Amicus Curiae Brief — Randall v. Sorrell

7

offered specific evidence from the Buckley record to demon-

strate that the time-protection issue was also “fully before the

Court in Buckley” and therefore had been rejected as a basis

for imposing expenditure limits. Pet. App. 258a, 265a. Fi-

nally, Judge Winter objected to the narrow-tailoring remand

because “vastly less restrictive alternatives”’—including a

system of combined public and privatc campaign funding—

“are so obvious that a remand is unnecessary.” Pet. App.

292a, 300a.

Plaintiffs petitioned for rehearing en banc, which the

Second Circuit denied. See Landell v. Sorrell, 406 F.3d 159,

160 (2d Cir. 2005). The denial prompted four separate dis-

senting opinions, which were joined by a total of five judges.

Id.4 Three concurrences in the denial of rehearing en banc

were also filed. Jd. Notably, three of the seven judges con-

curring in the denial acknowledged that Act 64 is in tension

with this Court’s existing campaign finance precedent. See

id. at 165, 167 (Sack and Katzmann, JJ., concurring in the

denial of rehearing en banc); id. at 164 (Calabresi, J., concur-

ring in the denial of rehearing en banc). Indeed, Judge

Calabresi candidly acknowledged a desire to encourage this

Court to revisit its holding in Buckley that an interest in

equalizing electoral spending is not a sufficient basis for ex-

penditure limits. See id. at 162, 165 (Calabresi, J., concurring

in the denial of rehearing en banc) (“Buckley, by fiat, de-

clared the state’s explicit recognition and amelioration of

wealth distribution problems in the electoral marketplace to

be an insufficiently compelling interest to pass constitutional

muster.... I believe... a reconsideration [of Buckley] to be

essential.”).

4 Because Petitioners’ Appendix was produced before the final amended

version of the order denying rehearing en banc was filed, it does not con-

tain Judge Calabresi’s opinion concurring in the denial of rehearing or

Judge Raggi’s opinion dissenting from the denial. Pet. App. 317a.

8

SUMMARY OF ARGUMENT

Free speech is the essence of self-government, and thus

all restrictions on political speech must be subject to search-

ing judicial scrutiny. Act 64’s expenditure and contribution

limits silence the speech of both voters and candidates, and

therefore cannot be reconciled with Buckley or with the First

Amendment principles on which that decision rests.

The Second Circuit’s conclusion that the anticorruption

and time-protection interests taken together are sufficient to

support Act 64’s expenditure limits flatly contradicts Buck-

ley’s holding. Indeed, Vermont’s alleged time-protection

problem is caused by its exceedingly low contribution limits,

which require candidates to approach numerous smal] donors

to raise essential campaign funds. Because Vermont’s cam-

paign finance restrictions have generated its perceived time-

protection problem, the State cannot rely upon its interest in

remedying that problem to justify its expenditures limits.

Moreover, as in Buckley, Act 64’s contribution limits and dis-

closure provisions more than fully address any legitimate an-

ticorruption interest Vermont may have.

In upholding Act 64’s expenditure limits, the Second

Circuit sub silentio broadened the anticorruption interest to

encompass the “equalization” rationale explicitly rejected in

Buckley. This Court should reaffirm this aspect of Buckley

because the compelled equalization of political speech is in-

consistent with the First Amendment’s fundamental commit-

ment to free and robust debate on public issues. Whereas the

First Amendment promotes a competitive and uninhibited

marketplace of political ideas, Act 64 subordinates this prin-

ciple in favor of a vague effort to equalize the quantity of po-

litical speech among various groups.

Furthermore, Vermont’s campaign finance laws embody

incumbent self-protection. Act 64 cannot withstand close ju-

dicial scrutiny because it accomplishes very little of what it

claims and has the principal effect of benefiting incumbents.

9

For example, contrary to Vermont’s assumption that Act 64’s

contribution limits reduce the access and influence of large

donors, the Act actually has the opposite effect. The most

efficient way to raise funds under the Act is for candidates to

pursue only those donors willing to give the maximum au-

thorized contribution, and thus to quickly reach the low ex-

penditure limits, which marginalizes the majority of Vermont

contributors.

Ultimately, Act 64’s expenditure limits, contribution lim-

its, and related-expenditure provision are incompatible with

the fundamental political freedoms guaranteed by the First

Amendment, and should be invalidated in their entirety.

ARGUMENT

I. ACT 64 IS BARRED BY THIS COURT’S

HOLDING IN BUCKLEY.

The First Amendment embodies this Court’s “profound

national commitment to the free exchange of ideas.” Ashcroft

v. ACLU, 535 U.S. 564, 573 (2002) (internal quotation marks

omitted). Nowhere is this commitment stronger than in the

realm of political speech, which constitutes “the core of the

First Amendment.” Brown v. Hartlage, 456 U.S. 45, 52

(1982). Buckley therefore cautioned that it “is wholly foreign

to the First Amendment” to “restrict the speech of some ele-

ments of our society in order to enhance the relative voice of

others.” 424 U.S. at 48-49. Act 64’s expenditure and-contri-

bution limits are squarely barred by Buckley’s admonition.

A. Act 64 Is Premised Upon Inappropriate

_ Governmental Interests.

1. In Buckley, this Court considered a First Amendment

challenge to provisions of the Federal Election Campaign Act

(“FECA”) that imposed unprecedented limitations on politi-

cal contributions and expenditures. Pub. L. No. 93-443, 88

Stat. 1263 (1974) (codified in scattered sections of 2, 5, 18,

26, 47 U.S.C.). FECA prohibited individual] campaign con-

10

tributions in excess of $1,000 per candidate and $25,000

overall, barred individuals from independently spending more

than $1,000 on behalf of a candidate, and restricted the total

amount a candidate could spend in primary and general elec-

tion campaigns. Buckley, 424 U.S. at 7.

The United States asserted three governmental interests

in support of FECA’s campaign restrictions. Buckley, 424

U.S. at 25. The “primary interest” was “the prevention of

corruption and the appearance of corruption spawned by the

real or imagined coercive influence of large financial contri-

butions.” /d. The Court termed the other two interests “‘an-

cillary’ interests.” Jd. The iirst of these interests was “equal-

izing the relative ability of all citizens to affect the outcome

of elections” by “mut[ing] the voices of affluent persons and

groups in the election process.” Jd. at 25-26. The second was

to “open the political system more widely to candidates with-

out access to sources of large amounts of money” by curtail-

ing the supposed “skyrocketing cost of political campaigns.”

Id. at 26.

The Buckley Court closely scrutinized FECA’s campaign

finance restrictions because the “governmental interests ad-

vanced in support of the Act involve[d] ‘suppressing commu-

nication’” by “restricting the voices of people and interest

groups who have money to spend and reducing the overall

scope of federal election campaigns.” 424 U.S. at 17. Al-

though the Court upheld FECA’s $1,000 limitation on cam-

paign contributions by individuals, it was careful to explain

that it was not “address[ing] the more serious argument that

these [contribution] limitations, in combination with the limi-

tation on expenditures ... invidiously discriminate against

major-party challengers and minor-party candidates.” /d. at

31 n.33. The Court expressed concern that “the overall effect

of the contribution and expenditure limitations enacted by

Congress could foreclose any fair opportunity of a successful

challenge.” Jd. The Court further warned that “contribution

restrictions could have a severe impact on political dialogue if

1]

the limitations prevented candidates and political committees

from amassing the resources necessary for effective advo-

cacy.” /d. at 21.

Turning to FECA’s expenditure limits, the Court noted

that such restrictions “impose direct and substantial restraints

on the quantity of political speech” and “cannot be sustained

simply by invoking the interest in maximizing the effective-

ness of the less intrusive contribution limitations.” Buckley,

424 U.S. at 39, 44. The Court determined that the anticorrup-

tion interest was “inadequate” to justify the Act’s $1,000

limitation on independent campaign expenditures because

“the independent advocacy restricted by the provision does

not presently appear to pose dangers of real or apparent cor-

ruption comparable to those identified with large campaign

contributions.” Jd. at 45-46. The Court then considered

whether the “ancillary governmental interest in equalizing the

relative ability of individuals and groups to influence the out-

come of elections” supported the $1,000 expenditure limit.

Id. at 48. The Court squarely rejected this “equalization” ra-

tionale and emphasized that “the concept that government

may restrict the speech of some elements of our society in or-

- der to enhance the relative voice of others is wholly foreign to

the First Amendment.” Id. at 48-49 (emphasis added). The

Court therefore concluded that FECA’s $1,000 independent

campaign expenditures limitation violated the First Amend-

ment. /d. at 51.

The Court also invalidated FECA’s limitations on candi-

dates’ overall campaign expenditures. The Court explained

that the anticorruption interest was already “served by ...

contribution limitations and disclosure provisions” and that

“{ijn the free society ordained by our Constitution it is not the

government but the people ... who must retain control over

the quantity and range of debate on public issues in a political

campaign.” Buckley, 424 U.S. at 55, 57 (footnote omitted).

12

In the thirty years since Buckley was decided, this Court

has held fast to the essential core of its holding, consistently

evaluating campaign finance laws solely by their congruence

with the government’s anticorruption interest. See, e.g., FEC

v. Nat'l Conservative Political Action Comm., 470 U.S. 480,

496-97 (1985) (“preventing corruption or the appearance of

corruption are the only legitimate and compelling government

interests thus far identified for restricting campaign finances”

(emphasis added)).

2. The Second Circuit relied upon Vermont’s asserted

anticorruption and time-protection interests to sustain Act

64’s expenditure limitations. Pet. App. 144a. Analyzed in

accordance with Buckley, however, the Second Circuit’s at-

tempt to bolster the anticorruption interest with Vermont’s

asserted time-protection interest collapses.

Vermont’s time-protection interest is nothing more than

a byproduct of its anticorruption interest. Indeed, if Vermont

candidates do spend more than optima! amounts of time fund-

raising, then it is Act 64’s low contribution limits that are to

blame. Pet. App. 143a. In the absence of such stringent re-

strictions, candidates could raise necessary funds from a

smaller number of donors. Because Vermont’s purported

time-protection problem is attributable to the contribution

limits enacted in response to the State’s anticorruption con-

cerns, the time-protection interest cannot serve as an inde-

pendent justification for restricting political speech.°

It defies logic and common sense to permit Buckley’s re-

jection of the anticorruption interest as a sufficient basis for

expenditure limits to be circumvented through such legal

5 Instead of justifying even more speech restrictions, a time-protection

problem actually indicates that contribution limits are set at unconstitu-

tionally low levels. See McConnell, 540 U.S. at 135 (warning that contri-

bution limits could be “so low as to ‘preven[t] candidates . . . from amass-

ing the resources necessary for effective advocacy’” (quoting Buckley, 424

U.S. at 21 (brackets in original))).

‘ 13

bootstrapping. See Pet. App. 33la (Walker, C.J., dissenting

from the denial of rehearing en banc) (“Justifying a statute

based on problems that the statute itself creates makes about

as much sense as Baron von Munchausen’s boast that he

pulled himself out of a swamp by his own hair.”). Vermont

should not be permitted to rely upon its anticorruption interest

to manufacture multiple derivative interests that, when aggre-

gated, are ostensibly capable of supporting expenditure limits.

See Pet. App. 336a (Jacobs, J., dissenting) (“[T]he more-

restrictive expenditure limits have been enacted to mitigate

the inevitable and predictable side-effects of the less-

restrictive contribution limits. . . . Strict scrutiny does not tol-

erate such bootstrapping.” (emphases omitted)).§

Moreover, to the extent that Act 64 actually reduces the

time that candidates spend fundraising, it restricts constitu-

ents’ access to their elected officials by limiting voters’ op-

- portunities to interact with candidates at fundraising events.

Vermont’s efforts to conserve candidates’ time therefore con-

stitute an impediment to voters’ ability to meet and commu-

nicate with their elected officials.

B. The Court Should Reaffirm Buckley’s Rejection

Of The “Equalization” Interest.

Act 64’s expenditure and contribution limits make little

sense when viewed as merely an attempt to prevent corrup-

tion or to conserve candidates’ time. Indeed, these were not

the only interests that the Act was designed to promote. The

6 As in Buckley, Vermont's anticorruption interest is more than suffi-

ciently addressed by reasonable contribution limits combined with strict

disclosure laws. See 424 U.S. at 55 (“The interest in alleviating the cor-

rupting influence of large contributions is served by the Act’s contribution

limitations and disclosure provisions rather than by [the Act’s] campaign

expenditure ceilings.”). Indeed, Vermont presented “no evidence in the

record that Act 64’s new low limits on contributions alone will not suffice

to eliminate any improper influence.” Pet. App. 266a (Winter, J., dissent-

ing).

14

Second Circuit recognized that when drafting Act 64, “Ver-

mont lawmakers were concerned with more than just the guid

pro quo corruption that preoccupies much campaign finance

reform.” Pet. App. 94a. In contravention of Buckley, Ver-

mont lawmakers also sought to compel the equalization of

political speech. See, e.g., Pet. App. 130a (asserting that

“[{Ijarge contributions and large expenditures . . . reduce pub-

lic confidence in the electoral process” (quoting 1997 Vt.

Laws P.A. 64 (H. 28) (finding No. 9))). Indeed, Vermont ex-

plicitly argued below that Act 64 “protect[s] equal access to

political participation.” Pet. App. 127a.

In upholding Act 64, the Second Circuit evaded Buck-

ley’s rejection of the equalization rationale by sub silentio

broadening the anticorruption interest to subsume the notion

of equalization. See, e.g., Pet. App. 133a (considering testi-

mony that “not every voter has the financial ability to partici-

pate” as evidence of corruption). As Judge Winter correctly

recognized, both Act 64 and the Second Circuit’s opinion

sustaining it are premised upon the theory “that less political

advocacy is better for us as a polity because too much politi-

cal activity is engaged in by powerful groups.” Pet. App.

279a (Winter, J., dissenting). This governmental interest in

“equalizing” political speech through controlling campaign

costs and restricting candidates’ financial resources is a ra-

tionale that Buckley expressly considered and rejected.

: Cutting away at the edges of Buckley’s equalization hold-

ing, under the guise of preventing “corruption,” muddles the

Court’s constitutional jurisprudence and “trenches upon an

area in which the importance of First Amendment protections

is ‘at its zenith.”” Meyer, 486 U.S. at 425 (citation omitted);

see also Monitor Patriot Co. v. Roy, 401 U.S. 265, 272

(1971) (“[{I}t can hardly be doubted that the [First Amend-

ment’s] constitutional guarantee has its fullest and most ur-

gent application precisely to the conduct of campaigns for

political office.”).

15

Buckley’s holding is a fundamental reflection of our

“profound national commitment to the principle” that “debate

on public issues should be uninhibited, robust, and wide-

open.” N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).

Indeed, the “right of freely examining public characters and

measures, and of free communication among the people

thereon, [is] the only effectual guardian of every other right.”

James Madison, Report on the Virginia Resolutions (1800),

reprinted in 5 THE FOUNDERS’ CONSTITUTION 146 (Philip B.

Kurland & Ralph Lerner eds., 1987).

Vermont’s expenditure limits operate on the assumption

that “too much” political speech undermines citizen confi-

dence in the government. The First Amendment, however,

embodies the opposite premise. As Justice Breyer has re-

cently explained:

[A]ctive liberty is particularly at risk when law re-

stricts speech directly related to the shaping of pub-

lic opinion, for example, speech that takes place in

areas related to politics and policy-making by

elected officials. That special risk justifies espe-

cially strong pro-speech judicial presumptions. It

also justifies careful review whenever the speech in

question seeks to shape public opinion, particularly

if that opinion in turn will affect the political process

and the kind of society in which we live.

STEPHEN BREYER, ACTIVE LIBERTY: INTERPRETING OUR

DEMOCRATIC CONSTITUTION 42 (2005). This principle has

dominated our nation’s understanding of political speech

since its founding. See Madison, supra, at 145 (“The value

and efficacy of [voting] depends on the knowledge of the

comparative merits and demerits of the candidates for public

trust, and on the equal freedom, consequently, of examining

and discussing these merits and demerits of the candidates

respectively.”).

16

Because political speech rests at the First Amendment’s

core, the government cannot forcibly equalize political

speech by suppressing one group’s speech in favor of an-

other’s. As this Court recognized in Buckley:

The First Amendment denies government the power

to determine that spending to promote one’s political

views is wasteful, excessive, or unwise. In the free

society ordained by our Constitution it is not the

government but the people . . . who must retain con-

trol over the quantity and range of debate on public

issues in a political campaign.

424 U.S. at 57 (emphasis added; footnote omitted).

The “equalization” rationale upon which Act 64 was

premised undermines the protection historically afforded to

political speech and cannot be reconciled with the First

Amendment’s role as guardian of the political marketplace.

See Buckley, 424 U.S. at 49 (“The First Amendment’s protec-

tion against governmental abridgment of free expression can-

not properly be made to depend on a person’s financial ability

to engage in public discussion.”). Indeed, the First Amend-

ment assumes a competitive marketplace of political ideas

where “the best test of truth is the power of the thought to get

itself accepted in the competition of the market.” Abrams v.

United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissent-

ing).

Moreover, when the role of money is reduced, media ac-

. cess, fame or notoriety, and the advantages inherent in in-

cumbency become even more dominant factors in deciding

elections. See Bradley A. Smith, Faulty Assumptions and

Undemocratic Consequences of Campaign Finance Reform,

105 YALE L.J. 1049, 1078 (1996) (“attempts to exclude a par-

ticular form of power—money—from politics only

strengthen the position of those whose power comes from

other, nonmonetary, sources”). In fact, money often permits

a challenger to overcome an incumbent’s inherent advan-

17

tages. See Buckley, 424 U.S. at 56-57 (“the equalization of

permissible campaign expenditures might serve not to equal-

ize the opportunities of al] candidates but to handicap a can-

didate who lacked substantial name recognition or exposure

of his views before the start of the campaign”). With expen-

diture limits in place, the already well-known, who can rely

upon their preexisting name recognition, are often the only

candidates able to mount an effective challenge to an incum-

bent. As Governor Schwarzenegger’s electoral success in

California suggests, publicly recognizable candidates may

frequently enjoy a significant advantage over their opponents.

When expenditure limits are implemented, the name recogni-

tion of challengers who are widely known to the electorate as

war heroes, Hollywood movie stars, or superstar athletes

gains even greater significance.

Similarly, by creating a system in which “free” media

would be of potentially disproportionate significance, Ver-

mont would ensure that free media’s favored candidates have

an unfair advantage. Vermont would bar a candidate from

buying media access to counteract the unlimited sums that

media corporations can spend to promote their favored candi-

date. See Mitch McConnell, Why Are Media Exempt?, USA

TODAY, Mar. 19, 2002, at Al4 (observing that “one page of

speech in USA Today could cost a private citizen, group, or

candidate about $100,000”).

Recognizing compelled equalization of political speech

as an interest that trumps the First Amendment’s protections

opens the door to speech regulation that logically extends

well beyond expenditure limits. See Mitch McConnell,

Speech Limits Are Not Reform, USA Topay, Feb. 26, 2002,

at Al3. This may not disturb some advocates of campaign

finance reform; one of Vermont’s defense witnesses testified

at trial that the “government ought to regulate political speech

the way that it regulates public utilities.” Pet. App. 195a

(Winter, J., dissenting). Indeed, if the “equalization” ration-

ale is to be effectuated, the government must regulate politi-

18

cal speech the way that it regulates public utilities. Equaliza-

tion of political speech can only be achieved—to the extent

that it can be achieved at all—through extensive regulation

and direct governmental interference clearly inconsonant with

the core principles underlying the First Amendment. This

Court should therefore invalidate Vermont’s effort to use ex-

penditure and contribution limits to compel the equalization

of political speech.

ti. ACT 64 IS AN UNCONSTITUTIONAL

IMPEDIMENT TO THE ELECTORAL

PROCESS.

Because campaign finance restrictions present a unique

potential for incumbent entrenchment, “considerable judicial

suspicion” of such laws is appropriate. Cass R. Sunstem, Po-

litical Equality and Unintended Consequences, 94 Co™UM. L.

REV. 1390, 1400 (1994). Act 64’s primary effect is to insu-

late incumbents from effective electoral challenges, and it

therefore cannot withstand judicial scrutiny.

A. Act 64’s Contribution And Expenditure

Limits Entrench Incumbents.

1. Incumbents have a direct, personal stake in the elec-

tion laws that they enact. See Sunstein, supra, at 1400 (“Any

system of campaign finance limits raises the special spectre

of governmental efforts to promote the interests of existing

legislators.”). It is difficult to conceive of any other area of

law where the self-interest of all legislators, regardless of

their party affiliation, is so uniformly aligned and so inconsis-

tent with their constituents’ interests. See id. (“Congres-

sional support for [campaign finance] limits is especially

likely to reflect congressional self-dealing.... Indeed, it is

hard to imagine other kinds of legislation posing similarly

severe risks.”).

Recognizing this, courts closely review campaign fi-

nance legislation to ensure that First Amendment principles

19

are not being subordinated to legislators’ own interests. See

Nixon v. Shrink Mo. Gov't PAC, 528 U.S. 377, 402 (2000)

(Breyer, J., concurring) (noting that the Court “defers to em-

pirical legislative judgments” only where “that deference

does not risk such constitutional evils as, say, permitting in-

cumbents to insulate themselves from effective electoral chal-

lenge”). This-is especially true when legislators justify such

laws on the basis of “equalizing” political speech; such a ra-

tionale is simply too far-reaching and amorphous to provide

any meaningful restraint on naturally self-interested legisla-

tors. David A. Strauss, Corruption, Equality, and Campaign

Finance Reform, 94 CoLuM. L. REV. 1369, 1386 (1994)

(“[S]imply tuming Congress loose to promote ‘equality,’

without providing a reasonably precise definition of what

equality is, could just lead to measures that give even more

protection to political incumbents or other favored interests.

In fact it would be a little surprising if it did not lead to such a

result.”). As Justice Breyer has explained:

[C]ourts should not defer when they evaluate the

risk that reform legislation will defeat the participa-

tory self-government objective itself. That risk is

present, for example, when laws set contribution

limits so low that they elevate the reputation-related

or media-related advantages of incumbency to the

point of insulating incumbent officeholders from ef-

fective challenge.

BREYER, supra, at 49.

The risk of incumbent self-dealing reinforces the impor-

tance of subjecting expenditure limits to the “exacting scru-

tiny applicable to limitations on core First Amendment rights

of political expression.” Buckley, 424 U.S. at 44-45. The

Second Circuit, however, reviewed Act 64 with unwarranted

deference, contending that the “review of legislation should

not amount to a presumption against the fairness of spending

limits simply because elected officials have an interest in the

. a

20

reforms they are enacting.” Pet. App. 15la; see also Pet.

App. 207a (Winter, J., dissenting) (“I respectfully submit that

my colleagues have not given this legislation careful, much

less exacting, scrutiny.”).

2. Even assuming, arguendo, that Act 64’s stated objec-

tives are constitutionally legitimate, the Act does not accom-

plish its purported ends. Its expenditure limits, for example,

do not further Vermont’s anticorruption interest. See Buck-

ley, 424 U.S. at 55 (“The interest in alleviating the corrupting

influence of large contributions is served by the Act’s contri-

bution limitations and disclosure provisions rather than by

[its] campaign expenditure ceilings.”). Nor does Act 64 ame-

liorate the time-protection problem it purports to address.

Indeed, even the district court acknowledged as.much. See

Pet. App. 57a (noting that as a consequence of Act 64’s low

contribution limits, fundraising “will take more time and en-

ergy”). Similarly, Act 64’s contribution limits are too low to

correspond to any threat of actual or apparent corruption.

Act 64 is particularly effective, however, at promoting

incumbency protection. This was obvious to the judges who

dissented from the denial of rehearing en banc because they

did not view Act 64 through the panel majority’s deferential

lens. Pet. App. 331a (Walker, C.J., dissenting from the denial

of rehearing’en banc) (“Vermont’s expenditure limits (and in

my view, its contribution limits) are set so low and in such a

fashion that only a desire to protect incumbents can explain

them.” (emphasis added)); Pet. App. 336a (Jacobs, J., dissent-

ing from the denial of rehearing en banc) (“the dominant but

impermissible effect of the Act is to protect incumbents”).

Incumbents naturally possess formidable advantages

over challengers. See Smith, supra, at 1075 n.158 (“Incum-

bency is already the single best predictor of electoral suc-

cess.””). As this Court noted in Buckley, “it is axiomatic that

an incumbent usually begins the race with significant advan-

tages.” 424 U.S. at 31 n.33. If expenditures by challengers

21

can be limited to a level roughly equivalent to the average

spent by all candidates, the advantages of incumbency be-

come practically insurmountable. This is illustrated by the

average amounts spent by winning candidates for national

Congressional office in 2000 and 2002:

Average Spending By Winning Candidates - 20007

Senate House

All $7,506,743 | $849,158

Challenger $8,828,989 $2,024,725

Incumbent $4,444,501 $782,460

Average Spending By Winning Candidates - 2002

Senate House

All $4,812,159 $898,184

Challenger $6,826,395 $1,595,805

Incumbent $4,681,870 $826,942

7 See OpenSecrets.org, The Big Picture, 2000 Cycle: The Price of Admis-

sion, available at http://www.opensecrets.org/bigpicture/stats.asp?cycle=

2000 (last visited Nov. 17, 2005); OpenSecrets.org, The Big Picture, 2000

Cycle: Different Races, Different Costs, available at http://

www.opensecrets.org/bigpicture/incad.asp?cycle=2000 (last visited Nov.

17, 2005).

8 See OpenSecrets.org, The Big Picture, 2002 Cycle: The Price of Admis-

sion, available at http://www.opensecrets.org/bigpicture/stats.asp?cycle=

2002 (last visited Nov. 17, 2005); OpenSecrets.org, The Big Picture, 2002

Cycle: -Different haces, Different Costs, available at http://

www.opensecrets.org/bigpicture/incad.asp?cycle=2002 (last visited Nov.

17, 2005). Although these figures from the 2000 and 2002 elections may

be somewhat exaggerated by a few self-funding challengers with dispro-

portionately high campaign expenditures, that cannot fully account for the

significant difference between successful challengers’ and successful in-

cumbents’ average expenditures. See OpenSecrets.org, The Big Picture,

2002 Cycle: Millionaire Candidates, available at hittp://

www.opensecrets.org/bigpicture/millionaires.asp?cycle=2002.

22

In both election cycles and both Houses of Congress, the

average amount spent by winning challengers was signifi-

cantly more than the average amount spent by winning in-

cumbents and, consequently, more than the average amount

spent by all winning candidates. Clearly, if incumbents wish

to insulate themselves from effective challenges, they merely

need to ensure that challengers are limited to spending no

more than the historical average. This is exactly what Act 64

accomplishes.

Moreover, as Judge Jacobs noted, “[t]he Act further

benefits incumbents because the expenditure caps are the

same whether or not a candidate faces a primary contest—

which of course is more frequently a hurdle for challengers

than for incumbents.” Pet. App. 338a (Jacobs, J., dissenting

from the denial of rehearing en banc). To challengers con-

fronted with the nearly insurmountable advantages that Ver-

mont’s expenditure limits afford to incumbents—and to vot-

ers eager to be given a bona fide choice—the marginal 10-

15% spending advantage offered by Act 64 provides little sol-

ace.

Act 64’s exceptionally low contribution limits further

serve to entrench incumbents because low contribution limits

have their greatest impact upon challengers. Incumbents can

rely on their name recognition, established donor lists, and

free media. In contrast, challengers not only need more

money overall, but they also usually rely on a small base of

large donors until they become known by the voting public.

Pet. App. 26la n.23. Act 64’s expenditure and contribution

limits hinder electoral challenges before they have a chance

to gain momentum. See Buckley, 424 U.S. at 31 n.33 (noting

that in some situations, “the overall effect of the contribution

and expenditure limitations enacted by Congress could fore-

close any fair opportunity of a successful challenge”). And

without vigorously contested electoral races, voters cannot

meaningfully exercise their right to participate in our republi-

can form of government.

23

B. Expenditure Limits, Reduce Political

Accountability And Marginalize Ordinary

Citizens.

oa Second Circuit’s opinion speaks repeatedly of

“fe]vidence at trial [that] overwhelmingly demonstrated that

the Vermont public is suspicious about the effect of big-

money influence over politics.” Pet. App. 129a. This “per-

ception of corruption” is a persistent theme in Vermont’s de-

fense of Act 64. See Resp. & Part. Opp’n Pet. Writ Cert. at 7

(“All of this raises the specter of corruption and its appear-

ance in the public’s mind and causes citizens to lose trust in

their government and their elected representatives.”’).

The argument fails on two levels. First, Vermont’s con-

tention that this concern demands governmental intervention

inherently discounts the voting public’s ability to address po-

tential corruption through elections. Second, when coupled

with contribution limits, expenditure limits actually increase

the perception of so-called “big-money influence” on politics

by drastically reducing the number of donors required to fund

an election. If—as both the district court and Second Circuit

suggested—the Vermont public is concerned that money buys

influence, expenditure limits are likely to exacerbate such

concerns. As the number of donors who contribute to a can-

didate decreases, the influence (or perceived influence) of any

single donor increases.

The First Amendment empowers informed citizens—not

elected officials—to decide whether to trust candidates and to

vote accordingly. Vermont’s assumption that it can restrict

political speech in an effort to promote trust in elected offi-

cials runs directly counter to the principles of self-

government embodied in the First Amendment. See Buckley,

424 U.S. at 57. Under Act 64, those candidates who are also

elected officials decide how much their opponents are permit-

ted to spend. Elections are usually fiercely competitive

events, and—as with any competition—the competitor who

24

controls the rules has an enormous advantage over the other

competitors.

Moreover, Act 64’s expenditure limits rest on the prem-

ise that “public involvement decreases as spending in-

creases.” Pet. App. 278a (Winter, J., dissenting). This

proposition is fundamentally flawed and belied by the fact

that the most heavily contested elections often involve the

most spending. Experience in Vermont bears this out. Re-

cord amounts were spent on Vermont’s 2000 gubernatorial

election in which several divisive issues were at stake; far

from alienating voters, these expenditures actually captured

voters’ attention, resulting in 34.5% more people voting than

in the prior gubernatorial election. Pet. App. 278a (Winter,

J., dissenting).

Act 64’s expenditure limits also ignore the salutary ef-

fects of fundraising activities. Indeed, fundraising events are

not only a means of gathering contributions; they are also a

mechanism through which candidates solicit votes and inform

voters about their positions. Moreover, as this Court recog-

nized in Buckley, “the financial resources available to a can-

didate’s campaign, like the number of volunteers recruited,

will normally vary with the size and intensity of the candi-

date’s support.” 424 U.S. at 56. Expenditure limits reduce

the likelihood that the “size and intensity” of support for a

particular candidate will be translated into political speech.

Expenditure limits thus hurt those they are purportedly de-

signed to protect—the voters. Government rationing of cam-

paign spending inhibits voters’ ability to perceive which ideas

are widely held and resonate with a majority of the electorate.

In upholding the Act, the Second Circuit emphasized

Vermont’s belief that candidates tend to “expend[] more ef-

fort on relatively generous contributors over less important

ones.” Pet. App. 144a. Vermont assumes that expenditure

limitations ensure “that candidates and officeholders will

spend .. . more time interacting with voters.” Pet. App. 127a

25

(alteration in original). In reality, expenditure limits actually

encourage candidates and officeholders to spend more time

interacting with fewer voters. If Act 64’s assumption that

money buys access is correct, the use of expenditure limits in

conjunction with contribution limits actually increases the

access and influence of “large” contributors (“large” meaning

those capable of providing the maximum allowable contribu-

tion amount) at the expense of small contributors.

This result is attributable to the fact that the vast majority

of campaign donors in Vermont historically have been

“small” contributors. In the elections immediately preceding

Act 64’s passage, for example, between 82% and 96% of all

contributions were below Act 64’s limits. Pet. App. 39a-40a.

In the aggregate, these “small” contributions likely repre-

sented a sizable portion of a candidate’s total funds and there-

fore were valuable to the candidate, resulting in significant

access for small contributors. With the imposition of expen-

diture limits, there are now more contributions available than

a candidate can legally utilize. The most efficient way for a

candidate to reach the fundraising limit is therefore to focus

exclusively on comparatively “large” contributors. Thus, ©

contrary to expectations, the combination of contribution and

expenditure limits may actually eliminate the role of Ver-

mont’s small contributors and consolidate the influence of

Vermont’s largest campaign donors. There is accordingly a

very real danger that large contributions “may eliminate the

need for, and in that sense crowd out, smaller individual con-

tributions.” BREYER, supra, at 44.

Vermont also failed to consider that Act 64’s particular

combination of contribution and expenditure limits actually

exacerbates the “specter of corruption” by radically reducing

the number of contributors necessary or useful to any one

candidate. Pet. App. 133a, 134a. Before Act 64, a candidate

was likely to have many contributors, thereby spreading the

candidate’s funding among a broad group of donors. Act 64

inverts this tendency, consolidating the opportunity to con-

26

-tribute (and, under Vermont’s assumption, to influence) in the

hands of a few. A candidate for state representative, for ex-

ample, is likely to have as few as 10 contributors (10 con-

tributors giving the $200 maximum contribution, which

equals the $2,000 spending limit). Few candidates would opt

to make hundreds of calls and attend dozens of public events

if they could fully fund their campaign with 10 telephone

calls. Act 64 therefore creates the very problem it was pur-

portedly designed to resolve by “requir{ing] candidates to

seek and rely on a smaller number of larger contributors .. .

rather than a large number of small contributors.” Pet. App.

131a (quoting 1997 Vt. Laws P.A. 64 (H.28) (finding No. 5)).

Moreover, because Act 64 sharply reduces the number of

contributors, it exaggerates the potential for (and appearance

of) corruption from each contribution. The more donors that

contribute to a campaign, the less financial influence any one

donor can have on that candidate. The public perception of

improper influence from any one donor is also diminished

when that donor is merely one of many. Before Act 64, a

$200 donor may have been the source of only a small per-

centage of a Vermont state representative candidate’s overall

contributions and likely was one of many contributors. After

Act 64, the same donor will be assured of having given 10%

of the candidate’s campaign funds and may be one of only ten

contributors.

In Federalist 10, James Madison recognized what has be-

come a famous solution to our young republic’s problem of

factions (i.e., special interests). Rather than attempting to

remove the “causes of faction,” which Madison deemed im-

possible without destroying the liberty “essential to political

life,” Madison suggested that broadening the electoral base

would keep any one interest from dominating. THE

FEDERALIST NO. 10, at 72 (James Madison) (Clinton Rossiter

rev. ed., 2003). This “republican remedy for the diseases

most incident to republican government,” id. at 79, reflects a

27

political understanding that is still celebrated in the “market-

place of ideas” conception of the First Amendment.

In the same way that our republic is moderated by com-

peting political interests, competing monetary interests “en-

courag[e] the public participation and open discussion that

the First Amendment itself presupposes” by “broaden[ing]

the base of a candidate’s meaningful financial support.”

Shrink Mo. Gov’t PAC, 528 U.S. at 401 (Breyer, J., concur-

ring). In the absence of expenditure limits, politicians are

encouraged to reach out to more than a bare majority of their

constituents and to avoid dismissing minority interests with-

out careful consideration. Although a politician may need

only 51% of the vote, fundraising considerations ensure that

the interests of more than 51° of constituents will be consid-

ered. Politicians are encouraged to seek consensus solutions

that satisfy more than a simple majority. Like Madison’s so-

lution to factions, the First Amendment’s prohibition on ex-

penditure limits ensures that elected officials are not con-

cerned only with the interests of those who elected them.?

9 Act 64’s presumption that spending by parties or PACs that benefits six

or fewer candidates is a “related expenditure” similarly violates the First

Amendment. The presumption discourages these organizations, which are

now central to the political process, from engaging in independent politi-

cal speech relating to a particular issue out of concern that the Act will

automatically attribute the costs of their speech to a candidate. Similarly,

these organizations will hesitate to speak in opposition to a candidate from

fear that the cost of their speech will be automatically attributed to that

candidate’s opponent—or, at any rate, that the opponent will be put to the

cost of demonstrating that it should not be so attributed, all against the

backdrop of Act 64’s very low expenditure limits. The First Amendment

does not countenance such a chilling effect on political speech.

Even more perniciously, the combination of Act 64’s coordinated-

expenditure presumption and its expenditure limits could be used to effec-

tively silence an opponent’s campaign. | A candidate’s opponents could

form PACs and use those PACs to run ads “supporting” the candidate on

issues that have no importance to the electorate. Under Act 64’s presump-

28

***

“Whatever differences may exist about interpretations of

the First Amendment, there is practically universal agreement

that a major purpose of that Amendment was to protect the

free discussion of governmental affairs.” Mills v. Alabama,

384 U.S. 214, 218 (1966). At best, Act 64 illegitimately sub-

ordinates this core principle of self-government in a mis-

guided attempt to ameliorate political inequalities. At worst,

Act 64 is a bald-faced example of incumbent protectionism.

Either way, it cannot survive First Amendment scrutiny.

CONCLUSION

For the foregoing reasons, the judgment of the Second

Circuit should be reversed.

Respectfully submitted.

THEODORE B. OLSON

Counsel of Record

DOUGLAS R. Cox

AMIR C. TAYRANI

LAWRENCE J.C. VANDYKE

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 955-8500

Counsel for Amicus Curiae

December 14, 2005

[Footnote continued from previous page]

tion, the cost of the PACs’ ads would automatically count toward the can-

didate’s expenditure limit. A candidate’s permissible expenditures could

thus be exhausted by his adversaries. The problem is made worse because

expenses in challenging the presumption would also be attributed to the

candidate’s expenditure limit. Pet. App. 226a.

ORM.

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

IN THE

Supreme Court of the United States

NEIL RANDALL, et al., Petitioners,

v.

WILLIAM H. SORRELL, et al., Respondents

VERMONT REPUBLICAN STATE COMMITTEE, et ai.,

Petitioners,

v.

WILLIAM H. SORRELL, et al., Respondents.

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

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

v.

NEIL RANDALL, et al., and VERMONT REPUBLICAN

STATE COMMITTEE, et al., Cross-Respondents.

/ Onwrit of certiorari to the United States Court of

Appeals for the Second Circuit

Brief of Amicus Curiae ReclaimDemocracy.Org

In Support of Respondents

Prof. Daniel J.H. Greenwood

Counsel of Record for Amicus Curiae

S.J. Quinney College of Law,

University of Utah

332 South 1400 East Front

Salt Lake City UT 84112

(801) 585-5201

TABLE OF CONTENTS

TAR Oe AT Ie Siretpmrriccecteiovsenivevenvcceinsensennnecaii li

INTEREST OF AMICUS CURIAE............scecsscsssssersrsereesenees ]

SUMMARY OF ARGUMENT .............scccscscsseesseseeeneneseneees 2

PETA IIOE cerscssntsiesstbisiinijinaincsciaisiierininnieanintenviaabincinaietip 5

I. Buckley v. Valeo’s Classification of Campaign

Expenditures as First Amendment Speech Was Erroneous

a IN re Cities in cacicdinnitnocsnebtonrnncicinitivetnections 5

A. Buckley, like Lochner, has privileged the privileged

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

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

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

PE ID hie erisicasitoctactnnmanveieapeiinnpictatnigiipintiaion 7

C. Speech and political regimes are radically different

from market and economic regimes.................ssseeeese0 10

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

acivenialtunesoneblasioeiniantiidaiedipinniantiistiagebinagitaboendnenicnionnbiin 12

E. In its interpretation of the First Amendment, Buckley

reverted to the discredited notion that the Constitution

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

II. Constitutional Bars on Campaign Finance Reform Do

Not Promote First Amendment Values..............::ss:+e++e++ 14

A. Unlimited campaign expenditures violate Fourteenth

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

B. Unrestrained campaign spending may tend to

entrench incumbents, contrary to the First Amendment

goal of encouraging self-government ................s00000 17

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

2. Money can buy the appearance of credibility and

Chere y CHOGIDEP MY MBCIT ........ccrccccsescoesecoceccovssensneseves 19

3. Candidate expenditure does not reflect preexisting

i ia ccceitetinhenidlnincnisdaciotipiictentsiniinitilihainmvictaliationiiatos 20

4. Business donors are purchasing services, not

OID sakiictrnidtdetsivhriictnasiinintniclirtincscictislscnnscctipicnpitliiin 21

5. Expensive campaigns entrench incumbents,

making them more able to raise the funds necessary

to continue their entrenchment.................cc..sseeceeeeees 23

bk RESET A Sa RS Pet RE SEER 25

TABLE OF AUTHORITIES

Cases

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

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

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

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

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

17, 20, 23, 25, 26

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

Columbia Broadcasting System, Inc. v. Democratic Nat.

Committee, 412 U.S. 94 (1973) .....seccccscessessseeseessceeeecenes 11

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

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

IN PP inctlirditthaeossoncndncssssinsiite disascelescnemnepecaptoceebesiploaitiapaance 21

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

LR osies kcchttnitianortaiossniancedtitintasisucanitaaissuliaphsliedinbiedilieaibeeioi 10

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

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

4,8

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

14, 25

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

Lyng v. UAW, 485 U.S. 360-1988) ...........sccscsroscrcesessseerenes 4

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

UE Di sticasictighselicsesnsdensiscsicbiosniictinlighetisetlbiaipedaldevasteniteibanaiidel 8

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

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

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

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

U.S. v. Carolene Products, 304 U.S. 144 (1938).........006 2,14

Virginia v. Black, 538 U.S. 343 (2003).....:cccssseecceseeerceeeeeees 11

Whitney v. California, 274 U.S. 357, 374, (1927) ......ccsee0 11

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

Liat hinecipsevinbopuiniestehpiciiipediniedispuiiiiganipnssinnneienieanninenen 11

Other Authorities

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

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

Amos Tversky & Daniel Kahneman, Judgment Under

Uncertainty: Heuristics and Biases, in JUDGMENT UNDER

UNCERTAINTY: HEURISTICS AND BIASES (Daniel

POA OE 26. BR PIT D ic cccosicriisensdptonsincansmanctnemeniviote 20

EDWARD N. WOLFF, TOP HEAVY: THE INCREASING

INEQUALITY OF WEALTH IN AMERICA (1996). .........cce0008 17

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

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

CO i lisicstihciccichetinintlsitdhttcebecatiilapsilistinkpiccipnecadlielddieabih 13, 20

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

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

Institute on Money in State Politics, State Elections Overview

Ee CE, FIO seiiidsccclinsckdssicholectbinidabenandiccingicdpiscapailinnc’ 23

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

PE PG NR REE EAN RR in ce ME” I De 1]

NEW TESTAMENT, Mark 12:43-44, Luke 21:3-4 ..0.....c:ccc0000 20

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

| ES IE See TOY Ra oR OES OR REO or AE 3

United States Constitution

REL LE LIE EAI AOL AT COR 10

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

22, 24, 25, 26

Fourteenth Amendment ................-:0000+. 1, 3, 5, 10, 16, 17, 25

pes MUN, FUR, BU SP iocckssccitncncbencdnacccilianistinitaiiaincs 25

ili

INTEREST OF AMICUS CURIAE

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

with a national membership that includes Vermont residents.

The organization works to build a genuinely representative

democracy based on the principle that citizens’ ability to

influence elections and government should result from the

quality of their ideas and their energy and effectiveness in

promoting them, independent of their financial status.

ReclaimDemocracy.org works to ensure we do not

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

the constitutional promise of equal protection of the laws for

all citizens requires we separate the opportunity to influence

elections from wealth. Moreover, it maintains that the wealth

discrimination of the current system results in de facto race

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

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

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

severely undermined were this Court to determine that the

First Amendment bars states from protecting their citizens

and the democratic process itself by limiting the influence of

wealth on elections.

ReclaimDemocracy.org asks the Court to affirm the

right of the citizens of Vermont and their legislature to place

reasonable limits on campaign investments and spending in

order to further the purposes of the equal protection mandate

of the Fourteenth Amendment.

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

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

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

counsel, made a monetary contribution to the preparation or submission

of this brief.

SUMMARY OF THE ARGUMENT

The Vermont statute at issue in this case regulates

monetary contributions to political campaigns and the

amount candidates spend in order to assure Vermont's

elections reflect the will of its citizens and the persuasiveness

of candidates rather than the influence of domestic and

foreign wealth.

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

Vermont’s action would raise no substantial Constitutional

issue. Buckley, however, equated money with speech and

thereby introduced First Amendment principles of

governmental abstention into campaign finance

jurisprudence. By this misclassification, Buckley revived

laissez-faire doctrines barring the government from

protecting its citizens from the power of wealth. _ Its

Lochneresque imposition of “the Social Statics of Mr.

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

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

Constitutional conflict that has no basis.

Campaign contributions often are economic,

marketplace transactions—purchases by individuals and

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

regardless of motivation, campaign contributions and

candidate expenditures alike resemble economic activity far

more than speech. Legislatures should be free to regulate

them in order to protect our republican system of government

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

rules for all other market transactions in order to harness the

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

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

“Regulatory legislation affecting ordinary commercial transactions is not

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

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

censorship principles which preserve individual liberty

against overreaching power have precisely the opposite effect

when éxtended to create special privileges for the wealthy to

dominate the electoral system.

All democracies must separate the realms of two

different decision-making processes. First, a political arena

of equal citizenship and political democracy, characterized

by the fundamental principle of one person, one vote,

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

arena of individual decision and regulation by price, where

the anti-discrimination principle of equal access to markets

co-exists with necessarily unequal wealth and economic

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

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

Amendment and fundamental principles of justice dating

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

favor neither rich nor poor.”

In our dual system, we allow money to buy most

things, but never the political system that determines the

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

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

individual’s voting power in proportion to the amount of

property he owned would be similarly defective”).

Vermont’s statute limiting the influence of money on

elections is an attempt to embody these basic norms in its

electoral system in order to prevent democracy from

degenerating into plutocracy. It seeks to protect the

autonomy of the citizenry of Vermont and to ensure equal

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

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

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

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

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

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

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

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

poll tax unconstitutional).

Moreover, like Harper itself, the Vermont statute

recognizes that the wealth distribution in our country reflects

racial divisions, so serious attempts to remedy racial wrongs

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

is presumptively valid under our Constitutional regime of

republican democracy, and the legislature’s choice of means

is entitled to the usual deference granted to legislatively-

enacted law.

Constitutional consideration of Vermont’s attempt to

protect its electoral system is distorted, however, by the

lingering effects of Buckley. Neither Free Speech values,

Equal Protection principles, nor the requirements of Due

Process require that Vermont ignore the problems created for

democracy when private wealth dominates the public

electoral system.

The Court should take this opportunity to remedy the

damage Buckley did to First Amendment, federalism and

democratic values by rejecting this flawed precedent. Money

is not speech. Applying doctrines designed to protect dissent

and democracy to campaign finance has the perverse

consequences of entrenching incumbents, unfairly enhancing

the power of those individuals and corporations with the

assets to purchase access to politicians, and, consequently,

diminishing public faith in our institutions of government.

The Court should clarify that objections to the

particular way Vermont has chosen to protect its republican

form of government should be addressed to the people of

Vermont and their elected representatives, not to this Court.

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

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

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

ARGUMENT

1. Buckley v. Valeo’s Classification of Campaign

Expenditures as First Amendment Speech Was

Erroneous and Should Be Overruled

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

First Amendment and campaign finance Jaw alike by holding

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

Amendment. Later cases have assumed the same analysis

applies as against the state legislatures, via the Fourteenth

Amendment’s protections against violations of equal

protection and due process of the laws.

But money is not speech. A regulatory regime

appropriate to speech has perverse results when applied to

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

to reexamine and reject Buckley.

First Amendment jurisprudence usually contains a

strong presumption against governmental regulation,

stemming from its core meaning as a ban on governmental

censorship and governmental enforcement of religious and

secular catechisms. Buckley transformed the traditional bar

against censorship into something radically different:

restrictive scrutiny of legislative action meant to protect the

citizenry from abuse of the rights of property.

The First Amendment’s protection against censorship

is a critical element of our American system of republican

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

incumbent officials is critical to majority rule: without it,

government would be too free to manipulate, rather than

respond to, public opinion. Open political debate is as

foundational to democratic rule as elections. Second, we

have long recognized free intellectual debate, cacophonous as

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

interests and to encourage intellectual progress. Third, the

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

creates a realm of privacy and personal freedom in which

individuals can act without concern for the opinion of the

majority, thus ensuring democracy does not degenerate into a

tyranny of the majority.

Buckley, however, by simplistically substituting

money for speech, promoted none of these values. Purchased

speech often does not enhance political self-determination,

truth-seeking intellectual inquiry or personal freedom.

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

sanctifying the current distribution of wealth

Buckley’s equation of political money with speech

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

Court purported to derive an abstract principle from the

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

context to cut off political debate over the difficult and

controversial issue of how a democratic republic shculd

manage its economy.

Lochner’s invasion of the legislative sphere stemmed

directly from its basic failing. The case assumed contractual

agreements between bakers and their employers reflected the

autonomous will of equal bargainers, and thus legislative

imposition of terms was an invasion of the rights of both

parties. This was a controversial view of contract then and

remains one now. Others believed the very fact that bakers

were willing to agree to work long hours in unsafe conditions

was sufficient evidence that they had insufficient power to

function as the autonomous beings the Lochner court

imagined. Lochner was substantively wrong, first and

foremost, because, by assuming equality when there was

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

weak. “Neutrally” enforcing agreements between bullies and

their victims only worsens the position of the victims.

The Buckley framework suffers from a similar

blindness to the realities of the world and a similar invasion

of the legislative sphere with similar results: Reverse Robin

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

Buckley imposed a Lochneresque “free” market view on

campaign regulation, in effect telling the people they and

their elected representatives may not attempt to remedy the

damage done to fair political competition by the distorting

power of wealth. Like Lochner, Buckley wrongly interpreted

the Constitution to protect a particular understanding of the

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

the true values of the First Amendment—from being

subordinated to economic power.

Buckley mimicked Lochner in a third way. It made a

major contribution to a political/economic complex that

simply does not work on the ground, regardless of whether

its particular conceptualization of the law can be made

internally consistent. Buckley underpins the corruption and

collapse of American politics much as Lochner helped lead

to the collapse of our economy. The Great Depression

demonstrated for many Americans that a market economy

can succeed only if it involves and benefits a wide spectrum

of citizens. Buckley’s imposition of Lochneresque “free

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

most Americans from participation in and the benefits of

democratic politics. This damages the legitimacy of and

destabilizes our republican form of government. We should

not wait for a political equivalent to the Great Depression

before reversing course.

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

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

First Amendment

The question of how best to define the rights of

property and finance elections so as to protect citizens’

political rights and republican self-government is difficult

and controversial. Many Americans today believe our

representative democracy needs urgent repair. Campaign

finance reform lies at the controversial core of that struggle

precisely because it reflects multiple conflicting

constitutional values.

Elections rely on the principles of “one person, one

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

Similarly, the American conception of a republican form of

government by “we the people” demands all citizens enjoy

the equal protection of the laws and equal political rights

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

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

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

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

and responsibilities of citizenship, like the law and its

protection, cannot be for sale.

Our market-based economy has inherent tendencies to

inequality and to expanding the range of items that can be

bought and sold. Determining and maintaining the boundary

between the realms of market and politics is a central

political question in our society. How much should the legal

system counterbalance market tendencies to give more to

those who already have more? When should the legal system

modify the rules creating the market system to price goods—

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

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

ought not to be for sale at all?

Campaign finance reform is at the core of the great

debate over the proper place of the market in a democratic

republic. Under our Constitutional system, government

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

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

necessarily require that all who participate in the political

marketplace do so with exactly equal resources.” McConnell