Campaign Finance Law and the Constitutionality of the "Millionaire's Amendment": An Analysis of Davis v. Federal Election Commission

^Pr^ep^ar^{ed f}^o^r^M^e^m^b^ers^an^d^Com^mⁱ^t^t^ees^of^C^ong^r^e^ss

In a 5-to-4 decision, the Supreme Court struck down a provision of the Bipartisan Campaign
Reform Act of 2002 (BCRA), also known as the McCain-Feingold law, establishing increased
contribution limits for congressional candidates whose opponents significantly self-finance their
campaigns. This provision is frequently referred to as the “Millionaire’s Amendment.” The Court
found that the burden imposed on expenditures of personal funds is not justified by the
compelling governmental interest of lessening corruption or the appearance of corruption and,
therefore, held that the law is unconstitutional in violation of the First Amendment.

Section 319(a)¹ of the Bipartisan Campaign Reform Act of 2002 (BCRA),² also known as the
McCain-Feingold law, establishes increased contribution limits for House candidates whose
opponents significantly self-finance their campaigns. This provision—in tandem with Section ³
304, which applies a similar program to Senate candidates—is frequently referred to as the
“Millionaire’s Amendment.” Basically, the complex statutory formula provides that if a candidate
for the House of Representatives spends more than $350,000 of personal funds during an election
cycle, individual contribution limits applicable to his or her opponent are increased from the usual
current limit ($2,300 per election) to up to triple that amount (or $6,900 per election). Likewise
for Senate candidates, a separate provision generally raises individual contribution limits for a
candidate whose opponent exceeds a designated threshold level of personal campaign funding
that is based on the number of eligible voters in the state. For both House and Senate candidates,
the increased contribution limits are eliminated when parity in spending is reached between the
two candidates. BCRA also requires self-financing candidates to file special disclosure reports
regarding their campaign spending—as such expenditures are made—in addition to reporting in ⁴
accordance with the regular periodic disclosure schedule.
In 2004 and 2006, Jack Davis was a candidate for the House of Representatives from the 26^th
Congressional District of New York. During the 2004 election cycle, he spent $1.2 million, which
was principally from his own funds, and during the 2006 cycle, he spent $2.3 million, which
(with the exception of $126,000) came from personal funds. In 2006, after the Federal Election
Commission (FEC) informed Davis that it had reason to believe that he had violated BCRA’s
disclosure requirements for self-financing candidates by failing to report personal expenditures
during the 2004 election cycle, Davis filed suit in the U.S. District Court for the District of
Columbia seeking declaration that the Millionaire’s Amendment was unconstitutional and an
injunction preventing the FEC from enforcing the law during the 2006 cycle. A district court
three-judge panel concluded sua sponte that Davis had standing to bring the suit, but rejected his ⁵
claims on the merits and granted summary judgment to the FEC. Invoking BCRA’s provision for ⁶
direct appeal to the Supreme Court for actions brought on constitutional grounds, Davis
appealed.
Reversing the three-judge district court decision, in a 5-to-4 vote, the Supreme Court in FEC v. ⁷
Davis invalidated the Millionaire’s Amendment as lacking a compelling governmental interest in

¹^{2 U}^.^S^.^C^.^{§ 4}^41a^-¹^.
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^seq^.
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violation of the First Amendment. Justice Alito wrote the opinion for the majority and was joined
by Chief Justice Roberts, and Justices Scalia, Kennedy, and Thomas. Justice Stevens wrote an
opinion concurring in part and dissenting in part, and was joined, in part, by Justices Souter,
Ginsburg, and Breyer. Justice Ginsburg also wrote an opinion, concurring in part and dissenting
in part, which was joined by Justice Breyer. The Court remanded the case to the district court for
proceedings consistent with its opinion.
Citing prior decisions, the Court began its opinion by noting that it has long upheld the ⁸
constitutionality of limits on individual contributions and coordinated party expenditures. While
recognizing that contribution limits implicate First Amendment free speech interests, it has
sustained such limits on the condition that they are “closely drawn” to serve a “sufficiently ⁹
important interest” such as the prevention of corruption or the appearance of corruption. On the
other hand, the Court observed that it has definitively rejected any limits on a candidate’s
expenditure of personal funds to finance campaign speech, finding that such limits impose a
significant restraint on a candidate’s right to advocate for his or her own election, which is not
justified by the compelling governmental interest of preventing corruption. Instead of preventing
corruption, a candidate’s 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 ¹⁰
... contribution limitations are directed.’”
With regard to the Millionaire’s Amendment, the Court observed that while it does not directly
impose a limit on a candidate’s expenditure of personal funds, it “imposes an unprecedented ¹¹
penalty on any candidate who robustly exercises that First Amendment right.” Further, it
requires a candidate to choose between the right of free political expression and “subjection to ¹²
discriminatory fundraising limitations.” If it simply increased the contribution limits for all
candidates—both the self-financed candidate as well as the opponent—it would pass ¹³
constitutional muster. Although many candidates who can afford significant personal
expenditures in support of their own campaigns may choose to do so despite the Millionaire’s
Amendment, the Court determined that they would bear “a special and potentially significant ¹⁴
burden if they make that choice.” In fact, the Court concluded that if a candidate vigorously
exercises the right to use personal funds, it creates a fundraising advantage for his or her ¹⁵
opponents.

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^Re^public^aⁿ^Fe^de^ra^{l Ca}^m^p^aⁱ^gⁿ^Com^m^{., 533 U}^.^S.⁴^31,⁴^37,⁴^{65 (}²⁰^01)(C^olora^d^{o II)).}
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^ex^p^eⁿ^d^itu^res)).
¹⁵^S^{ee i}^d^.^,^s^lip^o^p^{. a}^t¹³^.

In its 1976 landmark decision Buckley v. Valeo,¹⁶ the Supreme Court upheld a provision of the
Federal Election Campaign Act (FECA) providing presidential candidates with the option to
receive public funds on the condition that they comply with expenditure limits, even though it ¹⁷
found overall expenditure limits to be unconstitutional. Distinguishing the Millionaire’s
Amendment from FECA’s presidential public financing provision, the Davis Court observed that ¹⁸
the choices presented by each of the statutes are “quite different.” By forgoing public financing,
a presidential candidate can still retain the unencumbered right to make unlimited personal
expenditures. In contrast, the Millionaire’s Amendment fails to provide any options for a ¹⁹
candidate to exercise that right “without abridgement.”
Finding that the Millionaire’s Amendment imposes a “substantial burden” on the First
Amendment right to expend personal funds in support of one’s own campaign, thereby triggering
strict scrutiny, the Court announced that it is not sustainable unless it can be justified by a ²⁰
compelling governmental interest. As the Court held in Buckley, reliance on personal funds
reduces the threat of corruption, and therefore, the burden imposed by the Millionaire’s
Amendment cannot serve that governmental interest.
Responding to the FEC’s argument that the statute’s “asymmetrical limits” are justified because
they level the playing field for candidates of differing personal wealth, the Court pointed out that
its jurisprudence offers no support for the proposition that this rationale constitutes a compelling
governmental interest. According to the Court, “[p]reventing corruption or the appearance of
corruption are the only legitimate and compelling government interests thus far identified for ²¹
restricting campaign finances.” Moreover, “‘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 ²²
foreign to the First Amendment.’”
Specifically, the Court cautioned that restricting a candidate’s speech in order to level
opportunities for election among candidates presents “ominous implications” because it would
permit Congress to “arrogate the voters’ authority to evaluate the strengths of candidates ²³
competing for office.” Voters are entrusted with the duty to judge candidates for public office
and, according to the Court,
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¹⁷^S^{ee i}^d^.^a^t⁵⁷^,^n.^65,⁵⁴^-⁵^8.
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In considering the constitutionality of the disclosure requirements contained within the
Millionaire’s Amendment, the Court emphasized that it has repeatedly held that compelled
disclosure significantly infringes on privacy of association and belief, as guaranteed under the
First Amendment. Therefore, it has subjected such requirements to exacting scrutiny in order to
ascertain whether there is a “relevant correlation” or “substantial relation” between the ²⁵
governmental interest and the information required to be disclosed. In view of its holding that
the Millionaire’s Amendment is unconstitutional, the Court likewise reasoned that the burden ²⁶
imposed by its disclosure requirements cannot be justified, and accordingly, struck them down.
In a dissent, Justice Stevens—joined, in part, by Justices Souter, Ginsburg, and Breyer—argued
that the Millionaire’s Amendment represents Congress’s judgment that candidates who spend
over $350,000 of their own money in a campaign for a House or Senate seat have an advantage
over other candidates who must raise contributions. The statute imposes no burden on self-²⁷
financing candidates and “quiets no speech.” Instead, the dissent found that it does no more than
merely “assist the opponent of a self-funding candidate” to make his or her voice heard and that
“this amplification in no way mutes the voice of the millionaire, who remains able to speak as ²⁸
loud and as long as he likes in support of his campaign.” As a result of finding no direct
restriction on the speech of the self-financed candidate, the dissent would subject the ²⁹
Millionaire’s Amendment to a less rigorous standard of review. Indeed, the dissent specifically
criticized the Court’s landmark Buckley ruling, which struck down limits on expenditures, arguing
that “a number of purposes, both legitimate and substantial,” can justify the imposition of ³⁰
reasonable spending limits.
Maintaining that combating corruption and the appearance of corruption are not the only
governmental interests justifying congressional regulation of campaign financing, the dissent
remarked that the Court has also recognized the governmental interests of reducing both the
influence of wealth and the appearance of wealth on the outcomes of elections. While conceding
that such prior decisions have focused on the aggregations of wealth that are accumulated in the
corporate form, it reasoned that the logic of such decisions—particularly concerns about the
“corrosive and distorting effects of wealth” on the political process—could be extended to the ³¹
context of individual wealth as well.

²⁴^Id^.
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²⁶^S^{ee i}^d^.
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³¹^Id^.,^s^lip^op^{. a}^t⁸^(Ste^v^e^ns^{, J}^.,^dis^s^eⁿ^ting⁾^.

In a separate dissent, Justice Ginsburg—joined by Justice Breyer—concluded that sustaining the
constitutionality of the Millionaire’s Amendment would be consistent with the Court’s earlier
holding in Buckley v. Valeo. She resisted, however, joining Justice Stevens’s dissent to the extent
that it addresses the Court’s ruling in Buckley invalidating expenditure limits. Noting that the
Court had not been asked to overrule Buckley—and that this issue had not been briefed—Justice ³²
Ginsburg preferred to leave reconsideration of that case “for a later day.”
The Court’s decidedly antiregulatory opinion in Davis appears to be a reaffirmation of its finding
in the landmark 1976 decision, Buckley v. Valeo, that Congress has no compelling interest in
attempting to level the playing field among candidates. In fact, the Davis Court determined that
Congressional attempts to do so would supplant the choices of the voters. Notably, the decision ³³
also seems to be a departure from its 2003 decision in McConnell v. FEC—upholding key
portions of BCRA—where the Court expressed deference to Congress’s expertise in regulating ³⁴
the system under which its Members are elected. While Justice Stevens still appears to subscribe ³⁵
to this view, the majority of the Davis Court seems less deferential.
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