"Wholly foreign to the First Amendment": the demise of campaign finance's equalizing rationale in Davis v. Federal Election Commission.

• Author: Gedge, Samuel

Since the Supreme Court handed down its seminal campaign finance opinion, Buckley v. Valeo, (1) more than three decades ago, campaign contributions and expenditures have been widely accepted as a type of political speech entitled to varying degrees of First Amendment protection. (2) Under Buckley, the only government interest sufficient to justify regulating campaign finance was "the prevention of corruption and the appearance of corruption." (3) State actors could easily invoke this fear of quid pro quo corruption with regard to contribution restrictions, but limits on campaign expenditures proved much harder to justify. Searching for an interest more closely related to the regulation of campaign expenditures, litigants and legal scholars alike have articulated an "equalizing" interest--essentially maintaining that the government has an interest in ensuring that participants have equal opportunities of expression in the political arena. (4) Clearly, were equalizing to become entrenched as an accepted rationale, a significant bulwark restricting campaign finance regulation would be swept away. Perhaps recognizing the danger of opening the Pandora's box of equalizing interests, the Court has thus far declined the invitation to supplement its "corruption" standard. Nevertheless, from the mid-1980s onward the Court appeared amenable to stretching the anticorruption rationale almost beyond recognition, at times implicitly acknowledging an equalizing interest in campaign finance jurisprudence. (5) Last Term, however, in Davis v. Federal Election Commission, (6) a divided Court struck down the "Millionaires' Amendment" of the Bipartisan Campaign Reform Act of 2002 (BCRA), (7) unequivocally rejecting the governmental interest in "leveling the playing-field" and holding that the statute's asymmetrical contribution caps and disclosure regulations violated the First Amendment by unduly burdening political expression. The Court split over whether equalizing the political opportunities of candidates was a legitimate government interest or an unjustifiable infringement on campaign speech. By strongly articulating a clear rejection of the equalizing doctrine, the majority took a significant step in breaking from its earlier, deferential campaign finance jurisprudence. Furthermore, the reaffirmation of Buckley's anticorruption goal as the sole state interest capable of prevailing on a First Amendment challenge will have broad implications for the continued viability of corporate campaign finance regulation, and also works to undermine contribution limits generally.

Enacted in 2002, BCRA Section 319--popularly known as the "Millionaires' Amendment"--provided for asymmetrical campaign finance regulations under limited circumstances during a House of Representatives electoral race. (8) Under Section 319(a), when a candidate's "opposition personal funds account" (OPFA)--basically the amount of personal funds he expends during the campaign (9)--exceeded $350,000, his opponent could take advantage of dramatically less-restrictive contribution limits up to the amount of the self-financed candidate's aggregate expenditures. (10) For example, although the self-financed candidate would remain subject to contribution caps of $2,300 per individual, his opponent would then be free to accept treble that amount, even from individuals who had already reached their regular aggregate contribution cap of $42,700. (11) Section 319(a) also permitted candidates facing self-financed opponents to benefit from unlimited coordinated expenditures from their parties. (12) Section 319(b) mandated that a candidate exceeding the $350,000 OPFA mark comply with additional detailed disclosure requirements. (13) Unwitting candidates who failed to file the disclosure forms could be subject to substantial civil sanctions. (14)

In March 2006, Jack Davis filed his statement of candidacy with the FEC, declaring his intent to run as the Democratic candidate for New York's 26th Congressional District. (15) Complying with BCRA Section 319(b), Davis declared that he planned to spend $1 million of his own funds to finance the campaign, well above the amount for triggering the Millionaires' Amendment. As he approached Section 319(a)'s $350,000 threshold in June 2006, Davis filed suit against the FEC in the United States District Court for the District of Columbia, facially challenging Sections 319(a) and (b) of BCRA as violative of the First Amendment and the equal protection component of the Fifth Amendment's Due Process Clause. (16) Both parties filed motions for summary judgment. The district court rejected Davis's motion for summary judgment and granted the FEC's, (17) dismissing Davis's contention that Section 319 imposed a burden on the political speech rights of self-financed candidates. The three-judge panel upheld the statute on the grounds that "[i]t places no restrictions on a candidate's ability to spend unlimited amounts of his personal wealth to communicate his message to voters." (18) In fact, the district court lauded Section 319 for preserving the right of all candidates to have the opportunity to "enhance [their] participation in the political marketplace" by "correcting a potential imbalance in resources available to each candidate." (19) Noting that Davis had chosen to finance his own campaign in spite of the Millionaires' Amendment, the district court concluded that he had thus failed to demonstrate that his speech had been limited in any way by the prospect of financial benefit to his political adversaries. (20) Davis then appealed to the United States Supreme Court via BCRA's statutory provision for direct appeal. (21)

Writing for a majority of five, Justice Alito (22) reversed the judgment of the district court, holding that Section 319's asymmetrical contribution caps and disclosure requirements impermissibly burdened Davis's First Amendment rights. (23) The Court invoked Buckley's unequivocal rejection of any limits on a candidate's expenditures in support of his own campaign, recalling that "a cap on personal expenditures imposes 'a substantial,' 'clea[r]' and 'direc[t]' restraint" on the right to uninhibited political expression. (24) Analogizing, the Court concluded that although Section 319(a) did not actually cap a candidate's personal expenditures, "it impose[d] an unprecedented penalty on any candidate who robustly exercises that First Amendment right." (25) In the zero-sum game of political campaigning, Section 319(a) substantially burdened constitutionally protected rights of political expression by providing significant fundraising advantages to the opponents of self-financed candidates. Thus, the Court maintained, strict scrutiny was appropriate; Section 319 must be shown to have furthered a compelling state interest. (26) The ensuing First Amendment analysis focused heavily on the asserted state interest in leveling the playing field. (27) The importance of "level[ing] electoral opportunities for candidates of different personal wealth," (28) the government contended, outweighed any burden on a candidate's right to employ personal funds "vigorously and tirelessly to advocate his own election." (29) Expressing undisguised distaste for the "ominous implications" (30) of the equalizing argument, the Court maintained that no precedent supported equalization as an interest sufficiently compelling to justify burdening campaign speech. (31) Furthermore, the scope of the government's asserted interest in equalizing electoral opportunities, the Court noted, is virtually limitless. In a world where candidates enjoy disparate natural advantages--from wealth to celebrity status--leveling electoral opportunities puts the state in the position of "making...