Amicus Curiae Brief — Randall v. Sorrell

Nos. 04-1528, 04-1530, and ‘0:

In the Supreme Court of the Gnited States

i

NEIL RANDALL, et ai.,

Petitioners,

Vv.

WILLIAM H. SORRELL, et al.

Respondents/Cross-Petitioners.

VERMONT REPUBLICAN STATE COMMITTEE, et ai,,

Petitioners,

v.

WILLIAM H. SORRELL, et al.,

Respondents/Cross-Petitioners.

On Writ of Certiorari to the

United States Court of Appeals for the Second Circuit

BRIEF OF THE SECRETARIES OF STATE OF NEW

HAMPSHIRE, NEW MEXICO, OREGON, AND WISCON-

SIN AS AMICI CURIAE IN SUPPORT OF RESPON-

DENTS/CROSS-PETITIONERS

PHILIP ALLEN LACOVARA

CHARLES A. ROTHFELD

Counsel of Record

DANIEL T. BROWN

HEATHER H. MARTIN

Mayer, Brown, Rowe & Maw

LLP

1909 K Street, NW

Washington, DC 20006

(202) 263-3000

QUESTION PRESENTED

Amici will address the following question:

Whether the state interest in combating the public percep-

tion of corruption and distortion in the electoral process

caused by unlimited campaign spending may sustain nar-

rowly tailored expenditure limits against a First Amendment

challenge.

(I)

TABLE OF CONTENTS

Page

SS Spee URIS BUI icindicstcrrcvainienitinninepictunansinithinadeints I

ps sR GEIN Sor rn eC OL ili

INTEREST OF THE AMICI CURIAE...........sccsesecseseeserseeeees l

INTRODUCTION AND SUMMARY OF ARGU-

ITE seteieninccaissitinsiineriiiiaimattesnintapinsniiibiibianisstiimpiteaie 2

FETED, scicncivaseinntscinitivaissiataeiinicsebtnniepiniiiianittibiinyicnaien 3

A. States Have A Compelling Interest In.

Using Carefully Crafted Expenditure

Limits To Combat A Pervasive Public

Perception Of Corruption And Distor-

tion In The Electoral Process..................0000++. 3

B. A Rule That Allows States To Ex-

periment With Campaign Expenditure

Limits Would Permit The Develop-

ment Of Electoral Systems That Com-

bat Public Cynicism While Preserving

First Amendment Values................00:csese0e 14

ISS nencscesennnsnaitinsepineniiietpesttintiqennnsnomenaeapeeees 19

TABLE OF AUTHORITIES

Page(s)

Cases

Adarand Constructors, Inc. v. Pena, 515 U.S. 200

CO acsischrtadb niRdinseoveuvtiestpauinnsitigetninletiandastihintyessuitiininics 18

Bates v. Director of Office of Campaign

and Political Finance, 763 N.E.2d 6 (Mass.

Se oe canseuniievelndinhitensseenssseenepsoancenessesenesitotwenes BA

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

FEC v. Nat'l Conservative Political

Action Comm'n, 470 U.S. 480 (1985) ........:.cccccceceeeseeseees 3

Homans v. Albuquerque,

217 F. Supp. 2d 1197 (D.N.M. 2002)... 16, 17

Homans v. City of Albuquerque,

366 F.3d 900 (10th Cir. 2004) oo... eee eeeeceteeeeeeeseeeeeees 1]

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

(6th Cir.), cert. denied, 525 U.S. 1001 (1998)................ 11

Landell v. Sorrell, 118 F. Supp.2d 459

Ss tks SN Fike Bsc ceccisccclnnncsscsiiccestncobinccadeslGonsebigicie 4,16

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

McConnell v. FEC, 540 U.S. 93 (2003)...........:scsccccesseseeeeeeees 3

New State Ice Co. v. Liebmann, 285 U.S. 262

(BREESE Se RR ATE AS Sy OU 15

Nixon v. Shrink Mo. Gov’t Political

Action Comm'n, 528 U.S. 377 (2000) .........:ccecseeesscesseesees 4

Serv. Employees Int'l Union v. Fair Political Prac-

tices Comm'n, 721 F. Supp. 1172

Sa Sea: SUITE Aa nceilaphcinipiceepsisivcineinaichiinsiiesentieciavendiimuiteliatia 1]

iv

TABLE OF AUTHORITIES — (Cont’d)

Service Employees International Union v. Fair

Political Practices Comm'n, 747 F. Supp. 580

(E.D. Cal. 1990), aff'd, 955 F.2d 1312 (9th Cir.

Suster v. Marshall, 149 F.3d 523 (6th Cir. 1998)................ 1]

Taxpayers to Limit Campaign Spending v. Fair

Political Practices Comm’n, 51 Cal. 3d 744

EET RE NITE EE AE IL Oe 1]

W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624

EEDA BOI 8 EEF 13

Statutes and Bills

‘Corrupt Practices Act, Pub. L. No. 68-56,

Be ee isccticisciclaninnsinnteniinaniotianitniteemeeail i]

Tillman Act, Pub. L. No. 59-36, 34

Stat. 864 (1907), as amended by

Pub. L. No. 62-3, 37 Stat. 25 (1911) ..ccccsccssessessssecsnvesences 9

1997 Vt. Laws P.A. 64 (H.28)...cc-csccccsscsssssssecssecsnecssesseecsecenee 4

Mass. HB No. 118 (2005), available at

http://www.mass.gov/legis/bills/house/ht00/ht001 18.

Miscellaneous

The Center for American Politics and Citizenship,

University of Maryland, and The Schaefer

Center for Public Policy, University of Baiti-

more, Marylanders’ Opinions of Campaign Fi-

nance and Campaign Finance Reform2 (2002)

available at www.capc.umd.edu/

rpts/MDCampFinSrvy.pdf.............sccscsssssesesseseesseessaceeneness 7

Robert Dreyfuss, Reform Beyond the Beltway,

States as Laboratories of Clean Money, 38 THE

AMERICAN PROSPECT 50, 53-54 (May/June -

v

TABLE OF AUTHORITIES — (Cont’d)

Anthony Gierzynski, A/buquerque Election Financ-

ing (2002), available at www.nvri.org/library/

cases/albuquerque/electionfinancinganalysis.pdf..... 16, 17

Federal Election Commission, Campaign Finance

Law 2000: CHART 3-A EXPENDITURE

LIMITATIONS, available at www.fec.gov/ pu-

brec/cfl/cf100/cfl 0Ochart3a. html ..............ccccccceeeeees

Frontline, Justice for Sale, Summaries of Selected

Studies, http://www.pbs.org/wgbh/pages/

frontline/shows/justice/que/studies. html ................+.

Gross & Goidel, THE STATES OF CAMPAIGN FINANCE

BID IID xerevesicisidenccnsecsocsnnienssenennepnenencnnonnecouses

Ken Hechier, Financing Elections: West Virgina,

the States, and the Nation, 7 W.VA PUBLIC AF-

FAIRS REPORTER 3 (1990)..............sccsssccscssscssesssescees

Hoover Institution: Public Policy Inquiry, Cam-

paign Finance, State and Local Overview,

available at http://www.campaignfinance-

site.org/ structure/states 1 Jhtml..............c0cecceeeseeeeees

Lake Research Partners, Survey Results from a

Nationwide Survey of 1000 Registered Voters

(2006), available at http://demos.org/campaign

I iciosircecieniiellnieetidteiadinensieandiieninmnannnianeten

Lake Snell Perry & Assoc., Public Perceptions of

Campaign Spending Limits: Finding from a

Survey of 400 Registered Voters in the City of

Albuquerque, New Mexico (1998),

available at http://www.nvri.org/library/cases/

albuquerque/publicperceptions_ Albuquer-

i TI a inoesicnsensenduitssasimibindscestinnithinanteapenentinns

vi

TABLE OF AUTHORITIES — (Cont’d)

Lake Sosin Snell Perry & Assoc., Inc., Banners

From a Survey of 500 Registered Voters in the

State of Pennsylvania (1998), available at http:/

/www.courts.state.pa.us/Index/ Su-

Jim Ludwick, Chavez Raised, Spent Nearly

$1.2 Million, ALBUQUERQUE JOURNAL, 2005

WLNR 16559603 (Oct. 12, 2005)........ccccecereeserees

National Civic League, Spending Limits Working in

San Jose, California, 3 NEW POLITICS, at 3

Burt Neuborne, One Dollar-One Vote: A Preface to

Debating Campaign Finance Reform, 37

ID thes Be GUI Percstercrcecencsisictticnssctemnccteercorses

Press Release, Public Campaign, “Voter

Owned Elections” Becomes Law in Portland,

Oregon, (May 19, 2005), available at

www.publicampaignorg/pressroom/

pressreleases/release2005/release _05_

Press Release, The Office of Governor M. Jodi Rell,

Gov. Rell Introduces Sweeping Reform Propos-

als for Campaign Finance (January 10, 2005),

available at http://www.ct.gov/governor

rell/cwp/view.asp?Q=288454 &A=1761 ...nccscssccseee

Public Policy Inquiry, Campaign Finance, State

and Local Overview, available at http:

//www.campaignfinancesite.org/ struc-

I tetirsteccctcntninitrccntccintinipeiemiccineniencenen

Thomas C. Reeves, Selfish Politicians (2005),

available at http://hnn.us/blogs/entries/

Pee envcsniinnssteseneneenaanernsaseustiniintitenpintseninmmtsnantese

vii

TABLE OF AUTHORITIES — (Cont’d)

Michael Saxl & Meaghan Maloney, The Bipartisan

Campaign Reform Act: Unintended Conse-

guences and Maine’s Solution (2004) available

at http://www.law.harvard.edu/students/

gD _ RN rr EET E 12

Donald J. Simon, Beyond Post-Watergate Reform:

Putting and End to the Soft Money System, 24 J.

Fo RR Sree enor 10

State PIRGs’ Democracy Program, The Case for

Limits on Campaign Expenditures, at 1, avail-

able at http://www.buckbuckley.com/

pdfs/spending limits policy background.pdf............... 16

U.S. PIRG Education Fund, THE WEALTH PRI-

MARY: THE ROLE OF MONEY IN THE 2002 Con.

GRESSIONAL PRIMARIES (2002) available at

www.uspirg.org/reports/WealthPrimary10_

ei iteccuccesutetininnaputicniaiieganehbeniintianiagtnmmntinnnemsioinene 5

Wisconsin Policy Research Institute, Inc., The

Wisconsin Citizen Survey, October 2005,

available at http://www.wpri.org/Reports/

Ey PUD: IIIT cestcinigncenesremepievenpinesensesstenmenncemanten 7

WHODH 7 News Boston, Connecticut Lawmakers

Pass Sweeping Campaign Finance Bill (Dec.

21, 2005), available at http://www2.whdh.

com/news/articles/national/BOS 10050/ ...............ceeccce0ee 13

Wisconsin Briefs from the Legislative Reference

Bureau, Brief 01-9 (March 2001), available at

http://www. legis.state. wi.us/Irb/pubs/

I chereinniccsisiiidiidinenietitadiiipiidpnincnnininsniinacanitenses 8

INTEREST OF THE AMICI CURIAE

Amici include the following Secretaries of State: William

M. Gardner, Secretary of State of New Hampshire; Rebecca

Vigil-Giron, Secretary of State of New Mexico; Bill

Bradbury, Secretary of State of Oregon; and Douglas La Fol-

lette, Secretary of State of Wisconsin.’ Amici serve as the

chief elections officers of their respective States. This re-

sponsibility gives them extensive experience with the issues

raised in this case.

This case involves a challenge to amendments to Ver-

mont’s campaign finance laws — including a limit on cam-

paign expenditures — that were enacted in 1997. These

amendments were adopted with the overwhelming approval

of bipartisan majorities of both houses of the Vermont Legis-

lature. See Landell v. Sorrell, 382 F.3d 91, 100 (2d Cir.

2004). The amendments were enacted to serve what the Sec-

ond Circuit described as “at least two interests in maintaining

campaign expenditure limits: preventing the reality and ap-

pearance of corruption, and protecting the time of candidates

and elected officials.” Jd. at 124. As the district court in this

case found, and the Second Circuit agreed, limits on cam-

paign contributions alone have been ineffective in achieving

those goals. /d. at 116-125. For Vermont, at least, meaning-

ful reform can occur only with the implementation of manda-

tory spending limits.

Amici submit that affirmance of the Second Circuit’s de-

cision upholding Vermont’s law is essential if state and local

governments are to have the tools that are necessary to pro-

tect the integrity of the electoral process. Amici believe that

' Pursuant to Rule 37.6 of the Rules of this Court, amici state that

this brief was not authored in whole or in part by counsel for a

party and that no person or entity, other than amici curiae and their

counsel, made a monetary contribution to its preparation and sub-

mission. The written consents of the parties to the filing of this

brief have been filed with the Clerk.

this Court’s decision in Buckley v. Valeo, 424 U.S. 1 (1976),

is not properly read to establish a per se prohibition on man-

datory campaign spending limits. But if amici are incorrect

in that view, they urge the Court to reconsider that decision

and permit Vermont to demonstrate that its campaign expen-

diture limits should survive strict scrutiny. A decision by this

Court that the Constitution does not erect an insuperable, per

se barrier to campaign spending restrictions will assist the

states, as laboratories of democracy, in addressing wide-

spread public dissatisfaction with the current system of elec-

tioneering — a dissatisfaction that is having a corrosive effect

on the citizenry’s faith in the democratic process and is dis-

couraging voters from participating in state elections.

INTRODUCTION AND SUMMARY OF ARGUMENT

Vermont officials and their other amici address the gov-

erning constitutional doctrine, explaining why the First

Amendment should not be understood to preclude absolutely

the enactment of campaign expenditure limits. Amici Secre-

taries of State will not repeat those doctrinal arguments here.

Instead, amici will address two points of great concern to

public officials with responsibility for the integrity and vital-

ity of state electoral systems: (1) unlimited campaign expen-

ditures undermine public confidence in the electoral process,

and thus in the democratic system itself; and (2) state and

local experimentation with differing methods of campaign

finance regulation may help in the development of effective

solutions to this profoundly vexing problem.

Amici urge the Court to uphold the constitutionality of

Vermont’s mandatory campaign spending limits, thus allow-

ing state legislatures to employ this kind of tool as they seek

to address constituent concerns regarding the corruption (real

and perceived) and distortion of the political process that are

attributable to the unlimited campaign spending. The case

for so equipping state legislatures is compelling. Public dis-

satisfaction with the current system of campaign finance is at

an alarmingly high level. Objective indicia reveal that the

public strongly believes that excessive spending fosters cor-

ruption of the electoral process. The depth of this concern is

‘confirmed by repeated attempts by state legislatures to re-

form systems of campaign finance.

A holding that campaign expenditure limits are not per se

unconstitutional would have healthy consequences for the

Nation’s political system as a whole. It would permit States

to experiment with novel methods of campaign finance re-

form and to determine which of those methods work best in

the real world. This point is illustrated by the unique experi-

ence of Albuquerque, New Mexico, which maintained a sys-

tem of campaign expenditure limits for almost three decades

after Buckley. That regime attracted extraordinarily broad

levels of public support, fostered electoral competition, re-

duced the inertia of job security for incumbents, and in-

creased public participation in elections for city office. Al-

buquerque’s history strongly suggests the wisdom of relying

on the legislative process to develop creative solutions to the

pressing social problem of public dissatisfaction with the

campaign finance system.

ARGUMENT

A. States Have A Compelling Interest In Using

Carefully Crafted Expenditure Limits To Com-

bat A Pervasive Public Perception Of Corruption

And Distortion In The Electoral Process

1. This Court has held repeatedly that combating the ap-

pearance of corruption is a compelling government interest

that may properly be redressed with appropriately tailored

campaign finance reform. See, e.g., Buckley, 424 U.S. at 25;

McConnell v. FEC, 540 U.S. 93, 142 (2003); FEC v. Nat'l

Conservative Political Action Comm'n, 470 U.S. 480, 496-

497 (1985). There is nothing “novel [ Jor implausible” in

that proposition (McConnell, 540 U.S. at 144); the perception

that moneyed interests have excessive influence in the politi-

cal process breeds cynicism about the machinery of democ-

racy and “could jeopardize the willingness of voters to take

part in democratic governance.” Nixon v. Shrink Mo. Gov't

Political Action Comm’n, 528 U.S. 377, 390 (2000).

Of particular importance here, this problem is not limited

to campaign contributions, which pose the most obviously

plausible risk of corrupting the political process. Govern-

ments at all levels have a vital interest in fashioning an elec-

toral system that assures their citizens that the fruits of the

process will be an honest, objective, responsive public ad-

ministration. As the amounts spent on American elections

have soared, however, there has been a proportional escala-

tion in public cynicism about the quality of government these

expenditures have purchased. Here, amici focus on this im-

portant aspect of the problem: unlimited campaign expendi-

tures have a corrosive effect both on voters’ confidence in

the integrity of government and on public willingness to par-

ticipate in the political process.

That danger was a central rationale for enacting Ver-

mont’s limitation on campaign expenditures. The state legis-

lature found that “public involvement and confidence in the

electoral process have decreased as campaign expenditures

have increased,” and that “[{c]itizen interest, participation and

confidence in the electoral process is lessened by excessively

long and expensive campaigns.” 1997 Vt. Laws P.A. 64

(H.28), 9} 4, 10. Those findings were amply supported by

polling of the Vermont electorate and the testimony of the

State’s elected officials. See Landell, 382 F.3d at 116-117.

And it was confirmed by the district court in this case, which

found as a fact that the State’s expenditure limits would serve

to preserve faith in democracy. Landell v. Sorrell, 118 F.

Supp.2d 459, 482-483 (D. Vt. 2000), affirmed in part and

vacated in part by 300 F.3d 129; see Landell, 382 F.3d at

103.

2. The concern that motivated the Vermont legislature is

ubiquitous across the Nation: Empirical data reveal the exis-

tence of a pervasive public perception of corruption in elec-

tions that is inextricably intertwined with dismay about ex-

cessive campaign spending. It is imperative that state gov-

ernments have the tools to combat this perception, which is

undermining public faith in the integrity of government.

The logical connections that have led much of the public

to become disillusioned by unlimited spending on political

campaigns are not hard to discern. To begin with, the issue is

not just one of “corruption” in the classic sense of bribery or

something akin to it. See Burt Neuborne, One Dollar-One

Vote: A Preface to Debating Campaign Finance Reform, 37

WASHBURN L. J. 1, 5-7 (1997) (discussing varying theories of

corruption and their respective scopes). Rather, a significant

public concern is that excessive and often grossiy imbalanced

spending muffles the voices of some candidates and distorts

the way vital public issues are ventilated during a campaign.

This concern is validated by the reality that approximately 90

per cent of the time, the candidate who spends the most

money wins the election. U.S. PIRG Education Fund, THE

WEALTH PRIMARY: THE ROLE OF MONEY IN THE 2002 Con-

GRESSIONAL PRIMARIES at 4 (2002), available at

www.uspirg.org/ reports/WealthPrimary10 02.pdf.

But that is only one aspect of a larger problem: voters

believe that if expenditures are not capped, candidates will be

forced to go all out to raise money. That imperative, in the

public’s view, has myriad unfortunate effects. It fosters clas-

sic “money under the table” corruption because it puts a pre-

mium on getting campaign cash. It forces elected officials to

shirk official duties in favor of raising money and mollifying

contributors. With so much money flowing into the system,

ordinary voters get the (reasonable) impression that the re-

cipients of that money will be responsive to contributors

rather than to the broader electorate. And the ability to spend

unlimited amounts gives incumbents a virtually insuperable

advantage when they seek re-election; incumbents typically

raise more money than their challengers — and almost inevi-

tably win — because contributors may believe (correctly or

not) that they will receive official favors in return for contri-

butions.

Contribution limits, especially in the era of “bundling,”

are not a complete answer to any of these problems. And the

more that is spent on campaigrs — with endless television

commercials, direct mail, and computerized telephone calls

all visible to or heard by the electorate — the more a typical

voter will see the visible fruits of campaign spending. Inevi-

tably, this barrage will lead reasonable voters to conclude

that raising and spending money is all candidates care about.

Thus, even with contribution limits in place, the evils of

an accelerating race for campaign cash sap public confidence

in the electoral system:

The predictable effect [of a bar on expenditure lim-

its} has been to increase the pressures to satisfy the

ever-increasing, but uncontrollable, demand for

campaign cash. * * * Instead of freeing the political

process from the effects of wealth disparity and the

reality and appearance of corruption, the mutation

produced by Buckley places unending pressure on

public officials to raise money from special interests

in a highly public manner calculated to create pre-

cisely the appearance and reality of quid pro quo

corruption that the Buckley Court recognized as a

threat to the democratic process.

Neuborne, supra, 37 WASHBURN L.J. at 33-34, 37.

3. This concern is not just theoretical: it is borne out by

hard data. Nationally, over two-thirds of registered voters

believe that candidates spend too much money on eiection

campaigns. Lake Research Partners, Survey Results from a

Nationwide Survey of 1000 Registered Voters (hereinafter

“National Survey”), at 7 (2006), available at http://demos.

org/campaignfinancesurvey. A nearly identical number cor-

related election spending with the integrity — or lack of integ-

rity — of the electoral process. /d. at 13.

Targeted state polls reveal more detailed insights into

voters’ perceptions regarding the relationship between cor-

ruption and campaign spending. Strikingly, 68 percent of

Pennsylvania voters believe that the current level of cam-

paign spending is a “serious threat [to] the basic fairness and

integrity of our political system.” Lake Sosin Snell Perry &

Assoc., Inc., Banners From a Survey of 500 Registered Vot-

ers in the State of Pennsylvania (hereinafter “PA Survey’) at

3 (1998), available at http://www.courts.state.pa.us/Index/

Supreme/appenda.pdf. In fact, “[c]orruption is the word that

voters themselves use most frequently in describing what is

wrong with campaigns and elections today.” PA Survey, at

16. Voters in Maryland also equated campaign spending

with the term “corruption.” The Center for American Politics

and Citizenship, University of Maryland, and The Schaefer

Center for Public Policy, University of Baltimore, Maryland-

- ers’ Opinions of Campaign Finance and Campaign Finance

Reform, at 2 (2002), available at www.capc.umd.edu/

rpts/MDCampFinSrvy.pdf. The public perception of the

situation has deteriorated over time, resulting in a current as-

sessment of democracy as being, in effect, broken. PA Sur-

vey, at 16; see also id. at 11.

Pennsylvania and Maryland have company in this percep-

tion. In the words of one commentator, Wisconsin poll re-

sults in 2005 “revealed a stunning cynicism, confirming other

surveys that consistently place politicos and journalists near

the used car salesmen in public confidence.” Thomas C.

Reeves, Selfish Politicians (2005), at 1, available at

http://hnn.us/blogs/entries/18029.html. The commentator was

reacting to figures confirming that “only 6% of the residents

in Wisconsin believe their elected official represent the inter-

ests of the constituents on important issues.” Wisconsin Pol-

icy Research Institute, Inc., Wisconsin Citizen Survey, Octo-

ber 2005 (hereinafter “Wisconsin Survey’), at 12, available at

http://www.wpri.org/Reports/Volume] 8/Vol1806.pdf. Wis-

consin voters split nearly evenly between believing that local

officials represent their own interests and believing that they

represent special interests. Jbid.

The widespread perception that excessive campaign

spending is distorting the political process also is reflected in

survey data showing that the voting public believes campaign

spending limits would curtail corruption of the process. The

vast majority — 87 per cent — of registered voters across the

country favor the implementation of spending limits. Na-

tional Survey at 8. More than three-quarters of those polled

see spending limits as a deterrent to corruption in campaigns.

Id. at 12. Targeted polls in selected states yield similar re-

sults:

e “In November 2000, voters in 56 of Wisconsin’s

72 counties were asked whether they supported

campaign finance reform that would limit contn-

butions and expenditures and require complete

and timely disclosure. Over 90% of the voters

answered ‘yes’ in this referendum * * * .” Wis-

consin Briefs from the Legislative Reference Bu-

reau, Brief 01-9, at 1 (March 2001), available at

http://www.legis.state. wi.us/Irb/pubs/wb/01 wb9.

e When polled on spending in judicial elections, 59

per cent of a split sample believed that candidates

in Pennsylvania spend too much money, not hav-

ing been told how much candidates spend. That

number jumped to 81 per cent for the portion of

the split sample that was given an example of how

much a candidate spent last year. PA Survey at 4.

e Similarly, “56 per cent of Ohioans favor spending

limits for judicial elections.” Frontline, Justice

for Sale, Summaries of Selected Studies, at 6,

available at http://www.pbs.org/wgbh/pages/

frontline/shows/ justice/que/studies.html.

e When West Virginia voters were polled regarding

whether they believed “there should be a limit on

- how much a person can spend on running for pub-

lic office,” more than 75 per cent said yes, while

only16.8 per cent said no. Ken Hechier, Financ-

ing Elections: West Virgina, the States, and the

Nation, 7 W. VA PUBLIC AFFAIRS REPORTER 3

(1990).

4. Public concern about electoral excesses — and, in par-

ticular, with unlimited campaign expenditures — also is re-

flected in repeated legislative efforts to reform the campaign

finance process, at both the state and the federal level. That

legislatures have turned to this subject time and again power-

fully illustrates continuing dissatisfaction among the elector-

ate.

Before Buckley, states experimented widely with expen-

diture limits. In reaction to public discontent with the spoils

system at the turn of the twentieth century, many states en-

acted spending caps. “({B]y 1932 over half of the states had

such provisions. By 1964, thirty states had provisions that

attempted, in one way or another, to limit total campaign ex-

penditures.” Gross & Goidel, THE STATES OF CAMPAIGN FI-

NANCE REFORM (2003), at 4.

Congress, too, experimented with campaign spending

limits for House of Representatives and Senate races. See

Tillman Act, Pub. L. No. 59-36, 34 Stat. 864 (1907), as

amended by Pub. L. No. 62-3, 37 Stat. 25 (1911) (effecting

expenditure limits of $5,000 and $10,000 for U.S. House and

Senate campaigns, respectively); Corrupt Practices Act, Pub.

L. No. 68-56, 43 Stat. 1070 (1925) (raising those limits to

between $2,500 and $5,000 for U.S. House campaigns and

between $10,000 and $25,000 for U.S. Senate campaigns).

The Court’s decision in Buckley, of course, has been

widely thought to bar expenditure limits. The consequences

of that result have been as damaging as they were predict-

able. In the post-Buckley period, voter participation in both

national and gubernatorial elections has generally declined.

10

Gross & Goidel, supra, at 88. Indeed, in 1996, voter cyni-

cism led to the lowest voter turnout in a presidential race in

five decades. Donald J. Simon, Beyond Post-Watergate Re-

form: Putting and End to the Soft Money System, 24 J. LEGIS.

167, 174 (1998).

In light of this decline in voter participation, it is not sur-

prising that the appetite for reform at the state and local level

remains strong. State and local legislatures have attempted

to adopt reforms within the constraints of Buckley's per-

ceived approach to expenditure limits. For example:

Since 1990, 30 states have radically changed their

campaign finance laws, 17 of them between 1995-

98. Hoover Institution: Public Policy Inquiry,

Campaign Finance, State and Local Overview,

available at http://www.campaignfinancesite.org/

structure/states1.html.

From 1972-1996, 45 campaign finance initiatives

and/or referenda, as well as charter amendments

on election reform, were placed on state ballots.

In 36 of these cases, a majority of voters sup-

ported enactment. Jbid.

As of 1998, 24 states had statutes providing some

sort of public financing for election campaigns.

Ibid.

At least 15 states and major cities such as New

York, Seattle, Portland and San Jose have some

sort of voluntary expenditure limitation. See Fed-

eral Election Commission, Campaign Finance

Law 2000: CHART 3-A: EXPENDITURE LIMI-

TATIONS, available at www.fec.gov/pubrec/cfl/

cf100/cfl00chart3a.html; Hoover Institution: Pub-

lic Policy Inquiry, Campaign Finance, State and

Local Overview, supra; Seattle, City Council Or-

dinance 107772 (Nov. 30 1978); Press Release,

Public Campaign, “Voter Owned Elections” Be-

11

comes Law in Portland, Oregon, (May 19, 2005),

available at www.publicampaign.org/pressroom/

pressreleases/release2005/release_05 _19 05.htm;

National Civic League, Spending Limits Working

in San Jose, California, 3 NEW POLITICS, at 3

(Spring 2002).

e Other states and localities have seen their reform

efforts run afoul of what courts perceived to be

Buckley’s absolute bar on expenditure limits. Al-

buquerque’s comprehensive system of expendi-

ture limits, which is discussed in more detail be-

low, was invalidated by the Tenth Circuit in

Homans v. City of Albuquerque, 366 F.3d 900

(10th Cir. 2004). Ohio attempted to enact spend-

ing limits at both state and local levels, but the

Sixth Circuit invalidated spending limits in city

council races (Kruse v. City of Cincinnati, 142

F.3d 907 (6th Cir.), cert. denied, 525 U.S. 1001

(1998)), and held that Buckley bars spending lim-

its in state judicial campaigns. Suster v. Mar-

shall, 149 F.3d 523 (6th Cir. 1998). And the fed-

eral courts struck down Proposition 73, approved

by the California electorate, which prescribed

(among other reforms) mandatory limitations on

certain types of political expenditures.” See Serv.

2 Majorities of voters supported both Proposition 73 and Propo-

sition 68, which contained voluntary campaign spending limits

accompanied by public financing of campaigns. See Robert Drey-

fuss, Reform Beyond the Beltway, States as Laboratories of Clean

Money, 38 THE AMERICAN PROSPECT 50, 53-54 (May/June 1998).

Voters preferred the system of mandatory spending limits by an

appreciable margin. Before it was invalidated, California courts

held that Proposition 73 should take precedence over Proposition

68 because it received more votes. Taxpayers to Limit Campaign

Spending v. Fair Political Practices Comm'n, 51 Cal. 3d 744

(1990).

12

Employees Int'l Union v. Fair Political Practices

Comm'n, 721 F. Supp. 1172 (E.D. Cal. 1989);

Service Employees International Union v. Fair

Political Practices Comm'n, 747 F. Supp. 580

(E.D. Cal. 1990), aff'd, 955 F.2d 1312 (9th Cir.

1992).°

Campaign finance reform was achieved most recently in

Connecticut — in an effort that clearly illustrates the connec-

tion between public cynicism about the electoral process and

the perceived need to limit campaign expenditures. In reac-

tion to a corruption scandal that sent Governor John G. Row-

land to prison, Governor M. Jodi Rell announced the intro-

duction of sweeping campaign finance reform legislation. In

her January 2005 announcement, Governor Rell noted the

voters’ perception of an association between electoral corrup-

tion and unconstrained campaign spending. She observed

that one of the three complaints she hears most often from

her constituents is that candidates spend too much money on

election campaigns. Press Release, The Office of Governor

M. Jodi Rell, Gov. Rell Introduces Sweeping Reform Propos-

als for Campaign Finance (January 10, 2005), at 3, available

> Ten years later, the citizens of Massachusetts passed a referen-

dum that provided for voluntary spending limits, accompanied by

public financing. The state legislature, however, was unwilling to

fund the public financing aspect of the referendum. Applying the

state constitution, the Massachusetts Supreme Judicial Court held

that the law must be funded or repealed. Bates v. Director of Of-

fice of Campaign and Political Finance, 763 N.E.2d 6 (Mass.

2002). The state legislature consequently repealed the law. Mi-

chae] Sax! & Meaghan Maloney, The Bipartisan Campaign Re-

form Act: Unintended Consequences and Maine’s Solution (2004),

at 476-477, available at http://www.law harvard.edu/students/

orgs/jol/vol41_2/saxl.pdf. Another campaign finance reform bill,

this one containing mandatory expenditure limits, is now pending

in Massachusetts. The bill contains no provision for public financ-

ing. Mass. HB No. 118 (2005), available at http://www.mass.

gov/legis/bills/house/ht00/ ht00118.htm.

13

at http://www.ct.gov/governorrell/cwp/view.asp?Q=288454

&A=1761; see also WHDH 7 News Boston, Connecticut

Lawmakers Pass Sweeping Campaign Finance Bill (Dec. 21,

2005), available at http://www2.whdh.com/news/articles/

national/BOS10050/. The reform bill, signed into law by

Governor Rell in December 2005, provides for voluntary ex-

penditure limits combined with public campaign financing.

2005 Ct. P. A. 5 (enacting 2005 Ct. S.B. 2103).

Connecticut’s experience also illustrates the constraints

that states feel in this arena, and their concern that Buckley’s

perceived bar on expenditure limits handicaps effective re-

form. During the House debate on Senate Bill 2103, an

amendment was proposed that would have eliminated the

public financing provision in the reform. In response to the

amendment’s introduction, Representative Spallone, one of

the bill’s sponsors, emphasized that state reform efforts may

be hamstrung unless expenditure limits are permissible:

In a perfect world, I think that elections based only

on individual contributions without public financing

may work. However, we operate in the context of a

Supreme Court decision from 30 years ago, which

effectively said we can limit the amount that each of

us can donate to a campaign, but not the amount that

we can each spend on our campaign. And that’s

[sic] created the arms race, as it were, in financing

for campaigns at the State, national, and local levels.

Transcript of the House Debate of 2005 Ct. S.B. 2103 at 60

(Nov. 30, 2005).

To be sure, popular clamor for a particular outcome gen-

erally is not, of itself, a sufficient basis to overcome constitu-

tional limits on legislative discretion. See W. Va. State Bd. of

Educ. v. Barnette, 319 U.S. 624, 638 (1943). But the public

perception that candidates’ excessive focus on campaign dol-

lars has corrupted the electoral process and effectively disen-

franchised ordinary voters — which is starkly revealed by the _

14

public opinion data and the history of legislative efforts in

this area — is itself a problem of constitutional] dimension.

Our democratic system rests on the principle that eligible

voters will participate in the electoral process and will feel

justifiably confident that the process and its results are fair,

informed, and responsive. And it is difficult to imagine a

constitutional interest more compelling than that of preserv-

ing the citizenry’s faith in democracy.

Moreover, this is not a problem of sacrificing free speech

in order to assure electoral integrity. That is a false choice.

It is possible to craft spending limits that allow ample room

for candidates and their supporters to convey their message

thoroughly and forcefully. Indeed, while unlimited cam-

paign spending may increase the volume of speech in one

sense, it also may inhibit robust debate of issues, decrease

public involvement and confidence in the electoral process,

and foster a fundamental disaffection with democratic gov-

ernance on the part of the electorate.

B. A Rule That Allows States To Experiment With

Campaign Expenditure Limits Permit The De-

velopment Of Electoral Systems That Combat

Public Cynicism While Preserving First

Amendment Values |

A holding by this Court that campaign expenditure limits

may be permissible would not mean that such limits always

(or, for that matter, often) would be upheld. Restrictions on

campaign spending would be subject to the most exacting

constitutional scrutiny. As the Second Circuit recognized in

remanding this case for further fact-finding regarding Ver-

mont’s expenditure caps (see Landell, 382 F.3d at 135-137),

proponents of such limits would be obligated to show that the

state regulation truly serves a compelling interest, is narrowly

tailored, and was formulated to serve its goal effectively.

Unfortunately, the Court’s decision in Buckley has been

widely understood — erroneously, in our view — to stand for

15

the proposition that no level of corruption (perceived or real)

and no level of distortion in the electoral system could be

compelling enough to justify campaign spending limits, and

that such limits never could be tailored narrowly enough to

survive constitutional scrutiny. See Landell, 382 F.3d at 107

(citing cases); id. at 151-152, 155-156, 159, 172, 185 (Win-

ters, J., dissenting). As a consequence, many courts and state

legislatures have taken Buckley to deny states the ability to

experiment with novel methods of campaign finance reform

or to test the practical consequences of spending caps.

That outcome has been “fraught with serious conse-

quences to the Nation” (New State Ice Co. v. Liebmann, 285

U.S. 262, 311 (1932) (Brandeis, J., dissenting)), as states

have been unable to make use of what may be the most effi-

cacious tool with which to address the growing public cyni-

cism about the electoral process. By contrast, freeing states

to implement expenditure caps if they are able to make the

requisite showing would have enormously healthy conse-

quences for the Nation’s political system. A constitutional

rule that allows states at least to attempt to make the strict

showing necessary to justify spending limits could lead to the

development of systems that restore public faith in democ-

racy, while also fostering robust debate, candidate interaction

with the electorate, a full exploration of pressing issues, and

fair campaigns.

This point is illustrated by considering the unique experi-

ence of one “courageous” jurisdiction that has been able, in

the post-Buckley era, to “serve as a laboratory” regarding the

real-world effects of campaign expenditure limits. New State

Ice, 285 U.S. at 311 (Brandeis, J., dissenting). Beginning in

1974, the city of Albuquerque, New Mexico, made use of

mandatory spending limits in locai elections. Until those

limits were held unconstitutional by the Tenth Circuit three

decades later in Homans, this regime served the goals of in-

creasing electoral competition — with greater access to office

by new candidates and no sacrifice in voter participation in

16

elections for city office. See State PIRGs’ Democracy Pro-

gram, The Case for Limits on Campaign Expenditures, at 1,

available at http://www.buckbuckley.com/pdfs/spending _

limits policy background.pdf. It also served to decrease the

advantage that incumbents typically hold in electoral compe-

tition. For example, none of the four mayoral candidates

who sought reelection during the period between 1974 and

invalidation of the spending limits regained their office. Tes-

timony of Donald A. Gross at Tr. 88:6-89:9, Landell v.

Sorrell, 2:99-cv-00146-WKS (D. Vt. June 2, 2000); Anthony

Gierzynski, Albuquerque Election Financing (2002), at 5-6,

available at www.nvri.org/library/cases/albuquerque/election

financinganalysis. pdf. Albuquerque’s figures contrast

sharply with other U.S. mayoral races, in which incumbents

are reelected approximately 80 per cent of the time. Jbid.

The City’s pre-Homans experience with campaign spend-

ing limits also contrasts sharply with developments in 2005,

during Albuquerque’s first full election cycle without spend-

ing limits. That year, the incumbent mayor raised a war

chest of nearly $1.2 million, a record-setting amount for Ai-

buquerque. He was reelected after drastically outspending

his opponents. Jim Ludwick, Chavez Raised, Spent Nearly

$1.2 Million, ALBUQUERQUE JOURNAL, 2005 WLNR

16559603 (Oct. 12, 2005).

Albuquerque’s limits held more than 90 per cent public

approval when they were first enacted. They remained

highly popular, garnering 87 per cent support over twenty

years later, near the time the Tenth Circuit felt obliged by

Buckley to dismantle them. See The Case for Limits on Cam-

paign Expenditures, supra, at 1. In 1998, after living with

expenditure limits for more than two decades, Albuquerque’s

voters expressed their clear view that the City’s campaign

finance system was working:

e “Support for spending limits in Albuquerque’s lo-

cal elections is overwhelming and intense. More

than eight in ten voters favor a law that limits

17

spending in local election campaigns, including a

solid majority which strcngly favors the law. In-

tense support for spending limits crosses gender,

age, education, economic and partisan lines.”

e “Voters believe that spending limits have made

Albuquerque elections more fair and honest than

[those in] other big cities. A solid majority agree

on this point and the perception crosses party

identification * * * .”

e “When voters are presented with two opposing

viewpoints, an overwhelming majority believe

that stricter and lower limits on campaign spend-

ing improves the fairness of elections in Albu-

querque. Similarly, after hearing arguments from

both sides, two thirds of voters believe that put-

ting stricter limits on campaign spending im-

proves the honesty and integrity of local elec-

tions.”

Lake Snell Perry & Assoc., Public Perceptions of Campaign

Spending Limits: Finding from a Survey of 400 Registered

Voters in the City of Albuquerque, New Mexico, at 3 avail-

able at http://www.nvri.org/library/cases/albuquerque/public

perceptions Albuquerque NM.pdf.

Other analyses of Albuquerque’s campaign finance regu-

latiou.s revealed that voter turnout was at least as high as in

other cities of similar size, that incumbents had less of a

campaign spending advantage, and that officeholders there-

fore were more vulnerable when compared to incumbents in

similar cities. See Homans v. Albuquerque, 217 F. Supp. 2d

1197, 1200-1201 (D.N.M. 2002). This led one commentator

to find that “democracy in Albuquerque is actually as

healthy, if not healthier than in other cities,” concluding that

Albuquerque’s campaign spending limits contributed sub-

stantially to this outcome. Gierzynski, Albuquerque Election

Financing, supra, at 4.

18

Of equal importance, Albuquerque’s experience belies

the argument that mandatory spending limits serve princi-

pally to protect incumbents. Opponents of restrictions on

campaign expenditures often advance this “incumbency ad-

vantage” argument as a primary rationale. See, e.g., Br. of

Vermont Republican State Committee at 42-43; Br. of Mitch

McConnell as Amicus Curiae at 18-22; Landell, 382 F.3d at

151, 183, 196, 199 (Winters, J., dissenting). The fact that the

argument falls away in the actual practice of spending limits

demonstrates the value of state political experimentation over

academic hypothesis in this arena.

Albuquerque’s experience holds several lessons for this

case. It makes clear that campaign expenditure limits may be

tailored to effectively address public cynicism regarding the

role of money in political campaigns, while also preserving

First Amendment values. And more broadly, it reaffirms the

importance — often acknowledged by this Court — of relying

on the legislative process to produce creative solutions to

pressing social problems.

Accordingly, amici urge the Court to make clear that lim-

its on campaign expenditures should be subject to close re-

view — but not to scrutiny that is “‘strict in theory, but fatal in

fact.’” Adarand Constructors, Inc. v. Pena, 515 U.S. 200,

237 (1995) (citation omitted). The Court should clarify that

caps on spending may be permissible if set at a level that rea-

sonably assures an adequate opportunity to get the candi-

date’s message across to the electorate in an intelligible and

comprehensive way. Thus, the constitutional touchstone is a

practical one: whether a spending limit is too low to permit

the candidate to achieve reasonably broad and consistent ac-

cess to the electorate. That is a matter on which state legisla-

tures should have discretion, taking into account the nature of

the race, the size of the electorate, the availability of media

outlets, the costs of various types of communications, and

other relevant factors — all subject to judicial review. Such a

holding would free state and local governments froin artifi-

19

cial and absolute constraints on their ability to experiment in

the realm of campaign finance reform, and thus would equip

elected officials with the full complement of tools they need

to restore public faith in the democratic process.

CONCLUSION

The Court should affirm the court of appeals’ judgment

that limits on campaign expenditures may be constitutional,

if narrowly tailored and effectively designed.

Respectfully submitted.

PHILIP ALLEN LACOVARA

CHARLES A. ROTHFELD

Counsel of Record

DANIEL T. BROWN

HEATHER H. MARTIN

Mayer, Brown, Rowe &

Maw LLP

1909 K Street, NW

Washington, DC 20006

(202) 263-3000

FEBRUARY 2006