# Amicus Curiae Brief — Randall v. Sorrell

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0098%3A25

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2006
- **Citation:** 548 U.S. 230

## Text

Ke)
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

@ «EF» co

TABLE OF CONTENTS

TABLES GH ALT TRI T UiREe cccccscsccsecscccessscessvsscssnccoscssen
tt Fo |; Sea ee
SUMMARY OF ARGUMENT.............cssssssssssseserssesees

I.

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
ee

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)

12
15

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

1]

1]

12

11,12

11

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.

2

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

3

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.

4

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

-

5

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-

6

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

7

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

8

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,”

9

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,”

10

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

12

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

13

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

14

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.

15
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

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0098%3A25. Public record. Not legal advice.