Amicus Curiae Brief — Randall v. Sorrell

a

602, 627 (1935) (“[G]eneral expressions” in an opinion that

“go beyond the case” may be respected “but ought not to

control the judgment in a subsequent suit, when the very

point is presented for decision.”) (internal quotations

omitted).

Because the broad language of Buckley goes well beyond

what was necessary to decide the challenge to expenditure

limits in that case, the opinion should not be read as binding

on the very different circumstances presented in the cases

now before this Court or a case challenging spending caps in

judicial elections. Given the very low spending limits

imposed by FECA, and the limited arguments in their defense

asserted by the government, the federal expenditure caps

could not withstand First Amendment scrutiny. But the

ruling in Buckley does not foreclose the constitutionality of

more generous spending limits supported by stronger

iustifications.”

A. Buckley Addressed Only the Very Low Spending

Limits Imposed by FECA.

This Court first drew a bright-line distinction between

campaign contributions and expenditures when it considered

the constitutionality of the FECA 30 years ago in Buckley.

The Buckley Court upheld FECA’s caps on contribu ‘ons to

candidates, concluding that limiting large contributions

> There will be no bright-line test whereby to judge whether spending

limits are sufficiently generous to withstand First Amendment scrutiny

any more than there is such a test to judge whether contribution limits are

too low. See Nixon v. Shrink Mo. Gov't PAC, 528 U.S. 377 (2000). But

as with contribution limits, courts will be able to parse the facts and

context of particular expenditure ceilings and, without second-guessing

the line-drawing of the legislature, recognize differences in kind between

spending limits that afford ample opportunity for all candidates to engage

in vigorous discussion of their positions and those that do not. See

Buckley, 424 U.S. at 30; see also Nixon, 528 U.S. at 395.

nie

would combat both the appearance and reality of corruption

without materially burdening a _ contributor’s First

Amendment nights. 424 U.S. at 20-38. The Court equated

expenditures with political speech, however, and found that

“the Act’s expenditure ceilings impose[d] direct and

substantial restraints” on First Amendment rights. /d. at 19-

20, 39. It then ruled that three proffered state interests—in

diminishing “the danger of candidate dependence on large

contributions,” “equalizing the financial resources of

candidates competing for federal office,” and “reducing the

allegedly skyrocketing costs of political campaigns,”—could

not justify imposing those restraints. /d. at 55-57. The very

low limits in FECA invited such an analysis.

FECA imposed tight limits on independent expenditures,

self-funding by individual candidates, and on spending by

candidates’ campaign committees.’ No person could spend

more than $1,000 annually advocating the election or defeat

of any one federal candidate, id. at 40; presidential and vice-

presiden.ial candidates could spend no more than $50,000 of

their own money, id. at 51; and varying limits were set for

spending by congressional and presidential candidate

committees, id. at 51, 54, 55. The Court commented that the

independent expenditure limitation “would make it a federal

criminal offense for a person or association to place a single

one-quarter page advertisement ‘relative to a clearly

identified candidate’ in a major metropolitan newspaper.” /d.

at 40. In addition, the campaign spending ceilings would

have “substantially limited the overall expenditures of the

two major-party Presidential candidates in 1972.” /d. at 55 n.

62. The low levels of the limits plainly, and rightly, fueled

* FECA’s limits on expenditures by political parties were challenged only

as Fifth Amendment violations and were upheld in Buckley. 424 U.S. at

59 n. 67. This Court later held that limits on independent expenditures by

political parties violated the First Amendment. Colo. Republican Fed.

Campaign Comm. v. FEC, 518 U.S. 604, 616-618 (1996).

~

the Court’s conclusion that First Amendment rights were

severely burdened by FECA.’ As is explained in Point II,

however, generous expenditure limits need not impose such

onerous burdens and thus should not be precluded by the

decision in Buckley.

B. Buckley Did Not Consider the Full Range of

State Interests That Could Be Proffered To

Justify Generous Expenditure Caps.

The Buckley Court considered, and rejected, three

governmental interests offered in defense of FECA’s low

spending limits. Although that reasoning may well warrant

reconsideration, this Court need not now revisit that aspect of

the decision to uphold generous spending limits. Experience

since Buckley demonstrates that there are additional

compelling state interests that may justify such limits.

What Buckley inadvertently wrought by upholding

contribution limits and invalidating expenditure ceilings is a

campaign finance system with limited supply and unlimited

demand for money.° Candidates fearfui of being outspent

must chase every potential donation, even if it means—and it

does mean—being locked up in a room for long hours every

* Amici have no quarrel with the narrow holding of Buckley striking down

the expenditure limits actually before that Court as undue interferences

with political speech. It is because Amici believe that the size and

contextual justification for a given set of spending limits are relevant to

the First Amendment analysis that Amici oppose a mechanical reading of

Buckley as a per se bar on expenditure limits, no matter what the

circumstances.

° The solution to this problem cannot be a return to the unregulated

campaign finance system with its attendant corruption, real and

perceived, which precipitated the enactment of FECA in the first place.

Rather, this Court should recognize that the very interests that support

contribution limits, and other interests not considered in Buckley, warrant

limits on the demand for cash as well as the supply.

. P

day dialing for dollars. Sitting officials running for re-

election are diverted from governmental responsibilities, and

all candidates must divert their attention from the broad array

of voters who crave communication with aspiring

officeholders to the narrow range of well-heeled donors who

can pay for such access. Fundraising pressures inescapable

in the absence of expenditure caps thus have a direct adverse

impact on the functioning of government, as both courts

below recognized. Landell v. Sorrell, 382 F.3d 91, 123 (2d

Cir. 2004); id., 118 F. Supp. 2d 459, 468 (D. Vt. 2000).

Moreover, the reality and appearance of corruption that arise

when candidate time is disproportionately devoted to

courting monied interests, see Elizabeth Drew, The

Corruption of American Politics: What Went Wrong and Why

61-80 (1999) (describing what happens when the “culture of

money” dominates politics); Martin Schram, Speaking

Freely: Former Members of Congress Talk About Money in

Politics 16-23, 27-35, 61-68, 89-109 (1995) (providing

examples from former officeholders of how fundraising

compromised legislative decisions); contribute to the

“eroding of public confidence in the electoral process.” FEC

vy. Nat'l Right to Work Comm., 459 U.S. 197, 208 (1982).

Expenditure limits thus serve two compelling interests

not considered as potential justifications in Buckley. First,

the ceilings ensure that public officials running for office will

need less time to raise campaign funds and have more time to

fulfill their duties of office, improving the quality of

democratic representation. Vincent 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, 1282-83 (1994). Second,

during the time that is spent on campaigning, candidates can

reach out to constituents without the means to become

contributors as well as to those who will provide financial

support, encouraging more robust dialogue, broadening the

scope of the policy debate, and building confidence in the

_ %

political process. Burt Neubome, /s Money Different?, 77

Tex. L. REV. 1609, 1619 (1999) (“Fund-raising becomes

such a preoccupation that it drives out competing uses of

time, like thinking about issues, developing positions, and

conferring with constituents even if they do not have a great

deal of money.”).

Finally, Buckley considered the constitutionality of limits

imposed in FECA, which applied only to spending in federal

elections. Because federal judges are not elected, the Court

was never asked to consider—and this Court has never

considered—whether there might be compelling

governmental interests not implicated tn races for executive

or legislative office that could justify spending limits in

campaigns for the state bench. Because Vermont does not

elect its judges, that question is not presented in this case

either. The distinct function of the judiciary—both federal

and state, whether appointed or elected—and the

unquestionable importance of preserving real and perceived

judicial integrity, impartiality, and independence, thus argue

for a reading of Buckley that does not preclude the possibility

of proving compelling interests that justify expenditure

ceilings in judicial elections. See Erwin Chemerinsky,

Preserving an Independent Judiciary: The Need for

Contribution and Expenditure Limits in Judicial Elections, 74

CHI.-KENT L. REV. 133, 135 (1998) (“Buckley’s rejection of

expenditure restrictions for presidential and congressional

elections is distinguishable because of the unique nature of

the judicial role and the importance of judicial

independence.”).

9.

Il. Buckley Should Be Reconsidered If It Imposes a Ban

on Mandatory Spending Limits That Reaches Not

Only Executive and Legislative Races But Also

Campaigns for the Bench.

if this Court reads Buckley as adopting an absolute ban

on mandatory expenditure limits, the Court should revisit the

decision in light of the factual evidence and legal arguments

supporting Vermont’s spending ceilings. Cf Agostini v.

Felton, 521 U.S. 203, 235-38 (1997). Whatever the strength

of the Court’s reasoning under the facts stipulated in Buckley,

the circumstances of this case are distinguishable on at least

two important grounds. First, the lower courts in this case

found that effective campaigns could be conducted under

Vermont’s spending limits. Second, nearly 30 years of

experience under Buckley has revealed that contribution

‘ limits alone cannot adequately combat the decline in public

confidence caused by real and apparent governmental

corruption. In other words, the principal assumptions on

which the opinion rests do not hold true for generous

spending limits that allow for meaningful campaigns.

A generous campaign spending cap is distinguishable

from an unreasonably low spending limit in ways that are

constitutionally significant with respect to the burden on both

the candidate’s First Amendment interest and the compelling

nature of the government’s interest in combating corruption.

Given the extremely low spending limits at issue in Buckley,

the Court correctly concluded that “the expenditure

limitations contained in [FECA] represent[ed] substantial

rather than merely theoretical restraints on the quantity and

diversity of political speech.” 424 U.S. at 19. But the

generalized premise that restrictions on campaign

expenditures are the equivalent of a direct ban on political

speech simply does not hold when one considers the

decreasing marginal effectiveness of campaign spending at

generous levels. Moreover, the Court’s assumptions that

-10-

campaign expenditures above a generous ceiling are

unrelated to corruption and represent wholly voluntary

speech are undermined by recognizing that campaign

spending is often a prisoner’s dilemma in which candidates

feel compelled to engage in a destructive and potentially

corrupting fundraising arms race. In judicial clections,

especially, there is reason to believe that record-breaking

expenditures are less a reflection of candidates’ preferred

method of conducting campaigns than of their inability

(caused by the unnecessarily broad reading of Buckley)

effectively to coordinate their decisions about spending in the

absence of legally binding limits.

A. The Link Between Money and Speech Weakens

as Campaign Expenditures Rise Above a

Generous Level.

In stnking down campaign spending limits, the Buckley

Court’s analysis rested in part on the assumption that a

campaign’s expenditure of money and its political speech are

so closely related that an effort to regulate campaign

spending is the virtual equivalent of an effort to regulate the

speech directly. The Court assumed that the relationship

between spending and speech is always identical, no matter

how much money is involved: “A restriction on the amount

of money a person or group can spend on political

communication during a campaign necessarily reduces the

quantity of expression by restricting the number of issues

discussed, the depth of their exploration, and the size of the

audience reached.” /d. at 19 (emphasis added).

In fact, the relationship between money and speech in

political campaigns is not constant. Candidates spend money

in order to persuade the electorate to go to the polls and vote

" e

for them on election day.’ To achieve that goal, candidates in

contested elections must advertise themselves to the voters.

Advertising, however, is subject to the law of diminishing

returns—‘“the more of it is done, the less effective each unit

becomes.” Ross D. Petty, The Impact of Advertising Law on

Business and Public Policy 38 (1992) (discussing

commercial advertising); see also Robert W. McAuliffe,

Advertising, Competition, and Public Policy 26 (1987)

(“Most research has shown that there are diminishing returns

to [commercial] advertising.”) (emphasis in original).

Although other factors also influence the marginal

effectiveness of each additional dollar a candidate spends—

for example, the candidate's name recognition,” whether the

candidate is an incumbent,’ and the amount of money her

opponent has spent'’—over a threshold level, the marginal

effectiveness of additional campaign expenditures declines.

See King Banaian & William A. Luksetich, Campaign

Spending in Congressional Elections, 29 ECON. INQUIRY 92,

93 (1991) (noting that “additional [campaign] expenditures

are not likely to be as effective as previous expenditures”)

(citing Gary Jacobson & Samuel Kernell, Strategy and

Choice in Congressional Elections (1982)); Kevin B. Grier,

” To the extent that a candidate’s speech is a manifestation of her

autonomy and self-expression, a campaign spending limit does not affect

this interest. A campaign spending cap leaves a candidate free to speak

her mind.

* See, e.g., Kevin B. Grier, Campaign Spending and Senate Elections,

1978-84, 63 PUB. CHOICE 201, 210-11 (1989) (candidate spending to buy

name recognition has a relatively larger effect at low expenditure levels

as compared with the spending of a candidate that is already well known).

” See id. at 209 (“[A]t lower spending levels, challenger spending is more

effective than equal amounts of incumbent spending, while incumbent

spending is productive longer than is challenger spending.”).

© See, e.g., Keith T. Poole ct al., The Revealed Preferences of Political

Action Committees, 77 AM. ECON. REV. 298, 298-99 (1987) (“At the

margin, a dollar of spending is more ‘productive’ in a close race than in

one that is not highly competitive.”).

-12-

Campaign Spending and Senate Elections, 1978-84, 63 Pus. ~

CHOICE 201, 216 (1989) (stating that, while the relative

productivity of campaign spending by challengers and

incumbents varies with respect to the level of expenditures,

“both types of spending have diminishing returns”). Thus,

contrary to the Buckley Court’s unqualified equation of

campaign expenditures with political speech, the qualitative

nature of the First Amendment interest of the candidate and

the electorate marginally diminishes with each additional

expenditure over a generous ceiling for both incumbents and

challengers. ''

In arguing that a generous spending cap would have less

impact on First Amendment rights than would a low

expenditure ceiling, Amici do not suggest that the impact is

de minimis. Campaign expenditures above a generous

spending cap would enable candidates to issue more

campaign advertisements, just as allowing contributors to

give more than $2,000 to a candidate for federal office would

enable a contributor to communicate more strongly the

intensity of her support for a candidate. The point is instead

that just as the First Amendment value of money contributed

to candidates decreases over a threshold amount, see Buckley,

424 US. at 20, the First Amendment value of money spent

by candidates decreases at the high end of a diminishing

‘' It is sometimes argued that spending ceilings have a greater impact on

challengers than incumbents, largely because challengers must spend

more to overcome the incumbency advantage of high name recognition.

See, eg, Gary Jacobson, The Effects of Campaign Spending on

Congressional Elections, 72 AM. POL. Sci. Rev. 469, 470 (1978).

Although this claim is hotly contested in the political science literature,

see, e.g., Donald Green & Jonathan Krasno, Rebuttal to Jacobson's “New

Evidence for Old Arguments,” 34 AM. J. OF POL. Sci. 363, 369-72 (1990)

(arguing that other factors, such as challenger quality, determine spending

patterns and votes received), the argument is not directly pertinent in this

case, as the spending ceilings in Vermont are generous and are not hkely

to stifle challenger spending.

a

marginal impact curve. As that value declines, so should the

burden imposed on a state seeking to justify spending limits.

B. Spiraling Expenditures May Reflect a Prisoner’s —

Dilemma, Rather Than Fully Voluntary

Spending in Need of Protection.

The Buckley Court’s decision to invalidate FECA’s

campaign expenditure limits rested on two key premises.

The Court assumed that: (1) candidates were each free to

choose whether to raise and spend increasingly large sums on

their election campaigns, and (2) the level of expenditures

was unconnected to the threat of corruption. See 424 U.S. at

57 (“[C]andidates . . . must retain control over the quantity

and range of debate on public issues in a_ political

campaign.”); id. at 55-56 (campaign spending limits do not

address the threat of corruption stemming from candidate

dependence on large contributions). When applied to

elections with high levels of campaign spending, however,

neither assumption is justified.

Candidates functioning in an unregulated campaign

expenditure setting are trapped in a prisoner’s dilemma. In

the classic account of the prisoner’s dilemma, two prisoners

are arrested and held separately with no means of

communication. If neither cooperates with the prosecutor,

both will be convicted of a lesser offense and sentenced to

two years’ imprisonment; if only one agrees to testify against

the other, that one will go free and the other prisoner will

receive the maximum sentence of ten years’ imprisonment;

and if both cooperate, each will be prosecuted for the more

serious crime but receive a six-year sentence instead of the

maximum penalty. The prisoner’s dilemma produces

independent decisions by both prisoners to cooperate with the

prosecutor, leaving them worse off than if they had been able

to coordinate their decisions and agree to keep silent. Each

prisoner would reason that he will be better off confessing

-14-

whether his codefendant stays silent (in which case he will

receive no prison time instead of two years) or also confesses

(in which case he will receive six years in prison instead of

ten). See Douglas G. Baird et al., Game Theory and the Law

33-34 (1994); William Poundstone, Prisoner's Dilemma 116-

25 (1992); Russell Hardin, Collective Action 2-3 (1982).

In the candidate’s version of the prisoner’s dilemma,

each candidate must continue to raise and spend funds, not

because he or she would freely choose to do so, but because

the candidate fears that an opponent will do so, and thereby

gain an advantage. “Each [politician) would prefer

expenditures to be limited, but if they are not limited, each

must struggle to raise and spend as much as possible.”

Ronald Dworkin, Free Speech and the Dimensions of

Democracy, in If Buckley Fell: A First Amendment Blueprint

for Regulating Money in Politics 63, 83 (E. Joshua

Rosenkranz, ed. 1999). The resulting uncontrollable spiral

intensifies candidates’ dependence on _ contributions,

rendering them vulnerable to the appearance and reality of

corruption. The effect of the candidate’s dilemma is that

candidates and society are both worse off than if a generous

spending ceiling had been in effect.

Except for the very wealthy, or in a system of full public

funding of elections, all candidates must raise moncy to run

for office. An unending round of fundraising is not always in

the best interests of candidates. It is inordinately time-

consuming, it is personally demeaning, it deflects them from

the substantive business of governance and campaigning, and

it exposes them to the reality and appearance of corruption.

Moreover, because campaign spending follows the law of

diminishing returns, at extremely high levels, it is unlikely to

change the outcome of the election at all, especially when

matched by an opponent. For these reasons, a rational

candidate would seek to engage in no more fundraising than

is necessary to make a persuasive case to the electorate.

o 1§-

Acting alone, however, no candidate can set a reasonable

campaign spending (and therefore fundraising) -limit/

Campaign spending is not a static event. See generally

Steven Ansolabehere & Shanto lyengar, Winning Through

Advertising: It's All in the Context, in Campaigns and

Elections American Style 101, 108-11 (James A. Thurber &

Candice J. Nelson eds., 1995) (noting that the impact of one

candidate’s advertising is contingent on the opponent’s

advertising; political advertisers are interdependent rather

than autonomous actors). Although the law of diminishing

returns applies to campaign expenditures, each candidate

knows that winners usually outspend losers. See, e.g., Poole,

supra note 9, at 298; Jamin Raskin & John Bonifaz, The

Constitutional Imperative and Practical Superiority of

Democratically Financed Elections, 94 COLUM. L. REV.

1160, 1175 (1994).

Accordingly, to set a reasonable budget, each candidate

needs to know how much money his opponent will spend on

the race. In an unregulated campaign expenditure world,

however, a candidate will never know the outer range of his

opponent’s budget. A rational candidate therefore will

engage in limitless fundraising and spending, reasoning that

she is better off doing so no matter what her opponents does:

she avoids the danger that she will be outspent and suffer

because outspending correlates with winning, and given this

correlation she may gain advantage by outspending her

opponent. The result of this candidate’s dilemma is a

fundraising spiral in which, after a threshold level, each side

engages in fundraising primarily out of fear that the other

side will gain an advantage. See Neuborne, /s Money

Different?, 77 Tex. L. REV. at 1617.

' Moreover, as campaign spending spirals to higher and

higher levels, candidates become more vulnerable to

corruption. Because Buckley considered candidate

—

dependence on “large contributions” as the sole source of the

actuality and appearance of political corruption, 424 U.S. at

55, the Court failed to consider that spiraling campaign costs

are also corrupting because they increase a candidate’s

dependence on contributions generally. In the post-Buckley

world, candidates are desperate to maximize expenditures,

but limited in the amount of contributions they can raise from

any one donor.'* Hence, candidates must sell themselves to

greater numbers of donors for smaller amounts of money. In

such an atmosphere of intense need, both candidates and

contributors are intensely vulnerable to an inappropriate

temptation to trade badly needed cash for badly needed

political favors. In contrast, under a spending cap,

contributors become more fungible. If one contributor

expects something ir return for his contribution, the

candidate can move to another who will not make such

demands, without significant risk of strategic loss.

The involuntary and mutually destructive nature of the

candidate’s dilemma is well documented by the 2004

Supreme Court election in Illinois. The election set a

national fundraising record for a single state Supreme Court

seat—with the two candidates raising more than $9.3 million.

Deborah Goldberg, et al, The New Politics of Judicial

Elections 2004: How Special Interest Pressure on Our

Courts Has Reached a “Tipping Point"—and How to Keep

Our Courts Fair and Impartial 14, 18 (Justice at Stake 2005).

But even the victorious candidate expressed dismay at a

campaign finance system that produced an endless money

chase. Calling the expenditures “obscene,” winner Lloyd

Karmeier asked: “What does it gain people? How can people

Candidates are desperate to maximize expenditures even in states

without contribution limits, as the recent Supreme Court elections in

Illinois (described infra) demonstrate. There, the potential for corruption

created by the endless demand is exacerbated by the opportunities for

corruption presented by large contributions.

17.

have faith in the system?” Ryan Keith, Spending for

Supreme Court Renews Cry for Finance Reform, Associated

Press (AP Wire), Nov. 3, 2004. Plainly, the new justice did

not believe that he or his opponent needed to spend many

millions of dollars to deliver their messages to the electorate,

but the system left neither of them with any other choice. |”

Without that choice, Karmeier accepted large sums

directly and indirectly from a party with a case pending

before the Illinois Supreme Court while the election

proceeded. Kevin McDermott, Donations to Judge Figure in

Court Cases, St. Louis Post-Dispatch (Feb. 1, 2005). Once

elected, he refused to recuse himself from the case. See

Kevin McDermott, Court Says Karmeier Can Hear Donor’s

Case, St. Louis Post-Dispatch (Mar. 16, 2005). He then cast

the deciding vote on a $456 million claim, overturning a

lower court decision that was unfavorable to his donor.

Avery v. State Farm Mut. Auto. Ins. Co., 835 N.E.2d 801 (III.

2005); G.M. Filisko, Billion-Dollar Verdict Goes Bust:

lilinois Supreme Court Reverses Record Verdict Against

State Farm, ABA Journal e-Report (Aug. 26, 2005), at

http://www.abanet.org/journal/ereport/au26verdict.html.

Even assuming that the decision was based on an

unbiased consideration of the facts and the law, public

confidence in the judge’s integrity has been tarnished. See,

e.g., Lyle Denniston, A Constitutional Duty to Recuse?, at

http://scotusblog.com/movabletype/archives/2005/12/25

week/ (“Should an elected judge, who accepts large

'? Contributors to Karmeier also recognized the structural problem. “This

is a system that has just gotten out of control,” said Ed Murnane of the

Illinois Civil Justice League, an association of doctors, insurers, and

business groups, which was a major donor to Karmeier’s campaign.

Ryan Keith, Spending for Supreme Court Renews Cry for Finance

Reform, Associated Press (AP Wire), Nov. 3, 2004 (noting that Murnane

“agreed with Karmeier and others that limits on spending in judicial races

or other ways to elect or appoint judges should be considered”).

3

campaign donations, sit on a case that directly affects the

financial or business interests of the donors and their

associates? Put as an ethical question, the answer would seem

to be obvious: No.”); Justice for Sale, aat

http://www.acrsnetwork.con/acrs/html/justice_for_sale.html

(noting that post-decision interviews revealed “overall lack of

faith .n the judicial system, the uniform belief that justice had

been sold to the entity capable of paying the most”).- In a

system with expenditure limits, the candidates would not face

the untenable choice between rejecting contributions that

compromise their perceived impartiality and losing the

advantage that comes with tainted cash.

The harms caused by the candidate’s dilemma can be

dealt with only by collective action that promises each side

that the other will not gain a competitive advantage—in other

words, by adhering to a generous spending cap imposed by

law. Under such a cap, neither side will be driven to raise

funds out of fear of the other’s excesses.

Voluntary spending limits cannot achieve this goal. The

transaction costs of trying to reach an agreement on spending

are too high in races involving more than two candidates, and

the strategic reasons that cause candidates to engage in the

fundraising race to begin with will dissuade any candidate

from agreeing to limit spending if she believes she is the

better fundraiser. Even if candidates were able to agree to

spending limits, the distrust between them and the temptation

ee

-19-

to outspend each other will make such agreements highly

unstable. '*

In Ohio, the state Supreme Court’s effort to end the

candidate’s dilemma by limiting expenditures was defeated

by the overly broad reading of Buckley recommended by

Petitioners in the instant case. Suster v. Marshall, 149 F.3d

523 (6th Cir. 1999). The Suster court concluded that “the

language of Buckley and its progeny have necessarily

determined, irrespective of the kind of position sought, that

any spending restriction in any electoral campaign process ts

an infringement on a candidate’s First Amendment rights.”

Id. at 530 (emphasis in original). Claiming that Buckley

recognized only one compelling state interest, the Suster

court refused even to consider others that might justify

spending limits in judicial campaigns. /d. at 532 (“Although

Defendants cite several other interests, the prevention of

corruption is the only interest the Supreme Court has and,

hence, this Court will give credence.”). When the limits were

invalidated, several candidates nevertheless made serious

efforts to control their spending, producing average

expenditures in the general election of approximately

$800,000. Institute on Money in State Politics, State at a

Glance: Ohio 2000, Judicial Elections, http://www.follow

themoney.org/database/StateGlance/state_judicial_elections.p

htm!?si=200035. But fundraising pressures were

overwhelming as soon as the next cycle, and average general

election spending nearly doubled to $1.56 million in 2002.

'* That voluntary spending limits cannot by themselves resolve the

candidate’s dilemma is evident in the record below, where the District

Court noted that adherence to the voluntary limits Vermont adopted in

1993 “plummeted” with “each election cycle,” until no candidates agreed

to participate in 1998. Landell, 118 F. Supp. at 465; see also Frank

Phillips, Kerry Spent $/.7m on Election, Boston Globe, Dec. 6, 1996

(noting the breakdown of an agreement to limit use of personal funds.

following Senator Kerry’s allegation that Governor Weld had violated

their spending agreement for the 1996 senatorial race).

> -

Deborah Goldberg, ef al., The New Politics of Judicial

Elections 2002: How the Threat to Fair and Impartial Courts

Spread to More States in 2002, 19 (Justice at Stake 2004).'*

Amici reflect the concerns of many judges who would

welcome a solution to the candidate’s dilemma.

C. This Court Should Not Reach Out to Preclude

States from Combating the Harms Associated

with Uncontrolled Judicial Campaign Spending.

Amici have argued that if Buckley is read to impose a per

se ban on spending limits, its key assumptions should be

reexamined in this case. Because the interest in completely

unfettered campaign spending decreases as expenditures

cross very high thresholds, the burden of spending limits set

at generous levels is not severe. Indeed, spending limits

ample enough to ensure robust debate may more

appropriately be regarded not as a burden, but as relief from

unwelcome and relentless pressure to raise endless amounts

of campaign cash. Finally, Amici have challenged Buckley's

assumption that contribution limits are adequate to guard

against real and perceived corruption by describing the

corrupting potential of the uncontrolled demand for every

possible lawful donation. Supra, at 16.

-breaking spending in Illinois might be attributed in part to

the absence of contribution limits in that state. But Ohio, which imposed

$2,200 limits on contributions to 2002 candidates for the Supreme Court,

Edward D. Feigenbaum & James A. Palmer, Campaign Finance Law

2002 OH-3 (FEC), available at http://www. fec.gov/pubrec/cfl/cfl02/cfl0

2part2bsummaries.doc, saw four million-dollar campaigns in that year.

Contribution limits are not designed to control spending, and they often

do not do so in practice. See Kedron Bardwell, Campaign Finance Laws

and the Competition for Spending in Gubernatorial Elections, 84 SOc.

Sci. Q. 811 (Dec. 2003). Only the coordination mechanism supplied by

expenditure caps can end the candidate’s dilemma in judicial elections.

-21-—

Even if this Court rejects Amici’s critique of Buckley,

restraint should be exercised to ensure that the opinion in this

case does not unnecessarily reach beyond the circumstances

presented here. The state’s interest in protecting the real and

perceived integrity of candidates who are desperate for

campaign cash under any system that does not limit spending

does not vary depending on whether they are running for

executive, legislative, or judicial office. But there are

functions unique to the judiciary—its role as impartial arbiter

of disputes and as an independent check on majoritarian

excesses-——that states have strong interests in defending and

that should not be foreclosed by an unnecessarily broad

decision in this case.

Whether the interests in actual and apparent judicial

impartiality and independence are sufficiently compelling to

justify mandatory spending limits in campaigns for the bench

should await a case that squarely presents that question. To

the extent that Buckley is read to reach that question, even

though it was not presented on the facts of that case, this

Court should overrule Buckley. States should be free to

demonstrate that interests uniquely implicated by judicial

campaign finance are sufficiently important to justify limits

on spending in campaigns for the bench.

That option should remain open even though the harms

associated with uncontrolled candidate spending could be

eliminated by ending judicial elections altogether. After all,

even appointment systems are not immune from the influence

of money and politics—witness the battle waged on the air

and the web over the three most recent U.S. Supreme Court

nominations. See, e.g., Advice, Consent, and Advertising:

Television Advertising on Nominations to the U.S. Supreme

Court, at http://www.brennancenter.org/programs/scnominat

ions/robertsnomination.html; Hit+drew Harriet Miers, at

http://withdrawharrietmiers.blogspot.com/. States originally

adopted judicial elections as a means of protecting the

° 22 «

judiciary from the ills of patronage and partisan politics,

Kermit Hall, The Judiciary on Trial: State Constitutional

Reform and the Rise of an Elected Judiciary, 1846-1860, 45

HISTORIAN 337 (1983), and they have introduced a variety of

structural changes to the electoral process in response to

developments that threatened unduly to politicize the

judiciary, see L. Berkson, Judicial Selection in the United

States, in Guide to Political Campaigns in America 398 (P.

Herrnson, ed.2005) (describing rise of nonpartisan elections);

see also Republican Party of Minn. v. White, 536 U.S. 765,

791 (2002) (O’Connor, J., concurring) (describing “Missouri

Plan,” which couples appointment with retention elections).

States should now be free directly to address the most recent

threat—the rising importance of money in_ judicial

elections—-through changes in their campaign finance

systems, including spending limits. Precluding states from

adopting such changes will not necessarily ensure the

abandonment of judicial elections, but it will certainly hasten

the decline of the real and perceived integrity, impartiality,

and independence of the judiciary. Because Vermont’s law is

not applicable to judges, this Court can and should decide

this case without foreclosing spending limits in judicial

elections.

a.

CONCLUSION

Amici take no position on the constitutionality of the

specific spending limits at issue in these consolidated cases.

For the reasons stated above, however, Amici respectfully

request that the Court affirm the decision below as to its

holding that mandatory spending limits are _ not

unconstitutional per se. If the lower court’s holding is

rejected as to spending limits in executive and legislative

races, Amici urge the Court to craft its decision not to

foreclose the imposition of spending limits in judicial

electrons.

Respectfully submitted,

Deborah Goldberg

Counsel of Record

Suzanne Novak

BRENNAN CENTER FOR JUSTICE

AT NYU SCHOOL OF LAW

161 Avenue of the Americas

12" Floor

New York, NY 10013

(212) 998-6730

Counsel for Amici Curiae

February 8, 2006 7

APPENDIX

Fe

APPENDIX

LIST OF AMICI CURIAE

Former Chief Justices of state high courts:

Hon. James G. Exum, Jr. (North Carolina Supreme

Court, 1986-1994)

Hon. Richard P. Guy (Washington Supreme Court,

1999-2001)

Hon. William C. Hastings (Nebraska Supreme Court,

1987-1995)

Hon. Vincent L. McKusick (Maine Supreme Judicial

Court 1977-1992)

Hon. Robert A. Miller (South Dakota Supreme Court,

1990-2001)

Former and current Associate Justices and Associate Judges

of state high courts: ;

Hon. Andy Douglas (Ohio Supreme Court, 1985-

2002)

Hon. Robert H. Dudley (Arkansas Supreme Court,

1981-1996)

Hon. Stewart F. Hancock, Jr. (New York Court of

Appeals, 1986-1993)

Hon. Howard A. Levine (New York Court of

Appeals, 1993-2002)

Hon. Alice Resnick (Ohio Supreme Court, 1989-

present),

Hon. Cruz Reynoso (California Supreme Court, 1982-

1987)

-A2-

Former and current Justices and Judges of intermediate

appellate and trial courts:

e Hon. Murry Cohen (Court of Appeals for the First

District of Texas, 1983-2002)

e Hon. Donaiua J. Horowitz (Superior Court of

Washington for King County, 1973-1977)

oO

C~ | FEB 8 - 2006

Nos. 04-1528

(Consolidated with Nos. 04-1530 an THE CLERK

IN THE

Supreme Court of the Gnited States

NEIL RANDALL, et al.,

Petitioners,

V.

WILLIAM H. SorRRELL, et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

BRIEF OF THE DEMOCRATIC NATIONAL

COMMITTEE AS AMICUS CURIAE

SUPPORTING RESPONDENTS

AMANDA S. LAPORGE JOSEPH E. SANDLER

DEMOCRATIC NATIONAL COMMITTEE Counsel of Record

430 S. Capitol Street, S.E. NEIL P. REIFF .

Washington, D.C. 20003 STEPHEN E. HERSHKOWITZ

(202) 863-8000 SANDLER, REIFF & YOUNG

50 E Street, S.E. # 300

Washington, D.C. 20003

(202) 479-1111

February 8, 2006 Counsel for Amicus Curiae

WILSON-EPES PRINTING Co., INC. - (202) 789-0096 - WASHINGTON, D.C. 20001

® «CEE» co

TABLE OF CONTENTS

TALES Ge AUT TI GBI cceccccccccsccsncscnccnsccsnnnsoccesensee

CTS CF IB crccccscseninsecesesnccnensenscetnscnnnssnenece

SUMMARY OF ARGUMENT ..............cessesssssssssseeseees

I.

II.

BUCKLEY DOES NOT FORECLOSE

CANDIDATE EXPENDITURE LIMITA-

TIONS THAT ARE PART OF AN

INTEGRATED SCHEME NARROWLY

TAILORED TO SERVE COMPELLING

GOVERNMENTAL INTERESTS .........--0-e0++-

ACT 64’°S EXPENDITURE LIMITS

SERVE COMPELLING GOVERNMENTAL

ED iiciicnninicnpniinienilientuiasinmenininiinssenavate

A. Restoring Citizen Confidence in_ the

Democratic System Is a Compelling State

I crccssincscsitssiinasiiatatansioninenasiecinsaninsintciiicuastin

B. Enhancing the Relative Role of Political

Parties Is a Compelling State Interest..........

C. Deference Should Be Accorded to the

Decision of Vermont Legislators to Limit

Their Own Spending Relative to That of

Oner PONCE ACIGIS .n..c.cscccccsescccsccseccccessees

Dy cncvnnantuasionsennntinnmeinmmmnsmnememanen

(i)

12

15

TABLE OF AUTHORITIES

CASES Page

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

LATA a? NAAR Ne 5

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

Burson v. Freeman, 504 U.S. 191 (1992).............. 5

California Democratic Party v. Jones, 530 U.S.

IT CITT csnideienseriniariiciehlanpbibiiasiaisitiiantiasinaaniaidibmnsonien 10-11

Federal Election Comm'n v. Beaumont, 539 U.S.

ITT iis ticntaeciestcarectiaehi tities inndtabiniainbamaiii 13

Fullilove v. Klutznick, 448 U.S. 448 (1980).......... 5

Kruse v. City of Cincinnati, 142 F.3d 907 (6th

Cir.), cert. denied, 525 U.S. 1001 (1998).......... 7

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

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

SEE Tc ne ee NOON 7, 8, 10

McConnell v. Federal Election Comm'n, 540

| SE ses Semone ee 3,13

Nixon v. Shrink Missouri Government PAC, 528

i a cia an aici etniacnininbclaminvediin 12-13

Perry Educational Ass'n v. Perry Local Edu-

cators’ Ass'n, 460 U.S. 37 (1983) ...............00000 5

STATUTES

OE CUB, © I TOD ccccnsccccccccnccsessssssctesesesenes 4

Fe aL I cctcissersinsitisesicentieilimnintinanisimaitinuitati 13

SS a ©, EE Eee mor 13

Vt. Stat. Ann. Tit. 17 § 2805a(a)(2005)................. 5

Vt. Stat. Ann. Tit. 17 § 280Sa(c)(2005)................. 14

Vt. Stat. Ann. Tit. 17 § 2805(a)-(b)(2005) ............ Y

Vi. Stat. Ann. Tit. 17 § 2805(e)................cccseeseeees 5

Vt. Stat. Ann. Tit. 17 § 2809(C) .c........cccecccecscceeeeees 9,10

Vt. Stat. Ann. Tit. 17 § 2BOD)................cccccereseess 9,10

ili

TABLE OF AUTHORITIES—Continued

OTHER AUTHORITIES

Amanda G. Altman, Note: Party Poopers: The

Supreme Court Overlooks the Party in Federal

Election Commission v Colorado Republican

Federal Campaign Committee, 46 ST. LOUIS

ee SIE SUE icciantanntittiionedeincinmiviansenebinanieee

Clarisa Long, Note: Shouting Down the Voice of

the People: Political Parties, Powerful PACs,

and Concerns About Corruption, 46 STAN. L.

REV. 1161 (1994)...........cccscccsssserees siciernigpiminiitsvenys

Lloyd Cutler, Party Government Under the

American Constitution, 134 U. PA. L. REv. 25

aT hc pvincnicisitiesieienaticnenaiansipenitgnatsipnenienessanaineiiensncen

Nancy L. Rosenblum, Symposium: Law and

Political Parties: Political Parties as Mem-

bership Groups, 100 COLUM. L. REv. 813, 814

Nathaniel Persily, Toward a Functional Defense

of Political Party Autonomy, 76 N.Y.U. L.

Be. Fa ee nccctncnintdintidnantiienignneoremeinmenecine

RULES

Administrative Rule 2000-1, “Vermont Cam-

paign Finance Law Regulation of Related

NNN Ce citceinsinstcticananinseceneinessieeienisines

Page

1]

11

12

11,12

1]

IN THE

Supreme Court of the Anited States

Nos. 04-1528

(Consolidated with Nos. 04-1530 and 04-1697)

NEIL RANDALL, et ai.,

Petitioners,

Vv.

WILLIAM H. SORRELL, et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

BRIEF OF THE DEMOCRATIC NATIONAL

COMMITTEE AS AMICUS CURIAE

SUPPORTING RESPONDENTS

INTEREST OF AMICUS '

The Democratic National Committee (“DNC”) is an un-

incorporated association that is the governing body of the

Democratic Party of the United States and is the “national

committee” of the Democratic Party within the meaning of

the Federal Election Campaign Act of 1971 as amended. 2

‘ Pursuant to Sup. Ct. R. 37.6, amicus states that no counsel for any

party has authored this brief in whole or in part, and no person or entity

other than amicus made a financial contribution to the preparation or

submission of this brief.

2

U.S.C. § 431(14). The DNC actively supports Democratic

candidates in federal, state and local elections throughout the

nation and is subject to federal and state campaign finance

laws including, in the case of Vermont, Vermont’s Act 64.

The current national chair of the DNC is Howard Dean, M.D.,

who served as Governor of Vermont from 1991 to 2003 and,

as the State’s Governor, signed Act 64 into law in 1997.

Pursuant to Sup. Ct. R. 37.3(a), writter consent of all the

parties to the filing of this brief has been lodged with the

Clerk.

SUMMARY OF ARGUMENT

1. Buckley v. Valeo, 424 U.S. 1 (1976) did not foreclose

the possibility that campaign expenditure limits could survive

the “exacting scrutiny” test, if the government could show

that such limits serve compelling governmental interests, not

considered in Buckley, and are narrowly tailored to serve

those interests.

2. Vermont’s Act 64 is a unique, integrated scheme that

sets limits on both political contributions and candidate

expenditures. The candidate expenditure limits serve two

fundamental and related compelling interests, neither of

which was foreclosed by Buckley: (i) restoring integrity and

faith in the democratic process in Vermont by effectively

reducing the significance of private donations as a means of

achieving access to and influence over elected officeholders;

and (ii) promoting and enhancing access to and participation

in the political process by all citizens, regardless of financial

means, both as individuals and in association with each other

by, inter alia, enhancing the role of political parties.

3. The second of these interests has an especially signifi-

cant dimension with respect to the role of political parties.

The role of parties has declined since Buckley as individual

candidates have become entrepreneurs, able to raise and

spend unlimited sums of money, making them increasingly

3

less dependent on party committees. As a result, the histori-

cal beneficial role of parties in achieving accountability,

consensus and more effective government, has been dimin-

ished. Act 64 enhances the role of political parties by leaving

them free to expend funds to support the party’s message

generally and to spend independently in support of their

candidates. By restoring this historical balance, parties are in

a better position to perform their critical functions of unifying

factions in the electorate, enhancing the voice of all citizens

in the political process and connecting citizens to their gov-

ernment. Restoring the role of parties in this way is itself a

particularly compelling governmental interest.

4. The Court has afforded legislative bodies deference

when they make decisions protecting the political process.

Such deference is especially warranted in this case. By con-

trast with the campaign finance regime, for example, con-

sidered in McConnell v. Federal Election Comm'n, 540 US.

93 (2003), in enacting Act 64 elected officials have not

restricted the spending of other participants in the political

process, but rather have decided to restrict their own spending

in order to enhance participation in and access to the political

process by their constituents, thereby restoring the faith of

ordinary citizens in their democracy. Nor have incumbent

legislators used the law to try to protect themselves against

challengers. Act 64 likely enhances the ability of challengers

because candidates’ own spending is reduced significantly;

the expenditure limits are actually set higher for challengers;

and challengers’ supporters, including in particular political

parties, have the right to spend unlimited sums independently

to promote those challengers.

4

I. BUCKLEY DOES NOT FORECLOSE CANDI-

DATE EXPENDITURE LIMITATIONS THAT

ARE PART OF AN INTEGRATED SCHEME

NARROWLY TAILORED TO SERVE COMPEL-

LING GOVERNMENTAL INTERESTS

In Buckley v. Valeo, 424 U.S. 1 (1976), this Court held that

“although . . . contribution and expenditure limitations both

implicate fundamental First Amendment interests, . . . expen-

diture ceilings impose significantly more severe restrictions

on protected freedoms of political expression and association

than do . . . limitations on financial contributions.” /d. at 23.

Therefore, the Court ruled, the constitutionality of an expen-

diture limitation “turns on whether the governmental interests

advanced in its support satisfy the exacting scrutiny applica-

ble to limitations on core First Amendment rights of political

expression.” /d. at 44-45. The Court proceeded to hold that

the limitation imposed on candidate expenditures by the 1974

Amendments to the Federal Election Campaign Act of 1971,

18 U.S.C. § 608(c)(1974), was unconstitutional. Buckley, 424

U.S. at 54-58.

The lower court in this case correctly concluded, however,

that “Buckley does not permanently foreclose any considera-

tion of campaign expenditure limitations.” Landell v. Sorrell,

382 F.3d 91, 108 (2d Cir. 2004). In Buckley, the Govern-

ment asserted, and the Court considered, only three interests:

(1) “alleviating the corrupting influence of large contribu-

tions;” 424 U.S. at 55; (2) “equalizing the financial resources

of candidates competing for federal office,” id. at 56; and

(3) “reducing the allegedly skyrocketing costs of political

campaigns... .” /d. at 57. The Court did not suggest that no

government interest that could ever be asserted in a future

case could ever be sufficiently compelling to meet the “exact-

ing scrutiny” or “strict scrutiny” test. To the contrary, the

Court simply concluded that, “No governmental interest that

has been suggested is sufficient to justify the restriction on

5

the quantity of political expression imposed by [the] cam-

paign expenditure limitations.” /d. at 55 (emphasis added).

The “exacting scrutiny” test prescribed by Buckley, for

evaluating the constitutionality of expenditure limitations, re-

quires that the government “must show that the ‘regulation is

necessary to serve a compelling state interest and that it is

narrowly drawn to achieve that end.’” Burson v. Freeman,

504 U.S. 191, 198 (1992), quoting Perry Educational Ass'n v.

Perry Local Educators’ Ass'n, 460 U.S. 37, 45 (1983). To be

sure, it is difficult to meet that standard, but it 1s not impos-

sible. “{W]e wish to dispel the notion that strict scrutiny is

‘strict in theory, but fatal in fact.”” Adarand Constructors,

Inc. v. Pena, 515 U.S. 200, 237 (1995), quoting Fullilove v.

Klutznick, 448 U.S. 448, 519 (1980)(Marshall, J., concur-

ring). Thus, the Court of Appeals correctly held that “Act

64’s expenditure limitations rise or fall on whether they have

been narrowly tailored to a compelling governmental inter-

est.” Landell, supra, 382 F.3d at 110.

Il. ACT 64°S EXPENDITURE LIMITS SERVE

COMPELLING GOVERNMENTAL INTERESTS

Vermont’s Act 64 is a unique, integrated scheme that sets

limits on both political contributions and expenditures by

candidates. The Act limits candidate expenditures in any

given two-year election cycle to $ 300,000 for governor;

$ 100,000 for lieutenant governor; $ 45,000 for secretary of

state, attorney general, treasurer, and auditor; $ 4,000 for state

senator, plus $ 2,500 for each additional seat in the relevant

jurisdiction; $2,000 for state representative in a single-

member district; and $ 3,000 for state representative in two-

member districts. Vt. Stat. Ann. Tit. 17 § 280Sa(a)(2005).

These limits are adjusted for inflation every two years. /d. at

280Sa(e). In the court below, the State of Vermont asserted

that at least five interests are served by the candidate expen-

diture limits: “(1) ‘avoiding the reality and appearance of cor-

6

ruption . . .’; (2) ‘assuring that candidates and officeholders

will spend less time fund-raising and more time interacting

with voters and performing official duties;’” (3) promoting

‘electoral competition and protecting equal access to political

participation;’ (4) ‘bolstering voter interest and engagement

in elective politics;’ and (5) ‘enhancing the quality of political

debate and voters’ understanding of the issues.”” Landell,

382 F.3d at 115. Although the Court of Appeals analyzed

only the first two of these (anti-corruption and time-saving),

the third and fourth interests—protecting access to political

participation and bolstering voter interest—are fundamental

to our democracy and are broader and more compelling than

the Court of Appeals may have assumed.

A. Restoring Citizen Confidence in the Democ-

ratic System Is a Compelling State Interest

It is no surprise that, in reacting to the current lobbying and

influence-peddling scandal in Washington, D.C., most voters

believe that “there is widespread corruption in Washington”

(58% “widespread” vs. 38% “limited”, ABC News/Washing-

ton Post poll, Jan. 5-8, 2006) and that “most elected officials

in Washington make policy decisions or take actions as a

direct result of money they receive from major campaign

contributors.” (65% yes/21% no, FOX News/Opinion Dy-

namics, Jan. 10-11, 2006). Voters have expressed the view,

in the past, that there should be a “fixed amount of money for

election campaigns” and that “all private contributions from

other sources should be prohibited.” (65% good idea/27%

poor idea, Gallup Poll, Oct. 1996).

Similarly, in enacting Act 64, the Vermont Legislature

found that “public involvement and confidence in the elec-

toral process have decreased as campaign expenditures have

increased.” Act 64, Finding (a)(4). The District Court in this

case found that the trial record “overwhelmingly demon-

strated that the Vermont public is suspicious about the effect

7

of big-money influence over politics and that voter apathy is

on the rise.” Landell v. Sorrell, 118 F. Supp. 2d 459, 468 (D.

Vt. 2000). The District Court pointed to, among other things,

polling finding that 74% of Vermont voters “feel that ordi-

nary voters do not have enough influence over politics and

government in Vermont.” /d. at 469. And the District Court

held that “[s]pending limits are an effective response to

certain compelling governmental interests not addressed in

Buckley,” including ““[p]reserving faith in our democracy,’”

id. at 482-83, quoting Kruse v. City of Cincinnati, 142 F.3d

907, 920 (6th Cir.), cert. denied, 525 U.S. 1001 (1998). The

District Court concluded that, “Given the wealth of evidence

gathered by the Vermont legislature in the process of evaluat-

ing Act 64, this Court understands why it included spending

limits as part of its comprehensive campaign finance bill.”

Id. at 483.

The Court of Appeals characterized this state interest as

“avoiding corruption and the appearance thereof. . . .” Landell,

382 F.3d at 115, an interest which the Court in Buckley held

did not, by itself, justify imposition of candidate expenditure

limits. Buckley, 424 U.S. at 55. The Buckley Court found

that the “interest in alleviating the corrupting influence of

large contributions is served by the [law]’s contribution limi-

tations and disclosure provisions rather than by . . . campaign

expenditure ceilings.” /d. Notwithstanding the Court of

Appeals’ characterization of Vermont’s interest as being

“anti-corruption” and “safeguarding its political process from

such contributor dominance,” Landell, 382 F.3d at 118-19,

the real interest at stake here is not only in preventing the

reality or appearance of “corruption”—that is, of undue

influence of contributors purchased through the making of

large contributions. Another, related but separate interest is

in combating the perception that the need to raise and spend

large amounts of private contributions—no matter how

limited each individual contribution may be—naturally and

inherently distorts the democratic process by forcing elected

8

officials to focus their time, attention, energy and priorities on

those who can afford to make political contributions, at the

expense of everyone else whose interests those elected offi-

cials are also supposed to be representing.

While this situation may not meet the traditional definition

of “corruption,” it has resulted in a loss of faith in the fairness

of the electoral and political processes. This loss of faith is

demonstrated by the kind of survey research considered by

the District Court in this case and by lowered voter turnout

and participation in the political process generally. As the

Court of Appeals stated, the issue is the impact of “contribu-

tor dominance” on “the process for achieving accessibility

and accountability of state officials and candidates. ... The

accessibility and accountability of public officials—and the

public’s faith that Vermont’s government is accessible and

accountable—are fundamental to any democratic system.”

Id, at 118-19. The achievement of such accessibility and

accountability—and of public confidence that they exist—is a

goal directly related to but different in nature than the aim of

“alleviating the corrupting influence of large contributions”

considered in Buckley, 424 U.S. at 55. It is difficult to imag-

ine, however, a moré compelling interest than restoring public

faith in our democratic system.

B. Enhancing the Relative Role of Political Parties

Is a Compelling State Interest

In enacting Act 64, the Vermont Legislature found that

“limiting campaign expenditures will . . . encourage the per-

sonal involvement of a large number of citizens in campaigns,

. . crucial to public confidence and the robust debate of

issues.” Act 64, Finding (a)(8), quoted in Landell, 118 F.

Supp.2d at 468. An important aspect of this governmental

interest, not explored either by the District Court or the Court

of Appeals, is “protecting equal access to political partici-

pation” and “bolstering voter interest and engagement,”