# Amicus Curiae Brief — Randall v. Sorrell

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0104%3A15

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2006
- **Citation:** 546 U.S. 1148

## Text

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%— 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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0104%3A15. Public record. Not legal advice.