Amicus Curiae Brief — Randall v. Sorrell

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( ‘ ) rf LOPFSE OF THE CLERK

——

Nos. 04-1528, 04-1530 and 04-1697

IN THE

Supreme Court of the United States

NEIL RANDALL, et al., Petitioners,

v.

WILLIAM H. SORRELL, et al., Respondents

VERMONT REPUBLICAN STATE COMMITTEE, et al.,

Petitioners,

v.

WILLIAM H. SORRELL, et al., Respondents.

WILLIAM H. SORRELL, et al., and VERMONT PUBLIC

INTEREST RESEARCH GROUP, et al., Cross-Petitioners,

v.

NEIL RANDALL, et al., and VERMONT REPUBLICAN

STATE COMMITTEE, et al., Cross-Respondents.

On writ of certiorari to the United States Court of

Appeals for the Second Circuit

Brief of Amicus Curiae ReclaimDemocracy.Org

In Support of Respondents

Prof. Daniel J.H. Greenwood

Counsel of Record for Amicus Curiae

S.J. Quinney College of Law,

University of Utah ~

332 South 1400 East Front

Salt Lake City UT 84112

(801) 585-5201

TABLE OF CONTENTS

pr FE Ls Fes t,o ii

INTEREST OF AMICUS CURIAE.............ssesscrssssrsecsecenseses ]

SUMMARY OF ARGUMENT ...............ccsccssresseseesesereneeeerenes 2

IDES siirincccntihcstiiaithacmeniiirnininininrtimcntynlithinigiomamnenisan 5

I. Buckley v. Valeo’s Classification of Campaign

Expenditures as First Amendment Speech Was Erroneous

RN ee CP ieriiinctsccctditninnnctiniiitintisenienensitndajan 5

A. Buckley, like Lochner, has privileged the privileged

by sanctifying the current distribution of wealth........... 6

B. Property rights and the limits placed on the use of

wealth to buy influence are matters of state law, not the

Be a ih asnsascinthidcishansietiveieliebatiitaidanvennibibndiiiison 7

C. Speech and political regimes are radically different

from market and economic regimes. ...............c-ssseeesee 10

D. Money can buy speech, but it is never speech itself

Sasa acitadalanlicitegitnielatoaiialeegitsiniahuntaliasindatpesinlitiaiiduiindibdeedinie 12

E. In its interpretation of the First Amendment, Buckley

reverted to the discredited notion that the Constitution

mandates laissez-faire economic policies ..............0+00+ 13

II. Constitutional Bars on Campaign Finar we Reform Do

Not Promote First Amendment Values................:0:+0+-++0+ 14

A. Unlimited campaign expenditures violate Fourteenth

Amendment principles of political equality................. 16

B. Unrestrained campaign spending may tend to

entrench incumbents, contrary to the First Amendment

goal of encouraging self-government ................:.:0000 17

1. Advertising displaces political discourse............. 18

2. Money can buy the appearance of credibility and

CRETOWY CHOGIBETAY TRBOET ...n..cccesccenscceceseseccsesnressscseees 19

3. Candidate expenditure does not reflect preexisting

i iccatetiensininiitsittesncintnecuarciiietinnninnciiitteinninienintertios 20

4, Business donors are purchasing services, not

i tociscacheaniceainbinninsnedchcinbiecbintaniniiciiapasioanesiaietiiin 21

5. Expensive campaigns entrench incumbents,

making them more able to raise the funds necessary

to continue their entrenchment...................:cssesceeees 23

iter iaienetacbis ich ticiieidcppilaniitiatenadincidilieintiinaegiais 25

TABLE OF AUTHORITIES

Cases

Abrams v. United States, 250 U.S. 616, 630 (1919)............ 11

Alexander v. U.S., 509 U.S. 544 (1993).....cccsccssecseeseceeeenes 14

Baker v. Carr, 369 U.S. 186 (1962).........cccsessesscessesseerseneeee 16

Brandenburg v. Ohio, 395 U.S. 444 (1969)..........ccecccseseesees 1]

Buckley v. Valeo, 424 U.S. 1 (1976)2, 4, 5, 6, 7, 9, 13, 14, 16,

17, 20, 23, 25, 26

Bullock v. Carter, 405 U.S. 134 (1972) .....ccccscssseeeseeseseeseenes 8

Columbia Broadcasting System, Inc. v. Democratic Nat.

CRED, GEE GA. FO CE COD cctctctesssicnstcccretnnascscsenecins 1]

Davis v. Bandemer, 478 U.S. 109 (1986) ............cccceeeeeeeeeees 16

First National Bank of Boston v. Bellotti, 435 U.S. 765

SPITE scihennsiessninatidhaet-anhihtiecasplabiianedadenindininkeselsabaadaniianbariaia 21

Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 604

Siri hsvisteieshcintlentsailsenvibeblebiaibasnensieadsibbidlanidensinnidenandsiehteing 10

Gordon v. Lance, 403 U.S. 1 (1971).........csescessereeseeesereeeeees 3

Harper v. Virginia Board of Elections, 383 U.S. 663 (1966)3,

4,8

Lochner v. New York, 198 U.S. 45 (1905)... 2, 6, 7, 9, 10, 13,

14, 25

Lubin v. Panish, 415 U.S. 709 (1974)........cscesseeesceeeesreeeeeees 8

Lyng v. UAW, 485 U.S. 360 (1988) .0.........cccsscsereereeeeeeeneenes 4

McConnell v. Federal Election Comm'n, 540 U.S. 93, 227

ithe chndini ahha anita alate icaeicliensntiadisncngiasncinenitdh 8

Mobile v. Bolden, 466 U.S. 55 (1980) .........:cccccseseeeeeeeeeeenes 16

New York Times Co. v. Sullivan, 376 U.S. 254 (1964)........ 1]

New York Times Co. v. United States, 403 U.S. 713 (1971) 11

Thomas v. Chicago Park District, 534 U.S. 316 (2002)...... 15

ii

U.S. v. Carolene Products, 304 U.S. 144 (1938)............ 2,14

Virginia v. Black, 538°U.S. 343 (2003).......cesssesseeeseereneesees ll

Whitney v. California, 274 U.S. 357, 374, (1927) .......c0.s00+ 11

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

EoIU Un vcibabiacciielieiteibiehstinbdatinetiaibdusediniiidiabainileebnbnindaibindainans 11

Other Authorities

Adam Lioz, U.S. PIRG Education Fund, The Role of Money

in the 2002 Congressional Elections (July 2003)............ 21

Amos Tversky & Daniel Kahneman, Judgment Under

Uncertainty: Heuristics and Biases, in JUDGMENT UNDER

UNCERTAINTY: HEURISTICS AND BIASES (Daniel

MURR GR GE. GN ., TE Panes .ovcusscsssvciscinecrtervccntercesossores 20

EDWARD N. WOLFF, TOP HEAVY: THE INCREASING

INEQUALITY OF WEALTH IN AMERICA (1996). ...........0000 17

Edward N. Wolff, Working Paper No. 407: Changes in

Household Wealth in the 1980s and 1990s in the U.S.

Se rasntiilerssinesieidbasinhanpuieinsihcptesditiibcnntiedadlihaanibicidineteibaihaanibia 13, 20

Gary Kalman & Adam Lioz, U.S. PIRG Education Fund,

Raising the Limits 2006 (Feb. 2006)............sssse0eeeeees 18, 23

Institute on Money in State Politics, State Elections Overview

Pg RESIS aan C2 etal ve OR nee 23

J. ELLIOT'S DEBATES ON THE FEDERAL CONSTITUTION (1876)

RIE eI RY oa PPM EMT SERN SE ST NN ER 1]

NEW TESTAMENT, Mark 12:43-44, Luke 21:3-4 oo...ccccccceeeee 20

PENTATEUCH, Deuteronomy 1:17, 16:9, Exodus 23:6,

TREES ee ON He aE DOR 3

United States Constitution

ERS AIT LAAT, LOTS OA 10

First Amendment .... 1, 2, 4, 5, 7, 9, 10, 11, 14, 15, 16, 17, 18,

22, 24, 25, 26

Fourteenth Amendment ....................000+- 1, 3, 5, 10, 16, 17, 25

ee RIN: FRI, a: 1 viicnesnciniientiiccieicibsciiasienibinbiilie 25

ul

INTEREST OF AMICUS CURIAE

ReclaimDemocracy.org is a 501(c)(3) organization

with a national membership that includes Vermont residents. '

The organization works to build a genuinely representative

democracy based on the principle that citizens’ ability to

influence elections and government should result from the

quality of their ideas and their energy and effectiveness in

promoting them, independent of their financial status.

ReclaimDemocracy.org works to ensure we do not

decay from a democratic republic to plutocracy. In its view,

the constitutional promise of equal protection of the laws for

all citizens requires we separate the opportunity to influence

elections from wealth. Moreover, it maintains that the wealth

discrimination of the current system results in de facto race

and (to a lesser extent) gender discrimination, so “purging

wealth discrimination from the electoral system is ... a civil

rights issue.” ReclaimDemocracy.org’s work would be

_ severely undermined were this Court to determine that the

First Amendment bars states from protecting their citizens

and the democratic process itself by limiting the influence of

wealth on elections.

ReclaimDemocracy.org asks the Court to affirm the

right of the citizens of Vermont and their legislature to place

reasonable limits on campaign investments and spending in

order to further the purposes of the equal protection mandate

of the Fourteenth Amendment.

' Letters of consent have been filed with the Clerk of the Court. No

counsel for any party authored this brief in whole or in part, and no

person or entity, other than the amici curiae and their members or their

counsel, made a monetary contribution to the preparation or submission

of this brief.

SUMMARY OF THE ARGUMENT

The Vermont statute at issue in this case regulates

monetary contributions to political campaigns and the

amount candidates spend in order to assure Vermont’s

elections reflect the will of its citizens and the persuasiveness

of candidates rather than the influence of domestic and

foreign wealth.

Were it not for Buckley v. Valeo, 424 U.S. 1 (1976),

Vermont’s action would raise no substantial Constitutional

issue. Buckley, however, equated money with speech and

thereby introduced First Amendment pprinciples of

governmental abstention into campaign finance

jurisprudence. By this misclassification, Buckley revived

laissez-faire doctrines barring the government from

protecting its citizens from the power of wealth. Its

Lochneresque imposition of “the Social Statics of Mr.

Herbert Spencer,” see, Lochner v. New York, 198 U.S. 45, 75

(1905) (Holmes, J., dissenting), creates an appearance of

Constitutional conflict that has no basis.

Campaign contributions often are economic,

marketplace transactions—purchases by individuals and

business interests of “access” or “influence.” Moreover,

regardless of motivation, campaign contributions and

candidate expenditures alike resemble economic activity far

more than speech. Legislatures should be free to regulate

them in order to protect our republican system of government

from domination by wealth, just as they are free to create the

rules for all other market transactions in order to harness the

power of the market for the public good. U.S. v. Carolene

Products, 304 U.S. 144, 153 (1938).? Free speech anti-

“Regulatory legislation affecting ordinary commercial transactions is not

to be pronounced unconstitutional unless ... it is of such a character as to

preclude the assumption that it rests upon some rational basis ... .” Id.

censorship principles which preserve individual liberty

against ov-rreaching power have precisely the opposite effect

when extended to create special privileges for the wealthy to

dominate the electoral system.

All democracies must separate the reams of two

different decision-making processes. First, a political arena

of equal citizenship and political democracy, characterized

by the fundamental principle of one person, one vote,

Reynolds v. Sims, 377 U.S. 533 (1964). Second, a market

arena of individual decision and regulation by price, where

the anti-discrimination principle of equal access to markets

co-exists with necessarily unequal wealth and economic

power. Indeed, the separation of the spheres of market and

law is basic to the rule of law itself: Both the Fourteenth

Amendment and fundamental principles of justice dating

back at least to Leviticus 19:15 teach that the law should

favor neither rich nor poor.’

In our dual system, we allow money to buy most

things, but never the political system that determines the

limits to what money can buy. See, e.g., Gordon v. Lance,

403 U.S. 1, fn i (1971) (“a percentage reduction of an

individual’s voting power in proportion to the amount of

property he owned would be similarly defective”).

Vermont’s statute limiting the influence of money on

elections is an attempt to embody these basic norms in its

electoral system in order to prevent democracy from

degenerating into plutocracy. It seeks to protect the

autonomy of the citizenry of Vermont and to ensure equal

access to the electoral process, regardless of wealth, that has

long been fundamental to this Court’s jurisprudence. See,

e.g., Reynolds v. Sims, 377 U.S. 533, 555 (1964) (“the right

of suffrage can be denied by a debasement or dilution of the

weight of a citizen’s vote just as effectively as by wholly

* Cf. Exodus 23:6, Deuteronomy 1:17, 16:9.

prohibiting the free exercise of the franchise”); Harper v.

Virginia Board of Elections, 383 U.S. 663 (1966) (holding

poll tax unconstitutional).

Moreover, like Harper itself, the Vermont statute

recognizes that the wealth distribution in our country reflects

racial divisions, so serious attempts to remedy racial wrongs

also must confront the power of wealth. Each of these goals

is presumptively valid under our Constitutional regime of

republican democracy, and the legisiature’s choice of means

is entitled to the usual deference granted to legislatively-

enacted law.

Constitutional consideration of Vermont’s attempt to

protect its electoral system is distorted, however, by the

lingering effects of Buckley. Neither Free Speech values,

Equal Protection principles, nor the requirements of Due

Process require that Vermont ignore the problems created for

democracy when private wealth dominates the public

electoral system.

The Court should take this opportunity to remedy the

damage Buckley did to First Amendment, federalism and

democratic values by rejecting this flawed precedent. Money

is not speech. Applying doctrines designed to protect dissent

and democracy to campaign finance has the perverse

consequences of entrenching incumbents, unfairly enhancing

the power of those individuals and corporations with the

assets to purchase access to politicians, and, consequently,

diminishing public faith in our institutions of government.

“The Court should clarify that objections to the

particular way Vermont has chosen to protect its republican

form of government should be addressed to the people of

Vermont and their elected representatives, not to this Court.

Courts “are not free ... to reject [legislative] views about

‘what constitutes wise economic or social policy,” Lyng v.

UAW, 485 U.S. 360 (1988).

ARGUMENT

I. Buckley v. Valeo’s Classification of Campaign

Expenditures as First Amendment Speech Was

Erroneous and Should Be Overruled

Buckley v. Valeo, 424 U.S. 1 (1976) revolutionized

First Amendment and campaign finance law alike by holding

that political money is “speech” for purposes of the First

Amendment. Later cases have assumed the same analysis

applies as against the state legislatures, via the Fourteenth

Amendment’s protections against violations of equal

protection and due process of the laws.

But money is not speech. A regulatory regime

appropriate to speech has perverse results when applied to

money. After three decades of experience, the time has come

to reexamine and reject Buckley.

First Amendment jurisprudence usually contains a

strong presumption against governmental regulation,

stemming from its core meaning as a ban on governmental

censorship and governmental enforcement of religious and

secular catechisms. Buckley transformed the traditional bar

against censorship into something radically different:

restrictive scrutiny of legislative action meant to protect the

citizenry from abuse of the rights of property.

The First Amendment’s protection against censorship

is a critical element of our American system of republican

self-government. First, the political freedom to criticize the

incumbent officials is critical to majority rule: without it,

government would be too free to manipulate, rather than

respond to, public opinion. Open political debate is as

foundational to democratic rule as elections. Second, we

have long recognized free intellectual debate, cacophonous as

it often is, as the only route to avoid the stagnation of vested

interests and to encourage intellectual progress. Third, the

freedom to speak on all matters, even the purely artistic,

creates a realm of privacy and personal freedom in which

individuals can act without concern for the opinion of the

majority, thus ensuring democracy does not degenerate into a

tyranny of the majority.

Buckley, however, by simplistically substituting

money for speech, promoted none of these values. Purchased

speech often does not enhance political self-determination,

truth-seeking intellectual inquiry or personal freedom.

A. Buckley, like Lochner, has privileged the privileged by

sanctifying the current distribution of wealth

Buckley’s equation of political money with speech

repeats the infamous error of Lochner. In each case, the

Court purported to derive an abstract principle from the

Constitution’s language. It then applied it without regard to

context to cut off political debate over the difficult and

controversial issue of how a democratic republic should

manage its economy.

Lochner’s invasion of the legislative sphere stemmed

directly from its basic failing. The case assumed contractual

agreements between bakers and their employers reflected the

autonomous will of equal bargainers, and thus legislative

imposition of terms was an invasio. of the rights of both

parties. This was a controversial view of contract then and

remains one now. Others believed the very fact that bakers

were willing to agree to work long hours in unsafe conditions

was sufficient evidence that they had insufficient power to

function as the autonomous beings the Lochner court

imagined. Lochner was substantively wrong, first and

foremost, because, by assuming equality when there was

none, it further empowered the powerful at the expense of the

weak. “Neutrally” enforcing agreements between bullies and

their victims only worsens the position of the victims.

The Buckley framework suffers from a similar

blindness to the realities of the world and a similar invasion

of the legislative sphere with similar results: Reverse Robin

Hood, it takes from the common person and gives to the rich.

Buckley imposed a Lochneresque “free” market view on

campaign regulation, in effect telling the people they and

their elected representatives may not attempt to remedy the

damage done to fair political competition by the distorting

power of wealth. Like Lochner, Buckley wrongly interpreted

the Constitution to protect a particular understanding of the

rights of property, but not to protect more important nghts—

the true values of the First Amendment—from being

subordinated to economic power.

Buckley mimicked Lochner in a third way. It made a

major contribution to a political/economic complex that

simply does not work on the ground, regardless of whether

its particular conceptualization of the law can be made

internally consistent. Buckley underpins the corruption and

collapse of American politics much as Lochner helped lead

to the collapse of our economy. The Great Depression

demonstrated for many Americans that a market economy

can succeed only if it involves and benefits a wide spectrum

of citizens. Buckley’s imposition of Lochneresque “free

markets” on elections has, similarly, led to the exclusion of

most Americans from participation in and the benefits of

democratic politics. This damages the legitimacy of and

destabilizes our republican form of government. We should

not wait for a political equivalent to the Great Depression

before reversing course.

B. Property rights and the limits placed on the use of

wealth to buy influence are matters of state law, not the

First Amendment

The ‘question of how best to define the rights of

property and finance elections so as to protect citizens’

political rights and republican self-government is difficult

and controversial. Many Americans today believe our

representative democracy needs urgent repair. Campaign

finance reform lies at the controversial core of that struggle

precisely because it reflects multiple conflicting

constitutional values.

Elections rely on the principles of “one person, one

vote” and equal access to the ballot for their legitimacy.

Similarly, the American conception of a republican form of

government by “we the people” demands all citizens enjoy

the equal protection of the laws and equal political rights

regardless of wealth. See, e.g., Harper, 383 U.S. 663 (1966)

(invalidating poll tax); Bullock v. Carter, 405 U.S. 134, 135

(1972) (invalidating ballot-access fees); Lubin v. Panish, 415

U.S. 709 (1974) (invalidating ballot-access fee). The rights

and responsibilities of citizenship, like the law and its

protection, cannot be for sale.

Our market-based. econom,.' has inherent tendencies to

inequality and to expanding the range of items that can be

bought and sold. Determining and maintaining the boundary

between the realms of market and politics is a central

political question in our society. How much should the legal

system counterbalance market tendencies to give more to

those who already have more? When should the legal system

modify the rules creating the market system to price goods—

such as security, social stability, or clean air—that other

market-based legal rules might not? What things or rights

ought not to be for sale at all?

Campaign finance reform is at the core of the great

debate over the proper place of the market in a democratic

republic. Under our Constitutional system, government

cannot be for sale, nor can politics be reduced to a

marketplace. But even equal access to the ballot “does not

necessarily require that all who participate in the political

marketplace do so with exactly equal resources.” McConnell

v. Federal Election Comm'n, 540 U.S. 93, 227 (2003).

Instead, these are issues for legislative determination.

Advertising works, and more advertising than the

competition generally works better. Otherwise, campaign

finance would be of little interest. Of course, well-financed

candidates sometimes lose, just as fine advertising campaigns

cannot always make up for poor products. The Edsel has its

political analogues. In general, however, participants in our

campaign system assume voters, like consumers, often can be

influenced or persuaded to act as marketers wish. Thus

modern campaigns are about buying votes, even when quid

pro quo bribery is not in the picture.

Because money matters, the equal protection

principles of our republic are challenged deeply by any

system allowing unfettered use of private resources to

influence public political campaigns. Equal citizenship

becomes meaningless when donors, not voters, become

politicians’ major constituents or when candidates can run for

office only if backed by institutional or individual wealth.

The Buckley framework fails because it does not

recognize, let alone confront, the central issues of campaign

finance reform. The First Amendment bars censorship, hoth

to preserve the freedom of citizens to dissent from the

majority and to preserve the integrity of our political system

by preventing any incumbent government from molding the

citizenry into its supporters. But ours is a government of the

people, not of the dollars. Our politicians should be

responsive to citizens’ opinions backed by their voting

power, not to their wealth backed by their purchasing power.

Contrary to the implication of Buckley, our First

Amendment nowhere states that wealth has a Constitutional

claim to buy governmental access and influence. Instead,

Buckley, like Lochner, simply imposed a discredited

interpretation of “free markets” on an unwilling nation.

Freeing wealth does not free citizens. Ordinary

citizens are not freer if wealthy individuals and institutions

can dominate the public discourse or obtain privileged access

to the corridors of power. On the contrary, the democratic

system is deeply distorted. The distortion is only worsened

by the fact that much of our wealth is corporate owned,

controlled by fiduciaries who are required by state law and

market pressure to use it for only limited purposes without

regard to any citizen’s view of the public good.

In the end, Buckley, like Lochner, failed because the

complex and often fact-dependent issues of appropriate

economic regulation cannot be resolved intelligently based

on interpretation of abstract notions of free markets imposed

by the Court on our Constitution. A First Amendment

seeking “to ensure that the individual citizen can effectively

participate in and contribute to our republican system of self-

government,” Globe Newspaper Co. v. Superior Court, 457

U.S. 596, 604 (1982), requires the rules of electoral

competition be structured to open politics to all citizens.

Instead, Buckley reduces most citizens’ participation to

choosing from a menu predetermined by those who hold the

real power in elections today—organized interests comprised

of large donors.

C. Speech and political regimes are radically different

from market and economic regimes

Our collective decisions result largely from two

radically different processes: politics and economics. Our

politics are founded in a basic concept of equal citizenship,

enshrined in the guarantees of the Fifth Amendment and

Fourteenth Amendment of due process and equal protection

and vindicated by this court in its voting rights cases. Most

political decisions are made by the people’s elected

representatives, subject to limitations on the scope of

collective decision-making designed to preserve a sphere of

10

private freedom.

The religion, speech and press clauses of our First

Amendment protect both this sphere of personal autonomy

and the democratic process by a common core principle: No

censorship and no mind control. American concepts of

freedom bar our government from coercing the citizenry to

_agree with or support the current powers-that-be, whether

political or religious.

Freedom of speech is, in its core, a negative right—a

bar on governmental action that, by its nature, lends itself to

absolutes. This is particularly true in light of the Court’s role

in protecting the system and procedures of democracy even

when temporary crises may make governmental officials, or

even the population as a whole, think it expedient to sacrifice

them in the name of security, stability or other important

values.’ As Jefferson put it, in condemning the Alien &

Sedition Acts: “[L]ibels, falsehood, and defamation, equally

with heresy and false religion, are withheld from the

cognizance of federal tribunals.”

Economic decision-making is dramatically different

* See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254 (1964); New

York Times Co. v. United States, 403 U.S. 713 (1971); Brandenburg v.

Ohio, 395 U.S. 444 (1969); Youngstown Sheet & Tube Co. v. Sawyer, 343

U.S. 579 (1952); Abrams v. United States, 250 U.S. 616, 630 (1919)

(Holmes, J., dissenting). As the Court said in Virginia v. Black, 538 U.S.

343 (2003): “If there is a bedrock principle underlying the First

Amendment, it is that the government may not prohibit the expression of

an idea simply because society finds the idea itself offensive or

disagreeable.” Thus, the First Amendment “ordinarily” denies a State

“the power to prohibit dissemination of social, economic and political

doctrine which a vast majority of its citizens believes to be false and

fraught with evil consequence.” Whitney v. California, 274 U.S. 357, 374,

(1927) (Brandeis, J., concurring) (some internal citations omitted).

* 4 J. ELLIOT'’S DEBATES ON THE FEDERAL CONSTITUTION 541 (1876),

quoted in Columbia Broadcasting System, Inc. v. Democratic Nat.

Commitiee, 412 U.S. 94, 157 (1973) (Douglas, J concurring).

1]

from political decisions. Most importantly, economic

decisions are made on the radically different basis of

purchasing power. Additionally, collective economic

decisions are made, at least in the first instance, by the

market’s aggregation of many individual decisions, with

none of the collective debate, voting or reasoned principles

that characterize political, bureaucratic and legal

governmental: decisions. As a result, under the right

circumstances, market decision-making can be both more

conducive to individual choice and more likely to lead to

economic growth.

The line between democratic and market decision-

making, however, must be drawn by the democratic process.

Votes, not wealth, must remain the ultimate source of

legitimacy in a democracy. Ours is a republic of people, not

dollars, based on equality of citizenship, not equality of

dollars.

Since at least the Great Depression we have

recognized that one of the great tasks of government is to

define the rules and limits of markets to ensure the “invisible

hand” of the markets work for the good of all. The meaning

of the “good of all,” and the necessary compromises that

must be made between sometimes-conflicting goals of

economic growth, security, equality, decency and stability

are often the central issues of politics. No constitution, and

certainly not ours, which predates the modern economy, can

remove such issues from ongoing political debate. The First

Amendment model of governmental inaction is simply

inapplicable.

D. Money can buy speech, but it is never speech itself

Citizenship is equal, but wealth is not. Indeed, the

distribution of wealth in our society is extraordinarily

unequal, with 1% of the population controlling

approximately 40% of the total financial wealth of the

~

12

country in 2001, while half the population controls only 1%

of the wealth.° If money is allowed to unduly influence

votes, democracy descends into plutocracy.

The ability to speak and persuade is not, of course,

equal and could not be in any decent society. But that

inequality is limited by the range of human abilities. The

inequality of audience is, in the ordinary marketplace of

ideas, related to the persuasiveness of the speaker’s ideas.

Purchased advertising is different. A candidate with

sufficient funds can buy talent he or she lacks, buy attention

that the candidate’s ideas or eloquence would not command

on their own merits, and multiply his or her presence beyond

the possibilities of merely human abilities.

E. In its interpretation of the First Amendment, Buckley

reverted to the discredited notion that the Constitution

mandates laissez-faire economic policies

After the Great Depression and the demise of

Lochner, Americans rejected the notion that government

should, or even can, stand apart from economic affairs.

Market-based capitalism requires an elaborate infrastructure

of property, contract, anti-trust, anti-fraud, environmental

protection and civil rights law, all of which are subject to the

ordinary ebb and flow of political debate and legal change.

Acknowledging this reality, the Court belatedly -

acknowledged it had exceeded the bounds of its legitimacy in

preventing the political branches from debating the

preeminent issue of democratic politics in a market economy.

The New Deal “switch-in-time” acknowledged the issue of

° Edward N. Wolff, Working Paper No. 407: Changes in Household

Wealth in the 1980s and 1990s in the U.S. (2004) at 7 and Table 2.

Financial wealth excludes owner-occupied housing and pension wealth

and is therefore a reasonable proxy for wealth available for political

purposes. Id. at 4. Income is less unequally distributed than wealth, but

even so, the top 1% of families control about 20% of all income. Id. at 8.

13

how to structure the rules of property and market cannot be

constitutionally ordained for all time—in part because

property exists only within a constantly changing regulatory

regime. Instead, the proper structuring of property rights

is—legitimately—the subject of hard-fought political battles

and necessarily temporary victories to be reexamined with

changes in the economy and political mores.

Buckley’s interpretation of the First Amendment to

generally preclude explicit regulation of campaign-related

economic activity—the direct and indirect purchase of

advertising and similar media access—worked an

inappropriate revival of Lochner. Constitutional principles

require respect for the political process, see Carolene

Products, 304 U.S. at fn. 4, just as they require respect for

property rights. They do not require the State of Vermont to

privilege further the already privileged by allowing the

wealthy to purchase political access or influence not

affordable to the rest of us. Nor do they sanctify property

rules created for other purposes when they conflict with the

needs of self-government.

No democracy can long survive if access to power

can be bought. In an era in which special interests

represented by K Street lobbyists are widely viewed as

having influence on the national legislative process far

beyond their voting strength, Buckley stands as a. practical

and ideological obstacle to this republic’s self-preservation

and self-definition.

II. Constitutional Bars on Campaign Finance

Reform Do Not Promote First Amendment Values

“The First Amendment is a rule of substantive

protection, not an artifice of categories.” Alexander v. U.S.,

509 U.S. 544, 565 (1993) (Kennedy, J. dissenting).

Vermont’s law is not censorship and does not run afoul of

14

either of the two most important First Amendment values.

First, so long as campaign finance reform does not

discriminate based on viewpoint or other improper bases, it

does not restrict the sphere of privacy in which citizens may

worship, study, think, write and express themselves as they

see fit without legal requirement to consider the views of the

majority or the last electoral victors.

Second, limitations on the amounts candidates may

raise or spend do not, unless taken to an extreme, threaten the

free political discourse which underpins any democratic or

republican government. On the contrary, by freeing

politicians from the necessity to adapt every statement to the

needs of potential donors, expenditure limits allow politicians

to debate more openly the good of the country or the desires

of the marginal voter.

It is a matter of legislative judgment whether a

political debate is more likely to be effectively held (1) under

procedural campaign finance rules that ensure fair

opportunities for all participants in a manner analogous to

Robert’s Rules of Order; (2) in a free-for-all governed

primarily by property rules created for different contexts and

the particular distribution of wealth and access to private

means of publicity they create; or (3) by some other set of

rules altogether. The First Amendment mandates

government neutrality as to content and a governmental

commiiment to open debate, but not any particular form or.

style of debate. Thomas v. Chicago Park District, 534 U.S.

316, 322 (2002) (upholding “time, place and manner”

restrictions).

Many reformers believe that, ideally, a democratic

society committed to equal citizenship and active political

debate would provide open fora in which debate could take

place—for example, by federal mandate that licensees of the

public airwaves provide broadcast time to candidates without

15

charge. Others prefer to have candidates purchase broadcast

access on the same terms as commercial advertisers, with or

without state funding and with varying degrees of control

over private funding. Stiil others, undoubtedly, believe

preserving the power of the market is the most important

value to be vindicated in setting campaign finance rules.

These debates, however, belong in our legislative

branches because they are debates about how most

effectively to govern, not about the meaning of the

Constitution. The details of campaign finance reform require

legislative judgments which should be left to legislatures

except in extreme circumstances. The primary role for the

Court is not to police restrictions on monetary expenditures

under the guise that they are “speech.” Instead, it should act

to bar extreme legislative schemes that might violate the

basic democratic values of Baker v. Carr, 369 U.S. 186

(1962), and Reynolds v. Sims, 337 U.S. 533 (1964), such as

when a legislative scheme racially discriminates, or is

designed to favor certain parties or incumbents to such an

extent as to “unconstitutionally den[y a group] its chance to

effectively influence the political process.” Davis v.

Bandemer, 478 U.S. 109, 132 (1986); cf., Mobile v. Bolden,

466 U.S. 55 (1980) (upholding multi-member districting

scheme even against claim that at-large voting without

proportional representation discriminates against minorities).

A. Unlimited campaign expenditures violate Fourteenth

Amendment principles of political equality

Buckley conflicts with equality principles as well as

democratic republican ones. The First Amendment applies to

the State of Vermont only by virtue of the Fourteenth

Amendment’s promise of “due process” and “equal

protection of the laws” to every citizen. Yet Buckley

perpetuated precisely the opposite of political equality: an

unfair, racially biased system in which political equality is

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subordinated to the dramatic inequality of wealth in America.

The distribution of wealth in America is increasingly

skewed.’ Moreover, the small minority controlling the bulk

of our wealth does not reflect the racial and ethnic diversity

of our country. Jd. Any policy which, like Buckley, protects

and increases the privileges of wealth also, necessarily, slows

the process of setting historic discrimination behind us.

Under the peculiar regime of Buckley, wealthy

individuals and institutions (whether or not citizens) have a

constitutionally protected interest in using their wealth to

distort the equality principle in American elections. This is

backwards. The Fourteenth Amendment’s promise of

political equality ought, instead, to mean states have the

authority to restrain the rights of wealth to purchase ever-

expanding power.

Although the Fourteenth Amendment bars our state

governments from creating classes of citizens, Buckley

requires states to provide extraordinary justification for

measures designed to level the political playing field and

provide equal access to the electoral machinery to all

citizens. Rather than promoting equal protection of the laws,

Buckley further privileged the already privileged.

B. Unrestrained campaign spending may tend to

entrench incumbents, contrary to the First Amendment

goal of encouraging self-government

The self-determination goal of the First Amendment

is meant to protect our ability to control incumbent

legislatures. Buckley, however, fostered an incumbent

protection regime by limiting the extent to which legislatures

can regulate political money.

” See, e.g. EDWARD N. WOLFF, Top HEAVY: THE INCREASING

INEQUALITY OF WEALTH IN AMERICA (1996).

17

Vermont could reasonably conclude that incumbents

can raise money more easily than challengers because

incumbents have more influence to sell to economically-

driven donors who see contributions as profit-maximizing

purchases of access to the regulatory regime.

1. Advertising displaces political discourse

Campaign expenditures buy advertising. Given the

vast sums politicians and business corporations spend on

advertising, a legislature reasonably could conclude

advertising, in turn, affects campaign results independent of

the underlying merits of the candidates. To be sure,

Americans are not vending machines, responding

mechanically when a coin is inserted. More spending does

not guarantee election any more than it guarantees successful

product launches. But American ingenuity has long relied on

advertising to create positive images that may have little to

do with underlying reality, to influence news coverage and to

use people’s semi-conscious desires to manipulate their

behavior. This is a fine way to sell products, but a legislature

is entitled to conclude that citizens determining the future of

their country should debate in a context free of excessive

manipulation.*

When money buys advertising, and advertising

replaces actual political debate, First Amendment values

suffer. Democracy is endangered when the techniques of

Madison Avenue replace those of reasoned or impassioned

debate. Advertising can overwhelm intelligent debate if even

non-purchased debate begins to look like a Madison Avenue

production, or the media cover political elections as if they

* The importance of money in politics is increasing at a startling rate.

Between 2000 and 2004, total spending in Congressional races increased

by one-third. Gary Kalman & Adam Lioz, U.S. PIRG Education Fund,

Raising the Limits 2006 (Feb. 2006) at p. 23.

18

were referenda on the quality of the advertisements rather

than candidate positions.

Political discourse does not exist in a vacuum.

Rather, it is a continuing dialogue among citizens attempting

to find a way to live together—expressing their common

values and compromising or tolerating their differences. The

influence of wealth and advertising distorts this process and

makes it less likely to achieve a result that all citizens can

live with.

2. Money can buy the appearance of credibility and

thereby credibility itself

Significantly, this artificial, purchased, multiplication

and dissemination of advertising is likely to create an aura of

credibility that the candidate and the candidate’s ideas may

not be able to achieve on their own.

Popularity breeds popularity for rationally explicable

and sound reasons. People frequently rely on other’s

judgments as a preliminary filter of what merits attention and

a check on or confirmation of their own judgments. Widely

distributed ideas, popular artists and successful celebrities

have been seen and judged worthwhile by many independent

viewers, editors or consumers, making it more probable that

they are worth our attention. If we agree with the general

view, other people’s positive judgments confirm that our own

were not mere lapses, while if we disagree, ordinary humility

suggests that if many people have come to the contrary

conclusion, perhaps we need to reconsider.

Advertising can distort this rational process by

allowing a candidate with access to wealth to mimic success

in this filtering contest without actually having to succeed.

Money can buy the appearance of the level of support that

makes a candidacy serious. It can buy the repetition that can

make a specious charge or an extreme argument seem

19

plausible and ordinary. With enough funds, a candidate can

buy a “bandwagon” that less-involved voters will see as

worth joining simply because it exists.’

3. Candidate expenditure does not reflect preexisting

support

Buckley appears to have assumed that fundraising is a

proxy for popularity, depth of commitment among supporters

or soundness of ideas. Were this assumption correct,

advertising would be less likely to be a distortion of the

electoral system and therefore less troubling: rather than

substituting wealth for talent or experience, it would simply

amplify existing difference in support.

Unfortunately, the assumption that spending reflects

support is deeply implausible. Given our highly unequal

wealth distribution, a modest contribution from an American

citizen in the middle of our wealth distribution may indicate a

stronger level of support than a far larger contribution from a

wealthy person. The median net worth for the roughly 42

million households in the bottom 40% of Americans is $5000

including home equity. Some 338,000 households, in

contrast, had net worth exceeding $10 million.'® Several

candidates in recent years have had even greater individual

wealth. With this degree of disparity, Jesus’ teaching about

the widow’s mite is truer than ever: small contributions from

ordinary people often may reflect more support than large

* See, e.g., Amos Tversky & Daniel Kahneman, Judgment Under

Uncertainty: Heuristics and Biases, in JUDGMENT UNDER UNCERTAINTY:

HEURISTICS AND BIASES 1! (Daniel Kahneman et al. eds., 1982)

(describing availability heuristic).

° Figures from Wolff (2004), supra n. 5, at table 2. Wolff's numbers are

for 2001, using 1995 dollars. Wealth calculations are difficult and other

methods generate somewhat different results. However, the details are

not important; all‘observers agree that the American economy generates

extraordinary wealth and distributes it extraordinarily unequally.

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ones from the wealthy.'’ Reflecting this gap between support

and ability to give, fewer than one-tenth of one percent of the

voting age population gave $1000 or more to any

congressional candidate in 2002. Yet funds from that tiny

sliver of the public comprised the majority of all individual

candidate contributions to those candidates. '”

4. Business donors are purchasing services, not speaking

Many of the largest campaign contributions in our

system are not statements of political positions at all. Rather,

they are economically motivated investments—often from

business corporations, their political action committees, or

their employees—to advance the economic interests of their

institutions. Investing in political decision-makers often is a

highly effective way of increasing private profit: small

changes in regulations, taxation or allocations can mean

windfalls to particular companies or their competitors.

When donors are profit-maximizers or fiduciaries

required by corporate law to set aside their political views of

the good of the nation, contributions and related expenditures

will flow in support of three types of politicians.

First, the rare, actively corrupt politicians who sell

their influence. This Court has repeatedly recognized that the

people have a compelling interest in barring this type of quid

pro quo contribution. E.g., First National Bank of Boston v.

Bellotti, 435 U.S. 765 (1978). But guid pro quo

'' Mark 12:43-44, Luke 21:3-4. Modern economists refer to Jesus’s

insight as the “diminishing marginal utility of money”: a dollar is worth

far more to those who depend on it for basic necessities than for those

who have more than they could ever spend.

? Adam Lioz, U.S. PIRG Education Fund, The Role of Money in the

2002 Congressional Elections (July 2003), p. 4.

21

contributions already are illegal and, presumably, most

candidates have enough sense to avoid them.

The second option for profit-maximizing political

investors is to fund politicians whose views generally favor

the narrow economic interests of the donor. But most of the

time, economic concerns of lobbyists are unlikely to be

sufficiently salient to the general public (or candidates) to

allow «this type of maneuvering. The National Rifle

Association or MoveOn.org can seek to fund candidates

based on issues of concern to those groups, but most

businesses cannot. Few candidates are likely to run on a

platform openly favoring crony capitalism, pork barrel

spending, corporate subsidies, or supporting an end to the

environmental, securities, tort or civil rights laws that protect

citizens’ rights and direct the pursuit of private profit towards

the public good. Moreover, some business managers are less

likely to see their duty as promoting handouts to business in

general than in finding the particular tax break, regulatory

change or pork barrel project that will help the balance sheet

of their particular firm. For that project, the candidate’s

general views are of little help.

This leaves a third, and quite disturbing, possibility.

Businesses seeking to purchase political favors may fund

candidates in the hope that implicitly—if not explicitly and

illegally—the candidate will feel some obligation of

reciprocity. Decent people, after all, typically return

courtesies with courtesies and favors with favors without

keeping exact track or using guid pro quo calculations. This

is what is known in the industry as “buying access.”

For a corporate executive, funding candidates who

may be more sympathetic to the type of handouts or

regulation that management believes will improve the firm’s

profits may well be good business, but it is not political

participation that warrants First Amendment protection. The

same is true of campaign contributions made to “buy access”

22

in order to allow a firm to lobby for legislative or regulatory

details that will be invisible to the general debate.

The proper scope of regulation is a political issue that

should be resolved by citizens and their representatives in

response to folitical debate and voting power—not put up for

auction to the highest bidder by politicians who view donors

rather than voters as their key constituency. The businesses

that are subjects of this debate ought not to control it—

particularly when they, as in the case of our publicly traded

corporations, are lega!ly structured so as to bar them from

considering the welfare of the system as a whole. Cronyism

that is profitable for particular businesses in the short run

may be destructive to our market system as a whole in the

long run.

5. Expensive campaigns entrench incumbents, making

them more able to raise the funds necessary to continue

their entrenchment

Investor-donors interested in buying access or

influence rationally will direct most of their money to

incumbents, and especially to those incumbents able to

influence economically-important legislation. | Incumbents

have more to sell.

The more expensive campaigning becomes, the more

important this incumbent fundraising advantage becomes. In

a self-reinforcing system, the greater the incumbent’s

advantage, the more likely the incumbent is to be re-elected

and, consequently, the greater the influence the incumbent

has to sell.'” In short, money attracts money and thus further

' In state races in the 2004 cycle, incumbents raised 58% of the total

funds. institute on Money in State Politics, State Elections Overview

2004 (Dec 2005), p. 2, available at hitp://www.foullowthemoney.org/. The

incumbents’ advantage in Federal House and Senate raises was even

more extreme: incumbents outspent challengers by 4.6 to 1 in 2004.

Kalman & Lioz, supra n. 8, at p. 23.

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distorts the system.

Buckley and its progeny have recognized the public’s

interest in eliminating both the actual purchase of political

influence (corruption) and its appearance. But Buckley’s

understanding of corruption is too limited. The First

Amendment’s guarantee of freedom of speech does not bar a

state legislature from concluding that the detrimental effects

of influence peddling extend well beyond quid pro quo

corruption. Donors seeking to purchase political influence

find legal ways of doing so; politicians seeking election or

reelection fear the consequences of being outspent by a

competitor; and as campaign expenditures spiral ever

upward, politicians and donors alike find more creative ways

to buy and sell access that should not be for sale.

First Amendment jurisprudence is based on the

premise that unlimited speech promotes democratic

government, by allowing criticism of incumbents and

promoting discussion of alternative ideas. | Unlimited

campaign expenditures have the opposite effect: Incumbents

are more able to raise large campaign chests because they are

more likely to have the access and influence that most donors

seek to purchase.

The need to attract wealthy donors reduces the ability

of candidates to take positions in the public interest instead of

their donors’ and thus reduces the range and quality of

candidate positions. Even when multiple viable candidates

are able to raise the funds necessary to contend in our

increasingly expensive campaigns, to raise the necessary

funds they must share a fundamental commitment to

appeasing donor interests. A state legislature is entitled to

conclude that low voter tumout both reflects popular

dissatisfaction with the status quo and is a problem that could

be remedied by limiting the influence of wealth on

campaigns.

24

Judge Winter’s dissent below fails to recognize that,

when selling access is the game, incumbents have an

enormous advantage. The First Amendment’s guarantee of

free speech offers insufficient guidance to allow courts to

displace legislative judgment as to the relative harm of “sale

of access” or limits on buying name recognition through

advertising. Nor would any free speech value be promoted

by inventing a new constitutional right to purchase name

recognition. When purchases, rather than speech, are the

issue, Buckley’s metaphors of First Amendment abstention

become Lochner’s unjustifiable enforcement of unfettered

laissez-faire in the name of the Constitution.

CONCLUSION

Speech is not money. Buckley was wrong to impose a

rigid First Amendment-based analysis on the complex

problems of campaign finance reform. After thirty years, it is

clear that Buckley followed the mistaken path of Lochner,

imposing an artificial classification on the world without any

basis in Constitutional text or values. For us to remain free,

the “free market of ideas” must maintain its independence

from the “economic market”. The First Amendment, which

applies to the states only by virtue of the Fourteenth

Amendment’s egalitarian commitment to equal protection

and due process for all citizens, should not be distorted from

a protector of democracy into the enforcer of a new

plutocracy’s grip on the political process.

This case involves less the First Amendment than the

right of a state to attempt to further democracy and good

government via economic regulation. Lochner’s failure

taught us that economic markets can be free if surrounded by

politically-controversial legislation; campaign spending

reform is precisely that kind of freedom-enhancing economic

regulation. It should be analyzed under the fundamental

Federalist principle that states create the rights of property

25

and their limits; under the Equal Protection principle that all

citizens, whether rich or poor are entitled to have their vote

given equal weight, and under the Republican Form of

Government clause, U.S. Constitution, Art. IV, § 4,

committing this nation to a government of the people, by the

people and for the people—not of wealth, by wealth and for

wealth.

In the absence of statutes like Vermont’s Act 64,

politicians must be inordinately concerned with the views of

funders rather than voters. Moreover, successful fundraisers

often avoid the spirit if not the letter of campaign finance

regulations, leading to a general aura of sleaze. One

consequence is that the Buckley framework gives

independently wealthy politicians a double-edged advantage:

they can outspend their opponents while maintaining the

independence that used to mark statesmen when campaigns

were cheaper. Unlimited campaign spending, far from

preserving First Amendment values, corrupts our electoral

process.

The Court should take this opportunity to disavow

Buckley and uphold Vermont Act 64 under its ordinary

voting rights jurisprudence.

~ Respectfully submitted,

Prof. Daniel J.H. Greenwood

(counsel of record)

332 South 1400 East Front

Salt Lake City UT 84112

(801) 585-5201

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