcement action that the Federal 

Election Commission might institute against it in 

connection with MUR 5726 pursuant to 2 U.S.C. 

§ 437g(a)(6) for the period beginning on August 9, 

2007 and extending through the date of final disposition on the constitutional claim. 

This action will extend the time to institute a civil 

law enforcement suit for a commensurate period of 

time from the expiration date of the five-year statute 

of limitations found at 28 U.S.C. § 2462, or any other 

statute of limitations or repose that may be applicable in this matter. 

/s/ Andrew Herman 8/27/07

Counsel for Jack Davis for Date 

Congress and Robert R. Davis, 

in his official capacity as treasurer, 

and Jack Davis