Amicus Curiae Brief — Randall v. Sorrell

G7 FEB 8 - 2006 |

Ge 9 -

Nos. 04-1528 et al. OFFICE OF THE CLERK |

In The Supreme Court of the United States

NEIL RANDALL ET AL.,

Petitioners,

Wa

WILLIAM H. SORRELL ET AL.,

Respondents.

VERMONT REPUBLICAN STATE COMMITTEE ET AL.,

Petitioners,

V.

WILLIAM H. SORRFLL ET AL.,

Respondents.

WILLIAM H. SORRELL FT AL.,

Petitioners.

V.

NEIL RANDALL ET AL.,

Respondents

2 ee 2 ee ee

On Writs Of Certiorari To The United States Court of Appeals

For The Second Circuit

BRIEF OF EQUAL JUSTICE SOCIETY, NATIONAL ASSOCIATION FOR THE

ADVANCEMENT OF COLORED PEOPLE, ELLA BAKER CENTER FOR HUMAN

RIGHTS, LATINO ISSUES FORUM, GREENLINING INSTITUTE, ASIAN AMERICAN

JUSTICE CENTER, CENTER FOR GOVERNMENTAL STUDIES, CALIFORNIA

CLEAN MONEY CAMPAIGN, COALITION FOR ECONOMIC EQUITY, AND

CALIFORNIA WOMEN’S AGENDA AS AMICI CURTAE IN SUPPORT OF WILLIAM H.

SORRELL

MARTIN R. GLICK

Counsel of Record

CHANDRA MILLER FIENEN

MARLA K. LETELLIER

SHANNON SCOTT

D’LONRA C. ELLIS

HOWARD RICE NEMEROVSKI CANADY

FALK & RABKIN

A Professional Corporation

Three Embarcadero Center, 7th Floor

San Francisco, California 94111-4024

Telephone: 415/434-1600

Attorneys for the Amici Curiae

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE

INTRODUCTION

STATEMENT OF FACTS

II.

VERMONT ENACTED ACT 64 TO

PREVENT CORRUPTION AND

THE AFPEARANCE OF CORRUP-

TION AND TO PROMOTE MEAN-

INGFUL PARTICIPATION IN THE

POLITICAL PROCESS.

THE INCREASING EXPENSE OF

CAMPAIGNS EFFECTIVELY PRE-

VENTS MEANINGFUL POLITICAL

ACCESS BY COMMUNITIES OF

COLOR.

LEGAL ARGUMENT

BUCKLEY DOES NOT ESTABLISH

A PER SE PROHIBITION AGAINST

EXPENDITURE LIMITS.

PROMOTING MEANINGFUL PAR-

TICIPATION IN THE POLITICAL

PROCESS IS AN ADDITIONAL

COMPELLING INTEREST SUF-

FICIENT TO SUPPOFT

VERMONT’S REASONABLE

LIMITS ON CAMPAIGN SPEND-

ING.

CONCLUSION

Page

15

15

17

24

TABLE OF AUTHORITIES

Cases

Austin v. Michigan Chamber of Commerce,

494 U.S. 652 (1990)

Buckley v. Valeo, 424 U.S. | (1976)

Bullock v. Carter, 405 U.S. 134 (1972)

Grutter v. Bollinger, 539 U.S. 306 (2003)

Harper v. Virginia State Board of Elections,

383 U.S. 663 (1966)

Homans v. Albuquerque, 2\7 F. Supp. 2d 1197

(D.N.M. 2002)

Homans v. Albuquerque, 366 F.3d 900 (10th

Cir. 2004)

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

2000), aff'd in part, 382 F.3d 91 (2d Cir.

2004), cert. granted, 126 S. Ct. 35 (2005)

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

cert. granted, 126 S. Ci. 35 (2005)

Lubin v. Panish, 415 U.S. 709 (1974)

McConnell v. FEC, 540 U.S. 93 (2003)

Nixon v. Shrink Missouri Government PAC,

528 U.S. 377 (2000)

Storer v. Brown, 415 U.S. 724 (1974)

Page(s)

passim

7,8

4,5, 17,18

2,5, 15, 17

21

20

18, 23

18

TABLE OF AUTHORITIES

United States Civil Service Commission v.

National Ass'n of Letter Carriers, 413

U.S. 548 (1973)

Constitutional Provisions

Vt. CONST. art. VIII, ch. 1

Statutes

Vt. STAT. ANN. tit. 17, §§2801-2883

Legis’ative Materials

H.R. Rep. No. 439 (1965), reprinted in 1965

U.S.S.C.A.N. 2437, 2440

Other Authorities

MILDRED L. AMER, CONGRESSIONAL

RESEARCH SERVICE, MEMBERSHIP OF THE

109TH CONGRESS: A PROFILE, CRS Rep.

No. RS22007, at 5 (Oct25, 2005),

available at www.georgetown.edu/faculty/

wilcoxc/joyce.htm

CENTER FOR RESPONSIVE POLITICS, 2004

ELECTION OVERVIEW: STATS AT A GLANCE

CENTER FOR RESPONSIVE POLITICS, THE BIG

PICTURE: INCUMBENT ADVANTAGE,

available at http://www.opensecrets.org

Page(s)

18

22, 23

iV

TABLE OF AUTHORITIES

Jason P. Conti, The Forgotten Few:

Campaign Finance Reform and Its Impact

on Minority and Female Candidates, 22

B.C. THIRD WORLD L.J. 99 (2002)

THE FEDERALIST NO. 57 (James Madison)

(J. Cooke ed., 1961)

John Green et al., Donor Dissent:

Congressional Contributors Rethink

Giving, 11 PuB. PERSP. 29 (2000)

Jubi Headley and Jim Welfley, Election

Results Indicate Voter Satisfaction with

Local Public Servants: Incumbents Win

80 Percent of Their Elections (Nov. 20,

2000)

FRANK HOBBS AND NICOLE Svroops,

DEMOGRAPHIC TRENDS IN THE 20TH

CENTURY: CENSUS 2000 SPECIAL REPORTS

(Nov. 2002)

THE INSTITUTE ON MONEY IN STATE POLITICS,

2000 STATE ELECTION OVERVIEW (Aug.

2002)

THE INSTITUTE ON MONEY IN STATE POLITICS,

MONEY AND DIVERSITY IN STATE

LEGISLATURES, 2003 (Apr. 2005)

RAKESH KOCHAR, PEW HISPANIC CENTER,

THE WEALTH OF HISPANIC HOUSEHOLDS:

1996-2000 As OF 2002 (Oct. 2004)

Page(s)

22

10

7,8

12

v

TABLE OF AUTHORITIES

ADAM L102, U.S. PIRG EDUCATION FUND,

Look WHO'S Not Cominc’ TO

WASHINGTON: QUALIFIED CANDIDATES

SHUT OUT BY BIG Money (Jan. 2003)

ADAM L102, U.S. PIRG EDUCATION FUND,

THE ROLE OF MONEY IN THE 2002

CONGRESSIONAL ELECTIONS (July 2003)

14 JAMES MADISON, THE PAPERS OF JAMES

MADISON (Robert A. Rutland et al. eds.,

1983)

Minorities in the Senate, available at

http://www.senate.gov/artandhistory/histor

y/common/briefing/minority_senators.htm

(ast visited Jan. 11, 2006)

PUBLIC CAMPAIGN, COLOR OF MONEY: 2003

(Major Findings) (2003)

MICHAELA. STOLL ET AL., AFRICAN

AMERICANS AND THE COLOR LINE (The

American People Census 2000 Series

2004)

U.S. CENSUS BUREAU, ANNUAL ESTIMATES OF

THE POPULATION BY SEX, RACE AND

HISPANIC OR LATINO ORIGIN FOR THE

UNITED STATES: APRIL |, 2000 To JULY |,

2004

U.S. CENSUS BUREAU, CENSUS 2000

REDISTRICTING DATA (PUBLIC LAW 94-

171) SUMMARY FILE

Page(s)

7,8

10

22

13,14

12

12

vi

TABLE OF AUTHORITIES

U.S. CENSUS BUREAU, REPORTED VOTING

AND REGISTRATION By RACE, HISPANIC

ORIGIN, SEX, AND AGE, FOR THE UNITED

STATES: NOVEMBER 2000 (2002)

U.S. CENSUS BUREAU, REPORTED VOTING

AND REGISTRATION By RACE, HISPANIC

ORIGIN, SEX, AND AGE, FOR THE UNITED

STATES: NOVEMBER 2004 (2005)

U.S. CENSUS BUREAU, RESIDENT POPULATION

PLUS ARMED FORCES OVERSEAS—

ESTIMATES BY AGE, SEX, AND RACE:

JULY 1, 1976

Sidney Verba et al., Race, Ethnicity, and

Political Participation, in CLASSIFYING

BY RACE (Paul E. Peterson ed., 1995)

Clyde Wilcox, IJndividual Donors in the

Presidential Nomination Process, in THE

CHANGING DONOR? INDIVIDUAL

CONTRIBUTORS IN PRESIDENTIAL

ELECTIONS 1972-2000 (Alexandra

Cooper et al. eds., forthcoming)

Page(s)

13

13

1]

12, 13

Il

INTEREST OF AMICI CURIAE’

Amici are organizations committed to improving the

lives of all people, but particularly communities of color and

the underserved. The Equal Justice Society, Nationa!

Association for the Advancement of Colored People, Asian

American Justice Center, Latino Issues Forum, Greenlining

Institute, Ella Baker Center for Human Rights, and Coalition

for Economic Equity work to advance the legal and civil

rights of communities of color through community

education, legal advocacy, public policy research and other

efforts. They believe campaign finance reform is necessary

to ensure meaningful and adequate participation in the

political process.

The Center for Governmental Studies, California Clean

Money Campaign and California Women’s Agenda join the

Amici listed above. The Center for Governmental Studies

and the California Clean Money Campaign work to ensure

that elected officials are receptive to the concerns of all their

constituencies and to improve fairness and transparency in

government policies and processes. The California Women’s

Agenda seeks to better the lives of women in all arenas,

including the political process. These organizations join this

brief becaure they too believe that campaign finance reform

is necessary to guarantee meaningful access to the political

process and to elect national and local governments

responsive to the needs and concerns of communities of

color.

‘Pursuant to Supreme Court Rule 37.3(a), Amici filed this brief

with the written consent of all parties. Pursuant to Rule 37.6, Amici

confirm that no counsel! for a party authored this brief in whole or in part

and that no person other than Amici and their counsel made a monetary

contribution to its preparation or submission.

INTRODUCTION

In an ideal world, men and women of perfect virtue,

vision and diversity are elected to public office. They enact

laws and approve policies for the greater good unaffected by

the special interests and persistent urgings of their most

generous contributors. They steadfastly refuse to

compromise beliefs, analyses or principles for reelection,

their next targeted public office or their own ultimate

financial well-being. And, campaigning for office in that

ideal world would not necessitate raising and spending tens

or hundreds of millions of dollars.

Few issues engender as much fire and energy as

campaign finance reform. And that is because in the real

world it really matters. It matters to incumbents, to their

potential challengers, to vested interests and to citizens,

including the communities of color sponsoring this brief—

communities of citizens effectively shut out of meaningful

participation in our political process. The massive amount of

money contributed to and expended on campaigns for public

‘Office has an undeniable and monumental impact on who

gets elected, who gets access to and is heard by those who

are elected and on the ultimate decisions about issues

affecting all citizens. It matters in this case because, as the

Second Circuit recognized, campaign financing in Vermont

is “a far cry from this idyllic vision.” Landell v. Sorrell, 382

F.3d 91, 118 (2d Cir. 2004) (“Landeil/ if’) (citing statement

of William T. Doyle).

The hard truth is that access, influence and meaningful

participation are the private reserve of those who can pay to

play in this no-limit game. And the interests and attitudes of

those who can pay are very often very different from those

who are members of Amici organizations on issues such as

health care, wages, taxes, public schools, farms and factory

conditions, public benefits, affirmative action, neighborhood

safety, the environment and equal justice.

It is the unified position of the organizations who

respectfully file this brief that the single greatest obstacle to

the ability of conimunities, municipalities, counties, states

and Congress to redress the exclusion of communities of

color from the political process is the notion that Buckley v.

Valeo, 424 U.S. 1 (1976) (per curiam) absolutely bars any

attempt to balance the rights of candidates to express freely

their ideas with the rights of citizens to participate

meaningfully in the political process. Local, state and

national electorates have a strong and compelling interest in

promoting greater diversity among political participants,

preventing corruption and the appearance of corruption, and

fostering a belief in the openness and fairness of our form of

government—-interests best served by contribution and

expenditure limits carefully calibrated to respect candidates’

rights of expression.

Forty years ago, with the passage of the Voting Rights

Act of 1965, this country affirmed its commitment to the

principle that all citizens are created equal in the eyes of

democracy. Today, the organizations filing this brief submit

that the single most important civil rights issue in American

politics is the virtual exclusion of communities of color from

the electoral process solely attributable to uncontrolled

campaign spending. As Martin Luther King, Jr. said,

succinctly and with insight in his famous “] Have A Dream”

speech at the Lincoln Memorial in 1963: “We can never be

satisfied as long as a Negro in Mississippi cannot vote and a

Negro in New York believes he has nothing to vote for.”

STATEMENT OF FACTS

1.

VERMONT ENACTED ACT 64 TO

PREVENT CORRUPTION AND THE

APPEARANCE OF CORRUPTION

AND TO PROMOTE MEANINGFUL

PARTICIPATION IN THE POLITICAL

PROCESS.

In 1997, the legislature of Vermont passed a

comprehensive campaign reform act known as Act 64. 1997

Vermont Campaign Finance Reform Act, codified at VT.

STAT. ANN. tit. 17, §§2801-2883 (“Act 64”). Campaign

finance regulation is not new to the state of Vermont. Prior

to Act 64, the Vermont legislature adopted laws regulating

campaign financing in 1916, 1961 and 1971. See Landell v.

Sorrell, 118 F. Supp. 2d 459, 464 (D. Vt. 2000) (“Landell I’).

But faced with increasingly and prohibitively expensive

campaigns, Act 64 represents the first attempt of the

legislature of Vermont to adopt campaign spending limits

since this Court decided Buckley v. Valeo, 424 U.S. | (1976)

(per curiam), in 1976.”

Act 64 is a comprehensive campaign finance reform

package that includes regulations of contributions and

expenditures related to campaigns for state office. In

relevant part, Act 64 limits the amount of expenditures a

candidate may make during a two-year election cycle in

accordance with the position being sought and the size of

contributions that candidates, political committees and

The complete statement of relevant facts is contained in the court

decisions below as well as in Respondent’s brief. This brief only

concentrates on the points particularly relevant to issues of meaningful

political participation for communities of color.

political parties may receive from a single source during a

two-year election cycle. Landell I], 382 F.3d at 99.

The Vermont legislature found such limits necessary

because candidates and elected officials respond and grant

access to contributors who make large contributions in

preference to those who make small or no contributions.

Landell I], 382 F.3d at 101. Expert testimony considered by

the Vermont legislature showed that “public officials are

functionally compelled to sell privileged access through the

fundraising system.” /d. at 100. As Vermont senator Peter

Shumlin acknowledged, “[t]here’s no question (money) buys

access to the system... .” Landeil J, 118 F. Supp. 2d at 465

(parenthetical in original). The trial court found that the

Vermont legislative records suggest “that large contributors

often have an undue influence over the legislative agenda.”

Id. at 468. .

Given the foregoing findings, it is unsurprising that the

Vermont legislature also found that increasing amounts of

unregulated campaign expenditures accompany decreasing

public involvement and confidence in the electoral process.

Landell 1, 118 F. Supp. 2d at 468-69. One expert testified

that “nearly 75 percent of Vermont voters say that ordinary

voters do not have enough influence over Vermont politics

and government.” Landell II, 382 F.3d at 116.

Indeed, the Vermont legislature found that Act 64 was

necessary to implement Article 8 of Chapter | of the Vermont

Constitution, which states that “all voters, having a

sufficient, evident, common interest with, and attachment to

the community, have a right to elect officers, and be elected

into office... .” Landell I, 118 F. Supp. 2d at 468.

THE INCREASING EXPENSE OF

CAMPAIGNS EFFECTIVELY

PREVENTS MEANINGFUL

POLITICAL ACCESS BY

COMMUNITIES OF COLOR.

Running for office has become an extraordinarily

expensive undertaking. In the 2002 and 2004 election

cycles, candidates for the U.S. Senate and House of

Representatives raised nearly two billion dollars. CENTER

FOR RESPONSIVE POLITICS, 2004 ELECTION OVERVIEW:

STATS AT A GLANCE. In 2002, the average winning candidate

for the United States House of Representatives raised nearly

$1 million; the average winning candidate for the Senate

raised over $5.2 million. Jd. The 2004 presidential race was

the most expensive in history, with both parties’ nominees

forgoing public funding in the primary and raising nearly

$650 million between them. /d.

Although attention usually focuses on spending in

federal elections, big money pervades state government

politics, too. The Institute on Money in State Politics, a

nonpartisan, nonprofit organization, compiled nationwide

data on the 2000 state’ legislative and gubernatorial elections.

THE INSTITUTE ON MONEY IN STATE POLITICS, 2000 STATE

ELECTION OVERVIEW (Aug. 2002). The study showed that

candidates running for a House seat raised an average of

$46,123; their Senate counterparts raised over twice that

amount, an average of $100,976. Jd. at 6. The fifty-nine

major party gubernatorial candidates spent a combined

$115.3 million—an average of nearly $2 million per

candidate. /d. at 8.

More significant than the bare numbers is the direct

impact that fundraising has on a candidate’s chances of

winning. In the 2002 Congressional primaries, candidates

who raised the most money won in nine out of ten races.

ADAM LI02Z, U.S. PIRG EDUCATION FUND, LOOK WHO’s NOT

COMING TO WASHINGTON: QUALIFIED CANDIDATES SHUT

OuT BY BIG MONEY 7 (Jan. 2003) (hereafter “PIRG

STUDY”). In general elections, 94% of the biggest

fundraisers emerged victorious. Jd. Incumbents raised

vastly more money than their challengers and were

extraordinarily successful: 98% of House incumbents were

reelected and 85% of Senate incumbents were reelected.

CENTER FOR RESPONSIVE POLITICS, THE BIG PICTURE:

INCUMBENT ADVANTAGE.’ At the state level in 2000, 83% of

candidates who raised the most money won. 2000 STATE

ELECTION OVERVIEW, supra, at 4. The thirteen winning

gubernatorial candidates outspent their opponents by an

average of $1.2 million.‘ /d. at 8. |

Some argue that limits on campaign spending will not

allow challengers to spend enough to defeat incumbents, but

the numbers cited above demonstrate beyond a doubt that

incumbents beat challengers even without spending limits.

Incumbents are a proven commodity so fundraising for them

is an easter sell. And contributions to incumbents offer both

the benefit of immediate positive influence and the

opportunity to place a bet on a proven winner. Available data

Suggests that campaign limits may produce a different

outcome and encourage genuine challenges.”

At http://www.opensecrets.org.

“On average winners raised $4.1 million, while losers raised only

$2.9 million.

*in 1974, the citizens of Albuquerque, New Mexico, voted to

amend the City Charter, adopting a code of ethics, limits on and

disclosure of campaign contributions, and limits on campaign spending.

Homans v. Albuquerque, 366 F.3d 900, 902 (10th Cir. 2004). Between

1974 and 1995, candidates successfully challenged all four of

Albuquerque's incumbent mayors who ran for reelection. Homans v

Albuquerque, 217 F. Supp. 2d 1197, 1200 (D.N.M. 2002). By contrast,

nationally, in 1999, incumbent mayors won 88% of their races, and in

2000, incumbents won 126 out of 140 elections. Jubi Headley and Jim

(continued . . . )

In the current pay-to-play system, candidates who lack

_ personal wealth® or access to networks of wealthy donors, or

whose positions do not appeal to large contributors, cannot

compete. A 2003 survey by the U.S. PIRG of federal

candidates in the 2002 election cycle who dropped out of

races, lost primaries or lost general elections shows that

credible candidates, including many candidates of color who

are committed to representing communities in great need of

representation, are simply unable to raise the funds necessary

to compete.’

This money-centered focus renders candidates

representing minority interests unable to compete for

campaign dollars. In 42 out of 50 states legislatures,

(... continued)

Welfley, Election Results Indicate Voter Satisfaction with Local Public

Servants: Incumbents Win 80 Percent of Their Elections (Nov. 20,

— The amendments were enjoined in 2001. Homans, 366 F.3d at

903.

*Nearly 43% of the incoming freshman Members of Congress in

2002 were millionaires, compared with 1% of the U.S. voting age

population. PIRG STUDY, supra, at 6.

’For example, Nathaniel Stampley, a pastor in Wisconsin, decided

to run because there had never been an African-American Con

from Wisconsin. PIRG STUDY, supra, at 41. Dr. Stampley raised $7,000

and garnered over 28% of the vote in the primary. /d. at 42. His

opponent, incumbent Jerry Klezczka, raised $459,000. /d. Ben Allen, an

African-American attorney, teacher and state representative in ia,

contributed $20,000 of his own money and raised another $5,300. /d. at

17. Although he made it to a run-off, the winner, Charles “Champ”

Walker, outspent Allen by $300,000. /d. at 18. Leo Martinez, the son of

Mexican laborers, lost the Second District Republican primary in New

Mexico. /d. at 30. Martinez ran a grass-roots ign and raised

$18,000, but lost to the top money raiser. /d. oc ins, a lawyer and

member of the Executive Committee of the Midd County NAACP,

dropped out of the pri for the Second District in Connecticut. /d. at

15. Mr. Collins recounted the story of an African-American woman who

came up to him in the street after hearing him speak and handed him $2

dollars in change from her purse to support his campaign. Mr. Collins

concluded, “She believed in me enough to want to give me that money,

but she didn’t understand that even if everyone in town gave me $2 in

change, that’s not going to get you there.” /d. at 16.

minority legislators in 2003 raised less money for their next

reelection campaign, on average, than their White

counterparts. THE INSTITUTE ON MONEY IN STATE POLITICS,

MONEY AND DIVERSITY IN STATE LEGISLATURES, 2003, at 22

(Apr. 2005). Individually, 81.5% of all minority state

legislators raised less money than the average raised by the

White legislators in their state. /d. See also Jason P. Conti,

The Forgotten Few: Campaign Finance Reform and Its

Impact on Minority and Female Candidates, 22 B.C. THIRD

WORLD L.J. 99 (2002) (challenger minority candidates have

a more difficult time raising money than White candidates).

The current campaign financing regime similarly

results in the significant underrepresentation of racial

minorities in elected federal positions.® In the current U.S.

Senate, there are only five non-White Senators.”

Historically, only five African-Americans, five Latinos, three

Native-Americans, and five Asian-Americans have served in

the United States Senate. In the United States House of

Representatives, 75 of 438 current members are people of

color even though people of color make up approximately a

quarter of the population. MILDRED L. AMER,

CONGRESSIONAL RESEARCH SERVICE, MEMBERSHIP OF THE

109TH CONGRESS: A PROFILE, CRS Rep. No. RS22007, at 5

(Oct 25, 2005), available at www.georgetown.edu/faculty/

wilcoxc/joyce.htm.

The necessity of raising tens, even hundreds, of

thousands of dollars gives the very small segment of the

population capable of writing very large checks an oversized

role in determining who gets elected. In the 2002 election,

“Because state office often leads to federal office, pricing

candidates of color out of state elections reduces the number of viable

candidates of color for federal office.

"See Minorities in the Senate, available at

pe et agen ney ay gare er marry yneemmaeeed

minority_senators.htm (last visited Jan. 11, 2006).

10

less than one-quarter of one percent of the voting age

population of the United States made a contribution of more

than $200 to a congressional candidate. ADAM Loz, U.S.

PIRG EDUCATION FUND, THE ROLE OF MONEY IN THE 2002

CONGRESSIONAL ELECTIONS 15 (July 2003). Less than one-

tenth of one percent of the population made a contribution of

$1,000 or more. /d. And yet this handful of large donors

contributed over three-quarters of the individual

contributions to congressional candidates. Jd. at 16-17.

The donors who fund these expensive races are an elite

group whose demographics bear little relationship to the

country at large. This was the conclusion of a nation-wide

survey of over 1,000 donors who gave at least $200 to

congressional candidates in the 1995-96 election cycle.

John wreen et al., Donor Dissent: Congressional

Contributors Rethink Giving, 11 PuB. Persp. 29 (2000).'°

The study also identified an additional list of “most active

donors”—donors who gave money to at least eight

candidates and/or gave at least $8,000. Jd. at 29-30. The

researchers concluded that “donors to House and Senate

candidates are disproportionately drawn from advantaged

social and economic groups.” /d. at 30. Nearly 80% of the

donors surveyed had annual incomes of over $100,000 and

over 80% were college graduates. /d. Among the most

active donors, over half had annual incomes of over

$500,000, and only 4% had annual incomes of less than

$100,000. Jd.

Critically, the single most common characteristic

among donors—regardless of whether they were regular

donors or the most active—was race: 99% of the donors

were non-Hispanic White. /d. Similarly, a recent study of

donors to the 1972, 1988 and 2000 presidential primary

This survey was conducted by professors and doctoral students

at the University of Maryland, the University of Akron and Georgetown

University.

campaigns by Clyde Wilcox, Professor of Government at

Georgetown University, found that among donors of $200 or

more, 86% had incomes over $100,000, but approximately

96% were non-Hispanic White. Clyde Wilcox, /mdividual

Donors in the Presidential Nomination Process, Tables 2 and

3 in THE CHANGING DONOR? INDIVIDUAL CONTRIBUTORS IN

PRESIDENTIAL ELECTIONS 1972-2000 (Alexandra Cooper et

al. eds., forthcoming).

Economic barriers to meaningful political participation

fall most heavily on the growing population of minorities.

Despite the gains of the civil rights movement and growing

numbers of minority citizens,''’ the gap in White versus non-

‘'The racial composition of the United States has changed

significantly since Buckley was decided in 1976. As evidenced by

national census fi , the nation has become increasingly racially

diverse. In 1976, 13% of the United States population was non-White,

and the vast majority of non-Whites were African-American. U.S.

CENSUS BUREAU, RESIDENT POPULATION PLUS ARMED FORCES

OVERSEAS—-ESTIMATES BY AGE, SEX, AND RACE: JULY 1, 1976. Over

the decades, Whites have accounted for a steadily shrinking percentage

of the lation. While Whites accounted for 87% of the population in

1976 (id.), they accounted for only 77% of the U.S. population in 2004.

U.S. CENSUS BUREAU, ANNUAL ESTIMATES OF THE POPULATION BY SEX,

RACE AND HISPANIC OR LATINO ORIGIN FOR THE UNITED STATES:

APRIL 1, 2000 TO JULY 1, 2004. Conversely, the tage of minorities

in the U.S. almost doubled between 1976 and 2004, from about 13% to

approximately 23% of the population in 2004. Between 1990 and 2000

one, the minority population in the United States grew by 43%. FRANK

HOBBS AND NICOLE STOOPS, DEMOGRAPHIC TRENDS IN THE 20TH

CENTURY: CENSUS 2000 SPECIAL REPORTS 77 (“DEMOGRAPHIC

TRENDS”) (Nov. 2002).

Not only has the number of racial minorities increased, the

diversity among racial minorities has increased as well. In 1976, over

98% of the population was classified as either White or Black. RESIDENT

POPULATION PLUS ARMED FORCES OVERSEAS—ESTIMATES BY AGE,

SEX, AND RACE: JULY |, 1976. Today, of the over 23% of Americans

who identify themselves as non-White, more than half are Hispanic,

American Indian and Alaska Native, and Asian and Pacific Islander.

DEMOGRAPHIC TRENDS, supra, at 77.

Vermont, too, has seen demographic shifts although it remains a

state with very small numbers of minority group residents. Though 97%

of Vermont's 608,827 residents identify as White, Vermont has followed

(continued .. . )

12

White incomes has remained constant over the past twenty

years. MICHAEL A. STOLL ET AL., AFRICAN AMERICANS AND

THE COLOR LINE (The American People Census 2000 Series

2004). Minorities have significantly lower incomes than

non-Hispanic Whites. In 2000, median annual family

income in the United States was $52,000 while the Black

family median annual income was $31,000. /d. at 13. Put

another way, the median Black family in 2000 had an annual

income equal to the national median in 1965.

This gap in wealth between non-Hispanic Whites and

minorities appears to be growing. A recent study from the

Pew Research Center finds that between 1996 and 2002, the

median Black and Hispanic household wealth declined by

27%—while the median non-Hispanic White household

wealth increased by 2%. RAKESH KOCHAR, PEW HISPANIC

CENTER, THE WEALTH OF HISPANIC HOUSEHOLDS: 1996-

2000 As OF 2002, at 2 (Oct. 2004). The median White

household wealth was $88,651—nearly fifteen times that of

the median Black household wealth, which was $5,988, and

eleven times that of the median Hispanic household wealth,

which was $7,932. Jd.

It is this lack of money—not a lack of ,interest—that

prevents minorities from effectively participating in the

political process. The landmark “Citizen Participation

Study”'? found that differences in levels of activity between

(... continued)

the national trend of growing diversity. U.S. CENSUS BUREAU, CENSUS

2000 REDISTRICTING DATA (PUBLIC LAW 94-171) SUMMARY FILE,

Matrices PL! and PL2. Between the 1960s and the 1990s, the numbers

of African-Americans, American Indians and Alaska Natives, and Asians

and Pacific Islanders increased almost tenfold. DEMOGRAPHIC TRENDS,

supra, at A-21 to A-23.

"Sidney Verba, Professor of Government at Harvard University,

Kay Lehman Schlozman, Professor of Political Science at Boston

College, and Henry Brady, Professor of Political Science at the

University of California, Berkeley, conducted a large-scale, two-stage

scientific survey of the voluntary activity (political, charitable and

(continued . . . )

13

Whites and non- Whites were far less sharp where the activity

involved time rather than money. /d. at 467-69. For

example, while minorities donate about one percent of all

political contributions, they vote al approximately the same

rate as Whites. In the November 2000 elections, 53.5% of

Blacks and 56.4% of Whites reported voting. U.S. CENSUS

BUREAU, REPORTED VOTING AND REGISTRATION By RACE,

HISPANIC ORIGIN, SEX, AND AGE, FOR THE UNITED STATES:

NOVEMBER 2000 (2002). Similarly, in the November 2004

election, 56.3% of Blacks, as compared to 60.3% of Whites,

reported voting. U.S. CENSUS BUREAU, REPORTED VOTING

AND REGISTRATION By RACE, HISPANIC ORIGIN, SEX, AND

AGE, FOR THE UNITED STATES: NOVEMBER 2004 (2005).

Minorities simply lack the disposable income that their

White counterparts have to contribute to campaigns in great

numbers.

In Color of Money: 2003, Public Campaign, a

nonpartisan, public interest organization, studied the

relationship between campaign money and race and showed

that neighborhoods of color are severely underrepresented in

the campaign finance system.'? Nearly 90% of the more

than $2 billion contributed by individuals in the two most

recent federal elections: came from ZIP codes that are

majority non-Hispanic White ($1.7 billion—85%—came in

. continued)

reli lous) of the American public. Sidney Verba et al., Race, Ethnicity,

— Political Participation, in CLASSIFYING BY RACE 354, 355-56

(Paul E. Peterson ed., 1995).

"Public Campaign organized the records of more than $2 billion

in individual contri greater than $200 to federal candidates,

parties and Political Action Committees during the 2000 and 2002

election cycles by donor’s ZIP code. PUBLIC CAMPAIGN, COLOR OF

MONEY: 2003, at | (Major Findings) (2003). It then compared those

records with data on race, ethnicity and income from the 2000 U.S.

Census, using ZIP codes as the bridge between information on campai

—— (which does not include race or ethnicity of donors) and “yey

census

14

the form of contributions of $1,000 or more). In comparison,

just 2.8% of campaign funds came from predominantly

African-American ZIP codes, 1.8% from predominantly

Latino ZIP codes, and 0.6% from predominantly Asian and

Pacific Islander neighborhoods. /d. at 2.

The top contributing ZIP code nationwide—1!002! on

Manhattan's Upper East Side—is 86% non-Hispanic White,

and nearly 40% of its households have incomes of over

$100,000. This one ZIP code contributed more campaign

cash than did the 532 ZIP codes nationwide with the largest

percentage of African-American residents (representing

7,654,609 people ages 18 and over, 84 times more people

than live in 10021); the 533 ZIP codes nationwide with the

largest percentage of Latino residents (representing

9,355,643 people ages 18 and over, 102 times more people

than live in 10021) and the 167 ZIP codes nationwide with

the largest percentage of Asian Pacific American population

(representing 3,523,852 people ages 18 and over, 39 times

more people than live in 10021). Jd. at 2. In other words,

the evidence demonstrates first, and unsurprisingly, that the

most affluent Whites are vastly overrepresented in political

giving and, second, that minorities, who are overrepresented

among the lowest economic levels in America, are severely

underrepresented among campaign donors.

As diversity increases, the American political

landscape necessarily changes. The prominence of issues

that uniquely affect communities of color shows that the

decades since Buckley have brought forth such change.

Despite the radical demographic shifts and changing political

landscape, communities of color continue to struggle to be

heard and for equal treatment. As evidenced by the Court’s

decision in Grutter, there remains a compelling need to

intervene and to correct the persisting symptoms of past

racial discrimination. Grutter v. Bollinger, 539 U.S. 306,

328 (2003).

15

‘Today, the increasing cost of campaigns recreates the

racial disparity and exclusion of communities of color. If the

voices of Americans of color continue to be drowned out by

moneyed interests, America will fail at least a quarter of its

population. Ensuring that all individuals—no matier their

race or color—have meaningful opportunities to participate

in and influence the political process is essential to the

success of American democracy.

LEGAL ARGUMENT

I.

BUCKLEY DOES NOT ESTABLISH A

PER SE PROHIBITION AGAINST

EXPENDITURE LIMITS.

In Buckley v. Valeo, 424 U.S. 1, 44-45 (1976) (per

curiam), this Court did not hold that expenditure limits were

per se prohibited, but rather held that “[njo governmental

interest that has been suggested is sufficient to justify the

restriction on the quantity of political expression

imposed ....”'* Jd. at 55 (emphasis added). Based on a

slim court record, the Court assumed that “there is nothing

invidious, improper, or unhealthy in permitting such

[unlimited] funds to be spent to carry the candidate’s

message to the electorate.” Jd. at 56. As the Second Circuit

correctly recognized, “after Buckley, there remains the

possibility that a legislature could identify a sufficiently

strong interest, and develop a supporting record, such that

some expenditure limits could survive constitutional review.”

Landell II, 382 F.3d at 107-08.

“Because the scope and effect of Buckley with respect to

expenditures is thoroughly addressed in the parties’ briefs as well as in

the Second Circuit's opinion in this case, Amici focus instead on the fact

that expenditure limits are necessary to and justified by the rights of

citizens to participate meaningfully in the political process.

16

in the decades since Buckley, empirical evidence

reveals that the percentage of minorities who are able to

contribute financially to campaigns is almost negligible'* and

that a candidate's financial support bears little relation to his

or her support among minority constituents. Support for a

particular candidate by communities of color has become

irrelevant in an America where the vast majority of campaign

contributors are non-Hispanic White.

To be sure, given the large number of minority voters

nationally, presidential candidates consider the views of

leaders representing communities of color and, in certain

states with significant numbers of voters of color, some

access is granted by gubernatorial and Senate candidates,

especially during the campaign period. But as all studies

reflect, access thereafter is very highly correlated with

campaign contribution dollars. This disparity leads to at

worst, the appearance or actuality of corruption, and at best,

an unfair and exclusionary system.

Because contribution limits alone have not—indeed,

cannot—adequately further the government’s interest in

protecting the political process from both actual corruption .

and apparent corruption, states should be allowed the

flexibility to craft well-researched and carefully thought-out

campaign finance reform laws that utilize a variety of

mechanisms, including reasonable expenditure limits.

Without such flexibility, communities of color will continue

to be shut out of meaningful participation in our democratic

process.

'*This lack of participation is not due to a lack of interest as

differences in participation rates between Whites and non- Whites became

far less pronounced when the political participation involved time instead

of money. See discussion at p.10, supra.

17

PROMOTING MEANINGFUL

PARTICIPATION IN THE POLITICAL

PROCESS IS AN ADDITIONAL

COMPELLING INTEREST

SUFFICIENT TO SUPPORT

VERMONT’S REASONABLE LIMITS

ON CAMPAIGN SPENDING.

Vermont put forth five interests that it believed were

sufficiently compelling to warrant its reasonable limits on

campaign spending. The Second Circuit found that two of

those interests—“avoiding the reality and appearance of

corruption in elective politics and government” and assuring

that “candidates and officeholders [will] spend less time

fund-raising and more time interacting with voters and

performing duties”—taken together, supported Vermont's

expenditure limits and declined to evaluate the remaining

interests. Landell IJ, 382 F.3d. at 115, 125.

Among the three interests advanced by Vermont that

the Second Circuit did not evaluate was Vermont’s interest in

“protecting equal access to political participation.” /d. at

115. Although the sufficiency of this interest was not

discussed by the Second Circuit, the Landell /] court

acknowledged that spending limits are an appropriate

response to the compelling governmental interest of

“[p]rotecting access to the political arena.” 118 F. Supp. 2d

at 482-83. In fact, the Landell J court found that “the

categorical preservation of free speech and association

cannot lay waste to.our other core democratic values such as

effective representation, equal access to the political system,

and honest, responsive government.” /d. at 493.

The Landell J court correctly recognized it was charged

with reconciling competing interests. Indeed, Amici believe

that the tension between the interest in ensuring meaningful

participation in the political process for all members of the

electorate and the First Amendment interests in political

speech lies at the heart of the debate over the

constitutionality of campaign expenditure limits. As_ the

Landell I court noted, “the exercise of those [free speech]

freedoms by some through large money contributions in our

political system threatens to drown out the freedoms of

speech and association of so many others.” 118 F. Supp. 2d

at 493.

Courts balance competing constitutional interests

often. Indeed, this Court has recognized the need to balance

First Amendment protections of political speech against core

democratic interests. As Justice Breyer pointed out in Nixon

v. Shrink Missouri Government PAC, 528 U.S. 377 (2000),

the “Constitution often permits restrictions on the speech of

some in order to prevent a few from drowning out the

many....”'® Jd. at 402 (Breyer, J., joined by Ginsburg, J.,

concurring). When faced with these competing interests, the

Court does not privilege one interest over another, but

weighs the interests and seeks solutions that maintain the

integrity of American democracy. See id.

‘*Examples of this balance abound. In Nixon, Justice

offered two examples where speech has been restricted to protect

core democratic interests. Specifically,

in Congress, for example,... constitutionally protected

debate, Art. 1, §6, is limited to provide every Member an

equal opportunity to e his or her views. Or in

elections, where the itution tolerates numerous

restrictions on ballot access, limiting the political rights of

some so as to make effective the political ri of the

entire electorate. (Nixon, 528 U.S. at 402 (Breyer, J.,

joined by Ginsburg, J., concurring) (citing Storer v. Brown,

415 US. 724, 736 (1974))) ___-

Similarly, in United States Civil Service Commission v. National

Ass'n of Letter Carriers, 413 U.S. 548 (1973), the Court upheld

restrictions under the Hatch Act limiting the political activity of federal

employees. Even in Buckley, when evaluating contribution limits, the

Court weighed the government’s interest in the prevention of corruption

against First Amen freedoms.

19

While expenditure caps limit to some extent the paid

political expression of a wealthy few, they are important to

ensure Americans, especially its people of color, can

meaningfully participate in the political process. Any

analysis of expenditure limits must keep in mind that the

special attention given to political expression under the First

Amendment is rooted in the protection of these democratic

principles.

A campaign finance system without expenditure limits

excludes those without the means to compete in fundraising,

many of whom are members of racial minority groups. In

Grutter v. Bollinger, 539 U.S. 306 (2003), the Court

recognized that government has an essential interest in

promoting political participation by Americans of color:

“Effective participation by members of all racial and ethnic

groups in the civic life of our Nation is essential if the dream

of one Nation, indivisible, is to be realized.” Jd. at 332. The

Grutter Court found a compelling government interest in

ensuring that minorities participate in American’s education

system and stated that this compelling interest arises in part

because universities, and in particular, law schools, are

training grounds for many of the nation’s leaders. “In order

to cultivate a set of leaders with legitimacy in the eyes of the

citizenry, it is necessary that the path to leadership be visibly

open to talented and qualified individuals of every race and

ethnicity.” Jd.

But the government's interest in promoting a visibly

open path to leadership does not end at the gates of

universities and law schools. The electoral process is the

primary gateway to government leadership, and the

government has a vital interest in keeping America’s political

system open to all members of society. As we work together

as a country to provide equal educational opportunity to

minority students (and full participation at all levels in our

armed forces), we undermine these accomplishments if we

effectively deprive the graduates of these programs of office,

20

of access, and of a sense that the government understands

and is receptive to their views.

This Court has endorsed important interests of the

government in promoting meaningful political participation.

In McConnell v. FEC, 540 U.S. 93 (2003), the Court

acknowledged that “[p]reserving the integrity of the electoral

process, preventing corruption, and sustain[ing] the active,

alert responsibility of the individual citizen in a democracy

for the wise conduct of the government are interests of the

highest importance.” Jd. at 206 n.88 (citation and internal

quotation marks omitted). Political participation interests

were also at stake in Austin v. Michigan Chamber of

Commerce, 494 U.S. 652 (1990), where the Court upheld a

prohibition on corporate expenditures designed to combat

“corrosive and distorting effects of immense aggregations of

wealth.” Jd. at 660. Indeed, the interests of the government

in encouraging meaningful political participation are

integrally related to the government interests in preventing

corruption and the appearance of corruption set forth in

Buckley. An unequal election in which only a select number

of high bidders can meaningfully participate is an election

that appears up for sale.'”

‘In an amicus brief submitted to the Court, Senator Mitch

McConnell challenges Vermont's interest in ener access to

political participation.” See McConnell Amicus Brief at 13-18.

Although the Buckley Court found that the “interest in equalizing the

financial resources of candidates” is not a convincing justification

(Buckley, 424 U.S. at 56), it did not reject the interest in protecting access

to political participation. Meaningful —— So is simply not

synonymous with “the equalization of political speech” interest rejected

in Buckley.

Neither Respondents nor Amici argue for reasonable a

spending limits based on an abstract principle that all candidates d

have the same amount of money to spend. Such an argument misses the

point. Rather, at issue here are the consequences of entirely unrestrained

spending, as documented by the Vermont legislature and in study after

study, including the resulting virtual exclusion of communities of color

from the political process and from political office. Nothing less.

2!

This Court’s decisions based on the Equal Protection

Clause striking down wealth barriers to voting and running

for office also address the constitutional issues at stake. In

Harper v. Virginia State Board of Elections, 383 U.S. 663

(1966), the Court invalidated a poll tax of $1.50 in Virginia

state elections, declaring that “Voter qualifications have no

relation to wealth....” /d. at 666. Moreover, the right of

voters, regardless of wealth, to participate meaningfully in

the electoral process is not isolated from the ability of

candidates, regardless of wealth, to participate meaningfully

as well. See id. In Bullock v. Carter, 405 U.S. 134 (1972),

the Court recognized the “real and appreciable impact on the

exercise of the franchise” caused by a system that excludes

candidates on the basis of their lack of wealth, striking down

filing fees ranging from $150 to $8,900 that candidates for

local office in Texas were required to pay to their political

parties. /d. at 144; see id. at 136-41 & nn.|-17. The Court

concluded that heightened scrutiny of such candidate filing

fees was wurranted because the high cost of running in a

primary election would limit voter choice:

Many potential office seekers lacking both

personal wealth and affluent backers are in every

practical sense precluded from seeking the

nomination of their chosen party, no matter how

qualified they might be, and no matter how

broad or enthusiastic their popular support. (Jd.

at 143)

“(W]e would ignore reality,” the Court continued, “were we

not to recognize that this system falls with unequal weight on

voters, as well as candidates, according to their economic

status.” Jd.; see also Lubin v. Panish, 415 U.S. 709, 718

(1974) (striking down $700 filing fee for local California

election). .

22

America’s constitutional Framers recognized that

“establishing a political equality among all” was a —

remedy for calling democratic representatives to account

The diminishment of minorities’ rights to participate in the

political process also touches on fundamental constitutional

__interests. Congress recognized these interests when it

enacted the Voting Rights Act in response to “an upsurge of

public indignation against the systemic exclusion of

Negroes....” H.R. REP. No. 439 (1965), reprinted in 1965

U.S.S.C.A.N. 2437, 2440. Prior to the Act’s passage,

Congress conducted lengthy hearings in which it heard from

a wide variety of concerned officials and individuals. [n its

General Statement in support of the Act, a group of

Republican Congressmen commented, “(t]he problem to

which this legislation is directed is no abstract matter to

those whose rights must be assured. The right to vote is of

particular importance and value to minority groups in

general but to our Negro citizens in particular who suffer

deprivations of rights other than access to the ballot.” /d. at

2465-66 (General Statement of Republican Views).

Even as it enacted major reform, Republican

Congressmen predicted that given the tenacity of racial

discrimination, new forms of voter discrimination would

replace the existing ones:

As we destroy the traditional bastions of

discrimination erected at registration and polling

places, we must foresee the path of retreat and

reentrenchment of those who may continue to

preserve the effects of discrimination on account

of race or color. Surely it will be in the form of

fraud, intimidation and corruption. . . .

'814 JAMES MADISON, THE PAPERS OF JAMES MADISON 197

(Robert A. Rutland et al. eds., 1983); see also THE FEDERALIST No. 57,

at 305, 386 (James Madison) (J. Cooke ed., 1961).

23

lt is a cruel deception to give any man the

elective franchise and then allow destruction of

the effect of his vote through a multitude of

corrupt practices. (/d. at 2471)

The corruption predicted in 1965—ballot stuffing and

coercion of voters—was, of course, of a more virulent

variety than exists today. But, there are other types of unfair

influence that now beset our political system and shut out

those most in need of representation. Without the ability to

limit the unceasing race for funds with which they may

outspend opponents, candidates for office are forced to give

access and time to those who can provide money.

The Court in Buckley stated that “the concept that

government may restrict the speech of some elements of our

society in order to enhance the relative voice of others is

wholly foreign to the First Amendment....” 424 U.S. at

48-49. As Justice Breyer suggested in a recent discussion of

this passage, however, “those words cannot be taken

literally.” Nixon, 528 U.S. at 402 (Breyer, J., joined by

Ginsburg, J., concurring). One valid basis for upholding

limits on campaign expenditure limits, Justice Breyer noted,

is that “such restrictions aim_to democratize the influence

that money itself may bring to bear upon the electoral

process.” Jd. at 401 (citations omitted). The Court’s

approach should be informed by the fact that

“constitutionally protected interests lie on both sides of the

legal equation.” Jd. at 400.

Today what must be “wholly foreign” is a political

system in which free speech is measured only in dollars and

in which major segments of society are excluded and are as

powerless to influence the choice of candidates and public

policy as they were decades ago. Legislators and citizens

can and should be permitted to balance competing and

compelling government interests with carefully drawn limits

that still protect—indeed encourage and permit—widespread

communication of ideas and positions. The Vermont

_

24

legislature did so in enacting Act 64. The district court and

Second Circuit did so in upholding parts of Act 64 and Amici

ask that it be sustained.

The Court’s decision will not only affect the citizens of

Vermont, but it will determine whether the next generation of

Americans of color throughout the nation will be given a

voice and a place at the political table.

CONCLUSION

Amici urge the Court to hold that governments have

compelling interests in promoting meaningful participation

by all members of the electorate and that this interest is

sufficient to support Vermont’s Jimits on campaign spending.

DATED: February 8, 2006.

Respectfully,

MARTIN R. GLICK

Counsel of Record.

CHANDRA MILLER FIENEN

MARLA K. LETELLIER

SHANNON SCOTT

D’ LONRA C. ELLIS

HOWARD RICE NEMEROVSKI CANADY

FALK & RABKIN

A Professional Corporation

Attorneys for the Amici Curiae