Amicus Curiae Brief — Randall v. Sorrell

.

3

in turn, is deemed to be “a contribution to the candidate on

whose behalf it was made,” VT. STAT. ANN. tit. 17, §

2809%(a), and is subject to the applicable limit for

contributions to that candidate. See VT. STAT. ANN. tit. 17, §

2809(a).? The Act defines “expenditure” broadly to

encompass any spending “for the purpose of influencing an

election, advocating a position on a public question, or

supporting or opposing one or more candidates.” VT. STAT.

ANN. tit. 17, § 2801(3). Thus, an “independent expenditure”

under Act 64 is a very broad and vague concept.’

The text of Act 64 does not state whether this

presumption of coordination is conclusive or rebuttable, but

administrative guidance promulgated by Vermont’s secretary

of state suggests that the presumption is rebuttable. See

Guide to Vermont’s Campaign Finance Law 30 (November

2005) available at http://vermont-

elections.org/elections1/2005_cf_guide_1118.htm (“When an

expenditure is presumed to be a related expenditure, the

presumption can be overcome by evidence that the elements

of the definition in section 2809(c) were not met.”).

Aithough Act 64 does provide that a candidate may bring

an expedited court action to declare that expenditures made

? Violations of Act 64’s contribution limits through independent

expenditures deemed to be coordinated expenditures appear to be civil, as

opposed to criminal offenses. See VT. STAT. ANN. tit. 17, § 2806(b)

(providing for a civil penalty of up to $10,000 for each violation of Act

64). A $10,000 civil penalty is very substantial: it is more than 3-percent

of the expenditure limit for candidates for Governor; 10-percent for

Lieutenant Governor; and 22-percent for certain executive branch offices.

The penalty exhausts the spending limits for State Senate, county office,

and State Representative.

> The RNC contends that the definition of “expenditure” is grossly

overbroad in numerous respects, but this issue is not currently before the

Court.

4

on behalf of an opposing candidate are coordinated, see VT.

STAT. ANN. tit. 17, § 2809(e), neither the Act nor

administrative guidance provides a similar judicial or

administrative mechanism for a political party making such

expenditures to bring a court action or administrative

proceeding to rebut the presumption. Indeed, the

enumeration of one mechanism for seeking review under

2809(e) suggests that other modes of review are prohibited.

See In re 1650 Cases of Seized Liquor, 721 A.2d 100, 106

(Vt. 1998) (applying expressio unius canon of construction to

Vermont statute).

A. Independent Expenditures Are Fully Protected By

the First Amendment.

This Court has twice reviewed restrictions on political

party independent expenditures and both times has held them

unconstitutional. In Colorado I, 518 U.S. at 617-18, the

Court ruled that an expenditure by the Colorado Republican

Party was constitutionally protected, and rejected the

argument that political parties have a lesser right to make

independent expenditures than other speakers: “We do not

see how a Constitution that grants individuals, candidates,

and ordinary political committees the right to make unlimited

independent expenditures could deny the same right to

political parties.” /d. at 618 (principal opinion by Breyer, J.).

The Court was unpersuaded by the FEC’s presumption that,

“as a matter of law,” party expenditures are coordinated with

candidates, writing “{a]n agency’s simply calling an

independent expenditure a ‘coordinated expenditure’ cannot

(for constitutional purposes) make it one.” /d. at 621-22.

More recently, in McConnell v. Federal Election

Comm'n, 540 U.S. 93, 213-19 (2003), the Court unanimously

struck down section 213 of the Bipartisan Campaign Reform

Act of 2002, Pub. L. No. 107-155, 116 Stat. 94, which

5

required political parties to elect between making

coordinated expenditures and independent expenditures.

Again, the Court emphasized that political party independent

expenditures are “plainly . . . entitled to First Amendment

protection,” and that no “meaningful purpose” was served by

restricting such expenditures. McConnell, 540 U.S. at 217-

18.

B. Act 64’s Related Expenditure Provision Will

Severely Restrict or Eliminate Independent

Expenditures by Political Party Committees.

Section 2809(d) was intended to and does encompass the

vast majority of political party independent expenditures.

Any independent expenditure criticizing a candidate would

presumably benefit only that candidate’s opponent, and

would fall within the presumption. Any independent

- expenditure praising a single candidate would fal! within the

presumption. Indeed, it is unusual for an independent

expenditure to “benefit” more than one candidate, meaning

that the presumption will swallow the bulk of independent

party spending.“

* Judicial decisions addressing particular independent

expenditures confirm this point. See e.g. Colorado /, 518 U.S. at 608

(concerning independent expenditures by a political party committee for

advertisements about U.S. Senate candidate Timothy Wirth); Federal

Election Comm'n v. Nat'l Conservative Political Action Comm., 470

U.S. 480, 483 (1985) (“NCPAC”) (concerning independent expenditures

by political action committees in support of President Ronald Reagan);

Federal Election Comm'n v. Public Citizen, 268 F.3d 1283, 1286 (11th

Cir. 2001) (conceming independent expenditures by a non-profit

organization for advertisements opposing Speaker of the House Newt

Gingrich); Federal Election Comm'n v. Furgatch, 807 F.2d 857, 858 (9th

Cir. 1987) (conceming independent expenditures by an advertiser

opposing President Jimmy Carter); Federal Election Comm'n v. Cal.

Democratic Party, No. Civ. $-03-0547 FCD DAD, 2004 U.S. Dist.

(continued...)

6

Moreover, section 2809(a) imputes independent

expenditures by political parties to candidate committees,

counting them not only as “contributions” to the beneficiary

candidate, and thus subjecting them to the draconian

contribution limits, but presumably also against that

candidate’s spending limit. This provision is patently unfair

to candidates because independent expenditures — which by

definition the candidate does not control or even know are

coming — may deplete candidate spending allowances.

Consequently, political party committees will be deterred

from making any independent expenditures because their

activities may preempt the favored candidate’s ability to

communicate directly with voters. Plainly, such deterrence

was the very purpose of the provision.”

C. The First Amendment Does Not Permit the

Government To Presume that Speech Is

Unprotected Until the Speaker Rebuts the

Presumption.

Section 2809(d) creates the same type of “presumption of

coordination” that this Court found improper in Colorado I,

LEXIS 7269, at *3-*S (E.D. Cal. 2004) (concerning independent

expenditures by a political party committee in support of Congresswoman

Lois Capps).

* According to the district court below, the restraint on

‘ependent expenditures in section 2809 “was designed to plug a

iwphole that would have allowed for circumvention of Act 64’s

individual contribution limits.” Landell v. Sorrell, 118 F. Supp. 2d 459,

490 (D. Vt. 2000). The restriction would prevent political candidates

from evading campaign finance restrictions “by asking others to collect

and spend money for them.” /d. This is an argument for regulating

coordinated expenditures, however, not independent expenditures, which

involve no prior communication between the political party and the

candidate's campaign.

7

518 U.S. at 622. As the Court explained, “fa]n agency’s

simply calling an independent expenditure a ‘coordinated

expenditure’ cannot (for constitutional purposes) make it

one.” Jd. at 621-22. Under Colorado I, section 2809(d) must

fail.

The lower court attempted to distinguish Colorado I on

the ground that the presumption of coordination in that case

was “conclusive,” whereas the presumption in section

2809(d) is ostensibly rebuttable, through as yet unspecified

procedures. See Landell v. Sorrell, 382 F.3d 91, 146 (2d Cir.

2004). This is no distinction at all; as did the presumption in

Colorado J, section 2809(d) plainly places a severe burden on

independent speech for no valid reason. The time, effort, and

expense necessary to rebut the presumption is a burden on

speech, especially in the fast moving context of a political

campaign. The result will be little if any independent party

spending. No government interest has been advanced to

justify this suppression of speech.°

Further, the government may not simply presume speech

unprotected until the putative speaker rebuts the presumption.

See Freedman v. Maryland, 380 U.S. 51, 58 (1965) (the

burden of proving that speech is unprotected “must rest on

the censor”); see also Speiser v. Randall, 357 U.S. 513, 526

(1958) (“In practical operation, therefore, this procedural

device [a statutory presumption that speech is unprotected]

must necessarily produce a result which the State could not

command directly. It can only result in a deterrence of

speech which the Constitution makes free.”).

In what appears to be the only reason for the presumption,

Vermont State Representative Terry Bouricius, who is the sponsor of the

legislation, asserted that expenditures supporting six or fewer candidates

were “more likely to be part of [a] campaign.” Landell, 118 F. Supp. 2d

at 492 n.28.

The net effect of section 2809(d) is to restrict speech

unless and until the party obtains a ruling, if such a ruling is

even allowable, that the speech is not coordinated. In this

manner, the presumption creates a prior restraint of speech

that is impermissible under the First Amendment. See

Freedman, 380 U.S. at 59-60 (Maryland statute requiring

license for motion picture displays was an impermissible

prior restraint because it, inter alia, placed on exhibitor the

burden of persuasion that the film was protected expression).

See also Home Box Office, Inc. v. FCC, 567 F.2d 9, 124-25

(D.C. Cir. 1977) (FCC regulation establishing rebuttable

presumption that certain speech was unprotected was

impermissible prior restraint).

D. Act 64’s Presumption of Coordination Violates

Due Process.

1. Act 64’s Presumption of Coordination Violates

Due Process By Shifting the Burden of

Persuasion.

Even if establishing the presumption did not so plainly

offend the First Amendment, and even if there were a

realistic mechanism of review, section 2809(d) would be

infirm as a denial of Due Process. By imposing a mandatory

rebuttable presumption that a political party’s independent

expenditures are coordinated, Act 64 shifts the burden of

persuasion to a political party. See Francis v. Franklin, 471

U.S. 307, 317 (1985) (“A mandatory rebuttable presumption

does not remove the presumed element from the case if the

State proves the predicate facts, but it nonetheless relieves

the State of the affirmative burden of persuasion on the

presumed element by instructing the jury that it must find the

presumed element unless the defendant persuades the jury

not to make such a finding.”); see also County Court of

Ulster County, New York v. Allen, 442 U.S. 140, 157 (1979)

9

(mandatory presumption “tells the trier that he or they must

find the elemental fact upon proof of the basic fact, at least

unless the defendant has come forward with some evidence

to rebut the presumed connection between the two facts”).

Under the Due Process Clause, a state may not impose a

mandatory presumption in criminal cases, even if rebuttable,

because it has the impermissible effect of shifting the burden

of persuasion. See Francis, 471 U.S. at 317 (“A mandatory

rebuttable presumption is perhaps less onerous (than a

conclusive presumption] from the defendant’s perspective,

but it is no less unconstitutional. Our cases make clear [such]

shifting of the burden of persuasion . . . is impermissible

under the Due Process Clause.”).

This same heightened Due Process scrutiny applies to

presumptions under civil statutes involving “affirmative

Government action which seriously curtails important

liberties cognizable under the Constitution.” Weinberger v.

Salfi, 422 U.S. 749, 785 (1975). Just as the government has

the burden of persuasion in criminal cases, the First

Amendment places on the government the burden of

persuasion to show that speech is unprotected. See

Freedman, 380 U.S. at 58. More specifically, in the context

of independent expenditures, the government has the burden

of persuasion that such expenditures are coordinated and thus

subject to contribution limits. See Colorado I, 518 U.S. at

616.

Accordingly, section 2809(d)’s mandatory rebuttable

presumption violates Due Process by shifting the burden of

persuasion to political parties to prove that their independent

expenditures are not coordinated. See Speiser, 357 U.S. at

526 (“It is apparent that a constitutional prohibition cannot be

transgressed indirectly by the creation of a statutory

presumption any more than it can be violated by direct

10

enactment. The power to create presumptions is not a means

of escape from constitutional restrictions.”) (citing Bailey v.

Alabama, 219 U.S. 219, 239 (1911)).

2. Act 64 Fails To Provide Adequate Procedural

Safeguards to Allow for the Prompt Rebutting

of the Presumption.

Act 64’s related expenditure provision fails to provide

adequate procedural safeguards for political parties.

Although Vermont’s secretary of state asserts in

administrative guidance that the presumption of coordination

is rebuttable, neither the statute nor the secretary of state’s

administrative guidance identifies any process by which a

political party might rebut this presumption and obtain

approval! for the independent expenditure. The absence of a

clear process for timely rebutting the presumption is an

independent First Amendment violation. See Freedman, 380

U.S. at 60 (Maryland statute barring exhibition of motion

pictures until exhibitor proved the speech was protected was

invalid under the First Amendment because, inter alia, the

statute provided “no assurance of prompt judicial

determination”).

The very uncertainty of any available procedure for

securing prompt judicial or administrative review of the

presumption will chill protected speech. As this Court has

explained, “{a] scheme that fails to set reasonable time limits

on the decisionmaker creates the risk of indefinitely

suppressing permissible speech.” FW/PBS, Inc., dba Paris

Adult Bookstore Il v. City of Dallas, 493 U.S. 215, 227

(1990). “Until a judicial decree to the contrary,” City of

Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 758

(1988), Act 64’s presumption stands. “In the interim,

opportunities for speech are irretrievably lost.” /d.

11

In the context of political speech in the heat of an

election, delays caused by procedural deficiencies are

constitutionally intolerable. See Shuttlesworth v. City of

Birmingham, 394 U.S. 147, 163 (1969) (Harlan, J.,

concurring) (“[{T]iming is of the essence in politics . . . and

when an event occurs, it is often necessary to have one’s

voice heard promptly, if it is to be considered at all.”); see

also Carroll v. Comm'rs of Princess Anne, 393 U.S. 175, 182

(1968) (a delay “of even a day or two” may be intolerable

when applied to ‘political’ speech in which the element of

timeliness may be important”).

Il. VERMONT’S EXPENDITURE LIMITATIONS

VIOLATE THE FIRST AMENDMENT.

At least since Buckley, it has been clear that campaign

expenditure limits violate the First Amendment because they

“impose direct and substantial restraints on the quantity of

political speech.” 424 U.S. at 39. The reasons for this

holding are as obvious today as they were 30 years ago:

First, money enables speech, and more money enables more

speech. Second, under a regime of contribution limits,

greater expenditures necessarily imply a larger and broader

base of financial support, reducing rather than increasing the

reality or the appearance of quid pro quo corruption. Third,

expenditure limits necessarily fall disproportionately on non-

incumbents, who lack the profile and name recognition of

incumbents.

This Court has repeatedly reaffirmed Buckley's holding

that expenditure limits restrict core political speech and thus

offend the First Amendment in the most fundamental way.

See, e.g., McConnell, 540 U.S. at 120 (Buckley “treated the

limitations on candidate and individual expenditures as direct

restraints on speech”); Federal Election Comm'n v. Colo.

Republican Federal Campaign Comm., 533 U.S. 431, 437

12

(2001) (“Colorado IT’) (“Later cases have respected this line

between contributing and spending.”); Nixon v. Shrink Mo.

Gov't PAC, 528 U.S. 377, 387 (2000) (“[A]n expenditure

limit ‘precludes most associations from effectively

amplifying the voice of their adherents.””) (citing Buckley,

424 U.S. at 22); Colorado I, 518 U.S. at 610, 614-15;

Federal Election Comm'n v. Mass. Citizens for Life, Inc., 479

U.S. 238, 259-60 (1986); NCPAC, 470 U.S. at 491. The

legislative history of Act 64 makes plain that it was intended

to be, and is in fact, a direct assault on this settled and

sensible precedent. See Memorandum from Vt. Sec’y of

State Deborah L. Markowitz to the S. Gov’t Operations

Comm. and H. Local Gov’t Comm. (Jan. 9, 2001), available

at ,http://vermont-elections.org/elections 1/2001 gamemocf.

html.

” This Court’s decisions applying the doctrine of stare decisis

argue strongly against overturning the holding in Buckley, 424 U.S. at

143. First, Buckley's holding that expenditures are constitutionally

protected established an important liberty interest, and political parties,

candidates, and other participants in the political system have acted with

reliance on that holding for the last 30 years. Cf Lawrence v. Texas, 539

U.S. 558, 577 (2003) (“[W]hen a Court is asked to overrule a precedent

recognizing a constitutional liberty interest, individual or societal reliance

on the existence of that liberty cautions with particular strength against

reversing course.”) (emphasis added). Second, Buckley's holding that

expenditures are constitutionally protected has been repeatedly reaffirmed

by this Court, and has caused no uncertainty or instability in the law. Cf

id. (consideration weighing in favor of overturning prior decision is if the

prior decision “itself causes uncertainty, [because] the precedents before

and after its issuance contradict its central holding”). Third, as explained

in text, Buckley's rationale with respect to the constitutional protection

afforded expenditures was entirely correct. Cf id. (consideration

weighing in favor of overturning prior decision was that its rationale did

not “withstand careful analysis’).

13

A. Expenditure Limits Are Subject to Strict Scrutiny

Because They Severely Burden Core Political

Speech.

Political speech lies at “at the core of our electoral

process and of the First Amendment freedoms.” Buckley,

424 US. at 39. “(Because virtually every means of

communicating ideas in today’s mass society requires the

expenditure of money,” expenditure limitations constitute

“substantial rather than mere theoretical restraints on the

quantity and diversity of speech.” /d at 19. Applying

“exacting” constitutional scrutiny, id. at 44-45, the Buckley

Court struck down all the expenditure limits that were before

it: campaign expenditure limits, id. at 55-56; limits on

independent expenditures by individuals and groups, id. at

45-48; and limits on expenditures by a candidate of his own

money, id. at 53. In subsequent decisions, the Court struck

down limits on independent expenditures by political action

committees (“PACs”), NCPAC, 470 U.S. at 500-01, and on

independent expenditures by political parties, Colorado I,

518 U.S. at 617-18 (principal opinion by Breyer, J.). Since

Buckley, neither this Court, nor any circuit court until the one

below, has upheld a ceiling on political expenditures. In

view of this consistent precedent, it is striking that the lower

court failed to explain why departure from it is warranted.

These decisions have applied strict scrutiny, requiring a

showing of “a sufficiently strong governmental interest”

served by the restriction and a showing that the restriction is

“narrowly tailored to the evil that may legitimately be

regulated.” NCPAC, 470 U.S. at 496. See also Mass.

Citizens for Life, 429 U.S. at 256 (“When a statutory

provision burdens First Amendment rights, it must be

justified by a compelling state interest.”); McConnell, 540

U.S. at 135-36 (distinguishing contribution limits from

éxpenditure limits because the latter “‘preclud{[e] most

14

associations from effectively amplifying the voice of their

adherents’”) (internal citations omitted); Shrink, 529 U.S. at

386-88 (emphasizing that restrictions on expenditures are

“direct restraints on speech,” subject to more rigorous

scrutiny than contribution limits). The expenditure limits at

issue here cannot survive strict scrutiny.

B. Act 64’s Expenditure Limits on Candidates Are

Not Supported by Valid Governmental Interests.

In the thirty years since this Court decided Buckley, the

Court has identified only one compelling interest that can

justify campaign finance restrictions: the prevention of

actual and apparent corruption in the electoral process. See

NCPAC, 470 U.S. at 496-97 (“We held in Buckley and

reaffirmed in Citizens Against Rent Control that preventing

corruption or the appearance of corruption are the only

legitimate and compelling government interests thus far

identified for restricting campaign finances.”). See also

McConnell, 540 U.S. at 142 (“Congress enacted § 323 as an

integrated whole to vindicate the Government’s important

interest in preventing corruption and the appearance of

corruption.”).

Buckley explicitly rejected various justifications offered

in defense of spending limits. For example, it held that

leveling the playing field to provide equivalent opportunities

to candidates “is wholly foreign to the First Amendment.”

424 U.S. at 48-49. It considered and rejected concerns about

rising campaign costs because “(t]he First Amendment

denies government the power to determine that spending to

promote one s political views is wasteful, excessive, or

unwise.” Jd. at 57.° So sound are these repudiations that the

* Compare Buckley, 424 U.S. at 57 (“Appellees and the Court of

Appeals stressed statistics indicating that spending for federal election

(continued...)

15

lower court did not rely on these justifications in upholding

the spending limits here.

Rather, the lower court upheld the restraints based upon a

purported desire to prevent corruption and a desire to save

incumbent legislators time from fundraising. Neither

justification withstands analysis.

1. A Legislative Desire to Prevent Actual or

Apparent Corruption Cannot Excuse

Expenditure Limits.

In 1997, the Vermont legislature enacted Act 64

specifically to challenge this Court’s holding in Buckley

rejecting expenditure limitations. See Markowitz

Memorandum (Jan. 9, 2001); see also Landell, 382 F.3d at

185 (Winter, J., dissenting). Because neither Vermont nor

the lower court have identified anything in the American

political process — much less in the First Amendment — that

has materially changed in the last 30 years, the RNC

respectfully urges this Court to reaffirm that the First

Amendment proscribes expenditure limits.’

campaigns increased almost 300% between 1952 and 1972 in comparison

with a 57.6% rise in the consumer price index during the same period.”),

with Landell, 382 F.3d at 101 (citing findings by the Vermont General

Assembly that: (1) election campaigns for statewide and state legislative

offices are becoming too expensive; and (2) citizen interest, participation,

and confidence in the electoral process is lessened by excessively long

and expensive campaigns).

* Passage of Act 64 in Vermont appears less the result of any

overriding public concern with corruption than a desire by a majority of

Vermont's legislature to challenge the settled precedent barring spending

limits.

16

This Court has repeatedly rejected the anti-corruption

interest as a valid justification for expenditure limitations. In

Buckley, this Court held this interest was nof sufficient to

justify the Act’s limits on independent expenditures, 424

U.S. at 45-48, expenditures derived from a candidate’s

personal funds, id. at 53, and overall candidate expenditures.

Id. at 55-56. Since Buckley, the Court has similarly held that

the anti-corruption interest does not justify limits on

independent political expenditures by. political parties,

Colorado I, 518 U.S. at 617-618 (principal opinion by

Breyer, J.), and political action committees (“PACs”),

NCPAC, 470 US. at 500-01.

The reason is simple. Limits on political expenditures

directly limit political speech. Yet, under a regime of

contribution limits, more money raised /essens the influence

of each contributor. Further, once money is raised in

compliance with contribution limits, the act of spending the

money — on handbills, candidate appearances, or media

advertising — has no actual or apparent corrupting potential.

This Court has defined corruption as “a subversion of the

political process.” NCPAC, 470 U.S. at 497. “Elected

officials are influenced to act contrary to their obligations of

office by the prospect of financial gain to themselves or

infusions of money into their campaigns.” Jd. (emphasis

added). Actual or apparent corruption (including undue

contributor influence) in the realm of campaign finance exists

primarily, if not exclusively, in transactions involving

contributions, whether directly to a candidate, see Buckley,

424 US. at 25-29, or to a party committee at the behest of, or

with the knowledge of, a candidate of that party.

McConnell, 540 U.S. at 145-54. Thus, in this Court’s

decisions a political contribution to a candidate or a political

party may give rise to the appearance of an unlawful

exchange or undue influence, but a payment by a candidate

17

to a vendor, for example, will not. No quid pro quo,

appearance of a quid pro quo, or appearance of undue

influence occurs when a candidate merely spends money that

has been legally raised.

It is noteworthy that there is no record in this case

supporting the theory that expenditure limits are necessary to

curtail corruption or the appearance of corruption in Vermont

elections. Despite findings of voter apathy and frustration

about costly campaigns — concerns not bearing directly upon

the issue of corruptive influences in politics — proponents of

Vermont’s expenditure limits have been unable to identify

ways in which unlimited campaign expenditures give rise to

the appearance of corruption. Rather, they have

hypothesized about corruption caused by large campaign

contributions.

In this case, even the lower court has acknowledged that,

based upon the Buckley opinion, the anti-corruption interest,

standing alone, is insufficient to justify the limitations on

candidate campaign expenditures that were enacted by the

Vermont legislature. See Landell, 382 F.3d at 119. This

Court should reaffirm Buckley’s holding that expenditure

limits do not deter corruption or the appearance of

corruption. That holding was correct then, and it is still

correct today.

‘© See generally Landell, 118 F. Supp. 2d at 465-474; see also

Landell, 382 F.3d at 189-91 (Winter, J., dissenting) (“The only

particularized evidence of improper influence relied upon by my

colleagues consists of one anecdote. It involved ‘widely reported’

meetings of major dairy companies with unnamed officials when such

meetings were denied to smaller dairy organizations, Maj. Op. at 50. We

are asked to assume in this case that unspecified contributions - in

contrast to, perhaps, numbers of voters involved — were the decisive

factor.”) (emphasis added).

18

2. Incumbent “Time-Protection” Is Not a Valid

Governmental Interest.

The Vermont legislature asserts a compelling government

interest in “assur[ing] that candidates and officeholders wil!

spend less time fundraising and more time interacting with

voters and performing official duties.” Landell, 382 F.3d at

115. The lower court recognized that this interest, alone,

would be insufficient to support curbs on_ political

expression, see id. at 125; it nevertheless ruled that the so-

called “time protection interest” coupled with the anti-

corruption interest, are sufficiently compelling reasons to

excuse candidate expenditure limits. See id.

The premise of the time-protection interest is that an

incumbent politician will be set free from the shackles of

fundraising responsibilities if cost controls are implemented

on the campaigns of the incumbent and his challengers. '' By

liberating the incumbent from the time-consuming burden of

raising unlimited sums to funding for a successful re-

election, the incumbent will be able to devote his bonus

hours to “important government business” that may include

“studying legislative proposals or meeting with constituents

who may not be likely donors.” /d. at 123.

The flaws in this reasoning are too numerous to compile,

but a few deserve mention.

First, the legislature and the lower court incorrectly

assumed that this asserted interest would arrive at this Court

'! The time-protection interest asserts that saving incumbents time

for additional /egis/ative responsibilities is a compelling government

interest. Even if this dubious proposition were true, no argument has

been made that there is a compelling government interest in creating

more time in a challenger’s schedule.

19

fresh and novel. To the contrary, the interest was asserted in

Buckley, but merited barely a mention by this Court. As

Judge Winter, who argued Buckley before this Court,

recounted in his dissent in Landell, 382 F.3d at 188-89:

The time-protection argument was relied upon by

the Court of Appeals in Buckley in upholding

[FECA], was the subject of an entire subsection

of the brief filed in the Supreme Court on behalf

of the Attorney General and Solicitor General,

was argued as a justification in the brief filed in

the Supreme Court by intervening parties

defending expenditure limits, and was mentioned

by the Supreme Court itself.

Although the Court expressly and soundly rejected

equalizing candidate resources and containing political

campaign costs as justifications for expenditure limits, 424

U.S. at 26, 54-59, its implicit relegation of the time-

protection interest to less discussion than these rejected

justifications speaks volumes. In fact, the Second Circuit is

the first court to credit such an explanation for spending

limits. See generally Landell v. Sorrell, 406 F.3d 159, 172

(2d Cir. 2005) (Walker, Jr., J., dissenting on denial of

rehearing en banc) (“{I}n the nearly thirty years since

Buckley, no court of appeals has found that saving a

candidate’s time from fundraising is a sufficient interest to

justify stifling political speech.”).

Second, this purported justification erroneously assumes

that total campaign expenditures of money are closely

correlated with total expenditures of candidate fundraising

time. This asserted correlation falters for many reasons. To

begin with, campaigning and fundraising are not distinct;

candidate appearances and speeches (which Act 64 allows to

continue) often have a fundraising component. Moreover,

20

many candidates fund their own campaigns in whole or in

part with personal funds, reducing or eliminating time spent

fundraising. In addition, professional political fundraisers,

many of whom charge a percentage of the amounts raised, as

well fundraising volunteers, carry the load for many if not

most candidates, reducing the time spent by candidates on

fundraising. National, state, and local political parties also

provide fundraising assistance, as well as direct funding, for

candidates in competitive races.

Just as important, campaigns raise money by way of

direct mail and Internet solicitations, requiring little if any

candidate time. As one example, during the 2004

Democratic Presidential Primary, Vermont Governor Howard

Dean — one of the proponents of Act 64, who is quoted at the

outset of the lower court’s opinion’? - shattered fundraising

records by raising almost $15 million, more than any other

Democratic candidate in history in a single fundraising

quarter. See Alexis Rice, Fellow at the Center for the Study

of American Government at Johns Hopkins University,

Campaigns Online: The Profound Impact of the Internet,

Blogs, and E-Technologies in Presidential Political

Campaigning 45 (2004), available at

http://www.campaignsonline.org/. Half of Governor Dean’s

contributions were secured through the Internet, see id.,

requiring no investment of his personal time. In the

subsequent fundraising quarter, 84,713 supporters made

110,786 contributions to Governor Dean’s campaign. See id.

The average amount per contribution was less than $62. See

id.

Later in 2004, Senator John Kerry also used the Internet

to raise nearly $12.5 million in one month and $3 million in

'2 See Landell, 382 F.3d at 96.

21

only one day for his Presidential Campaign. See Glen

Justice, Kerry Sets Web Record in Donations, N.Y. TIMES,

July 2, 2004, at Al4. As former Federal Election

Commission Chairman Trevor Potter has explained, “The

small donor, Internet component . . . demonstrates the

importance of Internet fundraising.” Lisa Getter, The Race to

the White House: Kerry up to $180 Million, L.A. TIMES,

July 2, 2004, at A27.

The well-publicized success of federal candidate

fundraising on the Internet has led state and local candidates

to incorporate Internet fundraising as part of their campaign

strategies. See e.g., Tracie Dungan, Hopefuls Putting Hands

Out on Web: Campaigns Tap Online Potential, ARK.

DEMOCRAT-GAZETTE, Nov. 13, 2005. Indeed, many

Vermont political parties’? and _ politicians, including

incumbent candidates for Lieutenant Governor,'* State

Senate,'* State Representative,'© and Mayor,'’ have used the

Internet to raise campaign funding without consuming

candidate time. In short, there is no sound basis either in this

record or elsewhere to show convincingly that responsible

public officials are shirking their official duties to raise

campaign cash."

>is http://www.vtgop.org; http://www. videmocrats.org;

http://www. vtlp.org; http://www.progressiveparty.org; and

'* See http://www. briandubie.com.

‘3 See http://www.mattdunne.com.

'© See http://www .timjerman.com and http://sueminter.com.

‘7 See http://www.hindaformayor.com.

'* Candidates vary immensely in their ability to raise money. One

candidate might devote countless hours to fundraising without

accumulating funds that reach the expenditure limit; another might reach

or exceed the same limits in substantially less time. Put another way, Act

(continued. ..)

22

Third, as the Sixth Circuit has observed, the “time-

protection” justification is inextricably linked with — and in

reality is a euphemism for — the cost containment

justification repudiated in Buckley. See Kruse v. City of

Cincinnati, 142 F.3d 907, 916-17 (6th Cir. 1998) (“The need

to spend a large amount of time fundraising is a direct

outgrowth of the high costs of campaigns. However, because

the government cannot constitutionally limit the cost of

campaigns, the need to spend time raising money, which

admittedly detracts an officeholder from doing her job,

cannot serve as a basis for limiting campaign spending.”).

Fourth, the sole purpose of the time-protection interest is

to assist incumbent legislators in enhancing their job

performances by decreasing the number of hours necessary to

raise money to compete with their challengers.'? By enacting

dollar limits to assist legislator-candidates with their official

job responsibilities, however, the legislature unfairly burdens

challengers and further insulates incumbents from

competitive elections.

Taking the preferred justification at face value, we are

told that incumbent legislators who spend less time

fundraising because of expenditure limits are able to schedule

more time for official responsibilities such as studying

legislative proposals, attending legislative hearings, and

64 incorrectly assumes that fundraising places equal demands on the time

of all candidates.

"9 See generally Landell, 406 F.3d at 172 (Walker, Jr, J.,

dissenting on denial of rehearing en banc) (“Where an officeholder

complains that taking time to fundraise makes it harder to do the job and

that the government has an interest in preventing this, the officeholder is

saying in effect, ‘The government has an interest both in my doing my

job and in getting me reelected by making campaigning (fundraising)

easier.’ It has an interest in the former, but certainly not the latter.”’).

23

meeting with constituents. But all of these activities lead to

increased political exposure for incumbents. Empowered

with the bonus hours made possible by the expenditure caps,

they are more capable of attending “meet and greets,”

speaking at Rotary Club and Jaycee meetings, holding press

conferences, meeting with newspaper editorial boards, and

participating in local television and radio interviews. In sum,

any additional time made available and actually used for

official duties will only enhance the power of incumbency,

because incumbents, unlike challengers, can. more easily

attract free media attention and exposure by their official

activities.

Non-incumbent candidates, on the other hand, are much

less likely to benefit from the asserted time-protection

resulting from Act 64’s expenditure limits. With expenditure

limits, the ability of challengers even to divert the unused

fundraising time to travel and campaign events will be

limited because all those campaign activities cost money.

Precisely because they are less able to attract media attention

and exposure than incumbents, challengers need to spend

additional money to compensate for the incumbent’s natural

advantages.*” For example, incumbency provides several

2° Validating (but not ameliorating) this concern, Vermont

arbitrarily enacied a “rare” accommodation for challengers in its

campaign finance law that requires certain incumbents to spend at least

10 to 15-percent less than the statutory limits in an election cycle. In

contrast, challengers may spend up to 100-percent of the expenditure

limit. See VT. STAT. ANN. tit. 17, § 280Sa(c) ; see also Landell, 382 F.3d

at 128. Thus, an incumbent candidate for Governor may spend $45,000

less than a challenger in an election cycle; $15,000 less in races for

Lieutenant Governor; $6,750 less in races for secretary of state, state

treasurer, auditor of accounts or attorney general; and between $650 and.

$200 less in races for the general assembly and county offices. See WT.

STAT. ANN. tit. 17, § 2805a(a), (c). Even with the more generous

spending allowances for challengers, however, the statute impinges their

(conxinued. ..)

24

advantages in an election, including name identification,

increased media exposure, and use of public resources

associated with the officeholder’s position?’ Expenditure

limits place substantial burdens on the ability of challengers

to overcome these advantages by restricting the volume of

their political expression, and inhibiting them from mounting

adequate challenges to incumbents.

Finally, there is no basis for distinguishing fundraising

from other time-demands in a legislator’s schedule.

Although the premise of the time-protection argument is that

government has an interest in legislators dedicating more

time to officeholder duties, only fundraising is singled out as

a burden on those responsibilities. This ignores countless

other campaign activities, such as political party luncheons

and candidate forums, which may subtract equal or greater

amounts of time from an officeholder’s schedule.” Also

oddly, unlike many states, Vermont does not require its

legislators to give up or limit time spent in outside

First Amendment rights by substantially limiting what they may

ordinarily be able to spend to engage in political dialogue.

7) Examples include government websites, press releases, media

advisories, and const.tuent or “tranked” mail.

22 See e.g, Homans v. City of Albuquerque, 366 F.3d 900, 912

(10th Cir. 2004) (“The claim that fund-raising prevents officeholders

from engaging in alternative campaign tactics such as individual door-to-

door contact is interesting. Albuquerque does not articulate any reason

why there is a compelling state interest in channeling campaign resources

to favor individual voter contact rather than fund-raising tactics. There is

no indication in the record that, for example, the added burden of fund-

raising events and phone calls is more demanding on an officeholder's

time than the burden of individual voter contact. Ner does the record

persuade us that individual voter contact is a fundamentally superior

campaign strategy because fund-raising efforts compromise an

officeholder’s ability to communicate with the public.”) (emphasis

added).

25

employment, see VT. STAT. ANN. tit. 2, §§ 1-22 and JOINT

RULES OF THE SENATE AND HOUSE OF REPRESENTATIVES OF

VERMONT (adopted Jan. 30, 1990), available at

http://www.leg.state.vt.us/misc/rules2.htm, casting further

doubt on the legitimacy of the “time-protection interest.” At

bottom, the only policy interest advanced is a circular one: it

frees lawmakers from fundraising activities.

In sum, the time-protection interest serves only the

interest of incumbent officeholders. Vermont has no

compelling interest, however, in protecting the schedules of

incumbent lawmakers from fundraising activities. Because

time-protection is not a valid interest supporting Vermont's

expenditure limits, this Court should reverse the lower court.

C. Act 64’s Expenditure Limits Are Not Narrowly

Tailored To Advance the Asserted Interests of

Anti-Corruption and Time-Protection.

In addition to being justified by a compelling government

interest, expenditure limits must be “sufficiently narrowly

tailored to achieve” that interest. See Austin v. Mich. State

Chamber of Commerce, 494 U.S. 652, 660 (1990).

Furthermore, a government must employ the least restrictive

means possible to advance that interest. See Ashcroft v. Am.

Civil Liberties Union, 542 U.S. 656, 665-66 (2004). In this

case, even if the Court were to determine that anti-corruption

and time-protection are compelling government interests

justifying expenditure limitations — and they are not — Act 64

would fail for lack of narrow tailoring.

1. Act 64’s Expenditure Limits Do Not Advance

the Asserted Interests of Anti-Corruption and

Time-Protection.

Expenditure limits are not effective in reducing the

appearance of corruption in the electoral process. To the

26

contrary, Act 64 perversely promotes corruption because its

limitation on expenditures (and hence the number of

contributions that might be accepted) increases the

significance of each individual contribution. Under a regime

of contribution limits with no spending cap, the likelihood of

corruption diminishes as the number of contributors

increases.

Also perversely, Act 64 does not limit the total amount a

candidate can raise; it limits only what he can spend. At any

time of heightened interest in the legislative agenda — when

the hypothetical potential for guid pro quo corruption is at its

zenith — a legislator may decide to amass a large war chest

for use in future electoral cycles or to pursue other political

ambitions. Thus, the expenditure limitations may not even

limit time spent fundraising during the busiest legislative

periods.

Even if effective at reducing time spent fundraising, Act

64 does not ensure that incumbents will devote additional

time to their official duties. For example, Elizabeth Ready, a

Vermont legislator and Respondent-Intervenor in this case,

testified at trial that expenditure limits would help eliminate

the burdens of fundraising and enable her to campaign door-

to-door, visit county fairs, and attend local events. See

Landell, 382 F.3d at 123. Although these activities may

increase person-to-person contact with some constituents,

they are more accurately described as campaign activities

rather than official duties.

Furthermore, expenditure limits hinder a candidate’s

ability to campaign efficiently using paid-communication

methods such as direct mail, television, radio, and newspaper

advertisements. To the extent that expenditure limits force

incumbents to rely more on time-intensive personal

campaigning rather than media advertising that will reach

27

more voters, the limits defeat the ostensible purpose of time-

protection for incumbents.

2. Act 64’s Expenditure Limits Are Not the Least

Restrictive Means of Advancing the State’s

Asserted Anti-Corruption and Time-Protection

Interests.

Even if anti-corruption and _ time-protection are

compelling interests that might sustain Act 64’s expenditure

limits, and even if Act 64 advances those interests to some

degree, Act 64 does not do so in the least restrictive manner.

First, Vermont’s expenditure restrictions will

demonstrably reduce speech because the statute’s spending

caps are based on expenditure averages from previous

elections, including those that were nominally contested.

See Landell, 382 F.3d at 173-74. By definition, many prior

campaigns — usually the most competitive ones where

incumbents were most at risk -— cost more than the

legislatively-mandated averages. Consequently,

expenditures, and thus speech, in the most competitive races

will actually diminish as a result of the arbitrary calculations.

See Buckley, 424 U.S. at 20 (invalidating expenditure limits

that “would have required restrictions in the scope of a

number of past congressional and Presidential campaigns”).

Second, the expenditure limit unnecessarily prohibits

candidates from using their own resources. As Buckley

forcefully ruled, “the First Amendment simply cannot

tolerate [FECA’s] restriction upon the freedom of a candidate

to speak without legislative limit on behalf of his own

candidacy.” 424 U.S. at 54. Just as a self-financing

candidate cannot corrupt himself, his use of personal

resources also does not require expenditure of time raising

money from others.

28

Third, the legislation unnecessarily and unfairly regulates

spending in al] races by ail candidates. To protect the time

of officeholders so they may legislate and perform their

official functions, it is unnecessary to limit expenditures in

open seat contests between non-incumbents. Nor is it

necessary to limit spending by non-incumbents running

against incumbents. As noted above, incumbents have

various “in kind” political advantages by virtue of holding

their offices, so they would not be unduly disadvantaged by

expenditure limits that applied solely to incumbents.

Fourth, other states such as Georgia, see GA. CODE § 21-

5-35(a), have used a less restrictive time limitation on

fundraising, prohibiting candidates from raising money while

the legislature is in session.” This approach would

complement Vermont’s current statutory framework, see VT.

STAT. ANN. tit. 2, § 266(3), which prohibits lawmakers from

accepting contributions from /obbyists during legislative

work periods.”

Finally, Act 64 is overbroad by limiting expenditures,

regardless of the source of the funds. As shown (pp. 20-21

above), expenditures derived from telemarketing, direct mail,

the Internet, and other non-personal forms of solicitation do

not require a substantial investment of personal time from the

# See also ALA. CODE § 17-22A-7(b){(2); IND. CODE § 3-9-2-12;

lOwA CODE § 68A.504(1); LA. REV. STAT. ANN. § 18:1505.2(Q)(1),

(R\(1); Mp. Cope ANN., ELEC. § 13-235; Nev. REV. STAT. 294A.300,

310; N.M. STAT. ANN. § 1-19-34.1; OKLA. STAT. tit. 74, § 257:10-1-6:

TENN. CODE ANN. § 2-10-310(a)(1), (6); and TEX. ELEC. CODE. ANN. §

253.034.

* Other states precluding lobbyist contributions during legislative

sessions include Arizona, ARIZ. REV. STAT. § 41-1234.01, and North

Carolina, N.C. GEN. STAT. § 163-278.13B. Moreover, states like Kansas,

KAN. STAT. ANN. § 25-4153a, permit legislators to accept contributions

only from individuals during legislative sessions.

29

candidate. Thus, to the extent that time-protection is a valid

interest, and to the extent that Act 64 advances that interest

with regard to persona! solicitations, Act 64 is still overbroad

because it restricts expenditures derived from non-personal

solicitation sources.

CONCLUSION

For the reasons set forth above, amicus RNC urges the

Court to reverse the decision of the Second Circuit.

Respectfully submitted,

THOMAS J. JOSEFIAK Bossy R. BURCHFIELD

SEAN CAIRNCROSS Counsel of Record

REPUBLICAN NATIONAL M. MILLER BAKER

COMMITTEE MATTHEW M. LELAND

310 First Street, S.E. McDERMOTT WILL & EMERY LLP

Washington, D.C. 20003 600 Thirteenth Street, N.W.

(202) 863-8500 Washington, D.C. 20005

(202) 756-8000

December 14, 2005 Counsel for Amicus Curiae

ArRICE OF THE CLERK |

Nos. 04-1528, 04-1530, and‘?

In the Supreme Court of the Gnited States

NEIL RANDALL, et ai.,

Petitioners,

Vv.

WILLIAM H. SORRELL, et al.

Respondents/Cross-Petitioners.

VERMONT REPUBLICAN STATE COMMITTEE, et ai,,

Petitioners,

Vv.

WILLIAM H. SORRELL, et al.,

Respondents/Cross-Petitioners.

On Writ of Certiorari to the

United States Court of Appeals for the Second Circuit

BRIEF OF THE SECRETARIES OF STATE OF NEW

HAMPSHIRE, NEW MEXICO, OREGON, AND WISCON-

SIN AS AMICI CURIAE IN SUPPORT OF RESPON-

DENTS/CROSS-PETITIONERS

PHILIP ALLEN LACOVARA

CHARLES A. ROTHFELD

Counsel of Record

DANIEL T. BROWN

HEATHER H. MARTIN

Mayer, Brown, Rowe & Maw

LLP

1909 K Street, NW

Washington, DC 20006

(202) 263-3000

QUESTION PRESENTED

Amici will address the following question:

Whether the state interest in combating the public percep-

tion of corruption and distortion in the electoral process

caused by unlimited campaign spending may sustain nar-

rowly tailored expenditure limits against a First Amendment

challenge.

(1)

TABLE OF CONTENTS

Page

ee I ip liseicinibabicintepnestoncnsinstniineaiesusciiininn I

ee ee Se iiicttenitentnninncerrncttiintiiinnvinainns ili

INTEREST OF THE AMICI CURIAE ..........cccssesesssssesesseveees l

INTRODUCTION AND SUMMARY OF ARGU-

TTT scieesintincinintetieencaaciieahdataiietiitalapesnnaiadinapbinameinneiiiania 2

RENEE cinirtcicscnnintiniesinnisaanininitiinnenes 3

A. States Have A Compelling Interest In

Using Carefully Crafted Expenditure

Limits To Combat A Pervasive Public

Perception Of Corruption And Distor-

tion In The Electoral Process... 3

B. A Rule That Allows States To Ex-

periment With Campaign Expenditure

Limits Would Permit The Develop-

- ment Of Electoral Systems That Com-

bat Public Cynicism While Preserving

First Amendment Values................cc.ssseseee 14

GOING LIIBIOIN 2..ccccccoresscocecnsscnsesscessnccsscscosscsssnssssssssosesooosees 19

ill

TABLE OF AUTHORITIES

Page(s)

Cases

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

STII isch taiaipaiieediateditiiabatbianeintebeibandlmerduleniannisonip 18

Bates v. Director of Office of Campaign

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

Sa hicheclicccetiahecesdceaiiliatithideipeepdlaseiaaiteiiiapaaieniebintibaiitianieltiai 12

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

FEC v. Nat'l Conservative Political

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

Homans v. Albuquerque,

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

Homans v. City of Albuquerque,

366 F.3d 900 (10th Cir. 2004)... ecececsseeeetseseeeenee 1]

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

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

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

Rs i i TT ciiaecicinciiloemnicticataibniiiaitiininnitaniiaianiin 4, 16

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

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

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

III siohsiieeinialeetecieidehtsi dneaiiailialcaiapdaiatenlatrlieasinamteaes 15

Nixon v. Shrink Mo. Gov't Political -

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

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

tices Comm'n, 721 F. Supp. 1172

ee Ge SEITE icsniiesdetennnitmeaniineiantinsiainteninaennanbemenein 11

iv

TABLE OF AUTHORITIES — (Cont’d)

Service Employees International Union v. Fair

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

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

Taxpayers to Limit Campaign Spending v. Fair

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

ERED occinintiesnideahicitbeahdiieiitsctnecieiansindngeiihiaiatideetsieiaiibiniaiiigiabedile 1]

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

CRIED sniinilencssinvcsttenivinsimninttetaniumnibidmnsiiniiiiiN 13

Statutes and Bills

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

a, FE irre eceincsetntncateneintnenceeincnsinninaiaies 9

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

Stat. 864 (1907), as amended by

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

me eS ene 4

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

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

Miscellaneous

The Center for American Politics and Citizenship,

University of Maryland, and The Schaefer

Center for Public Policy, University of Balti-

more, Marylanders’ Opinions of Campaign Fi-

nance and Campaign Finance Reform2 (2002)

available at www.capc.umd.edu/

rpts/MDCampFinSrvy.pdf............sssessessesesessssseeeseerereeees 7

Robert Dreyfuss, Reform Beyond the Beltway,

States as Laboratories of Clean Money, 38 THE

AMERICAN PROSPECT 50, 53-54 (May/June

Vv

TABLE OF AUTHORITIES — (Cont’d)

Anthony Gierzynski, Albuquerque Election Financ-

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

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

Federal Election Commission, Campaign Finance

Law 2000: CHART 3-A EXPENDITURE

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

brec/cfl/cf1 00/cfl OOchart3a. html ................cccceceeeeees

Frontline, Justice for Sale, Summaries of Selected

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

frontline/shows/justice/que/studies. htm] ................:.

Gross & Goidel, THE STATES OF CAMPAIGN FINANCE

FI Ge ccscnpcersscccersscscocsnsveseensanessaernecsnessesaeee

Ken Hechier, Financing Elections: West Virgina,

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

FAIRS REPORTER 3 (1990)......:c:secessssesveseseseseeneseeecers

Hoover Institution: Public Policy Inquiry, Cam-

paign Finance, State and Local Overview,

available at http://www.campaignfinance-

site.org/ structure/states] .html.............ceccceereeeeeeees

Lake Research Partners, Survey Results from a

Nationwide Survey of 1000 Registered Voters

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

Lake Snell Perry & Assoc., Public Perceptions of

Campaign Spending Limits: Finding from a

Survey of 400 Registered Voters in the City of

Albuquerque, New Mexico (1998),

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

albuquerque/publicperceptions_ Albuquer-

vi

TABLE OF AUTHORITIES — (Cont'd)

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

From a Survey of 500 Registered Voters in the

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

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

Jim Ludwick, Chavez Raised, Spent Nearly

$1.2 Million, ALBUQUERQUE JOURNAL, 2005

WLNR 16559603 (Oct. 12, 2005)...............ccceceeceesereeeees 16

National Civic League, Spending Limits Working in

San Jose, California, 3 NEW POLITICS, at 3

IE Fie asrenccnssceensssceraqutapresenteestummncsenenmmasseenens 11

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

Debating Campaign Finance Reform, 37

SN thn Bie 0 Gere ei ietceneevedtrsstcsincdesnccnttnmenmscnniennes 5, 6

Press Release, Public Campaign, “Voter

Owned Elections” Becomes Law in Portland,

Oregon, (May 19, 2005), available at

www.publicampaignorg/pressroom/

pressreleases/release200S/release 05_

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

Gov. Rell Introduces Sweeping Reform Propos-

als for Campaign Finance (January 10, 2005),

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

rell/cwp/view.asp?Q=288454 &A=1761 ........cccccceeeevees 13

Public Policy Inquiry, Campaign Finance, State

and Local Overview, available at http:

//‘www.campaignfinancesite.org/ struc-

TE I cccerccecaniteniguactinnnennmnemees 10

Thomas C. Reeves, Selfish Politicians (2005),

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

TE ET Ene ETE eee on 7

vii

TABLE OF AUTHORITIES — (Cont’d)

Michael Sax! & Meaghan Maloney, The Bipartisan

Campaign Reform Act: Unintended Conse-

quences and Maine's Solution (2004) available

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

Donald J. Simon, Beyond Post-Watergate Reform:

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

EE, Tires ee iccctcetencenicscinensectersrettnntmnmnnnins 10

State PIRGs’ Democracy Program, The Case for

Limits on Campaign Expenditures, at 1, avail-

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

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

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

MARY: THE ROLE OF MONEY IN THE 2002 CONn-

GRESSIONAL PRIMARIES (2002) available at

www.uspirg.org/reports/W ealthPrimary!0_

il incncsccestonsionanandigesndtiininseinpenenaningtinienesneensiommmenmnee 5

Wisconsin Policy Research Institute, Inc., The

Wisconsin Citizen Survey, October 2005,

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

ee SUD HUES cneciiccrncnennmncccmnectnsrennsnscncsentqnemnien 7

WHDH 7 News Boston, Connecticut Lawmakers

Pass Sweeping Campaign Finance Bill (Dec.

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

com/news/articles/national/BOS 1 0050/ ..2.............cccc000e8 13

Wisconsin Briefs from the Legislative Reference

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

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

NT cccnernsecstenateapenapuiitiansinenitnnniatinscanateenincanenai 8

INTEREST OF THE AMICI CURIAE

Amici include the following Secretaries of State: William

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

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

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

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

chief elections officers of their respective States. This re-

sponsibility gives them extensive experience with the issues

raised in this case.

This case involves a challenge to amendments to Ver-

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

paign expenditures — that were enacted in 1997. These

amendments were adopted with the overwhelming approval

of bipartisan majorities of both houses of the Vermont Legis-

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

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

ond Circuit described as “‘at least two interests in maintaining

campaign expenditure limits: preventing the reality and ap-

pearance of corruption, and protecting the time of candidates

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

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

paign contributions alone have been ineffective in achieving

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

ful reform can occur only with the implementation of manda-

_ tory spending limits.

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

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

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

tect the integrity of the electoral process. Amici believe that

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

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

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

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

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

brief have been filed with the Clerk.

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

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

datory campaign spending limits. But if amici are incorrect

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

and permit Vermont to demonstrate that its campaign expen-

diture limits should survive strict scrutiny. A decision by this

Court that the Constitution does not erect an insuperable, per

se barrier to campaign spending restrictions will assist the

states, as laboratories of democracy, in addressing wide-

spread public dissatisfaction with the current system of elec-

tioneering — a dissatisfaction that is having a corrosive effect

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

couraging voters from participating in state elections.

INTRODUCTION AND SUMMARY OF ARGUMENT

Vermont officials and their other amici address the gov-

erning constitutional doctrine, explaining why the First

Amendment should not be understood to preclude absolutely

the enactment of campaign expenditure limits. Amici Secre-

taries of State will not repeat those doctrinal arguments here.

Instead, amici will address two points of great concern to

public officials with responsibility for the integrity and vital-

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

ditures undermine public confidence in the electoral process,

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

local experimentation with differing methods of campaign

finance regulation may help in the development of effective

solutions to this profoundly vexing problem.

Amici urge the Court to uphold the constitutionality of

Vermont’s mandatory campaign spending limits, thus allow-

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

to address constituent concerns regarding the corruption (real

and perceived) and distortion of the political process that are

attributable to the unlimited campaign spending. The case

for so equipping state legislatures is compelling. Public dis-

satisfaction with the current system of campaign finance is at

an alarmingly high level. Objective indicia reveal that the

public strongly believes that excessive spending fosters cor-

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

confirmed by repeated attempts by state legislatures to re-

form systems of campaign finance.

A holding that campaign expenditure limits are not per se

unconstitutional would have healthy consequences for the

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

to experiment with novel methods of campaign finance re-

form and to determine which of those methods work best in

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

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

tem of campaign expenditure limits for almost three decades

after Buckley. That regime attracted extraordinarily broad

levels of public support, fostered electoral competition, re-

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

creased public participation in elections for city office. Al-

buquerque’s history strongly suggests the wisdom of relying

on the legislative process to develop creative solutions to the

pressing social problem of public dissatisfaction with the

campaign finance system.

ARGUMENT

A. States Have A Compelling Interest In Using

Carefully Crafted Expenditure Limits To Com-

bat A Pervasive Public Perception Of Corruption

And Distortion In The Electoral Process

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

pearance of corruption is a compelling government interest

that may properly be redressed with appropriately tailored

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

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

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

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

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

that moneyed interests have excessive influence in the politi-

cal process breeds cynicism about the machinery of democ-

racy and “could jeopardize the willingness of voters to take

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

Political Action Comm'n, §28 U.S. 377, 390 (2000).

Of particular importance here, this problem is not limited

to campaign contributions, which pose the most obviously

plausible risk of corrupting the political process. Govern-

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

toral system that assures their citizens that the fruits of the

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

ministration. As the amounts spent on American elections

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

tion in public cynicism about the quality of government these

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

portant aspect of the problem: unlimited campaign expendi-

tures have a corrosive effect both on voters’ confidence in

the integrity of government and on public willingness to par-

ticipate in the political process.

That danger was a central rationale for enacting Ver-

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

lature found thai “public involvement and confidence in the

electoral process have decreased as campaign expenditures

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

confidence in the electoral process is lessened by excessively

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

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

polling of the Vermont electorate and the testimony of the

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

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

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

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

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

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

103. .

2. The concern that motivated the Vermont legislature is

ubiquitous across the Nation: Empirical data reveal the exis-

tence of a pervasive public perception of corruption in elec-