# Amicus Curiae Brief — Randall v. Sorrell

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0098%3A34

## Record

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

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0098%3A34. Public record. Not legal advice.