"Wholly Foreign to the First Amendment": The Demise of Campaign Finance's Equalizing Rationale in Davis V. Federal Election Commission

By Gedge, Samuel | Harvard Journal of Law & Public Policy, Summer 2009 | Go to article overview

"Wholly Foreign to the First Amendment": The Demise of Campaign Finance's Equalizing Rationale in Davis V. Federal Election Commission


Gedge, Samuel, Harvard Journal of Law & Public Policy


Since the Supreme Court handed down its seminal campaign finance opinion, Buckley v. Valeo, (1) more than three decades ago, campaign contributions and expenditures have been widely accepted as a type of political speech entitled to varying degrees of First Amendment protection. (2) Under Buckley, the only government interest sufficient to justify regulating campaign finance was "the prevention of corruption and the appearance of corruption." (3) State actors could easily invoke this fear of quid pro quo corruption with regard to contribution restrictions, but limits on campaign expenditures proved much harder to justify. Searching for an interest more closely related to the regulation of campaign expenditures, litigants and legal scholars alike have articulated an "equalizing" interest--essentially maintaining that the government has an interest in ensuring that participants have equal opportunities of expression in the political arena. (4) Clearly, were equalizing to become entrenched as an accepted rationale, a significant bulwark restricting campaign finance regulation would be swept away. Perhaps recognizing the danger of opening the Pandora's box of equalizing interests, the Court has thus far declined the invitation to supplement its "corruption" standard. Nevertheless, from the mid-1980s onward the Court appeared amenable to stretching the anticorruption rationale almost beyond recognition, at times implicitly acknowledging an equalizing interest in campaign finance jurisprudence. (5) Last Term, however, in Davis v. Federal Election Commission, (6) a divided Court struck down the "Millionaires' Amendment" of the Bipartisan Campaign Reform Act of 2002 (BCRA), (7) unequivocally rejecting the governmental interest in "leveling the playing-field" and holding that the statute's asymmetrical contribution caps and disclosure regulations violated the First Amendment by unduly burdening political expression. The Court split over whether equalizing the political opportunities of candidates was a legitimate government interest or an unjustifiable infringement on campaign speech. By strongly articulating a clear rejection of the equalizing doctrine, the majority took a significant step in breaking from its earlier, deferential campaign finance jurisprudence. Furthermore, the reaffirmation of Buckley's anticorruption goal as the sole state interest capable of prevailing on a First Amendment challenge will have broad implications for the continued viability of corporate campaign finance regulation, and also works to undermine contribution limits generally.

Enacted in 2002, BCRA Section 319--popularly known as the "Millionaires' Amendment"--provided for asymmetrical campaign finance regulations under limited circumstances during a House of Representatives electoral race. (8) Under Section 319(a), when a candidate's "opposition personal funds account" (OPFA)--basically the amount of personal funds he expends during the campaign (9)--exceeded $350,000, his opponent could take advantage of dramatically less-restrictive contribution limits up to the amount of the self-financed candidate's aggregate expenditures. (10) For example, although the self-financed candidate would remain subject to contribution caps of $2,300 per individual, his opponent would then be free to accept treble that amount, even from individuals who had already reached their regular aggregate contribution cap of $42,700. (11) Section 319(a) also permitted candidates facing self-financed opponents to benefit from unlimited coordinated expenditures from their parties. (12) Section 319(b) mandated that a candidate exceeding the $350,000 OPFA mark comply with additional detailed disclosure requirements. (13) Unwitting candidates who failed to file the disclosure forms could be subject to substantial civil sanctions. (14)

In March 2006, Jack Davis filed his statement of candidacy with the FEC, declaring his intent to run as the Democratic candidate for New York's 26th Congressional District. …

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