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 OF GENE D BRIEF OF GENE DEROSSETT AND ROSSETT AND 

J. EDGAR BROYHILL J. EDGAR BROYHILL ROYHILL II AS AMICI CURIAE AMICI CURIAE 

IN SUPPORT OF APPELLANT PORT OF APPELLANT

February 27, 2008 

KATHLEEN M. SULLIVAN 

 Counsel of Record

DEREK L. SHAFFER 

STANFORD CONSTITUTIONAL

 LAW CENTER

STANFORD LAW SCHOOL 

559 Nathan Abbott Way 

Stanford, CA 94305-8610 

(650) 725-9875 

Counsel for Amici Curiae

 
TABLE OF CONTENTS TABLE OF CONTENTS 

Page 

TABLE OF AUTHORITIES.......................................iv 

INTERESTS OF AMICI CURIAE .............................1 

SUMMARY OF ARGUMENT.....................................3 

ARGUMENT ...............................................................5 

I. THE MILLIONAIRES’ AMENDMENT 

UNCONSTITUTIONALLY BURDENS 

CORE POLITICAL SPEECH 

PROTECTED BY THE FIRST 

AMENDMENT.......................................................5 

A. Section 319 Burdens Self-Financed 

Candidates’ Speech...........................................7 

1. Special disclosure requirements 

imperil self-financed candidates.................7 

2. Increased contribution limits force 

self-financed candidates to enable 

the counterspeech of their 

opponents...................................................10 

B. Section 319 Burdens the First 

Amendment Rights of Contributors to 

Self-Financed Candidates. .............................15 

C. Section 319 Burdens the Political 

System by Reducing the Quantity and 

Quality of Speech............................................17 

1. Self-financed candidates increase 

political dialogue. ......................................18 
iii 

TABLE OF CONTENTS – TABLE OF CONTENTS – continued continued continued 

Page

 

2. Self-financed candidates increase the 

competitiveness of elections by 

challenging incumbents. ...........................21 

3. Self-financed candidates’ wealth 

does not translate automatically into 

electoral success. .......................................22 

II. NO GOVERNMENT INTEREST 

JUSTIFIES THE BURDEN ON SPEECH 

THE MILLIONAIRES’ AMENDMENT 

IMPOSES. ............................................................25 

A. Section 319 Does Not Prevent But 

Actually Encourages Corruption....................27 

B. A Purported Equalization Interest 

Cannot Save Section 319................................29 

C. Section 319 Cannot Be Justified as 

Counteracting “Distortion” Resulting 

from Self-Financed Candidates’ Speech. .......35 

CONCLUSION ..........................................................38 
iv 

TABLE OF AUTHORITIES TABLE OF AUTHORITIES 

Page(s) Page(s) 

Cases

Austin v. Mich. Chamber of Commerce, 

494 U.S. 652 (1990)................................................35 

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

Daggett v. Comm’n on Gov’t Ethics & Election 

Practices, 205 F.3d 445 (1st Cir. 2000).................14 

Davis v. FEC, 501 F. Supp. 2d 22 

(D.D.C. 2007) (three-judge court)..............14, 29, 31 

Day v. Holahan, 34 F.3d 1356 (8th Cir. 1994) ...12, 14 

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

533 U.S. 431 (2001)................................................25 

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

(1986)......................................................................25 

Gable v. Patton, 142 F.3d 940 (6th Cir. 1998) .........14 

McConnell v. FEC, 540 U.S. 93 (2003) .....................27 

McIntyre v. Ohio Elections Comm’n, 

514 U.S. 334 (1995)..................................................9 

Miami Herald Publ’g Co. v. Tornillo, 

418 U.S. 241 (1974)..........................................11, 12 

Nixon v. Shrink Mo. Gov’t PAC, 

528 U.S. 377 (2000)........................................ passim 

Randall v. Sorrell, 126 S. Ct. 2479 (2006)..........17, 30 

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

Crime Victims Bd., 502 U.S. 105 (1991) ...............10 

United States v. Nat’l Treasury Employees Union, 

513 U.S. 454 (1995)................................................10 

United States v. Playboy Entm’t Group, 

529 U.S. 803 (2000)................................................10 

United States v. Virginia, 518 U.S. 515 (1996)........36 

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

1993).......................................................................14 
v 

TABLE OF AUTHORITIES – TABLE OF AUTHORITIES – continued continued continued 

Page(s)

Statutes Statutes

2 U.S.C. § 437g ............................................................7 

2 U.S.C. § 441a ......................................................6, 10 

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

2 U.S.C. §§ 431-439 ...................................................37 

Regulations Regulations

11 C.F.R. § 110.3 .......................................................32 

11 C.F.R. § 400.10 ...............................................31, 32 

11 C.F.R. § 400.31 ...............................................31, 33 

Other Authorities Other Authorities

Anderson, Ross, Bill Clinton’s Big Debt to H. Ross 

Perot, SEATTLE TIMES, Nov. 6, 1992, at A8...........18 

Center for Responsive Politics, The Big Picture: 

Election Stats 

http://www.opensecrets.org/bigpicture/elec_stats.as

p..............................................................................21 

Cooper, Michael, Rich Are Different, N.Y. TIMES, 

Dec. 5, 2001, at D3.................................................19 

Dart, Bob, Family, Mormonism, Wealth, AUSTIN 

AMERICAN-STATESMAN (Tex.), Nov. 30, 2007, at 

A23 .........................................................................20 

deFiebre, Conrad, Routes Differ Sharply Along 

Money Trail, STAR TRIBUNE (Minneapolis, Minn.), 

Sept. 27, 2000, at 1A..............................................20 

FEC, 2002 U.S. House of Representatives Results, 

http://www.fec.gov/pubrec/fe2002/house1.htm; 

http://www.fec.gov/pubrec/fe2002/house2.htm .....23 

FEC, CONCILIATION AGREEMENT (Dec. 3, 2007), 

http://eqs.nictusa.com/eqsdocs/00006797.pdf .........8 
vi 

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Page(s)

FEC, CONCILIATION AGREEMENT (Aug. 8, 2007), 

http://eqs.nictusa.com/eqsdocs/0000684D.pdf.........8 

FEC, CONCILIATION AGREEMENT (Dec. 12, 2006), 

http://eqs.nictusa.com/eqsdocs/00005967.pdf .........8 

FEC, CONCILIATION AGREEMENT (June 26, 2006), 

http://eqs.nictusa.com/eqsdocs/00005581.pdf .........8 

FEC, CONCILIATION AGREEMENT (Mar. 10, 2006), 

http://eqs.nictusa.com/eqsdocs/00005041.pdf .........8 

FEC, CONCILIATION AGREEMENT (Feb. 3, 2006), 

http://eqs.nictusa.com/eqsdocs/0000516D.pdf.........8 

FEC, CONCILIATION AGREEMENT (July 18, 2005), 

http://eqs.nictusa.com/eqsdocs/000045A7.pdf.........8 

FEC, Search Campaign Finance Summary Data 

(U.S. House, 2001-2002), 

http://www.fec.gov/finance/disclosure/srssea.shtml23 

Final Election Results, USA TODAY, Nov. 5, 1998, at 

6A ...........................................................................24 

Hager, George, End of Deficit Era Marks Beginning 

of Battle Over Surpluses, WASH. POST., Sept. 30, 

1998, at C10 ...........................................................19 

Hook, Janet, Big Spenders Can Be Losers in 

Campaigns, L.A. TIMES, June 5, 1998, at A1........24 

JACOBSON, GARY C., THE POLITICS OF CONGRESSIONAL 

ELECTIONS (2004)...................................................21 

Jelen, Ted G., If Gore Loses, He Can Point to Nader 

Votes, NEWSDAY, Nov. 9, 2000, at A59..................19 

Jeter, Jon, Moseley-Braun in Trouble, WASH. POST, 

Oct. 1, 1998, at A16 ...............................................24 

Lee, Jessica, Candidates’ Wealth a Detriment No 

More, USA TODAY, Oct. 5, 1994, at 2A............19, 20 
vii 

TABLE OF AUTHORITIES – TABLE OF AUTHORITIES – continued continued continued 

Page(s)

Mitchell, Alison, Senate Votes to Aid Candidates 

Facing Deep Pockets, N.Y. TIMES, Mar. 21, 2001, at 

A16 .........................................................................27 

Nakashima, Ellen, Mark Warner’s $10 Million Sets a 

Record in Virginia, WASH. POST, Dec. 6, 1996, at 

A40 .........................................................................24 

O’Toole, James, Huckabee Candidacy Fueled by 

Stand on Tax, PITTSBURGH POST-GAZETTE (Penn.), 

Dec. 9, 2007, at A13 ...............................................19 

Price Index Increases for Expenditure Limitations, 

73 Fed. Reg. 8696 (Feb. 14, 2008) .....................6, 16 

Purdum, Todd S., The Tried and True in California 

Triumph Over the Rich and New, N.Y. TIMES, June 

4, 1998, at A1 .........................................................24 

Steen, Jennifer A., Self-Financed Candidates and the 

“Millionaires’ Amendment,” in MICHAEL J. MALBIN, 

THE ELECTION AFTER REFORM 210 (2006).............13 

STEEN, JENNIFER A., SELF-FINANCED CANDIDATES IN 

CONGRESSIONAL ELECTIONS (2006)......19, 21, 23, 24 

Steen, Jennifer, Maybe You Can Buy an Election, 

But Not With Your Own Money, WASH. POST, June 

25, 2000, at B1 .......................................................23 

The Midwest, WASH. POST, Nov. 9, 2000, at A39 .....24 

Walsh, Kenneth T. & Linda Kulman, The Gilded Age 

of American Politics, U.S. NEWS & WORLD REPORT, 

May 20, 1996, at 26................................................20 

West, Paul, PrimariesDemonstrate Money 

Isn’t Everything, BALTIMORE SUN, June 4, 

1998, at 1A .............................................................24 

Yoachum, Susan, Huffington Concedes, Drops Voter 

Challenge, S.F. CHRON., Feb. 8, 1995, at A3.........24 
viii 

TABLE OF AUTHORITIES – TABLE OF AUTHORITIES – continued continued continued 

Page(s)

 

Legislative History Legislative History

147 Cong. Rec. S2536-02, S2542 (Mar. 20, 2001).....22 

147 Cong. Rec. S2845-02, S2852 (Mar. 26, 2001).....13 

147 Cong. Rec. S3183-01, S3192 (Mar. 30, 2001).....31 

147 Cong. Rec. S3183-01, S3195 (Mar. 30, 2001).....32 

148 Cong. Rec. H256-03, H261 (Feb. 12, 2002)........27 

148 Cong. Rec. H369-01, H381-82 (Feb. 13, 2002)...34 

148 Cong. Rec. S2096-02, S2142 (Mar. 20, 2002).....26 
INTERESTS OF AMICI CURIAE AMICI CURIAE 

1

 

Amici are individuals who have been ensnared by 

the Millionaires’ Amendment because they used personal funds while running for Federal office in recent 

election cycles. Amici can attest that the Amendment 

chills their speech and further skews the political

playing field in favor of incumbents. According to the 

FEC, each of the Amici has run afoul of the Amendment and has been made to pay a substantial fine for 

doing so. They wish to call the Court’s attention to 

their experience, which illustrates that the Amendment, in its practical operation, discourages political 

participation and dampens political competition. 

Amicus Oscar Gene DeRossett is an employee of 

the U.S. Department of Agriculture who ran for Congress in 2004 in Michigan’s 7th Congressional District. Because he believed in our political system and 

was committed to doing what he thought was necessary to compete in it, Mr. DeRossett borrowed 

against his home and retirement savings to spend 

about $530,000 of his personal funds during his 

campaign in the Republican primary. 

The FEC fined Mr. DeRossett $59,000 for failing to comply with the Millionaires’ Amendment pro-

 

1

 The parties have consented to the filing of this brief and their 

letters of consent have been filed with the Clerk. In accordance 

with Rule 37.6, Amici state that this brief was not written in 

whole or in part by counsel for any party, and no persons other 

than Amici have made a monetary contribution to the preparation or submission of this brief. 
2 

vision requiring disclosure within 24 hours of expending more than $350,000 of personal funds on a 

campaign. The violation occurred because Mr. 

DeRossett’s outside vendor responsible for handling

such matters was unaware of the new law’s demanding provisions. Mr. DeRossett paid the fine in 2007

out of his retirement savings. Prior to his 2004 run 

for Congress, Mr. DeRossett had run three straight 

successful campaigns for Michigan’s House of Representatives. The personal and reputational costs Mr.

DeRossett has incurred under the Millionaires’ 

Amendment, however, have effectively disqualified 

him from running for office. 

Amicus J. Edgar Broyhill II ran in the 2004 Republican primary for the U.S. House of Representatives in North Carolina’s 5th Congressional District. 

He invested $350,000 of his personal funds in his 

campaign because he believed in our political system 

and was facing a competitive and difficult field. 

In 2006, Mr. Broyhill paid a $71,100 fine to the 

FEC for allegedly failing to comply with the Millionaires’ Amendment by not filing the requisite disclosure forms within 24 hours of expending these funds. 

The problem arose because Mr. Broyhill’s campaign 

staff had been unaware of the provision and its requirements and because of inadequate reporting systems implemented by the FEC. Like Mr. DeRossett, 

Mr. Broyhill was personally liable for the fine imposed by the FEC. The personal costs Mr. Broyhill 

has incurred under the Millionaires’ Amendment 

have dissuaded him from making another run for political office. 
3 

SUMMARY OF ARGUMENT SUMMARY OF ARGUMENT OF ARGUMENT 

Section 319 of the Bipartisan Campaign Reform 

Act of 2002, the so-called “Millionaires’ Amendment” 

governing House races, is complex in its mechanics 

yet elementary in its practical effect: it changes the 

rules of the game as soon as a self-financed candidate expends over a threshold amount of personal 

funds, discouraging that candidate by imposing special reporting requirements and lifting the limits on 

contributions that would otherwise apply to that 

candidate’s opponent. 

The Amendment thus burdens a self-financed 

candidate’s decision to advocate his own election 

with personal funds. As the personal experience of 

Amici attest, the disclosure rules are not only burdensome but perilous. The Amendment also forces a 

self-financed candidate to enable his own opponent’s 

hostile counterspeech by triggering relaxation of limits on contributions to that opponent. Ceilings on expenditures in political campaigns have long required 

strict First Amendment scrutiny. Regulations that 

deter or penalize such expenditures require scrutiny 

no less strict. 

The Millionaires’ Amendment also burdens the 

speech of contributors to political candidates. An individual may contribute up to $2,300 to the selffinanced candidate, but up to $6,900 to his opponent. 

Accordingly, the extent to which a contributor may 

express support for a candidate depends on which 

candidate he supports. By discouraging self-financed 

candidates’ and their contributors’ speech, the 

Amendment reduces the quantity and quality of political speech. This is a loss to the political system, 
4 

for self-financed candidates raise issues that would 

not otherwise be addressed and challenge incumbents who would not otherwise face competitive 

races. For these reasons too, the Amendment should 

not be upheld unless narrowly tailored to a compelling interest. 

But no legitimate, let alone compelling, interest 

supports the Millionaires’ Amendment. It cannot be 

justified as combating corruption (or the appearance 

thereof), for it designedly works against those candidates least susceptible to any disproportionate influence by contributors. Self-financed candidates are, by 

definition, financially beholden solely or principally 

to themselves. If anything, the Amendment encourages corruption by allowing self-financed candidates’ 

expenditures to trigger higher cash contributions to 

their opponents. 

Neither can any novel “equalization” interest justify the Amendment. The right to speak does not entail the right to speak as loudly or as effectively as 

one’s rivals. It is not for the government to choose 

sides in order to equalize speaking power. Even if 

such an interest were not “wholly foreign to the First 

Amendment,” it would fail the test of narrow tailoring here because Section 319 helps entrench wellfunded incumbents against competition from their 

self-funded challengers. 

Finally, any anti-distortion interest the government might advance here is a post hoc invention. 

Such an interest in any event has no application outside of corporate speech and could be advanced 

through less speech-restrictive means. 
5 

The Millionaires’ Amendment may be best explained as a provision passed by incumbents for incumbents, as the legislative record confirms. In a 

political landscape where incumbents almost always 

win, the Amendment contains the most formidable 

threat to any incumbent’s continued supremacy—a 

self-financed challenger with money to match conviction. Such suppression of dissent is inimical to the 

First Amendment. 

ARGUMENT ARGUMENT 

I. THE MILLIONAIRES’ AMENDMENT U THE MILLIONAIRES’ AMENDMENT U ENDMENT UNCONSTITUTIONALLY BURDENS CORE P CONSTITUTIONALLY BURDENS CORE P DENS CORE POLITICAL SPEECH PROTECTED BY THE LITICAL SPEECH PROTECTED BY THE 

FIRST AMEND FIRST AMENDMENT. 

In Buckley v. Valeo, this Court struck down limitations on personal expenditures by a candidate in 

support of his own candidacy. 424 U.S. 1, 51-54 

(1976). “[T]he First Amendment simply cannot tolerate [a] restriction upon the freedom of a candidate to 

speak without legislative limit on behalf of his own 

candidacy.” Id. at 54. Rejecting a provision of the 

Federal Election Campaign Act (“FECA”) that 

capped the amount of personal funds a candidate 

could spend on his own campaign, this Court recognized that “[t]he [self-financed] candidate, no less 

than any other person, has a First Amendment right 

to engage in the discussion of public issues and vigorously and tirelessly to advocate his own election.” 

Id. at 52. 

By enacting Section 319 of the Bipartisan Campaign Reform Act of 2002 (“BCRA”), the so-called 
6 

“Millionaires’ Amendment,”2 Congress attempted an 

impermissible end run around Buckley, using means 

less blatant but no less unconstitutional to limit the 

speech of self-financed candidates. Instead of placing 

a direct ceiling on the amount of personal funds a 

candidate may spend on his own candidacy, the Millionaires’ Amendment penalizes a candidate who 

spends in excess of $350,000 of his own funds by subjecting him to additional reporting requirements and 

trebling the fundraising capabilities of his opponent.3

The Amendment thus burdens core political 

speech in three ways: it deters and penalizes a selffinanced candidate’s political speech; it deters and 

penalizes speech by a self-financed candidate’s contributors; and it diminishes the quantity and quality 

of political speech overall by discouraging candidacies that historically have made robust contributions 

 

2

 Section 319 is codified at 2 U.S.C. § 441a-1 and only applies to 

elections for House of Representatives. The “Millionaires’ 

Amendment” provision for Senatorial elections is found in Section 304 of the Act, codified at 2 U.S.C. § 441a(i). 

3

 Under the Amendment, if a self-financed House candidate 

spends more than $350,000 in personal funds on his campaign, 

his opponent may, in some circumstances, (1) receive contributions at treble the $2,300-per-election limit for each donor; (2) 

receive these trebled contributions from donors who have already reached the $42,700-per-election-cycle limit for aggregate 

campaign donations; and (3) in general elections, coordinate 

with a political party committee to receive additional party expenditures over the normal $42,100-per-election limit in states 

with more than one congressional district, and the $82,100-perelection limit in states with only one congressional district. 2 

U.S.C. § 441a-1(a)(1); Price Index Increases for Expenditure 

Limitations, 73 Fed. Reg. 8696 (Feb. 14, 2008). 
7 

to our democracy. Accordingly, the Millionaires’ 

Amendment deserves the strictest First Amendment 

scrutiny. 

A. Section 319 Burdens Self- Section 319 Burdens Self-Financed Financed 

Candidates’ Speech. Candidates’ Speech. 

Section 319 burdens self-financed candidates’ political speech both by imposing formidable reporting 

requirements upon such candidates and by transferring comparative advantage to their opponents. It 

therefore warrants strict scrutiny as a regulation of 

expenditures. As opposed to contribution regulations, 

which infringe upon speech indirectly, expenditure 

regulations are “direct restraints on speech” and are 

subject to “the exacting scrutiny required by the 

First Amendment.” Nixon v. Shrink Mo. Gov’t PAC, 

528 U.S. 377, 386 (2000) (internal quotations omitted). 

1. Special d Special disclosure isclosure isclosure requirements equirements 

imperil imperilself-financed inanced c inanced candidates andidates andidates. 

Section 319 directly burdens self-financed candidates’ political speech by imposing special disclosure 

obligations upon them,4

 and by punishing noncompliant candidates with civil penalties of up to 100% 

of the triggering expenditures, or up to 200% for 

knowing and willful violations. 2 U.S.C. § 437g(a)(5)-

 

4

 The Millionaires’ Amendment requires a candidate who intends to spend in excess of $350,000 to file a declaration stating 

such intent within 15 days of becoming a candidate; to file initial notification within 24 hours of spending in excess of 

$350,000; and, after passing the $350,000 threshold, to file additional notifications within 24 hours of spending anything over 

$10,000. 2 U.S.C. § 441a-1(b)(1). 
8 

(6). This burden is obvious and serious: no less than 

seven congressional candidates, including these 

Amici, have already suffered fines in amounts from 

$34,000 to $91,000 for supposed noncompliance.5

 Although the FEC downplays the declaration requirement as entailing nothing more than candidates’ 

“estimates” of their projected personal expenditures, 

the FEC has in fact censured at least one candidate

for failing to timely file a declaration of intent to 

spend personal funds when the candidate later decided to increase the amount of his personal spending.6

 

5

 These candidates include Amicus Broyhill, see FEC, CONCILIATION AGREEMENT (June 26, 2006), http://eqs.nictusa.com/ 

eqsdocs/00005581.pdf (fined $71,000); Mike Crotts, see FEC, 

CONCILIATION AGREEMENT (July 18, 2005), http:// 

eqs.nictusa.com/eqsdocs/000045A7.pdf (fined $40,000); Amicus

DeRossett, see FEC, CONCILIATION AGREEMENT (Aug. 8, 2007), 

http://eqs.nictusa.com/eqsdocs/0000684D.pdf (fined $59,000); 

Sandy Lyons, see FEC, CONCILIATION AGREEMENT (Feb. 3, 

2006), http://eqs.nictusa.com/eqsdocs/0000516D.pdf (fined 

$34,000); John Raese, see FEC, CONCILIATION AGREEMENT (Dec. 

3, 2007), http://eqs.nictusa.com/eqsdocs/00006797.pdf (fined 

$74,500); James Socas, see FEC, CONCILIATION AGREEMENT 

(Mar. 10, 2006), http://eqs.nictusa.com/eqsdocs/00005041.pdf 

(fined $68,250); Charles Taylor, see FEC, CONCILIATION 

AGREEMENT (Dec. 12, 2006), http://eqs.nictusa.com/eqsdocs/ 

00005967.pdf (fined $91,000). 

6

 Mike Crotts, a House candidate in 2004, filed an initial 

amended Form 2 in September 2003 declaring that he did not 

intend to spend personal funds. In October 2004, he loaned to 

his campaign $400,000 funded by a personal home equity 

line. The FEC left open the possibility that its censure was for 

Crotts’ failure to be prescient about his later decision to spend 

personal funds beyond the threshold. See FEC, CONCILIATION 

AGREEMENT (July 18, 2005), http://eqs.nictusa.com/eqsdocs/ 

000045A7.pdf. 
9 

The disclosure requirements also compel selffinanced candidates to reveal, at crucial campaign 

junctures, personal information they otherwise 

would not. While self-financed candidates would ultimately need to disclose the amount of their personal expenditures to the FEC, the special disclosure 

requirement puts the issue of their personal wealth

front and center at the start of election season. Instead of being free to frame their candidacies and to 

make disclosures on the schedule followed by other 

candidates, particularly their opponents, selffinanced candidates are forced to announce themselves as “fat cats” at the inception of their campaigns. 

While upholding FECA’s disclosure requirements 

for political campaign contributions and expenditures in Buckley, this Court treated such disclosure 

requirements as burdens on protected speech requiring a compelling justification. 424 U.S. at 64-68. 

“[C]ompelled disclosure, in itself, can seriously infringe on privacy of association and belief guaranteed 

by the First Amendment.” Id. at 64. Accordingly, 

mandatory disclosure can be justified only by government interests surviving “exacting scrutiny.” Id.;

see also McIntyre v. Ohio Elections Comm’n, 514 

U.S. 334, 355 (1995) (mandatory reporting “undeniably impedes protected First Amendment activity”). 

Thus, were the Millionaires’ Amendment limited to 

disclosure requirements, and nothing more, it would

still be subject to strict scrutiny of both its ends and 

means. 
10 

2. Increased c Increased contribution ontribution ontribution limits forceselffinanced candidates to enable the 

counterspeech of their opponents. counterspeech of their opponents. opponents. 

The Millionaires’ Amendment also penalizes the 

self-financed candidate’s expenditures by expanding

his opponent’s relative fundraising capabilities. 

While self-financed candidates remain shackled by 

the normal limits for individual and aggregate contributions and for coordinated expenditures, opponents are free to enjoy trebled individual 

contributions from donors freed from aggregate contribution limits, and to benefit from relaxed limits on 

coordinated expenditures.7 

It makes no difference that here, unlike in Buckley, there is no absolute ceiling on a self-financed 

candidate’s expenditures. Regulations that deter or

penalize protected speech trigger strict First 

Amendment scrutiny no less than outright bans. See, 

e.g., United States v. Playboy Entm’t Group, 529 

U.S. 803, 812, 826 (2000); United States v. Nat’l 

Treasury Employees Union, 513 U.S. 454, 468-69 

(1995); Simon & Schuster, Inc. v. Members of N.Y. 

State Crime Victims Bd., 502 U.S. 105, 115 (1991). 

Moreover, making one’s expression a trigger for an 

opponent’s enhanced competing expression is as 

much a burden on speech as government dampening 

one’s expression in the first place. See Miami Herald 

 

7

 In addition to the trebled contribution limits that may be triggered in House races under the Amendment, the Senate version 

may allow opponents of self-financed candidates to raise six

times the normal contribution amounts from individuals. See 2 

U.S.C. § 441a(i)(1)(C)(iii). Although not before the Court, the 

Senate version of the Millionaires’ Amendment is even more 

burdensome on First Amendment rights. 
11 

Publ’g Co. v. Tornillo, 418 U.S. 241 (1974) (invalidating a state law requiring a newspaper to afford political candidates space for replying to its criticism). 

Nor does it matter that the government here does 

not restrict the self-financed candidate but rather

confers a windfall on his opponent. In a competitive 

race, it makes no difference whether the government

slows down a faster sprinter by shackling his heels

or gives the slower sprinter a head start that gives 

him one-third the distance to run; such a transfer of 

relative advantage might not prevent the faster runner from running as fast as he can, but nonetheless

might alter the outcome of the race. So too here: for 

the prototypical situation the Millionaires’ Amendment addresses, where a self-financed candidate is 

pitted against an opponent vying for the same office, 

it makes no difference whether the self-financed 

candidate’s contribution limits are shrunk to a third 

(say, from a baseline of $6,900 to $2,300) or the opponent’s are trebled (say, from $2,300 to $6,900), 

once some personal expenditure threshold is 

cleared—in either event, the competitive penalty is

functionally and constitutionally the same. 

Compounding the offense to the First Amendment, this transfer of relative speaking power is a

direct response to the candidate’s own speech. If a

candidate chooses to self-finance, he must enable 

hostile counterspeech that would not exist but for the 

candidate’s decision to advocate his own election. In 

effect, the Amendment compels a self-financed candidate to support his opponent’s campaign. 

This is presumptively unconstitutional, for although a speaker may not “have the right to be free
12 

from vigorous debate,” he “does have the right to be 

free from government restrictions that abridge [his] 

own rights in order to ‘enhance the relative voice’ of 

[his] opponents.” Pacific Gas & Electric Co. v. Public 

Util. Comm’n, 475 U.S. 1, 14 (1986); see also Tornillo, 418 U.S. at 256-57 (holding that speech on one 

side of the debate cannot trigger a benefit to the 

other side). As the Eighth Circuit explained in holding unconstitutional a comparable provision of Minnesota’s campaign finance law, the knowledge that a

self-funded candidate’s opponent will be freed of otherwise applicable campaign finance limits, “as a direct result of [one’s] independent expenditure, chills 

the free exercise of that protected speech. This ‘selfcensorship’ . . . is no less a burden on speech . . . than 

is direct government censorship.” Day v. Holahan, 34 

F.3d 1356, 1360 (8th Cir. 1994) (citation omitted).

The chilling effect of the Millionaires’ Amendment can be especially potent for “non-millionaire” 

self-financed candidates—aspiring politicians who 

might lack vast personal wealth but believe so 

strongly in their candidacies that they nonetheless

are willing to overextend their own finances to fund 

them. The Amendment thus advantages incumbents 

not only against wealthy candidates, but also against 

self-financed candidates of relatively modest means

yet devout belief who spend what they can in order to 

compete. 

Amicus DeRossett fits this profile. A civil servant, 

he is not a millionaire, but felt so strongly about his 

candidacy that he borrowed against his home to run 

for Congress in 2004. DeRossett’s precise situation

was presciently outlined in the 2001 BCRA debate: 
13 

Under the amendment that passed, some poor 

guy or woman who runs against me-I don’t 

mean “poor” in the sense of not having anything-say they mortgage their home, and take 

a loan out someplace, and spend their own 

money. I would be able to increase my fundraising limits because they mortgaged their 

home. This is what the millionaire amendment 

does. It has nothing to do with millionaires. It 

has everything to do with protecting us. It is 

an incumbent advantage measure in this underlying bill. 

147 Cong. Rec. S2845-02, S2852 (Mar. 26, 2001) 

(statement of Sen. Reid in opposition to BCRA). 

True to Senator Reid’s broader prediction, these 

burdens are indeed hindering self-financed candidates from challenging incumbents and chilling their 

speech. Before the passage of BCRA, the number of 

challengers whose personal expenditures exceeded 

BCRA thresholds had steadily increased over the 

previous ten election cycles. Jennifer A. Steen, SelfFinanced Candidates and the “Millionaires’ Amendment,” in MICHAEL J. MALBIN, THE ELECTION AFTER 

REFORM 210 (2006). After BCRA, the number of selffinanced challengers dropped from 17 in 2002 to 13 

in 2004. Id. The practical effect of the Millionaires’ 

Amendment thus may well have been that fewer selffinanced candidates run for office and fewer incumbents are challenged. Similarly, in the 2004 congressional election, only 43 candidates self-financed 

above the BCRA thresholds, a decrease from 57 candidates in the 2002 cycle whose personal expenditures exceeded the thresholds subsequently enacted. 

Id. at 209. 
14 

The court below relied on lower court cases involving public financing that supposedly suggest Section 319 does not burden self-financed candidates’ 

speech. Davis v. FEC, 501 F. Supp. 2d 22, 29 (D.D.C. 

2007) (three-judge court). To be sure, lower courts

have upheld state statutes that permit increased 

contribution and expenditure limits for candidates 

who agreed to participate in public financing programs. See Daggett v. Comm’n on Gov’t Ethics & 

Election Practices, 205 F.3d 445, 464-65 (1st Cir. 

2000); Gable v. Patton, 142 F.3d 940, 948 (6th Cir. 

1998); Rosenstiel, 101 F.3d at 1551; Rosenstiel v. 

Rodriguez, 101 F.3d 1544, 1551 (8th Cir. 1996); VoteChoice, Inc. v. DiStefano, 4 F.3d 26, 39 (1st Cir. 

1993). But see Day, 34 F.3d at 1359-62 (invalidating 

a public financing scheme as an insufficiently justified burden on speech). 

But these cases all turned on a feature absent 

from Section 319: the presence of a public subsidy.

The courts of appeals declined to find impermissible 

coercion from the mere fact that a candidate’s refusal 

to participate in a public funding scheme triggered

relaxation of otherwise applicable limits on an opponent’s fundraising. See Gable, 142 F.3d at 948-49; 

Rosenstiel, 101 F.3d at 1550; VoteChoice, 4 F.3d at 

38-39. According to those courts, lifting limits on

candidates participating in public funding merely 

offsets sacrifices they made by accepting public funding in the first place. See, e.g., VoteChoice, 4 F.3d at 

39. The statutes thus were not “inherently penal.” Id.

at 38; Rosenstiel, 101 F.3d at 1550. 

But that premise does not hold for Section 319, 

which confers benefits upon opponents of selffinanced candidates without them having made any 
15 

offsetting sacrifice. Unlike the triggers involved in 

the public funding cases, therefore, the Millionaires’ 

Amendment does not compensate for a governmental 

burden that has been imposed on only one candidate;

to the contrary, both candidates in this instance have 

been subject to precisely the same contribution limit. 

In this sense, the Millionaires’ Amendment is “inherently penal” toward the self-financed candidate, irrespective of how a public financing scheme might 

properly be characterized. 

In all these respects, the Amendment burdens 

self-financed candidates’ speech so as to require 

strict scrutiny. 

B. Section 319 Burdens the First 

Amendment Rights of Contributors to 

Self-Financed Candidates. Financed Candidates. Financed Candidates. 

In addition to the burden it imposes directly on 

self-financed candidates, Section 319 also burdens 

the First Amendment rights of contributors by limiting their ability to choose and contribute as they see 

fit between competing candidates of their choice. As 

this Court recognized in Buckley, the ability to contribute money to a candidate for elective office is a 

protected part of freedom to associate. 424 U.S. at 25. 

Although this right is not absolute, Buckley noted 

that “the size of [a] contribution provides a very 

rough index of the intensity of the contributor’s support for the candidate.” Id. at 21. Section 319 infringes the right of association by disabling 

contributors from associating with a self-financed 

candidate to the same extent they may associate 

with his opponent. 
16 

Under the Millionaires’ Amendment, the extent to 

which a contributor may exercise political speech in 

association with a candidate depends on which candidate he supports. Section 319’s expanded contribution limits allow individuals to contribute up to 

$6,900 to the opponent of a self-financed candidate, 

while contributions to the self-financed candidate 

remain limited to $2,300. See 2 U.S.C. § 441a-1; 73 

Fed. Reg. 8696, 8698. Thus, once a self-financed candidate triggers the Amendment, contributors to his 

campaign can express their support only one-third as 

strongly as his opponent’s contributors. By making 

individuals’ level of participation in the democratic 

process contingent on one’s political views, the Millionaires’ Amendment strikes at the heart of the 

First Amendment. 

Worsening matters, Section 319 effectively taxes 

political contributions to self-financed candidates. 

Because the triggering formula includes outside contributions, every donation to a self-financed candidate helps enable his opponent to raise more money 

under the relaxed contribution limits. This penalty

can be as high as 50% of the contributor’s donation, 

since every $2 given to a self-financed candidate 

might allow his opponent to raise an extra dollar to 

catch up. See 2 U.S.C. § 441a-1(a)(2); (describing calculation of opposition personal funds amount 

(“OPFA”)); id. § 441a-1(a)(3) (allowing opponents to 

self-financed candidates to raise 100% of OPFA under increased limits); see also 11 C.F.R. §§ 400.10, 

400.31.8

 

8

 This result will obtain when a self-financed candidate has 

triggered Section 319’s relaxed contribution limits but has 
17 

This Court reiterated in Shrink that “a contribution limit involving ‘significant interference’ with associational rights . . . could survive [only] if the 

Government demonstrated that contribution regulation was ‘closely drawn’ to match a ‘sufficiently important interest.’” 528 U.S. at 387-88 (quoting 

Buckley, 424 U.S. at 25). Although not as demanding 

as the scrutiny applied to expenditure limits, the 

standard of review for regulations on contributions is 

nevertheless an exacting one. See Randall v. Sorrell, 

126 S. Ct. 2479 (2006) (striking down Vermont’s contribution limits as too restrictive). Where, as here, a 

law distorts the political donation process by effectively choosing sides among contributors, especially 

exacting application of this standard is warranted. 

C. Section 319 Burdens the Political Section 319 Burdens the Political 

System by Reducing the Quantity and 

Quality of Speech. Quality of Speech. 

The Millionaires’ Amendment burdens First 

Amendment interests not only by penalizing selffinanced candidates’ speech on behalf of their own 

candidacies and by taxing contributors’ support of 

such candidates, but also by restricting the quantity 

and quality of political speech in the democratic system as a whole—a goal this Court found impermissible in Buckley, 424 U.S. at 57 (government may not 

control “the quantity and range of debate on public

issues in a political campaign”). This too is an independent ground for applying strict scrutiny here. 

 

raised less money in outside contributions than his opponents 

by the relevant benchmark date. See 11 C.F.R. § 400.10. 
18 

The Millionaires’ Amendment ignores the particularly important contributions that self-financed candidates make to electoral debate. Candidates who 

believe so strongly in their ideologies that they are 

willing to use their own money to advance their political messages increase political dialogue and, in 

turn, the competitiveness of elections. It is a fallacy, 

however, to suppose that personal wealth translates

automatically into electoral success, for self-financed 

candidates lose elections routinely. 

1. Self-financed candidates increase financed candidates increase 

political dialogue. political dialogue. 

Whether or not self-financed candidates ultimately attain political office, they meaningfully influence politics and policy by contributing to political 

debate during election campaigns and drawing attention to otherwise-neglected issues. As several 

prominent self-financed presidential campaigns illustrate, a self-financed candidate can influence debate by introducing new ideas that might not be 

forthcoming from candidates who must take safe positions to amass donations from contributors. 

Self-financed presidential candidate Ross Perot, 

for example, focused his 1992 candidacy on a message of economic populism that defined the political 

debate in that election season and gave voice to millions of Americans whose concerns had gone unaddressed by the two major parties. Ross Anderson, 

Bill Clinton’s Big Debt to H. Ross Perot, SEATTLE 

TIMES, Nov. 6, 1992, at A8 (Perot won 19 million 

votes by “point[ing] out the ideological bankruptcy of 

the major parties.”). Perot characterized the federal 

budget deficit as comparable to “a crazy old aunt in 
19 

the attic” that neither party wanted to discuss. Ted 

G. Jelen, If Gore Loses, He Can Point to Nader 

Votes, NEWSDAY, Nov. 9, 2000, at A59. By the end of 

the decade, both the Republican and Democratic parties had endorsed plans to reduce the budget deficit 

and, by 1998, the federal government was operating 

at a surplus. See George Hager, End of Deficit Era 

Marks Beginning of Battle Over Surpluses, WASH.

POST., Sept. 30, 1998, at C10. 

Steve Forbes, another self-financed presidential 

candidate, contributed to political dialogue by focusing attention on ideas for radical tax reform, which—

from the “flat tax” to the “fair tax”—that have remained salient in American politics since Forbes’s 

1996 campaign. James O’Toole, Huckabee Candidacy 

Fueled by Stand on Tax, PITTSBURGH POST-GAZETTE

(Penn.), Dec. 9, 2007, at A13. 

Self-financed candidates often run on campaign 

platforms that emphasize the independence of their 

ideas from those espoused by the special interests 

upon whom non-self-financed candidates depend. See 

JENNIFER A. STEEN, SELF-FINANCED CANDIDATES IN 

CONGRESSIONAL ELECTIONS 6, 15, 127 (2006). Senator Herb Kohl of Wisconsin, for example, spent more

than $7 million of his own funds in his 1988 senatorial race, campaigning on the slogan, “Nobody’s 

Senator but Yours.” Jessica Lee, Candidates’ Wealth 

a Detriment No More, USA TODAY, Oct. 5, 1994, at 

2A. In the 2000 New Jersey senatorial race, selffinanced candidate Jon Corzine campaigned under 

the slogan “Unbought and Unbossed.” Michael Cooper, Rich are Different, N.Y. TIMES, Dec. 5, 2001, at 

D3. Similarly, Minnesota Senator Mark Dayton ran 

a primary election television advertisement in which 
20 

he stated, “I won’t be workin’ for the wealthy or the 

powerful, or the special interests, and won’t be takin’ 

my money from them. I don’t need their money.” 

Conrad deFiebre, Routes Differ Sharply Along 

Money Trail, STAR TRIBUNE (Minneapolis, Minn.), 

Sept. 27, 2000, at 1A.9

A candidate’s decision to self-finance communicates a political message about his campaign: “Unbought and Unbossed.”10 Section 319 not only 

burdens this message, but also forces the candidate

to communicate the opposite message: that selffinancing corrupts the political process so as to warrant reporting and penalties. Thus, the Amendment 

does not merely seek to cure a problem that does not 

exist—namely, a candidate’s “corruption” of himself

through self-financing—but creates an appearance of 

corruption by casting aspersions on the self-financed 

candidate (see Part II.A infra). 

 

9

 Other self-financed candidates have noted their independent 

status without centering campaigns around it. Senate candidate Tom Bruggere, for example, stated, “No one owns me. I 

don’t have special interests controlling me, and a $5,000 contribution won’t buy me.” Kenneth T. Walsh & Linda Kulman, The 

Gilded Age of American Politics, U.S. NEWS & WORLD REPORT, 

May 20, 1996, at 26, 28. More recently, Republican presidential 

candidate Mitt Romney commented that supporting his own 

candidacy kept him free of special interest influences: “I’m not 

beholden to any particular group for getting me in this race or 

getting me elected.“ Bob Dart, Family, Mormonism, Wealth, 

AUSTIN AMERICAN-STATESMAN (Tex.), Nov. 30, 2007, at A23. 

10 Voters themselves may embrace the campaign platforms of 

self-financed candidates, viewing these candidates as “buying 

immunity from special interests” rather than “buying the election.” Jessica Lee, Candidates’ Wealth a Detriment No More, 

USA TODAY, Oct. 5, 1994, at 2A. 
21 

2. Self-financed candidates increase the financed candidates increase the 

competitiveness of elections by 

challenging incumbents. challenging incumbents. 

In addition to being likelier to inject novel ideas

into political debate, self-financed candidates are

better able than non-self-financed candidates to 

mount competitive races against incumbents—and 

they do. Incumbents enjoy numerous, tremendous 

advantages over challengers—greater name recognition, rollover funds (potentially on the order of millions of dollars) from prior campaigns, media access, 

comprehensive fundraising databases and strategies,

franking privileges, and paid travel expenses for official duties, to name just a few—and overwhelmingly 

win reelection.11 See generally GARY C. JACOBSON, 

THE POLITICS OF CONGRESSIONAL ELECTIONS 32-41, 

85 (2004). 

Non-self-financed candidates typically cannot 

keep pace with incumbents when it comes to fundraising. Without adequate funds and in light of the

non-financial advantages already skewed in incumbents’ favor, most non-self-financed candidates cannot compete against incumbents; indeed, few even 

try. See STEEN, supra, at 54. Although campaigns 

against incumbents are similarly difficult for self-

 

11 In the 2000-2006 House races, 94-98% of incumbents won reelection. See Center for Responsive Politics, The Big Picture: 

Election Stats, http://www.opensecrets.org/bigpicture/ 

elec_stats.asp?cycle=2006 (94% in 2006); id., http:// 

www.opensecrets.org/bigpicture/elec_stats.asp?cycle=2004 (98% 

in 2004); id., http://www.opensecrets.org/bigpicture/ 

elec_stats.asp?cycle=2002 (96% in 2002); id., http:// 

www.opensecrets.org/bigpicture/elec_stats.asp?cycle=2000 (98% 

in 2000). 
22 

financed candidates, self-financed candidates are 

better able to use their financial resources to overcome incumbents’ inherent institutional advantages.

As the self-financed candidate gets closer to matching the incumbents’ financial resources, the race becomes more competitive, and the amount of political

dialogue, and thus political accountability, increases. 

By lifting contribution limits for the opponents of

such self-financed candidates, Section 319 effectively 

insulates incumbents by making it easier for them to 

avoid competitive challengers. As Senator Chris 

Dodd explained during floor debates on BCRA, the 

self-financed candidate who challenges an incumbent

“spend[s] a million dollars of his own money to level 

the playing field” against the incumbent. 147 Cong.

Rec. S2536-02, S2542 (Mar. 20, 2001). The Millionaires’ Amendment tilts the playing field again, to the 

detriment of political debate. 

3. Self-financed candidates’ wealth does financed candidates’ wealth does 

not translate automatically into 

electoral success. electoral success. 

Although self-financed candidates’ campaigns 

thus increase both the quantity and quality of political dialogue, it is wrong to suppose that these candidates’ resources will enable them to “buy” elections 

or corrupt the political process, for they rarely actually win. While candidates such as Ross Perot and 

Steve Forbes have been able to draw national attention to important issues, their spending millions of 

dollars on their own campaigns did not guarantee 

success. 

In fact, the overwhelming majority of selffinanced candidates do not win. See STEEN, supra, at 
23 

161 (“The bottom line is that self-financing has had a 

surprisingly small effect on election outcomes.”).For 

example, in the 2002 House elections, before Section 

319 was enacted, 50 candidates self-financed 

$350,000 or more.12 Of the 50 candidates, only 10 

won the general election.13 During the congressional 

election cycles spanning 1990 through 1998, 16% of 

non-incumbent Senate candidates who self-financed 

$1 million or more won, compared to 32% of nonincumbent candidates who fundraised $1 million or 

more. In House elections during the same years, 21%

of non-incumbents who self-financed more than $1 

million won seats, compared to 67% of nonincumbents who fundraised more than $1 million. 

Jennifer Steen, Maybe You Can Buy an Election, But 

Not With Your Own Money, WASH. POST, June 25, 

2000, at B1. 

No amount of money guarantees success on Election Day. Al Checchi, for example, invested nearly 

$40 million in his campaign to win the California 

Democratic gubernatorial nomination, but lost to 

Lieutenant Governor Gray Davis. Todd S. Purdum, 

 

12 The $350,000 figure includes both contributions and loans. 

The 50 candidates include those in primaries, special elections, 

and general elections. 

13 See FEC, Search Campaign Finance Summary Data (U.S. 

House, 2001-2002), http://www.fec.gov/finance/disclosure/ 

srssea.shtml (select “2001-2002” under “Election Cycle” and 

“U.S. House” under “Office”; select an individual candidate to 

determine whether he or she self-financed $350,000 or more); 

see also FEC, 2002 U.S. House of Representatives Results, 

http://www.fec.gov/pubrec/fe2002/house1.htm (database listing 

voting data for Alabama through Mississippi), http:// 

www.fec.gov/pubrec/fe2002/house2.htm (same for Missouri 

through Wyoming). 
24 

The Tried and True in California Triumph Over the 

Rich and New, N.Y. TIMES, June 4, 1998, at A1. Michael Huffington self-financed $28 million in the 

1994 California Senate race and lost to the incumbent, Senator Dianne Feinstein. Susan Yoachum, 

Huffington Concedes, Drops Voter Challenge, S.F.

CHRON., Feb. 8, 1995, at A3.14 The consistent losses 

of self-financed candidates, regardless of how much

they contribute to their campaigns, belie legislators’ 

fear that these candidates will corrupt the political 

process. 

Even when self-financed candidates do win elections, their personal spending is rarely the key to

victory. See STEEN, supra, at 113. For instance, Peter 

Fitzgerald spent over $16 million and defeated Senator Carol Moseley Braun in the 1998 Illinois senatorial election. Final Election Results, USA TODAY, 

Nov. 5, 1998, at 6A. But Moseley Braun’s reelection

campaign was plagued by allegations of ethical 

breaches related to her expenditures of both personal 

and campaign finances and controversy over her 

meeting with a Nigerian dictator. Jon Jeter, Moseley-Braun in Trouble, WASH. POST, Oct. 1, 1998, at 

A16. Mark Dayton, who self-financed a $10 million 

campaign, also won against an opponent riddled with

well-publicized personal scandal. The Midwest, 

WASH. POST, Nov. 9, 2000, at A39. The ability to self-

 

14 Additional examples include Mark Warner, see Ellen Nakashima, Mark Warner’s $10 Million Sets a Record in Virginia, 

WASH. POST, Dec. 6, 1996, at A40;Darrell Issa, see Janet Hook, 

Big Spenders Can Be Losers in Campaigns, L.A. TIMES, June 5, 

1998, at A1 (self-financed $12 million);and Charles Owen, see

Paul West, Primaries Demonstrate Money Isn’t Everything, 

BALTIMORE SUN, June 4, 1998, at 1A (self-financed $5 million). 
25 

finance simply enabled these challengers to be in the 

game and compete with incumbents; it cannot be assumed that it won them their elections. 

Taken together, therefore, the Millionaires’ 

Amendment’s burdens on self-financed candidates, 

their contributors, and their contributions to political 

debate, clearly warrant strict scrutiny. 

II. NO GOVERNMENT INTEREST JUSTIFIES 

THE BURDEN ON SPEECH THE MILLION- THE BURDEN ON SPEECH THE MILLIONAIRES’ AMENDMENT IMPOSES. AIRES’ AMENDMENT IMPOSES. 

Since Buckley, this Court has “explicitly rejected” 

mere intermediate scrutiny for expenditure limitations, explaining that “expenditures restrictions [are] 

direct restraints on speech” that demand “exacting 

scrutiny,” because core political speech is at stake. 

See Shrink, 528 U.S. at 386; FEC v. Mass. Citizens 

for Life, Inc., 479 U.S. 238, 256-63 (1986) (requiring 

“compelling state interest” and applying traditional 

strict scrutiny analysis to expenditure restrictions). 

Buckley and subsequent cases have recognized 

combating “corruption” as the only compelling interest that justifies meddling in the electoral marketplace—and even then, only when a regulation is 

genuinely likely to combat that corruption. Corruption, in this context, refers to problems arising when 

money changes hands between contributor and candidate such that the contributor may achieve “undue

influence on an officeholder’s judgment, and the appearance of such influence.” FEC v. Colo. Republican 

Fed. Campaign Comm., 533 U.S. 431, 441 (2001). 

Such problems are, by definition, limited to monetary 

contributions and their functional equivalent, and 
26 

have never been thought to extend to independent 

expenditures. 

As explained supra in I.A., however, the Millionaires’ Amendment tracks, regulates, and penalizes 

independent expenditures by self-financed candidates. It does so by enabling higher cash contributions to candidates who are most desperate for the 

money because they are in danger of being outspent 

by self-financed candidates. The Amendment thus 

turns any anti-corruption rationale on its head. To

the extent that the Millionaires’ Amendment does 

not target corruption but rather aims to equalize

electoral speaking power, that is an end Buckley rejected altogether as illegitimate. Any novel alternative justifications the FEC may posit are foreign to 

this Court’s precedents and unsupported by the legislative record. 

Lacking any other justification, the Millionaires’ 

Amendment may reduce to incumbency protection, 

pure and simple. Cf. Shrink, 528 U.S. at 402 (Breyer, 

J., concurring) (calling for heightened scrutiny to

guard against “such constitutional evils as, say, permitting incumbents to insulate themselves from effective electoral challenge”). BCRA’s legislative 

history is bereft of an anti-corruption rationale for 

the House and Senate Millionaires’ Amendments and 

does not reveal any convincing equalization rationale. Instead, the legislators (all incumbents by definition) repeatedly appealed to a different concern—

namely, collective fear of being unseated by wealthy 

challengers.15

 

15 See, e.g., 148 Cong. Rec. S2096-02, S2142 (Mar. 20, 2002) 

(statement of Sen. McCain) (“Congress has concluded that the 
27 

A. Section 319 Does Not Prevent But 

Actually Encourages Corruption. Actually Encourages Corruption. es Corruption. 

Corruption is “the real or imagined coercive influence of large financial contributions on candidates’ 

positions and on their actions if elected to office,” 

Buckley, 424 U.S. at 25, and “post-election special 

favors that may be given in return” for large contributions, id. at 67. The anti-corruption rationale selfevidently cannot justify penalizing or discouraging a 

candidate’s personal expenditures because there is 

no third party to exert influence in exchange for the 

funds; a candidate cannot corrupt himself. To the 

contrary, “the use of personal funds reduces the candidate’s dependence on outside contributions and 

thereby counteracts the coercive pressures and attendant risks of abuse to which . . . contribution limitations are directed.” Id. at 53. The expenditure of 

 

contribution limits—despite their fundamental importance in 

fighting actual and apparent corruption—should be relaxed to 

mitigate the countervailing risk that they will unfairly favor 

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

their own money to win election.”); 148 Cong. Rec. H256-03, 

H261 (Feb. 12, 2002) (statement of Rep. Reynolds, opposing the 

House version of BCRA because the Millionaires’ Amendment 

did not go far enough to protect incumbents) (“My colleagues 

should live in fear, all 435 of us, that a wealthy American decides to run . . . .”). Cf. McConnell v. FEC, 540 U.S. 93, 249 

(2003) (Scalia, J., concurring in part and dissenting in part) (attributing the Millionaires’ Amendment to incumbency protection). Senator McCain even predicted to reporters that a 

Millionaires’ Amendment would pass because “everyone [was] 

scared to death of waking up one morning and reading in the 

newspaper that some Fortune 500 C.E.O. or heiress is going to 

run against them . . . .” Alison Mitchell, Senate Votes to Aid 

Candidates Facing Deep Pockets, N.Y. TIMES, Mar. 21, 2001, at 

A16. 
28 

personal funds frees the candidate to promote the 

electorate’s interests over those of large donors. 

When voters elect a candidate with less allegiance to 

donors, the voters know they are electing the name 

on the ballot—not the patrons behind it. See id. at 

67; see also Part I.B supra. 

 Even if an anti-corruption interest were in any 

way implicated by Section 319’s burden on personal 

candidate expenditures, it is not narrowly tailored to 

serve any such interest. To the contrary, Section 319 

only exacerbates any corruption problem. By allowing opponents of self-financed candidates to receive 

donations from contributors at up to three times the 

otherwise applicable limit, 2 U.S.C. § 441a-1(a)(1)(A), 

it allows contributors who are willing and able to donate at such large levels to obtain greater influence 

on elected officials. The candidate who invokes Section 319’s provisions to avoid contribution and coordinated expenditure limits will presumably be 

especially beholden to the small number of contributors who are able to make large contributions 

quickly. If a self-financed candidate injects a large 

sum of cash into his campaign, the rival candidate 

will want to take in offsetting contributions as 

quickly as possible.16 A candidate in this position will 

go to the contributors he knows have deep pockets 

and strong incentives. 

Further, Section 319 increases any governmental 

concern that contributors will expressly or implicitly 

negotiate a quid pro quo. Because contributors will 

 

16 The Amendment’s rapid-fire disclosure provisions—requiring 

a 24-hour reporting turnaround—emphasize that time is of the 

essence. 11 U.S.C. § 441a-1(b)(2)(C)-(D). 
29 

be unlikely to know that the Section was invoked absent affirmative communication by the candidate, 

and because the candidate’s existing contribution 

framework should already screen out over-the-limit 

contributions, it is unlikely that donors would know 

and choose of their own initiatives to make the enhanced contributions. Instead, the needy candidate 

will likely select and contact the largest donors for a 

special favor. Where multiples of the usual contribution amounts are at play, such exchanges are more 

likely to devolve into subtle or even explicit quid pro 

quo negotiations. 

For all these reasons, Section 319 cannot be justified as preventing corruption or the appearance of 

corruption. It turns any such interest on its head.

B. A Purported Equalization Interest 

Cannot Save Section 319. Cannot Save Section 319. 

The FEC and the court below rely instead on a 

supposed interest in “equalization,” or minimizing 

the perceived advantage of candidates who can help 

finance their own campaigns. M.D.A. 16-17; 501 F. 

Supp. 2d at 34 (“The Millionaires’ Amendment is an 

attempt to provide at least a partial remedy for what 

Congress decided was an unavoidable problem when 

political opponents for elected office are not similarly 

situated in their abilities to fund a campaign from

their own resources.”). No equalization theory has 

ever succeeded in this Court because the Constitution protects the right to speak, not the right to 

speak as loudly or effectively as everyone else. Nor 

should such a theory succeed for the first time here. 

In rejecting an equalization interest offered to 

justify FECA’s ceiling on independent expenditures,
30 

Buckley recognized that “the concept that government may restrict the speech of some elements of our 

society in order to enhance the relative voice of others is wholly foreign to the First Amendment.” 424 

U.S. at 48-49 (emphasis added). Accordingly, this 

Court has never upheld an equalization rationale as

valid. See Shrink, 528 U.S. at 428 (“[P]reventing corruption or the appearance of corruption are the only 

legitimate and compelling government interests thus

far identified for restricting campaign finances.”). 

It is no answer to recharacterize the government 

interest here as simply reducing the time burden 

that the campaign finance regime imposes on candidates who must raise funds from contributors. First, 

the distinction makes no difference because funds 

(and obtaining funds) are part and parcel of speech

itself. Buckley, 424 U.S. at 19. Second, this Court has 

already rejected the argument that the Buckley

framework recognizes an interest in equalizing the 

relative time candidates spend on fundraising. See 

Randall, 126 S. Ct. at 2490. 

Even if equalizing speaking power between selffinanced candidates and their opponents were a valid 

interest, Section 319 would still fail strict scrutiny 

because it is not narrowly tailored to that interest. 

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. Because the Government asks for a novel 

equalization justification here, only the clearest empirical support for such a rationale will suffice. 
31 

For several reasons, however, Section 319 fails 

any requirement of narrow tailoring.17 First, it discounts the contributions in a candidate’s “war chest” 

by 50%. 2 U.S.C. § 441a-1(a)(2)(B)(ii). This was legislative logrolling: the legislators were well aware that 

incumbents would be the candidates with the largest

pre-election war chests and they had to at least purport to offset this advantage. But it is untenable to 

justify offsetting this advantage by only half its actual value while accounting for 100% of the value of 

personal expenditures. A dollar expended from an 

incumbent’s war chest is no less valuable than a dollar expended from a challenger’s personal savings, 

yet Congress—predictably—did not call a fair game 

in this regard. See 147 Cong. Rec. S3183-01, S3192 

(Mar. 30, 2001) (statement of Sen. Durbin introducing the Senate version of the 50% offset provision)

(explaining that the offset was created because “some 

incumbents may have cash on hand and that ought 

to be taken into consideration when you consider the 

triggers as to millionaires’ expenditures.”); id. at 

 

17 In addition, the district court appeared to get certain particulars of the Amendment’s supposed equalization features wrong. 

Compare 501 F. Supp. 2d at 26 (stating that the formula “adds 

50% of the total funds raised by each candidate during the year 

prior to the election”), with 2 U.S.C. § 441a-1(a)(2)(B)(ii) (adding 

this number, the gross receipts advantage, only to the campaign-funded candidate); accord 11 C.F.R. § 400.10(a)(2)-(3) 

(expressing the same function in terms of alternative conditionals); compare 501 F. Supp. 2d at 26 (stating that Section 319’s 

new limits end “[o]nce each candidate’s OPFAs [“oppositional 

personal funds amount,” which is the result of the 50%-

adjustment formula] are equal”), with 2 U.S.C. § 441a-1(a)(3)(A) 

(calculating only one OPFA); accord 11 C.F.R. § 400.31(e). 
32 

S3195 (statement of Sen. Dodd) (identifying the incumbent-protecting feature of the offset). 

Second, incumbents can further reduce the purported offset by moving funds between their primary

and general election accounts. This is so because Section 319 looks only at the primary and general election account balance as of the benchmark date, after 

which the candidate is free to shift funds. See 11 

C.F.R. § 110.3(c)(3). Third, the Section completely

disregards contributions received after the benchmark date,18 allowing a contribution-funded candidate to structure his donations and solicitations to 

occur after December 31. 

Together, these features of Section 319 can exacerbate inequalities even if the self-financed candidate is somehow lucky enough to match the 

incumbent’s war chest on the benchmark date. Suppose that Challenger A (an up-and-coming candidate 

with new ideas) and Incumbent B (the longstanding 

officeholder) each have $400,000 in campaign funds 

as of the December 31 statutory benchmark date. In 

the beginning of September, Challenger A goes on a 

media campaign to publicize her new platform. By 

September 5, Challenger A has exhausted her campaign treasury. In response, Incumbent B exhausts 

his funds as well. Incumbent B then holds a fundraiser on September 7, raising $1,000,000, which he

spends by September 15. Challenger A does not have 

the political connections to put on such a large event; 

instead, on the same day, she gives her campaign a 

 

18 Section 319 does not count contributions made after the 

statutory benchmark date. 2 U.S.C. § 441a-1(a)(2)(B)(ii); 11 

C.F.R. § 400.10(b). 
33 

$500,000 loan to counter Incumbent B’s $1,000,000 

blitz. Challenger A’s loan to herself triggers the Section’s $350,000 threshold. 

Under Section 319, Incumbent B can now take 

advantage of trebled contribution limits and increased coordinated party expenditures until B 

raises $500,000 in new funds. See 2 U.S.C. § 441a1(a)(3)(A); 11 C.F.R. § 400.31(e). Incumbent B works 

his party connections, convincing the party to make

$500,000 in coordinated expenditures by September 

20. Disregarding—as the statute does—the money 

raised and spent by both candidates between December 31 and September 5, Challenger A spent a total 

of $900,000 whereas Incumbent B spent $1,900,000; 

and it is Section 319 that enabled B to inject 

$500,000 of that amount so quickly. In light of other 

built-in fundraising advantages that incumbents enjoy, see supra I.C.2, of which the Millionaires’ 

Amendment takes no account, it is especially clear 

that the Amendment is underinclusive with respect 

to candidate equality. 

The Amendment is also overinclusive because a 

self-financed candidate’s personal expenditures do 

not necessarily translate dollar-for-dollar into a 

match for a contribution-funded candidate’s media 

volume or quantity of speech. As Buckley recognized, 

self-financed candidates will not always have a net

advantage, because “a candidate’s personal wealth 

may impede his efforts to persuade others that he 

needs their financial contributions.” Id. at 54. Thus, 

wealthy candidates may need to finance large portions of their campaign in order to match contribution-funded candidates because voters—even if they 

agree with the wealthy candidate’s platform—are 
34 

less likely to donate to a candidate that is well off. 

Buckley similarly noted that it may be harder for 

wealthy candidates to find the volunteer staff to 

make the campaign’s speech as effective as possible. 

Id. Thus, a wealthy candidate might have to add his 

own funds not just to match his opponent but also to 

offset the inherent disadvantages his wealth and 

self-financing causes his campaign. 

Finally, Congress had several less restrictive alternatives from which to choose. Assuming, arguendo, that lower court decisions upholding 

incentives to participate in public-financing schemes 

are correct, Congress could have made the voluntary

choice to make public financing more attractive. See 

Part I.A supra. It might also have chosen a voluntary 

limit. For example, the most-debated alternative to

the House bill that became BCRA contained a “voluntary personal funds expenditure limit.” 148 Cong.

Rec. H369-01, H381-82 (Feb. 13, 2002). This alternative would have allowed a “millionaire” candidate to 

declare to the FEC that he would not exceed the voluntary limit and authorized the FEC to monitor the 

candidate’s spending and impose fines equal to personal funds spent in excess of the limit. Id. Candidates would have been encouraged to comply 

voluntarily by the risk of having their noncompliance 

publicized by the opposition. Such a provision would 

have been less restrictive than the Millionaires’ 

Amendment, allowing voters to decide for themselves

whether and how to account for a particular candidate’s decision to self-finance. 
35 

C. Section 319 Cannot Be Justified as 

Counteracting “Distortion” Resulting 

from Self- from Self-Financed Candidates’ Speech. Financed Candidates’ Speech. Financed Candidates’ Speech. 

The FEC attempts to bolster its claim that 

equalization is a legitimate justification for Section 

319, arguing that “a self-financing candidate’s expenditures threaten to sever the usual link between

a candidate’s financial resources and the level of his 

actual public support.” M.D.A. 18. The FEC thus 

seeks to rationalize Section 319 as protecting voters’ 

perceptions of campaign treasuries as indicators of

popularity. But the Government’s attempt fails because Congress has no legitimate interest in policing 

a candidate’s expenditures to accord with what Congress considers popular support; and in any event 

this justification is post hoc. But even if Congress 

had some evidence that candidates’ self-financing 

“distorts” the political process, Section 319 is not 

narrowly tailored to serve any anti-distortion interest. 

This Court has never found that Congress has a 

valid interest in limiting the money a candidate expends to what Congress deems the candidate’s popular support. The closest this Court has ever come to 

such reasoning is its decision in Austin v. Mich. 

Chamber of Commerce, 494 U.S. 652 (1990), upholding a Michigan law prohibiting corporations from 

making political expenditures through corporate 

treasuries. Austin, however, was expressly about 

special features of the corporate form that enable 

“vast reservoirs of capital” to be amassed; these features gave rise to a corresponding interest in combating “the corrosive and distorting effects of immense 

aggregations of wealth that are accumulated with 
36 

the help of corporate form and that have little or no 

correlation to the public’s support for the corporation’s political ideas.” Id. at 660-61. This Court has 

never expanded Austin outside the corporate context. 

Nor should it here. There is nothing corrosive or 

distorting about a candidate’s use of his own money

to fund his own political campaign—to conclude otherwise would overrule Buckley. See 424 U.S. at 54. 

Indeed, this Court recognized in Buckley that the 

“normal relationship” between a candidate’s funds 

and public support “may not apply where the candidate devotes a large amount of his personal resources to his campaign.” 424 U.S. at 45 n.63. And 

Buckley rejected the notion that Congress may attempt to influence the amount of money that each 

candidate should have to spend on his campaign: “In

the free society ordained by our Constitution it is not 

the government, but the people individually as citizens and candidates and collectively as associations 

and political committees who must retain control 

over the quantity and range of debate on public issues in a political campaign.” 424 U.S. at 57. 

Setting aside that any anti-distortion interest is 

constitutionally foreclosed, no such interest is presented here. No legislative findings or record evidence supports such an interest, which Congress 

never invoked to justify the Millionaires’ Amendment. Instead, FEC lawyers simply posit the interest 

post hoc in this litigation. Under heightened scrutiny, however, “[t]he justification must be genuine, 

not hypothesized or invented post hoc in response to 

litigation.” United States v. Virginia, 518 U.S. 515, 

533 (1996). 
37 

Finally, Section 319 is not narrowly tailored to 

meet any anti-distortion objective. Other provisions 

of federal election law require that candidates disclose the source of their political contributions. See 2 

U.S.C. §§ 431-439. A voter who sees lots of advertising by a self-financed candidate can turn to disclosure databases on the internet, discover that the 

money behind those ads came from the candidate 

himself, decide whether that money correlates with 

popular support, and, if not, what the implications

are. With full disclosure, there is no distortion—an 

informed public can draw its own conclusions about 

individuals and their speech. 

Section 319, if anything, impedes this disclosure 

regime by allowing opponents to self-financed candidates to exceed normal contribution limits, thereby

diluting the natural relationship between funding 

and support that voters might otherwise infer. Thus, 

Section 319 undermines the effectiveness of the preexisting disclosure rules. Accordingly, this Court 

should not allow the FEC to justify Section 319 as an 

anti-distortion measure. 

In sum, anti-distortion is an end foreclosed by 

precedent, disconnected from Congress’s actual purpose, and ill-fit to the means of the Millionaires’

Amendment. Absent any other legitimate or plausible justification, the Amendment fails strict scrutiny. 
38 

 

CONCLUSION CONCLUSION 

The decision below should be reversed. 

Respectfully submitted, 

February 27, 2008 

KATHLEEN M. SULLIVAN

Counsel of Record 

DEREK L. SHAFFER 

STANFORD CONSTITUTIONAL

 LAW CENTER 

STANFORD LAW SCHOOL 

559 Nathan Abbott Way 

Stanford, CA 94305-8610 

(650) 725-9875 

Counsel for Amici Curiae