FEC v. Davis
Does the 'Millionaire's Amendment' to the Bipartisan Campaign Reform Act, which raises the contribution limits for a candidate's opponent when the candidate spends substantial personal funds on their own campaign, violate the First Amendment?
The Decision
5-4 decision · Opinion by Samuel Alito · 2008
Majority Opinion— Samuel Alitoconcurring ↓dissent ↓
In a 5–4 decision authored by Justice Samuel Alito, the Supreme Court struck down the Millionaire's Amendment as a violation of the First Amendment. The majority concluded that the provision imposed a substantial burden on a candidate's constitutionally protected right to spend personal funds on political speech, and that no sufficiently important government interest justified that burden.
The Court's central reasoning was that the Millionaire's Amendment created an impermissible penalty on the exercise of First Amendment rights. Although the law did not directly cap how much a self-financing candidate could spend, the majority found that it effectively deterred such spending by triggering a set of asymmetric rules that gave opponents a dramatic fundraising advantage. By creating a mechanism that punished a candidate for exercising the right to personal expenditure — a right the Court had protected since Buckley v. Valeo in 1976 — the provision burdened core political speech.
The majority emphatically rejected the government's argument that Congress had a legitimate interest in 'leveling the playing field' between wealthy self-financing candidates and their opponents. Justice Alito wrote that this rationale was fundamentally at odds with the First Amendment. The Court reiterated the principle that the government cannot justify restricting or burdening the political speech of some citizens simply because they have more resources than others. The different financial capabilities of candidates is not a form of corruption that the government is entitled to equalize.
The Court also held that Davis had standing to challenge the provision, rejecting the FEC's argument that he needed to demonstrate the asymmetric limits would change the outcome of an election. The mere fact that he was subject to the burdensome framework — including its disclosure requirements and the competitive disadvantage it imposed — was sufficient injury. On the disclosure point, the Court found that the requirement to report intended personal spending served as an added burden that further chilled the exercise of First Amendment rights.
Finally, the majority found that the provision could not be justified under the anti-corruption rationale that had historically sustained contribution limits. Raising contribution limits for one candidate while keeping them in place for another did not serve the goal of preventing quid pro quo corruption; if anything, it increased the potential for corruption by allowing larger contributions to flow to one side of a race.
Concurring Opinions
Justice Thomas joined the majority opinion in full but also wrote a brief concurrence reiterating his longstanding view that all limits on campaign contributions are unconstitutional, arguing that the case further illustrated the problems created by the Court's framework in Buckley v. Valeo that distinguished between expenditure limits and contribution limits.
Dissenting Opinions
John Paul Stevensjoined by David Souter, Ruth Bader Ginsburg, Stephen Breyer
Justice Stevens argued that the Millionaire's Amendment imposed no burden whatsoever on self-financing candidates because it did not restrict their spending in any way. The provision was actually a deregulatory measure — it loosened fundraising restrictions on opponents — and the majority was wrong to treat an indirect competitive consequence as a constitutional injury.
- The Millionaire's Amendment did not limit, cap, or restrict any candidate's speech or spending; it simply raised contribution limits for opponents, which is the opposite of a restriction on First Amendment activity.
- The majority conflated a candidate's interest in winning an election with a constitutional right to be free from any rule that might make the election more competitive, which has no basis in First Amendment doctrine.
- Congress has broad latitude to structure campaign finance rules to promote fair elections, and the Millionaire's Amendment was a reasonable effort to counterbalance the immense advantage that personal wealth can confer in the democratic process.
- There is no constitutional principle that protects a wealthy candidate's relative advantage over opponents; the First Amendment protects speech, not the ability to financially dominate an election.
Background & Facts
Jack Davis was a wealthy businessman who ran for the U.S. House of Representatives in New York's 26th Congressional District. In his 2004 and 2006 campaigns, Davis spent millions of dollars of his own personal wealth to finance his bids for office. His campaigns triggered a provision of the Bipartisan Campaign Reform Act of 2002 (BCRA) known as the 'Millionaire's Amendment,' codified in Section 319 of the Federal Election Campaign Act.
The Millionaire's Amendment worked like this: once a House candidate spent more than $350,000 of personal funds on their campaign, their opponent was allowed to collect individual donations at triple the normal limit — up to $6,900 per donor instead of the standard $2,300. Additionally, the opponent's political party was freed from its usual limits on coordinated expenditures. Meanwhile, the self-financing candidate — in this case, Davis — remained stuck with the original, lower contribution limits. The law also required candidates to file detailed disclosures about their intended personal spending so that opponents could take advantage of the raised limits.
Davis sued the Federal Election Commission (FEC), arguing that this scheme was unconstitutional. He contended that it punished him for exercising his First Amendment right to spend his own money on political speech by creating lopsided rules that favored his opponents. He sought a declaration that the provision was unconstitutional and an injunction preventing its enforcement.
A three-judge panel of the U.S. District Court for the District of Columbia ruled against Davis. The lower court concluded that the Millionaire's Amendment did not place a direct burden on Davis's ability to spend his own money and that it served legitimate government interests in preventing corruption and promoting electoral competition. Under BCRA's special judicial review provisions, the case was appealed directly to the Supreme Court.
The Supreme Court agreed to hear the case to resolve the important constitutional question of whether Congress could create asymmetric campaign contribution limits that were triggered by a candidate's decision to self-finance.
The Arguments
The FEC defended the Millionaire's Amendment as a reasonable regulation that did not restrict Davis's ability to spend his own money. The Commission argued that the law served legitimate interests in combating corruption and leveling the electoral playing field between wealthy self-financed candidates and their opponents who relied on outside contributions.
- The Millionaire's Amendment did not cap or restrict how much a self-financing candidate could spend — it only adjusted the rules for opponents, so it imposed no direct burden on First Amendment rights.
- Congress had a compelling interest in preventing the reality and appearance of corruption, and the asymmetric contribution limits helped ensure that opponents of wealthy candidates were not forced to become beholden to a small number of large donors.
- The provision furthered the legitimate goal of preventing wealthy individuals from using vast personal fortunes to essentially buy elections, thereby promoting fair democratic competition.
Davis argued that the Millionaire's Amendment unconstitutionally penalized his exercise of First Amendment rights by triggering special advantages for his opponents whenever he chose to spend his own money on his campaign. He maintained that the government had no legitimate interest in leveling the financial playing field between candidates.
- The asymmetric contribution limits effectively punished self-financing candidates for engaging in protected political speech — spending personal money on one's own campaign — by giving opponents a fundraising advantage unavailable under normal rules.
- The Supreme Court had already established in Buckley v. Valeo that the government may not restrict the speech of some in order to enhance the relative voice of others, and the Millionaire's Amendment did precisely that.
- The mandatory disclosure requirements — forcing candidates to reveal how much personal money they planned to spend — imposed an additional burden on First Amendment rights by providing tactical intelligence to opponents.