Davis v. Federal Election Commission

This is a fascinating (and, I may add, remarkably simple to understand) case having to do with federal campaign financial expenditures. Specifically it is what lawyers call a "facial" challenge to the constitutionality of the so-called "Millionaires' Amendment" to a campaign finance reform bill enacted in 2002. A facial challenge is one that seeks to attack the language of the statute head on and claim that its provisions violate some provision of the law or, in this case, the federal constitution. The claim of Mr. Davis will be that the section of the law I will discuss below violates his First Amendment Free Speech rights and 14th Amendment Equal Protection rights.

Some Background

As part of its attempt to "level the playing field" in Congressional elections, Congress passed the following provision of law in 2002:

"a) Availability of increased limit

(1) In general

Subject to paragraph (3), if the opposition personal funds amount with respect to a candidate for election to the office of Representative in, or Delegate or Resident Commissioner to, the Congress exceeds $350,000--

(A) the limit under subsection (a)(1)(A) with respect to the candidate shall be tripled;

(B) the limit under subsection (a)(3) shall not apply with respect to any contribution made with respect to the candidate if the contribution is made under the increased limit allowed under subparagraph (A) during a period in which the candidate may accept such a contribution; and

(C) the limits under subsection (d) with respect to any expenditure by a State or national committee of a political party on behalf of the candidate shall not apply." 2 USC sec 441(a)-1.

In plain language, then, this statute provides that when candidates for the US House of Representatives exceed $350,000 in personal campaign expenditures their opponents may be entitled to receive: (1) contributions from donors at triple the statutory limit; (2) contributions from donors who have reached their statutory limit for aggregate campaign donations; and (3) coordinated expenditures from party committees in excess of the statutory limit. In order to put this into effect, the law further increases the disclosure obligations on self-financed candidates. The basic question the Court is going to be asked is whether this "leveling of the playing field" statute violates Mr. Davis' rights under the First Amendment Free Speech provision or the 14th Amendment Equal Protection clause.

Mr. Davis' Campaign

In 2006, appellant Jack Davis ran as the Democratic Party's candidate for NY's 26th Congressional District seat. In lieu of relying on campaign contributions, he chose to fund his election campaign primarily, though not exclusively, with personal funds. He exceeded the statutory amount of $350,000 in personal contributions, thus triggering the bolded law above. His opponent could then receive: (1) contributions at triple the then-$2,100 per election limit for each donor; (2) contributions from donors who already had maxed out the normal $37,500 per election cycle limit for aggregate campaign donations; and (3) could coordinate with his political party committee to receive additional party expenditures over the normal $10,000 per election limit.

Legal Issues--and History

Ever since 1971 Congress has regulated the issue of campaign contributions for federal elections. The Federal Election Campaign Act of 1971 (2 USC secs 431-455) limited, among other things, the amount of money that individuals, poltical committees, and political parties were permitted to contribute to candidates for federal office. It also placed limits on candidates' campaign expenditures from personal resources; e.g., limiting most candidates for the House of Representatives to $25,000 in personal expenditures.

The Supreme Court's decision in Buckley v. Valeo, 424 US 1 (1976) considered challenges to this law. Among other things, the Court concluded that while limits on both contributions and expenditures implicate the First Amendment rights of free speech and free association, restrictions on expenditures constitute "significantly more severe" restrictions than contribution limitations. Specifically, the Court stated that limitations on a candidate's personal expenditures "impose a substantial restraint on the ability of persons to engage in protected First Amendment expression." Perhaps the crucial line in the decision was:

"it is of particular importance that candidates have the unfettered opportunity to make their views known so that the electorate may intelligently evaluate the candidates' personal qualities and their positions on vital public issues before choosing among them on election day.” Id. at 52-53."

In Buckley the Court also recognized that government has a compelling interest in the "prevention of corruption and the appearance of corruption." Corruption consists, among other things in "quid pro quo" arrangements, where contributions or expenditures are made in order to secure "influence" over a particular action. Because contribution limits address this interest, Buckley upheld the contribution limits, while striking down the expenditure limitations.

Moving to This Case

The Buckley decision, therefore, said that campaign contribution limits were constitutional, but strongly hinted that the Court would cast a dim eye on future campaign expenditure limitations. This case, in contrast, deals primarily with contribution limits. It lifts the contribution limits in order to "level the field" when a candidate decides to use a large portion of his/her own money for the campaign. The court below said that the limits in the "Millionaires' Amendment" didn't trench on the candidate's ability to expend money. Thus, the Buckley principle was kept intact. The court found that Congress had enacted the statute to "correct a potential imbalance in resources available to each candidate." The court equated the effect of the increased contribution limits in the statute bolded above to that of "statutes that permit higher contribution limits for candidates who agree to public financing of campaigns." Rather than creating disparities, the Millionaires' Amendment seeks to reduce them by "leveling the playing-field" between candidates.

Decision By the Court?

I think the Supreme Court will uphold the statute. Buckley's central principles are not implicated there--there are no expenditure limitations, and so the candidate's "speech" isn't hindered in any way. In addition, contribution limits are still in place, even though they are trebled or increased. Though these increased limits may buy influence, the Court may well desire that the aim of the statute suffices to allow these increased limits.

The Court may also look what the appellant calls the "exceptional" disclosure requirements that the statute places upon self-financed candidates. Sorry this essay isn't long enough to go into them... The central question this boils down to this: "Is leveling the playing field in federal election financing, in the way Congress did it in 2002, a constitutionally permissible activity?" I think so....

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