Amicus Curiae Brief — Randall v. Sorrell

4

power based on wealth did not empower it to limit the speech

of the wealthy in order to enhance the relative political power

of the iess wealthy. Buckley, 424 U.S. at 48-49, 56-57.6

_ Second, because the Buckley Court did not perceive a link

between expenditures and corruption, id. at 45-47, 55-56, the

Court rejected avoidance of corruption as a justification for

placing a ceiling on campaign expenditures. Accordingly, the

Court did not consider whether a demonstrated link between

unlimited campaign spending and an increased risk of

corruption would justify a prophylactic limit on expenditures.

Third, the Buckley Court rejected the notion that a

compelling government interest existed in reducing

“wasteful, excessive or unwise” campaign spending for its

own sake. /d at 57. Once again, the Buckley Court did not

consider whether a showing that runaway campaign spending

was adversely affecting the nature and quality of the

democratic process would justify a spending ceiling. Rather.

the Buckley Court viewed the asserted interest in reducing

spending as resting solely on paternalism, and rejected it on

that basis. :

Unlike campaign expenditures, Justice Stevens noted in

McConnell, the Buckley Court viewed campaign

contributions as a form of indirect speech posing a risk of

corruption. McConnell, 540 U.S. at 134-38. As such, the

regulation of campaign contributions is subject to a less

rigorous form of scrutiny, demanding only that the

contribution limit be “closely drawn to match a sufficiently

important interest.” /d. at 136 (quoting Beaumont, 539 U.S.

© The Buckley Court acknowledged the legitimacy of a government

interest in minimizing political disparities based on wealth. but noted that

strengthening the economically weak speaker was the constitutionally

preferred option. /d. at 48-49. See Republican Nat'l Comm. v. FEC, 487

F. Supp. 280. 284-86 (S.D.N.Y.) (upholding expenditure ceiling as quid

pro quo for voluntary campaign subsidy), aff'd mem., 445 U.S. 995

(1980).

5

at 162). Because Buckley recognized a link between

contributions and corruption, contribution limits are valid as

long as the legislature’s fear of corruption is plausible, and

the contribution ceiling permits a candidate to amass

sufficient resources to engage in effective advocacy. See

Shrink Missouri, 528 U.S. at 395-96.

While the Buck/ey Court's bright-line distinction between

campaign expenditures and campaign contributions has been

the subject of criticism, see Shrink Missouri, 528 U.S. at 405-

10 (Kennedy, J., dissenting); id. at 410-20 (Thomas. J..

dissenting), it has become an entrenched principle of the law

of campaign finance regulation. McConnell vy. FEC, 540

U.S. 93 (2003). The net result is a judicially-imposed

campaign-finance regulatory regime that limits the supply of

campaign funds, but places the demand for campaign cash

beyond government regulation. See Kathleen M. Sullivan,

Against Campaign Finance Reform, 1998 Utah L. Rev. 311

(criticizing the existing regulatory model).

As with any regulatory regime that limits supply but not

demand. the current funding of American democracy exhibits

serious dysfunction.

First, the inability to place generous ceilings on campaign

expenditures places candidates in a classic prisoner's

dilemma, trapping many candidates in an electoral version of

the nuclear arms spiral,’ in which rival candidates are forced

to raise and spend additional campaign funds (even though

neither wishes to do so) because of a rational fear that

unilateral financial disarmament will enable an opponent to

gain a competitive advantage. See generally Garrett Hardin,

The Tragedy of the Commons, Science. pp. 1243-48 (Dec.13,

1968); Thomas C. Schelling, The Strategy of Conflict (1980

? See Phillip Schrodt. Richardson's Arms Race Model. National

Collegiate Software Clearinghouse, Raleigh, North Carolina (1987)

(describing the model of the nuclear arms race developed by Lewis Fry

Richardson).

6

ed.); Robert Axelrod, The Evolution of Cooperation (1984);

William Poundstone, Prisoner's Dilemma (1993): James D.

Miller, Game Theory at Work (2003).8

Second, rational competitive behavior triggered by a

prisoner's dilemma, creates an unending search, and a

desperate need, for campaign funds, empowering self-

interested contributors to exact quid pro quos — and worse

from candidates who must obtain the contributions to keep

pace with an opponent. See Vincent Blasi, Free Speech and

the Widening Gyre of Fund Raising: Why Campaign Speech

Limits May Not Violate the First Amendment, 94 Colum. L.

Rev. 1281, 1284-89 (1994); see also Richard Briffault,

McConnell v. FEC and the Transformation of Campaign

Finance Law, 3 Election L. J. 147, 174 (2004); Samuel

Issacharoff & Pamela S. Karlan, The Hydraulics of

Campaign Finance Reform, 77 Tex. L. Rev. 1705, 1710-11,

1736 (1999),

Third, the hydraulic fundraising pressure generated by

an uncontrollable demand for campaign cash tempts

incumbents to place inappropriate pressure on potential

contributors,? and encourages both candidates and

contributors to seek an unending parade of loopholes — or

worse - placing the regulatory system under perennial siege.

See Colorado Repub. 533 U.S. at 457 (“[{S]ubstantial

8 For an application of prisoner's dilemma game theory to the area of

campaign financing, see Shi-Ling Hsu, What Is a Traged: ¢ the

Commons? Overfishing and the Campaign Spending Problem (A. ailable

//aw. co i/viewcontent.cgi? article=2317&context=

expresso) (last visited February 8, 2006).

9 One need look no further than the current headlines to see examples of

the fundraising frenzy unleashed by a limitless demand for campaign

funds. See Anne E. Kornblut, Lobbyist Accepts Plea Deal and Becomes

Star Witness in a Wider Corruption Case, N.Y. Times, Jan. 4, 2006, at

Al; Philip Shenon, Top Aide to DeLay Pleads Guilty to Conspiracy, N.Y.

Times. Nov. 22, 2005, at A21: Philip Shenon & Carl Hulse. DeLay is

Indicted in Texas Case and Forfeits GOP. House Post. N.Y. Times.

Sept. 29, 2005, at Al.

J

evidence demonstrates how candidates. donors, and parties

test the current limit of the law and it shows beyond serious

doubt how contribution limits would be eroded if inducement

to circumvent them were enhanced. .. .”).

Fourth, independently wealthy candidates are granted an

enormous artificial advantage because they may expend

unlimited campaign sums without the inconvenience of

raising the funds through an expensive and time-consuming

regulated process, enabling them to distort political processes

without regard to public support. See Stephen Loffredo.

Poverty, Democracy and Constitutional Law, 141 U. Pa. L.

Rev. 1277, 1271-73 (1993).!°

Finally, the impossibility of capping campaign

expenditures acts as an invitation to dramatically out-spend a

financially weaker opponent, leading to many elections in

which one candidate so dominates the debate because of

massively superior resources that an opponent is literally

drowned out.!!

10 Recent elections in New York and New Jersey exemplify the trend to

candidates of great personal wealth. See David Chen, Bloomberg Cruises

to Re-election Victory; Corzine is Winner in Costly New Jersey Race,

N.Y. Times, Nov. 9, 2005, at Al.

'! Two disturbing sets of statistics describe the movement toward

overwhelming financial advantage in congressional races. In the 1998-

2002 congressional elections. winning candidates accounted for 82% of

campaign expenditures. Moreover. median spending by incumbents in

high-risk competitive congressional districts increased from $596,000 in

1992-94 to $910,000 in 2002-2004. while median spending by

challengers in high risk competitive congressional districts actually

decreased from $229.000 to $198.000 over the same period. The recent

figures are drawn from The Almanac of American Politics and the c-

span.org web site, and are helpfully summarized in Allan |. Abramowitz.

et al.. Incumbency, Redistricting, and the Decline of Competition in U.S.

House Elections. 68 J. Pol. 75-88 (Feb. 2006) (ascribing lack of

competition to advantages of incumbency. especially the ability to

massively outspend a challenger).

8

In short, the existing regime of constitutionally-mandated

unlimited campaign expenditures exacts a terrible toll on

American democracy, adversely affecting the Virst

Amendment interests of candidates, contributors, voter ind

the public. While some ca: . idates have a First Amenu:uent

interest in expending unlimited sums in seeking to

overwhelm an oppon.t, most candidates and voters have

important competing First Amendment interests that are

jeopardized by unlimited campaign spending. These include

an opponent's First Amendment interest in being heard over

the din of a .andidate with massively superior financing; a

voter's First Amendment interest in hearing both sides of a

political issue before voting: a citizen’s First Amendment

interest in a government that does not appear to be bought

and paid for; and, most importantly, the First Amendment

interests of the vast bulk of candidates who wish, at some

point, to stop raising funds and to concentrate on substance.

but who are unable to do so because they are trapped in a

classic arms race spiral, driven by a fear that unilateral

financial disarmament may be lethal.

Amici believe that the presence of important First

Amendment interests on both sides of this case should

translate into greater deference to legislative judgments that

as long as a spending ceiling is sufficiently generous to

permit effective and robust advocacy, the First Amendment

benefits of capping campaign expenditures outweigh the First

Amendment interests of candidates wishing to engage in

unlimited spending. See Shrink Missouri, 528 U.S. at 99

(Breyer, J., concurring).

Accordingly, amici urge the Court to accept Justice

Kennedy's challenge in Shrink Missouri to reconsider dicta

in Buckley in a manner that permits states to enact

comprehensive regulation of both campaign contributions

and expenditures in order to free candidates from an endless

spiral of fundraising and to permit them to focus their

9

energies on the substance of their campaigns. Shrink

Missouri, 528 U.S. at 405, 409 (Kennedy, J., dissenting).

ARGUMENT

I. Generous Expenditure Ceilings Are Constitutional

Because They: (A) Free Candidates From an Endless

Spiral of Fundraising; (B) Counteract the Risk of

Corruption Generated By Such an Endless Fundraising

Spiral; and (C) Advance the First Amendment Interests

of Voters, the General Public, and the Vast Bulk of

Candidates.

A. Introduction: The Available Options

Multiple approaches exist to the issue of campaign

funding. One possible approach is to abandon the effort to

regulate the campaign funding process altogether, leaving

candidates and contributors free to raise and spend campaign

funds without restriction as to size or source. Of course, even

if no limits existed on campaign contributions, the

persistence of an unlimited demand for campaign cash would

continue to trap candidates in a prisoners’ dilemma, with

each candidate forced to raise unlimited amounts from self-

interested donors. While a legislature could, of course, opt

for such complete deregulation, the settled course of this

Court's campaign finance jurisprudence upholding the

regulation of campaign contributions because of the risk of

corruption makes that choice clearly one for the people.

Accordingly, any insistence that the First Amendment

disables American democracy from defending itself against

corruption and cynicism by forcing it to endure a

constitutionally-imposed regime of unrestricted campaign

contributions is untenable. See McConnell, 540 U.S. at 153

(“Just as troubling to a functioning democracy as classic quid

pro quo corruption is the danger that officeholders will

decide issues not on the merits or the desires of their

10

constituencies, but according to the wishes of those who have

made large financial contributions valued by the

officeholder.”). .

Second, one could believe that public funding of

elections is the best way to finance democracy. Twenty-first

century government funds many activities that were once the

province of private enterprise — buiiding roads, policing the

community, maintaining a Navy, providing education,

operating mass_ transit, printing election ballots,

administering elections. Addmg the funding of the electoral

campaign to that list is an obvious possibility.'? Once again,

however, the choice between government and private funding

of the electoral process is one for the people to make. Harris

v. McCrae, 448 U.S. 297, 313-18 (1980).

Third, one could regulate both campaign expenditures

and contributions in a coordinated effort to assure generous

campaign funding and robust political advocacy, without

suffering the dysfunctions attributable to a completely

deregulated process, or to a regime of unrestricted spenc:ing

by candidates and contributors. Shrink Missouri, 528 U.S. at

405, 409 (Kennedy, J., dissenting); id. at 399, 405 (Breyer, J.,

concurring).

The one approach that amici believe cannot be defended

would be to continue the current practice of regulating the

supply of campaign funds in an effort to limit corruption,

while insulating demand for campaign funds from any and all

efforts at regulation. The resulting imbalance between

restricted supply and unlimited demand breeds corruption,

impedes the development of substantive ideas, and

contributes to the elimination of competitive elections.

'2 For a survey of current public financing provisions, see John M. De

Figueiredo and Elizabeth Garrett. Paving for Politics, 78 S. Cal. L. Rev.

591. 627-640, 651 (2005).

Accordingly. while amici believe that Buckley was

correctly decided on its facts because the expenditure ceilings

before the Court in that case were constitutionally

inadequate, the dicta in Buckley that has been read as

invalidating any effort to limit campaign expenditures no

matter how generous the ceiling, and no matter how

compelling the interest in restriction, should be reconsidered

in light of more than thirty years of experience.'’ Generous

candidate expenditure limits that permit candidates to expend

“the resources necessary for effective advocacy” Shrink

Missouri, 528 U.S. at 396 (quoting Buckley, 424 U.S. at 21),

do not violate the First Amendment.

B. Generous Expenditure Ceilings Advance the

Autonomy of Candidates by Freeing Them From

Becoming Trapped in an Endless Spiral of Reciprocal

“Defensive” Fundraising

Buckley employed classic First Amendment

methodology. Since the Buckley Court determined that the

relationship between campaign spending and campaign

speech is so close that regulation of one is the functional

equivalent of regulating the other, the Court applied a

weighted balancing test derived from Brandenburg v. Ohio,

395 U.S. 444 (1969) to measure the constitutionality of

spending ceilings. Under the Brandenburg test, an

expenditure limit must be narrowly tailored to advance a

'3 Such a reconsideration would not require the Court to overrule its

holding in Buckley for two reasons. First, Buck/ev's dicta is not entitled to

any stare decisis effect. See United States v. Gaudin, 515 U.S. 506, 522

(1995): United States v. Dixon, 509 U.S. 688. 714 (1993) (Rehnquist.

C.J.. concurring in part and dissenting in part). Second, the Buckley

Court never considered the consequences of a prisoner's dilemma on

unlimited campaign spending. See Johanns v. Livestock Marketing Assn.

125 S. Ct. 2055 (2005) (upholding statute against First Amendment

challenge on basis of government speech theory neither raised nor

considered in prior cases invalidating similar statutes).

12

compelling State interest in order satisfy the First

Amendment.

The government asserted three potential compelling

interests in support of the candidate expenditure limit in

Buckley — th: avoidance of corruption, the advancement of

political equality, and the desire to reduce the cost of

campaigning. The Buckley Court rejected the equality

interest, ruling that the First Amendment does not permit an -

effort to equalize speech by silencing the strong spe er.

Buckley, 424 | at 56-57. The Court rejected the ii-

corruption jus cation, as well, reasoning that an

expenditure did iot involve a payment from a third-person,

and was, therefore, not susceptible to corruption. /d at 55-56.

Third, the Court rejected a general interest in lowering the

cost of campaigning as a paternalistic effort to deem all

spenuing above the limit “wasteful, excessive, or unwise.”

Id. at 57.

In the more than 30 years since Buckley, nothing has

occurred to cast doubt on the Court’s perception that the

spending ceilings imposed by Congress in 1974 were too low

to permit robust and effective advocacy, especially by

candidates challenging incumbents, and their supporters.

Individuals could only expend $1,000 on any particular

candidate's campaign — approximately one-seventh of the

cost of a one-page newspaper advertisement. /d. at 19 n.20.

As the Court rightly recognized, this would foreclose

virtually all individuals “from any use of the most effective

modes of communication.” /d. at 19. Although the

candidate and party spending caps were somewhat more

generous, they would have forced many candidates to curtail

the scope of their campaigns. /d. at 19 n.21. Taken together.

FECA’s restrictions left little room for the kind of robust

advocacy at the heart of the First Amendment.

But much has occurred casting doubt on the Court's dix «

that expenditure ceilings do not advance a compelling state

13

interest. Buckley simply never considered what the past 30

years has abundantly demonstrated - absent expenditure

limits, candidates, trapped in a prisoner’s dilemma, must

devote excessive time and energy to raising campaign funds,

rendering themselves vulnerable to corruption, and unable to

engage in the serious and time-consuming substantive work

required of a candidate for public office.

The heart of the Buckley analysis was a decision to

protect the autonomy of candidates. The Court reasoned that

the right of a candidate to make an autonomous decision

about how much money to spend is core political activity

protected by the First Amendment. In support of its decision.

the Buckley Court employed a now-familiar metaphor.

analogizing money to gasoline, and campaigning to a drive in

the country. /d. at 19, n.18.

According to the metaphor. a car/campaign is able to

progress only as far as gasoline/money is available to power

it. But the metaphor is deeply flawed. A political campaign is

not a unilateral drive in the country, with the driver making

autonomous decisions about how far he or she wishes to

drive. Rather, it is a winner-take-all competition between at —

least two drivers, with the decision of each driver/candidate

about how much gasoline/money to expend affecting and

being affected by the spending of rivals. In the absence of

spending ceilings binding on each candidate. rational rivals

will continue to raise and spend campaign cash long after

each has raised and spent sufficient funds to carry out

effective and robust advocacy, not because each candidate

wishes to continue the “gyre” of fundraising. but in order to

guard against being outspent by a rival. Blasi, supra, at 1284-

89, 1309; Richard H. Pildes, The Supreme Court, 2003 Term

~ Foreword: Constiutionalization of Democratic Politics,

118 Harv. L. Rev. 28 (2004). Thus, far from protecting

candidate autonomy, Buckley's scheme actually

circumscribes it.

14

As with any prisoner's dilemma, in the absence of

collective action, formal autonomy is overwhelmed by

inexorable pressure to anticipate and react to actions by

rivals. Under such circumstances, genuine autonomy is

possible only if both participants are constrained by

' collective action. See supra at 5-6 & nn. 7-8.

As this Court noted in Buckley, an intimate link exists

between money and speech, placing rival candidates in a

position similar to rival powers in a nuclear arms race.

During the Cold War, once each side had amassed an arsenal

capable of destroying the other, neither side had an interest in

continuing to expend scarce resources on enormously

expensive new weapons systems. But in the absence of a

collective action solution, neither power could trust the other

to refrain from the deployment of new weapons that might

permit the other to gain a material, potentially lethal.

advantage. The result was a series of reciprocal “involuntary”

investments in nuclear arms that diverted scarce resources

from other uses, harming the economy and social structure of

both powers — eventually causing the Soviet Union to

implode, and the United States to defer badly needed repairs

to its infrastructure and its social fabric. See Schrodt,

Richardson's Arms Race Model, supra (describing the model

of the wauclear arms race developed by Lewis Fry

Richardson). ~

In fact, while the Soviet Union and the United States

were formally autonomous during the nuclear arms race,

indeed, each occupied the summit of power, each was a

hostage to the real or perceived actions of its rival. Formal

autonomy existed: but it was the false autonomy of the

prisoner's dilemma. See Schelling, supra, at Appendix A

“Nuclear Weapons and Limited War.”

Competitive political candidates in a regime of

constitutionally-mandated limitless campaign spending

exhibit the same prisoner's dilemma. In the absence of

15

collective action in the form of a generous spending ceiling,

even after each candidate has amassed resources sufficient to

engage in effective and robust advocacy, neither dares to stop

raising money because of a fear that the rival will gain a

competitive financial advantage. The net result is the massive

and never-ending diversion of candidates” time and energy

from substantive tasks, such as the development of programs

and discussion of issues, to an involuntary spiral of

fundraising and related tasks. See Blasi, supra, at 1285 (“No

matter how long his tenure, how prominent his position, how

favorable the electoral arithmetic in his district, how

unimpressive and under-financed his last opponent was, . . .

almost every member of Congress feels the need to amass a

large war chest, just in case.”); Issacharoff and Karlan, supra,

at 1737 (observing that Buckley's scheme “ha[s] made

candidates and politicians into perpetual fundraisers”).

Even when such an involuntary spiral does not end in

corruption, it drains candidates of the time and energy needed

to devote themselves to the tasks of substantive governance.

As long as the expenditure ceiling is set high enough to

permit effective and robust campaign advocacy, the state has

a compelling interest in freeing candidates from such a

prisoner's dilemma. See Shrink Missouri, 528 U.S. at 409

(Kennedy, J., dissenting); Colorado Repub. Fed'l Campaign

Comm., v. FEC, 518 U.S. 604, 649-50 (1996) (Stevens, J..

dissenting).

The Buckley Court never considered the loss of candidate

autonomy caused by a failure to establish a generous ceiling

on campaign spending. Indeed, in striking down the

expenditure limits before it. the Buck/ey Court appeared to be

attempting to maximize the autonomy of candidates to spend

as much — or as little — as they wished. Given the competitive

nature of elections, however, we now understand that a

constitutionally-mandated regime of unregulated campaign

spending does not maximize candidate autonomy. Instead, it

significantly erodes candidate autonomy by pressuring

16

candidates to raise and spend funds long after sufficient

resources for effective and robust advocacy have been

amassed, and long after they no longer wish to devote

enormous time and energy to the fundraising process. Thus,

as long as the ceiling is set sufficiently high to permit

effective advocacy, a generous spending cap actually

enhances the autonomy of both candidates.'* Only the

coordinated legislative approach envisioned by Justice

Kennedy in Shrink Missouri that combines appropriate

restrictions on campaign contributions and generous ceilings

on campaign spending is capable of balancing the competing

First Amendment interests of all participants in the electoral

process.

C. Generous Expenditure Ceilings Counteract the

Risk of Corruption Generated by “Defensive”

Fundraising

Because an election is a contest, rival candidates react to

each other's activities. When the activity is campaign

oratory, the response is the counter-speech needed to inform

the electorate. When, however, the activity is a real or

perceived fund-raising advantage, a competitive candidate

must respond with counter-fundraising, or else risk being

unable to respond to a rival's campaign positions. See

Issacharoff & Karlan, supra, at 1708 n.17 (“While spending

money is by its very nature susceptible to incremental

decision making, electoral outcomes in our winner-take-all

system are binary: you either win or you lose. So why cut it

close?”).

'4 As Judge Winter noted in his dissent below. nuclear arms and

mp spending are not equivalents. Landell y. Sorrell, 382 F.3d 91.

196 (2™ Cir. 2004) (Winter. J. dissenting). The former causes harm; the

latter powers democracy. As the Court noted in Buck/ey, there is no

general interest in removing money from campaigns. Rather. the salience

of the arms race analogy is in the loss of candidate autonomy. leading to

frenzied fundraising. excessive dependence on large donors. and

inadequate time for substance.

17

When campaign spending ceilings exist at a level

permitting robust oratory, the pressure to react to a rival's

fundraising, while real, is mitigated by the ability of each

candidate to plateau eventually at a maximum funding level

that permits effective advocacy. When spending is capped.

therefore. a donor who appears to expect inappropriate

returns on his or her “investment” can be replaced by other

donors. But when no ceiling exists, a fertile breeding ground

exists for improper overtures by candidates, and

inappropriate understandings with self-interested donors.

That is why, as this Court has often noted, candidates,

parties, and their donors, trapped in the prisoner's dilemma,

aggressively push the limits of the law in an effort to satisfy

the insatiable demand for more funds. See McConnell, 540

U.S. at 144, 165; Colorado Repub., 533 U.S. at 457.

This Court has repeatedly recognized that the state has a

compelling interest in minimizing real or apparent corruption

in the electoral process. See McConnell, 540 at 136-37, 143-

44: Shrink Missouri, 528 U.S. at 390; Buckley, 424 U.S. at

26-28. Quid pro quo corruption strikes at the heart of

democracy by substituting venal motives for the search for

the common good. Apparent corruption is scarcely less

dangerous, eroding the faith in the system without which no

democracy can flourish. “Leave the perception of

impropriety unanswered, and the cynical assumption that

large donors call the tune could jeopardize the willingness of

voters to take part in democratic governance.” Shrink

Missouri, 528 U.S. at 390.

Not surprisingly therefore, this Court has deferred to the

legislature in identifying potential sources of corruption, and

putting into place prophylactic regulatory regimes designed

to prevent its appearance and/or reality. McConnell, 540

U.S. at 137, 165-66, 171; FEC v. National Right to Work

Comm., 459 U.S. 197, 210 (1982) (“Nor will we second-

guess a legislative determination as to the need for

18

prophylactic measures where corruption is the evil to be

feared”).

The deference due a legislature's choice of prophylactic

means to root out corruption in the electoral system reflects

the existence of broad legislative discretion when, as here,

First Amendment interests exist on both sides of the

regulatory equation. Cf, Arkansas Educ. Television Comm'n

v. Forbes, 523 US. 666, 673-75 (1998); Turner

Broadcasting Sys., Inc. v. FCC, 520 U.S. 180, 192-96 (1997);

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

In Burson, the Court upheld a ban on electioneering within

100 feet of a polling place in order to protect voters against

subtle forms of intimidation. /d. at 208-09, 211. The

prophylactic ban on speech in Burson survived strict scrutiny

because constitutionally protected interests lay un both sides

of the equation, requiring a degree of deference to the

legislative judgment that the interest of speakers had to give

way in order to ensure the integrity of the electoral process.

Id.;_ Shrink Missouri, 528 U.S. at 400 (Breyer, J.,

concurring). -

In Buckley, the Court did not perceive a link between

limitless campaign expenditures and the potential for real or

apparent corruption. But 30 years of experience has taught

that Buckley overlooked the competitive nature of an

electoral campaign. If an electoral campaign were a unilateral

drive in the country, Buckley's estimate of the link between

campaign expenditures and corruption would be correct. But

campaigns are not drives in the country; they are winner take

all automobile races. It is bad enough when one driver in the

race has an unfair advantage in fuel. It becomes intolerable

when the competitive need for an unlimited quantity of fuel

forces both drivers to seek it endlessly under circumstances

thai breed corruption and erode the capacity of both drivers

to consider the direction the cars should go.

19

D. Generous Expenditure Ceilings Advance the First

Amendment Interests of Voters, the General Public, and

the Vast Bulk of Candidates.

Unlimited campaign spending adversely affects the

quality of the electoral process in several ways. The never-

ending “gyre” of unlimited fundraising diverts the finite

intellectual and physical resources of a campaign from

substance to the mechanics of fundraising. At worst, the

candidate's campaign speech is limited to ideas and themes

that will generate financial support from the narrow class of

self-interested donors. See Spencer Overton, The Donor

Class: Campaign Finance, Democracy and Participation,

155 U. Pa. L. Rev. 73 (1994). At best. the candidate's time

and attention is so taken up with fundraising that substance

becomes an afterthought. Either way, voters are denied the

full spectrum of substantive information needed to make an

informed politica! choice.

Moreover, the prospect of raising so much money that a

rival can be drowned out by massively superior resources

often results in an electorate that has been subjected to a

barrage on one side of the issues without effective

presentation of the counter-arguments. For example, in the

1998-2002 congressional elections, winning candidates

accounted for 82% of campaign expenditures. Moreover.

while median spending by incumbents in_ high-risk

competitive congressional districts increased from $596,000

in 1992-94 to $910,000 in 2002-2004, spending by

challengers in high risk competitive congressional districts

actually decreased from $229,000 to $198,000 over the same

period. See Abramowitz, et al., supra, at 75-88 (ascribing

lack of competition to advantages of incumbency, especially

the ability to massively outspend a challenger).

While a generous spending ceiling is not intended to, and

does not, assure resource equivalence, it can act to limit the

effect of massive resource imbalance by preventing the

20

loudspeakers of one candidate from being set at a volume

that effectively drowns out the speech of a rival.

Voters obviously benefit when candidates are free from

settings in which corruption is endemic and attention to

substance impossible. A modicum of trust in the system is a

necessary incident of a successful democracy. The never-

eniing scramble for funds made necessary by a

constitutionally-mandated failure to cap campaign spendine

erodes that trust. “Democracy works ‘only if the people hav.

faith in th: .e who govern and that faith is bound to be

shattered when high government officials . . . engage in

activities which arouse suspicions of malfeasance and

corruption.” Shrink Missouri, 528 U.S. at 390 (quoting

United States v. Mississippi Valley Generating Co., 364 U.S.

520, 562 (1961)).

Generous spending ceilings remove the unrelenting

pressure to raise and spend more than one’s rival — and thus

permit greater attention to substance in a world not

constantly dominated by the need to raise more money. As

long as the ceiling is set at a point where it does not interfere

with robust and effective advocacy, spending ceilings

advance the compelling interest of restoring faith in the

democratic process.

Finally, the vast bulk of candidates benefit when they can

turn their attention to substance, free from the burden of

constantly raising additional funds. The rare candidate may

wish to raise unlimited funds to annihilate an opponent, but

the vast bulk of candidates wish to raise enough funds to

assure effective and robust advocacy, and then to devote

themselves to the effective delivery of their ideas. Current

practice makes such behavior impossible because candidates

must engage in a perpetual financial arms race to prevent an

opponent from gaining an advantage. Collective action, in the

form of a spending ceiling that permits robust advocacy,

21

frees the candidate to concentrate on the issues, not on the

perennial search for defensive dollars.

The interests of: (a) voters in receiving optimal

information; (b) the general public in trusting the electoral

system; -and (c) candidates in devoting themselves to ideas,

are as worthy of First Amendment protection as is the interest

of a wealth: candidate in spending limitless amounts to

swamp an underfinanced opponent. Since important First

Amendment interests exist on both sides of the regulatory

equation — and since the area falls within the expertise of the

legislature — as long as a spending ceiling is set high enough

to permit ‘effective advocacy, the ultimate balance between

and among conflicting First Amendment interests should rest

with the legislature. See Shrink Missouri, 528 U.S. at 401

(Breyer, J., concurring) (observing that campaign finance

restrictions “seek to build public confidence in th[e electoral]

process and broaden the base of a candidate’s meaningful

financial support, encouraging the public participation and

open discussion that the First Amendment itself

presupposes”); Lande/l/, 406 F.3d at 161-63 (Calabresi, J.,

concurring in denial of rehearing en banc) (emphasizing

significant First Amendment interest in ensuring that all

persons, not only wealthy donors, have an equal right to

express the intensity of their political ideas and affiliations);

see also Stephen Breyer, Active Liberty: Interpreting Our

Democratic Constitution 46-47 (2005).

Il. Unduly Low Spending Ceilings That Prevent the

Expenditure of Resources Needed for Effective Campaign

Advocacy Violate the First Amendment

Under any standard of review, unrealistically low

campaign spending ceilings violate the First Amendment

because they deprive candidates of the ability to expend

funds needed for effective advocacy. If either contribution or

spending ceilings are too low for effective advocacy,

challengers will have a difficult time waging campaigns

22

against incumbents whose name and messages may already

be well known to the voting public. Shrink Missouri, 5-

U.S. at 404 (Breyer, J., concurring). On the other hand,

the absence of generous spending ceilings, incumbents have

demonstrated an overwhelming capacity to swamp

challengers by exploiting the built-in fundraising advantage

enjoyed by an incumbent.

It is impossible, on the current record, to determine

whether the spending ceilings imposed by Vermont will

unduly burden candidates in expending funds needed for

effective advocacy. The answer to that question requires a

fuller hearing below on the practical effect that such limits

will have on the ability of candidates in Vermont to expend

resources needed for robust discussion of campaign issues.

While the district court conducted an inquiry into whether the

ceilings accorded with past s. nding practices, and elicited

some evidence concerning the impact of the ceiling on

campaigning, with respect, the First Amendment requires a

more searching inquiry.

The issue should not be whether ceilings will silence a

candidate, or drive campaign speech below historic levels.

Rather, it is whether a given ceiling will materially interfere

with effective campaign advocacy. This Court has already

vested the trial courts with the duty of conducting similar

pragmatic fact-based inquiries in at least two related

contexts. The identical legal standard is used to measure

whether contribution limits are too low to permit a candidate

to “amass” sufficient funds for effective advocacy. See

Shrink Missouri, 528 U.S. at 396.

The Court's ballot access cases teach a similar lesson.

When a legislature regulates access to the ballot, this Court

tests the statute’s constitutionality by asking whether it

unduly burdens the ability of candidates and their supporters

to attain a place on the ballot. See Anderson vy. Celebrezze,

460 U.S. 783, 789-90, 792-94 (1983): Storer v. Brown, 415

23

U.S. 724, 728-30 (1974). A reviewing court is obliged to

view the statute pragmatically in the context of local

conditions and to gauge whether it unduly inhibits ballot

access. A Similar pragmatic assessment is required to

determine whether spending ceilings unduly burden a

candidate’s capacity for robust and effective campaign

advocacy. Since the district court in this case has yet to

conduct this inquiry, a remand is necessary,

CONCLUSION

The decision of the court below should be affirmed, and

the matter remanded to the District Court for a determination

of whether the spending limits before the Court will permit

sufficiently effective and robust campaign advocacy to

satisfy rigorous First Amendment standards.

Dated: February 10, 2006

New York, New York

Respectfully submitted,

Burt Neuborne*

Norman Dorsen

David Gans

Vanderbilt Hall

40 Washington Square South

New York, New York 10012

(212) 998-6172

*Counsel of Record

ay FEB 8 - 2006

Nos. 04-1528 et al. OFFICE OF THE CLERK |

In The Supreme Court of the United States

NEIL RANDALL ET AL.,

Petitioners,

Vv.

WILLIAM H. SORRELL ET AL.,

Respondents.

VERMONT REPUBLICAN STATE COMMITTEE ET AL.,

Petitioners,

V.

WILLIAM H. SORRELL ET AL.,

Respondents.

WILLIAM H. SORRELL FT AL.,

Petitioners,

V.

NEIL RANDALL ET AL.,

Respondents.

On Writs Of Certiorari To The United States Court of Appeals

For The Second Circuit

BRIEF OF EQUAL JUSTICE SOCIETY, NATIONAL ASSOCIATION FOR THE

ADVANCEMENT OF COLORED PEOPLE, ELLA BAKER CENTER FOR HUMAN

RIGHTS, LATINO ISSUES FORUM, GREENLINING INSTITUTE, ASIAN AMERICAN

JUSTICE CENTER, CENTER FOR GOVERNMENTAL STUDIES, CALIFORNIA

CLEAN MONEY CAMPAIGN, COALITION FOR ECONOMIC EQUITY, AND

CALIFORNIA WOMEN’S AGENDA AS AMICI CURIAE IN SUPPORT OF WILLIAM H.

SORRELL

MARTIN R. GLICK

Counsel of Record

CHANDRA MILLER FIENEN

MARLA K. LETELLIER

SHANNON SCOTT

D’ LONRA C. ELLIS

HOWARD RICE NEMEROVSKI CANADY

FALK & RABKIN

A Professional Corporation

Three Embarcadero Center, 7th Floor

San Francisco, California 94111-4024

Telephone: 415/434-1600

Attorneys for the Amici Curiae

i

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE

INTRODUCTION

STATEMENT OF FACTS

I.

Il.

VERMONT ENACTED ACT 64 TO

PREVENT CORRUPTION AND

THE APPEARANCE OF CORRUP-

TION AND TO PROMOTE MEAN-

INGFUL PARTICIPATION IN THE

POLITICAL PROCESS.

THE INCREASING EXPENSE OF

CAMPAIGNS EFFECTIVELY PRE-

VENTS MEANINGFUL POLITICAL

ACCESS BY COMMUNITIES OF

COLOR.

LEGAL ARGUMENT

BUCKLEY DOES NOT ESTABLISH

A PER SE PROHIBITION AGAINST

EXPENDITURE LIMITS.

PROMOTING MEANINGFUL PAR-

TICIPATION IN THE POLITICAL

PROCESS IS AN ADDITIONAL

COMPELLING INTEREST SUF-

FICIENT TO SUPPORT

VERMONT’S REASONABLE

— ON CAMPAIGN SPEND-

ING.

CONCLUSION

Page

15

15

17

24

TABLE OF AUTHORITIES

Cases

Austin v. Michigan Chamber of Commerce,

494 U.S. 652 (1990)

Buckley v. Valeo, 424 U.S. | (1976)

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

Grutter v. Bollinger, 539 U.S. 306 (2003)

Harper v. Virginia State Board of Elections,

383 U.S. 663 (1966)

Homans v. Albuquerque, 2\7 F. Supp. 24 1197

(D.N.M. 2002)

Homans y. Albuquerque, 366 F.3d 900 (10th

Cir. 2004)

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

2000), aff'd in part, 382 F.3d 91 (2d Cir.

2004), cert. granted, 126 S. Ct. 35 (2005)

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

cert. granted, 126 S. Ct. 35 (2005)

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

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

Nixon v. Shrink Missouri Government PAC,

528 U.S. 377 (2000)

Storer v. Brown, 415 U.S. 724 (1974)

Page(s)

passim

7,8

4,5, 17, 18

2,5, 15, 17

21

20

18, 23

18

TABLE OF AUTHORITIES

Page(s) |

United States Civil Service Commission v.

National Ass’n of Letter Carriers, 413

U.S. 548 (1973) 18

Constitutional Provisions

Vt. CONST. art. VIII, ch. 1 5

Statutes

VT. STAT. ANN. tit. 17, §§2801-2883 4

Legislative Materials

H.R. Rep. No. 439 (1965), reprinted in 1965

U.S.S.C.A.N. 2437, 2440 22, 23

Other Authorities

MILDRED L. AMER, CONGRESSIONAL

RESEARCH SERVICE, MEMBERSHIP OF THE

109TH CONGRESS: A PROFILE, CRS Rep.

No. RS22007, at 5 (Oct25, 2005),

available at www.georgetown.edu/faculty/

wilcoxc/joyce.htm 9

CENTER FOR RESPONSIVE POLITICS, 2004

ELECTION OVERVIEW: STATS AT A GLANCE 6

CENTER FOR RESPONSIVE POLITICS, THE BIG

PICTURE: INCUMBENT ADVANTAGE,

available at http://www.opensecrets.org 7

iv

TABLE OF AUTHORITIES

Jason P. Conti, The Forgotten Few:

Campaign Finance Reform and Its Impact

on Minority and Female Candidates, 22

B.C. THIRD WORLD L.J. 99 (2002)

THE FEDERALIST NO. 57 (James Madison)

(J. Cooke ed., 1961)

John Green et al., Donor Dissent:

Congressional Contributors Rethink

Giving, |i PuB. Persp. 29 (2000)

Jubi Headley and Jim Welfley, Election

Results Indicate Voter Satisfaction with

Local Public Servants: Incumbents Win

80 Percent of Their Elections (Nov. 20,

2000)

FRANK HOBBS AND NICOLE’ Sroops,

DEMOGRAPHIC TRENDS IN THE 20TH

CENTURY: CENSUS 2000 SPECIAL REPORTS

(Nov. 2002)

THE INSTITUTE ON MONEY IN STATE POLITICS,

2000 STATE ELECTION OVERVIEW (Aug.

2002)

THE INSTITUTE ON MONEY IN STATE POLITICS,

MONEY AND DIVERSITY IN STATE

LEGISLATURES, 2003 (Apr. 2005)

RAKESH KOCHAR, PEW HISPANIC CENTER,

THE WEALTH OF HISPANIC HOUSEHOLDS:

1996-2000 As OF 2002 (Oct. 2004)

Page(s)

22

10

7,8

11,12

12

Vv

TABLE OF AUTHORITIES

ADAM L10z, U.S. PIRG EDUCATION FUND,

Look WHO’s Not Comma. To

WASHINGTON: QUALIFIED CANDIDATES

SHuT OuT BY BIG Money (Jan. 2003)

ADAM LI0z, U.S. PIRG EDUCATION FUND,

THE ROLE OF MONEY IN THE 2002

CONGRESSIONAL ELECTIONS (July 2003)

14 JAMES MADISON, THE PAPERS OF JAMES

. MADISON (Robert A. Rutland et al. eds.,

1983)

Minorities in the Senate, available at

http://www.senate.gov/artandhistory/histor

y/common/briefing/minority_senators.htm

(last visited Jan. 11, 2006)

PUBLIC CAMPAIGN, COLOR OF MONEY: 2003

(Major Findings) (2003)

MICHAELA. STOLL ET AL., AFRICAN

AMERICANS AND THE COLOR LINE (The

—— People Census 2000 Series

)

U.S. CENSUS BUREAU, ANNUAL ESTIMATES OF

THE POPULATION BY SEX, RACE AND

HISPANIC OR LATINO ORIGIN FOR THE

STATES: APRIL 1, 2000 To JuLy |,

004

U.S. CENSUS BUREAU, CENSUS 2000

REDISTRICTING DATA (PUBLIC LAW 94-

171) SUMMARY FILE

Page(s)

10

22

13,14

12

12

vi

TABLE OF AUTHORITIES

U.S. CENSUS BUREAU, REPORTED VOTING

AND REGISTRATION By RACE, HISPANIC

ORIGIN, SEX, AND AGE, FOR THE UNITED

STATES: NOVEMBER 2000 (2002)

U.S. CENSUS BUREAU, REPORTED VOTING

AND REGISTRATION By RACE, HISPANIC

ORIGIN, SEX, AND AGE, FOR THE UNITED

STATES: NOVEMBER 2004 (2005)

U.S. CENSUS BUREAU, RESIDENT POPULATION

PLUS ARMED FORCES OVERSEAS—

ESTIMATES BY AGE, SEX, AND RACE:

JULY 1, 1976

Sidney Verba et al., Race, Ethnicity, and

Political Participation, in CLASSIFYING

BY RACE (Paul E. Peterson ed., 1995)

Clyde Wilcox, Individual Donors in the

Presidential Nomination Process, in THE

CHANGING DONOR? INDIVIDUAL

CONTRIBUTORS IN PRESI

ELECTIONS 1972-2000 (Alexandra

Cooper et al. eds., forthcoming)

Page(s)

13

li

12, 13

Il

INTEREST OF AMICI CURIAE"

Amici are organizations committed to improving the

lives of all people, but particularly communities of color and

the underserved. The Equal Justice Society, National

Association for the Advancement of Colored People, Asian

American Justice Center, Latino Issues Forum, Greenlining

Institute, Ella Baker Center for Human Rights, and Coalition

for Economic Equity work to advance the legal and civil

rights of communities of color through community

education, legal advocacy, public policy research and other

efforts. They believe campaign finance reform is necessary

to ensure meaningful and adequate participation in the

political process.

The Center for Governmental Studies, California Clean

Money Campaign and California Women’s Agenda join the

Amici listed above. The Center for Governmental Studies

and the California Clean Money Campaign work to ensure

that elected officials are receptive to the concerns of all their

constituencies and to improve fairness and transparency in

government policies and processes. The California Women’s

Agenda seeks to better the lives of women in all arenas,

including the political process. These organizations join this

brief because they too believe that campaign finance reform

is necessary to guarantee meaningful access to the political

process and to elect national and local governments

responsive to the needs and concerns of communities of

color.

‘Pursuant to Supreme Court Rule 37.3(a), Amici filed this brief

with the written consent of all parties. Pursuant to Rule 37.6, Amici

confirm that no counsel for a party authored this brief in whole or in part

and that no person other than Amici and their counsel made a monetary

contribution to its preparation or submission.

INTRODUCTION

In an ideal world, men and women of perfect virtue,

vision and diversity are elected to public office. They enact

laws and approve policies for the greater good unaffected by

the special interests and persistent urgings of their most

generous contributors. They steadfastly refuse to

compromise beliefs, analyses or principles for reelection,

their next targeted public office or their own ultimate

financial well-being. And, campaigning for office in that

ideal world would not necessitate raising and spending tens

or hundreds of millions of dollars.

Few issues engender as much fire and energy as

campaign finance reform. And that is because in the real

world it really matters. It matters to incumbents, to their

potential challengers, to vested interests and to citizens,

including the communities of color sponsoring this brief—

communities of citizens effectively shut out of meaningful

participation in our political process. The massive amount of

money contributed to and expended on campaigns for public

office has an undeniable and monumental impact on who

gets elected, who gets access to and is heard by those who

are elected and on the ultimate decisions about issues

affecting all citizens. It matters in this case because, as the

Second Circuit recognized, campaign financing in Vermont

is “a far cry from this idyllic vision.” Landeil v. Sorrell, 382

F.3d 91, 118 (2d Cir. 2004) (“Landeill If’) (citing statement

of William T. Doyle).

The hard truth is that access, influence and meaningful

participation are the private reserve of those who can pay to

play in this no-limit game. And the interests and attitudes of

those who can pay are very often very different from those

who are members of Amici organizations on issues such as

health care, wages, taxes, public schools, farms and factory

3

conditions, public benefits, affirmative action, neighborhood

safety, the environment and equal justice.

It is the unified position of the organizations who

respectfully file this brief that the single greatest obstacle to

the ability of communities, municipalities, counties, states

and Congress to redress the exclusion of communities of

color from the political process is the notion that Buckley v.

Valeo, 424 U.S. | (1976) (per curiam) absolutely bars any

attempt to balance the rights of candidates to express freely

their ideas with the rights of citizens to participate

meaningfully in the political process. Local, state and

national electorates have a strong and compelling interest in

promoting greater diversity among political participants,

preventing corruption and the appearance of corruption, and

fostering a belief in the openness and fairness of our form of

government—-interests best served by contribution and

expenditure limits carefully calibrated to respect candidates’

rights of expression.

Forty years ago, with the passage of the Voting Rights

Act of 1965, this country affirmed its commitment to the

principle that all citizens are created equal in the eyes of

democracy. Today, the organizations filing this brief submit

that the single most important civil rights issue in American

politics is the virtual exclusion of communities of color from

the electoral process solely attributable to uncontrolled

campaign spending. As Martin Luther King, Jr. said,

succinctly and with insight in his famous “I Have A Dream”

speech at the Lincoln Memorial in 1963: “We can never be

satisfied as long as a Negro in Mississippi cannot vote and a

Negro in New York believes he has nothing to vote for.”

STATEMENT OF FACTS

I.

VERMONT ENACTED ACT 64 TO

PREVENT CORRUPTION AND THE

APPEARANCE OF CORRUPTION

AND TO PROMOTE MEANINGFUL

PARTICIPATION IN THE POLITICAL

PROCESS.

In 1997, the legislature of Vermont passed a

comprehensive campaign reform act known as Act 64. 1997

Vermont Campaign Finance Reform Act, codified at VT.

STAT. ANN. tit. 17, §§2801-2883 (“Act 64”). Campaign

finance regulation is not new to the state of Vermont. Prior

to Act 64, the Vermont legislature adopted laws regulating

campaign financing in 1916, 1961 and 1971. See Landell v.

Sorrell, 118 F. Supp. 2d 459, 464 (D. Vt. 2000) (“Landell I’).

But faced with increasingly and prohibitively expensive

campaigns, Act 64 represents the first attempt of the

legislature of Vermont to adopt campaign spending /imits

since this Court decided Buckley v. Valeo, 424 U.S. | (1976)

(per curiam), in 1976.”

Act 64 is a comprehensive campaign finance reform

package that includes regulations of contributions and

expenditures related to campaigns for state office. In

relevant part, Act 64 limits the amount of expenditures a

candidate may make during a two-year election cycle in

accordance with the position being sought and the size of

contributions that candidates, political committees and

The complete statement of relevant facts is contained in the court

decisions below as well as in Res *s brief. This brief only

concentrates on the points particularly relevant to issues of meaningful

political participation for communities of color.

political parties may receive from a single source during a

two-year election cycle. Landell I], 382 F.3d at 99.

The Vermont legislature found such limits necessary

because candidates and elected officials respond and grant

access to contributors who make large contributions in

preference to those who make small or no contributions.

Landell I], 382 F.3d at 101. Expert testimony considered by

the Vermont legislature showed that “public officials are

functionally compelled to sell privileged access through the

fundraising system.” Jd. at 100. As Vermont senator Peter

Shumlin acknowledged, “[t]here’s no question (money) buys

access to the system... .” Landeill J, 118 F. Supp. 2d at 465

(parenthetical in original). The trial court found that the

Vermont legislative records suggest “that large contributors

often have an undue influence over the legislative agenda.”

Id. at 468.

Given the foregoing findings, it is unsurprising that the

Vermont legislature also found that increasing amounts of

unregulated campaign expenditures accompany decreasing

public involvement and confidence in the electoral process.

Landell I, 118 F. Supp. 2d at 468-69. One expert testified

that “nearly 75 percent of Vermont voters say that ordinary

voters do not have enough influence over Vermont politics

and government.” Landell II, 382 F.3d at 116.

Indeed, the Vermont legislature found that Act 64 was

necessary to implement Article 8 of Chapter | of the Vermont

Constitution, which states that “all voters, having a

sufficient, evident, common interest with, and attachment to

the community, have a right to elect officers, and be elected

into office... .” Landell I, 118 F. Supp. 2d at 468.