No. 07-320 

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

IN THE

Supreme Court of the United States 

———— 

JACK DAVIS, 

Appellant, 

v. 

FEDERAL ELECTION COMMISSION, 

Appellee. 

———— 

On Appeal from the United States District Court 

for the District of Columbia 

———— 

REPLY BRIEF FOR APPELLANT 

———— 

ANDREW D. HERMAN * 

STANLEY M. BRAND

BRAND LAW GROUP, PC 

923 Fifteenth Street, N.W. 

Washington, D.C. 20005 

(202) 662-9700 

ELIZABETH F. GETMAN

SANDLER, REIFF & YOUNG, P.C. 

300 M Street, SE 

Suite 1102 

Washington, DC 20003 

* Counsel of Record Attorneys for Appellant 

April 11, 2008
(i) 

TABLE OF CONTENTS 

Page 

TABLE OF AUTHORITIES................................ ii 

INTRODUCTION................................................ 1 

 I. SECTION 319 BURDENS THE 

POLITICAL SPEECH OF SELFFINANCED CANDIDATES WITHOUT 

REGARD TO PERSONAL WEALTH ...... 2 

 II. SECTION 319 INFRINGES ON SELFFINANCED CANDIDATES’ CONSTITUTIONAL RIGHTS................................ 5 

 III. THE GOVERNMENT HAS NO COMPELLING INTEREST IN “LEVELING 

THE PLAYING FIELD.” .......................... 12 

 IV. SECTION 319 IS NOT SUFFICIENTLY 

TAILORED TO SATISFY ANY APPLICABLE LEVEL OF SCRUTINY........ 14 

 V. THIS COURT HAS JURISDICTION TO 

DECIDE THIS CONTROVERSY............. 16 

 VI. SECTION 319’S DISCLOSURE AND 

CONTRIBUTION PROVISIONS ARE 

PART OF AN INTEGRATED REGIME 

THAT IS NOT SUSCEPTIBLE TO 

SEVERANCE............................................ 20 

CONCLUSION .................................................... 22
ii 

TABLE OF AUTHORITIES 

FEDERAL CASES Page 

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

(1987)......................................................... 20 

Austin v. Mich. State Chamber of Commerce, 494 U.S. 652 (1990) ....................... 13 

Broadrick v. Oklahoma, 413 U.S. 601 

(1973)......................................................... 10 

Brown v. Hartlage, 456 U.S. 45 (1982)........ 3 

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

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

1994).......................................................... 6 

Dombrowski v. Pfister, 380 U.S. 479 

(1965)......................................................... 19 

FEC v. Beaumont, 539 U.S. 146 (2003) ....... 13 

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

Ct. 2652 (2007).....................................17, 18, 19 

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

U.S. 765 (1978).......................................... 17 

McConnell v. FEC, 540 U.S. 93 (2003) ........ 12, 13 

Miami Herald Publ’g Co. v. Tornillo, 418 

U.S. 241 (1974).......................................... 5 

NAACP v. Button, 371 U.S. 415 (1963) ....... 19 

New York v. Ferber, 458 U.S. 747 (1982)..... 10 

Pacific Gas & Elec. Co. v. Pub. Util. 

Comm’n of Cal., 475 U.S. 1 (1986) ........... 5, 6 

Perry v. Sindermann, 408 U.S. 593 (1972).. 11 

Randall v. Sorrell, 126 S. Ct. 2479 (2006)... 14 

Regan v. Time, Inc., 468 U.S. 641 (1984) .... 20 

Rita v. United States, 127 S. Ct. 2456 

(2007)......................................................... 20 

Spencer v. Kemna, 523 U.S. 1 (1998)........... 17 

Speiser v. Randall, 357 U.S. 513 (1958) ...... 11 

Storer v. Brown, 415 U.S. 724 (1974) .......... 17 
iii 

TABLE OF AUTHORITIES 

FEDERAL STATUTES Page 

Bipartisan Campaign Reform Act of 2002 .. 1 

Pub. L. No. 107-155, 116 Stat. 81 (2002) 

(“BCRA”) 

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

 § 401 .......................................................... 21 

 § 403(a)(4).................................................. 18 

Federal Election Campaign Act of 1971, 

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

amended in 1974, Pub. L. No. 93-443, 88 

Stat. 1263 (“FECA”).................................. 20 

2 U.S.C.: 

 § 432 .......................................................... 21 

 § 434 .......................................................... 21 

 § 441a ........................................................ 21 

 § 441a-1 ..................................................... 1, 21 

 § 441a-1(a)(2) ............................................ 15 

 § 441a-1(a)(3)(A)(i).................................... 21 

 § 454 .......................................................... 21 

OTHER AUTHORITIES 

Jennifer Steen, Maybe You Can Buy an 

Election, But Not With Your Own 

Money, WASH. POST, June 25, 2000, at 

B1............................................................... 4 

Jill Terreri, Democrat Davis Confirms 

He’ll Run Again for Congress, ROCHESTER DEMOCRAT & CHRONICLE, Mar. 27, 

2008, at 5B ................................................ 16 

FEC Adv. Op. 2003-31 (Dece. 19, 2003) ...... 8 
IN THE

Supreme Court of the United States 

———— 

No. 07-320 

———— 

JACK DAVIS, 

Appellant, 

v. 

FEDERAL ELECTION COMMISSION, 

Appellee.

———— 

On Appeal from the United States District Court 

for the District of Columbia 

———— 

REPLY BRIEF FOR APPELLANT 

———— 

INTRODUCTION 

Unique among campaign finance laws, Section 319 

of the Bipartisan Campaign Reform Act of 2002 

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

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

handicaps select candidates to promote an ill-defined 

governmental interest in equality. Analogies to the 

regulation of private contributions, corporate spending, and public financing do not validate Section 319’s 

burden. In aim and effect, the provision violates the 

First and Fifth Amendment rights of self-financed 

candidates. 
2 

 I. SECTION 319 BURDENS THE POLITICAL SPEECH OF SELF-FINANCED 

CANDIDATES WITHOUT REGARD TO 

PERSONAL WEALTH. 

A. The Federal Election Commission (“FEC”) 

propagates two canards initially offered by Congress 

to justify enactment of Section 319. First, the 

provision is not a “modest” effort to “decrease the 

influence of personal wealth in congressional elections.” Brief of Appellee FEC (FEC Br.) 14. Rather, 

by affecting individuals contemplating using any

amount of personal funds in a race for the United 

States House of Representatives, the broad provision 

attempts to deter—and failing that, penalize—any 

meaningful level of personal expenditures. 

Section 319 regulates not just the “wealthy” trying 

to “buy a seat in Congress.” FEC Br. 14. As the 

FEC’s enforcement record demonstrates, the provision handicaps candidates who encumber their 

home equity, retirement benefits, or personal savings 

to participate in the political process. See, e.g., 

Brief of Amici Gene DeRossett & Edgar Broyhill 

(DeRossett Br.) 1-2. One 2004 Congressional candidate who was penalized by the FEC for his failure to 

disclose personal expenditures mortgaged his house 

to raise $400,000 in campaign funds. Id. at 8 n.6. 

Because the $350,000 benchmark is not indexed for 

inflation, the statute’s coverage in future elections 

will encompass increasingly modest personal expenditures. Meanwhile, the cost of a competitive House 

race continues to soar. See Brief of Appellant Jack 

Davis (Davis Br.) 23-24 (discussion of indexing); 52-

53 (increasing cost of House races). 

Paradoxically, Section 319 overlooks a much larger 

class of millionaires—the incumbents whose personal 
3 

wealth is found in “war chests” containing millions 

of dollars of private contributions. Because the 

provision does not account for the assets of these 

millionaires, the assertion that Section 319 diminishes the importance of wealth in House races 

must be rejected. The provision is more accurately 

described as regulating the use of personal funds to 

benefit candidates relying on private contributions. 

B. The FEC also parrots Congress’s claim that 

Section 319 fosters equality in elections “where a selffinancing candidate’s expenditures threaten to sever 

the usual link between a candidate’s financial 

resources and the level of his actual public support.” 

FEC Br. 17. As this Court has repeatedly stated, 

however, a candidate’s personal spending does not 

“distort” the electoral process: “The First Amendment denies government the power to determine that 

spending to promote one’s political views is wasteful, 

excessive, or unwise.” Buckley v. Valeo, 424 U.S. 1, 

57 (1976) (per curiam). Instead, voters “retain control over the quantity and range of debate.” Id.; see 

also Brown v. Hartlage, 456 U.S. 45, 60 (1982) 

(Congress has no authority to regulate speech based 

on the “fear that voters might make an ill-advised 

choice . . . in the course of a political campaign.”). 

Even the FEC acknowledges the range of voters’ 

potential responses to a candidate’s personal expenditures. See FEC Br. 48 n.15. Yet, by regulating 

personal expenditures, Congress conveys to the 

electorate that this form of communication is “itself 

thought to be harmful.” Buckley, 424 U.S. at 17 

(citation and quotation marks omitted). 

Nor does the record establish that the public 

actually perceives that wealthy individuals are 

unfairly—much less corruptly—purchasing congres-
4 

sional seats. The only evidence provided by the FEC 

are Members’ statements during debate expressing 

trepidation about the influence of personal expenditures. See FEC Br. 6-7; FEC’s Statement of 

Material Facts ¶¶ 9-40, Joint Appendix (J.A.) 72-82. 

But the self-interest of Section 319’s primary 

beneficiaries is hardly sufficient to demonstrate 

public sentiment. 

Indeed, the author of the expert report submitted 

by the FEC has questioned the effectiveness of 

personal campaign expenditures: “Self-financers 

usually don’t win. When they do, it isn’t their money 

alone that puts them in office.” Jennifer Steen, 

Maybe You Can Buy an Election, But Not With Your 

Own Money, WASH. POST, June 25, 2000, at B1. 

Given the lack of evidence that elections are won by 

personal spending alone, congressional misgivings 

about self-financed candidates usurping the voters’ 

choice are misplaced. Data from the last few elections shows that few self-financed candidates have 

won their elections, and that many other factors, 

such as ethics scandals or other controversies, often 

affect the outcome. See DeRossett Br. 22-25. 

Finally, Section 319’s purported curative value 

remains unexplained. Increasing the money that 

candidates may receive from their wealthiest donors 

or national parties is an ill-considered approach to 

restoring the “usual link” between candidates and the 

general public. Nor does the FEC explain why, 

unlike personal expenditures, a war chest of funds 

raised during previous campaigns accurately represents current public sentiment about a privately 

financed candidate. 
5 

 II. SECTION 319 INFRINGES ON SELFFINANCED CANDIDATES’ CONSTITUTIONAL RIGHTS. 

A. The parties’ constitutional dispute focuses on 

whether Section 319 infringes on a self-financed 

candidate’s “core” political speech. In invalidating 

the previous limitations on personal expenditures, 

this Court held that the “First Amendment simply 

cannot tolerate [the statute’s] restriction upon the 

freedom of a candidate to speak without legislative 

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

U.S. at 54. Echoing the district court’s rationale in 

upholding Section 319, see Appendix to the Jurisdictional Statement (J.S. App.) 13a, the FEC 

answers that the new regulations do not “burden 

political speech because they place no restrictions 

whatever on a candidate’s ability to spend personal 

funds in support of his own campaign.” FEC Br. 16. 

This assertion is irrelevant to any principled legal 

analysis, as it elides this Court’s contrary “compelled 

access” precedent. Claiming that a statute does “not 

amount to a restriction of appellant’s right to speak 

because ‘the statute in question here has not prevented [a party] from saying anything it wished’ begs 

the core question.” Miami Herald Publ’g Co. v. 

Tornillo, 418 U.S. 241, 256 (1974) (rejecting right of 

reply statute). Viewing Section 319 through this 

lens, it is evident that the authorization of extra-limit 

contributions for the opponents of a self-financed 

candidate imposes significant constitutional harms. 

“Appellant, does not, of course, have the right to be 

free from vigorous debate. But it does have the right 

to be free from government restrictions that abridge 

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

of its opponents.” Pacific Gas & Elec. Co. v. Pub. 
6 

Util. Comm’n of Cal., 475 U.S. 1, 14 (1986) (quoting

Buckley, 424 U.S. at 49 and n.55). 

The opinion in Pacific Gas & Electric Co., which 

invalidated a statute requiring a utility company to 

include with its bills materials from an opposing 

consumer group, returns this analysis to the electoral 

context. That decision is derived from Buckley’s 

rejection of expenditure limitations that “impose[ ] a 

substantial restraint on . . . protected First Amendment expression.” 424 U.S. at 52. For purposes of 

the First Amendment, then, it is irrelevant whether 

the regulation imposes an absolute ceiling on 

electoral expenditures or creates a different type 

of impairment. “To the extent that a candidate’s 

campaign is enhanced by the operation of the statute, 

the [opposing] political speech of the individual . . . is 

impaired.” Day v. Holahan, 34 F.3d 1356, 1360 (8th 

Cir. 1994). See Davis Br. 42-44; see also DeRossett 

Br. 12-13; Brief of Amicus James Madison Center 

(JM Br.) 25. 

 Section 319 expressly confers benefits on the opponents of a candidate making personal expenditures. 

The self-financer must ply his opponents with contemporaneous, strategic disclosures about his spending. His personal expenditures bolster his opponents’ 

fundraising opportunities and, ultimately, may enhance his competitors’ voices. The FEC never distinguishes this Court’s compelled access cases nor 

explains why Section 319 does not similarly infringe 

on a self-financed candidate’s First Amendment 

rights. 

B. In lieu of direct support from precedent, the 

FEC likens this matter to Buckley’s approval of 

public funding in presidential campaigns. As detailed in Mr. Davis’s opening brief, public funding 
7 

jurisprudence does not apply to a statute that 

increases private contributions to candidates. Davis 

Br. 53-56. Nonetheless, the FEC argues that 

“Buckley establishes that a candidate’s insistence on 

spending personal funds in amounts exceeding the 

statutory threshold may legitimately be treated by 

Congress as a ground for withholding a federal 

subsidy to which the candidate would otherwise be 

entitled.” FEC Br. 30 (citing Buckley, 424 U.S. at 

57 n.65). This claim, which represents a significant 

retrenchment from the district court’s more expansive public funding analysis, J.S. App. 11a-13a, 

still misreads Buckley. 

Buckley held that presidential public funding “is a 

congressional effort, not to abridge, restrict, or censor 

speech, but rather to use public money to facilitate 

and enlarge public discussion and participation in the 

electoral process.” 424 U.S. at 92-93. Buckley never 

sanctioned withholding federal subsidies in response 

to a candidate’s spending behavior. Instead, this 

Court concluded that the provision of public funds 

simply replaces the amount of private contributions 

that would normally be raised by participating major 

party candidates. Id. at 95 n.129. Ironically, this 

Court found that Congress intended to “reduce the 

deleterious influence of large contributions on our 

political process.” Id. at 91. The FEC’s use of 

Buckley’s public funding analysis to bolster a statute 

that fosters additional private contributions is, thus, 

particularly misplaced.1

 1

 Alluding to the issue of compelled access, Buckley also noted 

that the public funding “scheme involves no compulsion upon 

individuals to finance the dissemination of ideas with which 

they disagree.” 424 U.S. at 91 n.124 (citation omitted). Of 

course, the same cannot be said for the provision at issue here. 
8 

Section 319, unlike public financing of elections, 

also fails to “facilitate” or “enlarge” the public’s role 

in the electoral process. By tripling contribution 

limits, Section 319 does not expand the pool of 

donors; it simply permits candidates to re-solicit 

supporters who have already provided the maximum 

$2,300 per election contribution. Those donors can 

provide an additional $4,600 to the candidate, for a 

total contribution of $6,900. Only the excess funds, 

however, count toward Section 319’s cap on extralimit contributions, purportedly needed to create 

“parity.” See FEC Br. 41 n.14. Thus, rather than 

facilitating the involvement of a greater number of 

contributors, Section 319 increases the influence of 

well-heeled donors. It also diminishes the impact of 

those citizens who lack the resources to provide 

extra-limit contributions or who wish to make higher 

contributions to self-financers. See DeRossett Br. 

15-17 (Section 319 “disabl[es] contributors from 

associating with a self-financed candidate to the 

same extent they may associate with his opponent.” 

Id. at 15). 

As for increasing the “volume of campaign-related 

speech,” FEC Br. 16, Section 319 discourages nonwealthy candidates from borrowing against their 

personal assets to finance their candidacies. See

DeRossett Br. 1-2, 8 n.6. For a candidate whose best 

financial option is to make a personal loan secured 

by, say, a home mortgage, there is no mechanism to 

“roll back” Section 319’s calculations once that 

candidate repays the loan with contributions from 

private donors. See JM Br. 4-5 n.2; FEC Adv. Op. 

2003-31 (Dec. 19, 2003). This may significantly chill 

a non-wealthy candidate’s decision to enter the race.
9 

Nor does the regime confer any benefit on minorparty or little-known candidates who are dissuaded 

from self-financing because they fear aiding their 

opponents or suffering civil and criminal penalties 

for reporting errors. Having forgone the option of 

personal expenditures, these candidates—who may 

lack access to large donors and be unable to raise 

sufficient campaign funds under any limits—receive 

no boost from the provision. 

C. The FEC also refers to Buckley’s public financing analysis to address Mr. Davis’s equal protection 

claim that Section 319 treats him differently than his 

similarly situated opponents: “There is no reason 

to regard Section 319’s differentials in the amounts 

of money that candidates may receive from private 

contributions as more suspect than analogous differentials in the distribution of federal funds.” FEC 

Br. 45. This comparison is not analogous, as public 

funding comports with the Fifth Amendment for 

the precise reason that Section 319 violates the 

Constitution. 

The appellants’ equal protection challenge to the 

presidential funding provision in Buckley asserted 

that minor-party candidates did not receive the same 

financial benefits as their major-party opponents. 

Rejecting that claim, Buckley held that the provision 

of such funds did not “enhance” a major-party 

candidate’s “ability to campaign,” 424 U.S. at 95 

n.129, and could also “be viewed as a supplement” to 

any private contributions raised by minor-party 

candidates. Id. at 99. In comparison, Section 319’s 

only purpose is to diminish the self-financed candidate’s purported competitive advantage during 

the campaign. In short, governmental provision of 

public funds operates without consideration of the 
10 

competitive balance in a campaign while Section 319 

expressly aims to “level the playing field” among 

opposing candidates. 

D. The FEC offers two additional rationales for 

Section 319. First, the government cites the district 

court, J.S. App. 14a, in maintaining that Mr. Davis’s 

campaign expenditures preclude a claim that he was 

“chilled” by operation of the statute. FEC Br. 26. 

Buckley’s rejection of expenditure limitations, however, establishes that a complete chill is not required 

to demonstrate harm to core political speech. “[T]he 

equalization of permissible campaign expenditures 

might serve not to equalize the opportunities of all 

candidates but to handicap a candidate who lacked 

substantial name recognition or exposure of his views 

before the start of the campaign.” 424 U.S. at 56-57; 

see also JM Br. 6-7. As Mr. Davis detailed in his 

opening brief, his campaign suffered significant 

handicaps due to Section 319’s operation. Davis Br. 

34-44.2

 Given his very public reliance on personal 

funds, the simple existence of Section 319 provides 

 2

 The FEC ignores two related issues. First, this is a facial 

First Amendment challenge under which a law may be overturned as impermissibly overbroad because a “substantial 

number” of its applications are unconstitutional, “‘judged in 

relation to the statute’s plainly legitimate sweep.’” New York v. 

Ferber, 458 U.S. 747, 770 and n.25 (1982) (quoting Broadrick v. 

Oklahoma, 413 U.S. 601, 615 (1973)). Thus, while Mr. Davis’s 

experience is instructive, it is not determinative. Because 

Section 319 operates by virtue of statutorily-defined formulae 

aiding one class of candidates, it always benefits the opponents 

of a self-financer, regardless of any specific evidence of chilling 

of that candidate. Second, as illustrated by amicus Gene 

DeRossett and others cited in his brief, Section 319’s $350,000 

threshold regulates decidedly non-wealthy candidates whose 

electoral decisions will be particularly susceptible to chill. See 

DeRossett Br. 12-13. 
11 

Mr. Davis’s opponents with a substantial sword to 

wield in their race. They may ask, “If self-funding 

is not corrupting, why is there a law curbing its 

impact?” See Buckley, 424 U.S. at 17 (congressional 

regulation conveys message that communication is 

harmful). 

The FEC also contends, without support of precedent, that by preserving the “status quo” limits for 

candidates who spend less than $350,000, Section 

319 actually benefits such candidates. FEC Br. 31-

33. Similarly, it maintains that any self-financed 

candidate is “clearly better off . . . than he would be if 

campaign fundraising were unregulated.” Id. at 33 

n.9. Setting aside the significant tailoring concerns 

about Section 319, these assertions ignore this 

Court’s bar on placing unconstitutional conditions on 

the receipt of a government-conferred benefit. The 

government “may not deny a benefit to a person on 

a basis that infringes his constitutionally protected 

interests—especially, his interest in freedom of 

speech.” Perry v. Sindermann, 408 U.S. 593, 597 

(1972). “For if the government could deny a benefit 

to a person because of his constitutionally protected 

speech or associations, his exercise of those freedoms 

would in effect be penalized and inhibited. This 

would allow the government to ‘produce a result 

which [it] could not command directly.’” Id. (quoting 

Speiser v. Randall, 357 U.S. 513, 526 (1958)). See 

also Brief of Amicus The Cato Institute (Cato Br.) 

6-7. 

Given that the Constitution protects a candidate’s 

right to make personal expenditures without ceiling, 

Buckley, 424 U.S. at 52, Congress may not condition 

the “benefit” of lower contribution limits for a 

candidate’s opponents in return for his agreement to 
12 

cabin his protected speech. As such, Section 319’s 

extra-limit contribution regime would violate the 

First Amendment even if, as the FEC proffers, the 

“default contribution limit [were] higher” and were 

“reduced only if an opposing candidate certified that 

he would not self-finance beyond a certain limit.” 

FEC Br. 32 n.8. From either perspective the practical and legal effects are the same; the government 

may not penalize a self-financed candidate’s refusal 

to limit his personal expenditures advocating his own 

election. 

 III. THE GOVERNMENT HAS NO COMPELLING INTEREST IN “LEVELING THE 

PLAYING FIELD.” 

The asserted governmental interest in “leveling the 

playing field” in congressional campaigns is both 

novel and legally unsustainable. Although the FEC 

attempts to distinguish Buckley on this issue, it 

ignores significant legal impediments to its claim. 

FEC Br. 34-39 and 35 n.10. 

A. In McConnell v. FEC, this Court described 

some appellants’ asserted equality interest as a 

“broad and diffuse injury” insufficient even to 

establish standing to challenge, inter alia, Section 

319. 540 U.S. 93, 227 (2003). McConnell addressed 

claims that higher contribution limits deprived some 

voters of “an equal ability to participate in the 

election process based on their economic status” 

and imposed a “competitive injury” on their ability 

to raise funds for their candidates. Id. at 227-28. 

This Court held, however, that a party’s claim of 

“curtailment of the scope of their participation in the 

electoral process” was “not [ ] a legally cognizable 

right.” Id. at 227 (citing, inter alia, Buckley, 424 U.S. 
13 

at 48). If an asserted equality goal is insufficient for 

purposes of standing it certainly cannot establish a 

compelling interest for constitutional purposes. See 

McConnell, 540 U.S. at 227. (“[S]tanding in no way 

depends on the merits of the plaintiff’s contention 

that particular conduct is illegal.”). 

B. Because no precedent supports this equality 

interest, the FEC relies on case law addressing 

corporate electoral activities. FEC Br. 35-37 (citing 

FEC v. Beaumont, 539 U.S. 146 (2003) and Austin v. 

Mich. State Chamber of Commerce, 494 U.S. 652 

(1990)). According to the FEC, the public perception 

that House seats are available only to the wealthy 

would raise “analogous concerns” to those relating to 

the “corrosive and distorting effects” of corporate aggregations of wealth. FEC Br. 36 (citation omitted). 

However, this Court has never extended this analysis 

to the activities of individual candidates or donors. 

Nor does the FEC explain how a candidate’s personal 

expenditures on his own behalf resemble a corporation’s political activities. 

As the FEC asserts repeatedly, Section 319 is 

aimed at reducing the influence of “wealth” to “level 

the playing field.” See, e.g., FEC Br. 37 (Section 

319’s “core rationale” is “diminishing the importance 

of personal wealth as a criterion for election to 

federal office”). Conversely, Austin expressly stated 

that the accumulation of “large amounts of wealth” 

was not the justification for imposing limitations on 

corporate political expenditures and that such 

regulation “does not attempt to ‘equalize the relative 

influence of speakers on elections.’” 494 U.S. at 660. 

The corporate cases cited by the FEC do not inform 

this matter. 
14 

 IV. SECTION 319 IS NOT SUFFICIENTLY 

TAILORED TO SATISFY ANY APPLICABLE LEVEL OF SCRUTINY. 

A. The FEC disputes Mr. Davis’s assertion that 

strict scrutiny should be applied to Section 319. FEC 

Br. 37 n.11 (citing Randall v. Sorrell ̧ 126 S. Ct. 2479, 

2492 (2006) (plurality opinion)); contra Davis Br. 44-

46. Even under the standard applied in Randall, 

however, this Court must “review the record independently and carefully with an eye toward assessing 

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

proportionality of the restrictions.” Randall, 126 S. 

Ct. at 2492. 

In response to Mr. Davis’s explication of Section 

319’s infirmities, Davis Br. 47-53, the FEC simply 

defers to congressional platitudes, astonishingly 

describing the provision as “carefully crafted.” FEC 

Br. 41-42 n.14. The FEC’s only defense for Section 

319’s failure to account for war chests is that the 

“choice was Congress’s to make.” Id. at 39 n.12. This 

response is insufficient, particularly in light of this 

Court’s skeptical eye toward provisions affecting the 

competitiveness of elections. See, e.g., Randall, 126 

S. Ct. at 2494-501 (“examination of the record” 

reveals that “contribution limits are too restrictive”); 

see also Davis Br. 32-34 (courts need not defer when 

Congress legislates in its own interest). An independent review of the record in this matter reveals 

that Section 319 is not tailored to achieve the 

asserted equality aims. 

B. As detailed in Mr. Davis’s brief, Section 319 

does not equitably account for all funds in a campaign. Davis Br. 8-12. The FEC argues that “by taking account of the funds raised prior to the election 

year, Congress sought to ensure that incumbents do 
15 

not unduly benefit from ‘war chests’ they may have 

built up in advance.” FEC Br. 39 n.12. However, this 

statement misstates the effect of the Opposition 

Personal Funds Amount (“OPFA”) calculation, 2 

U.S.C. § 441a-1(a)(2). That formula recognizes only 

funds raised in the year before the general election, 

although it discounts that total by one-half. The 

OPFA calculation ignores all war chest funds raised 

in previous elections cycles and all contributions 

made during the election year. For example, prior to 

the 2006 election cycle, Mr. Davis’s opponent wielded 

a $1.1 million war chest. See Davis Br. 13. Yet, the 

OPFA calculation ignored this bounty in authorizing 

Mr. Reynolds to collect an additional $1.4 million in 

extra-limit funds. 

Addressing these higher limits, the FEC cites 

Buckley for the proposition that a “court has no 

scalpel to probe” marginal differences in contribution 

limits. 424 U.S. at 30. Buckley continued, however, 

that “[s]uch distinctions in degree become significant 

only when they can be said to amount to differences 

in kind.” Id. Tripled individual contribution limits, 

with the $4,600 excess exempted from individuals’ 

aggregate contribution ceilings, create just such a 

qualitative difference. Similarly, Section 319’s authorization of unlimited party coordinated communications—expenditures that are the functional 

equivalent of candidate contributions—eviscerates 

the normal limit on such spending.

The FEC also assures this Court that Section 319 

operates to “level the playing field.” FEC Br. 8, 38. 

Yet the government never addresses Mr. Davis’s 

personal experience to the contrary. Davis Br. 12-13. 

As the record reveals, during the 2006 campaign 

Section 319 authorized Mr. Davis’s opponent to 
16 

receive about $1.4 million in extra-limit funds. The 

formula authorized the provision of these funds to 

Mr. Reynolds despite his sizable war chest and his 

$2.8 million spending advantage at the conclusion of 

the campaign. See id. Mr. Davis’s experience is not 

anomalous, as the statutory formulae for extra-limit 

contributions always undercount private donations. 

See id. at 11-12. The FEC never explains how the 

authorization of $1.4 million in extra-limit contributions to the highest spending candidate in the 

race levels the playing field. 

 V. THIS COURT HAS JURISDICTION TO 

DECIDE THIS CONTROVERSY. 

A. Mr. Davis has standing because he retains a 

personal stake in the resolution of this matter. The 

FEC argues that because this controversy arose in 

the context of the 2006 congressional election no 

live dispute remains. After much discussion of the 

mootness of Mr. Davis’s claims, the FEC concedes 

that should Mr. Davis “make[] his intent to run a 

future self-financed House campaign clear in his 

reply brief or elsewhere, it will effectively moot this 

mootness discussion.” FEC Br. 20-21 n.5. Although 

he has not filed an official declaration of his candidacy, Mr. Davis has stated publicly that he intends 

to use personal funds to pursue New York’s 26th 

District seat in the United States Congress in the 

2008 election cycle. Jill Terreri, Democrat Davis 

Confirms He’ll Run Again for Congress, ROCHESTER 

DEMOCRAT & CHRONICLE, Mar. 27, 2008, at 5B

(reporting that Mr. Davis is planning to announce 

formally his self-financed candidacy on April 15). By 

the FEC’s admission, then, this matter is not moot. 
17 

Even without evidence of his intent to pursue 

federal office, however, Mr. Davis’s claims regarding 

Section 319’s impact on his campaign during the 

2004 and 2006 election cycles remain live. The FEC 

misstates the mootness test for claims that arise 

during an election cycle but conclude before litigation 

can reach this Court. For example, Storer v. Brown, 

415 U.S. 724 (1974), considered a constitutional 

challenge to a California ballot access law originally 

filed in advance of the 1972 election. Although 

the case did not reach this Court until 1973, this 

Court applied the “capable of repetition, yet evading 

review” doctrine, noting that “this case is not moot, 

since the issues . . . will persist as the California 

statutes are applied in future elections.” Id. at 737 

n.8. 

 In claiming this exception to mootness, a party 

must show that “(1) the challenged action is in its 

duration too short to be fully litigated prior to 

cessation or expiration; and (2) there is a reasonable 

expectation that the same complaining party will be 

subject to the same action again.” FEC v. Wisconsin 

Right to Life, Inc. (“WRTL”), 127 S. Ct. 2652, 2663 

(2007) (quoting Spencer v. Kemna, 523 U.S. 1, 17 

(1998)). This Court has repeatedly determined that 

an election cycle is too short a period in which 

litigation can be reasonably expected to be resolved. 

See Storer, 415 U.S. at 737 n.8; see also First Nat’l 

Bank of Boston v. Bellotti, 435 U.S. 765, 774-75 

(1978) (same). As for the second prong, the recurring 

injury test, the FEC relies on WRTL to assert that a 

reasonable expectation of the same future injury is 

manifested where “the same controversy will recur 

involving the same complaining party.” FEC Br. 20 

(citing WRTL, 127 S. Ct. at 2663 (citation omitted)). 

In WRTL, however, this Court found that the FEC 
18 

requested “too much” when it argued that the WRTL 

organization “must establish that it will run ads in 

the future sharing all ‘the characteristics that the 

district court deemed legally relevant.’” 127 S. Ct. at 

2663 (citation omitted). Thus, Mr. Davis need not 

declare that he will conduct future campaigns in 

exactly the same manner as in previous election 

cycles to counter the FEC’s assertion of mootness. 

The FEC also omits the alternate recurring injury 

test articulated in WRTL, which permits a party to 

show that she is “subject to the threat of prosecution 

under the challenged law.” Id. (citation omitted).

Even absent his stated intent to run again, Mr. Davis 

faces potential prosecution and penalties under 

Section 319 for his alleged failure to comply with 

the law’s disclosure requirements during the 2004 

election. Obviously, this Court’s favorable resolution 

of his claims would remove the threat of prosecution. 

Finally, the FEC’s mootness claim ignores Mr. 

Davis’s attempt to expedite litigation of this case 

pursuant to BCRA § 403(a)(4). See Davis Br. 4-5. 

The FEC’s opposition to the motion to expedite, the 

district court’s denial of that motion, and the 14 

month delay between filing and the district court’s 

decision thwarted this effort. Indeed, the FEC 

actively pursued its action relating to the 2004 

campaign until Mr. Davis filed his notice of appeal 

with this Court. See Davis Br. App. 10a (agreement 

to hold claim in abeyance pending final resolution). 

Both BCRA § 403(a)(4) and the opinion in WRTL

recognize the need for claims to be “expedited ‘to the 

greatest possible extent.’” WRTL, 127 S. Ct. at 2662 

(citation omitted). To punish Mr. Davis for the 

district court’s failure to follow this mandate would 

undermine BCRA’s command for swift adjudication. 
19 

B. Both the imminent threat of prosecution by the 

FEC and the harm imposed by Section 319 confer 

standing on Mr. Davis. His decision to personally 

finance his 2008 federal campaign will, of course, 

expose him to Section 319’s regulations, burdening 

his speech and providing his opponents with significant financial and informational benefits. In 

Dombrowski v. Pfister, 380 U.S. 479 (1965), this 

Court held that the possibility that protected speech 

could be chilled by a particular statute in the future 

was enough to confer standing on a party to challenge 

the law: “We have fashioned this exception to the 

usual rules governing standing . . . because of the 

‘ . . . danger of tolerating, in the area of First 

Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper calculation.’” Id. at 486-87 (quoting NAACP v. Button, 371 

U.S. 415, 433 (1963)) (citation omitted). 

Moreover, the FEC has demanded a $251,000 civil 

penalty in its enforcement action against Mr. Davis. 

Davis Br. App. 8a. Dombrowski states that a chilling 

effect on the exercise of protected speech “may derive 

from the fact of the prosecution, unaffected by the 

prospects of its success or failure.” 380 U.S. at 487. 

The FEC’s pending action and the attendant threat of 

prosecution is sufficient to confer standing on Mr. 

Davis for his current claims and to rebut any charge 

that his claims are moot. See WRTL, 127 S. Ct. at 

2662 (citation omitted). 
20 

 VI. SECTION 319’S DISCLOSURE AND CONTRIBUTION PROVISIONS ARE PART OF 

AN INTEGRATED REGIME THAT IS NOT 

SUSCEPTIBLE TO SEVERANCE. 

Congress enacted Section 319 as an integrated 

provision designed to stymie personal expenditures in 

House elections. The FEC rests both its constitutional analysis and its claim that Mr. Davis lacks 

standing on its bisection of Section 319 into separate 

disclosure and contribution provisions. That neither 

part can function separately, however, indicates that 

Congress intended Section 319’s disclosure and extralimit contribution provisions to operate as one. See 

generally Regan v. Time, Inc., 468 U.S. 641, 653 

(1984) (“Whether an unconstitutional provision is 

severable from the remainder of the statute in which 

it appears is largely a question of legislative intent.”). 

This inquiry is “well established: Unless it is 

evident that the Legislature would not have enacted 

those provisions which are within its power, 

independently of that which is not, the invalid part 

may be dropped if what is left is fully operative as a 

law.” Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 

(1987) (quoting Buckley, 424 U.S. at 108). See also 

Rita v. United States, 127 S. Ct. 2456, 2483 n.7 (2007) 

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

judgment) (“The judicial role when conducting severability analysis is limited to determining whether the 

balance of a statute that contains an unconstitutional 

provision is capable ‘of functioning independently.’”) 

(citation omitted). 

The Federal Election Campaign Act of 1971, Pub. 

L. No. 92-225, 86 Stat. 3 (1972), as amended in 1974, 

Pub. L. No. 93-443, 88 Stat. 1263 (“FECA”) does 

contain a severability clause affirming the continued 
21 

validity of the Act should any particular provision be 

struck down. See 2 U.S.C. § 454; see also BCRA 

§ 401. However, no other provision intertwines 

disclosure requirements with contribution limits. 

Compare 2 U.S.C. § 432 (general political committee 

organization and recordkeeping) and § 434 (reporting 

requirements) with the contribution limitations set 

forth in 2 U.S.C. § 441a. Section 319, by contrast, is 

codified in a single provision of the United States 

Code at 2 U.S.C. § 441a-1. Subsection (a) of that 

provision details the availability of the extra-limit 

contributions and subsection (b) addresses the 

notification of personal expenditures triggering those 

benefits. 

Moreover, invalidation of either subsection would 

prevent Section 319 from achieving Congress’s 

intended effect. The disclosure regime facilitates a 

candidate’s receipt of benefits under the increased 

limits. This reporting requirement has no independent informational value to the electorate because, as the FEC repeatedly acknowledges, candidates “ultimately” report the same information 

about personal expenditures and loans on regular 

quarterly and pre- and post-election reports. See 

FEC Br. 5, 49, 50, 52. Similarly, without access to 

contemporaneous data about personal spending, 

candidates could not take prompt advantage of any 

extra-limit contributions available under the statutory formulae. In fact, Section 319 authorizes receipt 

of these contributions only after the “candidate has 

received notification of the opposition personal funds 

amount.” 2 U.S.C. § 441a-1(a)(3)(A)(i). Thus, the 

legislative construction of Section 319 indicates that 

the two subsections of the statute function as a 

whole, and any constitutional or standing analysis 

should reflect that structure. 
22 

CONCLUSION 

For the foregoing reasons and those stated in Mr. 

Davis’s opening brief, this Court should find that 

Section 319 violates the Constitution and remand the 

case for appropriate declaratory and injunctive relief 

consistent with this Court’s decision. 

Respectfully submitted, 

ANDREW D. HERMAN * 

STANLEY M. BRAND

BRAND LAW GROUP, PC 

923 Fifteenth Street, N.W. 

Washington, D.C. 20005 

(202) 662-9700 

ELIZABETH F. GETMAN

SANDLER, REIFF & YOUNG, P.C. 

300 M Street, SE 

Suite 1102 

Washington, DC 20003 

* Counsel of Record Attorneys for Appellant 

April 11, 2008