UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

JACK DAVIS, 

 Plaintiff, 

 v. 

FEDERAL ELECTION COMMISSION, 

 Defendant. 

) 

) 

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

) 

) Three-Judge Court 

) 

) REPLY 

) 

) 

DEFENDANT FEDERAL ELECTION COMMISSION’S 

REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT

Lawrence H. Norton 

General Counsel 

Richard B. Bader 

Associate General Counsel 

(D.C. Bar # 911073) 

Colleen T. Sealander 

Assistant General Counsel 

Holly J. Baker 

 Attorney 

Claire N. Rajan 

Attorney 

 

FOR THE DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, D.C. 20463 

October 6, 2006 (202) 694-1650 

Case 1:06-cv-01185-HHK Document 17 Filed 10/06/2006 Page 1 of 25

TABLE OF CONTENTS 

 Page 

I. THE MILLIONAIRES’ AMENDMENT SERVES COMPELLING 

GOVERNMENTAL INTERESTS THAT SATISFY ANY 

STANDARD OF CONSTITUTIONAL REVIEW .................................. 1 

A. The Millionaires’ Amendment Is An Integral Part Of A 

 Statutory Scheme That Serves The Interest In Avoiding 

 Corruption..................................................................................... 1 

 

B. The Millionaires’ Amendment Also Serves Other Compelling 

Governmental Interests................................................................. 4 

C. The Millionaires’ Amendment Was Enacted To Reduce 

 The Disparate Impact Of The Act Favoring Self-Financed 

 Candidates..................................................................................... 5 

D. The Millionaires’ Amendment Provides Ample Opportunity 

 For A Self-Financing Candidate To Build A Competitive 

 Campaign Treasury....................................................................... 7 

II. THE MILLIONAIRES’ AMENDMENT DOES NOT LIMIT A 

CANDIDATE’S FREEDOM TO SPEND UNLIMITED AMOUNTS 

OF HIS PERSONAL FUNDS ON HIS CAMPAIGN............................ 10 

 III. THE DISCLOSURE REQUIREMENTS IN THE MILLIONAIRES’ 

 AMENDMENT ARE NOT UNCONSTITUTIONAL........................... 16 

 CONCLUSION................................................................................................... 21 

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TABLE OF AUTHORITIES 

 Page

CASES

Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990) ................................4 

Buckley v. Valeo, 424 U.S. 1 (1976)........................2, 4, 6, 7, 10, 11, 12, 15, 16, 18, 19 

Cornwell v. Hamilton, 80 F. Supp. 2d 1101 (S.D. Cal. 1999)........................................6 

Daggett v. Commission on Government Ethics and Election Practices, 

 205 F.3d 445 (1st Cir. 2000)...................................................................................13 

 

D. C. Federation of Civic Associations, Inc. v. Volpe, 434 F.2d 436 

 (D.C. Cir. 1970)................ ...................................................................................3 

FEC v. Colorado Republican Federal Campaign Committee (“Colorado II”), 

 533 U.S. 431 (2001)............................................................................................4, 19 

Florida League of Professional Lobbyists v. Meggs, 87 F.3d 457 

 (11th Cir. 1996).......................................................................................................10

FW/PBS, Inc. v. Dallas, 493 U.S. 215 (1990)..............................................................18 

Gable v. Patton, 142 F.3d 940 (6th Cir. 1998)..............................................................13 

Kennedy v. Gardner, 1999 WL 814273 (D.N.H. 1999) ...............................................13 

Kennedy v. Gardner, 1998 U.S. Dist. Lexis 23575 (D.N.H. 1998)..............................12 

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ..................................................17 

McConnell v. FEC, 540 U.S. 93 (2003) .......................................2, 3, 5, 7, 9, 17, 18, 20 

Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241(1974) ...................................12 

Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000)...............................2 

North Haven Board of Education v. Bell, 456 U.S. 512 (1982).....................................4 

NLRB v. Fruit and Vegetable Packers and Warehousemen, 

 377 U.S. 58 (1964)....................................................................................................3 

Randall v. Sorrell, __ U.S. __, 126 S. Ct. 2479 (2006) ..................................................2 

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Rosentiel v. Rodriguez, 101 F.3d 1544 (8th Cir. 1996)................................................13 

Rust v. Sullivan, 500 U.S. 173 (1991)..........................................................................10 

Vote Choice, Inc. v. DiStefano, 4 F.3d 26 (1st Cir. 1993) ...............................11, 12, 13 

Zuber v. Allen, 396 U.S. 168 (1969) ..............................................................................4 

STATUTES

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

 431-455 ......................................................................................................................1 

2 U.S.C. 441a(a)(1).......................................................................................................12 

2 U.S.C. 441a(a)(3).......................................................................................................12 

2 U.S.C. 441a-1(a)(3)....................................................................................................14 

2 U.S.C. 441a(d) ...........................................................................................................12 

2 U.S.C. 441a(f)............................................................................................................14 

LEGISLATIVE HISTORY 

147 Cong. Rec. S2536-02 (daily ed. Mar. 20, 2001)......................................................3 

MISCELLANEOUS 

Jack Davis campaign website 2006, http://www.jackdavis.org/new/press/2006.asp...18 

Jill Terreri, Reynolds’ campaign chest swells as Davis spends his own money, 

 NIAGARA GAZETTE, http://www.niagaragazette.com/siteSearch/apstorysection/local_story_198205331.html............14 

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I. THE MILLIONAIRES’ AMENDMENT SERVES COMPELLING 

GOVERNMENTAL INTERESTS THAT SATISFY ANY STANDARD OF 

CONSTITUTIONAL REVIEW 

Our opening brief demonstrated that the Millionaires’ Amendment serves compelling 

governmental interests that satisfy strict scrutiny, and accomplishes those purposes without 

placing any restrictions whatever on the constitutionally protected freedom of a wealthy 

candidate to spend as much of his personal wealth as he wants to support his own election 

campaign. Davis’s opposition brief fails to contravene either part of this showing. Instead, it 

relies largely upon irrelevant comparisons and mischaracterizations of the actual impact of the 

Amendment in the context of the statute as a whole. 

A. The Millionaires’ Amendment Is An Integral Part Of A Statutory Scheme That 

Serves The Interest In Avoiding Corruption 

Davis’s response to our showing (FEC Br. 3-16) that Congress enacted the Millionaires’ 

Amendment to serve several previously recognized compelling governmental interests is 

essentially to reiterate his claim (e.g., Opp. 1-5) that combating corruption is the only permissible 

governmental purpose in regulating campaign financing and that the Millionaires’ Amendment is 

unconstitutional because it has no “nexus” to combating corruption. In addition to being 

contrary to the cases we have already cited (FEC Br. 13) that identify other compelling

governmental interests that the Amendment serves, this argument is based upon a 

mischaracterization of the statute. 

The Millionaires’ Amendment is not a separate, freestanding statutory scheme. It is an 

amendment to the complex system of contribution restrictions contained in the Federal Election 

Campaign Act of 1971, as amended (“FECA” or “Act”), 2 U.S.C. 431-455. Apart from its 

disclosure provisions, which we discuss infra, the Millionaires’ Amendment’s only function is to 

1 

Case 1:06-cv-01185-HHK Document 17 Filed 10/06/2006 Page 5 of 25

relax in certain circumstances some, but not all, of the contribution limits already in the FECA.1

 

Indeed, the only substantive effect of the Amendment that Davis challenges is its relaxation of 

some of the generally applicable contribution limits for his opponent, but not for him. 

Thus, the Millionaires’ Amendment is nothing other than a mechanism for determining 

the level of the Act’s contribution limits applicable in certain election campaigns. Davis does 

not, and cannot, deny that those contribution limits serve the compelling governmental interest in 

avoiding both the reality and the appearance of corruption, as the Supreme Court has repeatedly 

held from Buckley v. Valeo, 424 U.S. 1, 25-27 (1976) through McConnell v. FEC, 540 U.S 93, 

94-95 (2003). Davis does not dispute that setting the levels of those contribution limits is a 

matter of legislative discretion, so long as they are not set so low that it is impossible to raise 

sufficient funds to be heard. Buckley, 424 U.S. at 30; Nixon v. Shrink Missouri Gov’t PAC, 528 

U.S. 377, 397 (2000); Randall v. Sorrell, __ U.S. __, 126 S. Ct. 2479, 2492 (2006).2

 But the 

anti-corruption purpose is served by whatever limits the legislature finds appropriate. 

Accordingly, the fundamental premise of Davis’s argument – that the provisions of the 

Millionaires’ Amendment that determine the applicable level of the contribution limits have no 

“nexus” to the governmental interest in avoiding corruption – is simply false. 

To be sure, Congress’s adjustment of the contribution levels was the result of balancing 

other compelling purposes with the underlying anti-corruption purpose of all the contribution 

 

1

 Davis complains that the Commission’s use of the word “relax” is “Orwellian” (Davis 

Opp. 16) “wordplay” (id. at 4). In fact, it was Davis himself who first described the 

Millionaires’ Amendment as “relaxing” the contribution limits (Complaint ¶¶ 5, 7, 14, 20, 22, 

44; Davis Br. 18), and he does so again in a different part of his Opposition (p. 28). Senator 

McCain also used this word to describe the Amendment (FEC Br. 14). So despite Davis’s heated 

rhetoric, there does not appear to be any serious dispute that this is an accurate description of the 

Amendment’s impact. 

2

 Davis does not assert that the general contribution limits applicable to him under the 

Millionaires’ Amendment are too low under this standard; indeed, he cannot make such an 

argument since Buckley upheld contribution limits that were much lower. 

2 

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limits in the Act. As we have shown (FEC Br. 11-16), Congress carefully considered how to 

accomplish those other compelling purposes without unduly weakening the anti-corruption 

purpose of the contribution limits. As a result, the Amendment does not apply unless and until a 

candidate spends more than $350,000 in personal funds; it relaxes the contribution restrictions 

only for political parties and individuals, not for corporations, unions, foreign nationals or 

political committees; and it retains limits even for individuals, albeit at a somewhat higher level. 

“This amendment deals with very regulated, very much disclosed hard money. It basically 

builds on the current system. Where there is most accountability in the system today, and where 

we have had the fewest problems today is with hard money and with individual donors.” 147 

Cong. Rec. S2536-02, S2546 (daily ed. Mar. 20, 2001) (Sen. DeWine). Davis quotes opponents 

of the Amendment (Opp. 2, 29-30) who argued that its relaxing of contribution limits was 

contrary to the spirit of the McCain-Feingold bill and would be bad policy. But Senator McCain 

himself supported the Amendment based on his conclusion that it represented an appropriate 

balance among important competing congressional purposes. See FEC Br. 14 (quoting Sen. 

McCain).3

 

3 Contrary to Davis (Opp. 27-31), the Commission has relied upon legislative history as 

evidence of Congress’s purposes in enacting the Millionaires’ Amendment, not regarding its 

construction. The Supreme Court has done the same. See, e.g., McConnell, 540 U.S. at 155, 

185 n.71. It is the statements of the proponents of the Amendment that explain the reasons 

Congress enacted it, not the views of opponents of the provision whose arguments failed to 

convince a majority to accept their position. See D.C. Fed’n of Civic Ass’ns, Inc. v. Volpe, 434 

F.2d 436, 445 n.40 (D.C. Cir. 1970) (“[t]he statements of proponents are much more likely to 

portray an accurate representation of Congress’ intent than are the views of the opponents”); 

NLRB v. Fruit & Vegetable Packers & Warehousemen, 377 U.S. 58, 66 (1964) (“[i]n their zeal 

to defeat a bill, [opponents] understandably tend to overstate its reach”). 

Davis’s reliance (Opp. 30) on a House committee report as “the most compelling piece of 

legislative history available” overlooks the fact that this report did not propose the Millionaires’ 

Amendment, which was instead introduced later during debate. See FEC Br. 4. A committee 

report is persuasive evidence of congressional intent when it “represents the considered and 

collective understanding of those Congressmen involved in drafting and studying proposed 

3 

Case 1:06-cv-01185-HHK Document 17 Filed 10/06/2006 Page 7 of 25

B. The Millionaires’ Amendment Also Serves Other Compelling Governmental 

Interests 

Davis barely responds (Opp. 5-6, 8) to our showing (FEC Br. 3-7, 12-13) of multiple 

interests served by the Amendment that have already been recognized as compelling. 4 The very 

makeup of the Congress is at stake in federal election campaigns, and public confidence in the 

integrity of American democracy and government depends upon Congress’s ability to maintain 

public confidence in the fairness and integrity of the system for choosing Congress’s 

membership. While Davis’s response does little to counter any of the compelling interests we 

discussed, Davis does not even question Congress’s conclusion, confirmed in Professor Steen’s 

expert report (FEC Ex. 8), that the statute as modified by Buckley had created an incentive for 

political parties to recruit candidates based on wealth rather than merit and had discouraged those 

without personal wealth from running for office.5

 Nor does Davis dispute that correcting these 

 

legislation,” Zuber v. Allen, 396 U.S. 168, 186 (1969), which was not the case here. When 

legislation is proposed during floor debate, it is the sponsors’ explanations, upon which we have 

relied, which are the “authoritative indications of congressional intent,” North Haven Bd. of 

Educ. v. Bell, 456 U.S. 512, 527 (1982). In any event, Davis misconstrues the language he 

quotes from the committee report; the disparity it notes is between Senate candidates and House 

candidates, not between self-funders and their opponents. 

4

 The Supreme Court has recognized that, in addition to avoiding the quid pro quo

corruption on which Davis focuses, Congress has a compelling interest in combating “a different 

type of corruption in the political arena: the corrosive and distorting effects of immense 

aggregations of wealth” that have “no correlation to the public’s support” for the spender’s 

political views. See Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 660 (1990). 

While Austin addressed expenditures by corporations, we have shown that Congress sought to 

address a similar public perception that the campaign process had been “distorted” by the 

“immense aggregations of wealth” used by wealthy candidates, whose personal funds (unlike 

contributed funds) have “no correlation to the public’s support” for the candidate’s views. Id.

5

 Davis objects (Response to FEC’s Statement of Material Facts ¶¶ 41 - 55) to Professor 

Steen’s expert report because it was “produced after” the Millionaires’ Amendment was adopted, 

but the Supreme Court has routinely relied upon such post-enactment expert reports in deciding 

constitutional challenges to the Act. See FEC v. Colorado Republican Federal Campaign 

Committee (“Colorado II”), 533 U.S. 431, 450, 451, 470 (2001) (relying on expert reports from

4 

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incentives serves compelling governmental interests; indeed, there can be no serious doubt that 

Congress has a compelling interest in trying to ensure that its statutes do not create perverse 

incentives that discourage the selection of candidates for Congress on the basis of merit and 

discourage otherwise meritorious candidates without personal wealth from even trying to run 

against wealthy candidates. Davis has nothing whatever to say about this compelling 

governmental interest for enacting the Millionaires’ Amendment, and the conclusion that a 

statute is fashioned to serve a compelling governmental interest is alone sufficient to find it 

facially constitutional under any standard of constitutional review. 6

C. The Millionaires’ Amendment Was Enacted To Reduce The Disparate Impact 

Of The Act Favoring Self-Financed Candidates 

In arguing that the Millionaires’ Amendment unfairly burdens his ability to engage in 

campaign speech using his own wealth, Davis once again relies upon a mischaracterization that 

ignores the Amendment’s context in the statute of which it is a part. As discussed more fully in 

our opening brief (FEC Br. 11-13), the FECA was originally designed to provide equal 

opportunities for opposing candidates to accumulate campaign funds by placing limits on all 

sources of funds, including the candidate’s personal wealth. After the invalidation of that limit 

 

Professors Corrado, Sorauf and Krasno); McConnell v. FEC, 540 U.S. 93, 124, 128, 146, 148, 

155, 156, 165, 168, 194 (2003) (relying on expert reports from Professors Mann, Sorauf, Krasno, 

Magleby and Green). 

6 Contrary to Davis’s assertions (Opp. 5), there is nothing “paternalistic” about Congress’s 

interest in maintaining public confidence in the fairness and integrity of the electoral process. 

We have shown that the public perception that immense personal wealth can sometimes 

determine who is nominated and elected to office (see FEC Facts ¶¶ 12-13, 18, 21-23, 34, 38, 40) 

is not an illusion; a party’s recruitment of candidates on the basis of wealth rather than merit, for 

example, has nothing to do with voters being “taken in by an inferior candidate in a contested 

election based solely on that candidate’s wealth” (Davis Opp. 5). The Millionaires’ Amendment 

is designed to provide candidates opposing self-financers an opportunity to accumulate funds to 

get their message to voters; it is not intended to encourage voters to cast their votes for or against 

any candidate.

5 

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in Buckley, however, there was a class of candidates who did not need to rely upon statutorily 

limited sources of campaign contributions because of their extreme personal wealth, which they 

were found to have a constitutional right to spend on their campaigns without limit. 

Thus, prior to enactment of the Millionaires’ Amendment, there was a substantial 

disparity in the effect of the statute’s contribution limits on wealthy candidates who could 

finance their own campaigns with personal wealth unlimited by the statute, and the effect on 

candidates whose campaigns were entirely dependent upon contributions restricted by the statute. 

While the contribution restrictions on their face applied equally to both classes of candidates, the 

wealthy candidates relying on their own personal wealth did not need such contributions to 

finance their campaigns. 7 Davis’s portrayal of the Millionaires’ Amendment as creating an 

unfair disparity ignores the fact that the Amendment was designed to ameliorate a disparity in 

campaign finance regulation that was already built into the statute. 

Accordingly, the question before the Court is not whether there can be a disparity in the 

statute’s treatment of opposing candidates, as Davis would argue, for disparity is inherent in the 

constitutional right of wealthy candidates to use unlimited amounts of their own money. Instead, 

the question is whether Congress can adjust the statute to reduce, if not eliminate, the existing 

disparity otherwise favoring wealthy candidates willing to use their personal wealth to finance 

their campaigns. While it is understandable that Davis prefers the previous disparity that 

benefited wealthy self-financers like himself, he has cited no authority whatever indicating that 

reducing this benefit is beyond Congress’s authority. 

 

7

 “‘E]quality can be denied when government fails to classify, with the result that its rules 

or programs do not distinguish between persons who . . . should be regarded as differently 

situated. So it was with the majestic equality of French law, which Anatole France described as 

forbidding rich and poor alike to sleep under the bridges of Paris.’” Cornwell v. Hamilton, 80 F. 

Supp. 2d 1101, 1103 n.2 (S.D. Cal. 1999) (quoting LAURENCE H. TRIBE, AMERICAN 

CONSTITUTIONAL LAW 1438 (2d ed. 1988)). 

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As we have shown, the Act still does not entirely eliminate the advantage that selffinancing candidates have over candidates without personal wealth because even under the 

Millionaires’ Amendment they alone have a ready source of campaign funds that is not limited at 

all by the statute. The Supreme Court has repeatedly confirmed that “Congress is fully entitled 

to consider . . . real-world differences . . . when crafting a system of campaign finance 

regulation.” McConnell, 540 U.S. at 188. Davis’s claim that his acknowledged constitutional 

right, undiminished by the Millionaires’ Amendment, to spend an unlimited amount of his 

personal wealth on his campaign somehow precludes Congress from adjusting his opponent’s 

contribution limits to reduce this real-world disparity in their opportunities to communicate with 

the electorate has no support in the Buckley decision, or in any other case he cites. 

D. The Millionaires’ Amendment Provides Ample Opportunity For A SelfFinancing Candidate To Build A Competitive Campaign Treasury 

Davis again asks the Court to ignore the effect of the statute as a whole when he argues 

(Opp. 17) that the Court should compare the amount of a self-financer’s personal expenditures 

with the amount of an opponent’s funds representing contributions from supporters under the 

statutory limits. Under the actual operation of the statute, all candidates are equally entitled to 

raise as much money as they can in contributions from supporters, subject to the general 

contribution restrictions in the statute. This may result in one candidate accumulating much 

more money than the other, but that result is not unfair because in these circumstances “the 

financial resources available to a candidate’s campaign, like the number of volunteers recruited, 

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

56. 

Contrary to Davis’s argument (Opp. 2, 6-7, 16), Congress has not sought in the 

Millionaires’ Amendment to level the playing field in the sense of trying to ensure that both 

7 

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candidates have equal financial resources, but only in the sense of providing all candidates with a 

fair opportunity to accumulate a competitive campaign treasury. The effect of the Millionaires’ 

Amendment is only to provide a candidate opposing a self-financing candidate additional sources 

that he can solicit for campaign funds, which in almost all circumstances cannot total more than 

the amount of personal wealth the self-financer diverts to his own campaign treasury. As with 

the general contribution limits themselves, the opposing candidate could end up with more or 

less funds overall to spend than the self-financer; the Amendment provides an opposing 

candidate only an opportunity to solicit funds from individuals in excess of the normal 

contribution limits (and/or coordinated expenditures from his party) to match the personal wealth 

actually used by the self-financer, which is not subject to contribution limits at all. 

Davis’s comparisons (most notably in the LaTourette example (Opp. 25-27), discussed 

infra, p. 10 n. 8) between a self-financer’s personal expenditures and his opponent’s entire 

campaign fund is, therefore, inapt. The opponent’s campaign treasury is made up of statutorily 

limited contributions, and the statute permits the self-financer an equal opportunity to raise such 

contributions. Accordingly, the relevant comparison is between the self-financer’s opportunity 

under the statute to use both contributions under the general limits and personal wealth to finance 

his campaign, and the opponent’s opportunity to use both contributions under the general limits 

and contributions under the increased limits of the Millionaires’ Amendment (if anyone makes 

such contributions) to finance his campaign. Because in most circumstances the total amount of 

contributions that the opponent of a self-financed candidate can accept under the increased limits 

will not exceed the amount of the self-financed candidate’s personal expenditures, the statute as 

a whole gives the self-financer an opportunity to accumulate campaign funds that is at least equal 

to that of his opponent. 

8 

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Davis’s own decision not to seek substantial amounts of contributions does not alter this 

conclusion. Davis is entitled to solicit contributions under the statutory limits to the same extent 

as his opponent and he can use those contributions in addition to his personal wealth to finance 

his campaign. His decision to forgo such contributions, whatever his motive for doing so, does 

not make the statute unconstitutional. Any resulting inequality in funds “stems not from the 

operation of [the Millionaires’ Amendment], but from [his] own personal ‘wish’ not to solicit or

accept large contributions, i.e., [his] personal choice.” McConnell, 540 U.S. at 228. Such a 

claim of competitive injury is not “‘fairly traceable’ to [the statute].” Id.

This fuller picture of the Act’s entire effect on the fundraising opportunities of competing 

candidates also demonstrates why Davis’s criticism of the details of the calculations involved in 

the application of the Millionaires’ Amendment are actually irrelevant to this facial constitutional 

challenge. Most of those criticisms focus on the statute’s treatment of funds raised before the 

election year, a provision that we have shown (FEC Br. 30-31) was adopted to limit the benefit 

of the Millionaires’ Amendment for incumbents who have an advantage in raising funds before 

the campaign year begins. We have shown (FEC Br. 32) that incumbents have only been 

involved in a small minority of the campaigns subject to the Millionaires’ Amendment, and even 

in those few campaigns very little additional money has actually been raised under the 

Amendment by the incumbent. 

Accordingly, even if it is assumed that the Millionaires’ Amendment could one day be 

found unconstitutional in its application to a campaign in which an incumbent is shown to have 

actually obtained the sort of unfair advantage Davis hypothesizes, such a possibility cannot 

support the facial challenge to the statute before this Court. “The fact that [the statute] might 

operate unconstitutionally under some conceivable set of circumstances is insufficient to render 

9 

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[it] wholly invalid.” Rust v. Sullivan, 500 U.S. 173, 183 (1991) (citation omitted). Davis’s 

explicit abandonment of any reliance upon a disparity of treatment between incumbents and selffinancing challengers (Opp. 33) further confirms that the calculation provisions that Davis 

previously argued would unfairly benefit incumbents against self-financed challengers are 

irrelevant to his facial challenge to the Millionaires’ Amendment.8

II. THE MILLIONAIRES’ AMENDMENT DOES NOT LIMIT A CANDIDATE’S 

FREEDOM TO SPEND UNLIMITED AMOUNTS OF HIS PERSONAL FUNDS 

ON HIS CAMPAIGN 

We have demonstrated that the Millionaires’ Amendment imposes no restriction on a 

self-financing candidate’s right to use an unlimited amount of his own funds for campaign 

speech. The Amendment also does not penalize Davis because it makes no change in the 

amounts he may raise under contribution limits that have been in effect for nearly 30 years. 

Rather than imposing any restriction on Davis, the Millionaires’ Amendment only provides to his 

opponent the opportunity to raise funds from individuals and political parties, subject to relaxed 

limits, and thus it seeks to increase speech and encourage public participation in the political 

process, rather than restrict Davis’s speech. This approach does not run afoul of Buckley’s 

 

8

 Unable to find a campaign in which an incumbent has actually used the Millionaires’ 

Amendment to the extent he alleges is possible, Davis dwells at length (Opp. 25-27) on the 2004 

LaTourette campaign, in which he argues that LaTourette could have raised enough additional 

money under the Millionaires’ Amendment to overwhelm his opponent’s personal spending, 

even though he did not actually do so. Even if LaTourette had raised the full amount he was 

allowed, LaTourette’s opponent also could have raised contributions under the statutory limits to 

augment her own personal campaign fund, but either chose not to do so or lacked sufficient 

supporters willing to contribute. This example also raises at least the theoretical possibility that 

the Millionaires’ Amendment is self-limiting in practice, because incumbents with particularly 

large campaign treasuries will not feel the need to seek additional funds that can only be spent on 

a campaign in which they are already well enough financed. In either case, Davis’s exclusive 

reliance upon this hypothetical example, in the face of record evidence that no incumbent has 

actually obtained the overwhelming fundraising advantage Davis postulates, provides no support 

for his facial challenge to the statute. See Florida League of Prof’l Lobbyists, Inc. v. Meggs, 

87 F.3d 457, 461 (11th Cir. 1996) (“As for the League’s hypothesized, fact-specific worst case 

scenarios, we also decline to accept the facial challenge based on these perceived problems”).

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rationale, for that decision held only that leveling the playing field is an insufficient basis for 

placing limits on a candidate’s use of his own funds for speech; Buckley did not suggest that 

Congress could not legitimately serve this purpose by encouraging more speech by candidates 

lacking personal wealth.9

Davis’s response to the Commission’s showing that his First Amendment right to spend 

his own money is not restricted by the language of the Millionaires’ Amendment rests entirely 

upon a misreading of the First Circuit’s decision in Vote Choice v. DiStefano, 4 F.3d 26 (1st Cir. 

1993). Davis claims that the Millionaires’ Amendment punishes him for spending his own 

money on his campaign because “‘any benefit conferred on one candidate is the effective 

equivalent of a penalty imposed on all other aspirants for the same office.’” Opp. 3-4 (quoting 

Vote Choice, 4 F.3d at 38). But the Vote Choice court said this only in explaining why the 

allegation of punitive effect was a meaningless tautology, finding that it “proves too much” in 

the context of a “head-to-head election [which] has a single victor.” Id. Instead, in reviewing a 

campaign finance law that imposed a $2,000 contribution limit on qualifying publicly funded 

candidates, and a $1,000 limit on non-qualifying candidates, the court looked to whether there 

was anything “penal” about the $1,000 contribution limit and whether there was any legislative 

history or other evidence to suggest that the provision had a punitive purpose. Finding none, the 

court rejected the plaintiff’s First Amendment claim, concluding “[w]here, as here, a non-

 

9 Davis claims (Opp. 11-12) that if Congress is justified in raising the contribution limits 

for the opponents of self-financing candidates, “it could decide that the independent expenditures 

of registered Libertarians exerted too much influence over elections and that these superior 

expenditures ‘drowned out’ opposing views,” and Congress could “then selectively ‘relax’ limits 

on a candidate of virtually any other stripe to ‘level the playing field.’” Such a statute would 

plainly represent impermissible viewpoint discrimination which, we have already explained, the 

Millionaires’ Amendment does not. See FEC Br. 21 n.12. 

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complying candidate suffers no more than ‘a countervailing denial,’ the statute does not go too 

far.” Id. at 39 (quoting Buckley, 424 U.S. at 95).10

In this case, Davis does not dispute that the contribution limits that apply to his own 

fundraising – the $2,100 individual limit in 2 U.S.C. 441a(a)(1), the party coordinated 

expenditure limits in 2 U.S.C. 441a(d), and the overall individual limit in 2 U.S.C. 441a(a)(3) – 

are constitutional. Davis also has not identified any legislative history that could support a claim

that Congress intended to penalize self-financing candidates when it adopted the Millionaires’ 

Amendment, nor has he submitted any empirical evidence suggesting that the Amendment has 

had any practical effect on the campaigns of self-financing candidates that could be viewed as a 

penalty for engaging in such speech. Thus, if Vote Choice is as dispositive as Davis asserts, it 

actually supports the Commission’s position that the Millionaires’ Amendment imposes no 

cognizable penalty on his exercise of First Amendment rights.11

 

10 Davis’s reliance (Opp. 6 n.3, 12) upon Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 

241 (1974) is equally misplaced. There the Supreme Court held unconstitutional a right-ofaccess statute that forced a newspaper to publish responding views with which it disagreed. The 

Court found that the statute compelled speech from the newspaper against its will and penalized 

the newspaper by imposing additional costs and directions on how to use its space. The Court 

explained that a newspaper faced with these burdens “might well conclude that the safe course is

to avoid controversy,” and so “political and electoral coverage would be blunted or reduced.” Id.

at 257 (footnote omitted). The Millionaires’ Amendment, by contrast, does not require the selffinancing candidate “to [say] that which [he] would not otherwise [say],” see id. at 256, make 

him bear any extra costs, or intrude in any way into his control over what and how much he says 

on his own behalf. Id. 

11 Davis also appears to argue (Opp. 15) that the Millionaires’ Amendment constitutes a 

penalty because it is like the statute at issue in Kennedy v. Gardner, 1998 U.S. Dist. Lexis 23575 

(D.N.H. 1998), in which candidates who did not agree to expenditure limitations were compelled 

to disclose that fact on petitions they had to file in order to appear on the ballot. Id. at *1. In that 

case, however, the district court’s conclusion was based on the restriction imposed by the statute 

on the non-participating candidate’s petitioning to qualify for the ballot, which the court 

concluded was “coercive.” Id. at *12. In contrast, the Millionaires’ Amendment places no 

restriction on Davis’s right to raise contributions – it permits Davis to accept contributions from

others in the same amounts as he would have been permitted had he not chosen to spend more 

than $350,000 of his personal funds in support of his campaign. 

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Instead of explaining how the Millionaires’ Amendment operates to suppress any of his 

own speech, Davis seeks only to distinguish the cases the Commission has cited (see n.12, infra) 

in which other federal courts have determined that similar statutes impose no First Amendment 

burden. Davis argues that these cases involved a “quid pro quo” in return for restricting a 

candidate’s First Amendment rights, while the Millionaires’ Amendment provides no “quo” for 

self-financing candidates. In fact, these cases involved statutes providing higher contribution 

limits for those candidates who agreed to accept expenditure limits; none of them involved any 

quid pro quo for the opponents of the candidates receiving the higher limits, who would be the 

analogs to the self-financing candidates in this case. Thus, Davis’s claim (Opp. 15) that the 

Millionaires’ Amendment “extracts only a ‘quid’” from him, with no corresponding “quo” does 

not distinguish the cases cited by the Commission. In all these cases, the claim that Davis makes 

here – that his First Amendment rights are burdened because his opponent receives a benefit or 

incentive from the statute – was squarely rejected by the courts.12

It is not any supposed “bargain” in the Millionaires’ Amendment that is “illusory,” as 

Davis claims (Opp. 16); what is illusory is the burden on his First Amendment rights. Other than 

 

12 See Daggett v. Commission on Gov’t Ethics and Election Practices, 205 F.3d 445, 464-

65 (1st Cir. 2000) (upholding statute that provided public matching funds to qualifying candidate 

when independent expenditures were made against him or on behalf of his non-qualifying 

opponent); Gable v. Patton, 142 F.3d 940, 948 (6th Cir. 1998) (where the statute provided 2-1 

public matching funds for candidates who agreed to limit campaign expenditures, upholding a 

provision that waived the expenditure limit when a non-participating opponent raised funds in 

excess of that amount); Rosenstiel v. Rodriguez, 101 F.3d 1544, 1551 (8th Cir. 1996) (where the 

statute provided public financing to candidates who, inter alia, agreed to limit overall 

expenditures, upholding a “waiver” provision that raised the agreed-to expenditure limitation 

when a privately financed opponent spent in excess of the limit); Vote Choice, 4 F.3d at 39 

(upholding statute that permitted candidates who agreed to accept public funding and limit their 

expenditures to accept $2,000 contributions, while limiting non-participating opponents to 

accepting $1,000 contributions); Kennedy v. Gardner, 1999 WL 814273, *8 (upholding statute 

that permitted candidates who agreed to limit overall expenditures to accept $5,000 contributions 

and limited non-participating opponents to accepting $1,000 contributions).

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the reporting obligations contained in the Millionaires’ Amendment, the only provision of law 

that applies to Davis himself that is relevant to this case is 2 U.S.C. 441a(f), which requires him

to abide by the generally applicable contribution limits. While it is true that Davis’s opponent is 

permitted to accept some contributions under more relaxed limits, Davis does not really want an 

equivalent opportunity to raise contributions under higher limits since he has made a campaign 

issue out of his lack of interest in receiving any contributions. See Jill Terreri, Reynolds’ 

campaign chest swells as Davis spends his own money, NIAGARA GAZETTE, http://www.niagaragazette.com/siteSearch/apstorysection/local_story_198205331.html. Instead, what he wants is to 

reduce the amount of contributions that his opponent is permitted to accept in order to reduce his 

opponent’s ability to speak and to retain for himself the campaign advantage of his personal 

wealth. Thus, it is Davis who is seeking to restrict campaign speech and Congress that has 

sought to expand it. 

The public financing cases we have cited held that even statutes that directly provided 

public funds to qualifying candidates did not unconstitutionally restrict the speech of a nonqualifying opponent (FEC Br. 19-20). The Millionaires’ Amendment does not, however, go that 

far in assisting the self-financing candidate’s opponent. The Amendment does not give any 

public funds or other direct support to any candidate, as the public financing statutes at issue in 

those cases did. At most, the Millionaires’ Amendment permits a candidate opposing a selffinancer the opportunity to solicit additional contributions in increased amounts and to accept 

party coordinated expenditures in an increased amount. See 2 U.S.C. 441a-1(a)(3). The 

opposing candidate can obtain no increased contributions under the Amendment unless he can 

convince contributors to give that much more to his campaign, and he can receive no increased 

coordinated expenditures unless his party has the money to spend and is willing to spend it on his 

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campaign. The data obtained since the Millionaires’ Amendment went into effect indicates that 

party committees have so far been unwilling or unable to make any increased coordinated 

expenditures in such campaigns (FEC Facts ¶ 53), and that no candidate has come close to 

actually being able to raise the amount he is eligible to under the provision. Id. at ¶¶ 63-65, 68-

69, 73, 76, 81, 83, 85, 87-88. Thus, the mere opportunity to raise additional funds under the 

Millionaires’ Amendment is even less like a penalty on a self-financed opponent than the 

automatic grant of public funds to one candidate under the public financing statutes.13

Davis argues that the Millionaires’ Amendment is constitutionally infirm because the 

relaxing of the contribution limits for an opposing candidate is triggered by the self-financing 

candidate’s “decision to exercise his fundamental First Amendment right to expend funds on his 

own behalf” (Opp. 4). The whole purpose of the Millionaires’ Amendment, however, is to 

ameliorate what Congress found to be the statute’s unfair effect on a candidate trying to compete 

with another candidate who actually uses large amounts of personal funds to finance his 

campaign. Thus, keying the relaxing of the opponent’s contribution limits to the self-financing 

candidate’s actual expenditure of personal funds is the best way to ensure that the Millionaires’ 

 

13 In arguing for strict scrutiny review of his Equal Protection claim (Opp. 33-34), Davis 

misleadingly connects quotations from separate sections of Buckley. In his first quotation (Opp. 

33, quoting Buckley, 424 U.S. at 15) (citation omitted), the “constitutional guarantee” that the 

Court said was particularly applicable “‘to the conduct of campaigns for political office’” was 

the First Amendment, not the Equal Protection guarantee of the Fifth Amendment. The section 

of Buckley that actually addressed the claim that the contribution limits unconstitutionally 

discriminated between incumbents and challengers and between major and minor parties, 424 

U.S. at 30-33, contains no reference to strict or exacting scrutiny. Instead, the Court repeatedly 

emphasized the challengers’ failure to support their facial challenge with evidence that one class 

of candidates would invariably be disadvantaged by the contribution limits. See, e.g., 424 U.S. 

at 32 (“[t]here is no such evidence to support the claim that the contribution limitations . . . 

discriminate against major-party challengers”); id. at 34 (“the record is devoid of support for the 

claim that the [contribution limits] will have a serious effect on . . . minor-party and independent 

candidacies”). Davis has similarly failed to present any evidence of actual disadvantage to the 

ability of self-financing candidates to campaign for office, relying instead entirely upon the kind 

of speculation and theoretical arguments that the Buckley decision rejected.

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Amendment is narrowly tailored to serve its precise purpose, without permitting the selffinancer’s opponent to engage in increased fundraising in advance of, or in excess of, the actual 

personal spending Congress wanted to offset. Davis cannot reasonably argue that the statute’s 

narrow tailoring to serve Congress’s compelling interests makes it unconstitutional. He posits no 

way in which Congress could have accomplished this purpose in a more narrowly tailored 

manner than using a candidate’s actual personal expenditures as a trigger. In these 

circumstances, Davis’s argument is reduced to the assertion that Congress cannot legislate at all 

to alleviate the disparate impact of its statutory contribution limits no matter how compelling that 

interest may be, an extreme position that is unsupported by any of the cases he cites. 

III. THE DISCLOSURE REQUIREMENTS IN THE MILLIONAIRES’

AMENDMENT ARE NOT UNCONSTITUTIONAL 

As explained in our opening brief, the disclosure provisions of the Millionaires’ 

Amendment do not require the disclosure of any information that could be thought to imperil 

either the freedom to associate or to speak, which was the case in Buckley. Indeed, since all of 

the information at issue would have to be disclosed eventually under other provisions of the Act, 

the primary impact of the Millionaires’ Amendment is in its timing rather than in the disclosure 

of otherwise confidential information. FEC Br. 26. 

Davis does not seriously dispute this. He makes the vague assertion (Opp. 18-19) that the 

timing of the initial declaration of intent to spend in excess of the $350,000 threshold under the 

Millionaires Amendment creates some sort of “tactical” disadvantage by “allow[ing] a 

contribution-based opponent to use this information to plan her own fund-raising and 

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expenditures accordingly.”

14 But he never explains why the complementary disclosure by other 

candidates in their required declarations of intent to spend less than $350,000 in personal funds 

does not provide an equivalent basis for an opponent to plan his campaign financing.15 

Moreover, because of “the First Amendment interest in free and open discussion of campaign 

issues,” the Supreme Court in McConnell was willing to assume only “for argument’s sake” that 

the Constitution includes any “form of protection against premature disclosure of campaign 

strategy,” 540 U.S. at 242-43. Davis offers no support whatever for his assumption that the 

timing of such disclosures raises any genuine constitutional question. 

More fundamentally, Davis offers no evidence that self-financing candidates prefer to 

keep their plans to finance their own campaigns secret. For example, he has not disputed our 

showing (FEC Br. 12) that advance disclosure by candidates of an intent to self-finance often 

plays a large role in political party recruiting efforts and in discouraging other candidates from

running, as Congress found and Professor Steen’s expert report confirms. Davis himself publicly 

proclaimed his intent to spend large amounts of personal funds to finance his own campaign 

 

14 Our opening brief (FEC Br. 24 n. 13) questioned Davis’s standing to challenge the 

requirement of an initial declaration of intent because he had filed his own declaration of intent 

well before initiating this lawsuit. Although it is Davis’s burden to clearly demonstrate his 

standing to litigate each of his constitutional claims, Davis has not even addressed this point. 

See Lujan v. Defenders of Wildlife, 504 U.S. 555, 569 n. 4 (1992), FW/PBS, Inc. v. Dallas, 493 

U.S. 215, 230-31 (1990). 

15 Davis complains (Opp. 19) that a non-self-financing candidate is not “required to state 

the total amounts of all funds [from others] that she plans to raise and spend on her campaign,” 

but the self-financing candidate is also not required to disclose such a prediction, even though 

self-financing candidates can, and often do, raise substantial amounts of contributions to 

augment their personal funds. 

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even before he filed his declaration of intent with the Commission.16 Thus, Davis has provided 

no factual basis for claiming a tactical disadvantage from the premature disclosure of 

information that he or other self-financing candidates would normally keep secret.17

Beyond these groundless claims about the initial declaration of intent, Davis’s claims of 

unconstitutional burden from the disclosure provisions amount to nothing more than the mere 

annoyance of filling out the forms, having nothing to do with any constitutional sensitivity of the 

information to be disclosed. He cites no authority for questioning the constitutionality of a 

disclosure provision because of the mere burden of submitting forms. But even if placing on one 

candidate a substantially greater burden of filing forms might be thought to raise constitutional 

questions, we have already demonstrated (FEC Br. 27 n.16) that the opponent of a self-financed 

candidate has an equivalent number of disclosure forms to file. Davis asserts (Opp. 16-23) that 

the forms required of him are more “intrusive” (id. 22 n.14), but he never explains why that 

might be so. Indeed, we demonstrated in our opening brief (FEC Br. 25-27) that these disclosure 

provisions require less information from Davis than other disclosure requirements in the Act that 

were upheld in McConnell and Buckley, and on a schedule that is not more onerous. 

 

16 The record indicates that Davis’s stated intent to self-finance convinced one potential 

primary opponent in 2004 to forgo running against him (FEC Ex. 8 at 14 (FEC Facts ¶ 48)), and 

the website for Davis’s 2006 campaign features a press release from March 2006 stating his 

intention to finance his own campaign. See http://www.jackdavis.org/new/press/2006.asp

(visited on Oct. 3, 2006). 

17 Little need be said about Davis’s lengthy reiteration (Opp. 17-22) of his claim that the 

notice of intent is difficult to comply with and places him in peril of criminal sanctions. The 

statute plainly does not require him to predict accurately how much of his personal wealth he 

will actually end up spending on his campaign; it only requires him to state his current “intent.” 

Intent is subjective and does not involve predicting or anticipating circumstances that could lead 

him to change that intent in the future. Accordingly, the civil and criminal penalties in the 

statute are not in any way applicable to a candidate who honestly states his current intent, 

regardless of whether he later has a change in plans. Moreover, Davis does not respond to our 

showing (FEC Br. 24 n.13) that any uncertainty about the statute’s requirements can be cleared 

up by asking for an advisory opinion from the Commission. 

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Even if Davis had been able to demonstrate that the information required to be disclosed 

by the Millionaires’ Amendment is of the type that raises constitutional concerns, the disclosure 

requirements are supported by sufficient governmental interests to survive constitutional 

scrutiny. We have already demonstrated above and in our opening brief (FEC Br. 23-25) that the 

substantive provisions of the Millionaires’ Amendment serve compelling governmental interests 

and that the disclosure provisions are essential for those substantive provisions to work. 

Accordingly, the disclosure provisions serve the same compelling interests as does the remainder 

of the statutory scheme of which they are a central component. 

Davis does not deny that the disclosure provisions are essential to the proper operation of 

the Millionaires’ Amendment, but argues (Opp. 21) that ensuring the proper operation of other 

statutory provisions is an insufficient interest to justify requiring disclosure. However, the 

Supreme Court held in Buckley, 424 U.S. at 68, that Congress had a compelling governmental 

interest in requiring disclosure of constitutionally sensitive information as “an essential means of

gathering the data necessary to detect violations of the contribution limitations.” Similarly, in 

Colorado II, 533 U.S. at 465 (2001), the Court found that limits on coordinated party 

expenditures were constitutional because they helped prevent circumvention of the Act’s 

provisions limiting direct contributions to candidates. Like the disclosure provision upheld in 

Buckley and the coordinated party expenditure provisions upheld in Colorado II, the disclosure 

provisions in the Millionaires’ Amendment serve the compelling governmental interest in 

implementing the substantive provisions of the Amendment, including not only the timing of the 

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relaxation of contribution limits, but also determining the cap on the amount that can be raised 

under the relaxed contribution limits by an opponent of a self-financing candidate.18

Davis tries (Opp. 21) to distinguish the decision in McConnell upholding the disclosure 

requirements for electioneering communications because the appellants in that case “made no 

assertion of one-sided application or divergent burdens based on a candidate’s viewpoint.” 

However, the relevant question is not whether Davis is making these claims, but whether there is 

any substance to them. We have already shown above and in our opening brief that the 

disclosure provisions of the Millionaires’ Amendment are not “one-sided” because a comparable 

amount of disclosure is required of the self-financing candidate’s opponent. We have also 

shown (FEC Br. 21 n. 12) that the statute draws no distinctions based on “a candidate’s 

viewpoint”; it is only the amount of personal expenditures that makes a difference under the 

Amendment, regardless of the “viewpoint” of the candidate making those expenditures. Davis 

does not even respond to this showing, but simply ignores it and hopes the Court will do so as 

well. 

In sum, Davis has failed to provide any factual or legal basis for concluding that the 

disclosure provisions of the Millionaires’ Amendment require disclosure of any confidential, 

 

18 While it appears that Congress would not have enacted these disclosure provisions but for 

their central role in the operation of the Millionaires’ Amendment, those provisions also serve 

the recognized “governmental interest of ‘shed[ding] the light of publicity’ on campaign 

financing.” McConnell, 540 U.S. at 231 (quoting Buckley, 424 U.S. at 81). See also id. at 237 

(upholding a record-keeping requirement because it “will help make the public aware of how 

much money candidates may be prepared to spend on broadcast messages”). The initial 

declaration of intent, for example, makes the public (as well as other candidates and the 

Commission) aware at an early point that this campaign is likely (or is not likely) to be a 

Millionaires’ Amendment campaign. The public can take this into account in evaluating the 

candidates during the subsequent campaign, while the Commission and opposing candidates and 

political parties can plan for their roles in implementing the Amendment’s provisions in those 

campaigns likely to be affected, while paying less attention to those provisions in campaigns that 

are not likely to be affected.

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constitutionally protected information, and in any event those provisions serve compelling 

governmental interests that satisfy any level of constitutional scrutiny. 

CONCLUSION 

For the foregoing reasons and those contained in our opening brief, this Court should grant the 

Commission’s motion for summary judgment, deny plaintiff’s motion for summary judgment, and 

dismiss the case. 

Respectfully submitted, 

_______/s/________________________ 

Lawrence H. Norton 

General Counsel 

_______/s/________________________ 

Richard B. Bader 

Associate General Counsel 

(D.C. Bar # 911073) 

______/s/_________________________ 

Colleen T. Sealander 

Assistant General Counsel 

 _____/s/__________________________ 

Holly J. Baker 

 Attorney 

_____/s/__________________________ 

Claire N. Rajan 

Attorney 

 

FOR THE DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W.

Washington, D.C. 20463 

October 6, 2006 (202) 694-1650 

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