dissenting:
I respectfully dissent.
As the majority recognizes, while this appeal was pending, Minnesota amended a key provision of its campaign finance laws. Prior to the 1996 amendment, the spending limits *1558waiver for publicly financed candidates took effect when that candidate’s major party opponent failed to agree by September 1 of an election year to abide by the state’s “voluntary” spending limits. See Minn.Stat. §§ 10A.25(10)(b)(i), 10A.322(l)(b) (1994). The 1996 amendment waives the spending limit for a publicly financed candidate if any of her privately financed opponents — major or minor party — has raised or spent more than twenty percent of the spending limit as of ten days before the primary, or more than fifty percent of the spending limit thereafter. See 1996 Minn.Sess.Law Serv. Ch. 459 (S.F. 840), § 2 (West 1996) (amending Minn.Stat. § 10A.25(10)). Notwithstanding this amendment, the plaintiffs still seek prospective in-junctive relief as to Minn.Stat. § 10A.25(10)(b) (1994), which no longer exists. It has been repealed. As such, that part of the case is moot. Although both parties argue we can decide this appeal notwithstanding this change in law, this court’s subject matter jurisdiction and the exercise of judicial power cannot be controlled by the desires of the parties. See Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702, 102 S.Ct. 2099, 2104, 72 L.Ed.2d 492 (1982) (“[N]o action of the parties can confer subject matter jurisdiction upon a federal court.”).
As the majority recognizes, this court “must review the District Court’s judgment in light of presently existing [state] law, not the law in effect at the time that judgment was rendered.” Fusari v. Steinberg, 419 U.S. 379, 387, 95 S.Ct. 533, 538, 42 L.Ed.2d 521 (1975); Diffenderfer v. Central Baptist Church, 404 U.S. 412, 414, 92 S.Ct. 574, 575-76, 30 L.Ed.2d 567 (1972) (per curiam).
The majority recognizes that the only basis upon which this court should afford review at this time is to allow a challenge to the legality of the state’s ongoing attempt to allegedly chill, by whatever means, plaintiff’s freedom of speech as represented by the 1996 amendment. Nonetheless, in my judgment, deciding this issue prior to a review by the district court offends jurisprudential principles. At the very best, this court should remand this case to the district court to allow the plaintiffs to amend their complaint and make whatever challenge to the new law they wish to make. See id. at 415, 92 S.Ct. at 576.
The-Supreme Court has held that a federal court is not deprived of its power when a governmental entity enacts a new law that “disadvantages [the plaintiffs] in the same fundamental way” as the prior law challenged in the complaint. Northeastern Florida Chapter v. City of Jacksonville, 508 U.S. 656, 662, 113 S.Ct. 2297, 2301, 124 L.Ed.2d 586 (1993). In such a case, the plaintiff’s injury is redressable by “a judicial decree directing the [governmental entity] to discontinue its [challenged] program[J” See id. at 666 n. 5, 113 S.Ct. at 2303 n. 5. Such a rule is necessary to prevent a governmental defendant from rendering a case moot “by repealing the challenged statute and replacing it with one that differs only in some insignificant respect.” Id. at 662, 113 S.Ct. at 2301. On the other hand, if a law is “changed substantially,” such that the “challenged conduct” by the governmental entity is not likely to reoccur, then the case is moot. Id. at 662 n. 3, 113 S.Ct. at 2301 n. 3.15
. Whether this court should review the current campaign finance scheme (as opposed to *1559the now repealed statute) presents a close question of justiciability. It is my view that the 1996 amendment does not fundamentally alter the burdens on speech arising from the spending limits waiver and the contribution refund. See id. at 662, 113 S.Ct. at 2301. Further, the amendment appears to be sufficiently clear such that we are not left to speculate as to how the new law will operate in practice. Cf. Fusari, 419 U.S. at 388-89, 95 S.Ct. at 539-40 (expressing uncertainty as to how state will implement amended welfare benefits: law enacted in response to lower court decision striking law down as violating due process).
On the other hand, the 1996 amendment has potential constitutional significance, see, e.g., Wilkinson v. Jones, 876 F.Supp. 916, 927 (W.D.Ky.1995) (finding constitutional significance in the manner in which spending limits waiver is triggered), and thus the amendment cannot be readily characterized as an “insignificant” change in law. See Northeastern Florida Chapter, 508 U.S. at 662, 113 S.Ct. at 2301. Moreover, as indicated, under the new amendment it is not readily apparent what specific judicial relief the plaintiffs could obtain since the law they challenged in their complaint can no longer be enjoined.16 In light of these factors, I believe' the proper course would be to vacate the district court’s judgment and remand the ease to the district court for further proceedings. Even-if this course is not required by the constitutional limitations on this court’s jurisdiction, I favor such a course as a matter of judicial discretion. See Northeastern Florida Chapter; 508 U.S. at 677, 113 S.Ct. at 2309 (O’Connor, J., dissenting). The district court’s analysis of the new law would undoubtedly help to evaluate the constitutional issues before us.17 Nonetheless, the majority exercises jurisdiction and upholds the amended Minnesota campaign finance laws. I respectfully disagree with this ruling and thus dissent as well on the merits.
Burdens on Speech
In Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam), the Supreme Court made it clear that limits on expenditures in election campaigns are generally unconstitutional because they suppress communication “ ‘at the core of our electoral process and of the First Amendment freedoms.’ ” Id. at 39, 96 S.Ct. at 644 (quoting Williams v. Rhodes, 393 U.S. 23, 32, 89 S.Ct. 5, 11, 21 L.Ed.2d 24 (1968)). The Court found the First Amendment broadly protects political speech to assure the •“ ‘unfettered interchange of ideas for the bringing about of political and social changes desired by the people[,]’ ” id. at 14, 96 S.Ct. at 632 (quoting *1560Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1308, 1 L.Ed.2d 1498 (1957)), and that such protection extends even to what some see as excessive campaign spending. As Buckley stated some twenty years ago, “[t]here is nothing invidious, improper, or unhealthy in permitting [campaign] funds to be spent to carry the candidate’s message to the electorate.” Id. at 56, 96 S.Ct. at 652-53.
A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached. This is because virtually every means of communicating ideas in today’s mass society requires the expenditure of money. The distribution of the humblest handbill or leaflet entails printing, paper, and circulation costs. Speeches and rallies generally necessitate hiring a hall and publicizing the event. The electorate’s increasing dependence on television, radio, and other mass media for news and information has made thesé expensive modes of commimication indispensable instruments of effective political speech.
Id. at 19, 96 S.Ct. at 634-35 (footnote omitted). In light of the constitutional protection afforded campaign speech, the Court held that controlling campaign costs was not a legitimate governmental interest.
The First Amendment denies government the power to determine that spending to promote one’s political views is wasteful, excessive, or unwise. In the free society ordained by our Constitution it is not the government, but the people — individually as citizens and candidates and collectively as associations and political committees— who must retain control over the quantity and range of debate on public issues in a political campaign.
Id. at 57, 96 S.Ct. at 653.
In upholding the Minnesota campaign finance scheme the majority, with all due respect, fails to evaluate properly these fundamental constitutional principles involved in this ease.
The state distinguishes Buckley by arguing that if the state provides a public subsidy, which is voluntarily accepted, then Buckley does not control. As Buckley points out,
Congress may engage in public financing of election campaigns and may condition acceptance of public funds on an agreement by the candidate to abide by specified expenditure limitations. Just as a candidate may voluntarily limit the size of the contributions he chooses to accept, he may decide to forgo private fundraising and accept public funding.
Id. at 57 n. 65, 96 S.Ct. at 653 n. 65 (emphasis added).
The difficulty we face here is that under Minnesota’s campaign finance law, once a publicly financed candidate has chosen to accept the limits, she is provided a spending limits waiver, if her opponent chooses to exercise her constitutional right to forgo public financing and exceed the statutorily imposed limit.18 In the majority’s view, the enjoyment of public subsidies (including the contribution refund) and a waiver of the spending limits by a publicly financed candidate is nothing more than an inducement by the state “to avert a powerful disincentive for participation in its public financing scheme: namely, a concern of being grossly outspent by a privately financed opponent with no expenditure limit.” Ante at 1551.
I respectfully submit such an analysis is irrelevant in evaluating the concerns of whether the non-public financed candidate’s First Amendment rights are chilled. This case is not about the publicly financed candidate’s free speech rights. It is not a matter of balancing benefits with restrictions. Nor is it a question of speech restricted by time, place or manner. The issue is whether a candidate who faces a choice not to limit her *1561full access to political speech will be any worse off in choosing to do so. When a candidate voluntarily abandons all the benefits of public subsidies (including the contribution refund) to exercise her constitutional right, it is a voluntary choice.19 When such a choice is made, however, Minnesota’s campaign finance scheme adds disincentives which make a privately financed candidate worse off than she otherwise would be.20 Her publicly financed opponent, who has chosen to receive a public subsidy, can now keep the public subsidy, obtain the benefit of the contribution refund for all past and future contributions, and spend without limit.21
With all due respect to the majority’s interpretation, it seems plain that Minnesota’s current campaign financing scheme, including the spending limits waiver and the retention of the public subsidy, as well as the contribution refund,22 directly chills the exercise of a privately financed candidate’s constitutional right to unfettered political speech.
This court has on two prior occasions recognized the penalizing nature of related provisions of Minnesota’s campaign finance laws. First, in Weber v. Heaney, 995 F.2d 872 (8th Cir.1993), which found similar provisions in Minnesota’s congressional campaign finance laws preempted, this court stated that “candidates who do not agree to be bound by the spending limits are penalized because their opponents who have agreed to the limits will still receive public financing, but will hot be bound to their agreement.” Id. at 877 n. 7.23
Second, in Day v. Holahan, 34 F.3d 1356, 1359-62 (8th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 936, 130 L.Ed.2d 881 (1995), this court struck down a Minnesota law which allowed a publicly financed candidate to exceed her spending limit by the amount of “independent expenditures”24 against her and receive an additional direct public subsidy. In Day, the court reasoned that this provision burdened speech because:
The knowledge that a candidate who one does not want to be elected will have her spending limits increased and will receive a public subsidy equal to half the amount of the independent expenditure, as a direct *1562result of that independent expenditure, chills the free exercise of that protected speech.
Id. at 1360. Although there is no additional direct public subsidy in this case,25 the public subsidy involved in the contribution refund clearly “enhance[s] [the publicly financed] candidate’s fund raising ability.” See Weber, 995 F.2d at 877 n. 7. Furthermore, the indirect public subsidies through the contribution refund are- potentially unlimited, and thus may have a greater chilling effect than the limited additional subsidy at issue in Day. Finally, the spending limits in this ease will not only be “increased” in an amount equal to one half of the opposing expenditures, as in Day, but will be wholly removed. Thus, the burdens imposed on the core political speech of privately financed candidates in this case are greater than, or at least substantially similar to, the burdens imposed on independent organizations in Day, and cannot adequately be distinguished. In accord with Weber and Day, I find Minnesota’s campaign finance scheme burdens a candidate’s free speech rights by chilling her decision to increase her political speech by exceeding the spending limits.
*1563Avoiding the fundamental principles of Buckley and the decisions of our court, the majority seeks refuge in the First Circuit opinion in Vote Choice, Inc. v. DiStefano, 4 F.3d 26 (1st Cir.1993), which upheld a “cap gap” between publicly financed candidates, who may receive up to $2,000 per campaign contribution, and those who choose private financing, who may only receive up to $1,000 per donor. Id. at 37-40. The First Circuit found the scheme constitutional since it offered a relative balance between the benefits given to, and the restrictions placed on, publicly financed candidates.26 Even under this “rough proportionality” approach, id. at 39, the Minnesota campaign finance scheme must fall. A scheme which wholly releases a publicly financed candidate from the only restriction she must accept to receive public financing in the first place is not roughly proportional.27
Compelling State Interest
I also respectfully disagree with the majority’s conclusion that the state has shown its law is narrowly tailored to a compelling state interest.
The majority identifies the following state interests that are served by the spending limits waiver: (1) reduce the possibility of corruption, (2) diminish the need for fund-raising, (3) allow more time for discussing issues, (4) stimulate participation in the public finance scheme, (5) protect candidates who agree to the limits from being substantially outspent by their opponents, and (6) reward candidates who initially agree to limit spending but are nonetheless subsequently released from the limits.
The state’s interests in guarding against corruption, reducing the need for fundrais-ing, and allowing more time for discussing issues — which are the classic justifications for campaign finance laws, see Buckley, 424 U.S. at 91, 96 S.Ct. at 669; RNC, 487 F.Supp. at 284 — are not directly served by the spending limits waiver in any substantial way. In fact, the waiver, by allowing a candidate to. raise unlimited private funds, defeats the purposes of the public subsidy because the candidate, once released from the spending limits, is likely to devote more time to fundraising and may develop “unhealthy obligations” to those additional individuals who donate. See id. at 285 (“If a candidate were permitted, in addition to receipt of public funds, to raise and expend unlimited private funds, the purpose of public financing would be defeated.”).
It is only in an indirect sense that the waiver might support the state’s goals of guarding against corruption, reducing the need for fundraising, and allowing more time for discussing issues. The state’s theory is, if the spending limits waiver encourages more people to agree to abide by the limits, or forces them to do so, the waiver reduces the need for private fundraising and the potential for corruption. Thus, the state’s real interest in the spending limits waiver is to free candidates from fundraising and reduce *1564the possibility of corruption by stimulating participation in its campaign finance program.28
Whether stimulating participation in a state’s public campaign financing scheme is a compelling state interest in any circumstance is an open question in this circuit. See Day, 34 F.3d at 1361. Assuming, but not agreeing, that stimulating participation in the public finance program is a legitimate state interest, I nonetheless find that under the facts and circumstances of this case, the state’s interest in stimulating participation is not a compelling one, and the spending limits waiver and contribution refund are not narrowly tailored to serve that interest. It is settled at least in this circuit that stimulating participation is not a compelling state interest if it is not necessary to actually stimulate such participation. Id. Since 1976, candidate participation rates in Minnesota’s public finance program have been as follows:
1976 92%
1978 87%
1980 66%
1982 90%
1984 78%
1986 77%
1988 89%
1990 93%
1992 95%
1994 92%
J.A. 22. The contribution refund (or its tax credit predecessor in effect from 1978 to 1987) did not exist in 1976, 1988, or 1990, when the participation rates were 92, 89, and 93 percent, respectively.29 Before the enactment of the spending limits waiver, participation rates were uniformly above 66 percent and were 92 percent in 1976 and 90 percent in 1982. This record belies the state’s claim that the provisions challenged here are necessary to achieve substantial participation in the state’s public financing scheme.
The spending limits waiver and contribution refund are also not narrowly tailored to achieve the state’s interest with minimal burden on a privately financed candidate’s free speech rights. If the state is concerned that publicly financed candidates are “at an insurmountable disadvantage” against privately financed candidates in the absence of these provisions, ante at 1554, it seems plain that the state’s spending limits are too low. With a limit of $21,576 for candidates for state representative, J.A. 21, a candidate may reasonably feel endangered by the prospect of her opponent spending tens of thousands of dollars more in an aggressive advertising and direct mail campaign. The constitutionally proper means to stimulate participation is not to burden the privately financed candidate’s speech, however, but rather to provide the publicly financed candidate with the opportunity for more speech through higher subsidies or higher spending limits, or both. See RNC, 487 F.Supp. at 285 (noting that candidates “will opt for public funding only if, in the candidate’s view, it will enhance the candidate’s powers of communication and association”); cf. Wilkinson, 876 F.Supp. at 927 (finding that the $1.8 million raised or spent in a gubernatorial campaign in Kentucky before a publicly-funded opponent’s spending limit is waived provides “a significant amount of unconstrained speech”).
Furthermore, the state could overcome the “insurmountable disadvantage” in a manner with less chilling effect on the free speech rights of privately financed candidates by providing only a partial spending limits waiver or by deferring the waiver of the spending *1565limits until the privately financed candidate has actually exceeded the spending limit. Cf. Vote Choice, 4 F.3d at 30 n. 5 (noting that Rhode Island’s spending limits waiver, which was not challenged in that ease, takes effect only when and to the extent that the privately financed candidate exceeds the limits). Likewise, the contribution refund would stimulate participation and yet have a less chilling effect on a privately financed candidate’s speech if there were limits on the amount of indirect public subsidies a candidate could receive through such a program.
Conclusion
The district court declared unconstitutional a provision of Minnesota’s campaign finance laws which allowed a publicly financed candidate to receive her privately financed opponent’s share pf available public funding. See Minn.Stat. § 10A.25(10)(b)(iii) (1994). The state did not appeal this ruling, and in 1996 the legislature repealed this provision. See 1996 Minn.Sess.Law Serv. Ch. 459 (S.F.840), §2 (West 1996). I would now also find Minnesota’s spending limits waiver for publicly financed candidates unconstitutional. This waiver clearly chills the core political free speech rights of privately financed candidates for state representative, and does so without adequate justification for the burdens imposed on such speech. Furthermore, in light of the spending limits waiver, I would also find the contribution refund unconstitutional because it provides potentially unlimited public support for a public financed candidate and thereby coerces a candidate’s choice as to whether to accept or decline the . public financing of her campaign.30
For the reasons stated; I dissent.
. In Northeastern Florida Chapter, the Court held the case was not mooted by the City of Jacksonville's enactment of an amended minority set-aside ordinance. The Court reasoned that although "[t]he new ordinance may disadvantage [the plaintiffs] to a lesser degree than the old one, ... insofar as it accords preferential treatment to black- and female-owned contractors— and, in particular, insofar as its ‘Sheltered Market Plan' is a 'set aside' by another name — it disadvantages them in the same fundamental way.” Id. at 662, 113 S.Ct. at 2300. The Court recognized that the amended city ordinance applied only to African-Americans and females, rather than seven minority groups, and provided flexibility in the manner of preferential treatment on any given city project. Id. at 661, 113 S.Ct. at 2300-01. The Court emphasized that one of the programs, the Sheltered Market Plan, was essentially the same as the law challenged in the complaint. Unlike the prior version of the law, the amended ordinance also contained a ten-year sunset provision and identified several present effects of past discrimination which justified the affirmative action in favor of African-Americans and females. See id. at 674, 113 S.Ct. at 2307-08 (O'Connor, J., dissenting). The majority concluded such changes were insignificant; the dissent disagreed.
. In their amended complaint, the plaintiffs asked for a declaration that several provisions, of Minnesota’s campaign finance laws, including Minn.Stat. § 10A.25(10)(b) (“subdivision 10(b)”), are unconstitutional. J.A. 42. The plaintiffs also sought an injunction against the enforcement of “the unconstitutional sections of Minnesota’s public campaign financing system” and "such other and further relief as this court shall deem just and equitable.” Id. In light of the 1996 amendment, enjoining subdivision 10(b) would no longer make sense because that section now provides for notification of publicly financed opponents when a privatejy financed candidate exceeds certain minimal spending or fundraising thresholds. The substance of old subdivision 10(b) is now codified, as substantially amended, in the new subdivision 10(a) of § 10A.25. See Minn.Sess.Law Serv. Ch. 459 (S.F.840), § 2 (West 1996). It is unclear what the proper relief in this case would be if the state laws were found to be unconstitutional, although some form of meaningful relief, could probably be found. See In re Swedeland Dev. Group, Inc., 16 F.3d 552, 560 (3d Cir.1994) (en banc) ("[Wjhen a court can fashion 'some form of meaningful relief,’ even if it only partially redresses the grievances of the prevailing party, the appeal is not moot.”) (quoting Church of Scientology v. United States, 506 U.S. 9, 12, 113 S.Ct. 447, 450, 121 L.Ed.2d 313 (1992)). Following the Court's suggestion in Northeastern Florida Chapter, 508 U.S. at 666 n. 5, 113 S.Ct. at 2303 n. 5, perhaps an injunction against the state’s "program” of campaign finance would be proper relief for the plaintiffs. In any event, I would leave this determination to the district court in the first instance. See note 16, infra.
. ’ In their letter brief to this court, the plaintiffs argue the amendments make the law more coercive than the prior version of the law because it applies to all privately financed candidates, not just major party candidates who are privately financed. The state has not had an opportunity to respond to this claim and, on the current record, such a claim is difficult to evaluate. Cf. Fusari, 419 U.S. at 385-86, 387 n. 12, 95 S.Ct. at 537-38, 539 n. 12 (reviewing the legislative history and purpose of the amended statute and noting that the Court’s review was “largely unassisted by counsel”).
. The spending limits waiver was adopted in 1988. Prior to 1988, publicly financed candidates were bound by the spending limits to which they agreed, regardless of their opponent's actions. See, e.g., Minn.Stat. § 10A.25(10) (1986). The pre-1988 law was thus consistent with the public financing of Presidential campaigns upheld in Buckley, 424 U.S. at 85-108, 96 S.Ct. at 666-77, and Republican Nat'l Comm. v. FEC, 487 F.Supp. 280, 283-86 (S.D.N.Y.) (three-judge court), aff'd mem., 445 U.S. 955, 100 S.Ct. 1639, 64 L.Ed.2d 231 (1980) ("RNC ").
. See RNC, 487 F.Supp. at 283-84 ("Each candidate remains free under the Fund Act, instead of opting for public funding,, to attempt through private funding to raise more than the '$20,000,-000 plus’ public funding limit and to spend any amount of funds raised by private funding, without any ceiling.”); cf. Buckley, 424 U.S. at 99, 96 S.Ct. at 673 ("[Sjince any major-party candidate accepting public financing of a campaign voluntarily assents to a spending ceiling, other candidates will be able to spend more in relation to the major-party candidates.”); id. at 101, 96 S.Ct. at 674 ("Plainly, campaigns can be successfully carried out by means other than public financing; they have been up to this date, and this avenue is still open to all candidates.”).
. To urge that such disincentives are not per se "coercive because they are not inherently penal” is meaningless rhetoric. See ante at 1550. The disincentives are invoked as a means to influence directly a candidate's choice (to keep the candidate in line within the spending limit). To call such coercive conduct by any other name does not diminish the effect upon the candidate’s choice. The issue is whether a candidate's decision to exercise her constitutional right to free speech has been chilled. When the opponent's spending limit is automatically removed, the opponent's public subsidy retained, and more tax benefits to the opponent’s contributors become available, it seems ineluctable to me that the candidate’s right has been chilled.
. The law even allows the absurd situation where a candidate can wait until her opponent has made a choice to exercise unlimited speech, then agree to the spending limit and receive the public subsidy, but then exceed the limit without penalty and keep the subsidy. In such circumstances, the publicly financed candidate’s spending limit is illusory from the outset.
. The contribution refund was adopted in 1991. From 1978 to 1987, however, Minnesota provided a tax credit to contributors for contributions up to a certain level, which was substantially similar to the current contribution refund system.
. Although this' statement may be dicta, as the majority finds, the opinion, written by Judge Magill in which Judge Fagg and Judge Hansen joined, accurately characterizes the penalizing nature of Minnesota's campaign financing scheme.
. An independent expenditure. was defined as "an expenditure expressly advocating the election or defeat of a clearly identified candidate” by an individual, political committee or political fund which-had expended more than $100 on such expenditures. See Day, 34 F.3d at 1359 (citations omitted).
. In Wilkinson, which upheld a spending limits waiver against a motion for a preliminary injunction, the district court distinguished Day in part on the basis that additional public subsidies available to a publicly financed candidate facing a privately financed opponent in Kentucky were not "automatic” but "may only be obtained when additional private contributions are raised.” 876 F.Supp. at 927. I do not think this distinction is of constitutional significance in this case when the additional private contributions are subsidized, thus enhancing the publicly financed candidate’s fundraising ability.
Wilkinson also distinguished Day on the basis that the spending limit waiver took effect when the first dollar of an independent expenditure was made, whereas under Kentucky’s campaign financing scheme the spending limits waiver did not occur until a privately financed gubernatorial candidate actually raised or spent in excess of $1.8 million, which provided “a significant amount of unconstrained speech on the issues” before the spending limits waiver came into play. Id. Such a distinction is not applicable in this case. The spending limits waiver here takes effect when the privately financed candidate exceeds minimal spending or fundraising thresh- ■ olds: 20 percent of the spending limit ten days prior to the primary election or 50 percent of the spending limit thereafter. See 1996 Minn.Sess. Law Serv. Ch. 459 (S.F.840), § 2 (West 1996). In light of the $21,576 spending limit for state representative candidates in this case, J.A. 21, these minimal -thresholds for triggering the spending limits waiver do not provide for as significant an amount of unconstrained speech on the issues as the $1.8 million available in Wilkinson. Cf. Buckley, 424 U.S. at 20 n. 20, 96 S.Ct. at 635 n. 20 (noting that full-page advertisement in metropolitan newspaper in 1975 cost $6,971.04).
Wilkinson further distinguished Day on the basis that a spending -liirtits waiver coupled with additional public subsidies chills an independent organization’s free speech but not a candidate's. Specifically, Wilkinson suggested that in Day, an independent organization did not have any choice about whether to act in a manner that would enhance the campaign of the candidate whom it was trying to defeat, whereas in Wilkinson the decision rested "within the privately-financed candidate’s complete control” by that candidate's ultimate actions in raising and spending money in excess of $1.8 million. See 876 F.Supp. at 927. Such distinctions are not valid in this case.
First, the privately financed candidate has no genuine control over whether to help her opponent's campaign, because she triggers her opponent's spending limits waiver by exceeding minimal spending or fundraising thresholds. A competitive privately financed candidate would almost certainly need to exceed the minimal thresholds in order to avoid being substantially outspent by the publicly financed candidate. The record does not show any successful privately financed candidates who have spent less than the thresholds. In 1992, average spending by all candidates, publicly and privately financed, exceeded the thresholds that now trigger the spending limits waiver. See J.A. 22. In these circumstances, it is hard to say that the privately financed candidate in Minnesota retains "complete control" over the spending limits waiver. In Wilkinson, by contrast, the privately financed candidates had no fear of being outspent because she retained genuine control until she actually spent or raised in excess of $1.8 million, i.e., the spending limit applicable to publicly financed candidates.
Second, there is no basis for holding that the provisions at issue here will chill an independent organization's free speech but not a candidate's. A candidate's interest in speaking is in winning the election in which she is running; her speech will clearly be chilled if, by speaking, she advances the campaign of her opponent. An organization making an independent expenditure, by contrast, may be more willing to risk helping an opponent to some extent by engaging in political speech in order to educate the public and otherwise to advance the organization's larger purposes. Thus, if there is any difference between the chilling effect on the two, the burden on a candidate's speech is greater.
. Vote Choice found the "cap gap” was not "impermissibly coercive” in part because the $2,000 limit was not contingent on the opponent’s decision to rely on private funding, see 4 F.3d at 38, 37 n. 13, and neither gubernatorial candidate had accepted public funding, which showed that the "cap gap” incentive was not coercive, id. at 39 n. 14. The incentives to publicly financed candidates here are contingent on their opponents' decision. The record also does not show any races in which all candidates were privately financed. Thus, important factors in Vote Choice which tended to show the cap gap was not coercive are not present in this case.
. Vote Choice, as the majority concedes, did not decide the very issue submitted here, that is, whether a candidate could waive the expenditure limits and retain a public subsidy if opposed by a privately financed candidate. Vote Choice did note, however, that Rhode Island’s law provides a spending limits waiver for publicly financed candidates in certain circumstances. 4 F.3d at 30 n. 5. This provision of Rhode Island’s law, which was not challenged in Vote Choice, provides no support for the majority's holding in this case. Rhode Island's law provides that a publicly financed candidate may exceed the spending limits only when and to the extent that the privately financed candidate exceeds the limits. Id. Further, no additional public subsidies are available to a publicly financed candidate above the $750,000 direct matching funds from the state. See id. at 30. Under Minnesota’s law, by contrast, from the moment the general election campaign begins, if a publicly financed candidate faces a privately financed opponent who has spent or raised money in excess of the minimum thresholds, she may raise and spend unlimited funds all of which could potentially come from subsidized individual contributions.
. The other interests — protecting candidates from being substantially outspent and rewarding candidates who initially agree to the limits — are means of stimulating participation in the state’s campaign finance program. If the state wanted to reward people who were positively inclined toward spending limits, on that basis alone, in such circumstances the spending limits waiver would constitute impermissible viewpoint discrimination. Moreover, the fact that the state penalizes those who breach the spending limit, absent a waiver, shows the state has no independent interest in a candidate’s initial agreement to those limits.
. The majority errs in its reasoning that because the tax refund or tax credit is long-standing, and the plaintiffs have not shown otherwise, the tax refund "has played an integral role in attaining the almost 100 percent candidate participation in its scheme.” Ante at 1555. As I have stated, in 1976, before the enactment of the tax credit, the participation rate was 92 percent, and during the three-year hiatus (1987-1990), the participation rates were 89 percent in 1988 and 93 percent in 1990. J.A. 22.
. Under my view of the merits, I would remand this case to the district court to determine how to enjoin the enforcement of the contribution refund and the spending limits waiver under the 1996-amendment, see note 2, supra, and.to determine if other provisions of the state’s campaign finance law can remain. This is not to say that those provisions that allow candidates to receive a public subsidy in exchange for a binding agreement to adhere to specified limits standing alone cannot remain. As I have pointed out, if a candi- - date voluntarily chooses to accept a public subsidy in exchange for an agreement to adhere to specified limits, there is nothing unconstitutional about such a provision as long as it does not serve to chill the voluntary choice of the opposing candidate to decline public financing and exceed the spending limits. See Buckley, 424 U.S. at 57 n. 65, 96 S.Ct. at 653 n. 65. Nonetheless, I would have the district court determine in the first instance how the spending limits waiver and contribution refund can be enjoined, and whether they are severable from the remaining provisions of Minnesota’s campaign finance act.