Davis v. Federal Election Commission--Decision of June 26, 2008

The Court decided (5-4 on the crucial substantive law provision), that the "Millionaire's Amendment" passed a few years ago by Congress to "level the playing field" in federal congressional elections, violated the First Amendment to the US Constitution by creating an asymmetric financing scheme. I thought they Court would uphold the law, but the Four Conservatives, with Kennedy along for the ride (Alito wrote the opinion) decided otherwise. The four liberals agreed with the majority that Davis, an unsuccessful candidate for the House of Representatives, had standing in the case, but they disagreed, as a bloc, with the majority's throwing out of the law. Here are some facts, and the reasoning on why the majority believed the law to be unconstitutional.

Important Background Facts

"Federal-law limits on the amount of contributions a House of Representatives candidate and his authorized committee may receive from an individual, and the amount his party may devote to coordinated campaign expenditures, 2 U.S.C. §§ 441a(a)(1)(A), (a)(3)(A), (c), and (d), normally apply equally to all competitors for a seat and their authorized committees. However, § 319(a) of the Bipartisan Campaign Reform Act of 2002 (BCRA), 2 U.S.C. § 441a-1(a), part of the so-called “Millionaire's Amendment,” fundamentally alters this scheme when, as a result of a candidate's expenditure of personal funds, the “opposition personal funds amount” (OPFA) exceeds $350,000. The OPFA is a statistic comparing competing candidates' personal expenditures and taking account of certain other fundraising. When a “self-financing” candidate's personal expenditure causes the OPFA to pass $350,000, a new, asymmetrical regulatory scheme comes into play. The self-financing candidate remains subject to the normal limitations, but his opponent, the “non-self-financing” candidate, may receive individual contributions at treble the normal limit from individuals who have reached the normal limit on aggregate contributions, and may accept coordinated party expenditures without limit. See §§ 441a-1(a)(1)(A)-(C). Because calculating the OPFA requires certain information about the self-financing candidate's campaign assets and personal expenditures, § 319(b) requires him to file an initial “declaration of intent” revealing the amount of personal funds the candidate intends to spend in excess of $350,000, and to make additional disclosures to the other candidates, their national parties, and the Federal Election Commission (FEC) as his personal expenditures exceed certain benchmarks.

Appellant Davis, a candidate for a House seat in 2004 and 2006 who lost both times to the incumbent, notified the FEC for the 2006 election, in compliance with § 319(b), that he intended to spend $1 million in personal funds. After the FEC informed him it had reason to believe he had violated § 319 by failing to report personal expenditures during the 2004 campaign, he filed this suit for a declaration that § 319 is unconstitutional and an injunction preventing the FEC from enforcing the section during the 2006 election. The District Court concluded sua sponte that Davis had standing, but rejected his claims on the merits and granted the FEC summary judgment."

Legal Argument

After finding that Davis had standing to bring his case, the Court then argued as follows:

"Sections 319(a) and (b) [of the law, discussed here] violate the First Amendment. If § 319(a)'s elevated contribution limits applied across the board to all candidates, Davis would have no constitutional basis for challenging them. Section 319(a), however, raises the limits only for non-self-financing candidates and only when the self-financing candidate's expenditure of personal funds causes the OPFA threshold to be exceeded. This Court has never upheld the constitutionality of a law that imposes different contribution limits for candidates competing against each other, and it agrees with Davis that this scheme impermissibly burdens his First Amendment right to spend his own money for campaign speech. In Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659, the Court soundly rejected a cap on a candidate's expenditure of personal funds to finance campaign speech, holding that a “candidate ... has a First Amendment right to ... vigorously and tirelessly ... advocate his own election,” and that a cap on personal expenditures imposes “a substantial,” “clea[r,]” and “direc [t]” restraint on that right, id., at 52-53. It found the cap at issue not justified by “[t]he primary governmental interest” in “the prevention of actual and apparent corruption of the political process,” id., at 53, or by “[t]he ancillary interest in equalizing the relative financial resources of candidates competing for elective office,” id., at 54. Buckley is instructive here. While BCRA does not impose a cap on a candidate's expenditure of personal funds, it imposes an unprecedented penalty on any candidate who robustly exercises that First Amendment right, requiring him to choose between the right to engage in unfettered political speech and subjection to discriminatory fundraising limitations. The resulting drag on First Amendment rights is not constitutional simply because it attaches as a consequence of a statutorily imposed choice. Id., at 54-57, and n. 65, distinguished. The burden is not justified by any governmental interest in eliminating corruption or the perception of corruption, see id., at 53. Nor can an interest in leveling electoral opportunities for candidates of different personal wealth justify § 319(a)'s asymmetrical limits, see id., at 56-57. The Court has never recognized this interest as a legitimate objective and doing so would have ominous implications for the voters' authority to evaluate the strengths of candidates competing for office. Finally, the Court rejects the Government's argument that § 319(a) is justified because it ameliorates the deleterious effects resulting from the tight limits federal election law places on individual campaign contributions and coordinated party expenditures. Whatever this argument's merits as an original matter, it is fundamentally at war with Buckley 's analysis of expenditure and contributions limits, which this Court has applied in subsequent cases.

Because § 319(a) is unconstitutional, § 319(b)'s disclosure requirements, which were designed to implement the asymmetrical contribution limits, are as well. “[C]ompelled disclosure, in itself, can seriously infringe on privacy of association and belief guaranteed by the First Amendment,” Buckley, 424 U.S., at 64, so the Court closely scrutinizes such requirements, id., at 75. For significant encroachments to survive, there must be “a ‘relevant correlation’ or ‘substantial relation’ between the governmental interest and the information required to be disclosed” and the governmental interest must reflect the seriousness of the burden on First Amendment rights. Ibid. Given § 319(a)'s unconstitutionality, the burden imposed by the § 319(b) requirements cannot be justified."

So, the big clause in all of this is "different contribution limits." If you say that often enough, you might agree with the majority. But I think that judicial philosophy, rather than any pure reading of a statute, is operative in these cases....

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