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Davis v. Federal Election Commission

August 9, 2007


The opinion of the court was delivered by: Griffith, Circuit Judge

Three-judge Court

Before: GRIFFITH, Circuit Judge; KESSLER, District Judge; and KENNEDY, District Judge.


Plaintiff Jack Davis, the 2006 Democratic Party candidate for New York's 26th District seat in the United States House of Representatives, brings a facial challenge to the so-called "Millionaires' Amendment" of the Bipartisan Campaign Reform Act of 2002 ("BCRA" or the "Act"), 2 U.S.C. § 441a-1 (2002), which relaxes limits on the ability of the opponent of a self-financed House candidate to raise money from donors and to coordinate his campaign spending with party committees.*fn1 Davis argues that the Millionaires' Amendment violates the First Amendment by chilling the speech of self-financed candidates and the Equal Protection Clause of the Fifth Amendment by giving the opponents of self-financed candidates a competitive advantage. Both Davis and the defendant, the Federal Election Commission ("Commission" or "FEC"), have moved for summary judgment. Because we conclude that the Millionaires' Amendment poses no threat to either the First Amendment or the Equal Protection rights of self-financed candidates, we deny Davis's motion for summary judgment and grant the FEC's.


The Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, 116 Stat. 81 (amending the Federal Election Campaign Act or "FECA," 2 U.S.C. §§ 431 et seq. (1971)), represents Congress's most recent attempt to regulate what it has determined to be the potentially corrupting influence of campaign contributions on our political system. See McConnell v. FEC, 540 U.S. 93, 115 (2003) ("BCRA is the most recent federal enactment designed to purge national politics of what was conceived to be the pernicious influence of big money campaign contributions." (quotation marks omitted)). The Act includes a provision, commonly referred to as the "Millionaires' Amendment," that addresses what Congress deemed an inequity created when the Supreme Court struck down, on First Amendment grounds, FECA's caps on the amount of personal money a candidate could spend on his campaign, but left in place rigid limits on the amount of campaign contributions he could accept from others.*fn2 Buckley v. Valeo, 424 U.S. 1, 51-54 (1971). The struck provision had limited Presidential and Vice-Presidential candidates to spending $50,000 of their own money on their campaigns, Senate candidates to $35,000, and most House candidates*fn3 to $25,000. Buckley, 424 U.S. at 51. The Supreme Court left intact provisions that limited persons (other than candidates helping their own campaigns) to contributing a total of $25,000 to all campaigns in a year and $1,000 to any single campaign. The Millionaires' Amendment relaxes the contribution limits for a candidate who faces a wealthy opponent whose personal fortune put towards his bid for office might give him a significant advantage. It also permits a political party to spend more on behalf of the candidate facing a self-financed opponent.

The Millionaires' Amendment mandates that once a self-financed candidate spends more than $350,000 of his personal funds on a campaign, his opponent may be permitted (1) to receive contributions at three times the limit for each donor that would otherwise be in place,*fn4 2 U.S.C. § 441a-1(a)(1)(A); (2) to receive contributions from individuals who have reached what would otherwise be their statutory limit for aggregate campaign donations,*fn5 id. § 441a-1(a)(1)(B); and (3) to coordinate with their political party on additional party expenditures that would otherwise be limited,*fn6 id. § 441a-1(a)(1)(C). To take advantage of those benefits, the opponent of a self-financed candidate must first calculate the "opposition personal funds amount" ("OPFA") to determine whether he is eligible for relaxed limits on fundraising. Id. § 441a-1(a)(1). To calculate the OPFA, the opponent determines the amount of personal funds spent by each candidate (i.e., the self-financed candidate and himself), adds 50% of the total funds raised by each candidate during the year prior to the election, and compares the totals. Id. § 441a-1(a)(2). If the opponent's OPFA is above that of the self-financed candidate, he may not take advantage of the relaxed limits and coordinated expenditures. If it is not, then he may take advantage of the relaxed limits, but only until parity is achieved under the OPFA formula. Once each candidate's OPFAs are equal, the Millionaires' Amendment no longer applies, and the opponent of the self-financed candidate cannot take advantage of the relaxed limits on contributions and coordinated expenditures. Id. § 441a-1(a)(3)(ii).

The Amendment also changes the reporting requirements for self-financed candidates and their opponents. Each candidate must, within fifteen days of announcing his candidacy, file a Statement of Candidacy with the FEC declaring the amount of personal funds over $350,000 that he intends to spend, if any. Id. § 441a-1(b)(1)(B). A candidate who makes or obligates to make expenditures of more than $350,000 in personal funds on his campaign must notify the FEC within twenty-four hours of doing so. Id. § 441a-1(b)(1)(C). Once that threshold is crossed, the self-financed candidate must notify the FEC within twenty-four hours of each additional aggregate expenditure of personal funds of $10,000. Id. § 441a-1(b)(1)(D). The opponent of a self-financed candidate who takes advantage of the relaxed contribution limits and coordinated party expenditures must notify the FEC and his party within twenty-four hours of receiving contributions and party expenditures that equal 100% of the OPFA. 11 C.F.R. § 400.31(e)(1)(ii). Political parties are also required to notify the candidate and the FEC within twenty-four hours of making any coordinated party expenditures. Id. § 400.30(c)(2).

Jack Davis ran and lost a self-financed campaign as the Democratic nominee for a congressional seat in the 2004 general election. He ran again for the same seat in the 2006 general election. As required by BCRA, on March 23, 2006, he filed his Statement of Candidacy, and declared that he intended to spend no personal funds during the primary campaign for the Democratic Party nomination and $1,000,000 in personal funds during the November general election. On June 6, 2006, Davis filed a facial challenge to the Millionaires' Amendment in this Court. He moved for summary judgment, as did the FEC, and on October 20, 2006, sitting as a three-judge district court, we heard oral argument on both motions. We have jurisdiction over this matter pursuant to 28 U.S.C. § 1331 ("district courts shall have original jurisdiction of all civil actions arising under the Constitution"). Venue is proper pursuant to § 403 of BCRA ("[t]he action shall be filed in the United States District Court for the District of Columbia and shall be heard by a 3-judge court") and 28 U.S.C. § 2284 ("a district court of three judges shall be convened when otherwise required by Act of Congress").


Although the FEC does not challenge Davis's standing to bring this claim, our independent duty to confirm our authority over each case before us requires that we certify standing "even when not otherwise suggested." See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998) (citation omitted). The "irreducible constitutional minimum of standing" consists of three elements: (1) an "injury in fact" that is (2) "fairly . . . trace[able] to the challenged action of the defendant," and (3) "likely . . . redress[able] by a favorable decision." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (first alteration in original, internal quotations marks and citations omitted). The Millionaires' Amendment imposes new and added disclosure requirements on self-financed candidates such as Davis, including a declaration of intent to spend more than $350,000 of the candidate's own funds that must be filed within fifteen days of becoming a candidate; an initial notification that the candidate has spent more than $350,000 of his own funds; and additional notifications throughout the campaign for aggregate expenditures in excess of $10,000. 2 U.S.C. § 441a-1(b). These additional disclosure requirements impose an injury-in-fact on self-financed candidates that can be traced directly to the Millionaires' Amendment and that would be removed by a favorable decision from this court. Cf. Larson v. Valente, 456 U.S. 228, 241 (1982) (concluding that state's attempt to enforce reporting requirements under Minnesota charitable solicitation statute constituted sufficient injury for standing). Davis therefore has standing to challenge the Amendment, and we may turn to the merits of his argument.

Summary judgment is appropriate when "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); see also FED. R. CIV. P. 56. Davis mounts a facial challenge to the constitutionality of the Millionaires' Amendment based upon the First and Fifth Amendments, asking us to "go beyond the facts before [us] to consider whether . . . the legislation creates such a risk of curtailing protected conduct as to be constitutionally unacceptable on its face." Sanjour v. EPA, 56 F.3d 85, 92 n.10 (D.C. Cir. 1995) (citation omitted). As the Supreme Court has observed, a facial challenge to legislation is, in general, "the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid." United States v. Salerno, 481 U.S. 739, 745 (1987). As-applied challenges, by contrast, seek to "declare the challenged statute or regulation unconstitutional on the facts of the particular case." Sanjour, 56 F.3d at 92 n.10. Because of the potentially broad remedial sweep a facial challenge seeks-invalidating the entire statute-it is "manifestly, strong medicine that has been employed by the Court sparingly and only as a last resort," Nat'l Endowment for the Arts v. Finely, 524 U.S. 569, 580 (1998) (internal quotation marks omitted).

Davis's facial challenge has two prongs-the First Amendment's protection for freedom of speech and the Fifth Amendment's requirement of equal protection. We examine the two challenges under different modes of analysis. When examining facial challenges, there are "two quite different ways in which a statute or ordinance may be . . . invalid 'on its face'-either because it is unconstitutional in every conceivable application, or because it seeks to prohibit such a broad range of protected conduct that it is unconstitutionally 'overbroad.'" Initiative & Referendum Inst. v. U.S. Postal Serv., 417 F.3d 1299, 1312(D.C. Cir. 2005) (quotation marks and citation omitted). "Although the 'every application' formulation is the general rule, the latter is the rule for facial challenges brought under the First Amendment." Id. Because Davis is challenging the Millionaires' Amendment on First Amendment grounds, he need not demonstrate that there are no circumstances under which the amendment would be constitutionally valid, but must show that it "punishes a substantial amount of protected free speech." Virginia v. Hicks, 539 U.S. 113, 118 (2003) (quotation marks omitted). For other challenges to prevail, including Davis's Fifth Amendment claim, "the challenger must establish that no set of circumstances exists under which the Act would be valid." Salerno, 481 U.S. at 745.

To determine whether the Millionaires' Amendment "punishes a substantial amount of free speech" and thus unconstitutionally infringes a candidate's First Amendment rights, we must first determine whether it actually "burdens the exercise of political speech and, if it does, whether it is narrowly tailored to serve a compelling state interest." Austin v. Mich. Chamber of Commerce, 494 U.S. 652, 657 (1990). The Supreme Court has warned that "[a] restriction on the amount of money a person or group can spend on political communication during a campaign" may create such a ...

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