No. 07-320 

In The 

Supreme Court of the United States

JACK DAVIS, 

Appellant,

v. 

FEDERAL ELECTION COMMISSION,

Appellee. 

On Appeal from the United States District Court for 

the District of Columbia 

BRIEF FOR THE CENTER FOR COMPETITIVE 

POLITICS AS AMICUS CURIAE IN SUPPORT 

OF APPELLANT 

February 27, 2008 

ERIK S. JAFFE

 (Counsel of Record) 

ERIK S. JAFFE, P.C. 

5101 34th Street, NW 

Washington, DC 20008 

(202) 237-8165 

Counsel for Amicus Curiae 
TABLE OF CONTENTS 

Table of Contents..........................................................i

Table of Authorities.....................................................ii

Interest of Amicus Curiae ........................................... 1

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

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

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

I. The Court Below Unduly Limited the First 

Amendment Injury It Was Willing to 

Consider.................................................................. 4

A. Speaker Discrimination Is a Distinct 

First Amendment Injury Wholly Apart 

from Any Potential Chilling of Speech............. 5

B. The More Restrictive Reporting 

Requirements Cause a First 

Amendment Injury. .......................................... 6

II. The Asserted Government Interest Is Novel 

and Invalid. ............................................................ 8

A. The Interest Here Is Not Related to 

Preventing Corruption or its 

Appearance, and Is Invalid. ............................. 9

B. The Millionaire Amendment Actually 

Undermines the Alleged Interest In 

Preventing Corruption that Underpins 

BCRA Generally.............................................. 16

C. The Interest in Added Disclosure Is Not 

Supported by the Interests Found 

Sufficient for Prior Disclosure 

Requirements.................................................. 20

D. At a Minimum, the Novel Interest 

Asserted Here Should Trigger Genuine 

Strict Scrutiny................................................. 22

Conclusion.................................................................. 27 
ii 

TABLE OF AUTHORITIES 

Cases

Austin v. Michigan Chamber of Commerce, 

494 U.S. 652 (1990)..........................................14, 23 

Buckley v. Valeo, 424 U.S. 1 (1976).................3, 12, 13 

FEC v. Beaumont, 539 U.S. 146 (2003) ..................8, 9 

FEC v. Massachusetts Citizens for Life, 

Inc., 479 U.S. 238 (1986)........................................16 

FEC v. National Right to Work Committee, 

459 U.S. 197 (1982)................................................23 

Hurley v. Irish-American Gay, Lesbian and 

Bisexual Group of Boston, 515 U.S. 557 

(1995)......................................................................13 

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

NAACP v. Alabama, 377 U.S. 288 (1964).................19 

Nixon v. Shrink Missouri Gov’t PAC, 528 

U.S. 377 (2000).......................................8, 22, 23, 25 

R.A.V. v. City of St. Paul, 505 U.S. 377 

(1992)........................................................................5 

Randall v. Sorrell, 548 U.S. 230, 126 S. Ct. 

2479 (2006).............................................................25 

Rubin v. Coors Brewing Co., 514 U.S. 476 

(1995)......................................................................17 

Thomas v. Chicago Park Dist., 534 U.S. 316 

(2002)........................................................................5 

United Savings Ass’n of Texas v. Timbers of 

Inwood Forest Assocs., 484 U.S. 365 

(1988)......................................................................19 

United States v. Carolene Products Co., 304 

U.S. 144 (1938).......................................................16 
iii 

West Virginia State Bd. of Educ. v. 

Barnette, 319 U.S. 624 (1943)................................12 

Wygant v. Jackson Bd. of Educ., 476 U.S. 

267 (1986)...............................................................16 

Statutes

BCRA § 319, 2 U.S.C. § 441a-1 ......................... passim 

Other Authorities

147 CONG. REC. at S2451 (March 19, 2001)..............10 

147 CONG. REC. at S2461 (March 19, 2001)..............10 

147 CONG. REC. at S2544 (March 21, 2001)..............24 

147 CONG. REC. at S2548 (March 21, 2001)..............25 

147 CONG. REC. at S3195 (March 30, 2001)..............25 

147 CONG. REC. at S3976 (March 21, 2001)................9 

147 CONG. REC. S2537 (March 21, 2001)..................18 

148 CONG. REC. at S2142 (Mar. 20, 2002) ................10 

BeVier, Campaign Finance Reform: 

Specious Arguments, Intractable 

Dilemmas, 94 COLUM. L. REV. 1258 

(1994)..................................................................9, 24 

BeVier, Money and Politics: A Perspective 

on the First Amendment and Campaign 

Finance Reform, 73 CALIF. L. REV. 1045 

(1985)......................................................................24 

Dworkin, The Curse of American Politics, 

N.Y. REV. OF BOOKS, Oct. 17, 1996 ........................13 

Foley, Equal-Dollars-Per-Voter: A 

Constitutional Principle of Campaign 

Finance Reform, 94 COLUM. L. REV. 1204 

(1994)......................................................................13 
iv 

Jaffe, McConnell v. FEC: Rationing Speech 

to Prevent “Undue” Influence, 2003-2004 

Cato Supreme Court Review 245 (2004)...............16 

Jennifer Steen, Life After Reform: When 

The Bipartisan Campaign Reform Act 

Meets Politics, (Roman and Littlefield 

2003) .......................................................................26 

Klarman, Majoritarian Judicial Review: 

Entrenchment Problems, 85 GEO. L.J. 491 

(1997)......................................................................24 

Strauss, Corruption, Equality, and 

Campaign Finance, 94 COLUM. L. REV. 

1369 (1994).............................................................13 
INTEREST OF AMICUS CURIAE1

The Center for Competitive Politics is a non-profit 

501(c)(3) organization founded in August, 2005, by 

Bradley Smith, former Chairman of the Federal Election Commission, and Stephen Hoersting, a campaign 

finance attorney and former General Counsel to the 

National Republican Senatorial Committee. Over the 

last decade, well over $100 million has been spent to 

produce ideological studies promoting campaign finance regulation. Those studies have gone largely 

unchallenged, and dominated the policy debate. CCP 

is concerned that a politicized research agenda has 

hampered both the public and judicial understanding 

of the actual effects of campaign finance laws on political competition, equality, and corruption. CCP’s 

mission, through legal briefs, academically rigorous 

studies, historical and constitutional analysis, and 

media communication, is to educate the public on the 

actual effects of money in politics, and the results of a 

more free and competitive electoral process. 

STATEMENT 

In examining whether the Millionaires’ Amendment, BCRA § 319, 2 U.S.C. § 441a-1, abridged appellant’s First Amendment rights, the court below focused exclusively upon the isolated action of the Millionaires’ Amendment itself, ignoring the background 

restrictions already in place that interact with § 391 

 

1 This brief is filed with the written consent of both parties. 

No counsel for a party authored this brief in whole or in part, 

nor did any person or entity, other than Amicus or its counsel, 

make a monetary contribution intended to fund the preparation 

or submission of this brief. 
2 

to create a differential burden on appellant’s First 

Amendment rights. 

For example, the court found no burden on appellant because § 319 did not prevent him from spending 

his own money or reduce the amount he could raise 

from others. App. at 8. Although viewing the section 

merely as providing a “benefit” to his opponent, that 

is a distinction without a difference as appellant is 

indeed prevented from raising money from others to 

the same degree as his opponent. The only concern 

considered by the court, however, was whether § 319 

“chilled” his speech, not whether it restricted him to a 

greater extent than his opponent. App. 10. 

The court below also failed to give adequate consideration to the different nature of the alleged government interests asserted in support of § 391, accepting uncritically that § 319 provided a remedy for 

the supposed problem of differential resources and a 

“dangerous” public perception. App. 16. 

Such a narrow and uncritical consideration of the 

First Amendment injury and the alleged government 

interests led the court to underestimate the First 

Amendment implications of § 319. 

SUMMARY OF ARGUMENT 

1. To properly evaluate the First Amendment 

harms presented by this case, this Court should look 

to the interaction between § 319 and the existing contribution limits in BCRA. Appellant indeed faces a 

greater burden on his speech than his opponent because he must comply with lower contribution limits, 

which reduce his opportunity to raise funds for 

speech. Ignoring pre-existing limits as not part of the 
3 

relative burden imposed on appellant and focusing 

exclusively on any chill created by § 319 alone ignores 

the First Amendment harm from the existence of discriminatory burdens from existing limits or exemptions therefrom. 

2. The interests asserted in this case do are a far 

stretch from the corruption interests recognized in 

Buckley v. Valeo, 424 U.S. 1 (1976), and a considerable stretch even from the somewhat expanded interests applied by this Court in McConnell v. FEC, 540 

U.S. 93 (2003). Alleged public perception of unfairness, or the talismanic invocation of the word corruption to misdescribe such supposed unfairness, does 

not create corruption where none exists. The interest 

in a supposedly “fair” allocation of speech between 

candidates does not concern corruption, is novel at 

best, and has been repeatedly and properly rejected 

by this Court as a basis for regulating speech. 

Section 319’s abandonment of the lower contribution limits as unnecessary to prevent corruption 

when an opponent is self-financed also undermines 

the legitimacy of the lower contribution limits in total. Having found the marginal benefits from lower 

limits to be outweighed by the minor or invalid interests supporting § 319, they can no longer be relied 

upon to support the lower limits in other contexts and 

even as applied to the appellant and his opponent in 

this case. 

In addition, the increased disclosure burdens in 

this case are not supported by the traditional justifications for disclosure, and are unjustified if the underlying interests supporting the differential contribution limits are invalid. 
4 

Finally, this Court should apply genuine strict 

scrutiny to this case because the interests alleged are 

novel and there is a significant likelihood that § 319 

was designed and will operate to protect incumbents 

from those most capable of overcoming the advantages of incumbency by spending their own money as 

challengers 

ARGUMENT 

I. The Court Below Unduly Limited the 

First Amendment Injury It Was Willing to 

Consider. 

In asking only whether § 319 would chill appellant’s speech, the court below ignored the First 

Amendment harm resulting from the selective maintenance of the lower contribution limits on appellant 

while exempting his opponent from such limits. It is 

the differential burden of the remaining contribution 

limits that abridges appellant’s rights, selectively 

burdening his ability to raise money for additional 

speech and more effectively to associate with others 

for expressive purposes simply because he has exercised his unquestioned First Amendment right to 

make personal expenditures for political speech. The 

operation of § 319, exempting appellant’s opponent 

from pre-existing limits, is no different than if it had, 

ab initio, selectively imposed the lower limit on him 

but not his opponent. Such a discriminatory burden 

based on the exercise of protected First Amendment 

rights violates the First Amendment. 
5 

A. Speaker Discrimination Is a Distinct First 

Amendment Injury Wholly Apart from Any Potential Chilling of Speech. 

It is hornbook First Amendment law that viewpoint or content discrimination infringes upon First 

Amendment rights and must be strictly scrutinized. 

For viewpoint discrimination, such scrutiny is generally fatal because the discrimination itself violates 

the First Amendment. For content discrimination, 

this Court has explained that, while not necessarily 

illegitimate in certain contexts, it is often highly suspect because it can act as a mask for viewpoint discrimination even when imposed by a nominally viewpoint-neutral law. R.A.V. v. City of St. Paul, 505 U.S. 

377, 387 (1992). 

A corollary of such First Amendment antidiscrimination principles is that discrimination in the 

speech restrictions imposed upon different speakers

also can be highly suspect. See, e.g., Thomas v. Chicago Park Dist., 534 U.S. 316, 325 (2002) (“Granting 

waivers to favored speakers (or, more precisely, denying them to disfavored speakers) would of course be 

unconstitutional”). As with content discrimination, 

imposing differential restrictions on different categories of speakers raises the prospect that such discrimination is merely a mask for differentially restricting the viewpoints of one class of speaker or another. 

In this case, § 319, in combination with the existing limits on contributions and coordinated party expenditures, creates a differential burden on speakers 

who choose to self-finance more than a limited 

amount of their political speech. Such speakers are 
6 

subject to lower contribution limits for their supporters, and more restricted coordinated spending from 

their parties than are their opponents. 

This Court has, of course, recognized since Buckley, that contribution and coordinated expenditure 

restrictions impose a First Amendment burden, but 

has justified that burden by the interest in preventing corruption of the quid pro quo or undue influence 

sort – i.e., the supposed ability of contributors or 

spenders to influence the candidate they have supported after he is elected. In this case, however, such 

burdens are not in the service of preventing corruption as described from Buckley to McConnell. Rather, 

they are claimed to serve quite different alleged interests that are not even remotely compelling. See infra Part II. 

B. The More Restrictive Reporting Requirements 

Cause a First Amendment Injury. 

In addition to the differential contribution and coordinated expenditure limits applied to self-financed 

candidates, the added reporting requirements for 

such candidates also burden their First Amendment 

rights. Unlike the usual candidate that relies upon 

contributions and spends little of his own money, a 

candidate that pays for more than a limited amount 

of his own speech must provide more frequent and 

immediate reports of his spending activity. Such reports are an added burden in and of themselves, and 

are not in the service of public information or enforcing any limits on their spending – the usual justifications for disclosure requirements – but rather serve 

the exclusive purpose of aiding the candidate’s oppo-
7 

nent in raising more money and in avoiding otherwise applicable limits. 

Being forced to make immediate and frequent reports of expenditures for speech, merely because of 

the exercise of a protected right to self-finance that 

poses no risk of the supposed “corruption” claimed to 

justify campaign finance restrictions in the first 

place, is a burden on the freedom of speech. And to be 

forced to do so exclusively to benefit one’s opponent 

smack’s of government manipulation of the political 

marketplace in a manner that should raise grave 

skepticism by this Court. Whether such a burden on 

the freedom of speech actually “chills” self-financed 

speech is somewhat secondary to the fact that it penalizes constitutionally protected activities without a 

constitutionally valid justification. A discriminatory 

speech tax imposed on one side of a public debate, or 

on only one class of debaters, would violate the First 

Amendment regardless whether the tax were small or 

large and regardless whether it was actually effective 

at chilling the speech or speaker being taxed.2

 

2 Furthermore, the fact that the beneficiaries of § 391 also 

have added reporting requirements does not cure the discrimination here. Such beneficiaries are given benefits (the exemptions from otherwise applicable contribution limits) to go along 

with their added reporting burdens, while the targets of § 391 

get no such benefits. Being “allowed” to exercise their protected 

right to self-fund their speech is not a benefit conferred by the 

government; it is a right protected by the Constitution. Government cannot exact a “price” for allowing that which it has no 

constitutional power to stop. 
8 

II. The Asserted Government Interest Is 

Novel and Invalid. 

Once it is recognized that § 319, in combination 

with the existing restrictions imposed by BCRA, creates a First Amendment injury, the burden shifts to 

the government to establish a sufficiently important 

interest to justify that injury. This Court’s precedent 

generally has limited such an interest to the prevention of the actuality or appearance of corruption. 

While this Court’s conception of what constitutes 

“corruption” has admittedly (and, with regrets, improperly) expanded since Buckley, it has never expanded beyond the core notion of corruption as involving the exercise of improper influence by third 

parties over an actual or potential office-holder. See, 

e.g., FEC v. Beaumont, 539 U.S. 146, 156 (2003) (government interest in preventing “‘undue influence on 

an officeholder’s judgment, and the appearance of 

such influence’” stemming from large campaign contributions) (citation omitted); Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377, 389 (2000) (interest in 

preventing “the broader threat from politicians too 

compliant with the wishes of large contributors”); 

McConnell, 540 U.S. at 144, 146 (interest in preventing the “the appearance of undue influence” and the 

alleged danger that large contribution beget “access 

to high-level government officials” and create an atmosphere of “debt”).3 “The hallmark of corruption is 

 

3 This Court also has noted an interest in dampening the influence of certain entities deemed to have supposed “special advantages” of the corporate form “that enhance their ability to attract capital and * * * to use resources amassed in the economic 

marketplace to obtain an unfair advantage in the political mar-
9 

the financial quid pro quo: dollars for political favors.” BeVier, Campaign Finance Reform: Specious 

Arguments, Intractable Dilemmas, 94 COLUM. L. REV. 

1258, 1270 (1994). 

A. The Interest Here Is Not Related to Preventing 

Corruption or its Appearance, and Is Invalid. 

The alleged government interests in this case do 

not even come close to implicating even the fairly 

broad conception of corruption recognized by this 

Court. Rather, the interests are almost exclusively a 

faux-egalitarian concern with attempting to equalize 

the resources available to competing candidates, an 

interest that not only is not compelling, but that is in 

fact illegitimate on its face. 

Congress and the court below, however, have 

sought to shoehorn the actual interests in this case 

into the “corruption” paradigm by claiming that § 391 

combats a supposed public perception “that someone 

today who is wealthy enough can buy a seat” in Congress,” which is supposedly akin to preventing the 

“appearance of corruption” recognized by this Court 

in the different context of third-party influence over 

elected officials. See 147 CONG. REC. at S3976 (March 

21, 2001) (Sen. DeWine). 

 

ketplace,” and in the prevention of corporations being used “as 

conduits for circumvention of [valid] contribution limits” by corporate owners or employees. Beaumont, 539 U.S. at 155 (citations and quotation marks omitted). Amicus, of course, disputes 

that rationale as a valid justification for restricting corporate 

speech, Brief of Amici Curiae Center for Competitive Politics, et 

al., Wisconsin Right to Life v. FEC, No. 04-1581 (Nov. 14, 2005), 

but regardless of the validity of such an interest per se, no such 

“special” advantages are at issue here, and no possibility of circumventing contribution limits applicable to third parties. 
10 

More candidly, Congress also claimed a “fairness” 

interest in countering the supposed problem that uniform contribution limits “will unfairly favor those 

who are willing, and able, to spend a small fortune of 

their own money to win elections.” 148 CONG. REC. at 

S2142 (Mar. 20, 2002) (Sen. McCain); 147 CONG. REC. 

at S2451 (March 19, 2001) (Senator Domenici) (BCRA 

§ 319 is intended to be “an equalizer amendment’ 

* * * a fair play amendment; * * * a let’s be considerate of a candidate who isn’t rich amendment – whatever you choose to call it”); 147 CONG. REC. at S2461 

(March 19, 2001) (Senator Durbin) (Amendment is a 

way to “make certain [Senators] have a level playing 

field” and thus ensure “fairness in * * * basic election 

campaigns”). 

Neither interest, however, can be warped, 

stretched, or tortured to fit within this Court’s admittedly broad definition of preventing corruption.4

Regarding the first claimed interest in preventing 

the “appearance” of corruption, merely applying the 

epithet of “corruption” to the exercise of the right to 

expend one’s own funds on political speech does not 

make it so. Regardless whether some might think it 

unfair that a wealthier candidate may have and exer-

 

4 Amicus agrees with Justice Kennedy that the Court would 

be wise to narrow its unwieldy definition of corruption. Restrictions on First Amendment activity should be valid “only if [a 

statute] regulates conduct posing a demonstrable quid pro quo 

danger.” McConnell, 540 U.S. at 292 (Kennedy, J., dissenting). 

The unprincipled expansion of the corruption interest to include 

every possible situation where influence peddling is possible or 

appears possible has emboldened Congress to the point that it, 

in this case, argues that the unequal exercise of political speech 

is somehow corrupting. 
11 

cise greater means of engaging in political speech 

than his opponent, such means do not create any indebtedness to, or undue influence by, campaign contributors given that the money does not come from 

contributors. And the notion that such a candidate 

will be indebted to himself borders on the ridiculous. 

Running for (and attaining) elective office generally is 

a financial negative for a wealthy candidate that forgoes the opportunity to continue to make more money 

in the private sector. Such candidate cannot be said 

to be likely to provide valuable political favors to himself, and is decidedly less likely to do so than a candidate that lacks wealth to begin with and thus may be 

more motivated to take advantage of the temptations 

of elective office.5

As for the supposed public perception that there is 

something corrupt about wealthy individuals using 

their own money to fund an election campaign, that 

interest too is a far cry from the usual theories of corruption that turn upon a candidate being beholden to 

or solicitous of third-party contributors or supporters. 

While there is no doubt that money buys speech, 

and that speech, if persuasive, helps a candidate get 

elected, a candidate relying on extensive contributions from third parties is no less “buying” speech 

(and hence presumably the election, in the government’s condescending view of the public as sheep who 

react favorably to any speech, regardless of content or 

merit) than is the self-financed candidate. To suggest 

 

5 And, of course, ethics and conflict of interest laws already 

penalize any attempt to misuse elective office for personal gain, 

as the spate of bribery prosecutions in recent years has made 

apparent. 
12 

that all money in politics – even a candidate’s own 

money used only for speech – is corrupting is to radically depart from the notion of policing large contributions by third parties, and would eliminate virtually any possibility of “freedom” of speech in a world 

where “effective political speech” necessarily costs 

money. See Buckley, 424 U.S. at 19. 

In addition, even if the public wrongly perceived 

self-financing as corrupt, such public misconception 

or “corruption” should not be sufficient to establish a 

constitutionally meaningful appearance of corruption. 

Particularly where there is no evidence of and no link 

to actual corruption, the proper response to such 

opinion is to correct the misperception, not to restrict 

speech. Otherwise, were mere public opinion enough 

to justify overriding the First Amendment, it would 

effectively eviscerate the very purpose of a Bill of 

Rights, which “was to withdraw certain subjects from 

the vicissitudes of political controversy, to place them 

beyond the reach of majorities and officials and to establish them as legal principles to be applied by the 

courts.” West Virginia State Bd. of Educ. v. Barnette,

319 U.S. 624, 638 (1943). 

As for the second interest in supposed fairness for 

the candidate unable or unwilling to spend significant personal resources on an election campaign, that 

interest does not even purport to involve corruption 

as understood by this Court. Rather, the theory underlying the claimed “fairness” interest is ultimately 

the false equation between speech and voting, and 

the attempt to map the one-person-one-vote theory of 

voting rights onto First Amendment speech rights. 

Fairness, after all, presupposes a certain “fair” base-
13 

line amount of relative speech from which a selffinanced candidate purportedly deviates. Such a theory, and the assumption of a fair amount of relative 

speech as between political competitors, is entirely at 

odds with the First Amendment and takes a condescending and impermissible view of the public, 

though, not surprisingly, it has been touted by certain academics for years.6

This Court in Buckley correctly recognized that 

government may not “restrict the speech of some 

elements of our society in order to enhance the relative voice of others.” 424 U.S. at 48. That, said Buckley, is “wholly foreign to the First Amendment,” the 

protections of which “cannot properly be made to depend on a person’s financial ability to engage in public discussion.” Id. at 48-49. Manipulating different 

groups’ relative ability to speak “is a decidedly fatal 

objective.” Hurley v. Irish-American Gay, Lesbian and 

Bisexual Group of Boston, 515 U.S. 557, 579 (1995). 

Both this Court as a whole and various of its justices, 

have continued to recognize the illegitimate nature of 

 

6 See Strauss, Corruption, Equality, and Campaign Finance, 

94 COLUM. L. REV. 1369 (1994) (analogizing efforts to equalize 

speech to “one person one vote” principle); Sunstein, Free Speech 

Now, 59 U. CHI. L. REV. 255 (1992) (arguing that “the market 

status quo” should not be allowed to set the baseline for the 

amount of speech a person should be allowed to fund); Dworkin, 

The Curse of American Politics, N.Y. REV. OF BOOKS, Oct. 17, 

1996 (arguing that citizens should be equal in their ability “to 

command the attention of others for their own candidates, interests and convictions”); Foley, Equal-Dollars-Per-Voter: A Constitutional Principle of Campaign Finance Reform, 94 COLUM. L.

REV. 1204 (1994) (arguing that “each eligible voter should receive the same amount of financial resources for the purposes of 

participating in electoral politics”). 
14 

having the government seek to define and enforce a 

“fair” amount of speech or to adjust the relative voices 

of participants in the political marketplace. See, e.g., 

McConnell, 540 U.S. at 138 n. 40, 227 (rejecting deference for statute aimed creating equality in the “political marketplace.”); Austin v. Michigan Chamber of 

Commerce, 494 U.S. 652, 704 (1990) (Kennedy, J. dissenting) (“The argument [that the expenditure of 

money to increase the quantity of political speech 

somehow fosters corruption] is flawed * * *. [I]t assumes that the government has a legitimate interest 

in equalizing the relative influence of speakers. 

[Similar arguments were] rejected in Bellotti.”); id. at 

679 (Scalia, J., dissenting) (“I dissent because that 

principle is contrary to our case law and incompatible 

with the absolute central truth of the First Amendment: that government cannot be trusted to assure, 

through censorship, the ‘fairness’ of the political debate.”); id at 695 (Scalia, J., dissenting) (the claim 

that those who spend more money for speech will 

have greater influence on elections “is not an argument that our democratic traditions allow – neither 

with respect to individuals associated in corporations 

nor with respect to other categories of individuals 

whose speech may be ‘unduly’ extensive (because they 

are rich) or ‘unduly’ persuasive (because they are 

movie stars) or ‘unduly’ respected (because they are 

clergymen). The premise of our system is that there is 

no such thing as too much speech – that the people 

are not foolish, but intelligent, and will separate the 

wheat from the chaff.”). 

Furthermore, the attempt to equalize the resources of competing candidates in this case is even 
15 

more suspect than in many past cases because the 

differential treatment applied to self-financed candidates and their opponents occurs despite the fact that 

the claimed justification for the underlying contribution and coordinated expenditure limits – the prospect or appearance of “corruption” from the undue influence over a candidate of large contributors – is actually weaker for a self-financed candidate than for 

his opponent. The non-self-financed opponent, after 

all, is presumably more dependant upon any contributions or coordinated expenditures than is a candidate with his own means of engaging in political 

speech, and will presumably be more grateful or indebted for such contributions or expenditures than 

would be the candidate that is not so dependant. 

The discrimination in the application of BCRA’s 

various limits thus not only selectively burdens a selffinanced candidate, it does so in a manner that worsens, rather than mitigates, the supposed problem to 

which such limits were addressed. The apparent hypocrisy of Congress in adopting § 319 thus gives great 

weight to the suspicion that it is acting for improper 

ends in manipulating the resources available to different candidates. 

In the end, any disparities in the ability or willingness of candidates to spend their own money on 

speech is not at all incompatible with our constitutional system. “Political ‘free trade’ does not necessarily require that all who participate in the political 

marketplace do so with exactly equal resources.” FEC

v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 
16 

257 (1986) (“MCFL”).7 Any supposed interest in trying to manipulate available resources in the service of 

some supposedly “fair” amount of relative political 

speech is simply a bottomless pit of temptation absent some coherent baseline of what amount of relative speech is proper; a baseline Congress is constitutionally disabled from declaring. Cf. Jaffe, McConnell 

v. FEC: Rationing Speech to Prevent “Undue” Influence, 2003-2004 Cato Supreme Court Review 245, 

295-96 (2004) (criticizing the notion of “undue” influence as lacking a baseline and allowing manipulation 

of the political process). Such a claimed interest is 

simply “too amorphous” or “indefinite[]” and has “no 

logical stopping point,” making the interest noncompelling for constitutional purposes. Wygant v. 

Jackson Bd. of Educ., 476 U.S. 267, 275-76 (1986) 

(plurality) (lack of compelling interest for racial classifications). 

B. The Millionaire Amendment Actually Undermines the Alleged Interest In Preventing Corruption that Underpins BCRA Generally. 

In addition to failing to advance any interest in 

preventing corruption as defined by this Court, the 

 

7 That this Court does not view mere disparities in political 

activity based on financial means to be corrupt can be seen in its 

refusal to consider the poor a “suspect” class. If mere economic 

disparities corrupted the political process, one would think the 

products of that corrupt process would receive heightened scrutiny. United States v. Carolene Products Co., 304 U.S. 144, 152 

n. 4 (1938). That they do not suggests the absence of meaningful “corruption” from different economic means of engaging in 

political speech and the lack of a compelling interest in ameliorating such differences in the amount of speech by different political actors. 
17 

higher limits allowed by § 319 actually undermine 

the supposed justification for the otherwise applicable 

lower limits, as applied to appellant and his opponent 

here, and to candidates in general. Congress’ determination in § 391 that higher limits did not pose a 

meaningful risk of corruption or that the marginal 

added risk was less significant than its marginal or 

illegitimate interest in “fairness” and more speech, 

necessarily declares the limited or non-existent value 

of the corruption interest being served by the lower 

limits as compared to the higher ones. But if the 

added corruption risk supposedly solved by the lower 

limits is not enough to outweigh the dubious interests 

served by raising the limits in § 391, then it cannot 

possibly outweigh the recognized burden that lower 

limits place on the First Amendment rights of candidates and their supporters. In other words, if the 

higher contribution limits are sufficient to serve Congress’ claimed interest in battling corruption here, 

any supposed gains to be had from the lower limits 

are not compelling as compared to the First Amendment rights at issue and the higher limits should be 

sufficient generally, not just for the opponents of selffinancing candidates. 

Indeed, even in the less-scrutinized context of 

commercial speech, this Court has recognized that 

exceptions to restrictions based on the alleged dangers of speech tend to weaken the alleged government 

interest and render the interest incapable of outweighing the First Amendment burden imposed. See, 

e.g., Rubin v. Coors Brewing Co., 514 U.S. 476, 490 

(1995) (inconsistencies and exceptions in the regula-
18 

tory scheme undermined asserted government interest). 

When Congress’ abandonment of the claimed need 

for lower limits in this case is coupled with the fact 

that the supposed problem of resource imbalance is 

largely one of its own making, the case for the lower 

contribution limits becomes even weaker. The problem of unfairness identified by Congress is said to 

stem from Buckley’s different treatment of contributions and expenditures, leading to greater restrictions 

on those who cannot finance their own campaigns. 

See 147 CONG. REC. S2537 (March 21, 2001) (Sen. 

Dewine) (“The Buckley decision has effectively created a substantial disadvantage for opposing candidates who must raise campaign funds under the current fundraising limitations.”). In reality, it was not 

Buckley that created the problem, but rather Congress’ decision to impose contribution limits in the 

first place that handicapped candidates by limiting 

the amount of money they could raise. The simple solution, of course, is to raise or eliminate such limits 

for all, thus leaving candidates free to raise funds for 

political speech either from themselves or their supporters. 

At a minimum, because Congress has effectively 

determined that a $6900 limit does not pose a serious 

threat of corruption, it no longer has a constitutionally adequate justification for the lower limits applied 

to appellant or other candidates. If an incumbent legislator desperate to survive the onslaught of a millionaire challenger is not moved to alter his voting 

patterns by a $6900 contribution, then how is an incumbent who is not nearly so worried about retaining 
19 

his seat corrupted by a contribution of $2300? Just as 

“[s[tatutory interpretation is a holistic endeavor,” 

turning on the relationship among different parts of a 

statute, United Savings Ass’n of Texas v. Timbers of 

Inwood Forest Assocs., 484 U.S. 365, 371 (1988), so 

too is the evaluation of the government’s interests 

underlying the various restrictions in BCRA. Having 

partially abandoned its corruption justification in 

raising the limits under § 319, Congress cannot 

credibly rely on that justification to support lower 

limits elsewhere in the statute. The moment Congress approved BCRA § 319’s increased contribution 

limits as being adequate to further the government’s 

interest in preventing quid pro quo corruption or its 

appearance, Congress also must have simultaneously 

found that BCRA’s general individual contribution 

limit was impermissibly overbroad. If anything, Congress’ decision to approve higher contribution limits 

is prima facie evidence that the everyday $2300 limit 

is not tailored to achieving a compelling government 

interest and that a large amount of First Amendment 

protected activity is restricted without justification. 

If, as Appellant claims, BCRA § 319 adequately 

prevents the appearance of corruption or its appearance, as classically defined, then BCRA § 307’s more 

stringent requirements must fall because they “sweep 

unnecessarily broadly and thereby invade the area of 

protected freedoms.” NAACP v. Alabama, 377 U.S. 

288, 307 (1964). 
20 

C. The Interest in Added Disclosure Is Not Supported by the Interests Found Sufficient for 

Prior Disclosure Requirements. 

As appellant has pointed out, the added disclosure 

in this case places additional burdens on a selffinanced candidate that do not exist for other candidates raising money through contributions. Those 

burdens are imposed exclusively in the service of the 

candidate’s opponent, as a means of enabling that 

opponent to raise more money. 

The court below defended those increased disclosure requirements as minimal in comparison to other 

disclosure requirements that previously have been 

upheld by this Court, and thus found no First 

Amendment infirmity. But previous disclosure requirements have been justified on the much different 

grounds of informing the public regarding who is 

supporting the candidate and what that supposedly 

says about the candidate’s views and who the candidate might favor as an office-holder, and on the supposed utility of disclosure in enforcing the substantive limits imposed by other sections of the federal 

election laws. Such interests, however, are simply not 

present in the case of the self-financed candidate and 

are not advanced by the more onerous reporting requirements imposed by § 319. 

For example, a self-financed candidate, by definition, cannot be “beholden” to himself in the way that 

he might supposedly be beholden to contributors. 

There are no third parties who would expect favors 

from the candidate based on self-financing, and to the 

extent that a self-financed candidate might be suspected of posing a greater risk of self-dealing – to cre-
21 

ate a return on his investment in himself – the existing disclosure requirements are more than ample to 

address that speculative risk. Indeed, such selfdealing poses a uniform risk for any candidate who 

might see elective office as a means of personal financial gain, and one would logically expect such a risk 

to be greater for the poor candidate rather than for 

the candidate that was already wealthy enough to 

devote considerable personal resources to his own 

election campaign. In any event, the existing disclosure requirements applicable to all candidates fully 

serve any interest in informing the public, and the 

added disclosure obligations do not further that interest in any greater manner. 

As for the utility of disclosures in aiding the enforcement of contribution and other limits, once 

again, such an interest has nothing to do with reporting personal expenditures given that such expenditures are not limited at all, and hence there is nothing to enforce regarding such limits. The only thing 

the disclosure serves to “enforce” is the removal of 

limits on the candidate’s opponent, a distinctly different interest that goes to issues of purported equality 

or competition, not to the underlying corruption concerns justifying enforcement of other limits. 

In the end, therefore, this Court’s past cases on 

disclosure offer no support whatsoever for the additional disclosure requirements currently being considered. Those new disclosure requirements can be 

justified, if at all, only on the same basis as § 319 as a 

whole – the faux egalitarian interest in equalizing the 

resources available to candidates and the supposed 

public concern that wealthy candidates can “buy” 
22 

elective office by spending their own money. If those 

interests are insufficient to support the substantive 

disparities in spending limits, they likewise are insufficient to support the added disclosure obligations. 

D. At a Minimum, the Novel Interest Asserted here 

Should Trigger Genuine Strict Scrutiny. 

Finally, even if this Court were to accept the possibility that the interests asserted by the government 

in support of § 319 were sufficiently important that 

they might support some abridgement of First 

Amendment rights, the interests are so novel that 

this Court should apply genuine strict scrutiny when 

considering whether § 319 furthers those interests 

and is narrowly tailored to achieving those interests. 

The more lenient scrutiny previously applied to contribution limits purportedly serving an anticorruption interest have no place at all in considering 

the novel ends and means of the Millionaires’ 

Amendment. 

This Court’s past deferential approach to Congress’ 

assessment of the dangers of corruption has turned 

on what it viewed as the established acceptance of 

the traditional corruption rationale and the supposed 

expertise of Congress in assessing the danger involved. But this Court has recognized that scrutiny 

can be increased as well, where the alleged harm is 

not so well-accepted. “The quantum of empirical evidence needed to satisfy heightened judicial scrutiny 

of legislative judgments will vary up or down with the 

novelty and plausibility of the justification raised.” 

Shrink, 528 U.S. at 391. Scrutiny likewise increases 

where there is a danger of particular “constitutional 

evils as, say, permitting incumbents to insulate 
23 

themselves from effective electoral challenge” were 

not present. Id. at 402 (Breyer, J., concurring). This 

case is one in which the interests asserted are novel 

and implausible, and the danger of self-interested 

legislation by Congress is high. 

To date, the only established “non-novel” government interests recognized by this Court in analyzing 

the constitutionality of campaign contribution limits 

are the interests in preventing “both the actual corruption threatened by large financial contributions 

and the eroding of public confidence in the electoral 

process through the appearance of corruption.” FEC 

v. National Right to Work Committee, 459 U.S. 197, 

208 (1982); see also McConnell, 540 U.S. at 291 (Kennedy J., dissenting). As discussed above, the interests 

alleged in this case are not of the traditional corruption sort, and are, at a minimum, novel, if not outright illegitimate. 

The danger of self-protective legislation is also 

pronounced here. As a general matter, there is reason 

to suspect Congress whenever it seeks to manipulate 

the balance of political debate or regulate campaign 

finance. See Austin, 494 U.S. at 692 (Scalia, J., dissenting) (“The premise of our Bill of Rights, however, 

is that there are some things – even some seemingly 

desirable things – that government cannot be trusted 

to do. The very first of these is establishing the restrictions upon speech that will assure ‘fair’ political 

debate. The incumbent politician who says he welcomes full and fair debate is no more to be believed 

than the entrenched monopolist who says he welcomes full and fair competition.”); id. at 692-93 (“with 

evenly balanced speech, incumbent officeholders gen-
24 

erally win. The fundamental approach of the First 

Amendment, I had always thought, was to assume 

the worst, and to rule the regulation of political 

speech ‘for fairness’ sake’ simply out of bounds.”).8

Furthermore, beyond general principle, the danger 

that § 319 would favor incumbents was expressly recognized by various members of Congress. See 147 

CONG. REC. at S2544 (March 21, 2001) (Sen. Daschle) 

(“In my state of South Dakota, if my opponent wanted 

to spend over $686,000 of their own money, I could 

take advantage of the new limits even if I might have 

$5 in the bank myself. If the same forces that want to 

pass this amendment turn around and triple the underlying contribution limits, I would be able to go out 

and raise as much as $18,000 from every individual 

who wants to contribute to my campaign. How is that 

 

8 See also Klarman, Majoritarian Judicial Review: Entrenchment Problems, 85 GEO. L.J. 491, 536-537 (1997) (“The one thing 

that virtually all commentators agree upon is that legislators 

drafting campaign finance legislation will seek to enhance the 

advantages of incumbency.); BeVier, 94 COLUM. L. REV. at 1279 

(“a premise of distrust of campaign finance reform laws is warranted in principle on account of the context of such legislation.[] Such legislation carries significant potential to achieve 

incumbent protection instead of enhancing political competition. 

It arouses the uncomfortable suspicion that the corruptionprevention banner is an all-too-convenient subterfuge for the deliberate pursuit of less savory or less legitimate goals.”) (footnote 

omitted); BeVier, Money and Politics: A Perspective on the First 

Amendment and Campaign Finance Reform, 73 CALIF. L. REV. 

1045, 1080 (1985) (“contribution limitations ‘impose far more serious strictures on challengers than on incumbents. * * * Research strongly suggests that anything that makes it harder to 

raise funds will be detrimental to challengers and correspondingly strengthen the position of incumbents.[]”) (footnotes omitted). 
25 

fair? * * * Just because I might have a wealthy opponent, should I be allowed to open up the floodgates 

here and take whatever money I can raise? How is 

that limiting the influence of money? No, instead this 

protects incumbents.”); 147 CONG. REC. at S3195 

(March 30, 2001) (Sen. Dodd) (expressing concern 

that exempting an incumbent’s war chest from the 

gross receipts advantage formula would create “a 

substantial loophole for incumbents”); 147 CONG.

REC. at S2548 (March 21, 2001) (Sen. Levin) (expressing concern that “the incumbent who already has the 

financial advantage and the incumbency advantage is 

* * * also given the advantage of having the higher 

contribution limits”). As Senators with ample experience raising money and waging electoral campaigns, 

these three Senators immediately recognized what 

BCRA § 319 would mean for well-connected incumbents like themselves. 

Such added benefits to incumbents, of course, are 

in addition to the recognized benefits that already attach to incumbency, and which have occasioned little 

concern from Congress regarding fairness for their 

potential challengers. Cf. Randall v. Sorrell, 548 U.S. 

230, --, 126 S. Ct. 2479, 2496 (2006) (plurality opinion) (acknowledging the existence of a “name recognition advantage enjoyed by the incumbent.”); Shrink, 

528 U.S. at 403-404 (Breyer, J., concurring) (Court 

cannot defer to the legislature when a statute “significantly increases the reputation-related or mediarelated advantages of incumbency and thereby insulates legislators from electoral challenges”). 

While the FEC claims that such incumbentprotection concerns are not supported by the evidence 
26 

because few incumbents have benefited from § 319, 

Appellee Motion to Dismiss or Affirm at 23-24 (only 

six incumbents invoked the rule in four years), its 

data does not actually go to the issue. Of the nonincumbent candidates that invoked the rule, there is 

no indication how many of them were facing an incumbent opponent and how many were in a race for 

an open seat with no incumbent. Given the fundraising advantage of incumbents, it would be no surprise that few if any of them felt the need to expend 

their own resources and thus trigger § 319 for the 

benefit of their poorer opponent. Furthermore, the 

data says nothing about how many challengers to incumbents were deterred from spending large 

amounts of personal money against an incumbent, 

and thereby enhancing the natural advantages of incumbency even further. 

More telling is the use of self-financing to challenge incumbents before § 319 went into effect. A data 

analysis performed by political scientist Jennifer 

Steen shows that “The Millionaire’s Amendment 

would have benefited an incumbent member of Congress in 40% of all general elections in which it was 

relevant in the 2000 election.” Jennifer Steen, Life 

After Reform: When The Bipartisan Campaign Reform Act Meets Politics 13 (Roman and Littlefield 

2003). 

Finally, there is no reason to think that Congress 

has any particular expertise on the supposed public 

perception regarding self-financed candidates. While 

Congressmen may have expertise on the effects of 

large contributions on elected officials – an indictment of their own conduct as such officials more than 
27 

anything else – their claim to know that the public 

finds their opponents more corrupt than them is disingenuous at best. 

Because the government’s interests in this case are 

novel, at best, and raise genuine concerns that § 319 

is designed to insulate incumbents from a category of 

challengers that might be able to overcome the advantages of incumbency, this Court should apply 

genuine strict scrutiny in this case. 

CONCLUSION 

For the reasons above, this Court should reverse 

the judgment of the District Court for the District of 

Columbia with regard to the added disclosure requirements imposed by § 319, and should either endorse § 319’s higher limit as applicable to both candidates or, as an interim measure, strike down the onesided increase in the contribution limit as impermissibly discriminatory and remand the case back to the 

FEC for a potential challenge by Davis’s opponent to 

the application of the usual lower limits insofar as 

the government interest purportedly justifying such 

lower limits is demonstrably insufficient or nonexistent in light of § 319’s acceptance of a higher limit 

as being non-corrupting. 
28 

 Respectfully submitted, 

ERIK S. JAFFE

 (Counsel of Record) 

ERIK S. JAFFE, P.C. 

5101 34th Street, N.W. 

Washington, D.C. 20008 

(202) 237-8165 

Counsel for Amicus Curiae

Dated: February 27, 2008