Amicus Curiae Brief — Randall v. Sorrell

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Nos. 04-1528 FEB 8 ~ 2006

(Consolidated with Nos. 04-1530 and THE CLERK

IN THE

Supreme Court of the Anited States

NEIL RANDALL, et al..,

Petitioners,

Vv.

WILLIAM H. SORRELL, ef ai.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

-_ - So

BRIEF OF THE DEMOCRATIC NATIONAL

COMMITTEE AS AMICUS CURIAE

SUPPORTING RESPONDENTS

~——_—

AMANDA S. LAFORGE JOSEPH E. SANDLER

DEMOCRATIC NATIONAL COMMITTEE Counsel of Record

430 S. Capitol Street, S.E. NEIL P. REIFF

Washington, D.C. 20003 STEPHEN E. HERSHKOWITZ

(202) 863-8000 SANDLER, REIFF & YOUNG

50 E Street, S.E. # 300

Washington, D.C. 20003

(202) 479-1111

February 8, 2006 Counsel for Amicus Curiae

WILSON-EPES PRINTING Co., INC. - (202) 789-0096 - WASHINGTON, D. C. 20001

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TABLE OF CONTENTS

TABLES GH ALT TRI T UiREe cccccscsccsecscccessscessvsscssnccoscssen

tt Fo |; Sea ee

SUMMARY OF ARGUMENT.............cssssssssssseserssesees

II.

BUCKLEY DOES NOT FORECLOSE

CANDIDATE EXPENDITURE LIMITA-

TIONS THAT ARE PART OF AN

INTEGRATED SCHEME NARROWLY

TAILORED TO SERVE COMPELLING

GOVERNMENTAL INTERESTG.............000008+

ACT 64’°S EXPENDITURE LIMITS

SERVE COMPELLING GOVERNMENTAL

A. Restoring Citizen Confidence in_ the

Democratic System Is a Compelling State

TR vcccsrisicasithetevenicnnsnetatisattininanctnianinainheitinigen

B. Enhancing the Relative Role of Political

Parties Is a Compelling State Interest..........

C. Deference Should Be Accorded to the

Decision of Vermont Legislators to Limit

Their Own Spending Relative to That of

Cer POR CaE ACBGIS .....<cccccceseccccccsrssesconsss

CRIED worussyssensonsmusssennsssennmemenstennsmansinemntnniies

(i)

TABLE OF AUTHORITIES

CASES Page

Adarand Constructors, Inc. v. Pena, 515 U.S.

TTITITITTTTE schithsetieentanacienesendcinaaelintmeniatdiatibeasiitmenans oad 5

Buckley v. Valeo, 424 U.S. 1 (1976).......ccccce+eeeeeees passim

Burson v. Freeman, 504 U.S. 191 (1992).............. 5

California Democratic Party v. Jones, 530 U.S.

Pe i itinitineniiinistciiintiiabinntindisanetaanens Dediiaibianiiiia 10-11

Federal Election Comm'n v. Beaumont, 539 U.S.

ST CUTE icistinianentistiiniasiciitaiiateenstiidebininiisaldiaaedaiduabines 13

Fullilove v. Klutznick, 448 U.S. 448 (1980).......... 5

Kruse v. City of Cincinnati, 142 F.3d 907 (6th

Cir.), cert. denied, 525 U.S. 1001 (1998).......... 7

Landell v. Sorrell, 382 F.3d 91 (2d Cir. 2004)...... passim

Landell v. Sorrell, 118 F. Supp. 2d 459 (D. Vt.

STITT ictasiieseceiinaiaienticiiiatammalittderaciihaiuaiaiitalaiaiadiine 7, 8, 10

McConnell v. Federal Election Comm'n, 540

FR | RSE re a eon one 3,13

Nixon v. Shrink Missouri Government PAC, 528

Sc CU CRUE cciinisinemeshlichaitepeiiiaeiasiailiethattain 12-13

Perry Educational Ass'n v. Perry Local Edu-

cators’ Ass'n, 460 U.S. 37 (1983) ...........ccceeeeees 5

STATUTES

Be is ie ED crctccesntnniastnnetennniictainieiapaiies 4

Be as Se I iiicciiniticihinisicihiinsiinieatiaiiindibaincndeindie 13

Be ira: Se TI ies enstisincutaitemcinpadamitiinaeaaiiinmantin 13

Vt. Stat. Ann. Tit. 17 § 2805a(a)(2005)................. 5

Vt. Stat. Ann. Tit. 17 § 280Sa(c)(2005)................. 14

Vt. Stat. Ann. Tit. 17 § 2805(a)-(b)(2005) ............ )

8 MF eee 5

Ve. Stat. Ann. Tit. 17 § 2BOWC) ...cccccorcrcsscrscccsccesees 9,10

Vt. Stat. Ann. Tit. 17 § 2809(d)...........-csseressersees 9, 10

iii

TABLE OF AUTHORITIES—Continued

OTHER AUTHORITIES

Amanda G. Altman, Note: Party Poopers: The

Supreme Court Overlooks the Party in Federal

Election Commission v Colorado Republican

Federal Campaign Committee, 46 ST. LOUIS

esis RINE COIIIIIEE cersipravensicenpeninnentenepenmnenmeseteesnens

Clarisa Long, Note: Shouting Down the Voice of

the People: Political Parties, Powerful PACs,

and Concerns About Corruption, 46 STAN, L.

Bes URED Ge ee rincicccccsnescnseennssnniinansenenitenmeneses

Lloyd Cutler, Party Government Under the

American Constitution, 134 U. PA. L. REv. 25

Geta i ieensprennicnensosnvaseriasmmetneninsnenpeseunensempiceneeees

Nancy L. Rosenblum, Symposium: Law and

Political Parties: Political Parties as Mem-

bership Groups, 100 COLUM. L. REV. 813, 814

Nathaniel Persily, Toward a Functional Defense

of Political Party Autonomy, 76 N.Y.U. L.

FG. Cae Gee Perceiicinneennesenmmusenernsceanssscretanenens

RULES

Administrative Rule 2000-1, “Vermont Cam-

paign Finance Law Regulation of Related

gh EER HERTS Er. VE

Page

11,12

IN THE

Supreme Court of the Anited States

Nos. 04-1528

(Consolidated with Nos. 04-1530 and 04-1697)

NEIL RANDALL, et al.,

Petitioners,

Vv.

WILLIAM H. SORRELL, et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

BRIEF OF THE DEMOCRATIC NATIONAL

COMMITTEE AS AMICUS CURIAE

SUPPORTING RESPONDENTS

INTEREST OF AMICUS '

The Democratic National Committee (“DNC”) is an un-

incorporated association that is the governing body of the

Democratic Party of the United States and is the “national

committee” of the Democratic Party within the meaning of

the Federal Election Campaign Act of 1971 as amended. 2

‘ Pursuant to Sup. Ct. R. 37.6, amicus states that no counsel for any

party has authored this brief in whole or in part, and no person or entity

other than amicus made a financial contribution to the preparation or

submission of this brief.

U.S.C. § 431(14).. The DNC actively supports Democratic

candidates in federal, state and local elections throughout the

nation and is subject to federal and state campaign finance

laws including, in the case of Vermont, Vermont’s Act 64.

The current national chair of the DNC is Howard Dean, M.D.,

who served as Governor of Vermont from 1991 to 2003 and,

as the State’s Governor, signed Act 64 into law in 1997.

Pursuant to Sup. Ct. R. 37.3(a), written consent of all the

parties to the filing of this brief has been lodged with the

Clerk. .

SUMMARY OF ARGUMENT

1. Buckley v. Valeo, 424 U.S. 1 (1976) did not foreclose

the possibility that campaign expenditure limits could survive

the “exacting scrutiny” test, if the government could show

that such limits serve compelling governmental interests, not

considered in Buckley, and are narrowly tailored to serve

those interests.

2. Vermont’s Act 64 is a unique, integrated scheme that

sets limits on both political contributions and candidate

expenditures. The candidate expenditure limits serve two

fundamental and related compelling interests, neither of

which was foreclosed by Buckley: (i) restoring integrity and

faith in the democratic process in Vermont by effectively

reducing the significance of private donations as a means of

achieving access to and influence over elected officeholders;

and (ii) promoting and enhancing access to and participation

in the political process by all citizens, regardless of financial

means, both as individuals and in association with each other

by, inter alia, enhancing the role of political parties.

3. The second of these interests has an especially signifi-

cant dimension with respect to the role of political parties.

The role of parties has declined since Buckley as individual

candidates have become entrepreneurs, able to raise and

spend unlimited sums of money, making them increasingly

less dependent on party committees. As a result, the histori-

cal beneficial role of parties in achieving accountability,

consensus and more effective government, has been dimin-

ished. Act 64 enhances the role of political parties by leaving

them free to expend funds to support the party’s message

generally and to spend independently in support of their

candidates. By restoring this historical balance, parties are in

a better position to perform their critical functions of unifying

factions in the electorate, enhancing the voice of all citizens

in the political process and connecting citizens to their gov-

ernment. Restoring the role of parties in this way is itself a

particularly compelling governmental interest.

4. The Court has afforded legislative bodies deference

when they make decisions protecting the political process.

Such deference is especially warranted in this case. By con-

trast with the campaign finance regime, for example, con-

sidered in McConnell v. Federal Election Comm'n, 540 U.S.

93 (2003), in enacting Act 64 elected officials have not

restricted the spending of other participants in the political

process, but rather have decided to restrict their own spending

in order to enhance participation in and access to the political

process by their constituents, thereby restoring the faith of

ordinary citizens in their democracy. Nor have incumbent

legislators used the law to try to protect themselves against

challengers. Act 64 likely enhances the ability of challengers

because candidates’ own spending is reduced significantly;

the expenditure limits are actually set higher for challengers;

and challengers’ supporters, including in particular political

parties, have the right to spend unlimited sums independently

to promote those challengers.

I. BUCKLEY DOES NOT FORECLOSE CANDI-

DATE EXPENDITURE LIMITATIONS THAT

ARE PART OF AN INTEGRATED SCHEME

NARROWLY TAILORED TO SERVE COMPEL-

LING GOVERNMENTAL INTERESTS

In Buckley v. Valeo, 424 U.S. 1 (1976), this Court held that

“although . . . contribution and expenditure limitations both

implicate fundamental First Amendment interests, . . . expen-

diture ceilings impose significantly more severe restrictions

on protected freedoms of political expression and association

than do . . . limitations on financial contributions.” /d. at 23.

Therefore, the Court ruled, the constitutionality of an expen-

diture limitation “turns on whether the governmental interests

advanced in its support satisfy the exacting scrutiny applica-

ble to limitations on core First Amendment rights of political

expression.” /d. at 44-45. The Court proceeded to hold that

the limitation imposed on candidate expenditures by the 1974

Amendments to the Federal Election Campaign Act of 1971,

18 U.S.C. § 608(c)( 1974), was unconstitutional. Buckley, 424

U.S. at 54-58.

The lower court in this case correctly concluded, however,

that “Buckley does not permanently foreclose any considera-

tion of campaign expenditure limitations.” Landell v. Sorrell,

382 F.3d 91, 108 (2d Cir. 2004). In Buckley, the Govern-

ment asserted, and the Court considered, only three interests:

(1) “alleviating the corrupting influence of large contribu-

tions;” 424 U.S. at 55; (2) “equalizing the financial resources

of candidates competing for federal office,” id. at 56; and

(3) “reducing the allegedly skyrocketing costs of political

campaigns ....” /d. at 57. The Court did not suggest that no

government interest that could ever be asserted in a future

case could ever be sufficiently compelling to meet the “exact-

ing scrutiny” or “strict scrutiny” test. To the contrary, the

Court simply concluded that, “No governmental interest that

has been suggested is sufficient to justify the restriction on

the quantity of political expression imposed by [the] cam-

paign expenditure limitations.” /d. at 55 (emphasis added).

The “exacting scrutiny” test prescribed by Buckley, for

evaluating the constitutionality of expenditure limitations, re-

quires that the government “must show that the ‘regulation is

necessary to serve a compelling state interest and that it is

narrowly drawn to achieve that end.”” Burson v. Freeman,

504 U.S. 191, 198 (1992), quoting Perry Educational Ass'n v.

Perry Local Educators’ Ass'n, 460 U.S. 37, 45 (1983). To be

sure, it is difficult to meet that standard, but it is not impos-

sible. “{W]Je wish to dispel the notion that strict scrutiny 1s

‘strict in theory, but fatal in fact.” Adarand Constructors,

Inc. v. Pena, 515 U.S. 200, 237 (1995), quoting Fullilove v.

Klutznick, 448 U.S. 448, 519 (1980)(Marshall, J., concur-

ring). Thus, the Court of Appeals correctly held that “Act

64’s expenditure limitations rise or fall on whether they have

been narrowly tailored to a compelling governmental inter-

est.” Landell, supra, 382 F.3d at 110.

Il. ACT 64°S EXPENDITURE LIMITS SERVE

COMPELLING GOVERNMENTAL INTERESTS

Vermont’s Act 64 is a unique, integrated scheme that sets

limits on both political contributions and expenditures by

candidates. The Act limits candidate expenditures in any

given two-year election cycle to $ 300,000 for governor;

$ 100,000 for lieutenant governor; $ 45,000 for secretary of

State, attorney general, treasurer, and auditor; $ 4,000 for state

senator, plus $ 2,500 for each additional seat in the relevant

jurisdiction; $2,000 for state representative in a single-

member district; and $ 3,000 for state representative in two-

member districts. Vt. Stat. Ann. Tit. 17 § 2805a(a)(2005).

These limits are adjusted for inflation every two years. Id. at

280Sa(e). In the court below, the State of Vermont asserted

that at least five interests are served by the candidate expen-

diture limits: “(1) ‘avoiding the reality and appearance of cor-

ruption . . .’; (2) ‘assuring that candidates and officeholders

will spend less time fund-raising and more time interacting

with voters and performing official duties;’” (3) promoting

‘electoral competition and protecting equal access to political

participation;’ (4) ‘bolstering voter interest and engagement

in elective politics;’ and (5) ‘enhancing the quality of political

debate and voters’ understanding of the issues.’” Landell,

382 F.3d at 115. Although the Court of Appeals analyzed

only the first two of these (anti-corruption and time-saving),

the third and fourth interests—protecting access to ‘political

participation and bolstering voter interest—are fundamental

to our democracy and are broader and more compelling than

the Court of Appeals may have assumed.

A. Restoring Citizen Confidence in the Democ-

ratic System Is a Compelling State Interest

It is no surprise that, in reacting to the current lobbying and

influence-peddling scandal in Washington, D.C., most voters

believe that “there is widespread corruption in Washington”

(58% “widespread” vs. 38% “limited”, ABC News/Washing-

ton Post poll, Jan. 5-8, 2006) and that “most elected officials

in Washington make policy decisions or take actions as a

direct result of money they receive from major campaign

contributors.” (65% yes/21% no, FOX News/Opinion Dy-

namics, Jan. 10-11, 2006). Voters have expressed the view,

in the past, that there should be a “fixed amount of money for ~

election campaigns” and that “all private contributions from

other sources should be prohibited.” (65% good idea/27%

poor idea, Gallup Poll, Oct. 1996).

Similarly, in enacting Act 64, the Vermont Legislature

found that “public involvement and confidence in the elec-

toral process have decreased as campaign expenditures have

increased.” Act 64, Finding (a)(4). The District Court in this

case found that the trial record “overwhelmingly demon-

strated that the Vermont public is suspicious about the effect

of big-money influence over politics and that voter apathy is

on the rise.” Landell v. Sorrell, 118 F. Supp. 2d 459, 468 (D.

Vt. 2000). The District Court pointed to, among other things,

polling finding that 74% of Vermont voters “feel that ordi-

nary voters do not have enough influence over politics and

government in Vermont.” /d. at 469. And the District Court

held that “[s]pending limits are an effective response to

certain compelling governmental interests not addressed in

Buckley,” including “‘[p]reserving faith in our democracy,’”

id. at 482-83, quoting Kruse v. City of Cincinnati, 142 F.3d

907, 920 (6th Cir.), cert. denied, 525 U.S. 1001 (1998). The

District Court concluded that, “Given the wealth of evidence

gathered by the Vermont legislature in the process of evaluat-

ing Act 64, this Court understands why it included spending

limits as part of its comprehensive campaign finance bill.”

Id. at 483.

The Court of Appeals characterized this state interest as

“avoiding corruption and the appearance thereof... .” Landell,

382 F.3d at 115, an interest which the Court in Buckley held

did not, by itself, justify imposition of candidate expenditure

limits. Buckley, 424 U.S. at 55. The Buckley Court found

that the “interest in alleviating the corrupting influence of

large contributions is served by the [law]’s contribution limi-

tations and disclosure provisions rather than by . . . campaign

expenditure ceilings.” /d. Notwithstanding the Court of

Appeals’ characterization of Vermont’s interest as being

“anti-corruption” and “safeguarding its political process from

such contributor dominance,” Landell, 382 F.3d at 118-19,

the real interest at stake here is not only in prevc iting the

reality or appearance of “corruption”’—that is, of undue

influence of contributors purchased through the making of

large contributions. Another, related but separate interest is

in combating the perception that the need to raise and spend

large amounts of private contributions—no matter how

limited each individual contribution may be—naturally and

inherently distorts the democratic process by forcing elected

officials to focus their time, attention, energy and priorities on

those who can afford to make political contributions, at the

expense of everyone else whose interests those elected offi-

cials are also supposed to be representing.

While this situation may not meet the traditional definition

of “corruption,” it has resulted in a loss of faith in the fairness

of the electoral and political processes. This loss of faith is

demonstrated by the kind of survey research considered by

the District Court in this case and by lowered voter turnout

and participation in the political process generally. As the

Court of Appeals stated, the issue is the impact of “contribu-

tor dominance” on “the process for achieving accessibility

and accountability of state officials and candidates. ... The

accessibility and accountability of public officials—and the

public’s faith that Vermont’s government is accessible and

accountable—are fundamental to any democratic system.”

Id, at 118-19. The achievement of such accessibility and

accountability—and of public confidence that they exist—is a

goal directly related to but different in nature than the aim of

“alleviating the corrupting influence of large contributions”

considered in Buckley, 424 U.S. at 55. It is difficult to imag-

ine, however, a more compelling interest than restoring public

faith in our democratic system.

B. Enhancing the Relative Role of Political Parties

Is a Compelling State Interest

In enacting Act 64, the Vermont Legislature found that

“limiting campaign expenditures will . . . encourage the per-

sonal involvement of a large number of citizens in campaigns,

. . . crucial to public confidence and the robust debate of

issues.” Act 64, Finding (a)(8), quoted in Landell, 118 F.

Supp.2d at 468. An important aspect of this governmental

interest, not explored either by the District Court or the Court

of Appeals, is “protecting equal access to political partici-

pation” and “bolstering voter interest and engagement,”

Landell, 382 F.3d at 115, in the sense that, by limiting what

candidates themselves can spend, candidate expenditure

limits make expenditures by groups of ordinary citizens more

significant and thus amplify the voices of the citizenry to

which the candidates are supposed to be responsive. Such

limits actually promote and enhance access to participation in

the political process by ordinary citizens, acting both

individually and in association with each other.

In particular, Act 64 enhances the role and power of politi-

cal parties. To be sure, Act 64 treats political party commit-

tees like other contributors with respect to their ability

to make monetary or in-kind contributions fo candidates: a

political party cannot contribute to a candidate, or make an

expenditure coordinated with a candidate, of more than $200

for state representative, $300 for state senator or county of-

fice and $400 for statewide office. Vt. Stat. Ann. Tit. 17,

§$§ 2805(a)-(b). A political party expenditure that is coordi-

nated with a candidate is deemed to be a “related campaign

expenditure,” which is treated in the same way as a contri-

bution. /d. §§ 2809(c) & (d). However, under the Act, while

candidates are limited in what they can spend, political

parties are not so limited. To the contrary, parties can make

two categories of unlimited expenditures that can signifi-

cantly promote their platforms and help elect their candidates.

First, under Act 64, party committees can freely undertake

spending to promote the party, its views and platform and its

candidates generally, including voter registration, voter turn-

out efforts and generic communications promoting the party

and its positions (“Vote Democrat”) without referencing

specific candidates. The Vermont Secretary of State has

authoritatively interpreted the Act to mean that an expendi-

ture by a political party that substantially benefits more than

six candidates “and facilitates party or political committee

functions, voter turnout, platform promotion or organizational

capacity shall not be presumed to be a related expenditure,”

Administrative Rule 2000-1, “Vermont Campaign Finance

Law Regulation of Related Expenses,” § 3. The result of this

interpretation is that such party expenditures are not treated as

contributions, and are therefore unlimited.

Second, under Act 64 political parties are free to make

unlimited independent expenditures on behalf of specific can-

didates. A party expenditure is treated as a “related campaign

expenditure,” and thus as a contribution subject to the Act’s

limits, only if it is “intentionally facilitated by, solicited by or

approved by the candidate or the candidate’s political com-

mittee.” Vt. Stat. Ann. Tit. 17 § 2809%c). If a party expen-

diture does not meet this definition, it is deemed to be

independent, and not subject to any limit.’

Strengthening the role of parties, as Act 64 does, is in itself

a compelling governmental interest. First, it has been widely

recognized that strong political parties serve a vital role in our

democracy, in particular, in giving voice to ordinary citizens

in the political process and combating the undue influence of

special interests. “Representative democracy in any populous

unit of governance is unimaginable without the ability of

citizens to band together in promoting among the electorate

candidates who espouse their political views. The formation

of national political parties was almost concurrent with the

formation of the Republic itself.” California Democratic

* While section 2809(d) of the Act creates a rebuttable presumption

that a party expenditure that “primarily benefits six or fewer candidates

who are associated with the political party. . . is presumed to be a related

expenditure,” and thus subject to the contribution limits, that presumption

has been interpreted by the Secretary of State to be rebuttable—that is, a

party committee may establish that its expenditure was independent by

presenting “evidence that the elements of the definition” of “related cam-

paign expenditure” were not met. Administrative Rule 2000-1, § 3(d). In

any event, the presumption provision in itself is not critical to achieve-

ment of Act 64’s important purposes and, if necessary, is severable from

the rest of the Act. Vt. Stat. Ann. Tit. | § 215; see Landell, 118 F. Supp.

2d at 492-93.

Party v. Jones, 530 U.S. 567, 574 (2000). “[P]olitical parties

are the voluntary associations principally committed to mak-

ing democracy work.” Nancy L. Rosenblum, Symposium:

Law and Political Parties: Political Parties as Membership

Groups, 100 CoLuM. L. REv. 813, 814 (2000).

Because political parties “are bodies large enough to trans-

late the people’s will into action, they bridge the gap between

the electors and the government, ensuring that the people

have a voice.” Clarisa Long, Note: Shouting Down the Voice

of the People: Political Parties, Powerful PACs, and Con-

cerns About Corruption, 46 STAN. L. REV. 1161, 1175 (1994).

As one commentator has noted:

Parties perform at least four critical functions for Ameri-

can democracy. They promote a competitive electoral

environment (“competitiveness”); they aggregate intcrest

groups and minorities into electoral and policymaking

coalitions (“representation”); they coordinate between

officials in each branch and level of government (“gov-

ernance”); and they sometimes behave like other types

of political organizations that exist mainly to express

members’ policy positions and beliefs (“expression”).

Nathaniel Persily, Toward a Functional Defense of Political

Party Autonomy, 76 N.Y.U. L. REV. 750, 793 (2001). “Par-

ties are a force of unification in the divided American policy

system ... .{T]hey bring people of diverse political views

together; by providing a structure to bring divergent social

and ideological groups together, parties limit the destructive

impact of factionalism.” Amanda G. Altman, Note: Party

Poopers: The Supreme Court Overlooks the Party in Federal

Election Commission v Colorado Republican Federal Cam-

paign Committee, 46 St. Louts L.J. 1001, 1030 (2002).

Second, these functions have been undermined since

Buckley as candidates have increasingly become individual

entrepreneurs, able to raise and spend unlimited sums in their

own right, and less dependent on the parties. “[T]oday, even

partisan candidates build and operate organizations largely

independent of the state and national parties . . . . Candidates

raise their own money. They hire their own contractors ... .”

Rosenblum, supra, 100 Cotum. L. REv. at 814. “Those

candidates who reach Congress are more independent of party

selection, support and discipline today than at any previous

time in our history. . . .They now owe loyalty not to a party

with a reasonably coherent view of the right mix of national

policy, but to a variety of narrowly focused pressure groups

with disparate and conflicting views.” Lloyd Cutler, Party

Government Under the American Constitution, 134 U. PA. L.

REV. 25, 34 (1985). These “declines in party government

and party loyalty . . . are of enormous current importance

....{T]they go far to explain the national disappointment in

the effectiveness of Congress and of the national government

erg = Ys

Act 64 thus helps restore the ability of party committees, at

least in Vermont, to serve the critical functions of unification,

giving voice to the views of voters and achieving better

governance. Enhancing and restoring the role of political

parties in this way should be regarded as an especially com-

pelling governmental interest.

C. Deference Should Be Accorded to the Decision

of Vermont Legislators to Limit Their Own

Spending Relative to That of Other Political

Actors

While Buckley counseled against restricting “the speech of

some elements of our society in order to enhance the relative

voice of others,” Buckley, 424 U.S. at 48-49, “those words

cannot be taken literally. The Constitution often permits re-

strictions on the speech of some ‘n order to prevent a few

from drowning out the many... .” Nixon v. Shrink Missouri

Government PAC, 528 U.S. 377, 402 (2000)(Breyer, J.,

concurring).

More critically, the Buckley language should, as a logical

matter, be given far less weight when, as in this case, law-

makers are restricting their own campaign spending, rather

than that of others. The Court has afforded deference gen-

erally to the determinations of legislators about the need for

laws that regulate campaign finance, underscoring the need to

“show[] proper deference to Congress’ ability to weigh com-

peting constitutional interests in an area in which it enjoys

particular expertise.” McConnell v. Federal Election Comm’n,

540 U.S. 93, 137 (2003). “[{S]Juch deference to legislative

choice is warranted particularly when Congress regulates

campaign contributions, carrying as they do a plain threat to

political integrity... .” Federal Election Comm'n vy.

Beaumont, 539 U.S. 146, 155 (2003).

In McConnell, for example, the Court upheld virtually all

of the provisions of the Bipartisan Campaign Act of 2002

(“BCRA”) even though that law sharply reduced the re-

sources available to national and state political party commit-

tees, 2 U.S.C. § 441i, and outlawed much broadcast advertis-

ing criticizing Members of Congress, 2 U.S.C. §§ 434(f)(3),

441b(b)(2), while increasing the limits on contributions to the

very Members of Congress who enacted the law. 2 U.S.C.

§ 441a(a). “We are governed by Congress, and this legislation

prohibits the criticism of Members of Congress by those

entities most capable of giving such criticism loud voice ... .”

McConnell, 540 U.S. at 248 (Scalia, J., dissenting).

If BCRA did not impermissibly “restrict the speech of

some elements of our society in order to enhance the voice of

others,” Buckley, 424 U.S. at 48-49, then surely Act 64 does

not. Far from restricting the voice of critics while enhancing

their own, the Vermont legislators who enacted Act 64 did

the opposite: they restricted their own spending, while en-

hancing the significance of the spending of other political

actors. Special deference should therefore be accorded to

their judgments about the compelling need to impose such re-

strictions in the form of the candidate expenditure limitations.

In this regard, it is not true that Act 64’s “limits on can-

didate expenditures tend to disadvantage challengers in

campaigns against incumbents.” Landell, 382 F.3d at 178

(Winter, J., dissenting). To be sure, as Judge Winter noted,

“When campaign finance legislation is considered by those in

power, there is both motive and opportunity to craft rules that

will restrain the political activity of opponents.” /d. at 158.

Such motive and opportunity are not evident in this case,

however.

First, the limits on candidate spending here are set at such

affordable levels that there is little doubt that any serious

challenger would be able to match the incumbent’s spend-

ing—a situation that is an improvement over the typical

circumstances faced by challengers. The trial record in this

case included evidence that spending limits reduce the

disparity between challenger and incumbent spending, and

thus actually advantage challengers. Landell, 382 F.3d at

128. Second, unlike any other federal or state campaign

finance law ever passed to our knowledge, Act 64 actually

sets spending limits lower for incumbents than for challeng-

ers: incumbent candidates for statewide office can spend only

85% of the limit for challengers and incumbent candidates for

the legislature can only spend 90%. Vt. Stat. Ann. Tit. 17

§ 2805a(c). Finally, as discussed in section II(B), supra, the

party committees are not limited in their spending on behalf

of challengers, either through voter mobilization activities

or through independent spending on behalf of specific

challengers.

For these reasons, particular deference should be accorded

to the judgment of the Vermont legislators who enacted Act

64, about the compelling need to impose candidate expendi-

ture limitations.

CONCLUSION

For the reasons set forth above, the judgment of the Court

of Appeals should be affirmed.

Respectfully submitted,

AMANDA §S. LAFORGE JOSEPH E. SANDLER

DEMOCRATIC NATIONAL COMMITTEE —- Counsel of Record