Amicus Curiae Brief — Randall v. Sorrell

rilebl

THE CLERK

Nos. 04- 1528, Oo

Iu the

Supreme Court of the United States

- +O

VERMONT REPUBLICAN STATE COMMITTEE, et ai,

Petitioners,

V.

WILLIAM SORRELL, et ai.,

Respondents.

_ ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF OF THE CENTER FOR DEMOCRACY

AND ELECTION MANAGEMENT AT

AMERICAN UNIVERSITY IN SUPPORT OF

RESPONDENTS

ILANN M..MAAZEL

Counsel of Record

EMERY CELLI BRINCKERHOFF

— & ABADY LLP

545 Madison Avenue, Third Floor

New York, New York 10022

(212) 763-5000

Counsel for Amici Curiae

February 7, 2006

TABLE OF CONTENTS

ARGUMENT

I. CAMPAIGN SPENDING LIMITS DO NOT

HURT AND MAY EVEN ENHANCE

ht Ty Ot | | SEE

A. EXPENDITURE LIMITS DO NOT

REDUCE ELECTORAL COMPETITION

NOR DO THEY DISADVANTAGE

CRD icteitaciecociteniiletianchssseinatntecetin

B. THERE IS NO EVIDENCE THAT

EXPENDITURE LIMITS IMPAIR

FREEDOM OF SPEECH OR THE

Il. POLITICALLY ADVANCED AND

ECONOMICALLY DEVELOPED

DEMOCRACIES ARE MORE - NOT LESS -

LIKELY TO LIMIT EXPENDITURES

AND CONTRIBUTIONS ..............0:t-cceceseseeeeseseees

SND slicalesiscieidinincsssspuitdesdiatidionsiptitacedadiduiicsia

12

18

19

ill

TABLE OF AUTHORITIES

United States Judicial Decisions:

Buckley v. Valeo, 424 U.S. 1 (1976) .............:0022+. 2, 17, 19

Foreign Judicial Decisions:

Canada

Harper v. Canada, A.G. [2004] 1 S.C.R. 827,

available at <http://www.lexum.unmontreal.ca/

csc-scc/en/pub/2004/vol1/html/

2004scr1_0827.html>...................00- 13n.11, 17, 17n.14

United States Statutes:

Federal Election Campaign Act, Pub. L. No. 93-443,

I IID vee csstbdiilersamembassinndbabsiaitnioonie 17

Foreign Statutes:

Australia

The Commonwealth Electoral Act, 1918, 2004,

available at <http://www.comlaw.gov.au/comlaw/

Legislation/ActCompilation1 .nsf/0/D0B22ED316

2E922DCA256F7 1004E6776/$file/CwlthElectoral

ET cbuidiihinssicsicindiincavocashaddbaeibeiietensiddciesesss 4n.3

Canada

Canada Elections Act, S.C. 2000, c. 9,

available at <http://www.elections.ca/

A ETS RR 8 IT IE 4n.3, 16, 16n.13

iv

Ireland

Electoral Act, 1997, available at <http://

www. irishstatutebook.ie/ZZA25 Y 1997. html> ....... 4n.3

Jamaica

The Representation of the People Act, available at

<http://www.eoj.com./jm/legislation/ropa.htm>..... 4n.3

Malta

Chapter 102, The Electoral (Polling) Ordinance,

available at <http://docs.justice.gov.mt/lom/

legislation/english/leg/vol_3/chapt102.pdf>........... 4n.3

New Zealand

Electoral Act, 1993, §§ 213, 214B, available at

<http://rangi.knowledge-basket.co.nz/gpacts/

reprint/text/2005/an/03 1 htm I> ....00.... eee eeeeeeeeeeee 4n.3

United Kingdom

Political Parties, Elections, and Referendums Act,

2000, ch. 41, Sch. 9, available at

<http://www.opsi.gov.uk/

acts/acts2000/2000004 1 -htm>...0........ ccc eceeeeeeeeeee eee 4n.3

Other Authorities:

Herbert Alexander (1994), Comparative Political

Finance Among the Democracies, Boulder:

Westview Press, pp +01 .2...c.scccscccntatssetunctonnmienrce 19n.17

CIA, “The World Factbook,” available at http://

www.cia.gov/cia/publications/factbook/>................ 6n.4

Talina Drabsch (2005), “Election Finance Law: An

Update,” Research Service Publications, available

at <http://www.parliament.nsw.gov.au/

prod/parlment/publications.nsf/0/

08aa07f33 136c901ca2570bd0003cbSc/

$FILE/Election%20Finalpaper.pdf>....................... 5n.3

Elections Canada, “Election Handbook

for Candidates,” available at

<http://www.elections.ca/content.asp?section=pol

&document=index &dir=can/

EC20190&lang=e&textonly=false> .................-0.-+. 6n.5

Elections New Zealand, “Election Expenses

and Returns,” available at

<http://www.clections.org.nz/elections/

eS_party_return_expenses.html>............................ 6n.6

Freedom House (2005), “Freedom in the World,”

available at <www.freedomhouse.org> ........ 14, 15, 16

Steven Griner and Daniel Zovatto (2005),

“From Grassroots to the Airwaves: Paying for

Political Parties and Campaigns in the Caribbean,”

Organization of American States, available at

<http://www.ddpa.oas.org/publications/

2005/fiapp/grassroots_airwaves/doc/

pbi_grassroots 002_05 eng.pdf>...........0000..00000.... 5n.3

International Institute for Democracy and

Electoral Assistance handbook (200i),

“Funding of Political Parties and Election

Campaigns,” available at <http://

www.idea.int/publications/

funding parties/upload/full.pdf> ............... Sn.3, 14n.12,

18n.15, 19n.17

vi

Richard Kelley, “Election Expenses Limit,”

available at <http://www.parliament.uk/

commons/lib/research/notes/snpc-03413.pdf>......

Law Library of Congress, Campaign Financing

in Various Foreign Countries, Comparative

Summary and Analysis (Document No. 2002-

Pe ichititisiindsrestiuipennssminstesatsmemnessecmmeiit

U.S. Census Bureau, “International Data Base,”

available at <http://www.census.gov/ipc/www/

I va nenitthiesietaninsiieaictenipiiarintingtsinthiegsitiiiiaidh

Interest of Amici Curiae‘

Amici Curiae include noted experts on campaign finance

law and practice, election administration, and international

democratization. Amici possess many years of experience

working to understand, defend, advance, and deepen election

systems, civil society, and democratic institutions in the

United States and abroad. They are political scientists and

lawyers at the Center for Democracy and Eiection Manage-

ment at American University in Washington, D.C.

The Center for Democracy and Election Management

(CDEM) is an academic institution at American University,

dedicated to the training of undergraduate and graduate

students and mid-career professionals in the management

of elections and best democratic practices, as well as the

scholarly research of electoral administration, election

system design and reform, and democratization. The mission

of CDEM is education, training, research and support for

individuals and institutions engaged in the democratic

process and its improvement. It directed the Commission on

United States Federal Election Reform, chaired by former

President Jimmy Carter and former Secretary of State James

A. Baker, III, and has done extensive comparative work on

election systems internationally.

CDEM is joined by the following elections experts:

Dr. Robert A. Pastor (Director, Center for Democracy

and Election Management, Vice President of Inter-

national Affairs, and Professor at American University;

' This brief is filed with the written consent of all parties. No counsel ~

for any party authored this bricf in whole or in part, and no person or

entity, other than the amici curiae and their counsel, made a monetary

contribution to the preparation or submission of this brief.

* John Henderson undertook much of the research and the preparation of

the first draft. Pastor and Raskin supervised the research and the drafting

and edited the drafts and the final paper.

former Fellow and Founding Director, Latin American

and Caribbean Program, The Carter Center);

John Henderson (Junior Fellow, Center for

Democracy and Election Management, and Research

Associate, Office of International Affairs, American

University); and

Jamin Raskin, Professor, Washington College of

Law, American University.

The long-running debate over whether to restrict election

campaign expenditures has focused on whether such limi-

tations would harm the practice of democracy — specifically,

whether free speech would be limited, whether competitive-

ness would be diminished, and whether campaigns would be

distorted, i.e., not free or fair. Since such restrictions have not

been implemented nationally in the United States and local

examples are few and recent, it is difficult to answer these

questions just by looking at the United States. The interest of

Amici is to draw the best evidence from democracies abroad,

particularly in those countries with traditions and institutions

most like those of the United States. We do not claim that

those experiences should guide American policy, but we do

believe that it would be a grave omission not to study those

cases and try to inform the U.S. debate as to the effects of

restrictions on campaign expenditures in other countries.

Summary of the Argument

The Watergate scandal and the resignation of President

Richard Nixon in 1974 led Congress to consider and approve

far-reaching campaign finance rules, and those developments

led other countries to review and modernize their own cam-

paign finance rules. Though the Supreme Court in Buckley v.

Valeo, 424 U.S. 1 (1976) accepted limits on contributions but

not on expenditures, numerous other democracies introduced

ceilings on both. As the Supreme Court revisits the question

of limits on campaign spending in this case, three decades of

experience and a wealth of data are available from abroad for

the court to assess regarding its possible impact in the United

States.

Several conclusions emerge from examining the experi-

ence of other democracies with campaign spending limits:

e Spending limits certainly do not impair, and may

even enhance democracy, electoral competition, and

free speech and association, while clearly reducing

the influence of money in politics.

« A majority of the freest, most democratic, and eco-

nomically advanced countries in the world regulate

campaign expenditures and contributions.

e In comparison, low-income and new democracies

are less likely to do so.

Evidence from America’s democratic colleagues suggests

that common assumptions undergirding the case against

limiting campaign expenditure in the United States are

questionable, if not wrong. Let us review the evidence

regarding each argument.

Argument

I. Campaign Spending Limits Do Not Hurt and

May Even Enhance Democracy Abroad

A. Expenditure Limits Do Not Reduce Electoral

Competition Nor Do They Disadvantage

Challengers

The experience of democracies abroad with the best

records on civil rights and freedoms, like Canada, the United

Kingdom, and New Zealand, indicates that expenditure limits

do not reduce and may even enhance the competitiveness of

elections.

Election data at the constituency level, and a comparison

of the specific campaign finance regulations in eight common

law democracies for the period between 1997 and 2005,

show that countries with limits on expenditures (Canada,

the United Kingdom, New Zealand, and Malta) had more

competition than those that lacked such limits (United States,

Jamaica, Ireland, and Australia). We define “competition” in

> See Canada Elections Act, S.C. 2000, c. 9, § 441 (Canada), available at

<http://www.elections.ca/loi/ref/act.pdf>; Political Parties, Elections, and

Referendums Act, 2000, ch. 41, §§ 72-95, Sch. 9 (UK), available at

<http://www.opsi.gov.uk/acts/acts2000/20000041.htm>; Electoral Act,

1993, §§ 213, 214B (N.Z.), available at <http://rangi.knowledge-

basket.co.nz/gpacts/reprint/text/2005/an/031.html>; Malta: Chapter 102,

The Electoral (Polling) Ordinance, available at <http://docs justice. gov.mt/

€ Vv / >, The Commonwealth

Electoral 7m, 1918, 2004 — — at 7

ED31621 E922DCA256F7 100456776/Sfile/CwlthElectoral}918.pdP> The

Representation of the People Act (Jamaica), available at <http://

www .coj.com jmv/legislation/ropahtm>; Electoral Act, 1997 sages

available at <http://www.iri SY1997 Law

Library of Congress, Campaign Financing | in Various Foreign eB

Comparative Summary and Analysis (Document No. 2002-14013) (2002)

(surveying the laws of eighteen countries, including Australia, Canada,

and ~the United Kingdom). Although Ireland limits candidate

terms of four criteria, including incumbent reelection rate and

percent of uncontested races.

The Watergate scandal inspired those democracies most

similar to the United States to cap both spending and

contributions for parties and candidates. These countries

concluded that both sets of limits in place allowed a greater

ability to influence the impact of money on campaigns.

Though there is no simple way to eliminate this influence,

the United States has found it more difficult to reduce the

influence of money in its elections because it has been able to

restrict only one side of the equation — contributions —

rather than expenditures. Experience from abroad suggests

that the best way to regulate campaign finance is to address

both expenditures and contributions.

The specific expenditure limits in Canada, New Zealand,

and the United Kingdom are:*

~

expenditures, it does not limit party expenditures on elections. See the

International Institute for Democracy and Electoral Assistance handbook

(2001), “Funding of Political Parties and Election Campaigns,” (“IDEA”)

at 206, available at <http://www.idea.int/publications/funding _parties/

upload/full.pdf>. Although Jamaica limits candidate expenditures, there

are no formal limits on party expenditures and candidate limits are

not enforced. See Steven Griner and Daniel Zovatto (2005), “From

Grassroots to the Airwaves: Paying for Political Parties and Campaigns in

the Caribbean,” Organization of American States, available at <http://

www.ddpa.oas.org/publications/2005/fiapp/grassroots_airwaves/doc/pbl_

grassroots 002 05 cng.pdf>. For an in-depth discussion of Australian

campaign finance laws, and how they compare to laws in the United

Kingdom and in Canada, see Talina Drabsch (2005), “Election Finance

Law: An Upea,” Research Service os available at <http://

136c901ca2570bd0003cb5c/SFILE/Election%20Finalpaper pdf>.

* Data on campaign finance regulation is found in the IDEA. See n3,

supra. A summary of expenditure limits on political parties is at 205-208.

The average size of a constituency in these countries (population divided

by the number of legislative districts or congressional seats) is 38,696 for

New Zealand, 70,811 for Canada, and 68,735 for the UK. See US.

(a) Canada: the expenditure limit for parties fielding

candidates in all 308 electoral districts in the 2004

election was $15,311,868; candidate expenditure

for that election was limited at about $52,412 to

$84, 849 depending on the population of the

district.°

(b) New Zealand: the expenditure limit in the 2005

election for parties fielding candidates in all 69

electoral districts was $2,336,000; the limit for

candidates was $13,750.°

(c) United Kingdom: the expenditure limit in the 2005

election for parties fielding candidates in all 646

electoral districts was approximately $35,000,000;

the limit for candidates was approximately

$14,000.’

Of the eight common law democracies, each country that

regulates expenditures (Canada, the United Kingdom, New

Zealand, and Malta) also places limits on contributions, while

Ireland and the United States limit only contributions, and

Census Bureau, “International Data Base,” available at <http://

www.census.gov/ipc/www/idbnew.html>; CIA, “The World Factbook,”

available at <http://www.cia .gov/cia/pu blications/factbook/>. Of course

parties and party funding play a more prominent role in parliamentary

democracies and thus parties strategically use party funds in constituency

races.

* See Elections Canada, “Election Handbook for Candidates,” available at

asp’ x&dir

=can/EC2019081 an xtonly=false>. All figures are transformed

into U.S. dollars at he most current rate of exchange.

° Elections New Zealand, “Election Expenses and Returns,” available at

<http://www.elections.org.nz/elections/e5_party_return_expenses.huml>.

” See Richard Kelley, “Election Expenses Limit,” <http:/

www.parliament.uk/commons/lib/research/notes/snpc-03413.pdf>.

Australia and Jamaica regulate neither.® The different ways

in which democracies most similar to the United States

regulate campaign spending have important implications for

electoral competition in these countries.

There are four widely used measures of electoral

. competitiveness: average size of electoral majority, percent

of competitive races, incumbent reelection rate, and percent

of uncontested races. Significantly, these show that US.

legislative elections are much less competitive than elections

held in other common law democracies.

An electoral majority is the difference between the

winning candidate’s percent of the vote and the vote percent

of the next largest vote-getter. The smaller this difference is

for any single race and for all races in an election, the more

competitive the election is overall. Averaging each candi-

date’s winning majority for each constituency, therefore,

provides a measure of the overall competitiveness of an

election.

FIGURE | reveals that 4 of the 5 countries (Canada, Malta,

New Zealand, and tiie United Kingdom) with the most com-

petitive elections (smallest average majorities of legislative

race winners) place ceilings on candidate and party spending,

and that all three of the countries with the least competitive

elections (Ireland, Jamaica, and the United States) do not

regulate overall spending. Moreover, countries with limits on

expenditures average winning majorities of 20.71% across all

of their elections as compared with average majorities of

25.45% in countries that do not regulate campaign spending.

In other words, among this group, candidates in an average

legislative race in countries without limits win elections by

* Again, Jamaica (at least on paper, if not in practice), and Ireland

regulate candidate, but not party expenditures. See n.3, supra.

greater majorities with less competition than in countries

with spending limits.

Whatever the cause of greater competition, one cannot

make the argument that capping expenditures automatically

reduces competition because these cases suggest the

opposite.

Figure 1: Electoral Competition in Eight Common Law

Democracies, 1997-2005'

Average % Difference

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Country

‘Average % Difference is a measure of the size of the electoral majority of

each winning legislative candidate over her nearest competitor. To calculate the

statistic. each winner's percent of the vote is subtracted from the vote percent of

the next largest vote-getter. These percent differences are then averaged. Smaller

winning majorities mean more competition. U.S. elections include both House

and Senate races.

Source: Australian Electoral Commission, <http://www.aec.gov.au/>;

Elections Canada, <http://www.elections.ca/: Elections Ireland, <http://

www.environ.ie/>; Jamaica Elections, <http://lanic.utexas.edu/la/cb/jamaica/>:

Malta Elections, <http://www.maltadata.com/>: Elections New Zealand,

<htip://www.elections.org.nz/>; The Electoral Commission, U.K.. <http://

www.electoralcommission.org.uk/>: Office of the Clerk, U.S. House of

Representatives,<http://clerk.house.gov/>.

Another useful indicator of competitiveness is the

percentage of all legislative races decided by fewer than 10%

of the voters. FIGURE 2 below reports this measure of com-

petitiveness across elections held by Canada, New Zealand,

the United Kingdom, and the United States between 1997

and 2005.” The percentage of competitive races in countries

with expenditure regulations (Canada, New Zealand, and the

United Kingdom) appears nof to have changed very much

and the little that was changed was in a positive direction

(i.e., more offices were decided by close elections) between

2000 and 2005. Further, it is interesting to note that the com-

petitiveness of elections in the United Kingdom increased

slightly in 2005 just after the adoption of spending ceilings.

By comparison, elections in this country are quite uncom-

petitive and over time have become even less so. For instance,

in Canada’s 2004 election, 36.5% of all constituency races

were competitive; in the same year in the United States, only

7.0% were competitive.

Figure 2: Electoral Competition in Four Common. Law

Democracies, 1997-2005!

1996 1998 2000 2002 2004 2006

Bection Year

—o—Canada ~ United Kingiom —e— United nited Simes —¥— New Zealand |

. qusmensnnecerten ieeasame pe Aires tem moms

” Australia, Ireland, Jamaica, and Malta are excluded from further

analysis because of the sporadic availability of district-level election data

for the period.

10

‘% Competitive is the percentage of the legislative races (excluding

uncontested races) in an election for which the winner is determined by a majority

of less than 10% of the votes. U.S. elections include both House and Senate races.

Source: Elections Canada. <http://www.elections.ca/; Elections New Zealand,

<http://www.clections.org.nz/>; The Electoral Commission, U.K., <http://

www.electoralcommission.org.uk/>; Office of the Clerk, US. House of

Representatives, <http://clerk.house.gov/>.

Even these two measures of electoral competition (average

percent difference and percent competitiveness) do not fully

capture the truly uncompetitive character of legislative races

in the U.S. Two additional measures (incumbent reelection

rate and percent of uncontested race) better illustrate the lack

of competitiveness in this country.

The rate of incumbent reelection in Congress (see Figure 3

below) exceeds that found in all the other common law

democracies with expenditure limits by substantial margins.

By comparison, incumbents are reelected in the other common

law democracies on average 83.1% of the time. Only the

United Kingdom comes close to sharing the sort of in-

cumbency election rates seen in the United States (around

99.0%), as in 200! when 96.7% of British incumbents were

returned to parliament. Yet not only are incumbents in the

United States reelected far more often than in other countries,

but a significant percentage of them go unchallenged in every

election cycle. Over the last four legislative elections in the

United States, 17.6% of incumbents went unopposed. Yet in

the three most recent elections organized by each of tiie other

three common law democracies, every constituency race was

contested by multiple candidates. If in the United States

the percent of a winner’s majority in an uncontested race is

understood to be 100.0%, then the average majority over

the four most recent legislative elections would be 43.0%.

Elections in the United States are far less competitive than in

countries with spending limits.

ll

Figure 3: Incumbent Reelection in Four Common Law

Democracies, 1997-2005

100 eee een — =

! |

Pe

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k 80 P ~\ |

« !

r ra a an

70 : |

; !

|

|

ng i |

1996 1998 2000 2002 2004 2006)

Election Year |

* ~e— Canada United Kingdom —a— United States —s—New Zealand)

% Reelected is the percent of incumbents returned to office that sought

reelection. U.S. elections include both House and Senate races.

Source: Elections Canada, <http://www.elections.ca/; Elections New Zealand,

<http://www.elections.org.nz/>; The Electoral Commission, U.K. <http://

www.electoralcommission.org.uk/>; Office of the Clerk, U.S. House of

Representatives, <http://clerk.house.gov/>.

The United States lags behind common law democracies

in conducting elections that are contested and highly com-

petitive (see Table | below). Whatever may account for this

difference in the levels of competitiveness between the

United States and the other common law democracies, it

is clear that expenditure limits do not reduce competition.

Indeed, elections in these three countries that restrict expen-

ditures are more competitive than those in the United States,

which does not.

12

Table 1: Competitiveness of Elections in Common Law

Democracies, 1997-2005!

Country | Competition | Competition Competition | Uncontested | Incumbent

Election Index (a) Index (b) Index (c) Elections Reelection

Year avg. % diff. | % races <20% | Yraces>% | %of total % reelected

Canada 21.71 53.3 27.8 0.0 86.1

1997 20.83 56.3 24.7 0.0 83.7

2000 23.84 47.7 31.3 0.0 91.0

2004 20.45 56.0 27.4 0.0 83.5

United

Kingdom 22.13 51.0 27.0 0.0 86.1

1997 24.21 49.0 34.0 0.0 72.3

2001 22.85 49.0 28.0 0.0 96.7

2005 19.34 $5.0 19.0 0.0 89.3

United

States’ 30.76 28.5 51.0 17.6 98.7

1998 29.60 36.1 44.9 21.8 98.5

2000 34.15 29.1 52.6 15.2 98.5

2002 31.24 25.0 54.7 18.6 99.0

2004 31.05 23.7 51.9 14.9 98.8

New . .

Zealand 19.70 $2.6 18.5 0.0 77.1

1998 20.85 478 19.4 0.0 69.6

2002 21.60 50.7 27.5 0.0 87.0

2005 16.65 59.4 8.7 0.0 746

‘Data covers 3 or 4 legislative elections from each country.

“Includes both House and Senate races.

Source: Elections Canada, available at <http://www.clections.ca/; Elections

New Zealand, available at <http://www.elections.org.nz/>; The Electoral

Commission, U.K., available at <http://www.electoralcommission.org.uk/>:

Office of the Clerk, U.S. House of Representatives, available at <http://

clerk.house.gov/>.

B. There is No Evidence that Expenditure Limits

impair Freedom of Speech or the Press

The evidence from democracies abroad suggests that

expenditure limits do not weakea civil and political rights or

free speech and the press. Democracies that limit campaign

spending safeguard their citizens’ rights, liberties, and

13

freedoms, and for every year between 1995 and 2004,

countries with expenditure limits on average earned higher

“freedom scores” (according to Freedom House) than

countries without the ceilings.'° In fact, no democracy ex-

perienced a decline in its score for protecting free expression

after introducing limits on expenditures, and some have

actually seen marked improvement. Thus, it is not surprising

that no successful challenge has yet been lodged against

party and candidate spending provisions in any other demo-

cracy, nor has any court of highest appeal determined that

limits on party or candidate expenditures reduces free speech

or association. '!

Freedom House (FH) annually judges the status of free-

dom for each country in the world, by assessing the degree

to which a country fosters the norms and institutions that

are fundamental to a free society. A “freedom score” is con-

structed accordingly to how well a country performs along

two dimensions, political rights and civil liberties, and is

based on a scale of 1 to 7 (most to least free). Countries with

a score of | organize free and fair elections with multiparty

competition, encourage free speech and press, protect mi-

nority rights, and support an equitable system of rule of law.

The FH score is widely employed in political science

research as one of the most authoritative, comprehensive,

reliable, valid, and precise measures of freedom and demo-

cracy available. Amici base the subsequent analysis on a

" Freedom House (FH) is a non-governmental organization that “supports

the expansion of freedom in the world.” See <www.freedomhouse org>.

'' Our thorough search for all available dates for Commonwealth and

Foreign Nations (including Australia, Canada, New Zealand, and the

United Kingdom) produced no cases in which a higher court held that

campaign expenditure limits are per se unconstitutional. The closest case

is Harper v. Canada, A.G. {2004} 1 S.C.R. 827, in which the Canadian

Supreme Court upheld the constitutionality of restrictions on “third-

party” spending.

14

sample of 84 “free” democracies by cross-referencing the FH

“Freedom in the World” data with the campaign finance data

compiled by IDEA, a Stockholm-based, non-governmental

organization dedicated to democracy promotion. '”

Levels of freedom in democracies with spending limits

are high and improving. From 1995 to 2004, countries that

limited campaign expenditures averaged political mghts and

civil liberties scores of 1.25 and 1.86, respectively, for a sum

score of 3.11. Lower FH scores indicate greater fréedom.

(See Figure 4 below.) Democracies that adopted limits on

expenditures also became freer over the period, witnessing

a 9.7 percent increase in freedom (from a score of 3.07 to

2.77). If expenditure limits adversely affect free association

and expression as some claim, then this trend should have

been reversed or the scores should have reflected lower than

average levels of freedom.

Figure 4 also shows that countries with limits on spending

consistently garnered better freedom scores than those

without limits for each year and for the period as a whole.

Democracies without expenditure limits have average scores

in political rights and civil liberties of 1.52 and 1.99 for the

period, with a sum score of 3.51. Thus, on average, according

to the most authoritative, comprehensive, reliable, valid, and

precise measure of freedom used by political scientists, —

countries with campaign ceilings were actually 11.4 percent

freer. The data suggest that campaign spending limits do not

impair free speech and association.

In addition, no single democracy that regulates campaign

spending witnessed a diminution, and some even experienced

improvement in freedom. Indeed, the gains in freedom

observed in Figure 4 above may be largely explained by

examining four new democracies and their experience with

2 IDEA (2001), “Funding of Political Parties and Election Campaigns.”

15

spending limits. As Figure 5 illustrates, the protection of

political rights and freedoms, including free speech and the

press, improved in Brazil, Mexico, Taiwan, and Thailand

either in the year expenditure limits were introduced or in the

year of an election where the limits were first enforced. The

United Kingdom also improved in 2001, the year in which

the country overhauled its campaign finance system and

introduced ceilings on spending. Though these gains are

doubtless the result of a complex set of events that have

reshaped democracies throughout the world, it is nonetheless

revealing that improvements and not declines occurred in

these countries in the very years that spending limits were

adopted. j

Figure 4: Freedom in Democracies with Expenditure

Limits, 1995-2004!

=

Freer

1994 1996 (998 2000 2002 2004 2006 |

Year '

*- |

—oe— Expenditure Limits —a— No Expenditure Limits - :

. . —— - —,

ss

‘Freedom Score averages the countries’ scores for political rights and civil

liberties each and then sums the averages together into a composite score in order

to minimize the differences between two populations.

Source: Freedom House (2005). “Freedom in the World,” available at

<www .freedomhouse.org>.

16

Figure 5: Levels of Freedom After Adopting Expenditure

Limits, 1995-2004!

eS _

(19974) CAN 2001 UK

‘Freedom Score takes the average of a country’s political rights and civil

liberties score.

Source: Freedom House (2005). “Freedom in the World.” available at

<www. freedomhouse.org>.

Another revealing finding is that among all of the demo-

cracies abroad with a tradition of judicial review, no court of

highest appeal has come to the conclusion that spending

limits are a per se violation of rights of free speech, asso-

ciation, or press freedom. Canada’s campaign finarice juris-

prudence is of particular interest. Canada adopted spending

limits for parties and candidates with the Elections Expenses

Act of 1974, and subsequently extended the limits for

nomination races in 2003. See Canada Elections Act, S.C.

2000, c. 9,'° amended by S.C. 2003, c.19. Yet no direct

constitutivnal challenge to the expenditure limits themselves

has ever succeeded in any Canadian court of appeal.

* Available at <http://www.elections.ca/loi/ref/act.pdf>.

17

In 1974 alongside the party and candidate spending

ceilings, the Canadian parliament also prohibited third-party

groups from spending money to directly support or oppose

candidates or parties, though the government did not regulate

money spent to promote political issues. This iestriction on

third-party spending sparked a series of legal challenges

spanning two decades, which were finally decided in Harper

v. Canada, A.G. [2004] 1 S.C.R. 827. In Harper, the Supreme

Court of Canada upheld the constitutionality of regulating

interest-group spending, which at the time was capped at

$3,000 per candidate and $150,000 for all election-related

spending on candidates and parties. The Court held that

limits in general did not violate citizens’ freedom of ex-

pression, right to vote, or freedom to associate. '“

The fact that no challenge has yet been lodged against

party and candidate spending provisions reveals a remarkable

consensus on their constitutionality among the countries’

legal and political leadership. This consensus appears to be

shared among the leaders of the other democracies abroad.

Ironically, even though the Watergate scandal and the

Federal Election Campaign Act, Pub. L. No. 93-443, 88 Stat.

1263 (1974) (codified in scattered sections of 2, 15, 18, 26,

47 U.S.C.), motivated many democracies to adopt their own

spending limits, no higher court has since followed the

arguments set forth in Buckley in striking down their

constitutionality.

* Harper v. Canada, A.G. {2004] 1 S.C.R.-827, available at

<http://www.lexum.umontreal.ca/csc-scc/en/pub/2004/vol1/html/

2004scrl_0827.html>.

18 —

Il. Politically Advanced and Economically Developed

Democracies are More — not less — Likely to Limit

Expenditures and Contributions

Countries with the finest democratic traditions, that are.

most similar to the United States in institution and history,

like Canada, the United Kingdom, and New Zealand, and that

are highly developed, are precisely the ones that typically

regulate expenditures and contributions. Of the 84 “free”

democracies, 65 or 77.4% have campaign finance regula-

tions.'? Moreover, 53.8% or 14 of 26 advanced democracies

limit contributions, expenditures, or both.'®

In comparison, only 32.8 percent (19 out of 58) of new

democracies regulate contributions, expenditures, or both.

As these democracies become more consolidated, they are

more likely to adopt limits on campaign expenditures and

contributions.

Countries with expenditure and contribution limits are also

more advanced economically. The average income (GDP/

capita) of a democracy that limits expenditures, contributions,

or both is $17,705 as compared with an income of $13,084

for a democracy without the limits. This confirms other

evidence — that economic as well as political development

increase the chances that a democracy will adopt expenditure

'S Regulations here include expenditure and contribution limits and

direct and indirect forms of public campaign finance. If disclosure and

other provisions are considered, the percentage of countnes with some

form of campaign finance regulation increases. IDEA (2001), “Funding

of Political Parties and Election Campaigns,” available at <http://

www.idea.int/publications/funding_parties/upload/full.pdf>.

'© Advanced democracies are those that were established before 1970.

New democracies are those that were established after 1970. Some of the

other democracies that limit expenditures include Belgium, France, Israel,

Italy, Spain, and Portugal.

19

and contribution ceilings to combat the rising costs asso-

ciated with running a campaign."’

Conclusion

Buckley v. Valeo appeared to equate campaign expendi-

tures with free speech, implying that limiting the first would

also limit the second. Because of that ruling, the United

States does not have the experience to test the validity of the

equation, but there are many experiences abroad that allow us

to draw some conclusions. In this bref, we have surveyed

those cases, focusing particular attention upon those countries

with political traditions and institutions most like those of

the United States. We have found no evidence that limits on

campaign expenditures impair the freedom of speech. Indeed,

the evidence points in the opposite direction: those countries

that have restricted campaign spending have higher levels of

political freedom, and those that have adopted such restric-

tions have improved their levels of freedom. If the United

States limits campaign spending, there would be no guarantees

that freedom and competition would be enhanced, but fears

of a loss of freedom and competition are clearly unwarranted.

Respectfully submitted,

ILANN M. MAAZEL

Counsel of Record

EMERY CELLI BRINCKERHOFF

& ABADY LLP

545 Madison Avenue, Third Floor

New York, New York 10022

(212) 763-5000

February 7, 2006 Counsel for Amici Curiae

" IDEA (2001), “Funding of Political Parties and Election Campaigns,”

pp 173-176; Herbert Alexander (1994), Comparative Political Finance

Among the Democracies, Boulder: Westview Press, pp 1-11.