Amicus Curiae Brief — Randall v. Sorrell

9

One study in Minnesota revealed that “almost one-third of

those surveyed were less likely to vote or participate in

politics because they believed that givers have more

influence over elected officials than [non-givers] do.” David

Schultz, Proving Political Corruption: Documenting the

Evidence Required to Sustain Campaign Finance Reform

Laws, 18 Rev. Litig. 85, 122 (Winter 1999). This Court has

recognized that the government has a compelling interest in

addressing this public disdain for the electoral process, in

order “to sustain the active, alert responsibility of the

individual citizen in a democracy for the wise conduct of

government.” United States v. International Union United

Automobile Workers of Am., 352 U.S. 567, 575 (1957).

Additionally, reforms—and expenditure limits in

particular—can be justified by a compelling content-neutral

interest in preserving the quality of representation by

eliminating the enormous burden of raising enormous

campaign war chests. That this burden exists, and has come

to dominate the professional lives of officeholders and

candidates is not open to serious question. See generally

Vincent A. Blasi, Free Speech and the Widening Gyre of

Fund-Raising: Why Campaign Spending Limits May Not

_ Violate The First Amendment After All, 94 Colum. L. Rev.

1281 (1994). As amici can attest, the incessant demands of

fund-raising substantially impairs elected represeniaiives in

fulfilling their professional duties. Elected officials spend so

much time raising campaign funds that they do not have

enough time remaining to master issues, communicate with

constituents and perform other essential parts of their jobs.

This interest is not merely important: it is of a constitutional

dimension in its own right.

This problem is the direct result of the absence of limits

on campaign spending. Moreover, the fundraising burden on

10

candidates is a direct outgrowth of Buckley. By upholding

limitations on contributions while striking down spending

limits, Buckley established a legal structure that has proven

untenable. If legislators address the risk of corruption by

imposing contribution limitations, they force officeholders

and candidates to spend most of their time raising campaign

funds. If they decide to free officeholders and candidates

from this burden by eliminating contribution limits, they

must endure the risk of actual and perceived corruption of

the electoral process.

These justifications for reform address public concerns

wholly unrelated to the communicative impact of campaign

speech. As to preserving public confidence in the system

and combating voter apathy, the problem is not the political

message funded by a large contribution or expenditure, but

rather the perceived significance of the very fact that a large

amount of money is donated or spent. Cf United States Civil

Serv. Comm'n v. National Ass'n of Letter Carriers, 413 U.S.

548, 565 (1973) (upholding restrictions on federal

employees’ political activities justified in part on ensuring

that “[public] confidence in the system of representative

Government is not . . . eroded to a disastrous extent”). As to

limiting the time candidates spend raising money, the

problem is not the message any candidate seeks to fund, but

rather the extent to which the fundraising process itself

hampers the job performance of public servants. Cf Renton,

475 U.S. at 47 (reviewing zoning restriction on “adult”

theatres under intermediate scrutiny because the restriction

was meant to control “the secondary effects of such theatres

on the surrounding community”).

3. More generally, the Court also should apply a

deferential standard of proof that will allow vindication of

legislative judgments of the necessity of campaign finance

11

laws. In First Amendment cases, this Court has carefully

avoided “imposing judicial formulas so mngid that they

become a straitjacket that disables government from

responding to serious problems.” Denver Area Educ.

Telecomms. Consortium, Inc. v. FCC, 518 U.S. 727, 741

(1996). That wisdom applies with particular force in the

present context. The “choice of means” to protect the

integrity of elections “presents a question primarily

addressed to the judgment of Congress.” Burroughs v.

United States, 290 U.S. 534, 547 (1934) (upholding the

Federal Corrupt Practices Act of 1925); see also Letter

Carriers, 413 U.S. at 566. Therefore, if “the means adopted

are really calculated to attain the end, the degree of their

___necessity, the extent to which they conduce to the end, the

f

closeness of the relationship between the means adopted and

the end to be attained, are matters for congressional

determination alone.” Burroughs, 290 U.S. at 548.

This deference has been applied to laws regulating the

electoral process even in the face of First Amendment

challenges when, as here, significant competing government

interests are at stake. For example, in Burson, the Court did

not require stringent proof from the legislature to uphold a

100-foot boundary around polling places. Burson, 504 U.S.

at 209. As Burson noted, “this Court never has held a State

‘to the burden of demonstrating empirically the objective

effects on political stability that [are] produced’ by the

voting regulation in question.” /d. at 208-09 (quoting Munro

v. Socialist Workers Party, 479 U.S. 189, 195 (1986);

alteration in original). There, the Court affirmed a campaign

reform, even in the fact of strict scrutiny, on the basis of “{a]

long history, a substantial consensus, ana simple common

sense.” 504 U.S. at 211.

12

This deference is warranted in part because “‘it is difficult

to isolate the exact effect” of campaign finance laws on the

harms they are designed to address. /d. at 208. Deference is

especially important where, as with many campaign finance

laws, the justification for regulation is declining public faith

in the electorai system—a problem that is inherently difficult

to prove by direct evidence and that legislators are distinctly

well-positioned to access. Moreover, the Court has

recognized that it should not require that “a State’s political

system sustain some level of damage before the legislature

could take corrective action.” Munro v. Socialist Workers

Party, 479 U.S. 189, 195 (1986). The Court therefore has

provided deference to permit legislatures “to respond to

potential deficiencies in the electoral process with foresight

rather than reactively, provided that the response is

reasonable and does not significantly impinge on

constitutionally protected rights.” Jd. at 195-96.

Accordingly, the Buckley Court went out of its way to

defer broadly to legislative judgments about the need for

contribution limits. |The Court upheld the FECA

contribution limits based not on anything Congress actually

proved but merely because “Congress could legitimately

conclude that the avoidance of the appearance of improper

influence” justified restrictions on contributions. Buckley,

424 U.S. at 27. As to the threat of actual corruption, the

Buckley Court relied on common sense in acknowledging the

importance of fundraising to elections and the danger that °

donors might exchange campaign funds for political favors.

Id. at 26-27. The Court did not demand actual evidénce of

corruption, noting only that examples cited by the Court of

Appeals showed that “the problem [was] not an illusory

one.” Jd. at 27. Indeed, the Court declared that “the scope of

such pernicious practices can never be reliably ascertained.”

13

Id. (emphasis added). Finally, Buckley admonished courts to

avoid “fine tuning” of legislative limits on contributions. /d.

at 30.

The Court has reiterated this deferential portion of

Buckley in subsequent cases. See FEC v. National Right To

Work Comm., 459 U.S. 197, 209-10 (1982) (finding that

congressional judgment about electoral laws “warrants

considerable deference’’); id. (Court will not “second guess a

legislative determination as to the need for prophylactic

measures where corruption is the evil feared”); California

Med. Ass'n v. FEC, 453 U.S. 182, 199 (1981) (holding that

contribution limit was “an appropriate means by which

Congress could seek” to advance governmental interest).

The Court made the same point in Shrink Missouri. Noting

that “(t]he quantum of empirical evidence needed to satisfy

heightened judicial scrutiny of legislative judgments will

vary up and down with the novelty and plausibility of the

justification raised,” the Court held it was “neither novel nor

implausible” that large contributions present dangers of

corruption and arouse voters’ suspicions in the integrity of

the system. Shrink Missouri, 528 U.S. at 391. The Court

therefore sustained the contribution limits without

demanding much evidentiary proof, concluding “there is

little reason to doubt that sometimes large contributions will

work actual corruption of our political system, and no reason

to question the existence of a corresponding suspicion

among voters.” /d. at 395.‘

* The Court in Shrink Missouri relied upon an affidavit from a State

Senator to the effect that large contributions have “the real potential to

buy votes,” newspaper accounts of potential improprieties related to large

campaign contributions, several campaign financing scandals cited by the

Court of Appeals in another case, and a voter referendum reflecting

support for contribution limits. /d. at 394-95.

14

This deference is appropriate, and should be afforded

here. Legislatures, not courts, are institutionally better suited

to assess the need for campaign finance laws and what types

of laws will best address the declining faith of their

constituents in the political process. And, as seasoned

participants in that process, legislators have practical

experience as to the potentially negative aspects of the

campaign financing system and the best way to ameliorate

them. As Justices Stevens’ and Ginsburg recognized in

Colorado Republican I, “Congress surely has both wisdom

and experience in these matters that is far superior to ours.”

Colorado Republican Fed. Campaign Comm. v. FEC, 518

U.S. 604, 650 (1996) (Stevens, J., dissenting). “Where a

legislature has significantly greater institutional expertise, as

for example, in the field of election regulation, the Court in

practice defers to empirical legislative judgments.” Shrink

Missouri, 528 U.S. at 402 (Breyer, J., concurring). The

Court must allow vindication of the predictive judgments of

legislatures that reforms are needed to address compelling

government interests, interests that are themselves of

constitutional magnitude.

The first-hand experience of amici indicates that the

campaign laws upheld in Buckley are insufficient, by

themselves, to stop the decline of voter confidence in the

integrity of the electoral process. And the regime Buckley

put in place has had the perverse consequence of burdening

officeholders and candidates with the ceaseless task of

fundraising to ensure adequate war chests—a burden that 1s

eroding the quality of representative government in this

country even as it erodes the public’s faith in their elected

officials. At the same time, the Court should not

overestimate the impact that campaign finance laws have on

First Amendment interests on the other side of the balance.

15

Even though the purpose of a reform is unrelated to the

communicative impact of speech, the effect can be to

enhance, rather than to restrict, the interests protected by the

First Amendment. “It is quite wrong to assume that the net

effect of limits on contributions and expenditures—which

tend to protect equal access to the political arena, to free

candidates and their staffs from the interminable burden of

fund-raising, and to diminish the importance of repetitive 30-

second commercials—will be adverse to the interest in

informed debate protected by the First Amendment.”

Colorado Republican I, 518 U.S. at 649-50 (Stevens, J.,

dissenting).

CONCLUSION

This Court should grant review of the question whether

Vermont’s campaign expenditure limitations violate the First

Amendment.

Respectfully submitted,

DONALD B. VERRILLI, JR.

Counsel of Record

JENNER & BLOCK LLP

601 Thirteenth Street NW

Washington, DC 20005

(202) 639-6000

June 15, 2005 Counsel for Amici Curiae

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Nos. 04-1528 and 04-153¢ tes

In The OFFICE OF ™ ='E SucRin

Seseue Court of the Gnited States

7

NEIL RANDALL, et al.,

Petitioners,

Vv.

WILLIAM SORRELL, et al.,

Respondents.

VERMONT REPUBLICAN STATE COMMITTEE, et al.,

Petitioners,

v.

WILLIAM H. SORRELL, et al.,

Respondents.

¢

On Petitions For A Writ Of Certiorari

To The United States Court Of

For The Second Circuit

S

BRIEF AMICUS CURIAE OF THE

_ SECRETARIES OF STATE OF NEW HAMPSHIRE,

OREGON AND WISCONSIN IN SUPPORT

OF GRANTING THE PETITIONS WITH REGARD

TO THE FIRST QUESTION PRESENTED

}

RICHARD E. SCHWARTZ

DANIEL T. BROWN

Counsel of Record

HEATHER MAJOR

Of Counsel

CROWELL & MorING LLP

1001 Pennsylvania Avenue, N.W.

Washington, DC 20004-2595

June 15, 2005 (202) 624-2500

COCKLE LAW BRIEP PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

i

TABLE OF CONTENTS

Page

TS GU A oisshiccescnseccosisscsssteniscnsnres ii

I a 1

STATEMENT OF THE CASE .....0.......:cccceccecseeeeeeseeee 2

REASONS FOR PARTIALLY GRANTING THE

EEA eRe Mra ee tay 3

ij

TABLE OF AUTHORITIES

Page

CASES

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

GN ecioceviisiiteinecitisnaiipirititeianigincsdicdanichaala se ieaiditeticti heilbiabticadsleade rads 11

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

Cruzan v. Director, Mo. Dept. of Health, 497 US.

SR TN caiiceitcdaisctaiieiiniiniecndiihagiltichiiah dati aia cithiageininuicealiialiunsine 10

Fullilove v. Klutznick, 448 U.S. 448 (1980)...............0.0006 11

Landell v. Sorrell, 382 F.3d 91 (2d Cir. 2004)........... 2, 5, 11

McConnell v. Federal Election Comm’n, 540 U.S.

ay ee es A UI aki Alialtldiicinpaceierncetbenstiniveminenitodions 10

New State Ice Co. v. Liebmann, 285 U.S. 262 (1932)........ 10

MISCELLANEOUS

Mark C. Alexander, Money in Political Campaigns

and Modern Vote Dilution, 23 Minn. J. of Law &

ay er sticerniictintabiiisiipiinpipicinsimnsetinbieenmipnnui 6

Vincent Blasi, Free Speech and the Widening Gyre of

Fund-Raising, 94 COLUMBIA L. REV. 1281 (1994).......... 4,7

John Bonifaz, Brenda Wright, and Gregory Luke,

Challenging Buckley v. Valeo: A Legal Strategy,

33 Akron L. Rev. 39, 41 (1999) ............ccccccesseseeeeeeeseeeenees 7

Kelly Burton, Money, Politics and Campaign

PES TN, AB inccvccescisescsccesstctncse clecindéchncalibaniasiilaniinpsiausel 6

California Clean Election Campaign, Arizona -

Clean Elections Works! at http://www.caclean.

org/content/victories/az_works.php?path=content/

Se I oo scnecichaitbipeiindescnnssensdgnisseshonensngnie 9

iii

TABLE OF AUTHORITIES — Continued

Beth Donovan, Constitutional Doubts Bedevil Hasty

Campaign Finance Bill, 51 Cong. Q. Wkly. Rep.

RAPS sicrnecscsserconiniueunieonsies tesbepeneicteneoieniaipinatite

Beth Donavan, Constitutional Issues Frame Consti-

tutional Options, 51 Cong. Q. Wkly. Rep. 437

CIID cncniicasescntncenneninunidittnansiemnanennpininadarenayibavinhiauete

Beth Donavan, Finance by Gutting Public Funding,

51 Cong. Q. Wkly. Rep. 1534, 1539 (1993)...............

Beth Donovan, House Takes First Big Step in Over-

hauling System, 51 Cong. Q. Wkly. Rep. 3246,

ST OD copihecsinicictibieniicneinsccnsicwinssceseanatiesavintedeneis

Beth Donovan, House Will Vote on Limits Nearly $1

Million in ’96, 51 Cong. Q. Wkly. Rep. 3091 (1993).....

Elizabeth Drew, Politics and Money: The New Road

Op Cpr ener Bik CD osnsecsccccssseccnsccecssccnossessusoncteses

Free Speech and Campaign Finance Reform:

Subcommittee Hearing on the Constitution Before

the House Comm. on the Judiciary, 105th Cong.

Sess. 1 (1997) available at http://www.house.gov.

judiciary/22226.Htm ..........-.ccssssesccssesessesessucssssecssvers

Ken Hechier, Financing Elections: West Virginia,

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

FAIRS REPORTER 3 (1990), at http://www.polsci.

wvu.edw/ipa/par/report_7_3.html....................0.::000-

Paul S. Herrnson and Ronald A. Faucheaux,

Candidates Devote Substantial Time and Effort

to Fundraising, (July 7, 2000), at http://www.

bsos.umd.edu/gvpt/herrnson/reporttime. htm) .........

-

iv

TABLE OF AUTHORITIES -— Continued

Hoover Institution: Public Policy Inquiry, Campaign

Finance, State and Local Overview, at http://www.

campaignfinancesite.org/structure/states1.htm]

(last updated Sept. 20, 2004)..0.............cceceseesrseseereecereers 8

PETER LINDSTROM, CENTER FOR RESPONSIVE POLI-

TICS, CONGRESS SPEAKS: A SURVEY OF THE 100TH

CO Gi Gi iiccicnsccecéisosiuiicibiiintitatl isis agin giana

1

INTEREST OF AMICI

Amici include the following Secretaries of State:

William M. Gardner, Secretary of State of New Hamp-

shire, Bill Bradbury, Secretary of State of Oregon, and

Douglas La Follette, Secretary of State of Wisconsin.’

Amici serve as the chief elections officers of their states,

which gives them extensive experience with the issues

raised in this case.

Amici seek review of the Second Circuit’s decision

because, although they believe that it is supported by this

Court’s holding in Buckley v. Valeo, 424 U.S. 1 (1976), it is

contrary to similar decisions of the Sixth and Tenth

Circuits. As the chief elections officers in their states, they

are particularly concerned about the impact that the split

in the Circuits’ decision will have on the ability of States

and localities to enact effective reform measures sought by

their citizens and legislators. Moreover, Amici are con-

cerned about the detrimental impact that the split among

the Second, Sixth and Tenth Circuits will have on their

efforts to enact innovative campaign finance laws. As

discussed further below, the present uncertainty regarding

mandatory spending limits has a chilling effect on the

creativity of the State and local governments which should

be serving as laboratories of democracy.

If the Sixth and Tenth Circuits correctly interpreted

Buckley as imposing a per se ban on mandatory campaign

spending limits, Amici urge this Court to reconsider its

holding in Buckley and permit Vermont to demonstrate

* The parties have consented to the filing of this brief. Their letters

are on file with the Clerk of this Court. Pursuant to Rule 37.6, Amici

state that no counsel for any party has authored this brief in whole or

in part; and no person or entity made a financial contribution to the

preparation or submission of this brief.

2

that its campaign expenditure limits satisfy constitutional

requirements. If such a per se ban truly exists as a result

of Buckley that ban will stifle the creativity of States and

localities in this arena. As the Respondents demonstrate,

the circumstances that led this Court to enact that barrier

29 years ago have changed. This Court should reconsider

the extent of First Amendment limits on campaign expen-

diture laws.’

+

STATEMENT OF THE CASE

This case involves amendments to its campaign

finance laws enacted by the State of Vermont in 1997.

These amendments were adopted with the overwhelming

approval of bipartisan majorities of both houses of the

Vermont Legislature. See Landell v. Sorrell, 382 F.3d 91, 100

(2d Cir. 2004). The amendments have succeeded in “prevent-

ing the reality and appearance of corruption, and protecting

the time of candidates and elected officials.” Id. at 124. As

the Landell District Court found, and the Second Circuit

agreed, limits on campaign contributions alone have been

ineffective in achieving those goals in federal elections. Id. at

116-125. The Second Circuit summarized additional ills

attributable to the lack of spending limits in our current

system of campaign finance. See id. at 115.

A split among the circuits exists on this important

issue. The Second Circuit, in this case, held that Buckley

does not erect a campaign spending limits barrier while

the Sixth and Tenth Circuits have held that such a barrier

Amici also support the conditional cross-petitions of both William H.

Sorrell, et al., the Respondent-Conditional Cross Petitioner and Vermont

Public Interest Research Group, et al., Respondent-Intervenors-Conditional

Cross Petitioners. -

3

exists. See Randall Petition for Certiorari at 22; Vermont

Republican State Committee (“VRSC”) Petition for Certio-

rari at 5-7. The importance of this issue is demonstrated

by studies that show the current degree of cynicism among

the population and diminishing voter turnout. Regardless

of the actual scope of Buckley’s holding, Amici urge this

Court to grant the Petition and remove the cloud over the

constitutionality of campaign spending limits.

+

REASONS FOR PARTIALLY

GRANTING THE PETITIONS

Amici urge granting the petitions with regard to the

first question presented for three reasons. The first is the

strong citizen desire for reform. That desire has expressed

itself in numerous reform efforts. While some State and

local legislative bodies have interpreted Buckley to allow

mandatory campaign spending limits, the available data

show that many have not enacted such limits because they

believe that Buckley bars them. Second, this Court has

recognized the benefit of allowing state legislatures — as

the laboratories of democracy — to function as unfettered by

judicial constraints as reasonably possible. Third, whether or

not Buckley is correctly read to impose a per se barrier,

declaring now that no such barrier exists will enable States

and localities to address the problem more effectively be-

cause more minds will come to bear on the issue.

1. There is a strong desire for reform and experimen-

tation in State and local governments. The results are

simple expressions of disappointment with the high cost of

campaigns and the perception of corruption that flows

from the realities of fund raising. This appetite becomes

4

apparent with attempts to enact campaign spending

limitations at the federal, State and local levels.

a. Politicians consider the fund-raising process

debilitating because it takes away time that could be spent

more valuably by serving their constituents. Politicians

and commentators alike believe that too much valuable

time is devoted to this ceaseless endeavor to raise funds.’

This problem presents itself at the federal and local levels.

At the state level, one study has shown that a majority of

candidates for statewide office spend at least one-quarter

of their time fund raising for their campaigns; nearly one-

third of candidates for state legislative office are similarly

preoccupied with fund raising.‘

In addition, numerous Congressmen have recounted

their fund raising experiences. For example, one Republi-

can Senator (unnamed) admitted, “I knew Congress well

before I came here, but I did not know the amount of time

consumed by fundraising and how that encroaches on your.

* See Vincent Blasi, Free Speech and the Widening Gyre of Fund-

Raising, 94 COLUMBIA L. REV. 1281 (1994) (stating that candidates

spend too much time fund raising) {hereinafter Blasi, Free Speech)

citing, DAN CLAWSON ET AL., MONEY TALKS: CORPORATE PACS AND

POLITICAL INFLUENCE 79, 203-04 (1992); FRANK J. SORAUF, INSIDE

CAMPAIGN FINANCE: MYTHS AND REALITIES 72-73, (1992); BROOKS

JACKSON, HONEST GRAFT: BIG MONEY And THE AMERICAN POLITICAL

Process 69, 91-92, 108 (1990); Davip B. MAcLeBy & Canpice J.

NELSON, THE MONEY CHASE: CONGRESSIONAL CAMPAIGN FINANCE

RerormM 43-45, 197 (1990); BuRDETT LOOMIS, THE NEW AMERICAN

POLITICIAN: AMBITION, ENTREPRENEURSHIP, AND THE CHANGING FACE OF

POLITICAL LIFE 195-96 (1988); ELIZABETH DREW, POLITICS AND MONEY:

THE NEw ROAD TO CORRUPTION 96 (1983). Jd. at 1281 n.1.

* Paul S. Herrnson and Ronald A. Faucheaux, Candidates Devote

Substantial Time and Effort to Fundraising (July 7, 2000), at http://

www.bsos.umd.edu/gvpt/herrnson/reporttime. html.

5

ability to work here. It devours one’s time — you spend the

two or three years before your re-election fundraising. The

other years, you're helping others.” Likewise, former

House Majority leader Richard Gephardt has also ex-

plained that “[iJf you have the need to raise three or four

hundred thousand dollars, you’re taking an enormous

amount of the member’s time just to raise money.”

The costs of elections at both the Federal and State

levels have continued to skyrocket. This trend of rising

costs, while evident to the Buckley Court in 1976, has

continued to increase in the ensuing 29 years. The need for

politicians to spend huge sums to win elections raises the

perception of, and conditions for, corruption. Campaign

funds often come from special interest groups with legisla-

tive agendas. When politicians win elections with these

funds and then continue to receive financial backing from

these same special interest groups, these politicians are

likely to feel pressure to cater to these groups. See Lan-

dell, 382 F.3d at 117-118. Perhaps that is why the phrase

“special interest politics” has become so commonplace in

our national political discourse.

Similar to the problem with “special interest politics,”

a select few wealthy individuals and groups contribute the

majority of campaign finances and thus possess a concen-

tration of the political power. At least one commentator

has posited that this power concentration creates a form of

* PeTeR LINDSTROM, CENTER FOR RESPONSIVE POLITICS, CONGRESS

SPEAKS: A SURVEY OF THE 100TH CONGRESS 80 (1988).

* Elizabeth Drew, Politics and Money: The New Road to Corruption

51 (1983).

6

vote dilution and is “incompatible with the Constitution’s

command of equality.”

Politicians routinely confirm that this problem is real.

For example, former Rep. Dan Glickman (D-Kan.) admits

that “[mjoney has made it more difficult for Democrats to

define an economic agenda that is different from the

Republican agenda; we are taking from the same contribu-

rs.” These very reasons are why Congress periodically

considers solutions to free candidates from excessive fund-

raising obligations.”

” Mark C. Alexander, Money in Political Campaigns and Modern

Vote Dilution, 23 Minn. J. of Law & Inequality 239, 244-45 (2005).

* Ken Hechier, Financing Elections: West Virginia, the States, and

the Nation, 7 W. VA PUBLIC AFFAIRS REPORTER 3 (1990), available at

http://www. polsci.wvu.edu/ipa/par/report_7_3.htm] [hereinafter Hechier,

Financing Elections]. See also, Free Speech and Campaign Finance

Reform: Subcommittee Hearing on the Constitution Before the House

Comm. on the Judiciary, 105th Cong. Sess. 1 (1997) (attaching state-

ment of Gene Karpinski, Executive Director of U.S. Public Interest

Research Group stating “with this kind of influence accorded to big

money in our political system, the candidates and the political parties will

increasingly look alike on all issues of importance to moneyed inter-

ests”), available at http://www.house.gov judiciary/22226.htm [hereinaf-

ter Karpinski, Free Speech and Campaign Finance Reform].

* In 1993, Members of the House of Representatives frequently

commented on it. See, e.g., 139 Conc. Rec. H10656 (daily ed. Nov. 22,

1993) (remarks of Rep. Gejdenson); id. at H10665 (remarks of Rep.

Harman); id. at H10670 (remarks of Rep. Reed); id. at H10671 (re-

marks of Rep. Hughes); id. at H10672 (remarks of Rep. Beilenson); id.

at H10675 (remarks of Rep. Woolsey); Beth Donovan, House Takes First

Big Step in Overhauling System, 51 Conc. Q. WKLY. REP. 3246, 3248

(1993); Beth Donovan, House Will Vote on Limits Nearly $1 Million in

‘96, 51 CoNnG. Q. WKLY. REP. 3091 (1993). See also, Marcus & Babcock,

One Day in the Fundraising Trail: Dawn to Dusk/Chasing the Dollars,

THE Boston GLOBE, May 16, 1997 at Al, quoting U.S. Senator Robert

Byrd of West Virginia in a March 1997 Senate floor speech: “The

incessant money chase that permeates every crevice of our political

(Continued on following page)

7

b. To address this need, which is felt at the State and

local levels as much as at the federal level, various State

and local governments have enacted — or considered but

declined to enact — campaign spending limits. Since this

Court’s ruling in Buckley in 1976, however, legislatures

and legal scholars have often understood the first Amend-

ment as prohibiting per se mandatory campaign spending

limits regulation.” In January 1997, Senator Arlen Spec-

ter (of Pennsylvania) commented that fundamental cam-

paign finance reform remained impossible without

overturning Buckley." In advocating for campaign finance

reform, he further stated, “[mly concept of running for

elective office . . . is a matter of issues, a matter of tenacity,

a matter of integrity and how you conduct a campaign.””

system is like an unending circular marathon. And it is a race that

sends a clear message to the people: that it is money, money, money

that reigns supreme in American politics.”

* Indeed, in “Congressional deliberations, opposition to campaign

spending limits has most often been expressed in terms of constitu-

tional concerns.” See Blasi, Free Speech, supra note 2, at 1288, citing,

Beth Donovan, Constitutional Doubts Bedevil Hasty Campaign Finance

Bill, 51 Conc. Q. WKLY. REP. 2215, 2217 (1993); Beth Donavan, Finance

by Gutting Public Funding, 51 Conc. Q. WKLY. REP. 1534, 1539 (1993);

Beth Donavan, Constitutional Issues Frame Constitutional Options, 51

CONG. Q. WKLY. REP. 437 (1993).

“ Senator Specter also noted in his remarks on the floor of the

Senate that a growing group of prominent legal scholars have called for

the reversal of Buckley. 143 Conc. Rec. S557-01, S558 (daily ed. Jan.

21, 1997) (statement of Sen. Specter). See also Karpinski, Free Speech

and Campaign Finance Reform, supra note 7.

* 143 Cong. Rec. at S558, supra note 10.; see also, John C. Bonifaz,

Brenda Wright, and Gregory Luke, Challenging Buckley v. Valeo: A

Legal Strategy, 33 AKRON L. REV. 39, 41 (1999) (“Members of Congress

have introduced 11 bills since 1976 which would establish campaign

spending limits for federal elections.”) Further, the note cites the

following examples: S. 1684, 98th Cong. (1st Sess. 1983); S. 1185, 98th

Cong. (1st Sess. 1983); S. 59, 99th Cong. (1st Sess. 1985); H.R. 2473,

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