"Wholly foreign to the First Amendment": the demise of campaign finance's equalizing rationale in Davis v. Federal Election Commission.

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

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

In March 2006, Jack Davis filed his statement of candidacy with the FEC, declaring his intent to run as the Democratic candidate for New York's 26th Congressional District. (15) Complying with BCRA Section 319(b), Davis declared that he planned to spend $1 million of his own funds to finance the campaign, well above the amount for triggering the Millionaires' Amendment. As he approached Section 319(a)'s $350,000 threshold in June 2006, Davis filed suit against the FEC in the United States District Court for the District of Columbia, facially challenging Sections 319(a) and (b) of BCRA as violative of the First Amendment and the equal protection component of the Fifth Amendment's Due Process Clause. (16) Both parties filed motions for summary judgment. The district court rejected Davis's motion for summary judgment and granted the FEC's, (17) dismissing Davis's contention that Section 319 imposed a burden on the political speech rights of self-financed candidates. The three-judge panel upheld the statute on the grounds that "[i]t places no restrictions on a candidate's ability to spend unlimited amounts of his personal wealth to communicate his message to voters." (18) In fact, the district court lauded Section 319 for preserving the right of all candidates to have the opportunity to "enhance [their] participation in the political marketplace" by "correcting a potential imbalance in resources available to each candidate." (19) Noting that Davis had chosen to finance his own campaign in spite of the Millionaires' Amendment, the district court concluded that he had thus failed to demonstrate that his speech had been limited in any way by the prospect of financial benefit to his political adversaries. (20) Davis then appealed to the United States Supreme Court via BCRA's statutory provision for direct appeal. (21)

Writing for a majority of five, Justice Alito (22) reversed the judgment of the district court, holding that Section 319's asymmetrical contribution caps and disclosure requirements impermissibly burdened Davis's First Amendment rights. (23) The Court invoked Buckley's unequivocal rejection of any limits on a candidate's expenditures in support of his own campaign, recalling that "a cap on personal expenditures imposes 'a substantial,' 'clea[r]' and 'direc[t]' restraint" on the right to uninhibited political expression. (24) Analogizing, the Court concluded that although Section 319(a) did not actually cap a candidate's personal expenditures, "it impose[d] an unprecedented penalty on any candidate who robustly exercises that First Amendment right." (25) In the zero-sum game of political campaigning, Section 319(a) substantially burdened constitutionally protected rights of political expression by providing significant fundraising advantages to the opponents of self-financed candidates. Thus, the Court maintained, strict scrutiny was appropriate; Section 319 must be shown to have furthered a compelling state interest. (26) The ensuing First Amendment analysis focused heavily on the asserted state interest in leveling the playing field. (27) The importance of "level[ing] electoral opportunities for candidates of different personal wealth," (28) the government contended, outweighed any burden on a candidate's right to employ personal funds "vigorously and tirelessly to advocate his own election." (29) Expressing undisguised distaste for the "ominous implications" (30) of the equalizing argument, the Court maintained that no precedent supported equalization as an interest sufficiently compelling to justify burdening campaign speech. (31) Furthermore, the scope of the government's asserted interest in equalizing electoral opportunities, the Court noted, is virtually limitless. In a world where candidates enjoy disparate natural advantages--from wealth to celebrity status--leveling electoral opportunities puts the state in the position of "making ... judgments about which strengths should be permitted to contribute to the outcome of an election." (32) Finally, the Court rejected the government's justification that Section 319(a) merely "ameliorates the deleterious effects" of the contribution caps, suggesting that Congress address the "untoward consequences" of the campaign finance framework by raising or even eliminating contribution limits. (33)

Briefly addressing Davis's challenge to Section 319(b)'s disclosure requirements, the Court recognized the burden that such regulations may impose, subjecting the state's proffered justifications to "exacting scrutiny." (34) Because the disclosure provision at issue here existed simply to further the now-unconstitutional provisions of Section 319(a), the Court concluded that "the burden imposed ... cannot be justified." (35)

Justice Stevens, joined in part by Justices Souter, Ginsburg, and Breyer, concurred in part and dissented in part. Justice Stevens reluctantly acknowledged that Buckley's protection of campaign expenditures remained on solid ground, but argued that, even under Buckley, "the purposes of [Section 319] surely justify its effects." (36) Calling for Buckley's overruling, he firmly rejected the proposition that anticorruption interests are the only adequate justification for campaign finance regulations, asserting that "[m]inimizing the effect of concentrated wealth on our political process" is a legitimate governmental interest. (37) The other dissenters distinguished their views from those of Justice Stevens only to the extent that they were unwilling to reconsider Buckley's continued vitality. (38)

The Court's division in Davis turned on a fundamental disagreement over which state interests justify campaign finance regulation. Whereas Justice Stevens and the dissenters insisted that the state has a compelling interest in equalizing electoral opportunities, the majority brusquely dismissed such a notion, reaffirming that the prevention of corruption and the appearance of corruption was the only acceptable state interest. (39) The majority's contention that "[o]ur prior derisions ... provide no support for the proposition that [equalizing] is a legitimate government objective," (40) however, understates Davis's dramatic impact on campaign finance law. Despite the Court's nominal adherence to the anticorruption standard, its campaign finance jurisprudence throughout the 1990s and into the 2000s often demonstrated a deferential acceptance of what appeared to be state interests in equalizing or mitigating the impact of funds on political campaigns. Davis's clear condemnation of the equalizing doctrine is therefore notable for reviving the First Amendment interests implicated by campaign finance regulation and calls into question the continued viability of campaign finance statutes regulating corporate funds and even contribution limits generally.

Although the Buckley Court rejected "the ancillary governmental interest in equalizing the relative ability of individuals and groups to influence the outcome of elections," (41) the equalizing argument regularly resurfaced in various forms as the Court's campaign finance jurisprudence developed, often in the context of corporate political involvement. Two years after Buckley, in First National Bank of Boston v. Bellotti, (42) the Court struck down a Massachusetts criminal statute prohibiting corporations from making contributions or expenditures to influence votes on most referendum proposals. (43) Although the Court dismissed the state's rationale that "corporations are wealthy and powerful and their views may drown out other points of view," its conclusion was based primarily on the lack of evidentiary support for the state's contentions. (44) Nevertheless, the Court was particularly alarmed that the statute's suppression of speech "suggests an attempt to give one side of a debatable public question an advantage in expressing its views to the people," (45) a concern that would play a central role in the outcome of Davis three decades later.

The Court's 1986 opinion in FEC v. Massachusetts Citizens for Life, Inc. (MCFL) (46) was not as friendly to corporate participants in campaigns. In this case, the Court curiously invoked Justice Holmes's "market place of political ideas" metaphor to craft a justification for limiting certain political speech, expressing the concern that a corporation's vast amount of funds reflects the "economically motivated decisions of investors" rather than popular support for the institution's ideology. (47) Although the Court ultimately dismissed the FEC's enforcement proceeding in MCFL, its dicta describing a disconnect between corporate wealth and popular support indicated the Court's willingness to go beyond Buckley's anticorruption interest in favor of neutralizing the vague "unfair advantage" of wealth in the political arena. More importantly, MCFL provided the groundwork for Austin v. Michigan State Chamber of Commerce, (48) a 1990 decision expanding the definition of "corruption" to include "the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public's support for the corporation's political ideas." (49) The majority in Austin denied that it was endorsing an equalizing rationale, (50) maintaining that it was merely approving the state's interest in ensuring that expenditures accurately reflect "actual public support." (51) In like vein, at least one scholar has minimized Austin's equalizing undertones, (52) but the Court's insistence that private funds reflect public support suggests that the Buckley anticorruption language was simply used to mask Austin's true egalitarian visage. (53) In dissent, for example, Justice Kennedy stridently decried determining who are the "favored participants in the electoral process" and appealed to "fundamental principles of neutrality for all political speech." (54) Furthermore, any notion that Austin's broad definition of "corruption" would impact only corporate political actors has been disproved by Justice Stevens's Davis dissent, in which he expressly cited Austin to support his proposition that the Court has a long history of recognizing the government's interest in reducing the impact of wealth on elections. (55)

By the time the Court handed down its second landmark campaign finance case--McConnell v. FEC (56)--in 2003, Buckley's once-limited recognition of acceptable state interests had eroded to an almost unrecognizable deference to a myriad of interests, including a clearly recognizable equalizing justification. (57) In his concurrence in Nixon v. Shrink Missouri Government PAC, for example, Justice Breyer acknowledged the governmental interest in "democratiz[ing] the influence that money itself may bring to bear upon the electoral process." (58) As far as Buckley's rejection of equalizing interests, Justice Breyer easily dismissed the weight of precedent, asserting that "those words cannot be taken literally." (59) The changing character of the Court in recent years, however, has led to notably less deference to state and federal entities in the campaign finance arena. (60) Furthering that trend, Davis's rejection of the state's interest in equalizing political opportunities marks a resounding victory for "the vigorous exercise of the right to use personal funds to finance campaign speech." (61) But beyond ensuring the sanctity of personal expenditures in electoral races, Davis has also called into question the vitality of numerous other aspects of campaign finance reform, including Austin's "corporate form" corruption, and has threatened to destabilize contribution limits in general.

The Davis opinion significantly undermined the fundamental premises of restrictions on corporate political expression. Whatever Austin stood for, (62) it clearly maintained that the effects of corporate political expenditures are "corrosive and distorting" because they have little correlation to public support. The funds amassed by such institutions are "a function of [their] success in the economic marketplace" (63) and do not reflect the actual popularity of the ideas espoused. Under the broad premises of Austin's reasoning, however, Jack Davis's expenditures would clearly have an identically corrosive and distorting effect on the political arena. Davis's money came from business; in 1964 he founded I Squared R Element Co., a successful enterprise that eventually grew to be the largest manufacturer of silicon carbide heating elements in the United States. (64) In Austin, the Court upheld a statute forbidding a state chamber of commerce from making an innocuous independent expenditure in the form of a local newspaper advertisement. (65) In contrast, Davis spent a total of $3.4 million in his 2004 and 2006 campaigns, primarily of his own funds. (66) The concerns raised by immense aggregations of corporate wealth in Austin are equally applicable to the immense aggregations of individual wealth in Davis. Jack Davis's personal funds are just as much "a function of [his] success in the economic marketplace" (67) as is a corporation's treasury. Similarly, his funds better reflect "economically motivated decisions" (68) than popular support for his political agenda. Therefore, in affirming Davis's right to make political expenditures, the Court made clear that it is not the government's place to ensure that everyone has an equal opportunity to expound a political position, (69) even if the campaign wherewithal of participants (or at least candidates) is an outgrowth of the economic marketplace. The Davis majority also vindicated Justice Kennedy's vigorous dissent in Austin criticizing the practice of "altering political debate by muting the impact of certain speakers." (70) By recognizing the "unprecedented penalty" imposed on self-financed candidates, the Court in Davis dealt a blow to the justifications underpinning Austin's stringent regulation of corporate political involvement.

The demise of the Millionaires' Amendment suggests that contribution limits, too, may now be standing on weaker ground. When faced with the government's argument that Section 319(a) merely rectified the "deleterious effects" of a regulatory system that imposes onerous contribution limits in conjunction with unlimited personal expenditures, Justice Alito pointedly noted that these effects were a direct result of Buckley's original treatment of the Federal Election Campaign Act (FECA). (71) Perhaps, Justice Alito suggested, the solution lies in decreasing, rather than increasing, the stringency of regulation. (72) Not only did the Millionaires' Amendment seek to equalize political opportunities--a proposal soundly rejected by the Court--but it hinted at congressional ambivalence toward the original anticorruption rationale itself. In fact, since Austin transformed the definition of the word, "corruption" appears to be a mere talisman, emptied of its original meaning. (73) Further, even FECA's original provisions reflected congressional concern "that voters are unduly influenced by ... the sheer volume of information communicated by wealthy candidates." (74) It thus appears that equalizing interests--whether flying their true colors or waving an anticorruption banner--have been quietly in play since the inception of the Buckley saga.

In the Millionaires' Amendment, however, equalizing interests brazenly trumped anticorruption by implicitly acknowledging that BCRA's baseline contribution cap could be significantly relaxed without implicating fears of corruption. Under BCRA, Congress determined that a contribution cap of $2,300 was necessary to battle corruption and the appearance thereof, but the Millionaires' Amendment represented willingness to sacrifice BCRA's anticorruption interest in favor of equalizing the funds available to candidates. How does one candidate's expending significant amounts of personal funds make his non-self-financed opponent immune to the temptation of quid pro quo corruption? After all, whether a candidate will be corrupted by a $6,900 contribution is unrelated to his opponent's personal expenditures.

The constitutionality of contribution restrictions can no longer be taken for granted. Even though contribution limits "require less compelling justification than restrictions on independent spending," they must be closely drawn to address a "sufficiently important interest." (75) How closely drawn the restrictions must be is often subject to significant deference. In a recent case, for example, the Court reiterated that it has "no scalpel to probe whether, say, a $2,000 contribution ceiling might not serve as well as $1,000." (76) Through the Millionaires' Amendment, however, Congress itself indicated that a $6,900 contribution cap does serve as well as one at $2,300; neither implicates corruption concerns. (77) Because the $6,900 cap does not raise the specter of corruption, then, it is unclear how the government can turn to anticorruption to justify the $2,300 cap. Absent its anticorruption rationale, BCRA's contribution limit appears to rest solely on the judiciary's long-standing deference to legislative judgment in the campaign finance arena. Whether Davis is a step toward the demise of this deference remains to be seen.

The majority's decision in Davis constructed another barrier between First Amendment rights and the push to confine them through campaign finance regulation. In contrast to the era of ever-expanding governmental authority to police political expression, Davis is a considerable victory in the recent effort to rein in unbridled regulation of campaign finance. Not only has Davis reasserted Buckley's long-neglected declaration that equalizing interests are "wholly foreign to the First Amendment," (78) it has laid a much-needed foundation upon which to construct new constitutional challenges to numerous facets of campaign finance regulation.

(1.) 424 U.S. 1 (1976) (per curiam).

(2.) See generally MARTIN H. REDISH, MONEY TALKS: SPEECH, ECONOMIC POWER, AND THE VALUES OF DEMOCRACY 122-28 (2001). But see Randall v. Sorrell, 548 U.S. 230, 276-78 (2006) (Stevens, J., dissenting); Buckley, 424 U.S. at 263 (White, J., concurring in part and dissenting in part).

(3.) Buckley, 424 U.S. at 25 (per curiam).

(4.) There are numerous equalizing theories, all of which are based on the general principle that preventing quid pro quo corruption is not the only interest sufficient to justify campaign finance regulation. See, e.g., Edward B. Foley, Equal-Dollars-Per-Voter: A Constitutional Principle of Campaign Finance, 94 COLUM. L. REV. 1204, 1211 (1994) ("I believe that [Buckley] must be overruled in order to permit adoption of a system of campaign finance that guarantees equal electoral funds for all voters."); Gene R. Nichol, Money, Equality, and the Regulation of Campaign Finance, 6 CONST. COMMENT. 319, 328 (1989) ("[T]he governmental interest undergirding both contribution and expenditure limitations is not only an acceptable, but often a compelling public concern."); Cass R. Sunstein, Political Equality and Unintended Consequences, 94 COLUM. L. REV. 1390 (1994); J. Skelly Wright, Money and the Pollution of Politics: Is the First Amendment an Obstacle to Political Equality?, 82 COLUM. L. REV. 609, 637 (1982) ("Limiting the amount that wealthy interests may spend to publicize their views enhances the self-expression of individual citizens who lack wealth, furthering the values of freedom of speech."). For a proposal similar to the regulations implemented in Section 319, see Joel L. Fleishman & Pope McCorkle, Level-Up Rather Than Level-Down: Towards a New Theory of Campaign Finance Reform, 1 J.L. & POL. 211, 231 (1984) (proposing a system of "public subsidization to establish a floor of wealth for candidates but no overall ceiling on expenditures from private sources of support").

(5.) See infra notes 41-55 and accompanying text.

(6.) 128 S. Ct. 2759 (2008).

(7.) Pub. L. No. 107-155, [section] 319, 116 Stat. 81, 109 (codified at 2 U.S.C. [section] 441a-1 (2006)).

(8.) Section 319 of BCRA is codified at 2 U.S.C. [section] 441a-1 as [section] 315A of the Federal Election Campaign Act of 1971 (FECA). In keeping with the usage of the parties and the Court in Davis, this Comment will refer to the Millionaires' Amendment as Section 319. See Davis, 128 S. Ct. at 2766 n.3.

(9.) The OPFA also takes into account some aspects of fundraising. See id. at 2766.

(10.) See 2 U.S.C. [section] 441a-l(a) (2006).

(11.) Davis, 128 S. Ct. at 2766.

(12.) 2 U.S.C. [section] 441a-l(a)(1)(C).

(13.) 2 U.S.C. [section] 441a-1(b). Within fifteen days of declaring his candidacy, a candidate would be required to disclose the amount of personal funds he planned to expend in excess of $350,000; within twenty-four hours of obligating himself to breach the $350,000 threshold, a candidate would be required to file an initial notification; and within twenty-four hours of making each additional expenditure of $10,000 he would be required to file an additional notification. [section]441a-I(b)(1)(B)-(D).

(14.) See Davis, 128 S. Ct. at 2767; 2 U.S.C. [section] 437g(a)(5)(A) (2006) ("If the Commission believes that a violation of this Act ... has been committed, a conciliation agreement ... may include a requirement that the person involved in such conciliation agreement shall pay a civil penalty [not to exceed the greater of $5,000 or any contribution or expenditure involved in the violation].").

(15.) Davis, 128 S. Ct. at 2767.

(16.) Davis v. FEC, 501 F. Supp. 2d 22, 27-28 (D.D.C. 2007).

(17.) Id. at 34.

(18.) Id. at 29.

(19.) Id.

(20.) Id. at 36.

(21.) See Davis, 128 S. Ct. at 2768.

(22.) Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas joined Justice Alito's opinion for the Court.

(23.) See Davis, 128 S. Ct. at 2775.

(24.) Id. at 2771 (alterations in original).

(25.) Id.

(26.) Id. at 2772 (quoting FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238, 256 (1986)).

(27.) The Court quickly addressed and dismissed the notion that Section 319(a) furthered the government's anticorruption Interest, noting that heavy reliance on personal funds actually reduces the threat of corruption by removing the danger of undue Influence. See id. at 2773; see also FEC v. Colo. Republican Fed. Campaign Comm., 533 U.S. 431, 440-41 (2001) (stating that corruption is "understood not only as quid pro quo agreements, but also as undue influence on an officeholder's judgment, and the appearance of such Influence" (citation omitted)).

(28.) Davis, 128 S. Ct. at 2773 (quoting Brief for Appellee at 34, Davis, No. 07-320 (2008)).

(29.) Id. at 2771 (quoting Buckley v. Valeo, 424 U.S. 1, 52-53 (1976) (per curiam)).

(30.) Id. at 2773.

(31.) See id. The Court extensively Invoked non-binding precedent, including Justice Thomas's dissent in Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 428 (2000) (Thomas, J., dissenting), Justice Thomas's concurrence in Randall v. Sorrell, 548 U.S. 230, 268 (2006) (Thomas, J., concurring in the judgment), and Justice Kennedy's dissent in Austin v. Michigan State Chamber of Commerce, 494 U.S. 652, 705 (1990) (Kennedy, J., dissenting).

(32.) Davis, 128 S. Ct. at 2774. For further discussion of non-monetary factors that may result in "inequality," see Lillian R. BeVier, Campaign Finance Reform: Specious Arguments, Intractable Dilemmas, 94 COLUM. L. REV. 1258, 1268 (1994) (efforts to equalize "wealth disparities" have the effect of elevating the importance of nonwealth disparities).

(33.) Davis, 128 S. Ct. at 2774. The "untoward consequences" that the government invoked were the conflicts between contribution limits preventing less-affluent candidates from raising adequate funds and the lack of expenditure caps allowing richer candidates to expend unlimited amounts of personal funds. Id.

(34.) Id. at 2775.

(35.) Id.

(36.) Id. at 2780 (Stevens, J., concurring in part and dissenting in part).

(37.) Id. at 2781.

(38.) See id. at 2782-83 (Ginsburg, J., concurring in part and dissenting in part).

(39.) Id. at 2773-74 (majority opinion).

(40.) Id. at 2773.

(41.) Buckley v. Valeo, 424 U.S. 1, 48--49 (1976) (per curiam).

(42.) 435 U.S. 765 (1978).

(43.) The statute prohibited a wide spectrum of business corporations from making contributions or expenditures "for the purpose of ... influencing or affecting the vote on any question submitted to the voters, other than one materially affecting any of the property, business or assets of the corporation." Id. at 768 n.2.

(44.) Id. at 789; see also id. at 791 n.30.

(45.) Id. at 785. Justice White, dissenting, denied that the statute's interest was one of "equalizing the resources of opposing candidates"; rather, it was one of preventing institutional wealth (made possible by "special advantages extended by the State") from incurring "an unfair advantage in the political process." Id. at 809 (White, J., dissenting).

(46.) 479 U.S. 238 (1986).

(47.) Id. at 257-58.

(48.) 494 U.S. 652 (1990).

(49.) Id. at 660.

(50.) See id.

(51.) Id.

(52.) See, e.g., Daniel Hays Lowenstein, A Patternless Mosaic: Campaign Finance and the First Amendment After Austin, 21 CAP. U. L. REV. 381, 396 (1992) (disputing the notion that "the upholding of the ban on corporate independent expenditures in MCFL and Austin [was] based on a wholesale acceptance of equality"). Professor Lowenstein distinguished "equality of inputs" from "equality of outputs." Under his theory, equality of inputs--"the idea that each person should have an equal opportunity to influence the campaign debate"--is an acceptable government interest, but equality of outputs--"a debate in which each side has a reasonably equal chance to present its case to the public"--is not. See id. at 393-97. But see Julian N. Eule, Promoting Speaker Diversity: Austin and Metro Broadcasting, 1990 SuP. CT. REV. 105, 109 ("This is simply a repackaging of the equalization goal."); David A. Strauss, Corruption, Equality, and Campaign Finance Reform, 94 COLUM. L. REV. 1369, 1369 n.1 (1994) (asserting that the Court in Austin "defined 'corruption' in a way that made it essentially equivalent to inequality").

(53.) See Bradley A. Smith, The John Roberts Salvage Company: After McConnell, a New Court Looks to Repair the Constitution, 68 OHIO ST. L.J. 891, 907-08 (2007) ("For years, Buckley has required reformers, who favor reform for egalitarian reasons, to couch their legal arguments in terms of corruption."); see also Jill E. Fisch, Frankenstein's Monster Hits the Campaign Trail: An Approach to Regulation of Corporate Political Expenditures, 32 WM. & MARY L. REV. 587, 628 (1991) ("[T]he rationale for the Court's holding ... boils down to a determination that eliminating corporate speech will tend to level the playing field....").

(54.) Austin, 494 U.S. at 700, 701 (Kennedy, J., dissenting).

(55.) See Davis v. FEC, 128 S. Ct. 2759, 2781 (Stevens, J., concurring in part and dissenting in part).

(56.) 540 U.S. 93 (2003). A controversial case, McConnell upheld the constitutionality of many of BCRA's provisions.

(57.) See Richard L. Hasen, Buckley Is Dead, Long Live Buckley, 153 U. PA. L. REV. 31, 32 (2004) (arguing that, under the guise of its anticorruption rationale, the Court has been limiting the role of money in politics to "promote greater political equality").

(58.) Nixon v. Shrink Mo. Gov't PAC, 528 U.S. 377, 401 (2000) (Breyer, J., concurring).

(59.) Id. at 401-02.

(60.) See e.g., FEC v. Wis. Right to Life, Inc., 127 S. Ct. 2652 (2007); Randall v. Sorrell, 548 U.S. 230 (2006).

(61.) Davis, 128 S. Ct. at 2772.

(62.) See supra notes 48-55 and accompanying text.

(63.) FEC v. Mass. Citizens for Life, Inc. (MCFL), 479 U.S. 238, 259 (1986).

(64.) I Squared R Element Co., Inc.--About Us, http://www.isquaredrelement.com/ about_us.html (last visited Apr. 26, 2009).

(65.) Austin v. Mich. State Chamber of Commerce, 494 U.S. 652, 656 (1990); see also Bradley A. Smith, Money Talks: Speech, Corruption, Equality, and Campaign Finance, 86 GEO. L.J. 45, 73-74 (1997) (further discussing the proposed ad at issue in Austin).

(66.) Davis, 128 S. Ct. at 2767.

(67.) MCFL, 479 U.S. at 259.

(68.) Id. at 258.

(69.) See Kathleen M. Sullivan, Political Money and Freedom of Speech, 30 U.C. DAVIS L. REV. 663, 667 (1997) ("The norm in political speech is negative liberty: freedom of exchange, against a backdrop of unequal distribution of resources....").

(70.) Austin, 494 U.S. at 704 (Kennedy, J., dissenting).

(71.) See Davis, 128 S. Ct. at 2774.

(72.) See id. ("If the normally applicable limits on individual contributions and coordinated party contributions are seriously distorting the electoral process, if they are feeding a 'public perception that wealthy people can buy seats in Congress,' ... and if those limits are not needed in order to combat corruption, then the obvious remedy is to raise or eliminate those limits."). For an argument that eliminating contribution caps and heightening disclosure requirements would adequately deter corruption, see Sullivan, supra note 69, at 688-90 ("With contributions fully disclosed ..., voters would be empowered to penalize candidates whose responsiveness to large contributors they deemed excessive.").

(73.) See Smith, supra note 53, at 900-01.

(74.) James A. Gardener, Note, Protecting the Rationality of Electoral Outcomes: A Challenge to First Amendment Doctrine, 51 U. CHI. L. REV. 892, 918 (1984).

(75.) Nixon v. Shrink Mo. Gov't PAC, 528 U.S. 377, 387 (2000) (quoting FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238, 259-60 (1986)); id. at 388 (quoting Buckley v. Valeo, 424 U.S. 1, 25 (1976) (per curiam)); see also FEC v. Beaumont, 539 U.S. 146, 161 (2003) ("[R]estrictions on political contributions have been treated as merely 'marginal' speech restrictions subject to relatively complaisant review under the First Amendment, because contributions lie closer to the edges than to the core of political expression.").

(76.) Randall v. Sorrell, 548 U.S. 230, 247 (2006) (quoting Buckley, 424 U.S. at 30).

(77.) Justice Alito raised a similar issue during the oral argument, asking, "[W]hy would Mr. Davis be subject to potential corruption if he got $2,300-$2,301 from a--from a contributor, but his opponent in exactly the same race would not be exposed to corruption if he got $6,900?" Transcript of Oral Argument at 45, Davis, 128 S. Ct. 2759 (No. 07-320).

(78.) Davis, 128 S. Ct. at 2773 (quoting Buckley, 424 U.S. at 49).