(Slip Opinion) OCTOBER TERM, 2007 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
DAVIS v. FEDERAL ELECTION COMMISSION
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA
No. 07–320. Argued April 22, 2008—Decided June 26, 2008
Federal-law limits on the amount of contributions a House of Represen-
tatives candidate and his authorized committee may receive from an
individual, and the amount his party may devote to coordinated cam-
paign 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 author-
ized committees. However, §319(a) of the Bipartisan Campaign Re-
form 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 “oppo-
sition 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 limita-
tions, but his opponent, the “non-self-financing” candidate, may re-
ceive individual contributions at treble the normal limit from indi-
viduals who have reached the normal limit on aggregate
contributions, and may accept coordinated party expenditures with-
out 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
2 DAVIS v. FEDERAL ELECTION COMM’N
Syllabus
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 expendi-
tures 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.
Held:
1. This Court has jurisdiction to hear Davis’ appeal. Pp. 6–10.
(a) Davis has standing to challenge §319(b)’s disclosure require-
ments. When he filed suit, he had already declared his 2006 candi-
dacy and had been forced by §319(b) to disclose to his opponent that
he intended to spend more than $350,000 in personal funds. He also
faced the imminent threat that he would have to follow up on that
disclosure with further notifications once he passed the $350,000
mark. Securing a declaration that §319(b) is unconstitutional and an
injunction against its enforcement would have spared him from mak-
ing those disclosures and also would have removed the real threat
that the FEC would pursue an enforcement action based on alleged
§319(b) violations during his 2004 campaign. Davis also has stand-
ing to challenge §319(a)’s asymmetrical contribution limits. The
standing inquiry focuses on whether the party invoking jurisdiction
had the requisite stake in the outcome when the suit was filed, see,
e.g., Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC),
Inc., 528 U. S. 167, 180, and a party facing prospective injury has
standing where the threatened injury is real, immediate, and direct,
see, e.g., Los Angeles v. Lyons, 461 U. S. 95, 102. Davis faced the
requisite injury from §319(a) when he filed suit: He had already de-
clared his candidacy and his intent to spend more than $350,000 of
personal funds in the general election campaign whose onset was
rapidly approaching. Section 319(a) would shortly burden his per-
sonal expenditure by allowing his opponent to receive contributions
on more favorable terms, and there was no indication that his oppo-
nent would forgo that opportunity. Pp. 6–8.
(b) The FEC’s argument that the Court lacks jurisdiction because
Davis’ claims are moot also fails. In Federal Election Comm’n v. Wis-
consin Right to Life, Inc. (WRTL), 551 U. S. ___, this Court rejected a
very similar claim of mootness, finding that the case “fit comfortably
within the established exception to mootness for disputes capable of
repetition, yet evading review.” Id., at ___. That “exception applies
where ‘(1) the challenged action is in its duration too short to be fully
litigated prior to cessation or expiration; and (2) there is a reasonable
Cite as: 554 U. S. ____ (2008) 3
Syllabus
expectation that the same complaining party will be subject to the
same action again.’ ” Ibid. First, despite BCRA’s command that the
case be expedited to the greatest possible extent and Davis’ request
that his case be resolved before the 2006 election, the case could not
be resolved before the 2006 election. See id., at ___. Second, the FEC
has conceded that Davis’ §319(a) claim would be capable of repetition
if he planned to self-finance another bid for a House seat, and he sub-
sequently made a public statement expressing his intent to do so.
See id., at ___ . Pp. 8–9.
2. Sections 319(a) and (b) violate the First Amendment. If §319(a)’s
elevated contribution limits applied across the board to all candi-
dates, 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 bur-
dens his First Amendment right to spend his own money for cam-
paign speech. In Buckley v. Valeo, 424 U. S. 1, the Court soundly re-
jected a cap on a candidate’s expenditure of personal funds to finance
campaign speech, holding that a “candidate . . . has a First Amend-
ment right to . . . vigorously and tirelessly . . . advocate his own elec-
tion,” and that a cap on personal expenditures imposes “a substan-
tial,” “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 equaliz-
ing the relative financial resources of candidates competing for elec-
tive 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 ex-
ercises 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 implica-
tions for the voters’ authority to evaluate the strengths of candidates
4 DAVIS v. FEDERAL ELECTION COMM’N
Syllabus
competing for office. Finally, the Court rejects the Government’s ar-
gument that §319(a) is justified because it ameliorates the deleteri-
ous effects resulting from the tight limits federal election law places
on individual campaign contributions and coordinated party expendi-
tures. 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. Pp. 10–17.
(c) Because §319(a) is unconstitutional, §319(b)’s disclosure re-
quirements, 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 encroach-
ments to survive, there must be “a ‘relevant correlation’ or ‘substan-
tial 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. P. 18.
501 F. Supp. 2d 22, reversed and remanded.
ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
and SCALIA, KENNEDY, and THOMAS, JJ., joined, and in which STEVENS,
SOUTER, GINSBURG, and BREYER, JJ., joined as to Part II. STEVENS, J.,
filed an opinion concurring in part and dissenting in part, in which
SOUTER, GINSBURG, and BREYER, JJ., joined as to Part II. GINSBURG, J.,
filed an opinion concurring in part and dissenting in part, in which
BREYER, J., joined.
Cite as: 554 U. S. ____ (2008) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 07–320
_________________
JACK DAVIS, APPELLANT v. FEDERAL
ELECTION COMMISSION
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF COLUMBIA
[June 26, 2008]
JUSTICE ALITO delivered the opinion of the Court in
which JUSTICE STEVENS, JUSTICE SOUTER, JUSTICE
GINSBURG, and JUSTICE BREYER joined as to Part II.
In this appeal, we consider the constitutionality of fed-
eral election law provisions that, under certain circum-
stances, impose different campaign contribution limits on
candidates competing for the same congressional seat.
I
A
Federal law limits the amount of money that a candi-
date for the House of Representatives and the candidate’s
authorized committee may receive from an individual, as
well as the amount that the candidate’s party may devote
to coordinated campaign expenditures. 2 U. S. C. §441a
(2006 ed.).1 Under the usual circumstances, the same
restrictions apply to all the competitors for a seat and
their authorized committees. Contributions from individ-
ual donors during a 2-year election cycle are subject to a
——————
1 All undesignated references in this opinion to 2 U. S. C. are to the
2006 edition.
2 DAVIS v. FEDERAL ELECTION COMM’N
Opinion of the Court
cap, which is currently set at $2,300. See §§441a(a)(1)(A),
(c); 72 Fed. Reg. 5295 (2007). In addition, no funds may be
accepted from an individual whose aggregate contribu-
tions to candidates and their committees during the elec-
tion cycle have reached the legal limit, currently $42,700.
See 2 U. S. C. §§441a(a)(3)(A), (c); 72 Fed. Reg. 5295. A
candidate also may not accept general election coordinated
expenditures by national or state political party committees
that exceed an imposed limit. See 2 U. S. C. §§441a(c), (d).
Currently, the limit for candidates in States with more
than one House seat is $40,900. 72 Fed. Reg. 5294.2
Section 319(a) of the Bipartisan Campaign Reform Act
of 2002 (BCRA), 116 Stat. 109, 2 U. S. C. §441a–1(a),3 part
of the so-called “Millionaire’s Amendment,” fundamentally
alters this scheme when, as a result of a candidate’s ex-
penditure of personal funds, the “opposition personal
funds amount” (OPFA) exceeds $350,000.4 The OPFA, in
simple terms, is a statistic that compares the expenditure
of personal funds by competing candidates and also takes
into account to some degree certain other fundraising.5
See §441a–1(a). When a candidate’s expenditure of per-
sonal funds causes the OPFA to pass the $350,000 mark
——————
2 These limits are adjusted for inflation every two years. 2 U. S. C.
§441a(c).
3 BCRA §319(a) is set out in an Appendix to this opinion. Although
what we refer to as §§319(a) and (b) are actually §315A(a) and (b) of the
Federal Election Campaign Act of 1971, which were added to that Act
by BCRA §319(a), we follow the convention of the parties in making
reference to §§319(a) and (b).
4 BCRA §304 similarly regulates self-financed Senate bids. 116 Stat.
97, 2 U. S. C. §441a(i).
5 The OPFA is calculated as follows. For each candidate, expendi-
tures of personal funds are added to 50% of the funds raised for the
election at issue measured at designated dates in the year preceding
the election. The resulting figures are compared, and if the difference
is greater than $350,000, the asymmetrical limits take effect. See
§§441a–1(a)(1), (2).
Cite as: 554 U. S. ____ (2008) 3
Opinion of the Court
(for convenience, such candidates will be referred to as
“self-financing”), a new, asymmetrical regulatory scheme
comes into play. The self-financing candidate remains
subject to the limitations noted above, but the candidate’s
opponent (the “non-self-financing” candidate) may receive
individual contributions at treble the normal limit (e.g.,
$6,900 rather than the current $2,300), even from indi-
viduals who have reached the normal aggregate contribu-
tions cap, and may accept coordinated party expenditures
without limit. See §§441a–1(a)(1)(A)–(C). Once the non-
self-financing candidate’s receipts exceed the OPFA, the
prior limits are revived. §441a–1(a)(3). A candidate who
does not spend the contributions received under the
asymmetrical limits must return them. §441a–1(a)(4).
In order to calculate the OPFA, certain information is
needed about the self-financing candidate’s campaign
assets and personal expenditures. Section 319(b) thus
requires self-financing candidates to make three types of
disclosures. First, within 15 days after entering a race, a
candidate must file a “[d]eclaration of intent” revealing the
amount of personal funds the candidate intends to spend
in excess of $350,000. 2 U. S. C. §441a–1(b)(1)(B). A
candidate who does not intend to cross this threshold may
simply declare an intent to spend no personal funds. 11
CFR §400.20(a)(2) (2008). Second, within 24 hours of
crossing or becoming obligated to cross the $350,000 mark,
the candidate must file an “[i]nitial notification.” 2
U. S. C. §441a–1(b)(1)(C). Third, the candidate must file
an “[a]dditional notification” within 24 hours of making or
becoming obligated to make each additional expenditure of
$10,000 or more using personal funds. §441a–1(b)(1)(D).
The initial and additional notifications must provide the
date and amount of each expenditure from personal funds,
and all notifications must be filed with the Federal Elec-
tion Commission (FEC), all other candidates for the seat,
and the national parties of all those candidates. §441a–
4 DAVIS v. FEDERAL ELECTION COMM’N
Opinion of the Court
1(b)(1)(E). Failure to comply with the reporting require-
ments may result in civil and criminal penalties.
§§437g(a)(5)–(6), (d)(1).
A non-self-financing candidate and the candidate’s
committee face less extensive disclosure requirements.
Within 24 hours after receiving an “initial” or “additional”
notification filed by a self-financing opponent, a non-self-
financing candidate must provide notice to the FEC and
the national and state committees of the candidate’s party
if the non-self-financing candidate concludes based on the
newly acquired information that the OPFA has passed the
$350,000 mark. 11 CFR §400.30(b)(2). In addition, when
the additional contributions that a non-self-financing
candidate is authorized to receive pursuant to the asym-
metrical limitations scheme equals the OPFA, the non-
self-financing candidate must notify the FEC and the
appropriate national and state committees within 24
hours. §400.31(e)(1)(ii). The non-self-financing candidate
must also provide notice regarding any refunds of “excess
funds” (funds received under the increased limits but not
used in the campaign). §§400.50, 400.54. For their part,
political parties must notify the FEC and the candidate
they support within 24 hours of making any expenditures
that exceed the normal limit for coordinated party expen-
ditures. §400.30(c)(2).
B
Appellant Jack Davis was the Democratic candidate for
the House of Representatives from New York’s 26th Con-
gressional District in 2004 and 2006. In both elections, he
lost to the incumbent. In his brief, Davis discloses having
spent $1.2 million, principally his own funds, on his 2004
campaign. Brief for Appellant 4. He reports spending
$2.3 million in 2006, all but $126,000 of which came from
personal funds. Id., at 13. His opponent in 2006 spent no
personal funds. Indeed, although the OPFA calculation
Cite as: 554 U. S. ____ (2008) 5
Opinion of the Court
provided the opportunity for Davis’ opponent to raise
nearly $1.5 million under §319(a)’s asymmetrical limits,
Davis’ opponent adhered to the normal contribution limits.
Davis’ 2006 candidacy began in March 2006, when he
filed with the FEC a “Statement of Candidacy” and, in
compliance with §319(b), declared that he intended to
spend $1 million in personal funds during the general
election. Two months later, in anticipation of this expen-
diture and its §319 consequences, Davis filed suit against
the FEC, requesting that §319 be declared unconstitu-
tional and that the FEC be enjoined from enforcing it
during the 2006 election.
After Davis declared his candidacy but before he filed
suit, the FEC’s general counsel notified him that it had
reason to believe that he had violated §319 by failing to
report personal expenditures during the 2004 campaign.
The FEC proposed a conciliation agreement under which
Davis would pay a substantial civil penalty. Davis re-
sponded by agreeing to toll the limitations period for an
FEC enforcement action until resolution of this suit.
Davis filed this action in the United States District
Court for the District of Columbia, and a three-judge panel
was convened. BCRA §403, 116 Stat. 113, note following 2
U. S. C. §437h. While Davis requested that the case be
decided before the general election campaign began on
September 12, 2006, the FEC opposed the request, assert-
ing the need for extensive discovery, and the request was
denied. Ultimately, the parties filed cross-motions for
summary judgment.
Ruling on those motions, the District Court began by
addressing Davis’ standing sua sponte. The Court con-
cluded that Davis had standing, but rejected his claims on
the merits and granted summary judgment for the FEC.
501 F. Supp. 2d 22 (2007). Davis then invoked BCRA’s
exclusive avenue for appellate review—direct appeal to
this Court. Note following §437h. We deferred full con-
6 DAVIS v. FEDERAL ELECTION COMM’N
Opinion of the Court
sideration of our jurisdiction, 552 U. S. ___ (2008), and we
now reverse.
II
Like the District Court, we must first ensure that we
have jurisdiction to hear Davis’ appeal. Article III re-
stricts federal courts to the resolution of cases and contro-
versies. Arizonans for Official English v. Arizona, 520
U. S. 43, 64 (1997). That restriction requires that the
party invoking federal jurisdiction have standing—the
“personal interest that must exist at the commencement of
the litigation.” Friends of Earth, Inc. v. Laidlaw Envi-
ronmental Services (TOC), Inc., 528 U. S. 167, 189 (2000)
(internal quotation marks omitted). But it is not enough
that the requisite interest exist at the outset. “To qualify
as a case fit for federal-court adjudication, ‘an actual
controversy must be extant at all stages of review, not
merely at the time the complaint is filed.’ ” Arizonans for
Official English, supra, at 67. The FEC argues that Davis’
appeal fails to present a constitutional case or controversy
because Davis lacks standing and because his claims are
moot. We address each of these issues in turn.
A
As noted, the requirement that a claimant have “stand-
ing is an essential and unchanging part of the case-or-
controversy requirement of Article III.” Lujan v. Defend-
ers of Wildlife, 504 U. S. 555, 560 (1992); see also Arizo-
nans for Official English, supra, at 64. To qualify for
standing, a claimant must present an injury that is con-
crete, particularized, and actual or imminent; fairly trace-
able to the defendant’s challenged behavior; and likely to
be redressed by a favorable ruling. Lujan, supra, at 560–
561.
The District Court held, and the parties do not dispute,
that Davis possesses standing to challenge the disclosure
Cite as: 554 U. S. ____ (2008) 7
Opinion of the Court
requirements of §319(b). When Davis filed suit, he had
already declared his 2006 candidacy and had been forced
by §319(b) to disclose to his opponent that he intended to
spend more than $350,000 in personal funds. At that
time, Davis faced the imminent threat that he would have
to follow up on that disclosure with further notifications
after he in fact passed the $350,000 mark. Securing a
declaration that §319(b)’s requirements are unconstitu-
tional and an injunction against their enforcement would
have spared him from making those disclosures. That
relief also would have removed the real threat that the
FEC would pursue an enforcement action based on alleged
violations of §319(b) during his 2004 campaign. As a
result, Davis possesses standing to challenge §319(b)’s
disclosure requirement.
The fact that Davis has standing to challenge §319(b)
does not necessarily mean that he also has standing to
challenge the scheme of contribution limitations that
applies when §319(a) comes into play. “[S]tanding is not
dispensed in gross.” Lewis v. Casey, 518 U. S. 343, 358,
n. 6 (1996). Rather, “a plaintiff must demonstrate stand-
ing for each claim he seeks to press” and “ ‘for each form of
relief’ ” that is sought. DaimlerChrysler Corp. v. Cuno, 547
U. S. 332, 352 (2006) (quoting Friends of Earth, supra, at
185).
In light of these principles, the FEC argues that Davis
lacks standing to attack §319(a)’s asymmetrical limits.
When Davis commenced this action, his opponent had not
yet qualified for the asymmetrical limits, and later, when
his opponent did qualify to take advantage of those limits,
he chose not to do so. Accordingly, the FEC argues that
§319(a) did not cause Davis any injury.
While the proof required to establish standing increases
as the suit proceeds, see Lujan, supra, at 561, the stand-
ing inquiry remains focused on whether the party invok-
ing jurisdiction had the requisite stake in the outcome
8 DAVIS v. FEDERAL ELECTION COMM’N
Opinion of the Court
when the suit was filed. Friends of Earth, supra, at 180;
Arizonans for Official English, supra, at 68, n. 22. As
noted above, the injury required for standing need not be
actualized. A party facing prospective injury has standing
to sue where the threatened injury is real, immediate, and
direct. Los Angeles v. Lyons, 461 U. S. 95, 102 (1983); see
also Babbitt v. Farm Workers, 442 U. S. 289, 298 (1979) (A
plaintiff may challenge the prospective operation of a
statute that presents a realistic and impending threat of
direct injury). Davis faced such an injury from the opera-
tion of §319(a) when he filed suit. Davis had declared his
candidacy and his intent to spend more than $350,000 of
personal funds in the general election campaign whose
onset was rapidly approaching. Section 319(a) would
shortly burden his expenditure of personal funds by allow-
ing his opponent to receive contributions on more favor-
able terms, and there was no indication that his opponent
would forgo that opportunity. Indeed, the record at sum-
mary judgment indicated that most candidates who had
the opportunity to receive expanded contributions had
done so. App. 89. In these circumstances, we conclude
that Davis faced the requisite injury from §319(a) when he
filed suit and has standing to challenge that provision’s
asymmetrical contribution scheme.
B
The FEC’s mootness argument also fails. This case
closely resembles Federal Election Comm’n v. Wisconsin
Right to Life, Inc., 551 U. S. ___ (2007). There, Wisconsin
Right to Life (WRTL), a nonprofit, ideological advocacy
corporation, wished to run radio and TV ads within 30
days of the 2004 Washington primary, contrary to a re-
striction imposed by BCRA. WRTL sued the FEC, seeking
declaratory and injunctive relief. Although the suit was
not resolved before the 2004 election, we rejected the
FEC’s claim of mootness, finding that the case “fit com-
Cite as: 554 U. S. ____ (2008) 9
Opinion of the Court
fortably within the established exception to mootness for
disputes capable of repetition, yet evading review.” Id., at
___ (slip op., at 8). That “exception applies where ‘(1) the
challenged action is in its duration too short to be fully
litigated prior to cessation or expiration; and (2) there is a
reasonable expectation that the same complaining party
will be subject to the same action again.’ ” Ibid. (quoting
Spencer v. Kemna, 523 U. S. 1, 17 (1998)).
In WRTL, “despite BCRA’s command that the cas[e] be
expedited ‘to the greatest possible extent,’ ” WRTL’s claims
could not reasonably be resolved before the election con-
cluded. 551 U. S., at ___ (slip op., at 8) (quoting
§403(a)(4), 116 Stat. 113, note following 2 U. S. C. §437h).
Similarly, in this case despite BCRA’s mandate to expedite
and Davis’ request that his case be resolved before the
2004 general election season commenced, Davis’ case could
not be resolved before the 2006 election concluded, demon-
strating that his claims are capable of evading review.
As to the second prong of the exception, even though
WRTL raised an as-applied challenge, we found its suit
capable of repetition where “WRTL credibly claimed that
it planned on running ‘materially similar’ future” ads
subject to BCRA’s prohibition and had, in fact, sought an
injunction that would permit such an ad during the 2006
election. 551 U. S., at ___ (slip op., at 9) (some internal
quotation marks omitted). Here, the FEC conceded in its
brief that Davis’ §319(a) claim would be capable of repeti-
tion if Davis planned to self-finance another bid for a
House seat. Brief for Appellee 14, 20–21, and n. 5. Davis
subsequently made a public statement expressing his
intent to do so. See Reply Brief 16 (citing Terreri, Democ-
rat Davis Confirms He’ll Run Again for Congress, Roches-
ter Democrat and Chronicle, Mar. 27, 2008, p. 5B). As a
result, we are satisfied that Davis’ facial challenge is not
10 DAVIS v. FEDERAL ELECTION COMM’N
Opinion of the Court
moot.6
III
We turn to the merits of Davis’ claim that the First
Amendment is violated by the contribution limits that
apply when §319(a) comes into play. Under this scheme,
as previously noted, when a candidate spends more than
$350,000 in personal funds and creates what the statute
apparently regards as a financial imbalance, that candi-
date’s opponent may qualify to receive both larger individ-
ual contributions than would otherwise be allowed and
unlimited coordinated party expenditures. Davis contends
that §319(a) unconstitutionally burdens his exercise of his
First Amendment right to make unlimited expenditures of
his personal funds because making expenditures that
create the imbalance has the effect of enabling his oppo-
nent to raise more money and to use that money to finance
speech that counteracts and thus diminishes the effective-
ness of Davis’ own speech.
A
If §319(a) simply raised the contribution limits for all
candidates, Davis’ argument would plainly fail. This
Court has previously sustained the facial constitutionality
of limits on discrete and aggregate individual contribu-
tions and on coordinated party expenditures. Buckley v.
Valeo, 424 U. S. 1, 23–35, 38, 46–47, and n. 53 (1976) (per
curiam); Federal Election Comm’n v. Colorado Republican
Federal Campaign Comm., 533 U. S. 431, 437, 465 (2001)
(Colorado II). At the same time, the Court has recognized
that such limits implicate First Amendment interests and
that they cannot stand unless they are “closely drawn” to
serve a “sufficiently important interest,” such as prevent-
——————
6 In light of this conclusion, we need not decide whether the threat of
an FEC enforcement action for alleged 2004 violations would be suffi-
cient to keep this controversy alive.
Cite as: 554 U. S. ____ (2008) 11
Opinion of the Court
ing corruption and the appearance of corruption. See, e.g.,
McConnell v. Federal Election Comm’n, 540 U. S. 93, 136,
138, n. 40 (2003); Colorado II, supra, at 456; Nixon v.
Shrink Missouri Government PAC, 528 U. S. 377, 387–388
(2000); Buckley, supra, at 25–30, 38. When contribution
limits are challenged as too restrictive, we have extended
a measure of deference to the judgment of the legislative
body that enacted the law. See, e.g., Randall v. Sorrell,
548 U. S. 230, 248 (2006) (plurality opinion); Nixon, supra,
at 396–397; Buckley, supra, at 30, 111, 103–104. But we
have held that limits that are too low cannot stand. Ran-
dall, supra, at 246–262; id., at 263 (ALITO, J., concurring
in part and concurring in judgment).
There is, however, no constitutional basis for attacking
contribution limits on the ground that they are too high.
Congress has no constitutional obligation to limit contri-
butions at all; and if Congress concludes that allowing
contributions of a certain amount does not create an un-
due risk of corruption or the appearance of corruption, a
candidate who wishes to restrict an opponent’s fundraising
cannot argue that the Constitution demands that contri-
butions be regulated more strictly. Consequently, if
§319(a)’s elevated contribution limits applied across the
board, Davis would not have any basis for challenging
those limits.
B
Section 319(a), however, does not raise the contribution
limits across the board. Rather, it raises the limits only
for the non-self-financing candidate and does so only when
the self-financing candidate’s expenditure of personal
funds causes the OPFA threshold to be exceeded. We have
never upheld the constitutionality of a law that imposes
different contribution limits for candidates who are com-
peting against each other, and we agree with Davis that
this scheme impermissibly burdens his First Amendment
12 DAVIS v. FEDERAL ELECTION COMM’N
Opinion of the Court
right to spend his own money for campaign speech.
In Buckley, we soundly rejected a cap on a candidate’s
expenditure of personal funds to finance campaign speech.
We held that a “candidate . . . has a First Amendment
right to engage in the discussion of public issues and
vigorously and tirelessly to advocate his own election” and
that a cap on personal expenditures imposes “a substan-
tial,” “clea[r]” and “direc[t]” restraint on that right. 424
U. S., at 52–53. We found that the cap at issue was not
justified by “[t]he primary governmental interest” prof-
fered in its defense, i.e., “the prevention of actual and
apparent corruption of the political process.” Id., at 53.
Far from preventing these evils, “the use of personal
funds,” we observed, “reduces the candidate’s dependence
on outside contributions and thereby counteracts the
coercive pressures and attendant risks of abuse to which
. . . contribution limitations are directed.” Ibid. We also
rejected the argument that the expenditure cap could be
justified on the ground that it served “[t]he ancillary in-
terest in equalizing the relative financial resources of
candidates competing for elective office.” Id., at 54. This
putative interest, we noted, was “clearly not sufficient to
justify the . . . infringement of fundamental First Amend-
ment rights.” Ibid.
Buckley’s emphasis on the fundamental nature of the
right to spend personal funds for campaign speech is
instructive. 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. Section 319(a)
requires a candidate to choose between the First Amend-
ment right to engage in unfettered political speech and
subjection to discriminatory fundraising limitations.
Many candidates who can afford to make large personal
expenditures to support their campaigns may choose to do
so despite §319(a), but they must shoulder a special and
Cite as: 554 U. S. ____ (2008) 13
Opinion of the Court
potentially significant burden if they make that choice.
See Day v. Holahan, 34 F. 3d 1356, 1359–1360 (CA8 1994)
(concluding that a Minnesota law that increased a candi-
date’s expenditure limits and eligibility for public funds
based on independent expenditures against her candidacy
burdened the speech of those making the independent
expenditures); Brief for Appellee 29 (conceding that
“[§]319 does impose some consequences on a candidate’s
choice to self-finance beyond certain amounts”). Under
§319(a), the vigorous exercise of the right to use personal
funds to finance campaign speech produces fundraising
advantages for opponents in the competitive context of
electoral politics. Cf. Pacific Gas & Elec. Co. v. Public
Util. Comm’n of Cal., 475 U. S. 1, 14 (1986) (plurality
opinion) (finding infringement on speech rights where if
the plaintiff spoke it could “be forced . . . to help dissemi-
nate hostile views”).
The resulting drag on First Amendment rights is not
constitutional simply because it attaches as a consequence
of a statutorily imposed choice. In Buckley, we held that
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” even though we found an inde-
pendent limit on overall campaign expenditures to be
unconstitutional. 424 U. S., at 57, n. 65; see id., at 54–58.
But the choice involved in Buckley was quite different
from the choice imposed by §319(a). In Buckley, a candi-
date, by forgoing public financing, could retain the unfet-
tered right to make unlimited personal expenditures.
Here, §319(a) does not provide any way in which a candi-
date can exercise that right without abridgment. Instead,
a candidate who wishes to exercise that right has two
choices: abide by a limit on personal expenditures or en-
dure the burden that is placed on that right by the activa-
tion of a scheme of discriminatory contribution limits. The
14 DAVIS v. FEDERAL ELECTION COMM’N
Opinion of the Court
choice imposed by §319(a) is not remotely parallel to that
in Buckley.
Because §319(a) imposes a substantial burden on the
exercise of the First Amendment right to use personal
funds for campaign speech, that provision cannot stand
unless it is “justified by a compelling state interest,” Fed-
eral Election Comm’n v. Massachusetts Citizens for Life,
Inc., 479 U. S. 238, 256 (1986); see also, e.g., McConnell,
540 U. S., at 205; Austin v. Michigan Chamber of Com-
merce, 494 U. S. 652, 657–658 (1990); id., at 680 (SCALIA,
J., dissenting); id., at 701, 702–703 (KENNEDY, J., dissent-
ing); Federal Election Comm’n v. National Conservative
Political Action Comm., 470 U. S. 480, 500–501 (1985);
First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 786
(1978); Colorado Republican Federal Campaign Comm. v.
Federal Election Comm’n, 518 U. S. 604, 609 (1996) (prin-
cipal opinion) (Colorado I); id., at 640–641 (THOMAS, J.,
concurring in judgment and dissenting in part). No such
justification is present here.7
The burden imposed by §319(a) on the expenditure of
personal funds is not justified by any governmental inter-
est in eliminating corruption or the perception of corrup-
tion. The Buckley Court reasoned that reliance on per-
sonal funds reduces the threat of corruption, and therefore
§319(a), by discouraging use of personal funds, disserves
the anticorruption interest. Similarly, given Congress’
judgment that liberalized limits for non-self-financing
——————
7 Even if §319(a) were characterized as a limit on contributions rather
than expenditures, it is doubtful whether it would survive. A contribu-
tion limit involving “ ‘ “significant interference” with associational
rights’ ” must be “ ‘ “closely drawn” ’ ” to serve a “ ‘ “sufficiently impor-
tant interest.” ’ ” McConnell v. Federal Election Comm’n, 540 U. S. 93,
136 (2003). For the reasons explained infra, at 15–16, the chief interest
proffered in support of the asymmetrical contribution scheme—leveling
electoral opportunities—cannot justify the infringement of First
Amendment interests.
Cite as: 554 U. S. ____ (2008) 15
Opinion of the Court
candidates do not unduly imperil anticorruption interests,
it is hard to imagine how the denial of liberalized limits to
self-financing candidates can be regarded as serving anti-
corruption goals sufficiently to justify the resulting consti-
tutional burden.
The Government maintains that §319(a)’s asymmetrical
limits are justified because they “level electoral opportuni-
ties for candidates of different personal wealth.” Brief for
Appellee 34. “Congress enacted Section 319,” the Gov-
ernment writes,” “to reduce the natural advantage that
wealthy individuals possess in campaigns for federal
office.” Id., at 33 (emphasis added). Our prior decisions,
however, provide no support for the proposition that this is
a legitimate government objective. See Nixon, 528 U. S.,
at 428 (THOMAS, J., dissenting) (“ ‘[P]reventing corruption
or the appearance of corruption are the only legitimate
and compelling government interests thus far identified
for restricting campaign finances’ ” (quoting National
Conservative Political Action Comm., supra, at 496–497));
Randall, 548 U. S., at 268 (THOMAS, J., concurring in
judgment) (noting “the interests the Court has recognized
as compelling, i.e., the prevention of corruption or the
appearance thereof”). On the contrary, in Buckley, we
held that “[t]he interest in equalizing the financial re-
sources of candidates” did not provide a “justification for
restricting” candidates’ overall campaign expenditures,
particularly where equalization “might serve . . . to handi-
cap a candidate who lacked substantial name recognition
or exposure of his views before the start of the campaign.”
424 U. S., at 56–57. We have similarly held that the
interest “in equalizing the relative ability of individuals
and groups to influence the outcome of elections” cannot
support a cap on expenditures for “express advocacy of the
election or defeat of candidates,” as “the concept that
government may restrict the speech of some elements of
our society in order to enhance the relative voice of others
16 DAVIS v. FEDERAL ELECTION COMM’N
Opinion of the Court
is wholly foreign to the First Amendment.” Id., at 48–49;
see also McConnell, supra, at 227 (noting, in assessing
standing, that there is no legal right to have the same
resources to influence the electoral process). Cf. Austin,
supra, at 705 (KENNEDY, J., dissenting) (rejecting as “anti-
thetical to the First Amendment” “the notion that the
government has a legitimate interest in restricting the
quantity of speech to equalize the relative influence of
speakers on elections”).
The argument that a candidate’s speech may be re-
stricted in order to “level electoral opportunities” has
ominous implications because it would permit Congress to
arrogate the voters’ authority to evaluate the strengths of
candidates competing for office. See Bellotti, supra, at
791–792 (“[T]he people in our democracy are entrusted
with the responsibility for judging and evaluating the
relative merits of conflicting arguments” and “may consider,
in making their judgment, the source and credibility of the
advocate”). Different candidates have different strengths.
Some are wealthy; others have wealthy supporters who are
willing to make large contributions. Some are celebrities;
some have the benefit of a well-known family name. Level-
ing electoral opportunities means making and implement-
ing judgments about which strengths should be permitted
to contribute to the outcome of an election. The Constitu-
tion, however, confers upon voters, not Congress, the
power to choose the Members of the House of Representa-
tives, Art. I, §2, and it is a dangerous business for Con-
gress to use the election laws to influence the voters’
choices. See Bellotti, 435 U. S., at 791, n. 31 (The “[g]ov-
ernment is forbidden to assume the task of ultimate
judgment, lest the people lose their ability to govern
themselves”).
Finally, the Government contends that §319(a) is justi-
fied because it ameliorates the deleterious effects that
result from the tight limits that federal election law places
Cite as: 554 U. S. ____ (2008) 17
Opinion of the Court
on individual campaign contributions and coordinated
party expenditures. These limits, it is argued, make it
harder for candidates who are not wealthy to raise funds
and therefore provide a substantial advantage for wealthy
candidates. Accordingly, §319(a) can be seen, not as a
legislative effort to interfere with the natural operation of
the electoral process, but as a legislative effort to mitigate
the untoward consequences of Congress’ own handiwork
and restore “the normal relationship between a candi-
date’s financial resources and the level of popular support
for his candidacy.” Brief for Appellee 33.
Whatever the merits of this argument as an original
matter, it is fundamentally at war with the analysis of
expenditure and contributions limits that this Court
adopted in Buckley and has applied in subsequent cases.
The advantage that wealthy candidates now enjoy and
that §319(a) seeks to reduce is an advantage that flows
directly from Buckley’s disparate treatment of expendi-
tures and contributions. If that approach is sound—and
the Government does not urge us to hold otherwise8—it is
hard to see how undoing the consequences of that decision
can be viewed as a compelling interest. If the normally
applicable limits on individual contributions and coordi-
nated party contributions are seriously distorting the
electoral process, if they are feeding a “public perception
that wealthy people can buy seats in Congress,” Brief for
Appellee 34, and if those limits are not needed in order to
——————
8 JUSTICE STEVENS would revisit and reject Buckley’s treatment of
expenditure limits. Post, at 2–4 (opinion concurring in part and dis-
senting in part). The Government has not urged us to take that step,
and in any event, JUSTICE STEVENS’ proposal is unsound. He suggests
that restricting the quantity of campaign speech would improve the
quality of that speech, but it would be dangerous for the Government to
regulate core political speech for the asserted purpose of improving that
speech. And in any event, there is no reason to suppose that restricting
the quantity of campaign speech would have the desired effect.
18 DAVIS v. FEDERAL ELECTION COMM’N
Opinion of the Court
combat corruption, then the obvious remedy is to raise or
eliminate those limits. But the unprecedented step of
imposing different contribution and coordinated party
expenditure limits on candidates vying for the same seat
is antithetical to the First Amendment.
IV
The remaining issue that we must consider is the con-
stitutionality of §319(b)’s disclosure requirements. “[W]e
have repeatedly found that compelled disclosure, in itself,
can seriously infringe on privacy of association and belief
guaranteed by the First Amendment.” Buckley, 424 U. S.,
at 64. As a result, we have closely scrutinized disclosure
requirements, including requirements governing inde-
pendent expenditures made to further individuals’ politi-
cal speech. Id., at 75. To survive this scrutiny, significant
encroachments “cannot be justified by a mere showing of
some legitimate governmental interest.” Id., at 64. In-
stead, there must be “a ‘relevant correlation’ or ‘substan-
tial relation’ between the governmental interest and the
information required to be disclosed,” and the governmen-
tal interest “must survive exacting scrutiny.” Ibid. (foot-
notes omitted). That is, the strength of the governmental
interest must reflect the seriousness of the actual burden
on First Amendment rights. Id., at 68, 71.
The §319(b) disclosure requirements were designed to
implement the asymmetrical contribution limits provided
for in §319(a), and as discussed above, §319(a) violates the
First Amendment. In light of that holding, the burden
imposed by the §319(b) requirements cannot be justified,
and it follows that they too are unconstitutional.9
——————
9 Because we conclude that §§319(a) and (b) violate the First Amend-
ment, we need not address Davis’ claim that they also violate the equal
protection component of the Fifth Amendment’s Due Process Clause.
Cite as: 554 U. S. ____ (2008) 19
Opinion of the Court
* * *
In sum, we hold that §§319(a) and (b) violate the First
Amendment. The judgment of the District Court is re-
versed, and the case is remanded for proceedings consis-
tent with this opinion.
It is so ordered.
20 DAVIS v. FEDERAL ELECTION COMM’N
Opinion of the Court
Appendix to opinion of the Court
APPENDIX
BCRA §319(a) provides:
“(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) Determination of opposition personal funds amount
“(A) In general
“The opposition personal funds amount is an amount
equal to the excess (if any) of—
“(i) the greatest aggregate amount of expenditures from
personal funds (as defined in subsection (b)(1) of this
section) that an opposing candidate in the same election
makes; over
“(ii) the aggregate amount of expenditures from personal
funds made by the candidate with respect to the election.
“(B) Special rule for candidate’s campaign funds
“(i) In general
“For purposes of determining the aggregate amount of
expenditures from personal funds under subparagraph
(A), such amount shall include the gross receipts advan-
tage of the candidate’s authorized committee.
Cite as: 554 U. S. ____ (2008) 21
Opinion of the Court
Appendix to opinion of the Court
“(ii) Gross receipts advantage
“For purposes of clause (i), the term “gross receipts
advantage” means the excess, if any, of—
“(I) the aggregate amount of 50 percent of gross receipts
of a candidate’s authorized committee during any election
cycle (not including contributions from personal funds of
the candidate) that may be expended in connection with
the election, as determined on June 30 and December 31
of the year preceding the year in which a general election
is held, over
“(II) the aggregate amount of 50 percent of gross re-
ceipts of the opposing candidate’s authorized committee
during any election cycle (not including contributions from
personal funds of the candidate) that may be expended in
connection with the election, as determined on June 30
and December 31 of the year preceding the year in which a
general election is held.
“(3) Time to accept contributions under increased limit
“(A) In general
“Subject to subparagraph (B), a candidate and the can-
didate’s authorized committee shall not accept any contri-
bution, and a party committee shall not make any expen-
diture, under the increased limit under paragraph (1)—
“(i) until the candidate has received notification of the
opposition personal funds amount under subsection (b)(1)
of this section; and
“(ii) to the extent that such contribution, when added to
the aggregate amount of contributions previously accepted
and party expenditures previously made under the in-
creased limits under this subsection for the election cycle,
exceeds 100 percent of the opposition personal funds
amount.
“(B) Effect of withdrawal of an opposing candidate
“A candidate and a candidate’s authorized committee
shall not accept any contribution and a party shall not
make any expenditure under the increased limit after the
22 DAVIS v. FEDERAL ELECTION COMM’N
Opinion of the Court
Appendix to opinion of the Court
date on which an opposing candidate ceases to be a candi-
date to the extent that the amount of such increased limit
is attributable to such an opposing candidate.
“(4) Disposal of excess contributions
“(A) In general
“The aggregate amount of contributions accepted by a
candidate or a candidate’s authorized committee under the
increased limit under paragraph (1) and not otherwise
expended in connection with the election with respect to
which such contributions relate shall, not later than 50
days after the date of such election, be used in the manner
described in subparagraph (B).
“(B) Return to contributors
“A candidate or a candidate’s authorized committee
shall return the excess contribution to the person who
made the contribution.”
“(b) Notification of expenditures from personal funds
“(1) In general
“(A) Definition of expenditure from personal funds
In this paragraph, the term “expenditure from personal
funds” means—
“(i) an expenditure made by a candidate using personal
funds; and
“(ii) a contribution or loan made by a candidate using
personal funds or a loan secured using such funds to the
candidate’s authorized committee.
“(B) Declaration of intent
“Not later than the date that is 15 days after the date on
which an individual becomes a candidate for the office of
Representative in, or Delegate or Resident Commissioner
to, the Congress, the candidate shall file a declaration
stating the total amount of expenditures from personal
funds that the candidate intends to make, or to obligate to
make, with respect to the election that will exceed
$350,000.
“(C) Initial notification
Cite as: 554 U. S. ____ (2008) 23
Opinion of the Court
Appendix to opinion of the Court
“Not later than 24 hours after a candidate described in
subparagraph (B) makes or obligates to make an aggre-
gate amount of expenditures from personal funds in excess
of $350,000 in connection with any election, the candidate
shall file a notification.
“(D) Additional notification
“After a candidate files an initial notification under
subparagraph (C), the candidate shall file an additional
notification each time expenditures from personal funds
are made or obligated to be made in an aggregate amount
that exceeds $10,000. Such notification shall be filed not
later than 24 hours after the expenditure is made.
“(E) Contents
“A notification under subparagraph (C) or (D) shall
include—
“(i) the name of the candidate and the office sought by
the candidate;
“(ii) the date and amount of each expenditure; and
“(iii) the total amount of expenditures from personal
funds that the candidate has made, or obligated to make,
with respect to an election as of the date of the expendi-
ture that is the subject of the notification.
“(F) Place of filing
“Each declaration or notification required to be filed by a
candidate under subparagraph (C), (D), or (E) shall be
filed with—
“(i) the Commission; and
“(ii) each candidate in the same election and the na-
tional party of each such candidate.
“(2) Notification of disposal of excess contributions
“In the next regularly scheduled report after the date of
the election for which a candidate seeks nomination for
election to, or election to, Federal office, the candidate or
the candidate’s authorized committee shall submit to the
Commission a report indicating the source and amount of
any excess contributions (as determined under subsection
24 DAVIS v. FEDERAL ELECTION COMM’N
Opinion of the Court
Appendix to opinion of the Court
(a) of this section) and the manner in which the candidate
or the candidate’s authorized committee used such funds.
“(3) Enforcement
“For provisions providing for the enforcement of the
reporting requirements under this subsection, see section
437g of this title.” 2 U. S. C. §441a–1 (footnotes omitted).
Cite as: 554 U. S. ____ (2008) 1
Opinion of STEVENS, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 07–320
_________________
JACK DAVIS, APPELLANT v. FEDERAL
ELECTION COMMISSION
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF COLUMBIA
[June 26, 2008]
JUSTICE STEVENS, with whom JUSTICE SOUTER, JUSTICE
GINSBURG, and JUSTICE BREYER join as to Part II, concur
ring in part and dissenting in part.
The “Millionaire’s Amendment” of the Bipartisan Cam
paign Reform Act of 2002 (BCRA), 116 Stat. 109, 2 U. S. C.
§441a–1 (2006 ed.), is the product of a congressional judg
ment that candidates who are willing and able to spend
over $350,000 of their own money in seeking election to
Congress enjoy an advantage over opponents who must
rely on contributions to finance their campaigns. To re
duce that advantage, and to combat the perception that
congressional seats are for sale to the highest bidder,
Congress has relaxed the restrictions that would other
wise limit the amount of contributions that the opponents
of self-funding candidates may accept from their support
ers. In a thorough and well-reasoned opinion, the District
Court held that because the Millionaire’s Amendment does
not impose any burden whatsoever on the self-funding
candidate’s freedom to speak, it does not violate the First
Amendment, and because it does no more than diminish
the unequal strength of the self-funding candidate, it does
not violate the equal protection component of the Fifth
Amendment. I agree completely with the District Court’s
opinion, specifically its adherence to our decision in
McConnell v. Federal Election Comm’n, 540 U. S. 93
2 DAVIS v. FEDERAL ELECTION COMM’N
Opinion of STEVENS, J.
(2003). While I would affirm for the reasons given by the
District Court, I believe it appropriate to add these addi
tional comments on the premise that underlies the consti
tutional prohibition on expenditure limitations, and on my
reasons for concluding that the Millionaire’s Amendment
represents a modest, sensible, and plainly constitutional
attempt by Congress to minimize the advantages enjoyed
by wealthy candidates vis-à-vis those who must rely on the
support of others to fund their pursuit of public office.
I
According to the Court’s decision in Buckley v. Valeo,
424 U. S. 1, 18 (1976) (per curiam), the vice that condemns
expenditure limitations is that they “impose direct quan
tity restrictions” on political speech.1 A limitation on the
amount of money that a candidate is permitted to spend,
the Buckley Court concluded, “reduces the quantity of
expression by restricting the number of issues discussed,
the depth of their exploration, and the size of the audience
reached.” Id., at 19. Accordingly, the Court determined
that any regulation of the quantity of money spent on
campaigns for office ought to be viewed as a direct regula
tion of speech itself.
Justice White firmly disagreed with the Buckley Court’s
holding on expenditure limitations, explaining that such
regulations should be analyzed, not as direct restrictions
on speech, but rather as akin to time, place, and manner
regulations, which will be upheld “so long as the purposes
they serve are legitimate and sufficiently substantial.”
Id., at 264 (opinion concurring in part and dissenting in
——————
1 The Buckley Court invalidated two different types of limits on cam
paign expenditures: limits on the amount of “personal or family re
sources” a candidate could spend on his own campaign, 424 U. S., at
51–54, and overall limits on campaign expenditures, id., at 54–60. In
my judgment the Court was mistaken in striking down both of those
provisions; I treat them together here.
Cite as: 554 U. S. ____ (2008) 3
Opinion of STEVENS, J.
part). Although I did not participate in the Court’s deci
sion in Buckley, I have since been persuaded that Justice
White—who maintained his steadfast opposition to Buck-
ley’s view of expenditure limits, see, e.g., Federal Election
Comm’n v. National Conservative Political Action Comm.,
470 U. S. 480, 507–512 (1985) (dissenting opinion)—was
correct. Indeed, it was Buckley that represented a break
from 65 years of established practice, as well as a probable
departure from the views of the Framers of the relevant
provisions of the Constitution itself. See Randall
v. Sorrell, 548 U. S. 230, 274, 280–281 (STEVENS, J.,
dissenting).
In my view, a number of purposes, both legitimate and
substantial, may justify the imposition of reasonable
limitations on the expenditures permitted during the
course of any single campaign. For one, such limitations
would “free candidates and their staffs from the intermi
nable burden of fundraising.” Colorado Republican Fed-
eral Campaign Comm. v. Federal Election Comm’n, 518
U. S. 604, 649 (1996) (STEVENS, J., dissenting). Moreover,
the imposition of reasonable limitations would likely have
the salutary effect of improving the quality of the exposi
tion of ideas. After all, orderly debate is always more
enlightening than a shouting match that awards points on
the basis of decibels rather than reasons. Quantity limita
tions are commonplace in any number of other contexts in
which high-value speech occurs. Litigants in this Court
pressing issues of the utmost importance to the Nation are
allowed only a fixed time for oral debate and a maximum
number of pages for written argument. As listeners and
as readers, judges need time to reflect on the merits of an
issue; repetitious arguments are disfavored and are usu
ally especially unpersuasive. Indeed, experts in the art of
advocacy agree that “lawyers go on for too long, and when
4 DAVIS v. FEDERAL ELECTION COMM’N
Opinion of STEVENS, J.
they do it doesn’t help their case.”2 It seems to me that
Congress is entitled to make the judgment that voters
deserve the same courtesy and the same opportunity to
reflect as judges; flooding the airwaves with slogans and
sound-bites may well do more to obscure the issues than to
enlighten listeners. At least in the context of elections, the
notion that rules limiting the quantity of speech are just
as offensive to the First Amendment as rules limiting the
content of speech is plainly incorrect.3
If, as I have come to believe, Congress could attempt to
reduce the millionaire candidate’s advantage by imposing
reasonable limits on all candidates’ expenditures, it fol
lows a fortiori that the eminently reasonable scheme
before us today survives constitutional scrutiny.
II
Even accepting the Buckley Court’s holding that expen
diture limits as such are uniquely incompatible with the
First Amendment, it remains my firm conviction that the
Millionaire’s Amendment represents a good-faith attempt
by Congress to regulate, within the bounds of the Consti
tution, one particularly pernicious feature of many con
temporary political campaigns.4
——————
2 Brust, A Voice for the Write: Tips on Making Your Case From a
Supremely Reliable Source, 94 A. B. A. J. 37 (May 2008) (interview
with JUSTICE SCALIA and Bryan Garner).
3 The Court is of course correct that “it would be dangerous for the
Government to regulate core political speech for the asserted purpose of
improving that speech.” Ante, at 17, n. 8. But campaign expenditures
are not themselves “core political speech”; they merely may enable such
speech (as well as its repetition ad nauseam). In my judgment, it is
simply not the case that the First Amendment “provides the same
measure of protection” to the use of money to enable speech as it does to
speech itself. Nixon v. Shrink Missouri Government PAC, 528 U. S.
377, 398 (2000) (STEVENS, J., concurring).
4 I note at the outset of this discussion, however, that I agree with the
Court’s conclusion that Davis has standing to challenge §§319(a) and
(b), and that the case is not moot; I therefore join Part II of the Court’s
Cite as: 554 U. S. ____ (2008) 5
Opinion of STEVENS, J.
It cannot be gainsaid that the twin rationales at the
heart of the Millionaire’s Amendment—reducing the
importance of wealth as a criterion for public office and
countering the perception that seats in the United States
Congress are available for purchase by the wealthiest
bidder—are important Government interests. It is also
evident that Congress, in enacting the provision, crafted a
solution that was carefully tailored to those concerns.
Davis insists, however, that the Government’s interests
are insufficiently weighty to justify what he believes are
intrusions upon his rights under the First Amendment
and the equal protection component of the Fifth Amend
ment, and that, regardless of the strength of the justifica
tions offered, Congress’ solution is not sufficiently tailored
to addressing the twin concerns it has identified. His
arguments are unpersuasive on all counts.
A
The thrust of Davis’ First Amendment challenge is that
by relaxing the contribution limits applicable to the oppo
nent of a self-funding candidate, the Millionaire’s
Amendment punishes the candidate who chooses to self-
fund. Extrapolating from the zero-sum nature of a politi
cal race, Davis insists that any benefit conferred upon a
self-funder’s opponent thereby works a detriment to the
self-funding candidate. Accordingly, he argues, the
scheme burdens the self-funding candidate’s First
Amendment right to speak freely and to participate fully
in the political process.
But Davis cannot show that the Millionaire’s Amend
ment causes him—or any other self-funding candidate—
any First Amendment injury whatsoever. The Million
aire’s Amendment quiets no speech at all. On the con
trary, it does no more than assist the opponent of a self
——————
opinion.
6 DAVIS v. FEDERAL ELECTION COMM’N
Opinion of STEVENS, J.
funding candidate in his attempts to make his voice heard;
this amplification in no way mutes the voice of the mil
lionaire, who remains able to speak as loud and as long as
he likes in support of his campaign. Enhancing the speech
of the millionaire’s opponent, far from contravening the
First Amendment, actually advances its core principles. If
only one candidate can make himself heard, the voter’s
ability to make an informed choice is impaired.5 And the
self-funding candidate’s ability to engage meaningfully in
the political process is in no way undermined by this
provision.6
Even were we to credit Davis’ view that the benefit
conferred on the self-funding candidate’s opponent bur
dens the self-funder’s First Amendment rights, the pur
poses of the Amendment surely justify its effects. The
Court is simply wrong when it suggests that the “govern
mental interest in eliminating corruption or the perception
of corruption,” ante, at 14, is the sole governmental inter
est sufficient to support campaign finance regulations.
See ante, at 15–17. It is true, of course, that in upholding
the Federal Election Campaign Act of 1971’s (FECA)
limits on the size of contributions to political campaigns,
the Buckley Court held that preventing both actual cor
ruption and the appearance of corruption were Govern
ment interests of sufficient weight that they justified any
infringement upon First Amendment freedoms that re
——————
5 “In
a republic where the people are sovereign, the ability of the citi
zenry to make informed choices among candidates for office is essential,
for the identities of those who are elected will inevitably shape the
course that we follow as a nation.” Buckley v. Valeo, 424 U. S. 1, 14–15
(1976) (per curiam).
6 The self-funder retains the choice to structure his campaign’s fund
ing as he pleases: He may choose to fund his own campaign subject to
no limitations whatsoever and still accept limited donations from
supporters; alternatively, he may forgo self-financing and rely on
contributions alone, at the same level as his opponent. In neither event
is his engagement in the political process in any sense impeded.
Cite as: 554 U. S. ____ (2008) 7
Opinion of STEVENS, J.
sulted from FECA’s contribution limits; the Court ex
plained that, “[t]o the extent that large contributions are
given to secure a political quid pro quo from current and
potential office holders, the integrity of our system of
representative democracy is undermined. . . . Of almost
equal concern . . . is the impact of the appearance of cor
ruption stemming from public awareness of the opportuni
ties for abuse inherent in a regime of large individual
financial contributions.” 424 U. S., at 26–27. It is also
true that the Court found that same interest insufficient
to justify FECA’s expenditure limitations. Id., at 45–46,
52–56. But it does not follow that the Buckley Court
concluded that only the interest in combating corruption
and the appearance of corruption can justify congressional
regulation of campaign financing.
Indeed, we have long recognized the strength of an
independent governmental interest in reducing both the
influence of wealth on the outcomes of elections, and the
appearance that wealth alone dictates those results. In
case after case, we have held that statutes designed to
protect against the undue influence of aggregations of
wealth on the political process—where such statutes are
responsive to the identified evil—do not contravene the
First Amendment. See, e.g., Austin v. Michigan Chamber
of Commerce, 494 U. S. 652, 660 (1990) (upholding statute
designed to combat “the corrosive and distorting effects of
immense aggregations of wealth that are accumulated
with the help of the corporate form and that have little or
no correlation to the public’s support for the corporation’s
political ideas”); Federal Election Comm’n v. Massachu-
setts Citizens for Life, Inc., 479 U. S. 238, 257 (1986)
(“Th[e] concern over the corrosive influence of concen
trated corporate wealth reflects the conviction that it is
important to protect the integrity of the marketplace of
political ideas. . . . Direct corporate spending on political
activity raises the prospect that resources amassed in the
8 DAVIS v. FEDERAL ELECTION COMM’N
Opinion of STEVENS, J.
economic marketplace may be used to provide an unfair
advantage in the political marketplace”); cf. Red Lion
Broadcasting Co. v. FCC, 395 U. S. 367, 390 (1969) (up
holding constitutionality of several components of the
FCC’s “fair coverage” requirements, and explaining that
“[i]t is the purpose of the First Amendment to preserve an
uninhibited marketplace of ideas in which truth will ulti
mately prevail, rather than to countenance monopolization
of that market”).
Although the focus of our cases has been on aggrega
tions of corporate rather than individual wealth, there is
no reason that their logic—specifically, their concerns
about the corrosive and distorting effects of wealth on our
political process—is not equally applicable in the context
of individual wealth. For, as we explained in McConnell,
“Congress’ historical concern with the ‘political potentiali
ties of wealth’ and their ‘untoward consequences for the
democratic process’. . . has long reached beyond corporate
money,” 540 U. S., at 116 (quoting United States v. Auto-
mobile Workers, 352 U. S. 567, 577–578 (1957)).
Minimizing the effect of concentrated wealth on our
political process, and the concomitant interest in address
ing the dangers that attend the perception that political
power can be purchased, are, therefore, sufficiently
weighty objectives to justify significant congressional
action. And, not only was Congress motivated by proper
and weighty goals in crafting the Millionaire’s Amend
ment, the details of the scheme it devised are genuinely
responsive to the problems it identified. The statute’s
“Opposition Personal Funds Amount” formula permits a
self-funding candidate to spend as much money as he
wishes, while taking into account fundraising by the rele
vant campaigns; it thereby ensures that a candidate who
happens to enjoy a significant fundraising advantage
against a self-funding opponent does not reap a windfall
as a result of the enhanced contribution limits. Rather,
Cite as: 554 U. S. ____ (2008) 9
Opinion of STEVENS, J.
the self-funder’s opponent may avail himself of the en
hanced contribution limits only until parity is achieved, at
which point he becomes again ineligible for contributions
above the normal maximum. See §§441a–1(a)(1)(A)–(C).
It seems uncontroversial that “there is no good reason to
allow disparities in wealth to be translated into disparities
in political power. A well-functioning democracy distin
guishes between market processes of purchase and sale on
the one hand and political processes of voting and reason-
giving on the other.” Sunstein, Political Equality and
Unintended Consequences, 94 Colum. L. Rev. 1390 (1994).
In light of that clear truth, Congress’ carefully crafted
attempt to reduce the distinct advantages enjoyed by
wealthy candidates for congressional office does not offend
the First Amendment.
B
Davis’ equal protection argument, which the Court finds
unnecessary to address, ante, at 18, n. 9, fares no better.
He claims that by permitting only the self-funder’s oppo
nent to avail himself of the increased contribution limits,
the statute creates an unwarranted disparity between the
self-funder and his opponent. But, as we explained in
McConnell, “Congress is fully entitled to consider . . . real-
world differences . . . when crafting a system of campaign
finance regulation.” 540 U. S., at 188. And Buckley itself
acknowledged, in the course of upholding FECA’s public
financing scheme, that “the Constitution does not require
Congress to treat all declared candidates the same.” 424
U. S., at 97. It blinks reality to contend that the million
aire candidate is situated identically to a nonmillionaire
opponent, and Congress was under no obligation to in
dulge any such fiction. Accordingly, Davis has failed to
establish that he was deprived of the equal protection
guarantees of the Fifth Amendment.
10 DAVIS v. FEDERAL ELECTION COMM’N
Opinion of STEVENS, J.
III
In sum, I share Judge Wright’s view that nothing in the
Constitution “prevents us, as a political community, from
making certain modest but important changes in the kind
of process we want for selecting our political leaders,”
Wright, Politics and the Constitution: Is Money Speech?
85 Yale L. J. 1001, 1005 (1976). In my judgment, the
Millionaire’s Amendment represents just such a change. I
therefore respectfully dissent.
Cite as: 554 U. S. ____ (2008) 1
Opinion of GINSBURG, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 07–320
_________________
JACK DAVIS, APPELLANT v. FEDERAL
ELECTION COMMISSION
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF COLUMBIA
[June 26, 2008]
JUSTICE GINSBURG, with whom JUSTICE BREYER joins,
concurring in part and dissenting in part.
Agreeing with the Court that appellant Jack Davis has
standing and that this case is not moot, I join Part II of
the Court’s opinion. On the merits, however, I part ways
with the Court. The District Court’s careful and persua-
sive opinion, as I see it, correctly concluded that the provi-
sions challenged in this case are entirely consistent with
Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam), and all
other relevant decisions of this Court. I therefore join Part
II of JUSTICE STEVENS’ opinion.
I resist joining other portions of JUSTICE STEVENS’
opinion, however, to the extent that they address Buckley’s
distinction between expenditure and contribution limits
and, correspondingly, Buckley’s holding that expenditure
limits impose “direct quantity restrictions on political
communication,” id., at 18. Appellee Federal Election
Commission has not asked us to overrule Buckley; conse-
quently, the issue has not been briefed. Convinced that
the challenged statute encounters no constitutional shoal
under our precedents, I would leave reconsideration of
Buckley for a later day and case.