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No. 07-320

 

In the Supreme Court of the United States

JACK DAVIS, APPELLANT

v.

FEDERAL ELECTION COMMISSION

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

BRIEF FOR THE APPELLEE

PAUL D. CLEMENT
Solicitor General
Counsel of Record
GREGORY G. GARRE
Deputy Solicitor General
MALCOLM L. STEWART
Assistant to the Solicitor
General
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

THOMASENIA P. DUNCAN
General Counsel
DAVID KOLKER
Associate General Counsel
KEVIN DEELEY
Assistant General Counsel
HOLLY J. BAKER
CLAIRE N. RAJAN
Attorneys
Federal Election Commission
Washington, D.C. 20463

QUESTIONS PRESENTED

Section 319 of the Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, 116 Stat. 109, applies to el ections for the United States House of Representatives in which a candidate spends more than $350,000 in per sonal funds. In such an election, when certain conditions are met, Section 319 modifies the contribution and coor dinated-expenditure limits that would otherwise apply to the self-financing candidate's opponent, and it impos es certain disclosure requirements on all candidates. The questions presented are as follows:

1. Whether this case is moot.

2. Whether appellant has standing to challenge the modified contribution and coordinated-expenditure lim its established by Section 319.

3. Whether those modified limits on their face vio late the First Amendment or the equal protection com ponent of the Due Process Clause of the Fifth Amend ment.

4. Whether the disclosure requirements established by Section 319 are unconstitutional on their face.

In the 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

BRIEF FOR THE APPELLEE

OPINION BELOW

The opinion of the district court (J.S. App. 1a-18a) is reported at 501 F. Supp. 2d 22.

JURISDICTION

The decision of the district court was issued on Au gust 9, 2007. A notice of appeal was filed on August 16, 2007, and the jurisdictional statement was filed on Sep tember 7, 2007. On January 11, 2008, this Court post poned consideration of the question of jurisdiction to the hearing of the case on the merits. The jurisdiction of this Court is invoked under the Bipartisan Campaign Reform Act of 2002 (BCRA), Pub. L. No. 107-155, § 403(a)(3), 116 Stat. 114; and 28 U.S.C. 1253.

STATEMENT

This case involves a facial constitutional challenge to Section 319 of BCRA (Section 319), 116 Stat. 109 (2 U.S.C. 441a-1 (Supp. V 2005)), part of the so-called "Millionaires' Amendment." Section 319 applies to elec tions for the United States House of Representatives in which a candidate contributes more than $350,000 in personal funds to his own campaign. If and when cer tain conditions are met, the opponents of such candi dates may accept contributions from individuals in ex cess of the generally applicable limits. See 2 U.S.C. 441a-1(a)(1)(A)-(B) (Supp. V 2005). Under those circum stances, the usual statutory limits on political party ex penditures that are coordinated with a candidate do not apply to expenditures in support of an opponent of the self-financing candidate. See 2 U.S.C. 441a-1(a)(1)(C) (Supp. V 2005). Appellant filed suit in federal district court, arguing that Section 319 on its face violates the First Amendment and the equal protection component of the Due Process Clause of the Fifth Amendment. The three-judge district court rejected appellant's constitu tional claims and granted the government's motion for summary judgment. J.S. App. 1a-18a.

1. The Federal Election Commission (Commission or FEC) is vested with statutory authority over the administration, interpretation, and civil enforcement of the Federal Election Campaign Act of 1971 (FECA), 2 U.S.C. 431 et seq., and other federal campaign-finance statutes. The Commission is empowered to "formulate policy" with respect to FECA, 2 U.S.C. 437c(b)(1); "to make, amend, and repeal such rules * * * as are nec essary to carry out the provisions of [the] Act," 2 U.S.C. 437d(a)(8), 438(d); 2 U.S.C. 438(a)(8) (Supp. V 2005); and to issue written advisory opinions concerning the appli cation of the Act and Commission regulations to any specific proposed transaction or activity, 2 U.S.C. 437d(a)(7), 437f.

2. Federal law has long prohibited any person from making contributions "to any candidate and his autho rized political committee with respect to any election for Federal office which, in the aggregate, exceed" a statu tory cap, which is currently set at $2300. 2 U.S.C. 441a(a)(1)(A) (Supp. V 2005); 2 U.S.C. 441a(c) (2000 & Supp. V 2005); see J.S. App. 3a n.4. In Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), this Court upheld the $1000 contribution limit then imposed by FECA. See id. at 23-35. The Court explained that "the Act's primary purpose-to limit the actuality and appearance of cor ruption resulting from large individual financial contri butions-[provides] a constitutionally sufficient justifi cation for the $1,000 contribution limitation." Id. at 26. In response to the contention that the contribution limit had been set at too low a level, the Court in Buckley stated that "[i]f [Congress] is satisfied that some limit on contributions is necessary, a court has no scalpel to probe, whether, say, a $2,000 ceiling might not serve as well as $1,000. Such distinctions in degree become sig nificant only when they can be said to amount to differ ences in kind." Id. at 30 (citation and internal quotation marks omitted). Because expenditures made in coordi nation with candidates have essentially the same value to candidates as contributions, federal law has also long treated "coordinated expenditures"-including expendi tures by political parties made in coordination with their own candidates, FEC v. Colorado Republican Fed. Cam paign Comm., 533 U.S. 431, 465 (2001)-as "contribu tions" subject to statutory limits, see Buckley, 424 U.S. at 46-47 & n.53.

While upholding statutory limits on contributions to federal candidates, the Court in Buckley invalidated FECA caps on the amount of personal wealth a federal candidate could spend on his own campaign. 424 U.S. at 51-54. Those expenditure provisions barred presidential and vice-presidential candidates from spending more than $50,000 of their personal wealth on their cam paigns, limited Senate candidates to $35,000, and limited most House candidates to $25,000. Id. at 51. The Court concluded that "the First Amendment simply cannot tolerate [the statute's] restriction upon the freedom of a candidate to speak without legislative limit on behalf of his own candidacy." Id. at 54.

The Court in Buckley upheld Congress's decision to provide public financing for presidential campaigns and to make the availability of public money contingent on a candidate's agreement to adhere to statutory expendi ture limitations. 424 U.S. at 57 n.65, 92-93. Unlike man datory expenditure caps, the Court concluded, such an arrangement does not "abridge, restrict, or censor speech," but instead "facilitate[s] and enlarge[s] public discussion and participation in the electoral process." Id. at 92-93. The Court explained that, "[j]ust as a can didate may voluntarily limit the size of contributions he chooses to accept, he may decide to forgo private fund raising and accept public funding." Id. at 57 n.65.

3. Since 1910, federal law has required disclosure of various categories of information related to election campaigns. See Buckley, 424 U.S. at 61. Under current law, candidate campaign committees (among others) must register with the Commission and file periodic reports for disclosure to the public of all receipts and disbursements to or from a person in excess of $200 in a calendar year (and in some instances, of any amount), as well as total operating expenses and cash on hand. See 2 U.S.C. 433; 2 U.S.C. 434 (2000 & Supp. V 2005). The receipts that are required to be reported include both contributions and loans from the candidate. 11 C.F.R. 104.3(a)(3)(ii) and (vii)(B). FECA generally re quires congressional candidate committees to file quar terly reports, a pre-election report no later than the 12th day before an election, and a post-election report within 30 days after an election. 2 U.S.C. 434(a)(2) (2000 & Supp. V 2005). In addition, candidate committees must file special notices regarding contributions of $1000 or more received less than 20 days but more than 48 hours before an election. 2 U.S.C. 434(a)(6)(A).

The Court in Buckley generally upheld FECA's re porting requirements at the then-applicable lower thresholds. See 424 U.S. at 60-84. The Court held that the required disclosures served the important govern ment interests of (1) providing the electorate with infor mation on campaign financing "in order to aid the voters in evaluating those who seek federal office," (2) "deter [ring] actual corruption and avoid[ing] the appearance of corruption by exposing large contributions and expen ditures to the light of publicity," and (3) "gathering the data necessary to detect violations of the contribution limitations" that were simultaneously enacted. Id. at 66- 68. The Court explained that FECA's disclosure re quirements would unconstitutionally infringe associa tional rights only in the limited circumstance when com pelled disclosure would cause a "reasonable probability" of "threats, harassment, and reprisals" against an orga nization or its members. Id. at 66, 74. In 1980, Con gress amended FECA to raise the reporting thresholds to their current levels. See Federal Election Campaign Act Amendments of 1979, Pub. L. No. 96-187, § 104, 93 Stat. 1348 (2 U.S.C. 434 (1982)).

4. The Court in Buckley recognized that, "[g]iven the limitation on the size of outside contributions, the financial resources available to a candidate's campaign, like the number of volunteers recruited, will normally vary with the size and intensity of the candidate's sup port." 424 U.S. at 56. The Court acknowledged, howev er, that this relationship "may not apply where the can didate devotes a large amount of his personal resources to his campaign." Id. at 56 n.63. Based on its assess ment of federal elections in the thirty years since Buck ley, Congress determined that increasing numbers of congressional candidates now choose to rely largely on their own personal wealth to finance their campaigns.

In the debates that culminated in BCRA's enact ment, Members of Congress identified various harmful consequences that could follow from the increasing im pact of candidates' personal wealth on elections for fed eral office. The disparity in campaign resources created by wealthy candidates' expenditures of personal funds was thought to "ma[k]e it more difficult for non-wealthy opponents to compete and to put their messages and their ideas across to the public." 147 Cong. Rec. 3967 (2001) (statement of Sen. DeWine); see 148 Cong. Rec. 1382 (2002) (statement of Rep. Davis) (explaining that Section 319 "evens the playing field" between a non- wealthy candidate and one "who can go to McDonald's, have breakfast with himself, write himself a $3 million check and have the largest fund-raising breakfast in his tory"). The competitive advantage of self-financing can didates in turn threatened to create the public percep tion that "someone today who is wealthy enough can buy a seat" in Congress. 147 Cong. Rec. at 3976 (statement of Sen. DeWine). Members of Congress also expressed concern that party officials increasingly consider individ uals' wealth in recruiting potential candidates. See, e.g., id. at 3969 (statement of Sen. McCain) ("[B]oth parties have now openly stated that they recruit people who have sizable fortunes of their own in order to run for the Senate.").

To address those phenomena, Congress enacted Sec tion 319 of BCRA, which applies to elections for the United States House of Representatives.1 Section 319 applies only to House election campaigns in which at least one candidate spends more than $350,000 in per sonal funds. For purposes of determining whether the $350,000 threshold has been crossed, the term "expendi ture from personal funds" includes "an expenditure made by a candidate using personal funds," 2 U.S.C. 441a-1(b)(1)(A)(i) (Supp. V 2005), as well as "a contribu tion or loan made by a candidate using personal funds or a loan secured using such funds to the candidate's autho rized committee," 2 U.S.C. 441a-1(b)(1)(A)(ii) (Supp. V 2005).

If a candidate for the House of Representatives makes expenditures from personal funds that exceed $350,000, his opponent may be permitted (1) to receive contri butions at three times the limit for each donor that would otherwise be in place; (2) to receive contribu tions from individuals who have reached what would otherwise be their statutory limit for aggregate cam paign donations; and (3) to coordinate with their po litical party on additional party expenditures that would otherwise be limited.

J.S. App. 3a-4a (footnotes and citations omitted); see 2 U.S.C. 441a-1(a)(1)(A)-(C) (Supp. V 2005). To determine whether and to what extent he may accept contributions and coordinated expenditures that would otherwise ex ceed the statutory limits, an opposing candidate must calculate the "opposition personal funds amount" (OPFA). See 2 U.S.C. 441a-1(a)(2) (Supp. V 2005); J.S. App. 4a.2 Section 319 limits the amount of increased contributions and increased coordinated party expendi tures a candidate may receive to the amount of the total OPFA disparity between the candidates. 2 U.S.C. 441a- 1(a)(3)(A)(ii) (Supp. V 2005).

Section 319 also establishes reporting requirements for self-financing candidates and their opponents. See J.S. App. 5a. Within 15 days after becoming a candidate, an individual must disclose the amount of personal funds in excess of $350,000 that he intends to spend during the campaign. 2 U.S.C. 441a-1(b)(1)(B) (Supp. V 2005). If a candidate actually spends more than $350,000 in personal funds on his campaign, he must file an "ini tial notification" of that expenditure within 24 hours after exceeding the threshold. 2 U.S.C. 441a-1(b)(1)(C) (Supp. V 2005). Thereafter, for each aggregate expendi ture of $10,000 or more in personal funds, the candi date must file a notification within 24 hours. 2 U.S.C. 441a-1(b)(1)(D) (Supp. V 2005). Those notifications must be filed with the Commission and provided to each oppo nent in the same election, and to the national party of each opponent. 2 U.S.C. 441a-1(b)(1)(F) (Supp. V 2005).

The opponent of a self-financing candidate is also subject to additional real-time reporting requirements. See 11 C.F.R. 400.30-400.31. After receiving the self- financing candidate's initial or additional notifications of expenditures from personal funds, the opposing candi date must calculate the current OPFA and, if and when he becomes eligible to invoke the modified contribution and coordinated-expenditure limits, must notify the Commission and his political party within 24 hours. 11 C.F.R. 400.30(b). If the opposing candidate reaches the maximum allowable amount and is no longer entitled to solicit increased contributions and coordinated party expenditures, he must notify the Commission and his political party within 24 hours. 11 C.F.R. 400.31.

5. Appellant Jack Davis was a candidate for United States Representative in New York's 26th Congres sional District in both 2004 and 2006. J.S. App. 1a, 5a. In April 2006, appellant filed with the Commission a Statement of Candidacy for that congressional seat. See J.A. 102-103. Pursuant to Section 319, the Statement of Candidacy included a declaration of intent on which ap pellant was required to state the amount of personal funds in excess of the $350,000 threshold that he in tended to spend in support of his primary and general election campaigns. J.A. 103. Appellant entered "$0.00" for the primary election and "$1,000,000" for the general election. Ibid.3

In June 2006, appellant filed suit in federal district court, asserting a facial challenge to Section 319. J.S. App. 5a. Pursuant to Section 403(a)(1) of BCRA, 116 Stat. 114, a three-judge district court was convened. See J.S. App. 1a, 6a. The district court granted the FEC's motion for summary judgment. Id. at 1a-18a.

a. The district court held that appellant had stand ing to sue. J.S. App. 6a-7a. The court explained that Section 319 "imposes new and added disclosure require ments on self-financing candidates such as [appellant]." Id. at 6a. The court concluded that "[t]hese additional disclosure requirements impose an injury-in-fact on self- financed candidates that can be traced directly to [Sec tion 319]." Ibid.

b. The district court noted that appellant had brought a facial challenge to Section 319, and that such a suit is "the most difficult challenge to mount success fully." J.S. App. 7a (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)). The district court held that appellant's facial challenge "fails at the outset" because Section 319 "places no restrictions on a candidate's abil ity to spend unlimited amounts of his personal wealth to communicate his message to voters, nor does it reduce the amount of money he is able to raise from contribu tors." Id. at 9a. Rather, the district court explained, Section 319 "preserve[s] core First Amendment values by protecting the candidate's ability to enhance his par ticipation in the political marketplace." Ibid. The court observed that Section 319 "is similar to statutes that permit higher contribution limits for candidates who agree to public financing of their campaigns," and that such regimes have "been consistently upheld against First Amendment challenges." Ibid.; see id. at 9a-10a (citing cases).

The district court rejected appellant's contention that Section 319, by conferring a competitive advantage on opponents of self-financing candidates, will imper missibly deter candidates for the House of Representa tives from financing their own campaigns. See J.S. App. 10a-13a. The court acknowledged that "there may be cases in which a regulatory scheme creates a competi tive advantage so extreme that it works an unconstitu tional burden on a candidate's First Amendment right to pursue elective office." Id. at 11a. The court observed, however, that "no court has found such an unconstitu tional burden where the disadvantage is the result of the candidate's choice to fund his campaign from one of sev eral permissible funding sources." Ibid. The court noted in that regard that this Court in Buckley had "up held expenditure limitations for candidates who chose to participate in public financing of their campaigns." Ibid. (citing Buckley, 424 U.S. at 57 n.65); see p. 4, supra. The court further explained that appellant himself had not been deterred by Section 319, since he had chosen to self-finance his campaigns in both 2004 and 2006. See J.S. App. 13a.

c. The district court also rejected appellant's chal lenge to the disclosure requirements imposed by Section 319. J.S. App. 14a-17a. The court noted that this Court had upheld similar reporting obligations both in Buckley and in McConnell v. FEC, 540 U.S. 93, 194-195 (2003). J.S. App. 14a-15a. The court explained that, "[b]ecause [appellant] concedes that all of the information required by the reporting provisions would eventually have to be disclosed to the FEC whether or not [Section 319] ever applies," appellant's claim of an unconstitutional burden "is essentially a complaint about the timing elements of the reporting requirements." Id. at 16a. The court found that complaint to be unfounded, noting that "the timing deadlines of [Section 319] are no more burden some than other BCRA reporting deadlines that were upheld in McConnell." Ibid. The court further observed that Section 319 imposes reporting obligations not only on self-financing candidates, but also on their opponents and on political parties. Id. at 16a-17a.

d. The district court rejected appellant's equal pro tection claim as well. J.S. App. 17a-18a. The court ex plained that "[t]he touchstone of an Equal Protection argument is that the challenged statute is flawed be cause it treats similarly situated entities differently." Id. at 17a. The court held that appellant "cannot make this showing because the reasonable premise of [Section 319] is that self-financed candidates are situated differ ently from those who lack the resources to fund their own campaigns and that this difference creates adverse consequences dangerous to the perception of electoral fairness." Ibid.

6. While this case was pending before the three- judge district court, appellant lost the 2006 general elec tion. His opponent, Congressman Thomas Reynolds, did not receive any increased contributions or coordinated party expenditures pursuant to Section 319. See Rey nolds for Congress Disclosure Reports (visited Mar. 18, 2008) <http://images.nictusa.com/cgi-bin/fecimg/ ?C00336065> (reporting no increased contributions to Congressman Reynolds or coordinated party expendi tures on his behalf pursuant to Section 319 in the 2006 election cycle).

7. On April 19, 2006, approximately two months be fore appellant filed this suit, the FEC notified appellant that the Commission had found reason to believe that appellant had violated Section 319's disclosure require ments during his 2004 House campaign. See App., infra, 1a-3a. On January 19, 2007, while this case was pending in the district court, the FEC found probable cause to believe that such violations had occurred. See Appellant Br. App. 3a. The Commission proposed a conciliation agreement under which appellant would acknowledge the violations and would pay a civil penalty of $251,000. See id. at 8a. Shortly after the district court issued its decision in this case, appellant consented to toll the limi tations period for any enforcement action the FEC might file concerning the alleged 2004 violations, in re turn for the Commission's agreement to hold the matter in abeyance pending final resolution of this suit. See id. at 10a.4

SUMMARY OF ARGUMENT

Section 319 represents a modest and constitutionally appropriate attempt to counteract the perception that a candidate who is wealthy enough can buy a seat in Con gress. Section 319 serves to decrease the influence of personal wealth in congressional elections without in any way limiting the amount of personal funds that a candi date may spend in seeking office. Appellant has pro vided no basis for invalidating that law on its face. And his challenge fails for the even more basic reason that this Court lacks jurisdiction to entertain it.

I. This case is moot. Although appellant suffered ju dicially cognizable injury during the 2006 campaign as a result of Section 319's disclosure requirements, that injury ceased to be redressable once the election oc curred. Such a challenge would likely fall within the "capable of repetition, yet evading review" exception to mootness principles if the plaintiff were to express his intent to run for the House of Representatives again. But the appellant here notably has not stated such an intent. Instead, appellant contends that the potential for an FEC enforcement action concerning the 2004 campaign gives him a continuing stake in the resolution of the disputed constitutional issues.

That contention is flawed. Because appellant can raise his constitutional arguments as defenses to any enforcement action that the FEC may file, the pertinent issues will not "evad[e] review." Either the FEC will not pursue an enforcement action, in which case (given appellant's failure to profess an intent to run for office again) his challenge based on past elections will be moot; or the FEC will undertake such an action, in which case he can raise his constitutional objections in that context (so that those objections will not evade review).

In other words, the only proceeding appellant identi fies as giving him a continuing stake in the relevant con stitutional issues has a built-in opportunity for review of the statute's constitutionality as applied to appellant. That built-in opportunity means the dispute will not evade review, and any enforcement action the FEC may file will certainly provide a sufficient forum to test appel lant's constitutional claims. As-applied enforcement actions are, after all, "the basic building blocks of consti tutional adjudication." Gonzales v. Carhart, 127 S. Ct. 1610, 1639 (2007) (quoting Richard H. Fallon, Jr., As- Applied and Facial Challenges and Third-Party Stand ing, 113 Harv. L. Rev. 1321, 1328 (2000)). Accordingly, appellant cannot establish that he falls within an excep tion to mootness principles, and his suit should be dis missed for lack of jurisdiction.

II. A. Appellant's challenge to Section 319's in creased contribution limits (as opposed to Section 319's disclosure requirements) suffers from an additional ju risdictional defect-lack of standing. Because appel lant's opponent did not invoke those increased limits during the 2006 campaign, appellant suffered no injury from those increased limits. Even if appellant could demonstrate that the parties' dispute is "capable of rep etition, yet evading review," there would be no basis for concluding that appellant will suffer in some future elec tion an injury that he did not suffer in 2006. And be cause there is no prospect that appellant will be charged with having previously violated the expanded contribu tion limits (which applied to the opponent's fundraising rather than to appellant's own campaign), the possibility of an FEC enforcement action concerning appellant's own alleged violations of Section 319's disclosure provi sions does not give appellant any continuing stake in the question whether the increased contribution limits are constitutional.

B. Section 319's increased contribution limits are consistent with the First Amendment. Those limits in no way burden political speech because they place no restrictions whatever on a candidate's ability to spend personal funds in support of his own campaign. If (as this Court held in Buckley) Congress may condition a presidential candidate's own access to federal funds on his agreement to abide by statutory spending caps, then relaxation of the contribution limits that apply to a self- financing candidate's opponent does not unconstitution ally penalize the decision to self-finance. Although the Constitution limits the means that Congress may employ to equalize electoral opportunities for wealthy and non- wealthy candidates, nothing in this Court's decisions supports appellant's contention that reducing wealth- based disparities in opportunity is an invalid govern mental objective. In Section 319, Congress has sought to pursue that objective in a manner that furthers First Amendment values by increasing the volume of cam paign-related speech without placing any restrictions whatever on the use of a candidate's personal wealth in running for office.

Contrary to appellant's contention, Section 319 does not reflect an abandonment of the anti-corruption pur pose that contribution limits are generally intended to serve. Rather, they reflect Congress's effort to balance competing objectives in elections where a self-financing candidate's expenditures threaten to sever the usual link between a candidate's financial resources and the level of his actual public support. And, of course, the percep tions that House and Senate seats may be bought and are the exclusive province of the rich are corrosive per ceptions that Congress can seek to address. Nor is there any basis for appellant's repeated assertions that Sections 319 unconstitutionally favors incumbents over challengers. Section 319 by its terms draws no distinc tion between the two classes of candidates; appellant identifies no logical reason to suppose that challengers are more likely than incumbents to spend personal funds in excess of the $350,000 threshold; the available empiri cal evidence does not suggest that incumbents have ben efitted disproportionately from Section 319's increased contribution limits; and any such speculation provides no basis for facial invalidation of an Act of Congress.

C. Appellant's equal protection challenge to Section 319's increased contribution limits also lacks merit. This Court has previously held that Congress may distin guish among candidates for public financing purposes and may deny public funds to candidates who refuse to abide by statutory spending caps. Congress therefore acted permissibly in concluding that, for purposes of the statutory contribution limits, appellant's large expendi tures of personal funds rendered him differently situ ated from his opponent.

III. Section 319's disclosure requirements are also constitutional on their face. Although the declaration of intent required by Section 319 has no direct analog in pre-BCRA law, its preparation is in no way burdensome, and the declaration does not unconstitutionally interfere with a candidate's campaign strategy. Indeed, appellant himself touted his personal wealth and ability to self- finance his campaign when he announced his candidacy. The other information that Section 319 requires to be reported would have been subject to mandatory disclo sure under pre-BCRA law, and appellant identifies no basis for concluding that the somewhat different timing requirements imposed by Section 319 create a constitu tional violation. And because a self-financing candi date's opponent is subject to significant additional dis closure requirements as well, Section 319 does not single out the self-financing candidate for unique burdens. In Buckley and McConnell, this Court upheld analogous disclosure requirements, and there is no basis for a dif ferent result here.

ARGUMENT

I. THIS CASE IS MOOT

A. Appellant's complaint in this case was filed on June 28, 2006, and alleged that appellant had declared his candidacy for the 2006 House election approximately three months earlier. See J.A. 7, 19. The complaint fur ther alleged that appellant had been the Democratic candidate for the same House seat in 2004. J.A. 7. The complaint also alleged that, if appellant became the Democratic nominee, he intended to spend more than $350,000 of his own funds in the general election cam paign, thereby triggering the application of Section 319. See J.A. 7, 21.

The district court issued its opinion in this case on August 9, 2007. See J.S. App. 18a. The court noted that appellant had run for Congress in both 2004 and 2006. Id. at 5a. The court held that appellant had standing to sue because Section 319's disclosure requirements "im pose an injury-in-fact on self-financed candidates that can be traced directly to [Section 319] and that would be removed by a favorable decision from this court." Id. at 6a. The court did not explain, however, why appellant's suit remained justiciable even after the 2006 election had concluded.

B. "The Constitution's case-or-controversy limita tion on federal judicial authority, Art. III, § 2, underpins * * * [this Court's] mootness jurisprudence." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180 (2000). "Article III denies federal courts the power 'to decide questions that cannot affect the rights of litigants in the case before them.'" Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990) (quoting North Carolina v. Rice, 404 U.S. 244, 246 (1971)). "This case-or-controversy requirement subsists through all stages of federal judicial proceedings, trial and appellate." Ibid.

This Court has recognized an exception to moot ness principles for situations that are "capable of repeti tion, yet evading review." See, e.g., FEC v. Wisconsin Right to Life, Inc., 127 S. Ct. 2652, 2662 (2007) (WRTL); Southern Pac. Terminal Co. v. ICC, 219 U.S. 498, 515 (1911). "[T]he capable-of-repetition doctrine applies only in exceptional situations," City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983), "where the following two circumstances [are] simultaneously present: (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," Spen cer v. Kemna, 523 U.S. 1, 17 (1998) (internal quotation marks omitted) (quoting Lewis, 494 U.S. at 481). For an alleged wrong to be considered "capable of repetition," there must be a "reasonable expectation or a demon strated probability that the same controversy will recur involving the same complaining party." WRTL, 127 S. Ct. at 2663 (internal quotation marks omitted) (quot ing Murphy v. Hunt, 455 U.S. 478, 482 (1982) (per curiam)); accord, e.g., First Nat'l Bank v. Bellotti, 435 U.S. 765, 774 (1978).

C. Typically mootness problems are alleviated in the election context when the plaintiff alleges that he plans to participate in future campaigns and therefore will be subject to the same challenged laws. See WRTL, 127 S. Ct. at 2663 (holding that the plaintiff's challenge to BCRA's restrictions on the financing of certain broad cast advertisements was "capable of repetition" because the plaintiff had "credibly claimed that it planned on running materially similar" advertisements during fu ture election years) (internal quotation marks and cita tion omitted). Appellant, however, has conspicuously failed to assert in this Court that he intends to self-fi nance another campaign that would trigger Section 319. Rather, appellant rests his claim (Br. 20-21) of a contin uing controversy on two principal grounds: (1) the FEC's pending enforcement action stemming from the 2004 election (see pp. 13-14, supra) gives him a continu ing "'personal stake' in the constitutionality of Section 319," and (2) the limited pre-election time period is in sufficient for definitive resolution of the questions pre sented here.5 Those arguments lack merit. In the ab- sence of any basis for concluding that appellant himself is likely to self-finance a future House campaign, this case is moot and therefore non-justiciable.

1. The FEC's finding of probable cause to believe that appellant violated Section 319 during the 2004 cam paign (see Appellant Br. App. 3a-4a), with the conse quent prospect that the Commission will pursue an en forcement action pursuant to 2 U.S.C. 437g(a)(6) (2000 & Supp. V 2005) if appellant declines to enter into the proposed conciliation agreement (see Appellant Br. App. 5a-9a), provides no sound basis for this Court to decide the instant appeal on the merits. For purposes of the "capable of repetition, yet evading review" exception to mootness principles, it is doubtful that potential future litigation concerning primary conduct that occurred be fore this suit was filed would constitute a "repetition" of the current dispute. But in any event, it is altogether clear that appellant's constitutional claims will not "ev ad[e] review" in any enforcement action. If the FEC does file suit alleging that appellant violated Section 319 during the 2004 campaign, appellant can raise his consti tutional arguments as defenses in the enforcement pro ceeding. Compare Lyons, 461 U.S. at 109 (explaining that dismissal of the plaintiff's suit for injunctive relief would not cause the underlying constitutional challenge to "'evade' review" because that challenge "remain[ed] to be litigated in [the plaintiff's] suit for damages"). In such an enforcement action, moreover, the "limited pe riod between elections" (Appellant Br. 20) would pose no potential obstacle to judicial resolution of the pertinent constitutional questions.

In short, the prospect of such an enforcement action cannot provide a sufficient stake to bring this case with in the "capable of repetition, yet evading review" excep tion to mootness principles because the enforcement action has a built-in mechanism to ensure that review is provided, not evaded. And such as-applied challenges are the preferred method of constitutional adjudication. See Carhart, 127 S. Ct. at 1639.

2. In arguing that the FEC's probable-cause deter mination gives him a continuing stake in the question whether Section 319 is constitutional, appellant seeks in essence to use the judicial-review provisions of BCRA § 403(a), 116 Stat. 113, as a mechanism for pretermitting a possible Commission enforcement action. BCRA's provisions for expedited review allowed this Court to re solve a variety of constitutional challenges to the statute well in advance of the 2004 election. See McConnell, supra. On a going-forward basis, those provisions will enable future participants in the federal electoral pro cess to determine whether conduct in which they pro pose to engage is constitutionally protected. But when, as here, a plaintiff does not assert an intent to engage in future activities regulated by BCRA, there is no reason and no need to use BCRA's extraordinary judicial- review procedures-and this Court's scarce resources -as an alternative means of resolving the legality of prior conduct with respect to a candidate who has not stated an intent to run again.

Appellant's effort to derail the FEC's possible en forcement action is also in tension with established prin ciples governing judicial review of Executive Branch action. In FTC v. Standard Oil Co., 449 U.S. 232 (1980), this Court held that the issuance by the Federal Trade Commission (FTC) of an administrative complaint al leging reason to believe that a private party (Socal) had violated the law was not "final agency action" sub ject to review under the Administrative Procedure Act, 5 U.S.C. 704. See Standard Oil Co., 449 U.S. at 239-246. The Court explained that the FTC's issuance of the com plaint had no "legal or practical effect, except to impose upon Socal the burden of responding to the charges made against it." Id. at 242. The Court further ob served that "every respondent to a[n] [FTC] complaint could make the same claim that Socal had made," and that "[j]udicial review of the averments in the [FTC's] complaints should not be a means of turning prosecutor into defendant before adjudication concludes." Id. at 242-243; cf. Younger v. Harris, 401 U.S. 37, 43-54 (1971) (holding that federal courts should ordinarily decline to entertain suits to enjoin pending state enforcement ac tions); id. at 54 (explaining that "the possible unconstitu tionality of a statute 'on its face' does not in itself justify an injunction against good-faith attempts to enforce it").

It is also significant that, while the FEC has found probable cause to believe that appellant violated Section 319 during the 2004 campaign, appellant's brief does not concede that such a violation occurred. Thus, appellant seeks an immediate ruling as to the validity of his consti tutional defenses to any enforcement action, while re serving the option of later contending (if this Court re jects his constitutional arguments) that he complied with Section 319 in 2004. That approach contravenes the bed rock principle that a federal court should not resolve constitutional questions unless and until its disposition of pertinent non-constitutional issues compels it to do so. See, e.g., Ashwander v. TVA, 297 U.S. 288, 346-347 (1936) (Brandeis, J., concurring).

If appellant had not been a candidate in the 2006 el ection, but had instead premised his claim of standing on the possibility of an FEC enforcement action concerning his conduct in 2004, the instant suit would have been subject to dismissal ab initio under the principles set forth above. Although the application of Section 319's disclosure requirements to appellant's 2006 campaign subjected him to judicially cognizable injury, the injunc tive and declaratory relief that appellant seeks can do nothing to prevent or redress that harm now that the 2006 election has occurred. Because continued adjudica tion of appellant's constitutional challenge is not sup ported either by the injury that the district court identi fied, or by the potential harm on which appellant now relies, the appeal should be dismissed as moot.6

II. APPELLANT LACKS STANDING TO CHALLENGE THE INCREASED CONTRIBUTION LIMITS ESTABLISHED BY SECTION 319, AND THOSE LIMITS ARE IN ANY EVENT CONSTITUTIONAL ON THEIR FACE

A. Appellant Cannot Establish Any Actual Or Imminent Injury Resulting From The Increased Contribution Limits

1. In order to satisfy the "irreducible constitutional minimum" of Article III standing, appellant must estab lish (1) an injury-in-fact that is "concrete and particular ized," not "conjectural" or "hypothetical"; (2) a causal connection between the injury and the challenged con duct of the defendant; and (3) a likelihood that the injury will be redressed by a favorable decision of the court. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992) (quoting Whitmore v. Arkansas, 495 U.S. 149, 155 (1992)). Insofar as appellant challenges Section 319's modifications of the generally applicable limits on con tributions and party coordinated expenditures, he can not satisfy Article III's "injury in fact" requirement. Appellant has not shown that Section 319 caused him any "concrete and particularized" injury in the past, or that any such injury is imminent.

During the 2006 election campaign, appellant's oppo nent received no contributions, and the opponent's polit ical party made no coordinated expenditures, in excess of the generally applicable FECA limits. See p. 13, su pra. The possibility that his opponent would invoke the modified limits established by Section 319 did not deter appellant from loaning his campaign approximately $2.25 million in 2006. See note 3, supra; J.S. App. 14a ("We struggle to see how [appellant] can credibly argue that his speech has been 'chilled' in light of the fact that he has chosen to pay for his campaign and has spent, after all, a considerable amount of his own money in ex cess of the $350,000 cap."). Although the 2006 election campaign had not ended at the time of the summary judgment briefing in the lower court, it is now clear that appellant, in fact, suffered no injury from Section 319's modification of some of the statutory limits on financial support for candidates.

Even if appellant could demonstrate that the "capa ble of repetition, yet evading review" exception to mootness principles applies to this case, appellant could not pursue his constitutional challenge to the aspects of Section 319 that caused him no injury during the 2006 campaign. A showing that the parties' dispute is "capa ble of repetition" would provide no basis for concluding that appellant will be injured by Section 319's increased contribution limits in future election cycles in light of the fact that appellant was not injured by those provi sions in the most recent campaign. Appellant's First Amendment and equal protection challenges to Section 319's modified contribution and coordinated-expenditure limits would therefore be non-justiciable even if appel lant could establish a live controversy concerning the aspects of Section 319 (i.e., the disclosure requirements imposed by that provision) that previously subjected him to judicially cognizable injury.

2. Appellant contends (Br. 18) that "[t]he injuries imposed by Section 319's disclosure regime are suffi cient to confer standing on [appellant] to challenge the statute in its entirety." Standing, however, "is not dis pensed in gross," and proof of injury from one aspect of a statutory scheme does not establish standing to chal lenge provisions that have not caused the plaintiff harm. Lewis v. Casey, 518 U.S. 343, 358-359 n.6 (1996); see DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006) ("[W]e have insisted * * * that a plaintiff must demon strate standing separately for each form of relief sought.") (internal quotation marks and citation omit ted); Blum v. Yaretsky, 457 U.S. 991, 999 (1982) (ex plaining that "a plaintiff who has been subject to injuri ous conduct of one kind" does not "possess by virtue of that injury the necessary stake in litigating conduct of another kind, though similar, to which he has not been subject"). Although the FEC has found probable cause to believe that appellant previously violated Section 319's disclosure requirements, appellant has not been accused-and, in the nature of things, could not plausi bly be accused-of violating Section 319's increased con tribution limits, which applied to his opponent. Thus, although appellant has standing to challenge Section 319's disclosure requirements (assuming the contro versy is otherwise justiciable), he lacks standing to chal lenge the contribution and coordinated-expenditure pro visions.

3. In a related vein, appellant contends (Br. 18-19) that he has standing to challenge Section 319's expanded contribution limits, notwithstanding his opponent's fail ure to invoke those limits in the 2006 campaign, because those limits cannot be severed from Section 319's disclo sure requirements. That contention ignores BCRA's express severability provision, which states that, if any BCRA provision or any application of a BCRA provision "is held to be unconstitutional, the remainder of this Act * * * and the application of the provisions * * * to any person or circumstance, shall not be affected by the holding." BCRA § 401, 116 Stat. 112. But, more funda mentally, appellant's severability argument gets things backwards. Even if appellant's severability analysis were correct, that would simply mean that a successful challenge to Section 319's disclosure requirements would have the ultimate practical effect of invalidating the enhanced contribution limits as well. It would not follow that appellant has standing to challenge the con tribution limits.

Moreover, this Court has not viewed disclosure re quirements and substantive financing limits as standing or falling together. Even if Section 319's enhanced con tribution limits for the opponents of self-financing candi dates were held to be invalid, the disclosure require ments applicable to the self-financing candidates them selves would serve a valid informational purpose and would remain in effect pursuant to BCRA's severability provision. The validity of the disclosure requirements thus is not dependent on the validity of the enhanced contribution limits.

B. Section 319's Enhanced Contribution Limits Are Consis tent With The First Amendment

Section 319's modified limits on financial support for the opponents of self-financing candidates do not violate the First Amendment and certainly do not do so on their face.

1. Appellant repeatedly describes Section 319 as "regulat[ing]" (Br. 21, 34, 44, 46), "burden[ing]" (Br. 29, 40, 47), or "punish[ing]" (Br. 34) a self-financing candi date's campaign-related speech. As the district court recognized, however, Section 319 "places no restrictions on a candidate's ability to spend unlimited amounts of his personal wealth to communicate his message to vot ers, nor does it reduce the amount of money he is able to raise from contributors." J.S. App. 9a. In particular, Section 319's expanded contribution limits are by their terms directed at the opponent's fundraising and in no way alter the range of legally permissible options that are available to the self-financing candidate himself.

In short, as the district court explained, Section 319 "does not limit in any way the use of a candidate's per sonal wealth in his run for office." J.S. App. 9a. Thus, contrary to appellant's suggestion, Section 319 does not reflect a congressional effort to "restrict the speech of some elements of our society in order to enhance the relative voice of others." Br. 42 (quoting Buckley, 424 U.S. at 48-49). Rather, Congress sought to "enhance the relative voice" of non-wealthy candidates without "res trict[ing] the [self-financing candidate's] speech." And the First Amendment poses no bar to Congress's efforts to increase political speech. Section 319 does impose some consequences on a candidate's choice to self-fi nance beyond certain amounts. But this Court has al ready upheld the constitutionality of statutes imposing similar consequences on a candidate's spending choices.

2. The principal thrust of appellant's First Amend ment argument (see, e.g., Br. 40) is that (i) because ap pellant has a constitutional right to make unlimited ex penditures in support of his own campaign, he cannot be penalized for exercising that right; and (ii) because an election can have only one winner, any benefit provided to his opponent should be regarded for constitutional purposes as a penalty imposed on appellant. That line of reasoning, however, is flatly contradicted by Buckley. Appellant has not challenged the validity of Buckley, and that decision is therefore entitled to full stare de cisis effect. See Randall v. Sorrell, 126 S. Ct. 2479, 2500-2501 (2006) (Alito, J., concurring in part and con curring in the judgment).

The Court held in Buckley that, although the First Amendment precludes Congress from placing binding limits on a candidate's independent campaign expendi tures, Congress "may condition acceptance of public funds on an agreement by the candidate to abide by specified expenditure limitations." 424 U.S. at 57 n.65. Thus, Buckley establishes that a candidate's insistence on spending personal funds in amounts exceeding the statutory threshold may legitimately be treated by Con gress as a ground for withholding a federal subsidy to which the candidate would otherwise be entitled. More over, the Court in Buckley recognized that a candidate's First Amendment right to make unlimited campaign expenditures is not violated simply because the candi date is subjected to some practical disadvantage as a re sult of exercising that right.7

This case follows a fortiori from Buckley because the disadvantage to which self-financing presidential candi dates are subjected-i.e., the denial of federal funds that would otherwise be paid to the candidate himself-is much more direct and immediate than the competitive injury that appellant claims he would suffer if an oppo nent were enabled to raise greater amounts of money. If, as Buckley holds, Congress may treat a self-financing presidential candidate's spending decisions as a ground for declining to provide federal money to the candidate himself, there is no basis (especially in the context of a facial challenge such as this) for treating the modifica tion of limits on an opponent's fundraising as a constitu tional violation.

Appellant seeks to distinguish Buckley on the ground that, unlike a presidential candidate who receives public funds in exchange for his agreement to comply with stat utory spending limits, appellant would have "receive[d] no countervailing benefits" if he had decided to forgo self-financing. Br. 55. Buckley makes clear, however, that appellant cannot establish a First Amendment vio lation simply by showing (Br. 41) that Section 319 differ entiates between House candidates who spend $350,000 or more on their own campaigns and House candidates who do not. More fundamentally, however, appellant cannot have it both ways. If he claims constitutional in jury from his opponent's increased funding options, he cannot turn around and deny that he derives a benefit from keeping the baseline limits in place.

The fundamental premise of appellant's First Am endment challenge is that, in a zero-sum game like a candidate election, any benefit to one candidate is for constitutional purposes a burden on the other. Appel lant argues on that basis that he was penalized for con stitutionally protected conduct when the fundraising restrictions on his opponent were loosened as a result of his own campaign spending. That analysis logically suggests, however, that appellant would derive a bene fit if the limits on contributions to his opponent were made more restrictive. By agreeing to spend less than $350,000, appellant could have prevented Section 319's expanded contribution limits from taking effect, thereby reducing the pool of funds to which his opponent would have access. It is therefore incorrect to say that the candidate who forgoes self-financing derives no counter vailing benefit.

Appellant contends (Br. 55) that, "[i]n the context of the campaign finance system, imposition of the standard contribution limits on one's opponents-limits that are uniformly applied to all other candidates-confers no benefit; it simply preserves the status quo." But as the volume of stay requests this Court receives attests, in many cases a party may derive substantial benefits from simply preserving the status quo. Congress has no con stitutional obligation, moreover, to limit private contri butions to federal candidates at all. From a constitu tional standpoint, application of the "standard contribu tion limits" to appellant's opponent is just as gratuitous as the federal subsidy involved in Buckley.8 In deter mining whether appellant could have derived a benefit by agreeing to spend less of his own money on his cam paign, the relevant question is not whether his opponent would then have been subject to contribution limits lower than those that applied to other House campaigns, but whether the limits would have been lower than those that otherwise would have applied in appellant's own race.9

3. As the district court recognized, Congress en acted Section 319 to reduce the natural advantage that wealthy individuals possess in campaigns for federal office. J.S. App. 2a-3a n.2; see pp. 6-7, supra. The Court in Buckley explained that, under the FECA contribution limits, "the financial resources available to a candidate's campaign, like the number of volunteers recruited, will normally vary with the size and intensity of the candi date's support." 424 U.S. at 56. The Court viewed that correlation as a healthy byproduct of the contribution limits it upheld.

The Court in Buckley also noted, however, that in light of the Court's invalidation of expenditure limits, the "normal relationship" between a candidate's finan cial resources and the level of popular support for his candidacy "may not apply where the candidate devotes a large amount of his personal resources to his cam paign." 424 U.S. at 56 n.63. In enacting Section 319, Congress sought partially to restore that "normal rela tionship." Section 319 also serves to counteract the pub lic perception that wealthy people can buy seats in Con gress, which can certainly have a corrosive effect by con tributing to cynicism in the electorate. In addition, Sec tion 319 increases the incentives for less wealthy candi dates to run for office, and it encourages political parties to recruit candidates based on merit, rather than per sonal financial wherewithal. See pp. 6-7, supra.

Although appellant repeatedly contends (e.g., Br. 25, 28) that attempting to level electoral opportunities for candidates of different personal wealth is an illegitimate governmental objective, this Court's decisions do not support that assertion. To be sure, the Constitution lim its the means that Congress may employ to achieve that goal. Thus, the Court in Buckley held that the "interest in equalizing the relative financial resources of candi dates competing for elective office" was a constitution ally insufficient justification for restrictions on a candi date's own campaign spending. 424 U.S. at 54. That holding, however, was based not on doubt as to the legit imacy of the relevant government interest, but on the conclusion that "the First Amendment simply cannot tolerate [the spending cap's] restriction upon the free dom of a candidate to speak without legislative limit on behalf of his own candidacy." Ibid. Section 319, by con trast, reflects Congress's effort to achieve the same ob jective without limiting the self-financing candidate's freedom of expression, in a manner calculated to in crease the volume of campaign-related speech. Indeed, not only are Congress's goals unproblematic, but the means it chose to pursue those objectives actually relax contribution and coordinated-expenditure limits that themselves trigger First Amendment scrutiny.10

In a related vein, appellant contends (Br. 28, 31) that the Court's decisions identify the prevention of actual or apparent corruption as the only government interest that can support campaign-finance regulation. That argument is incorrect. It is true that, in sustaining stat utory contribution limits against contentions that those limits infringed the First Amendment rights of either the potential recipient or the would-be donor, the Court has relied exclusively on that anti-corruption rationale. See, e.g., Nixon v. Shrink Mo. Gov't PAC, 528 U.S. 377, 388-389 (2000) (Shrink Mo.); Buckley, 424 U.S. at 26-27. But even in that context, the Court has not identified the rooting out of quid pro quo corruption as the only rele vant interest, but has also allowed regulation of corpo rate electoral spending to ensure that the extent of such spending correlates with actual public support for the recipient or beneficiary. See, e.g., FEC v. Beaumont, 539 U.S. 146, 154, 162-163 (2003) (requirement that cor porate contributions to federal candidates be made from a separate segregated fund ensures that such contribu tions reflect the will of the persons from whom the cor poration has obtained the money); Austin v. Michigan State Chamber of Commerce, 494 U.S. 652, 659-660 (1990) (requirement that corporate express advocacy of electoral results be financed from a separate fund val idly addresses "the corrosive and distorting effects of immense aggregations of wealth that * * * have little or no correlation to the public's support for the corpora tion's political ideas"). Any public perception that House seats are available only to the wealthy would raise analogous concerns.

Moreover, in upholding BCRA's disclosure require ments, the Court relied not only on the government's interest in "deterring actual corruption and avoiding any appearance thereof," but also on the separate interests in "providing the electorate with information" and "gathering the data necessary to enforce more substan tive electioneering restrictions." McConnell, 540 U.S. at 196; see id. 321 (Kennedy, J., concurring in the judg ment in part and dissenting in part) (finding BCRA's disclosure requirements generally constitutional based on the informational interest identified in the Court's opinion). The Court's decisions thus do not announce a per se rule that the prevention of actual or apparent corruption is the only government interest that can jus tify campaign-finance legislation. Rather, those deci sions indicate that the range of interests that may sup port such legislation will vary depending on the nature of the particular law involved and the severity of its im pact on a candidate's ability to conduct his campaign. Because Section 319's enhanced contribution limits im pose no restrictions on a self-financing candidate's own electoral activities, they may be upheld based on govern ment interests that would be insufficient to support more intrusive regulation.11

The core rationale for Section 319-i.e., the public in terest in diminishing the importance of personal wealth as a criterion for election to federal office (and the re lated interest in diminishing the perception that wealth has become an essential prerequisite for federal elective office)-was not specifically identified in Buckley and is not identical to the interests that public financing of presidential campaigns is intended to serve. Appellant makes no meaningful effort, however, to explain why the reduction of wealth-based disparities in electoral oppor tunity should be regarded as an illegitimate government objective. Congress has permissibly sought to reduce such disparities in a variety of contexts. See, e.g., Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 536 (2001) (ac cess to legal services); Schweiker v. Hogan, 457 U.S. 569, 571-572, 590 (1982) (access to medical services). Al though the Constitution of course imposes important limits on the means by which Congress may address such disparities (e.g., Congress may not take private property without compensation in order to transfer it to a less wealthy individual), appellant identifies no other sphere of endeavor in which the reduction of wealth- based disparities in opportunity has been treated as an illegitimate governmental goal. There is no reason why Congress is prohibited from seeking to level the playing field when it comes to the pursuit of federal elective of fice, particularly when, as here, it places no restrictions on a candidate's ability to use his own personal wealth in seeking office.

Appellant also argues (Br. 48-49, 50) that Section 319 fails to achieve its equalization objective because it ig nores (or discounts the significance of) other sources of funding, such as incumbents' "war chests." Unlike a self-financing candidate's personal fortune, however, money raised (even in large aggregate amounts) through contributions subject to the BCRA limits "will normally vary with the size and intensity of the candidate's sup port." Buckley, 424 U.S. at 56. In enacting Section 319, Congress could therefore legitimately regard financial disparities produced by one candidate's great personal wealth as more problematic than similar disparities cre ated by another candidate's superior fundraising prow ess. Cf. Austin, 494 U.S. at 659-660 (noting that corpo rate express advocacy is potentially problematic for non- MCFL corporations because corporate wealth bears no relationship to public support for a candidate). And, in all events, Congress specifically adopted a "gross re ceipts advantage" approach (see p. 8 & note 2, supra) to reduce any benefit to incumbents and other candidates who may be able to raise sizable amounts in the year prior to the election.12

4. Appellant contends (Br. 28-29) that, because Sec tion 319 permits opponents of self-financing candidates to accept contributions in excess of the generally appli cable FECA limit, it is inconsistent with the anti-corrup tion rationale on which those limits have been sustained. That claim lacks merit.

In setting and later adjusting the FECA limit on in dividual contributions, Congress has sought to prevent the actual or apparent corruption that large contribu tions might engender, while ensuring that candidates can obtain the resources needed to run effective cam paigns. As this Court has recognized, the task of identi fying the specific dollar limit that strikes the most ap propriate balance between those objectives is largely entrusted to Congress. See Buckley, 424 U.S. at 30 (ex plaining that, "[i]f it is satisfied that some limit on con tributions is necessary, a court has no scalpel to probe, whether, say, a $2,000 ceiling might not serve as well as $1,000") (citation omitted); accord Shrink Mo., 528 U.S. at 397.13

The modified contribution and coordinated-expendi ture limits contained in Section 319 do not reflect con gressional abandonment of FECA's anti-corruption pur pose. Rather, they reflect Congress's determination that the balance should be adjusted in a subset of elec tions to address an additional legitimate interest that is distinctly raised in that subset. Congress's decision is analogous to a State's decision to set different contribu tion limits for different races based on a variety of fac tors such as the costs of different elections and the num bers of voters that need to be reached. This Court might have concluded that the highest contribution limit for any race must apply to every race, on the theory that the State had apparently concluded that the highest limit was consistent with preventing quid pro quo cor ruption. Instead, the Court upheld a variable-limit re gime in Shrink Missouri, and struck down such a sys tem in Randall because the applicable limits were too low in absolute terms, not just in relation to other state limits. There is no reason that Congress cannot make an analogous judgment that certain kinds of House races require higher contribution limits.

Specifically, Congress determined that, for elections in which a self-financing candidate's expenditures threa ten to sever the usual link between a candidate's finan cial resources and the level of his actual public support, the fundraising limits applicable to opposing candidates should be recalibrated to account for the fact that one candidate's spending is enhanced based on factors not tied to any indication of popular support. See 148 Cong. Rec. at 3603 (statement of Sen. McCain) ("Congress has concluded that the contribution limits-despite their fundamental importance in fighting actual and apparent corruption-should be relaxed to mitigate the counter vailing risk that they will unfairly favor those who are willing, and able, to spend a small fortune of their own money to win election."). That is a permissible deter mination.14

Nothing in this Court's decisions suggests that Con gress is foreclosed from recalibrating the statutory lim its for particular elections in which one candidate's large expenditures of personal wealth implicate a government interest distinct from those that inform the generally applicable caps. Cf. Buckley, 424 U.S. at 36 (explaining that FECA "provisions [excepting some volunteers' ex penses from contribution limits] are a constitutionally acceptable accommodation of Congress' valid interest in encouraging citizen participation in political campaigns while continuing to guard against the corrupting poten tial of large financial contributions to candidates"). Such accommodation of competing interests is the norm rather than the exception in legislation, and "[c]ourts * * * must respect and give effect to these sorts of com promises." Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 94 (2002). As this Court has explained, no legislation pursues its purposes at all costs. De ciding what competing values will or will not be sac rificed to the achievement of a particular objective is the very essence of legislative choice-and it frus trates rather than effectuates legislative intent sim plistically to assume that whatever furthers the stat ute's primary objective must be the law.

Rodriguez v. United States, 480 U.S. 522, 525-526 (1987) (per curiam).

5. Appellant's repeated assertions (Br. 22, 32, 34) that Section 319 favors incumbents over challengers is unsupported by the statutory text or by record evidence. Section 319 draws no express distinction between incum bents and challengers; its application turns solely on whether a particular candidate has made campaign- related expenditures of personal funds in an amount exceeding the statutory threshold. And the prospect of self-financing was not a mere hypothetical possibility; many incumbents had engaged in self-financing in the past and would likely do so in the future.

The record evidence concerning Section 319's actual implementation also does not support appellant's char acterization of Section 319 as an incumbent-protective measure. During the first four years after Sections 304 and 319 were adopted, 110 House and Senate candidates became eligible to receive enhanced contributions under the modified limits, but only six were incumbents. See J.A. 86, 88. The other 104 "beneficiaries" were not in cumbents. If Section 319 were designed as appellant suggests, it has proved remarkably ineffective. Espe cially in the context of a facial challenge such as this, appellant's speculation about the impact of Section 319 on incumbents versus challengers provides no basis for invalidating Section 319.

Appellant's reliance (Br. 33) on the plurality opinion in Randall, 126 S. Ct. at 2495-2496, is therefore mis placed. In Randall, the plurality's conclusion that the contested contribution limits would often impair a chal lenger's ability to mount an effective campaign was based in part on extensive record evidence. See ibid. Because appellant has identified no comparable eviden tiary basis for concluding that Section 319 is skewed in favor of incumbents, his challenge should be rejected. See Buckley, 424 U.S. at 31 ("Absent record evidence of invidious discrimination against challengers as a class, a court should generally be hesitant to invalidate legisla tion which on its face imposes evenhanded restric tions.").

C. Appellant's Equal Protection Challenge To Section 319's Expanded Contribution Limits Lacks Merit

Appellant contends (Br. 56) that "Section 319 violates the equal protection component of the due process clause of the Fifth Amendment because it subjects op posing candidates in the same election to different fund raising * * * obligations." Appellant's claim to a con stitutional entitlement to a perfectly level playing field is both ironic in light of the thrust of his other argu ments and unavailing in any event. The district court correctly recognized that a showing of differential treat ment cannot by itself establish a constitutional violation. Rather, "[t]he touchstone of an Equal Protection argu ment is that the challenged statute is flawed because it treats similarly situated entities differently." J.S. App. 17a (emphasis added). As the district court explained, "[appellant] cannot make this showing because the rea sonable premise of [Section 319] is that" candidates who spend more than $350,000 of their own money on a House campaign are "situated differently from those who lack the resources to fund their own campaigns." Ibid.

The Court in Buckley held that "the Constitution does not require Congress to treat all declared candi dates the same for public financing purposes." 424 U.S. at 97. The Court rejected equal protection challenges to the FECA criteria used to determine whether and to what extent presidential candidates would receive public funding. Id. at 97-108. And, as explained above, the Court held that public funds could be denied to any can didate who refused to abide by statutory spending lim its. That holding establishes that, while Congress may not require compliance with statutory spending caps, it may permissibly treat candidates who adhere to such limits as differently situated from those who decline to do so, even when both candidates seek the same elec toral office. Appellant is therefore wrong in arguing (Br. 57) that, for equal protection purposes, "[a] self- financed candidate and her opponents are fundamentally similar because they are all competing for the same House seat." There is no reason to regard Section 319's differentials in the amounts of money that candidates may receive from private contributions as more suspect than analogous differentials in the distribution of federal funds.

Appellant further contends that Section 319 violates equal protection principles because (a) the equalization of electoral opportunities for wealthy and non-wealthy candidates is not a legitimate government interest (Br. 57), and (b) the statute treats accumulated personal wealth differently from funds raised from private donors under BCRA's contribution limits (Br. 58). Framed as First Amendment arguments, those contentions lack merit for the reasons stated at pp. 34-38 and 38-39, su pra. They are no more persuasive when repackaged as equal protection theories.

III. SECTION 319's DISCLOSURE REQUIREMENTS ARE CONSTITUTIONAL ON THEIR FACE

Section 319 creates three new reporting require ments for self-financing candidates: a declaration of intent to self-finance, an initial notification that the can didate has spent more than $350,000 of personal funds, and additional notifications within 24 hours of each $10,000 in aggregate expenditures of personal funds. 2 U.S.C. 441a-1(b) (Supp. V 2005). Except for the decla ration of intent, similar information is ultimately dis closed under FECA provisions that long predate Section 319, and the constitutionality of those statutory prede cessors was upheld by this Court in Buckley. See 424 U.S. at 66-68, 80-82; p. 5, supra. As the district court correctly held (J.S. App. 6a-7a), appellant established a judicially cognizable injury resulting from Section 319's disclosure requirements. Because appellant loaned his campaign more than $350,000, he was subject to those requirements even though his opponent did not ulti mately invoke Section 319's modified contribution and coordinated-expenditure limits. And while Section 319's disclosure obligations do not differ substantially from the pre-existing FECA requirements, the differences are sufficient to constitute an Article III "injury in fact."

On the merits, however, appellant has identified no colorable basis for holding that the challenged disclo sure requirements are unconstitutional on their face. Because the disclosure requirements at issue here per tain solely to a self-financing candidate's own campaign spending, they do not implicate the privacy interests of donors or other supporters. Appellant does not chal lenge the generally applicable FECA disclosure require ments, and he makes no meaningful effort to explain why the insubstantial differences between those require ments-which this Court has upheld-and Section 319's disclosure provisions should be accorded any constitu tional significance.

A. The provisions at issue in Buckley required dis closure by candidate committees and other political com mittees of the contributions of any person who had given in excess of $100 in a calendar year, as well as disclo sures by any person making an independent expenditure of over $100. See 424 U.S. at 63, 74-75. Because com pelled disclosure of contributors' names "can seriously infringe on privacy of association and belief guaranteed by the First Amendment," the Court reviewed the provi sions to determine whether there was a "relevant corre lation or substantial relation between the government interest and the information required to be disclosed." Id. at 64 (internal quotation marks omitted) (quoting Bates v. City of Little Rock, 361 U.S. 516, 525 (1960), and Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 546 (1963)). The Court found that the dis closures required by FECA bore a "substantial relation" to the important governmental interests of (a) encourag ing maximum transparency in political activity by pro viding financial information to the public, (b) facilitating enforcement of substantive funding regulations, and (c) deterring actual or apparent corruption. Id. at 66-68, 80-82; see p. 5, supra. The disclosure of independent expenditures, the Court noted, was "a reasonable and minimally restrictive method of furthering First Amend ment values by opening up the basic processes of our federal election system to public view." Buckley, 424 U.S. at 82.

The disclosure requirements at issue here are signifi cantly less intrusive than the requirements this Court has previously upheld. Disclosure of a self-financing can didate's spending does not reveal the names of support ers and therefore does not implicate the privacy inter ests of persons other than the candidate himself. Like the disclosure provisions upheld in Buckley, moreover, Section 319's disclosure requirements serve important government interests. Knowing that a candidate is fun ding his campaign from accumulated wealth, rather than from a broad base of supporters, "provides the elector ate with information 'as to where political campaign money comes from * * * ' in order to aid the voters in evaluating those who seek federal office." Buckley, 424 U.S. at 66-67 (footnote and citation omitted).15 Disclo sure regarding personal spending also deters corruption and its appearance, and enables the gathering of data necessary to detect violations of the contribution limits, because of the possibility that money received from pri vate donors may be misrepresented to be part of the can didate's personal wealth. In addition, as appellant con cedes (Br. 19), timely reporting of a self-financing candi date's expenditures of personal funds furthers the oper ation of Section 319's funding provisions.

B. Since Buckley, FECA has subjected all federal candidates to disclosure requirements similar to those imposed by Section 319. See pp. 5-6, supra. A candi date's name, the office sought, the date and amount of each expenditure of personal funds, and the total am ount of personal funds spent to date in a particular elec tion cycle all must be publicly disclosed either in a candi date's Statement of Candidacy, 2 U.S.C. 432(e)(1); 11 C.F.R. 101.1, or on the periodic reports each candidate's committee must file, 2 U.S.C. 434(b); 11 C.F.R. 104.3. Thus, appellant would ultimately have been required to disclose all of the information that Section 319 requires to be contained in the initial and additional reports of personal funds spending. Section 319's disclosure re quirements go beyond those imposed by pre-existing provisions of law only in that (1) Section 319 requires each candidate to file a declaration of intent regarding projected expenditures of personal funds, and (2) Sec tion 319 requires self-financing candidates to disclose certain information at an earlier date than would have been required under pre-existing FECA provisions. Neither of those requirements imposes a burden of con stitutional dimension.

1. Although Section 319's "declaration of intent" re quirement has no close analog in pre-BCRA law, that requirement places no significant burden on self-financ ing candidates. Under Section 319, each candidate for federal office must provide, within 15 days after becom ing a candidate, an estimate of the amount (if any) by which his campaign-related expenditures of personal funds will exceed $350,000. See 2 U.S.C. 441a-1(b)(1)(B) (Supp. V 2005); J.A. 102-103. As its name implies, the declaration is a statement of current intent, not a bind ing decision as to the amount of personal funds that the candidate will spend. The filing of a declaration of in tent does not preclude the candidate from ultimately spending more (or less) than the projected amount of personal funds if circumstances change, and the Com mission has never commenced an enforcement action premised on the alleged falsity of the declaration.

The requirement that a declaration of intent be filed does not violate the First Amendment rights of any can didate. Appellant's contention (Br. 38) that the declara tion of intent "details a candidate's most sensitive, confi dential information" is untenable. Far from describing the nuances of a candidate's "strategy" (ibid.), the decla ration of intent simply provides an estimate of the amount of personal funds in excess of $350,000 that a House candidate will spend on his campaign. For appel lant's own 2006 campaign, for example, the declaration of intent revealed only the information "$0.00" for the primary election and "$1,000,000" for the general elec tion. J.A. 103. Moreover, the basic information that is the subject of the declaration of intent (the amount of personal funds spent on a campaign) must ultimately be disclosed in any event.

Appellant's constitutional challenge to Section 319's "declaration of intent" requirement is further under mined by the fact that appellant actively publicized the same information that he now characterizes as sensitive strategic data. On March 29, 2006, six days after filing his initial statement of candidacy with the FEC, see J.S. App. 5a, appellant issued a press release announcing his candidacy. See Jack Davis 2006 Candidacy Announce ment (Mar. 29, 2006) <http://jackdavis.org/new/press/ 2006.asp>. That press release stated that appellant "self funded his campaign with over 1 million dollars in [2004] and will do that again." Ibid. Appellant himself contends (Br. 46), moreover, that a self-financing candi date's "personal spending not only conveys his general electoral message, it is often an integral element of that message." It is therefore especially unlikely that the declaration of intent required by Section 319 will result in the disclosure of information that the self-financing candidate regards as sensitive or confidential. Certainly there is no basis to assume, for purposes of a facial chal lenge such as this, that the declaration will typically re sult in disclosure of sensitive or confidential informa tion.16

2. Section 319 further provides that a self-financing candidate must file (a) an initial notification within 24 hours after making or obligating aggregate campaign- related expenditures from personal funds of more than $350,000 and (b) an additional notification whenever the candidate spends a further increment of more than $10,000 of personal funds on his campaign. See 2 U.S.C. 441a-1(b)(1)(C)-(D) (Supp. V 2005). Those provisions en sure, inter alia, that opposing candidates are promptly apprised of information bearing on their entitlement to invoke Section 319's expanded contribution limits. Be cause every federal candidate must ultimately disclose the amount of personal funds expended on his campaign, Section 319's initial and additional notification require ments affect only the timing, not the substance, of the required disclosures. See J.S. App. 16a.

As the district court correctly concluded, Section 319's timing requirements do not impair appellant's rights under the First Amendment, particularly because those requirements "are no more burdensome than oth er BCRA reporting deadlines that were upheld in Mc Connell." J.S. App. 16a; see McConnell, 540 U.S. at 196- 201. The 24-hour deadline to disclose the making or ob ligating of personal funds is not unique to Section 319. Any person making disbursements in an aggregate am ount in excess of $10,000 in a calendar year on "election eering communications," as defined in BCRA, 2 U.S.C. 434(f)(3) (Supp. V 2005), must report those disburse ments within 24 hours. 2 U.S.C. 434(f)(1) (Supp. V 2005). This Court upheld that requirement, noting that "the interest in assuring that disclosures are made promptly and in time to provide relevant information to voters is unquestionably significant." McConnell, 540 U.S. at 200. In addition, all candidates must report con tributions of $1000 or more received between two and 20 days before an election within 48 hours of receipt, even if the contribution is from the candidate. 2 U.S.C. 434(a)(6) (2000 & Supp. V 2005).

3. The district court also correctly explained that "any burden that [Section 319's] reporting provisions may hypothetically impose is not 'unilateral'" because "[t]he opponent of a self-financing candidate also faces additional reporting requirements, which are similar to those of the self-financed candidate[]." J.S. App. 16a. Under Section 319, all candidates must file a declara tion stating whether they intend to spend personal funds in excess of the statutory threshold. 2 U.S.C. 441a-1(b)(1)(B) (Supp. V 2005); see J.A. 103 (FEC form states: "If you do not intend to expend personal funds exceeding the threshold amount for either [the primary or general] election, you must enter '0.00' for each."). The opponent of a self-financed candidate must (1) cal culate the OPFA when the threshold is reached and each time the self-financed candidate reports an additional $10,000 expenditure and file a notice within 24 hours if and when the new OPFA entitles the candidate to solicit increased contributions; (2) file a notice with the Com mission and the national and state committees of his political party within 24 hours if and when increased contributions received have reached the proportionality cap; and (3) report any refunds of money raised under Section 319. 11 C.F.R. 400.30(b), 400.31(e)(1)(ii), 400.54.

Moreover, if the opponent of a self-financing candi date accepts increased contributions from individuals under Section 319, these contributions must be reported in the same format as all contributions above $200, in mandatory periodic reports, with an indication that the particular contribution was permitted pursuant to Sec tion 319.17 Additionally, political parties that make coor- dinated expenditures under Section 319 must report, within 24 hours, those expenditures to the FEC and to the candidate on whose behalf the money was spent. 11 C.F.R. 400.30(c)(2). The reporting requirements that apply to self-financing candidates are thus part of a larger disclosure regime, not a unique imposition on a discrete class of individuals. This Court has upheld such requirements in Buckley and McConnell, and there is no basis for a different result here.

CONCLUSION

The appeal should be dismissed on the ground that the case is moot. In the alternative, appellant's chal lenge to Section 319's increased contribution limits should be dismissed for lack of standing, and the judg ment of the district court with respect to Section 319's disclosure requirements should be affirmed.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General
GREGORY G. GARRE
Deputy Solicitor General
MALCOLM L. STEWART
Assistant to the Solicitor
General

THOMASENIA P. DUNCAN
General Counsel
DAVID KOLKER
Associate General Counsel
KEVIN DEELEY
Assistant General Counsel
HOLLY J. BAKER
CLAIRE N. RAJAN
Attorneys
Federal Election Commission

 

 

MARCH 2008

1 Section 304 of BCRA, 116 Stat. 97 (2 U.S.C. 441a(i) (Supp. V 2005)), contains comparable provisions and applies to elections for the United States Senate. Section 304 is not at issue in this case. See J.S. App. 1a n.1; Appellant Br. 3 n.3. In McConnell v. FEC, 540 U.S. 93 (2003), cer tain plaintiffs challenged the constitutionality of Sections 304 and 319 on their face, but the Court held that the plaintiffs lacked standing to sue and accordingly did not reach the merits of their challenge. See id. at 229-230.

2 The formula used to calculate the OPFA during the election year counts the expenditures from personal funds made by each candi date, adds 50% of the aggregate receipts raised by each candidate dur ing the year prior to the election, and compares the totals. 2 U.S.C. 441a-1(a)(2) (Supp. V 2005). Only if the opponent has raised and spent $350,000 less of those funds than the self-financing candidate will he qualify to solicit additional financial support under the provision. The provision applies equally to all candidates, so that even a self-financing candidate can qualify to raise extra funds if he is running against a self- financing opponent who has raised and spent even more under the OPFA formula. The portion of the formula that takes into account a candidate's aggregate receipts during the non-election year-titled the "gross receipts advantage" provision-was added so that incumbents who raise a substantial amount of contributions in the year before an election year will not unduly benefit. See 147 Cong. Rec. at 5148 (state ment of Sen. Durbin) (explaining that Congress's goal was to "get as close [as] possible to a level playing field but not create incumbent ad vantage").

3 Appellant ultimately loaned his campaign committee $2,257,280 in 2006, including $1,520,000 for the general election. See Davis for Congress, Report of Receipts and Disbursements (Mar. 10, 2007) <http://images.nictusa.com/cgi-bin/fecimg/?F27930238050> (reporting $2,257,280 in candidate loans in the 2006 election cycle); Davis for Congress, 24-Hour Notice of Expenditure from Candidate's Personal Funds (Nov. 6, 2006) <http://images.nictusa.com/cgi-bin/fecimg/?_ 26960663096+0> (reporting $1,520,000 in total expenditures from per sonal funds in the general election).

4 The record before the district court contained no information re garding the FEC's investigation of appellant for apparent violations of Section 319 during the 2004 campaign. Until appellant waived his right to confidentiality by revealing the existence and status of the investiga tion in his opening brief to this Court, the Commission was barred from publicly revealing the matter. See 2 U.S.C. 437g(a)(12); In re Sealed Case, 237 F.3d 657, 665-667 (D.C. Cir. 2001); App., infra, 3a.

5 Appellant also states (Br. 18) that, "[i]n the 2006 campaign, [ap pellant] suffered additional injury arising from his compliance with the statute's disclosure requirements." As the government noted in its mo tion to dismiss or affirm (at 24), we agree with the district court's hold ing (see J.S. App. 6a-7a) that appellant suffered injury-in-fact as a result of Section 319's disclosure requirements. Proof of past injury, however, cannot prevent appellant's suit for declaratory and injunc tive relief (see J.A. 18) from becoming moot. See Lewis, 494 U.S. at 477 ("To sustain [this Court's] jurisdiction * * * it is not enough that a dispute was very much alive when suit was filed."); cf. Lyons, 461 U.S. at 105-109. The government's motion to dismiss or affirm also stated (at 24-25 n.8) that "appellant's prior history of participation as a candidate in elections for the House of Representatives presumably provides a sufficient basis for concluding that the current dispute be tween the parties over the constitutionality of Section 319's disclosure provisions is likely to recur," but that statement was based on the as sumption that appellant planned to run again. Because appellant's op ening brief contains no expression of an intent to undertake a future self-financed campaign, the possibility of such a future campaign (with out more) is insufficient to provide a basis for treating this appeal as justiciable. If appellant makes his intent to run a future self-financed House campaign clear in his reply brief or elsewhere, it will effectively moot this mootness discussion.

6 If appellant's suit for declaratory and injunctive relief were other wise justiciable, as it was during the period while the 2006 campaign was ongoing, the possibility of an FEC enforcement action based on al leged violations in 2004 would not preclude the suit from going forward. Cf. California Med. Ass'n v. FEC, 453 U.S. 182, 187-192 (1981). But while the prospect of an enforcement action alleging prior violations does not bar appellant's suit, neither does it serve to keep alive claims for prospective declaratory or injunctive relief that are otherwise moot.

7 Appellant characterizes Section 319 as content-based regulation of a self-financing candidate's speech. See Br. 35, 45. The application of Section 319, however, does not turn on the content of a candidate's speech, but on the amount of personal funds expended. This Court's decision in Buckley makes clear that Congress may create financial dis incentives to independent campaign spending without violating the Con stitution. Section 319 neither deprives the self-financing candidate of funds nor divests him of any other potential benefit; it simply loosens the fundraising restrictions placed upon his opponents.

8 Likewise, Congress could have structured the relevant BCRA pro visions such that the default contribution limit was higher and would be reduced only if an opposing candidate certified that he would not self- finance beyond a certain limit. Under such a statute, spending restraint would obviously be rewarded with reductions in an opponent's contribu tion limits, but the substance of the statute would remain unchanged.

9 Appellant argues (Br. 46) that a self-financing candidate may some times "forgo substantial reliance on private contributions" in order to convey the message "that he will best represent the electorate because he is not beholden to individual, party, and committee donors." But a self-financing candidate who spends large amounts of personal wealth, while declining on principle to accept contributions above the generally applicable BCRA limits, is clearly better off under the BCRA regime taken as a whole than he would be if campaign fundraising were unreg ulated. Such a candidate suffers no harm from the application of the BCRA limits to his own campaign (since those limits simply bar him from accepting contributions that he would decline in any event), and (under appellant's zero-sum theory) even the expanded limits that apply to his opponent under Section 319 will place appellant in a better posi tion than if no contribution limits existed.

10 Appellant cites three different passages in Buckley that, in appel lant's view, hold that leveling electoral opportunities is an illegitimate governmental objective. See Br. 25 (citing Buckley, 424 U.S. at 48-49, 54); Br. 57 (citing 424 U.S. at 98). None of the cited passages supports that proposition. The first passage states that "the concept that gov ernment may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment." 424 U.S. at 48-49. By its terms, that statement disapproves a particular means of achieving equalization ("restrict[ing] the speech of some elements of our society") but does not suggest that equalization is an invalid objective. Similarly in the second passage, the Court stated that the government's "interest in equalizing the relative financial resources of candidates competing for elective office * * * is clearly not sufficient to justify the * * * infringement of fundamental First Amendment rights" that a mandatory spending cap entails. Id. at 54. The Court's conclusion that the equalization interest is not "sufficient" to justify direct restrictions on a self-financing candidate's speech does not imply that the interest is illegitimate. The third pas sage simply states that Congress need not treat all major and minor parties identically in fashioning a public financing scheme. Id. at 98. The conclusion that a different form of equalization is not constitution ally required says nothing about the legitimacy of the government in terest asserted here.

11 Appellant argues (Br. 44) that "Section 319 regulates a self- financed candidate's speech on his own behalf" and therefore "is sub ject to strict scrutiny." That is not correct. As stated, appellant's own spending remains unrestricted by Section 319. And to the extent Sec tion 319 imposes consequences on anyone, it lessens the First Amend ment burdens of opponents in certain circumstances. The burdens lifted or relaxed are themselves subject to "relatively complaisant re view under the First Amendment." Beaumont, 539 U.S. at 161. In re viewing contribution limits against potential recipients' claims that the limits had been set too low, this Court has held that such limits should be sustained unless they "prevent candidates from 'amassing the re sources necessary for effective [campaign] advocacy.'" Randall, 126 S. Ct. at 2492 (quoting Buckley, 424 U.S. at 21); see Shrink Mo., 528 U.S. at 397. There is no basis for applying any stricter standard of review to the increased contribution limits at issue in this case, which have no direct impact on the self-financing candidate's conduct of his own campaign, but simply expand the range of funds potentially available to his opponent. But, in reality, the more straightforward way to decide this case is to recognize that Section 319 allows a potential self-financing candidate to choose which of two alternative regimes will govern his opponent's fundraising. Neither regime nor the choice between them runs afoul of the First Amendment.

12 The "gross receipts advantage" is calculated based on funds ac quired by each candidate as of December 31 of the year before the gen eral election and counts 50% of gross receipts "that may be expended in connection with the election." 2 U.S.C. 441a-1(a)(2)(B)(ii) (Supp. V 2005). By taking account of the funds raised prior to the election year, Congress sought to ensure that incumbents do not unduly benefit from "war chests" they may have built up in advance.

Section 319 thus reflects a compromise between (a) treating funds raised from private donors subject to the BCRA contribution limits in precisely the same manner as a self-financing candidate's accumulated personal wealth, and (b) ignoring contributed funds altogether in calcu lating the self-financing candidate's monetary advantage. That choice was Congress's to make. In upholding the FECA provisions that gov ern public financing of presidential campaigns, the Court in Buckley ex plained that "the choice of the percentage requirement that best accom modates the competing interests involved was for Congress to make. * * * Without any doubt a range of formulations would [adequately serve the relevant congressional purposes]. We cannot say that Con gress' choice falls without the permissible range." 424 U.S. at 103-104; see pp. 39-43, infra. The same analysis applies here.

13 Because Congress has substantial discretion to craft the details of a campaign-finance regime, Section 319 is not rendered unconstitutional simply because thresholds other than $350,000 could reasonably have been chosen (see Appellant Br. 50), or because the $350,000 threshold is not indexed for inflation (see id. at 23).

14 Section 319 was carefully crafted to target the problems that Con gress identified without unduly burdening or benefitting either self- financing candidates or their opponents. Section 319's disclosure re quirements do not apply to all self-financing candidates, but only to those who spend more than $350,000 on their own campaigns. The opponent's contribution limits are relaxed only when the OPFA disparity between the two candidates exceeds $350,000. See note 2, supra. Section 319 caps the amount of increased contributions and coordinated party expenditures that an opponent may accept, and thus in most circumstances prevents an opponent from raising more in additional funds under the provision than the self-financing candidate's expenditures of personal funds on his own campaign. 2 U.S.C. 441a-1(a)(3)(A)(ii) (Supp. V 2005). In addition, the opponents of self- financing candidates remain subject to substantial statutory fundraising restrictions that help to reduce the possibility of corruption or the ap pearance thereof. Section 319 does not affect the contribution restric tions on corporations, labor unions, foreign nationals, or political committees, and it relaxes but does not eliminate the limits on contribu tions by individuals.

15 Appellant suggests (Br. 46) that some voters may find self-finan cing candidates attractive because such candidates are "not beholden to individual, party, and committee donors." Other voters may view with suspicion a candidate who eschews efforts to attract the broad pub lic support that is necessary to raise substantial funds under BCRA's contribution limits. Other voters may not view the information as in herently positive or negative but may be prompted to investigate the underlying source of personal wealth being brought to bear for insights into how the candidate may vote, much as they might do in evaluating the sources of contributions. For any of those classes of voters, infor mation concerning the extent to which a particular candidate relies on personal wealth to finance his campaign is relevant to the voter's as sessment of the candidate's worthiness for public office.

16 If a particular candidate believed that the declaration would impose an unconstitutional burden because of the unique circumstances of his own campaign, he could of course bring an as-applied challenge. The timing and frequency of the declaration are not constitutionally burden some. Only one declaration is required, and it covers both the primary and general elections. See, e.g., J.A. 102-103. The declaration is incor porated into the long-required Statement of Candidacy, so that no additional forms need be filed. Ibid. Fifteen days is the same amount of time Congress set for all candidates to designate a campaign commit tee. 2 U.S.C. 432(e)(1). Advance disclosure requirements regarding ex penditures of $10,000 or more for "electioneering communications" were found constitutional in McConnell because they "d[o] not prevent anyone from speaking." 540 U.S. at 201 (citation omitted). The brief report seeks only easily ascertainable information wholly within the knowledge of the candidate and candidate's committee, and could be completed and filed within minutes. See, e.g., J.A. 102-103. It does not require disclosure of the names of supporters, the source of the per sonal funds, or the manner in which the money will be spent to support the candidate's campaign.

17 See Schedule A of FEC Form 3, Report of Receipts and Disburse ments for an Authorized Committee (Feb. 2003) <http://www.fec.gov/ pdf/forms/fecfrm3.pdf> (providing a check-box for the committee to in form the Commission, opponents, and the public that a particular con-tribution was permissible due to "Limits Increased Due to Opponent's Spending (2 U.S.C. §441a(i)/441a-1)").