Amicus Curiae Brief — Randall v. Sorrell

THE INCREASING EXPENSE OF

CAMPAIGNS EFFECTIVELY

PREVENTS MEANINGFUL

~ POLITICAL ACCESS BY

COMMUNITIES OF COLOR.

Running for office has become an extraordinarily

expensive undertaking. In the 2002 and 2004 election

cycles, candidates for the U.S. Senate and House of

Representatives raised nearly two billion dollars. CENTER

FOR RESPONSIVE POLITICS, 2004 ELECTION OVERVIEW:

STATS ATA GLANCE. In 2002, the average winning candidate

for the United States House of Representatives raised nearly

$1 million; the average winning candidate for the Senate

raised over $5.2 million. Jd. The 2004 presidential race was

the most expensive in history, with both parties’ nominees

forgoing public funding in the primary and raising nearly

$650 million between them. /d.

Although attention usually focuses on spending in

federal elections, big money pervades state government

politics, too. The Institute on Money in State Politics, a

nonpartisan, nonprofit organization, compiled nationwide

data on the 2000 state legislative and gubernatorial elections.

THE INSTITUTE ON MONEY IN STATE-POLITICS, 2000 STATE

ELECTION OVERVIEW (Aug. 2002). The study showed that

candidates running for a House seat raised an average of

$46,123; their Senate counterparts raised over twice that

amount, an average of $100,976. Jd. at 6. The fifty-nine

major party gubernatorial candidates spent a combined

$115.3 million—an average of nearly $2 million per

candidate. /d. at 8.

More significant than the bare numbers is the direct

impact that fundraising has on a candidate’s chances of

winning. In the 2002 Congressional primaries, candidates

who raised the most money won in nine out of ten races.

ADAM LI0zZ, U.S. PIRG EDUCATION FUND, LOOK WHO’S NOT

COMING TO WASHINGTON: QUALIFIED CANDIDATES SHUT

Out BY BIG MONEY 7 (Jan. 2003) (hereafter “PIRG

STUDY”). In general elections, 94% of the biggest

fundraisers emerged victorious. /d. Incumbents raised

vastly more money than their challengers and were

extraordinarily successful: 98% of House incumbents were

reelected and 85% of Senate incumbents were reelected.

CENTER FOR RESPONSIVE POLITICS, THE BIG PICTURE:

INCUMBENT ADVANTAGE.° At the state level in 2000, 83% of

candidates who raised the most money won. 2000 STATE

ELECTION OVERVIEW, supra, at 4. The thirteen winning

gubernatorial candidates outspent their opponents by an

average of $1.2 million.’ /d. at 8.

Some argue that limits-on campaign spending will not

allow challengers to spend enough to defeat incumbents, but

the numbers cited above demonstrate beyond a doubt that

incumbents beat challengers even without spending limits.

Incumbents are a proven commodity so fundraising for them

is an easier sell. And contributions to incumbents offer both

the benefit of immediate positive influence and the

Opportunity to place a bet on a proven winner. Available data

suggests that campaign limits may produce a different

outcome and encourage genuine challenges.”

* At http://www.opensecrets.org.

‘On average winners raised $4.1 million, while losers raised only

$2.9 million.

‘In 1974, the citizens of Albuquerque, New Mexico, voted to

amend the City Charter, adopting a code of ethics, limits on and

disclosure of campaign contributions, and limits on campaign spending.

Homans v. Albuquerque, 366 F.3d 900, 902 (10th Cir. 2004). Between

1974 and 1995, candidates successfully challenged all four of

Albuquerque’s incumbent mayors who ran for reelection. Homans v.

Albuquerque, 217 F. Supp. 2d 1197, 1200 (D.N.M. 2002). By contrast,

nationally, in 1999, incumbent mayors won 88% of their races, and in

2000, incumbents won 126 out of 140 elections. Jubi Headley and Jim

(continued...) _

In the current pay-to-play system, candidates who lack

personal wealth® or access to networks of wealthy donors, or

whose positions do not appeal to large contributors, cannot

compete. A 2003 survey by the U.S. PIRG of federal

candidates in the 2002 election cycle who dropped out of

races, lost primaries or lost general elections shows that

credible candidates, including many candidates of color who

are committed to representing communities in great need of

representation, are simply unable to raise the funds necessary

to compete.

This money-centered focus renders candidates

representing minority interests unable to compete for

campaign dollars. In 42 out of 50 states legislatures,

(... continued)

Welfley, Election Results Indicate Voter Satisfaction with Local Public

Servants: Incumbents Win 80 Percent of Their Elections (Nov. 20,

2000). The amendments were enjoined in 2001. Homans, 366 F.3d at

903.

*Nearly 43% of the incoming freshman Members of Congress in

2002 were millionaires, compared with 1% of the U.S. voting age

population. PIRG STUDY, supra, at 6.

"For example, Nathaniel Stampley, a pastor in Wisconsin, decided

to run because there had never been an African-American Con

from Wisconsin. PIRG STUDY, supra, at 41. Dr. Stampley raised $7,000

and garnered over 28% of the vote in the primary. /d. at 42. His

opponent, incumbent Jerry Klezczka, raised $459,000. /d. Ben Allen, an

African-American attorney, teacher and state representative in we

contributed $20,000 of his own money and raised another $5,300. /d. at

17. Although he made it to a run-off, the winner, Charles “Champ”

Walker, outspent Allen by $300,000. /d. at 18. Leo Martinez, the son of

Mexican laborers, lost the Second District Republican primary in New

Mexico. /d. at 30. Martinez ran a grass-roots campaign and raised

$18,000, but lost to the top money raiser. /d. Gary Collins, a lawyer and

member of the Executive Committee of the Middlesex County NAACP,

dropped out of the primary for the Second District in Connecticut. /d. at

15. Mr. Collins recounted the story of an African-American woman who

came up to him in the street after hearing him speak and handed him $2

dollars in change from her purse to support his campaign. Mr. Collins

concluded, “She believed in me enough to want to give me that money,

but she didn’t understand that even if everyone in town gave me $2 in

change, that’s not going to get you there.” /d. at 16.

minority legislators in 2003 raised less money for their next

reelection campaign, on average, than their White

counterparts. THE INSTITUTE ON MONEY IN STATE POLITICS,

MONEY AND DIVERSITY IN STATE LEGISLATURES, 2003, at 22

(Apr. 2005). Individually, 81.5% of all minority state

legislators raised less money than the average raised by the

White legislators in their state. /d. See also 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) (challenger minority candidates have

a more difficult time raising money than White candidates).

The current campaign financing regime similarly

results in the significant underrepresentation of racial

minorities in elected federal positions.* In the current U.S.

Senate, there are only five non-White Senators.’

Historically, only five African-Americans, five Latinos, three

Native-Americans, and five Asian-Americans have served in

the United States Senate. In the United States House- of

Representatives, 75 of 438 current members are people of

color even though people of color make up approximately a

quarter of the population. MILDRED L. AMER,

CONGRESSIONAL RESEARCH SERVICE, MEMBERSHIP OF THE

109TH CONGRESS: A PROFILE, CRS Rep. No. RS22007, at 5

(Oct 25, 2005), available at www.georgetown.edu/faculty/

wilcoxc/joyce.htm.

The necessity of raising tens, even hundreds, of

thousands of dollars gives the very small segment of the

population capable of writing very large checks an oversized

role in determining who gets elected. In the 2002 election,

‘Because state office often leads to federal office, pricing

candidates of color out of state elections reduces the number of viable

candidates of color for federal office.

"See Minorities in the Senate, available at

http://www.senate.gov/artandhistory/history/common/briefing/

minority_senators.htm (last visited Jan. 11, 2006).

10

less than one-quarter of one percent of the voting age

population of the United States made a contribution of more

than $200 to a congressional candidate. ADAM LIOzZ, U.S.

PIRG EDUCATION FUND, THE ROLE OF MONEY IN THE 2002

CONGRESSIONAL ELECTIONS 15 (July 2003). Less than one-

tenth of one percent of the population made a contribution of

$1,000 or more. /d. And yet this handful of large donors

contributed over three-quarters of the individual

contributions to congressional candidates. /d. at 16-17.

The donors who fund these expensive races are an elite

group whose demographics bear little relationship to the

country at large. This was the conclusion of a nation-wide

survey of over 1,000 donors who gave at least $200 to

congressional candidates in the 1995-96 election cycle.

John Green et al., Donor Dissent: Congressional

Contributors Rethink Giving, 11 Pus. Persp. 29 (2000).'°

The study also identified an additional list of “most active

donors”’—donors who gave money to at least eight

candidates and/or gave at least $8,000. Jd. at 29-30. The

researchers concluded that “donors to House and Senate

candidates are disproportionately drawn from advantaged

social and economic groups.” /d. at 30. Nearly 80% of the

donors surveyed had annual incomes of over $100,000 and

over 80% were college graduates. /d. Among the most

active donors, over half had annual incomes of over

$500,000, and only 4% had annual incomes of less than

$100,000. Jd.

Critically, the single most common characteristic

among donors—regardless of whether they were regular

donors or the most active—was race: 99% of the donors

were non-Hispanic White. /d. Similarly, a recent study of

donors to the 1972, 1988 and 2000 presidential primary

"This survey was conducted by professors and doctoral students

at the University of Maryland, the University of Akron and Georgetown

University.

campaigns by Clyde Wilcox, Professor of Government at

Georgetown University, found that among donors of $200 or

more, 86% had incomes over $100,000, but approximately

96% were non-Hispanic White. Clyde Wilcox, /ndividual

Donors in the Presidential Nomination Process, Tables 2 and

3 in THE CHANGING DONOR? INDIVIDUAL CONTRIBUTORS IN

PRESIDENTIAL ELECTIONS 1972-2000 (Alexandra Cooper et

al. eds., forthcoming).

Economic barriers to meaningful political participation

fall most heavily on the growing population of minorities.

Despite the gains of the civil rights movement and growing

numbers of minority citizens,'' the gap in White versus non- _

‘'The racial composition of the United States has changed

significantly since Buckley was decided in 1976. As evidenced by

national census figures, the nation has become increasingly racially

diverse. In 1976, 13% of the United States population was non-White,

and the vast majority of non-Whites were African-American. U.S.

CENSUS BUREAU, RESIDENT POPULATION PLUS ARMED FORCES

OVERSEAS—-ESTIMATES BY AGE, SEX, AND RACE: JULY 1, 1976. Over

the decades, Whites have accounted for a steadily shrinking percentage

of the lation. While Whites accounted for 87% of the population in

1976 (id.), they accounted for only 77% of the U.S. population in 2004.

U.S. CENSUS BUREAU, ANNUAL ESTIMATES OF THE POPULATION BY SEX,

RACE AND HISPANIC OR LATINO ORIGIN FOR THE UNITED STATES:

APRIL 1, 2000 TO JULY 1, 2004. Conversely, the percentage of minorities .

in the U.S. almost doubled between 1976 and 2004, from about 13% to

proximately 23% of the population in 2004. Between 1990 and 2000

alone, the minority population in the United States grew by 43%. FRANK

HOBBS AND NICOLE STOOPS, DEMOGRAPHIC TRENDS IN THE 20TH

CENTURY: CENSUS 2000 SPECIAL REPORTS 77 (“DEMOGRAPHIC

TRENDS”) (Nov. 2002).

Not only has the number of racial minorities increased, the

diversity among racial minorities has increased as well. In 1976, over

98% of the population was classified as either White or Black. RESIDENT

POPULATION PLUS ARMED FORCES OVERSEAS—ESTIMATES BY AGE,

SEX, AND RACE: JULY 1, 1976. Today, of the over 23% of Americans

who identify themselves as non-White, more than half are Hispanic,

American Indian and Alaska Native, and Asian and Pacific Islander.

DEMOGRAPHIC TRENDS, supra, at 77.

Vermont, too, has seen demographic shifts although it remains a

state with very small numbers of minority group residents. Though 97%

of Vermont's 608,827 residents identify as White, Vermont has followed

(continued .. . )

“12

White incomes has remained constant over the past twenty

years. MICHAEL A. STOLL ET AL., AFRICAN AMERICANS AND

THE COLOR LINE (The American People Census 2000 Series

2004). Minorities have significantly lower incomes than

non-Hispanic Whites. In 2000, median annual family

income in the United States was $52,000 while the Black

family median annual income was $31,000. /d. at 13. Put

another way, the median Black family in 2000 had an annual

income equal to the national median in 1965.

This gap in wealth between non-Hispanic Whites and

minorities appears to be growing. A recent study from the

Pew Research Center finds that between 1996 and 2002, the

median Black and Hispanic household wealth declined by

27%—while the median non-Hispanic White household

wealth increased by 2%. RAKESH KOCHAR, PEW HISPANIC

CENTER, THE WEALTH OF HISPANIC HOUSEHOLDS: 1996—

2000 As OF 2002, at 2 (Oct. 2004). The median White

household wealth was $88,651—nearly fifteen times that of

the median Black household wealth, which was $5,988, and

eleven times that of the median Hispanic household wealth,

which was $7,932. Jd.

It is this lack of money—not a lack of interest—that

prevents minorities from effectively participating in the

political process. The landmark “Citizen Participation

Study”’? found that differences in levels of activity between

(... continued)

the national trend of growing diversity. U.S. CENSUS BUREAU, CENSUS

2000 REDISTRICTING DATA (PUBLIC LAW 94-171) SUMMARY FILE,

Matrices PL] and PL2. Between the 1960s and the 1990s, the numbers

of African-Americans, American Indians and Alaska Natives, and Asians

and Pacific Islanders increased almost tenfold. DEMOGRAPHIC TRENDS,

supra, at A-2] to A-23.

'2Sidney Verba, Professor of Government at Harvard University,

Kay Lehman Schlozman, Professor of Political Science at Boston

College, and Henry Brady, Professor of Political Science at the

University of California, Berkeley, conducted a large-scale, two-stage

scientific survey of the voluntary activity (political, charitable and

(continued . . . )

13

Whites and non- Whites were far less sharp where the activity

involved time rather than money. /d. at 467-69. For

example, while minorities donate about one percent of all

political contributions, they vote at approximately the same

rate as Whites. In the November 2000 elections, 53.5% of

Blacks and 56.4% of Whites reported voting. U.S. Census

BUREAU, REPORTED VOTING AND REGISTRATION By RACE,

HISPANIC ORIGIN, SEX, AND AGE, FOR THE UNITED STATES:

. NOVEMBER 2000 (2002). Similarly, in the November 2004

election, 56.3% of Blacks, as compared to 60.3% of Whites,

reported voting. U.S. CENSUS BUREAU, REPORTED VOTING

AND REGISTRATION By RACE, HISPANIC ORIGIN, SEX, AND

AGE, FOR THE UNITED STATES: NOVEMBER 2004 (2005).

Minorities simply lack the disposable income that their

White counterparts have to contribute to campaigns in great

numbers.

In Color of Money: 2003, Public Campaign, a

nonpartisan, public interest organization, studied the

relationship between campaign money and race and showed

that neighborhoods of color are severely underrepresented in

the campaign finance system.'? Nearly 90% of the more

than $2 billion contributed by individuals in the two most

recent federal elections came from ZIP codes that are

majority non-Hispanic White ($1.7 billion—85%—<came in

. continued)

iio of the American public. Sidney Verba et al., Race, Ethnicity,

Political Participation, in CLASSIFYING BY RACE 354, 355-56

(Paul E. Peterson ed., 1995).

"Public Campaign organized the records of more than $2 billion

in individual contributions greater than $200 to federal candidates,

parties and Political Action Committees during the 2000 and 2002

election cycles by donor’s ZIP code. PUBLIC CAMPAIGN, COLOR OF

Money: 2003, at | (Major Findings) (2003). It then compared those

records with data on race, ethnicity and income from the 2000 U.S.

Census, using ZIP codes as the bridge between information on campai

—— (which does not include race or ethnicity of donors) and Saute

census

14

the form of contributions of $1,000 or more). In comparison,

just 2.8% of campaign funds came from predominantly

African-American ZIP codes, 1.8% from predominantly

Latino ZIP codes, and 0.6% from predominantly Asian and

Pacific Islander neighborhoods. /d. at 2.

The top contributing ZIP code nationwide—1!002! on

Manhattan's Upper East Side—is 86% non-Hispanic White,

and nearly 40% of its households have incomes of over

$100,000. This one ZIP code contributed more campaign

cash than did the 532 ZIP codes nationwide with the largest

percentage of African-American residents (representing

7,654,609 people ages 18 and over, 84 times more people

than live in 10021); the 533 ZIP codes nationwide with the

largest percentage of Latino residents (representing

9,355,643 people ages 18 and over, 102 times more people

than live in 10021) and the 167 ZIP codes nationwide with

the largest percentage of Asian Pacific American population

(representing 3,523,852 people ages 18 and over, 39 times

more people than live in 10021). /d. at 2. In other words,

the evidence demonstrates first, and unsurprisingly, that the

most affluent Whites are vastly overrepresented in political

giving and, second, that minorities, who are overrepresented

among the lowest economic levels in America, are severely

underrepresented among campaign donors.

As diversity increases, the American political

landscape necessarily changes. The prominence of issues

that uniquely affect communities of color shows that the

decades since Buckley have brought forth such change.

Despite the radical demographic shifts and changing political

landscape, communities of color continue to struggle to be

heard and for equal treatment. As evidenced by the Court’s

decision in Grutter, there remains a compelling need to

intervene and to correct the persisting symptoms of past

racial discrimination. Grutter v. Bollinger, 539 U.S. 306,

328 (2003).

15

Today, the increasing cost of campaigns recreates the

racial disparity and exclusion of communities of color. If the

voices of Americans of color continue to be drowned out by

moneyed interests, America will fail at least a quarter of its

population. Ensuring that all individuals—no matier their

race or color—have meaningful opportunities to participate

in and influence the political process is essential to the

success of American democracy.

LEGAL ARGUMENT

I.

BUCKLEY DOES NOT ESTABLISH A

PER SE PROHIBITION AGAINST

EXPENDITURE LIMITS.

In Buckley v. Valeo, 424 U.S. 1, 44-45 (1976) (per

curiam), this Court did not hold that expenditure limits were

per se prohibited, but rather held that “[n]o governmental

interest that has been suggested is sufficient to justify the

restriction on the quantity of political expression

imposed....”’* Jd. at 55 (emphasis added). Based on a

slim court record, the Court assumed that “there is nothing

invidious, improper, or unhealthy in permitting such

[unlimited] funds to be spent to carry the candidate’s

message to the electorate.” /d. at 56. As the Second Circuit

correctly recognized, “after Buckley, there remains the

possibility that a legislature could identify a sufficiently

strong interest, and develop a supporting record, such that

some expenditure limits could survive constitutional review.”

Landell II, 382 F.3d at 107-08.

“Because the scope and effect of Buckley with respect to

expenditures is thoroughly addressed in the parties’ briefs as well as in

the Second Circuit's opinion in this case, Amici focus instead on the fact

that expenditure limits are necessary to and justified by the rights of

citizens to participate meaningfully in the political process.

16

In the decades since Buckley, empirical evidence

reveals that the percentage of minorities who are able to

contribute financially to campaigns is almost negligible'® and

that a candidate's financial support bears little relation to his

or her support among minority constituents. Support for a

particular candidate by communities of color has become

irrelevant in an America where the vast majority of campaign

contributors are non-Hispanic White.

To be sure, given the large number of minority voters

nationally, presidential candidates consider the views of

leaders representing communities of color and, in certain

States with significant numbers of voters of color, some

access is granted by gubernatorial and Senate candidates,

especially during the campaign period. But as all studies

reflect, access thereafter is very highly correlated with

campaign contribution dollars. This disparity leads to at

worst, the appearance or actuality of corruption, and at bést,

an unfair and exclusionary system.

Because contribution limits alone have not—indeed,

cannot—adequately further the government’s interest in

protecting the political process from both actual corruption

and apparent corruption, states should be allowed the

flexibility to craft well-researched and carefully thought-out

campaign finance reform laws that utilize a variety of

mechanisms, including reasonable expenditure limits.

Without such flexibility, communities of color will continue

to be shut out of meaningful participation in our democratic

process.

'’This lack of participation is not due to a lack of interest as

differences in participation rates between Whites and non- Whites became

far less pronounced when the political participation involved time instead

of money. See discussion at p.10, supra.

17

PROMOTING MEANINGFUL

PARTICIPATION IN THE POLITICAL

PROCESS IS AN ADDITIONAL

COMPELLING INTEREST

SUFFICIENT TOSUPPORT

VERMONT’S REASONABLE LIMITS

ON CAMPAIGN SPENDING.

Vermont put forth five interests that it believed were

sufficiently compelling to warrant its reasonable limits on

campaign spending. The Second Circuit found that two of

those interests—“avoiding the reality and appearance of

corruption in elective politics and government” and assuring

that “candidates and officeholders [will] spend less time

fund-raising and more time interacting with voters and

performing duties”—taken together, supported Vermont’s

expenditure limits and declined to evaluate the remaining

interests. Landell IJ, 382 F.3d. at 115, 125.

Among the three interests advanced by Vermont that

the Second Circuit did not evaluate was Vermont’s interest in

“protecting equal access to political participation.” /d. at

115. Although the sufficiency of this interest was not

discussed by the Second Circuit, the Landeli I court

acknowledged that spending limits are an appropriate

response to the compelling governmental interest of

“[p]rotecting access to the political arena.” 118 F. Supp. 2d

at 482-83. In fact, the Landell J court found that “the

categorical preservation of free speech and association

cannot lay waste to our other core democratic values such as

effective representation, equal access to the political system,

and honest, responsive government.” Jd. at 493.

The Landell I court correctly recognized it was charged

with reconciling competing interests. Indeed, Amici believe

that the tension between the interest in ensuring meaningful

participation in the political process for all members of the

electorate and the First Amendment interests in political

speech lies at the heart of the debate over the

constitutionality of campaign expenditure limits. As the

Landell I court noted, “the exercise of those [free speech]

freedoms by some through large money contributions in our

political system threatens to drown out the freedoms of

speech and association of so many others.” 118 F. Supp. 2d

at 493.

Courts balance competing constitutional interests

often. Indeed, this Court has recognized the need to balance

First Amendment protections of political speech against core

democratic interests. As Justice Breyer pointed out in Nixon

v. Shrink Missouri Government PAC, 528 U.S. 377 (2000),

the “Constitution often permits restrictions on the speech of

some in order to prevent a few from drowning out the

many....”"° Jd. at 402 (Breyer, J., joined by Ginsburg, J.,

concurring). When faced with these competing interests, the

Court does not privilege one interest over another, but

weighs the interests and seeks solutions that maintain the

integrity of American democracy. See id.

‘SExamples of this balance abound. In Nixon, Justice Breyer

offered two examples where speech has been restricted to protect other

core democratic interests. Specifically,

in Congress, for example,... constitutionally protected

debate, Art. 1, §6, is limited to provide every Member an

equal opportunity to express his or her views. Or in

elections, where the Constitution tolerates numerous

restrictions on ballot access, limiting the political rights of

some so as to make effective the political rights of the

entire electorate. (Nixon, 528 U.S. at 402 (Breyer, J.,

joined by Ginsburg, J., concurring) (citing Storer v. Brown,

415 U.S. 724, 736 (1974)))

Similarly, in United States Civil Service Commission v. National

Ass'n of Letter Carriers, 413 U.S. 548 (1973), the Court upheld

restrictions under the Hatch Act limiting the political activity of federal

employees. Even in Buckley, when evaluating contribution limits, the

Court weighed the government's interest in the prevention of corruption

against First Amendment freedoms.

19

While expenditure caps limit to some extent the paid

political expression of a wealthy few, they are important to

ensure Americans, especially its people of color, can

meaningfully participate in the political process. Any

analysis of expenditure limits must keep in mind that the

special attention given to political expression under the First

Amendment is rooted in the protection of these democratic

principles.

A campaign finance system without expenditure limits

excludes those without the means to compete in fundraising,

many of whom are members of racial minority groups. In

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

recognized that government has an essential interest in

promoting political participation by Americans of color:

“Effective participation by members of all racial and ethnic

groups in the civic life of our Nation is essential if the dream

of one Nation, indivisible, is to be realized.” Id. at 332. The

Grutter Court found a compelling government interest in

ensuring that minorities participate in American’s education

system and stated that this compelling interest arises in part

because universities, and in particular, law schools, are

training grounds for many of the nation’s leaders. “In order

to cultivate a set of leaders with legitimacy in the eyes of the

citizenry, it is necessary that the path to leadership be visibly

open to talented and qualified individuals of every race and

ethnicity.” Jd.

But the government's interest in promoting a visibly

open path to leadership does not end at the gates of

universities and law schools. The electoral process is the

primary gateway to government leadership, and the

government has a vital interest in keeping America’s political

system open to all members of society. As we work together

as a country to provide equal educational opportunity to

minority students (and full participation at all levels in our

armed forces), we undermine these accomplishments if we

effectively deprive the graduates of these proprams of office,

20

of access, and of a sense that the government understands

and is receptive to their views.

This Court has endorsed important interests of the

government in promoting meaningful political participation.

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

acknowledged that “[p]reserving the integrity of the electoral

process, preventing corruption, and sustain[ing] the active,

alert responsibility of the individual citizen in a democracy

for the wise conduct of the government are interests of the

highest importance.” Jd. at 206 n.88 (citation and internal

quotation marks omitted). Political participation interests

were also at stake in Austin v. Michigan Chamber of

Commerce, 494 U.S. 652 (1990), where the Court upheld a

prohibition on corporate expenditures designed to combat

“corrosive and distorting effects of immense aggregations of

wealth.” Jd. at 660. Indeed, the interests of the government

in encouraging meaningful political participation are

integrally related to the government interests in preventing

corruption and the appearance of corruption set forth in

Buckley. An unequal election in which only a select number

of high bidders can meaningfully participate is an election

that appears up for sale.'’

In an amicus brief submitted to the Court, Senator Mitch

McConnell challenges Vermont's interest in “protecting equal access to

political participation.” See McConnell Amicus Brief at 13-18.

Although the Buckley Court found that the “interest in equalizing the

financial resources of candidates” is not a convincing justification

(Buckley, 424 U.S. at 56), it did not reject the interest in protecting access

to political participation. Meaningful political participation is simply not

synonymous with “the equalization of political speech” interest rejected

in Buckley.

Neither Respondents nor Amici argue for reasonable campaign

spending limits based on an abstract principle that all candidates should

have the same amount of money to spend. Such an argument misses the

point. Rather, at issue here are the consequences of entirely unrestrained

spending, as documented by the Vermont legislature and in study after

siudy, including the resulting virtual exclusion of communities of color

from the political process and from political office. Nothing less.

2!

This Court’s decisions based on the Equal Protection

Clause striking down wealth barriers to voting and running

for office also address the constitutional issues at stake. In

Harper v. Virginia State Board of Elections, 383 U.S. 663

(1966), the Court invalidated a poll tax of $1.50 in Virginia

state elections, declaring that “Voter qualifications have no

relation to wealth....” /d. at 666. Moreover, the right of

voters, regardless of wealth, to participate meaningfully in

the electoral process is not isolated from the ability of

candidates, regardless of wealth, to participate meaningfully

as well. See id. In Bullock v. Carter, 405 U.S. 134 (1972),

the Court recognized the “real and appreciable impact on the

exercise of the franchise” caused by a system that excludes

candidates on the basis of their lack of wealth, striking down

filing fees ranging from $150 to $8,900 that candidates for

local office in Texas were required to pay to their political

parties. /d. at 144; see id. at 136-41 & nn.!-17. The Court

concluded that heightened scrutiny of such candidate filing

fees was warranted because the high cost of running in a

primary election would limit voter choice:

Many potential office seekers lacking both

personal wealth and affluent backers are in every

practical sense precluded from seeking the

nomination of their chosen party, no matter how

qualified they might be, and no matter how

broad or enthusiastic their popular support. (Jd.

at 143)

“(W]e would ignore reality,” the Court continued, “were we

not to recognize that this system falls with unequal weight on

voters, as well as candidates, according to their economic

status.” Jd.; see also Lubin v. Panish, 415 U.S. 709, 718

(1974) (striking down $700 filing fee for local California

election).

22

America’s constitutional Framers recognized that

“establishing a political equality among all” was a prim

remedy for calling democratic representatives to account.'®

The diminishment of minorities’ rights to participate in the

political process also touches on fundamental constitutional

interests. Congress recognized these interests when it

enacted the Voting Rights Act in response to “an upsurge of

public” indignation against the systemic exclusion of

Negroes ....” H.R. REP. No. 439 (1965), reprinted in 1965

U.S.S.C.A.N. 2437, 2440. Prior to the Act’s passage,

Congress conducted lengthy hearings in which it heard from

a wide variety of concerned officials and individuals. I[n its

General Statement in support of the Act, a group of

Republican Congressmen commented, “(t]he problem to

which this legislation is directed is no abstract matter to

those whose rights must be assured. The right to vote is of

particular importance and value to minority groups in

general but to our Negro citizens in particular who suffer

deprivations of rights other than access to the ballot.” Jd. at

2465-66 (General Statement of Republican Views).

Even as it enacted major reform, Republican

Congressmen predicted that given the tenacity of racial

discrimination, new forms of voter discrimination would

replace the existing ones:

As we destroy the traditional bastions of

discrimination erected at registration and polling

places, we must foresee the path of retreat and

reentrenchment of those who may continue to

preserve the effects of discrimination on account

of race or color. Surely it will be in the form of

fraud, intimidation and corruption. . . .

'814 JAMES MADISON, THE PAPERS OF JAMES MADISON 197

(Robert A. Rutland et al. eds., 1983); see also THE FEDERALIST No. 57,

at 305, 386 (James Madison) (J. Cooke ed., 1961).

23

It is a cruel deception to give any man the

elective franchise and then allow destruction of

the effect of his vote through a multitude of

corrupt practices. (/d. at 2471)

The corruption predicted in 1965—ballot stuffing and

coercion of voters—was, of course, of a more virulent

variety than exists today. But, there are other types of unfair

influence that now beset our political system and shut out

those most in need of representation. Without the ability to

limit the unceasing race for funds with which they may

outspend opponents, candidates for office are forced to give

access and time to those who can provide money.

The Court in Buckley stated that “the concept that

government may restrict the speech of some elements of our

society in order to enhance the relative voice of others is

wholly foreign to the First Amendment....” 424 U.S. at

48-49. As Justice Breyer suggested in a recent discussion of

this passage, however, “those words cannot be taken

literally.” Nixon, 528 U.S. at 402 (Breyer, J., joined by

Ginsburg, J., concurring). One valid basis for upholding

limits on campaign expenditure limits, Justice Breyer noted,

is that “such restrictions aim to democratize the influence

that money itself may bring to bear upon the electoral

process.” Jd. at 401 (citations omitted). The Court’s

approach should be informed by the fact that

“constitutionally protected interests lie on both sides of the

legal equation.” /d. at 400.

Today what must be “wholly foreign” is a political

system in which free speech is measured only in dollars and

in which major segments of society are excluded and are as

powerless to influence the choice of candidates and public

policy as they were decades ago. Legislators and citizens

can and should be permitted to balance competing and

compelling government interests with carefully drawn limits

that still protect—indeed encourage and permit—widespread

communication of ideas and positions. The Vermont

24

legislature did so in enacting Act 64. The district court and

Second Circuit did so in upholding parts of Act 64 and Amici

ask that it be sustained.

The Court’s decision will not only affect the citizens of

Vermont, but it will determine whether the next generation of

Americans of color throughout the nation will be given a

voice and a place at the political table.

CONCLUSION»

Amici urge the Court to hold that governments have

compelling interests in promoting meaningful participation

by all members of the electorate and that this ‘interest is

sufficient to support Vermont’s limits on campaign spending.

DATED: February 8, 2006.

Respectfully,

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

Attorneys for the Amici Curiae

In The

Supreme Court of the Anited

NEIL RANDALL, et ai.,

Petitioners,

v.

WILLIAM H. SORRELL, et al.,

Respondents.

¢

VERMONT REPUBLICAN STATE COMMITTEE, et al.,

Petitioners,

v.

WILLIAM H. SORRELL, et al.,

Respondents.

¢

WILLIAM H. SORRELL, et al.,

Cross-Petitioners,

Vv.

NEIL RANDALL, et al.,

Cross-Respondents.

4

On Writ Of Certiorari

To The United States Court Of Appeals

For The Second Circuit

¢

BRIEF OF AMICI CURIAE FORMER SENATORS

BILL BRADLEY AND ALAN SIMPSON IN SUPPORT

OF RESPONDENTS, CROSS-PETITIONERS

+

MARK C. ALEXANDER JOHN J. GIBBONS

Counsel of Record LAWRENCE S. LUSTBERG

SETON HALL UNIVERSITY MEGAN E. Lewis

SCHOOL OF LAW GiBBONS, DEL Dro, DOLAN,

One Newark Center GRIFFINGER & VECCHIONE, PC

Newark, New Jersey 07102 One Riverfront Plaza

(973) 642-8523 Newark, New Jersey 07102

(973) 596-4500

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

~

TABLE OF CONTENTS

Page

ee See SPRY cniscitscacececehecedncoctccibnasscummontiohat i

TABLE OF AUTHORITIES........................ tchesianiigiotin ili

STATEMENT OF INTERESTS OF AMICI CURIAE ..... 1

SUMMARY OF THE ARGUMENT........................0064 2

I. THE SPIRALING COSTS OF CAMPAIGNS

TAKE ELECTED OFFICIALS AWAY FROM

THEIR SWORN DUTIES ...................::eseeeeeeees 3

A. In The Absence Of Spending Limits,

Campaign Costs In Federal, State And

Local Elections Have Escalated ............... 3

B. As A Result, Elected Officials Spend An

Excessive And Ever-Increasing Proportion

Of Their Time Raising Funds For The

Purposes Of Re-Election And Election To

eT TI vchinditsesinisiinciipictieasincciniiaihisiercegeiiieniaen 5

C. The Time Spent Fundraising Diminishes

The Quality Of Representation That

Elected Officials Provide, And Undermines

The Integrity Of The Offices They Hold..... 11

Il. TIME PROTECTION IS A COMPELLING

GOVERNMENT INTEREST THAT JUSTIFIES

CAMPAIGN EXPENDITURE LIMITS PUR-

SUANT TO BUCKLEY V. VALEO...............0+. 16

A. Buckley v. Valeo Allows That A Compelling

Government Interest Could Be Presented

That Would Justify Campaign Expenditure

Limits In Light Of The Interest In

Preserving The Integrity Of Our System Of

Representative Democracy ......................+++ 16

ii

TABLE OF CONTENTS -— Continued

Page

B. Because Fundraising Distracts Elected

Officials From Their Sworn Duties, Campaign

Expenditure Limits Are Vital To Our System

Of Representative Democracy And Would

Serve A Compelling Government Interest...... 19

C. Because Fundraising Drains Candidates’

Time, Campaign Expenditure Limits

Directly Serve A Compelling Government

Interest In Protecting The Integrity Of

The Electoral Process..................cccceseeeeee 22

D. Vermont’s Campaign Limits Directly

Serve This Compelling Interest ............... 25

Ce i rrrcicicesiceusvercvresvineninovide tienessincadopinennthe 30

TABLE OF AUTHORITIES

Page

CASES:

Am. Party of Tex. v. White, 415 U.S. 767 (1974) ..........000+. 24

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

Burson v. Freeman, 504 U.S. 191 (1992) ........... ee 23

Eu v. San Francisco Cty. Democratic Cent. Comm.,

a eR aiatithieiitegtiinkbeinisicicsiceosititasaivnsciinasel 22

Fed. Energy Regulatory Comm'n v. Mississippi, 456

Sa. PR I siercaseidinsnsntnssthtnncciendadanislbihsaddibibirindbenditivobae 28

First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765

Sa hacetichitnleiadtidiniidatercitctatidhiatajteipividehiluitaiibassdeiaciniaisbtiasisakisiedl 23

Gravel v. United States, 408 U.S. 606 (1972).............. 20, 21

Gray v. Sanders, 372 U.S. 368 (19638) ............c:cccecseseeessees 20

Homans v. City of Albuquerque and Rue v. City of

Albuquerque, 366 F.3d 900 (10th. Cir. 2004), cert.

PUREE, Tee Siste Weree Ce cc vcorcssisnicinciccccctsccecsinnssnssors 18

’ Kilbourn v. Thompson, 103 U.S. 168 (1881)............... 20, 21

Kruse v. Cincinnati, 142 F.3d 907 (6th Cir.), cert.

denied, 525 U.S. 1001 (1998)...................cceseceesssseseseeeees 18

Landell v. Sorrell, 118 F. Supp. 2d 459 (D. Vt. 2000)....... 25°

Landell v. Sorrell, 382 F.3d 91 (2d Cir. 2004)............. 18, 25

Lucas v. Forty-Fourth General Assembly of the State

of Colorado, 377 U.S. 713 (1964)..........:ccccesseseeesereeees 20

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

PUNE cicada hahodinssdintciixisitnbiabatebiveiibplidbubabencilsics abicbsaditibi 17

New State Ice Co. v. Liebmann, 285 U.S. 262 (1932)........ 28

New York Times Co. v. Sullivan, 376 U.S. 254

ey ERAGE SR es SNOB A AIC! OT ERR HSER P VRC 23

iv

TABLE OF AUTHORITIES -— Continued

Page

Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377

TEs thnssicsiaithdpitiienenthiscdtnacnscubiiniaiabiceabeunaiunins 18, 19, 26

Powell v. McCormack, 395 U.S. 486 (1969) ................00000 21

Reynolds v. Sims, 377 U.S. 533 (1964)............ccccccccccseeseees 20

Rosentiel v. Rodriguez, 101 F.3d 1544 (8th Cir.

UNO scicsinscsscpitnisniepsisetiucsimbiciidinbeipseriuisieliiaRidiedsbabaaduaitinanias meee 24

Storer v. Brown, 415 U.S. 724 (1974)... eee eens ae |

U.S. Civil Serv. Comm’n v. Natl Ass’n of Letter

Carriers, 413 U.S. 548 (1973)..........d:.cccscscssscccssccsssscceses 24

United States v. UAW-CIA, 352 U.S. 567 (1957)............-.. 24

United States. v. Johnson, 383 U.S. 169 (1966)................ 20

Vote Choice, Inc. v. DiStefano, 4 F.3d 26 (1st Cir.

DGD vctisnnisschstcsihsepcebicblebudindcacgshaiicdiinitcbtnnd Gis ilim tugs etal 24

Wesberry v. Sanders, 376 U.S. 1 (1964)..............ccccceeceeeeees 20

WMCA v. Lomenzo, 377 U.S. 633 (1964)...........cccccccceeceeees 20

CONSTITUTIONAL PROVISIONS:

ei: GUNN, FINE, B ivnccieiencsiocnccieniesisiniaterssttgeteniadmeenaiane 17

CE GIs MMIII: BET’ santscchévcovssdunieadaccupibapiemtalabiiiaammunes 20

CFB. CAE, PIN, ai oe vcccccranscacenscccsecécvsaniabotacuotarscaains 20

CUT IIE, CGI: AREY cccreccscocociccncessescesevintnimnsiociiigiies 20

UP. CODIOR. AeA. TIVE 0 cccsccssscicccascvsdsvnsddictsbicnsbabestetans 20

So CD, GG Div iccicsiichicsccvesasssiviccininionidissnistadiadadammmeaiains 19

SFT CI BIE, BB Gan scccccccusicsvcinictssaremncintalaincniaeeeptichaaiall 20

SIE FE OG cicccccsctccncsininchiiescitandinianinscdtatetiiaties 20

TABLE OF AUTHORITIES — Continued

Page

STATUTES:

18 U.S.C. § 607(a)......... cssseassnsenecnssssssntsnesssssnscsnecnecnncensenneens 11

RULES AND REGULATIONS:

1007 Vb. Lawes PA. 66 CRBS) ....cccccccsccccccccccccccccccccscccsccecess 25

_ OTHER AUTHORITIES:

133 Cong. Rec. S7782 (daily ed. Sept. 21, 1997)........... 6, 15

134 Cong. Rec. $1053 (daily ed. Feb. 22, 1988).................. 7

137 Cong. Rec. S5858 (da ly ed. May 15, 1991)................ 13

138 Cong. Rec. 115 (daily ed. Jan. 6, 1987) ..............ceee 7

142 Cong. Rec. S377 (daily ed. Jan. 25, 1996)..*.............. 28

144 Cong. Rec. H6937, H6943 (daily ed. Aug. 3,

CE RSS SRR SEE SS NERS Se Se aPC a 13

145 Cong. Rec. H8225, H8236 (daily ed. Sept. 15,

ERE SERIE SOLE Ee i ee oe 13

145 Cong. Rec. $12575, S12608 (daily ed. Oct. 14,

1999) (statement of Sen. Boxer)...............cccccccccccseceeeeevees 4

147 Cong. Rec. S2603 (daily ed. Mar. 21, 2001)................. ;

148 Cong. Rec. H339 (daily ed. Feb. EE cccettieiessidaen 12

Herbert E. Alexander, FINANCING POLITICS: MONEY,

ELECTIONS AND POLITICAL REFORM (1992)................. 4,15

Mark C. Alexander, Money in Political Campaigns

and Modern Vote Dilution, 23 U.MINN. J.L. &

EE EE a Lae: aR 26

TABLE OF AUTHORITIES — Continued

Mark C. Alexander, Let Them Do Their Jobs: The

Compelling Government Interest in Protecting

the Time of Candidates and Elected Officials,

37 Loy. U.-Cuic. LJ. vol. 4 http://www.ssrn.com/

Page

re Cicicctccesennccnepeemnecencbinpenpmoecene 22, 25, 26, 28

Jim Barnett, Fund Raising Is Race Before the Race

for re-Election, THE OREGONIAN, Aug. 9, 1999.........

Robert Bennett, Democracy as a Meaningful

Conversation, 14 CONST. COMM. 481, 501 (Winter

Vincent Blasi, Free Speech and the Widening Gyre

of Fund-Raising, 94 CoLum. L. REv. 1281, 1283

CIIIED vasitididatentsotcionredininnistgiunesiaiisnsdtevidiesascestiiieittions

James R. Carroll, Senate Rejects Limits on

Donations, THE COURIER-JOURNAL, Mar. 27, 2001,

ROSSER INE ES OER ter LPL NEEeC ea > Woe eC) SO

CENTER FOR RESPONSIVE POLITICS, ALAN SIMPSON;

simpsala.pdf, available at http//www.opensecrets.org....

CENTER FOR RESPONSIVE POLITICS, BILL BRADLEY;

bradbil.pdf, available at http://www.opensecrets.

CQ VOTING AND ELECTIONS COLLECTIONS: EXPERT

ANALYSIS, DEMOGRAPHICS AND DATA ..............00000000+

Dan Clawson, et al., MONEY TALKS: CORPORATE

PACS AND POLITICAL INFLUENCE 203-04 (1992).......

FED. ELECTION COMM’N, REPORT OF RECEIPTS AND

DISBURSEMENTS: BUSH-CHENEY ‘04 INc. (Sept. 20,

2004), available at http://www. fec.gov ...................+

Vii

TABLE OF AUTHORITIES - Continued

FED. ELECTION COMM’N, REPORT OF RECEIPTS AND

DISBURSEMENTS: JOHN KERRY FOR PRESIDENT INC.

(Sept. 20, 2004), available at http://www.fec.gov............ 5

FEDERAL ELECTION COMMISSION, “Large Fundraising

Quarters in Pre-Election Years For Presidential

Primary Campaigns,” available at http://www-fec.

gov (measured from October 1, 1999 through

I Gis Se thiicticenitccctntpcstccnesiasabaceaiindbtiginnenss 4,5

John Harwood, For California Senator, Fund

Raising Becomes Overwhelming Burden, WALL

Ey EN a RIES “BEE 6, 12

Paul S. Herrnson and Ronald A. Faucheux, Candidates

Devote Substantial Time and Effort to Fundraising

(July 7, 2000), at http://www.bsos.md.edu/gvpt/

herrnson/reporttime. html ..0.0................cceseeeseeeeeeeneeeeeeeees 9

Greg Krikorian, California and the West; Campaign

Cuts Into Campbell's esting Record, L.A. TIMES,

EE ricticichiitnintntcctaprditinennctiniigimetetimnene 12

Peter Lindstrom, CENTER FOR RESPONSIVE POLITICS,

CONGRESS SPEAKS: A SURVEY OF THE 100TH

i 7, 8,14

Larry Makinson, SPEAKING FREELY (2d Ed. 2003)........ 6, 14

Carol Matlack et al., Money and Politics: A Special

Report, 22 NAT'L J. 1448 (1990)...............ccccceeseeeeeeeeeeeeeees 8

Ronald Michaelson, Trends in Campaign Financing,

THE BOoK OF STATES, Vol. 35, at 275 (2003) ................. 28

REPORT OF RECEIPTS AND DISBURSEMENTS: JOHN

KERRY FOR PRESIDENT INC., (Sept. 20, 2004),

available at http:/Awww.fec.gov .............cccccceseseeeseceeeeeees 5

TABLE OF AUTHORITIES — Continued

Page

Spencer Overton, The Donor Class: Campaign

Finance, Democracy, and Participation, 153 U.

I, Ea RD Se cairn Miratinndasinncinpaitenpvidiianibeiens 10

Martin Schram, SPEAKING FREELY (1st ed. 1995)..... passim

Frank J. Sorauf, MONEY IN AMERICAN ELECTIONS

Se eceiisichiatiien ccitcpa latins daeiiainidaaiicatebia nei dahleliis asthe th idasaseni 6

SPEAKING FREELY (1995) at http://www.opensecrets.

org/pubs/speaking/speaking02.html....................ccceeceeeeees 9

SPEAKING FREELY (1995) at http://www.opensecrets.

org/pubs/speaking/speaking03.html....................:..00++: 9,11

Jim Tankersley, Senate Hopefuls Focus on Money;

Campaigns Need Cash to Reach Voters Before the

Primaries, ROCKY MOUNTAIN NEws, June 11,

ERR Rare ta Sea BOTS AEE Me nGR vr a aan BNE 15

THE FEDERALIST No. 39 (James Madison)..................00-++- 19

U.S. PUBLIC INTEREST RESEARCH GrRouP, LOOK

Wuo’s Not CoMING TO WASHINGTON (2003) ................... 4

Bob Warner, Critics Tread on Street/Blast Mayoral

Hopeful for Remarks on Fund-Raising, PHILADELPHIA

DAILY NEWS, Sept. 24, 1999..................-ccccccsssccsssssrscecenee 15

http://www.opensecrets.org/overview/topmetro.asp?

I piteiternitinnninnsctinitiiniotcintninintcnininthinsasiiiiihensapaniiganemeees 8

http:/Avww.opensecrets.org/politicians/summary.asp?

CID=NO00006692 S&cycle=2004 o.oo... ececeeccceeeeeeeeeeeeeeeeeees 4

http://www.opensecrets.org/races/instate.asp?ID=

SDS l&cycle=2004&special]N .2.0.........ccccseeeeceeeeeeeeeteeees 8

http://www.opensecrets.org/presidential/index.asp ........... 27

http://www.opensecrets.org/pressreleases/Donor

RID oiceiitateccmisicdtceceimnupistencsinieisciienton 10

ix

TABLE OF AUTHORITIES - Continued

http://www.opensecrets.org/overview/DonorDemo

graphics.asp?cycle=2002 .......:........ccrcccsssrrsssccessnsessenseees 10

http://www.senate.gov/artandhistory/history/common/

briefing/Oath_Office htm. .....0.......cceeecsseeeeteeeseeeteeeeseseneees 1

1

STATEMENT OF INTERESTS OF AMICI CURIAE

Amici former Senators Bill Bradley and Alan Simpson -

urge the Court to affirm the ruling of the United States

Court of Appeals for the Second Circuit in favor of Re-

spondents. This case addresses a constitutional question of

great magnitude concerning this Court’s First Amendment

jurisprudence in the context of campaign finance reform.’

The issue presented herein is whether the State of Ver-

mont’s campaign expenditure limits are justified by a

compelling government interest.

Bill Bradley is a former United States Senator, and a

' Democrat from New Jersey. He was first elected to the

United States Senate in 1978, and served three full terms,

from 1979 to 1997. In addition, Senator Bradley ran for

the Democratic Party nomination for President of the

United States in the 2000 election cycle.

Alan Simpson is a former United States Senator, and

a Republican from Wyoming. He was also first elected to

the United States Senate in 1978, and served three full

terms, from 1979 to 1997.

Having served the nation in the United States Senate,

amici swore an oath to “support and defend the Constitu-

tion of the United States” and to “well and faithfully

discharge the[ir] duties.” In addition to their service in

* Counsel for all parties have consented to the filing of this brief,

and amici have filed those consents with the Clerk of the Court. No

counsel for a party in this case authored this brief in whole or in part,

and no person or entity, other than the undersigned amici and their

counsel, has made a monetary contribution to this brief’s preparation

and submission.

* http//www.senate.gov/artandhistory/history/common/briefing/Oath_

Office. htm.

2

the Senate, amici have raised millions of dollars for their

campaigns, for their respective parties, and for other

candidates. Amici are proud of their service in the legisla-

tive branch; however, as former members of a coordinate

branch, they feel compelled to advise the Court of their

utmost concern for the problem presented. With a sense of

continuing obligation to serve to the nation, amici file this

brief in support of Respondents.

+

SUMMARY OF THE ARGUMENT

This case raises the question whether the immense

time commitment of fundraising detracts excessively from

the effective performance of elected officials. Without

expenditure limits, campaign costs have escalated and

fundraising has become an inordinately time-consuming

job for candidates and office holders. Due to the excessive

demands of fundraising, it is difficult for elected officials to

fulfill their duties. As a result, the quality of representa-

tion has declined, and the integrity of elected office has

been undermined. Thus, protecting the time of elected

officials from the burdens of constant fundraising presents

a compelling government interest, an interest which was

not before the Court in Buckley v. Valeo, 424 U.S. 1 (1976).

For these reasons, the Court should affirm the consti-

tutionality of the State of Vermont’s campaign expenditure

limits. In the alternative, amici urge the Court to hold

that protecting the time of candidates and elected officials

from the onerous demands of fundraising is a compelling

government interest that justifies campaign finance

reform measures, and to remand to the lower court for a