Amicus Curiae Brief — Randall v. Sorrell

tions that is inextricably intertwined with dismay about ex-

cessive campaign spending. It is imperative that state gov-

ernments have the tools to combat this perception, which is

undermining public: faith in the integrity of government.

The logical connections that have ied much of the public

to become disillusioned by unlimited spending on political

campaigns are not hard to discern. To begin with, the issue is

not just one of “corruption” in the classic sense of bribery or

something akin to it. See Burt Neuborne, One Dollar-One

Vote: A Preface to Debating Campaign Finance Reform, 37

WASHBURN L. J. 1, 5-7 (1997) (discussing varying theories of

corruption and their respective scopes). Rather, a significant

public concern is that excessive and often grossly imbalanced

spending muffles the voices of some candidates and distorts

the way vital public issues are ventilated during a campaign.

This concern is validated by the reality that approximately 90

per cent of the time, the candidate who spends the most

money wins the election. U.S. PIRG Education Fund, THE

WEALTH PRIMARY: THE ROLE OF MONEY IN THE 2002 Con-

GRESSIONAL PRIMARIES at 4 (2002), available at

www.uspirg.org/ reports/WealthPrimary10 02.pdf.

But that is only one aspect of a larger problem: voters

believe that if expenditures are not capped, candidates will be

forced to go all out to raise money. That imperative, in the

public’s view, has myriad unfortunate effects. It fosters clas-

sic “money under the table” corruption because it puts a pre-

mium on getting campaign cash. It forces elected officials to

shirk official duties in favor of raising money and mollifying

contributors. With so much money flowing into the system,

ordinary voters get the (reasonable) impression that the re-

cipients of that money will be responsive to contributors

rather than to the broader electorate. And the ability to spend

unlimited amounts gives incumbents a virtually insuperable

advantage when they seck re-election; incumbents typically

raise more money than their challengers — and almost inevi-

tably win — because contributors may believe (correctly or

ee

See ee ee

not) that they will receive official favors in return for contri-

butions.

Contribution limits, especially in the era of “bundling,”

are not a complete answer to any of these problems. And the

more that is spent on campaigns — with endless television

commercials, direct mail, and computerized telephone calls

all visible to or heard by the electorate — the more a typical

voter will see the visible fruits of campaign spending. Inevi-

tably, this barrage will lead reasonable voters to conclude

that raising and spending money is all candidates care about.

Thus, even with contribution limits in place, the evils of

an accelerating race for campaign cash sap public confidence

in the electoral system:

The predictable effect [of a bar on expenditure lim-

its} has been to increase the pressures to satisfy the

ever-increasing, but uncontrollable, demand for

campaign cash. * * * Instead of freeing the political

process from the effects of wealth disparity and the

reality and appearance of corruption, the mutation

produced by Buckley places unending pressure on

public officials to raise money from special interests

in a highly public manner calculated to create pre-

cisely the appearance and reality of quid pro quo

corruption that the Buckley Court recognized as a

threat to the democratic process.

Neuborne, supra, 37 WASHBURN L.J. at 33-34, 37.

3. This concern is not just theoretical: it is borne out by

hard data. Nationally, over two-thirds of registered voters

believe that candidates spend too much money on election

campaigns. Lake Research Partners, Survey Results from a

Nationwide Survey of 1000 Registered Voters (hereinafter

“National Survey”), at 7 (2006), available at http://demos.

org/campaignfinancesurvey. A nearly identical number cor-

related election spending with the integrity — or lack of integ-

rity — of the electoral process. /d. at 13.

Targeted state polls reveal more detailed insights into

voters’ perceptions regarding the relationship between cor-

ruption and campaign spending. Strikingly, 68 percent of

Pennsylvania voters believe that the current level of cam-

paign spending is a “serious threat [to] the basic fairness and

integrity of our political system.” Lake Sosin Snell Perry &

Assoc., Inc., Banners From a Survey of 500 Registered Vot-

ers in the State of Pennsylvania (hereinafter “PA Survey’) at

3 (1998), available at http://www.courts.state.pa.us/Index/

Supreme/appenda.pdf. In fact, “{c]orruption is the word that

voters themselves use most frequently in describing what is

wrong with campaigns and elections today.” PA Survey, at

16. Voters in Maryland also equated campaign spending

with the term “corruption.” The Center for American Politics

and Citizenship, University of Maryland, and The Schaefer

Center for Public Policy, University of Baltimore, Maryland-

ers’ Opinions of Campaign Finance and Campaign Finance

Reform, at 2 (2002), available at www.capc.umd.edu/

rpts/MDCampFinSrvy.pdf. The public perception of the

situation has deteriorated over time, resulting in a current as-

sessment of democracy as being, in effect, broken. PA Sur-

vey, at 16; see also id. at 11.

--Pennsylvania and Maryland have company in this percep-

tion. In the words of one commentator, Wisconsin poll re-

sults in 2005 “revealed a stunning cynicism, confirming other

surveys that consistently place politicos and journalists near

the used car salesmen in public confidence.” Thomas C.

Reeves, Selfish Politicians (2005), at 1, available at

http://hnn.us/blogs/entries/18029.htm!. The commentator was

reacting to figures confirming that “only 6% of the residents

in Wisconsin believe their elected official represent the inter-

ests of the constituents on important issues.” Wisconsin Pol-

icy Research Institute, Inc., Wisconsin Citizen Survey, Octo-

ber 2005 (hereinafter “Wisconsin Survey’), at 12, available at

http://www.wpri.org/Reports/Volume] 8/Vol1806.pdf. Wis-

consin voters split nearly evenly between believing that local

officials represent their own interests and believing that they

represent special interests. bid.

The widespread perception that excessive campaign

spending is distorting the political process also is reflected in

survey data showing that the voting public believes campaign

spending limits would curtail corruption of the process. The

vast majority — 87 per cent — of registered voters across the

country favor the implementation of spending limits. Na-

tional Survey at 8. More than three-quarters of those polled

see spending limits as a deterrent to corruption in campaigns.

Id. at 12. Targeted polls in selected states yield similar re-

sults:

e “In November 2000, voters in 56 of Wisconsin’s

72 counties were asked whether they supported

campaign finance reform that would limit contri-

butions and expenditures and require complete

and timely disclosure. Over 90% of the voters

answered ‘yes’ in this referendum * * * .” Wis-

consin Briefs from the Legislative Reference Bu-

reau, Brief 01-9, at 1 (March 2001), available at

http://www.legis.state. wi.us/Irb/pubs/wb/01 wb9.

e When polled on spending in judicial elections, 59

per cent of a split sample believed that candidates

in Pennsylvania spend too much money, not hav-

ing been told how much candidates spend. That

number jumped to 81 per cent for the portion of

the split sample that was given an example of how

much a candidate spent last year. PA Survey at 4.

e Similarly, “56 per cent of Ohioans favor spending

limits for judicial elections.” Frontline, Justice

for Sale, Summaries of Selected Studies, at 6,

available at http://www.pbs.org/wgbh/pages/

frontline/shows/ justice/que/studies.html.

e When West Virginia voters were polled regarding

whether they believed “there should be a limit on

how much a person can spend on running for pub-

lic office,” more than 75 per cent said yes, while

only16.8 per cent said no. Ken Hechier, Financ-

ing Elections: West Virgina, the States, and the

Nation, 7 W. VA PUBLIC AFFAIRS REPORTER 3

(1990).

4. Public concern about electoral excesses — and, in par-

ticular, with unlimited campaign expenditures — also is re-

flected in repeated legislative efforts to reform the campaign

finance process, at both the state and the federal level. That

legislatures have turned to this subject time and again power-

fully illustrates continuing dissatisfaction among the elector-

ate.

Before Buckley, states experimented widely with expen-

diture limits. In reaction to public discontent with the spoils

system at the turn of the twentieth century, many states en-

acted spending caps. “{B]y 1932 over half of the states had

such provisions. By 1964, thirty states had provisions that

attempted, in one way or another, to limit total campaign ex-

penditures.” Gross & Goidel, THE STATES OF CAMPAIGN FI-

NANCE REFORM (2003), at 4.

Congress, too, experimented with campaign spending

limits for House of Representatives and Senate races. See

Tillman Act, Pub. L. No. 59-36, 34 Stat. 864 (1907), as

amended by Pub. L. No. 62-3, 37 Stat. 25 (1911) (effecting

expenditure limits of $5,000 and $10,000 for U.S. House and

Senate campaigns, respectively); Corrupt Practices Act, Pub.

L. No. 68-56, 43 Stat. 1070 (1925) (raising those limits to

between $2,500 and $5,000 for U.S. House campaigns and

between $10,000 and $25,000 for U.S. Senate campaigns).

The Court’s decision in Buckley, of course, has been

widely thought to bar expenditure limits. The consequences

of that result have been as damaging as they were predict-

able. In the post-Buckley period, voter participation in both

national and gubernatorial elections has generally declined.

10

Gross & Goidel, supra, at 88. Indeed, in 1996, voter cyni-

cism led to the lowest voter turnout in a presidential race in

five decades. Donald J. Simon, Beyond Post-Watergate Re-

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

167, 174 (1998).

In light of this decline in voter participation, it is not sur-

prising that the appetite for reform at the state and local level

remains strong. State and local legislatures have attempted

to adopt reforms within the constraints of Buckley’s per-

ceived approach to expenditure limits. For example:

Since 1990, 30 states have radically changed their

campaign finance laws, 17 of them between 1995-

98. Hoover Institution: Public Policy Inquiry,

Campaign Finance, State and Local Overview,

available at http://www.campaignfinancesite.org/

structure/states 1 .html.

From 1972-1996, 45 campaign finance initiatives

and/or referenda, as well as charter amendments

on election reform, were placed on state ballots.

In 36 of these cases, a majority of voters sup-

ported enactment. Jbid.

As of 1998, 24 states had statutes providing some

sort of public financing for election campaigns.

Ibid.

At least 15 states and major cities such as New

York, Seattle, Portland and San Jose have some

sort of voluntary expenditure limitation. See Fed-

eral Election Commission, Campaign Finance

Law 2000: CHART 3-A: EXPENDITURE LIMI-

TATIONS, available at www.fec.gov/pubrec/cfl/

cf100/cfl 00chart3a.html; Hoover Institution: Pub-

lic Policy Inquiry, Campaign Finance, State and

Local Overview, supra; Seattle, City Council Or-

dinance 107772 (Nov. 30 1978); Press Release,

Public Campaign, “Voter Owned Elections” Be-

ll

comes Law in Portland, Oregon, (May 19, 2005),

available at www.publicampaign.org/pressroom/

pressreleases/release2005/release_05 _19 05.htm;

National Civic League, Spending Limits Working

in San Jose, California, 3 NEW POLITICS, at 3

(Spring 2002).

e Other states and localities have seen their reform

efforts run afoul of what courts perceived to be

Buckley’s absolute bar on expenditure limits. Al-

buquerque’s comprehensive system of expendi-

ture limits, which is discussed in more detail be-

low, was invalidated by the Tenth Circuit in

Homans v. City of Albuquerque, 366 F.3d 900

(10th Cir. 2004). Ohio attempted to enact spend-

ing limits at both state and local levels, but the

Sixth Circuit invalidated spending limits in city

council races (Kruse v. City of Cincinnati, 142

F.3d 907 (6th Cir.), cert. denied, 525 U.S. 1001

(1998)), and held that Buckley bars spending lim-

its in state judicial campaigns. Suster v. Mar-

shall, 149 F.3d 523 (6th Cir. 1998). And the fed-

eral courts struck down Proposition 73, approved

by the California electorate, which prescribed

(among other reforms) mandatory limitations on

certain types of political expenditures.” See Serv.

2 Majorities of voters supported both Proposition 73 and Propo-

sition 68, which contained voluntary campaign spending limits

accompanied by public financing of campai ns. See Robert Drey-

fuss, Reform Beyond the Beltway, States as Laboratories of Clean

Money, 38 THE AMERICAN PROSPECT 50, 53-54 (May/June 1998).

Voters preferred the system of mandatory spending limits by an

appreciable margin. Before it was invalidated, California courts

held that Proposition 73 should take precedence over Proposition

68 because it received more votes. Taxpayers to Limit Campaign

Spending v. Fair Political Practices Comm'n, 51 Cal. 3d 744

(1990).

12

Employees Int'l Union v. Fair Political Practices

Comm'n, 721 F. Supp. 1172 (E.D. Cal. 1989);

Service Employees International Union v. Fair

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

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

1992).°

Campaign finance reform was achieved most recently in

Connecticut — in an effort that clearly illustrates the connec-

tion between public cynicism about the electoral process and

the perceived need to limit campaign expenditures. In reac-

tion to a corruption scandal that sent Governor John G. Row-

land to prison, Governor M. Jodi Rell announced the intro-

duction of sweeping campaign finance reform legislation. In

her January 2005 announcement, Governor Rell noted the

voters’ perception of an association between electoral corrup-

tion and unconstrained campaign spending. She observed

that one of the three complaints she hears most often from

her constituents is that candidates spend too much money on

election campaigns. Press Release, The Office of Governor

M. Jodi Rell, Gov. Rell Introduces Sweeping Reform Propos-

als for Campaign Finance (January 10, 2005), at 3, available

> Ten years later, the citizens of Massachusetts passed a referen-

dum that provided for voluntary spending limits, accompanied by

public financing. The state legislature, however, was unwilling to

fund the public financing aspect of the referendum. Applying the

state constitution, the Massachusetts Supreme Judicial Court held

that the law must be funded or repealed. Bates v. Director of Of-

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

2002). The state legislature consequently repealed the law. Mi-

chael Sax] & Meaghan Maloney, The Bipartisan Campaign Re-

form Act: Unintended Consequences and Maine's Solution (2004),

at 476-477, available at http://www.law.harvard.edu/students/

orgs/jol/vol41_2/saxl.pdf. Another campaign finance reform bill,

this one containing mandatory expenditure limits, is now pending

in Massachusetts. The bill contains no provision for public financ-

ing. Mass. HB No. 118 (2005), available at http://www.mass.

gov/legis/bills/house/ht00/ ht00118.htm.

13

at http://www.ct.gov/governorrell/cwp/view.asp?Q=288454

&A=1761; see also WHDH 7 News Boston, Connecticut

Lawmakers Pass Sweeping Campaign Finance Bill (Dec. 21,

2005), available at http://www2.whdh.com/news/articles/

national/BOS10050/. The reform bill, signed into law by

Governor Rell in December 2005, provides for voluntary ex-

penditure limits combined with public campaign financing.

2005 Ct. P. A. 5 (enacting 2005 Ct. S.B. 2103).

Connecticut’s experience also illustrates the constraints

that states feel in this arena, and their concern that Buckley’s

perceived bar on expenditure limits handicaps effective re-

form. During the House debate on Senate Bill 2103, an

amendment was proposed that would have eliminated the

public financing provision in the reform. In response to the

amendment’s introduction, Representative Spallone, one of

the bill’s sponsors, emphasized that state reform efforts may

be hamstrung unless expenditure limits are permissible:

In a perfect world, I think that elections based only

on individual contributions without public financing

may work. However, we operate in the context of a

Supreme Court decision from 30 years ago, which

effectively said we can limit the amount that each of

us can donate to a campaign, but not the amount that

we can each spend on our campaign. And that’s

[sic] created the arms race, as it were, in financing

for campaigns at the State, national, and local levels.

Transcript of the House Debate of 2005 Ct. S.B. 2103 at 60

(Nov. 30, 2005).

To be sure, popular clamor for a particular outcome gen-

erally is not, of itself, a sufficient basis to overcome constitu-

tional limits on legislative discretion. See W. Va. State Bd. of

Educ. v. Barnette, 319 U.S. 624, 638 (1943). But the public

perception that candidates’ excessive focus on campaign dol-

lars has corrupted the electoral process and effectively disen-

franchised ordinary voters — which is starkly revealed by the

14

public opinion data and the history of legislative efforts in

this area — is itself a problem of constitutional dimension.

Our democratic system rests on the principle that eligible

voters will participate in the electoral process and will feel

justifiably confident that the process and its results are fair,

informed, and responsive. And it is difficult to imagine a

constitutional interest more compelling than that of preserv-

ing the citizenry’s faith in democracy.

Moreover, this is not a problem of sacrificing free speech

in order to assure electoral integrity. That is a false choice.

It is possible to craft spending limits that allow ample room

for candidates and their supporters to convey their message

thoroughly and forcefully. Indeed, while unlimited cam-

paign spending may increase the volume of speech in one

sense, it also may inhibit robust debate of issues, decrease

public involvement and confidence in the electoral process,

and foster a fundamental disaffection with democratic gov-

ernance on the part of the electorate.

B. A Rule That Allows States To Experiment With

Campaign Expenditure Limits Permit The De-

velopment Of Electoral Systems That Combat

Public Cynicism While Preserving First

Amendment Values

A holding by this Court that campaign expenditure limits

may be permissible would not mean that such limits always

(or, for that matter, often) would be upheld. Restrictions on

campaign spending would be subjett to the most exacting

constitutional scrutiny. As the Second Circuit recognized in

remanding this case for further fact-finding regarding Ver-

mont’s expenditure caps (see Landell, 382 F.3d at 135-137),

proponents of such limits would be obligated to show that the

state regulation truly serves a compelling interest, is narrowly

tailored, and was formulated to serve its goal effectively.

Unfortunately, the Court’s decision in Buckley has been

widely understood — erroneously, in our view — to stand for

15

the proposition that no level of corruption (perceived or real)

and no level of distortion in the electoral system could be

compelling enough to justify campaign spending limits, and

that such limits never could be tailored narrowly enough to

survive constitutional scrutiny. See Landell, 382 F.3d at 107

(citing cases); id. at 151-152, 155-156, 159, 172, 185 (Win-

ters, J., dissenting). As a consequence, many courts and state

legislatures have taken Buckley to deny states the ability to

experiment with novel methods of campaign finance reform

or to test the practical consequences of spending caps.

That outcome has been “fraught with serious conse-

quences to the Nation” (New State Ice Co. v. Liebmann, 285

U.S. 262, 311 (1932) (Brandeis, J., dissenting)), as states

have been unable to make use of what may be the most effi-

cacious tool with which to address the growing public cyni-

cism about the electoral process. By contrast, freeing states

to implement expenditure caps if they are able to make the ~

requisite showing would have enormously healthy conse-

quences for the Nation’s political system. A constitutional

rule that allows states at least to attempt to make the strict

showing necessary to justify spending limits could lead to the

development of systems that restore public faith in democ-

racy, while also fostering robust debate, candidate interaction

with the electorate, a full exploration of pressing issues, and

fair campaigns.

This point is illustrated by considering the unique experi-

ence of one “courageous” jurisdiction that has been able, in

the post-Buckley era, to “serve as a laboratory” regarding the

real-world effects of campaign expenditure limits. New State

Ice, 285 U.S. at 311 (Brandeis, J., dissenting). Beginning in

1974, the city of Albuquerque, New Mexico, made use of

mandatory spending limits in local elections. Until those

limits were held unconstitutional by the Tenth Circuit three

decades later in Homans, this regime served the goals of in-

creasing electoral competition — with greater access to office

by new candidates and no sacrifice in voter participation in

16

elections for city office. See State PIRGs’ Democracy Pro-

gram, The Case for Limits on Campaign Expenditures, at 1,

available at http://www.buckbuckley.com/pdfs/spending

limits policy background.pdf. It also served to decrease the

advantage that incumbents typically hold in electoral compe-

tition. For example, none of the four mayoral candidates

who sought reelection during the period between 1974 and

invalidation of the spending limits regained their office. Tes-

timony of Donald A. Gross at Tr. 88:6-89:9, Landell v.

Sorrell, 2:99-cv-00146-WKS (D. Vt. June 2, 2000); Anthony

Gierzynski, Albuquerque Election Financing (2002), at 5-6,

available at www.nvri.org/library/cases/albuquerque/election

financinganal ysis. pdf. Albuquerque’s figures contrast

sharply with other U.S. mayoral races, in-which incumbents

are reelected approximately 80 per cent of the time. /bid.

The City’s pre-Homans experience with campaign spend-

ing limits also contrasts sharply with developments in 2005,

during Albuquerque’s first full election cycle without spend-

ing limits. That year, the incumbent mayor raised a war

chest of nearly $1.2 million, a record-setting amount for Al-

buquerque. He was reelected after drastically outspending

his opponents. Jim Ludwick, Chavez Raised, Spent Nearly

$1.2 Million, ALBUQUERQUE JOURNAL, 2005 WLNR_.

16559603 (Oct. 12, 2005).

Albuquerque’s limits held more than 90 per cent public

approval when they were first enacted. They remained

highly popular, garnering 87 per cent support over twenty

years later, near the time the Tenth Circuit felt obliged by

Buckley to dismantle them. See The Case for Limits on Cam-

paign Expenditures, supra, at 1. In 1998, after living with

expenditure limits for more than two decades, A]lbuquerque’s

voters expressed their clear view that the City’s campaign

finance system was working:

e “Support for spending limits in Albuquerque’s lo-

cal elections is overwhelming and intense. More

than eight in ten voters favor a law that limits

17

spending in local election campaigns, including a

solid majority which strongly favors the law. In-

tense support for spending limits crosses gender,

age, education, economic and partisan lines.”

e “Voters believe that spending limits have made

Albuquerque elections more fair and honest than

[those in] other big cities. A solid majority agree

on this point and the perception crosses party

identification * * * .”

e “When voters are presented with two opposing

viewpoints, an overwhelming majority believe

that stricter and lower limits on campaign spend-

ing improves the fairness of elections in Albu-

querque. Similarly, after hearing arguments from

both sides, two thirds of voters believe that put-

ting stricter limits on campaign spending im-

proves the honesty and integrity of local elec-

tions.”

Lake Snell Perry & Assoc., Public Perceptions of Campaign

Spending Limits: Finding from a Survey of 400 Registered

Voters in the City of Albuquerque, New Mexico, at 3 avail-

able at http://www.nvri.org/library/cases/albuquerque/public

perceptions Albuquerque NM.pdf.

Other analyses of Albuquerque’s campaign finance regu-

lations revealed that voter turnout was at least as high as in

other cities of similar size, that incumbents had less of a

campaign spending advantage, and that officeholders there-

fore were more vulnerable when compared to incumbents in

similar cities. See Homans v. Albuquerque, 217 F. Supp. 2d

1197, 1200-1201 (D.N.M. 2002). This led one commentator

to find that “democracy in Albuquerque is actually as

healthy, if not healthier than in other cities,” concluding that

Albuquerque’s campaign spending limits contributed sub-

stantially to this outcome. Gierzynski, Albuquerque Election

Financing, supra, at 4.

18

Of equal importance, Albuquerque’s experience belies

the argument that mandatory spending limits serve princi-

pally to protect incumbents. Opponents of restrictions on

campaign expenditures often advance this “incumbency ad-

vantage” argument as a primary rationale. See, e.g., Br. of

Vermont Republican State Committee at 42-43; Br. of Mitch

McConnell as Amicus Curiae at 18-22; Landell, 382 F.3d at

151, 183, 196, 199 (Winters, J., dissenting). The fact that the

argument falls away in the actual practice of spending limits

demonstrates the value of state political experimentation over

academic hypothesis in this arena.

Albuquerque’s experience holds several lessons for this

case. It makes clear that campaign expenditure limits may be

tailored to effectively address public cynicism regarding the

role of money in political campaigns, while also preserving

First Amendment values. And more broadly, it reaffirms the

importance — often acknowledged by this Court — of relying

on the legislative process to produce creative solutions to

pressing social problems.

Accordingly, amici urge the Court to make clear that lim-

its on campaign expenditures should be subject to close re-

view — but not to scrutiny that is “‘strict in theory, but fatal in

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

237 (1995) (citation omitted). The Court should clarify that

caps-on spending may be permissible if set at a level that rea-

sonably assures an adequate opportunity to get the candi-

date’s message across to the electorate in an intelligible and

comprehensive way. Thus, the constitutional touchstone is a

practical one: whether a spending limit is too low to permit

the candidate to achieve reasonably broad and consistent ac-

cess to the electorate. That is a matter on which state legisla-

tures should have discretion, taking into account the nature of

the race, the size of the electorate, the availability of media

outlets, the costs of various types of communications, and

other relevant factors — all subject to judicial review. Such a

holding would free state and local governments from artifi-

19

cial and absolute constraints on their ability to experiment in

the realm of campaign finance reform, and thus would equip

elected officials with the full complement of tools they need

to restore public faith in the democratic process.

CONCLUSION

The Court should affirm the court of appeals’ judgment

that limits on campaign expenditures may be constitutional,

if narrowly tailored and effectively designed.

Respectfully submitted.

PHILIP ALLEN LACOVARA

CHARLES A. ROTHFELD

Counsel of Record

DANIEL T. BROWN

HEATHER H. MARTIN

Mayer, Brown, Rowe &

Maw LLP

1909 K Street, NW

Washington, DC 20006

(202) 263-3000

FEBRUARY 2006

(9 (is) - FEB 8 - 2006

Nos. 04-1528, 04-1530, and 0 cE EASE

IN THE

Supreme Court of the Anited States

NEIL RANDALL, ef ai.,

Petitioners/Cross-Respondents,

Vv

WILLIAM H. SORRELL, ef al.,

Respondents/Cross-Petitioners,

VERMONT REPUBLICAN STATE COMMITTEE, ef al.,

Petitioners,

V

WILLIAM H. SORRELL, ef al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the Second Circuit

BRIEF FOR AMICI CURIAE

THERESTOFUS.ORG, U.S. PIRG, COMMON CAUSE,

THE LEAGUE OF WOMEN VOTERS, AARP, PUBLIC

CAMPAIGN, CITIZENS FOR RESPONSIBILITY AND

ETHICS IN WASHINGTON, AND THE UNION FOR

REFORM JUDAISM IN SUPPORT OF THE

RESPONDENTS-CROSS-PETITIONERS

MARTHA M. TIERNEY DOUGLAS R.M. NAZARIAN*

KELLY|HAGLUND|GARNSEY + PATRICIA A. BRANNAN

KAHN L.L.C. JASON T. SNYDER

1441 Eighteenth Street, LEIGH L. OLIVER

Suite 300 HOGAN & HARTSON L.L.P.

Denver, Colorado 80202-1255 555 Thirteenth Street, N.W.

(303) 296-9412 Washington, D.C. 20004

Counsel for Amicus Curiae (202) 637-5600

Common Cause Counsel for Other Amici

Curiae

* Counsel of Record

—

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 -— WASHINGTON, D.C. 20001

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES .......

STATEMENT OF INTEREST...

SUMMARY OF ARGUMENT ...

A, ee

SORE HEHE EEE HHH EET OH ERE Ee

TOPPER RE RRS ESSERE E EE SEER ESET

I. BUCKLEY DOES NOT PRECLUDE

STATE REGULATION OF CAMPAIGN

Il. VERMONT HAS A VITAL INTEREST IN

PRESERVING ITS REPUBLICAN FORM

OF GOVERNMENT THROUGH AN

ELECTION PROCESS THAT

ENCOURAGES PUBLIC INVOLVEMENT

AND DELIBERATION

A. The Court Should Defer to a State’s

Effort to Preserve the Republican

Form of its Government .............ccccccseseeseevens

B. A Republican Form of Government

Depends Upon Deliberation and

PORMIOGS POS GIG .eccccecccccsecsccssesecesseesere

Ill. THERE IS A FIRM BASIS FOR

VERMONT’S CONCLUSION THAT

SPENDING LIMITS AT THE STATE

LEVEL BOLSTER THE REPUBLICAN

FORM OF GOVERNMENT THROUGH

PUBLIC INVOLVEMENT AND

DELIBERATION .........

ee

SCE REET

TABLE OF AUTHORITIES

Page

CASES:

Bang v. Chase, 422 F. Supp 758

Ss SURES GP TD teiicietnsticcnicctiniinstenidheshionastcieabishibicgntbnnniindiiis 16

Buckley v. Valeo, 424 U.S. 1 (1976).......ccccccceceeessseeeeeereeees 5, 6, 8, 13

California Democratic Party v. Jones, ~

ee ee riniiiesinisininicnisitictebietsncniuininialataiiaiai 12

Duncan v. McCall, 139 U.S. 449 (1891) .......ccceccceceeeseeeeee 11

FEC v. Colo. Republican Fed. Campaign

CE, Fee rs Oe ED icinisticieesnrseansectisiniisisveiiinitiais 12,17

FEC v. Nat'l Right to Work Comm.,

A a SD vtitetinsinistnenesintiinensdouiscRbisnsanianianeniiin 15

First Nat'l Bank of Boston v. Bellotti,

ER ae Ce a esenciisasienpcsnitiinieitiniiciieaotaniiegpiabieiiiaiin 7, 13

Gregory v. Ashcroft, 501 U.S. 452 (1991) ...ccccesceseecesseeeees 9

Grutter v. Bollinger, 539 U.S. 306 (2003).........:ccccceseeeeee 5

McConnell v. FEC, 540 U.S. 93 (2003)..........::cccsseeeeeeeenes 7,12

Minor v. Happersett, 88 U.S. (21 Wall) 162

Gr ccichecienchihisindeineitneinaitm casualties 9

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

PIE scsineneccnnnuietinpediensenediiutionnsveasinanbapiteinenanamsnuiuieitnnabigein 10

Nixon v. Shrink Mo. Gov't PAC, 528 U.S. 377

aii sciviciniatsisaptiacinctnnnctsapainiciiseiceiiasipinidipanatiiniieteaeniiliantin 8,15

Reynolds v. Sims, 377 U.S. 533 (1964)......:ccccscccecseeeeeereees 11

Sugarman v. Dougall, 413 U.S. 634 (1973) ........cccceeseeeees 7)

oil

TABLE OF AUTHORITIES—Continued

Whitney v. California, 274 U.S. 357 (1927) -seccccssesessen

CONSTITUTION:

i a al

STATUTES:

Federal Election Campaign Act Amendments of

1974, Pub. L. No. 93-443, 88 Stat. 1263..................

Vt. Stat. Ann. tit. 17, §§ 2801 ef Seq... cceesceseeeeeees

Se i A, MINOT disci cssetatuidsiasepeburistiicmnnpsinssinehtonionte

RULE:

SERS ae ar Cn a a NE eI

OTHER AUTHORITIES:

Alexis de Tocqueville, ] Democracy in America

(Phillips Bradley ed., Vintage Books 1945) ............

American Political Science Ass’n.: Task Force

on Inequality and American Democracy,

American Democracy in an Age of Rising

Inequality, at http://www.apsanet.org (2004) ..........

Amy Gutmann & Dennis Thompson,

Why Deliberative Democracy? (2004) ........:cc000000+

David Schultz, Proving Political Corruption:

Documenting the Evidence Required to

Sustain Campaign Finance Reform Laws,

18 Rev. Litig. 85 (1999)......ccccsccccccessscsssssssssseseseesse

Erwin Chemerinsky, Cases Under the

Guarantee Clause Should be Justiciable,

65 U. Colo. L. Rev. 849 (1994) oo. ccceeseeseeenenes

vee 4

—

iV

TABLE OF AUTHORITIES—Continued

Page

Letter from Thomas Jefferson to Joseph C.

Cabell (Feb. 2, 1816), in / The Founders’

Constitution 142 (Philip B. Kurland &

Lori Ringhand, Defining Democracy: The

Supreme Court's Campaign Finance

Dilemma, 56 Hastings L.J. 77 (2004) ........cccceeeceeseeeees 9

Mark C. Alexander, Campaign Finance Reform:

Central Meaning and a New Approach,

60 Wash. & Lee L. Rev. 767 (2003)............ccccccceeeeees 8

Robert D. Putnam, Bowling Alone (2000) ............c000e0e000+ 14

Stephen Breyer, Our Democratic Constitution,

FE Wee BAe Lacs BROUs BOP IOED ctactnscdninscnsasescseubibncesnia’ 18

The Federalist No. 14 (James Madison)

CRIN TAGOTEINE OE... FE) cccsesensincedccinnennicssisnienacctnininl 11

The Federalist No. 7] (Alexander Hamilton)

(Clinton Rossiter ed., 1961)..............c0cecsccssssroressesersess 12

Theda Skocpol, Advocates Without Members:

The Recent Transformation of American

Civic Life in Civic Engagement in American

Democracy (Theda Skocpol & Morris P.

+. & ___ Renee ener 14

U.S. PIRG Education Fund, Raising the Limits:

A Bad Bet for Campaign Finance Reform

COTE ITED ncvcicionsnipdsipenctinsetebiieitaicseabnstinenmnunindiaietemelanminae 16

U.S. PIRG, The Case for Limits on Campaign

Expenditures, at

http://www.buckbuckley.com

CAGE WESEING FU. Tq DUM cccccscccsicctsisinutaciianianiatintaianian 18

IN THE

Supreme Court of the Anited States

NEIL RANDALL, ef ai.,

Petitioners/Cross-Respondents,

Vv

WILLIAM H. SORRELL, ef al.,

Respondents/Cross-Petitioners,

VERMONT REPUBLICAN STATE COMMITTEE, ef ai.,

Petitioners,

V

WILLIAM H. SORRELL, ef ai.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the Second Circuit

BRIEF FOR AMICI CURIAE

THERESTOFUS.ORG, U.S. PIRG, COMMON CAUSE,

THE LEAGUE OF WOMEN VOTERS, AARP, PUBLIC

CAMPAIGN, CITIZENS FOR RESPONSIBILITY AND

ETHICS IN WASHINGTON, AND THE UNION FOR

REFORM JUDAISM IN SUPPORT OF THE

RESPONDENTS-CROSS-PETITIONERS

STATEMENT OF INTEREST OF

AMICI CURIAE

The amici curiae are organizations that advocate for

campaign finance reform, including limits on campaign

spending, in order to foster greater public participation in

matters of government, increase electoral competition, and

reduce the appearance of impropriety in the electoral

2

process.. The current perception “in state and local

government that all spending limits are per se

unconstitutional presents a significant barrier to their work in

engaging tne public in the reform process.

TheRestofUs.org is a nonprofit, nonpartisan organization

whose mission is to reduce the influence of money on the

political process. TheRestofUs.ors «orks to inform and

educate mainstream Americans, inc uding the citizens of

Vermont, about the role of large donors in campaigns and the

tools available to citizens and governments to create a more

level playing field.

The National Association of State PIRGs (U.S. PIRG)

represents state Public Interest Research Groups (PIRGs) at

the federal level, including in the federal courts. In addition

to sharing the interests of Vermont PIRG, other state PIRGs

have an interest in enacting spending limits in their states.

Common Cause is a nonprofit, nonpartisan citizens

Organization. With approximately 250,000 members and

supporters nationwide and active members and volunteers in

every state, including Vermont, Common Cause’s mission is

to ensure open, accountable, and effective government at the

federal, state, and local level. Common Cause advocated for

the spending limit provisions of the Federal Election

Campaign Act Amendments of 1974, Pub. L. No. 93-443, 88

Stat. 1263, and participated in the defense of FECA before

the Supreme Court.

' Letters of consent from all parties have been filed with the

Clerk of the Court. No counsel for any party authored this brief in

whole or in part, and no person or entity, other than the amici

curiae and their members or their counsel, made a monetary

contribution to the preparation or submission of this brief. S. Ct.

Rule 37.6.

3

The League of Women Voters of the United States is a

nonpartisan, community-based political organization that

encourages the informed and active participation of citizens

in government and influences public policy through

education and advocacy. Founded in 1920 as an outgrowth

of the struggle to win voting rights for women, the League is

organized in more than 850 communities and in every state,

including Vermont, with more than 150,000 members and

supporters nationwide. One of the League’s primary goals is

to promote an open governmental system that is

representative, accountable, and responsive, that protects

individual liberties established by the Constitution, and that

assures Opportunities for citizen participation in government

decision making. The League has been a leader in seeking

campaign finance reform at the state, local, and federal levels

for more than two decades.

AARP is a nonpartisan, nonprofit membership organization

with more than thirty-six million members age 50 and older

that is dedicated to addressing the needs and interests of older

Americans. AARP neither supports nor opposes candidates

for public office. Nor does it contribute money to candidates

for public office or to political parties. AARP educates the

public about issues of concern to older Americans and their

families through voter guides, issue workshops, candidate

forums, and advocacy issue ads. AARP has long advocated

that political campaigns focus on discussion of matters

important to all Americans. AARP Vermont was active in

supporting enactment of Vermont Act 64, the statute in

question in this case. The legality of state limits on

campaign expenditures affects AARP’s interest — and that

of AARP members across the nation — in protecting the

integrity of our election processes.

Public Campaign is a nonprofit, nonpartisan organization

dedicated to campaign reform that aims to reduce the role of

4

big special-interest money in American politics. Public

Campaign works with a range of organizations, including

some in Vermont, whose members are not fairly represented

under the current campaign finance system in many states.

Citizens for Responsibility and Ethics in Washington

(CREW) is a nonprofit, nonpartisan organization that,

through litigation, focuses Americans, including the citizens

of Vermont, on unethical conduct on the part of government

officials. CREW’s aim is to encourage government officials

to act in the public interest.

The Union for Reform Judaism, founded in 1873, is the

central body of the Reform Movement in North America

including 900 congregations encompassing 1.5 million

Reform Jews. Deuteronomy 16 teaches: “You shall not judge

unfairly: you shall know no partiality; you shall not take

gifts, for gifts blind the eyes of the discerning and upset the

pleas of the just.” The Talmud Tractate Kethuboth notes,

“What is the reason [for the prohibition against taking] a gift?

Because as soon as a man receives a gift from another he

becomes so well disposed towards him that he becomes like

his own person, and no man sees himself in the wrong.” For

Reform Jews, these ancient lessons resonate today in

witnessing repeated examples of the intentional or

unintentional corrupting influence of money on our public

policy process.

SUMMARY OF ARGUMENT

Under the Constitution’s Guarantee Clause, states are

obligated to maintain a republican form of government — a

- government of the people. In an effort to meet this

obligation, the Vermont legislature enacted Act 64 in 1997,

that, among other things, limited the amount of money state

candidates can spend on their campaigns. See Vt. Stat. Ann.

tit. 17, §§ 2801 et seg. After a series of appeals ending in the

5

Second Circuit’s denial of a rehearing en banc, the Second

Circuit recognized that Buckley v. Valeo, 424 U.S. 1 (1976),

did not impose a sweeping “fatal in fact” strict scrutiny to all

forms of expenditure limits.

Buckley’s review of expenditure limits recognized that

those limits could be justified by interests beyond the effort

to eliminate corruption in elections. One interest that weighs

strongly in favor of reform is the state’s interest in preserving

its republican form of government. The underlying principle

of a republican government is that citizens have the right and

responsibility to elect representatives to govern them. The

representatives, in turn, must act in the interest of those they

represent. This relationship thrives when representatives

deliberate upon and determine the collective best interest.

The republican form of government also depends on public

participation in elections and in communicating with their

representatives, which enhances the legitimacy of

government and improves public policy by fostering the

involvement of citizens with a wide range of perspectives.

In enacting expenditure limits, Vermont understood the

importance of deliberation and public participation in

preserving a republican form of government. These

important traditions have long been part of Vermont’s

political culture. Act 64’s expenditure limits promote

deliberation and public participation by preventing corruption

and its appearance; increasing the competitiveness of

elections and the number of candidates who can run for

elected office; creating more time for deliberation among

elected officials; and fostering contact between voters and

candidates.

? The Court has acknowledged that strict scrutiny should not be

“*strict in theory, but fatal in fact.”” See, e.g., Grutter v. Bollinger,

539 U.S. 306, 326 (2003) (citation omitted).

6

Amici respectfully request that the Court defer to

Vermont’s efforts to maintain a republican form of

government through promoting déliberation and

participation, and affirm the Second Circuit’s decision with

respect to Vermont’s campaign expenditure limits.

ARGUMENT

I. BUCKLEY DOES NOT PRECLUDE STATE

REGULATION OF CAMPAIGN EXPENDITURES.

This Court’s decision in Buckley v. Valeo, 424 U.S. 1,

expressly left open the possibility that campaign expenditure

limits, when sufficiently tailored, can pass constitutional

muster. The Second Circuit recognized this and held below

that state interests other than the avoidance of corruption

balance against, and may indeed outweigh, competing

interests. See Pet. App. 136a-146a. One interest strongly

supporting spending limits — an interest unquestionably

contemplated by the Constitution — is the protection of a

state’s republican form of government. That interest weighs

dispositively in favor of sustaining the limits at issue in this

case and affirming the holding of the Second Circuit.

In Buckley, this Court examined the Federal Election

Campaign Act (“FECA”) reforms Congress passed to prevent

corruption and the appearance of corruption. Buckley, 424

U.S. at 26-27. Applying strict scrutiny, the Court determined

that the federal government had not demonstrated a

sufficiently important interest to justify FECA’s expenditure

limits. See id. at 55-58. On that record, the Court held that

“{njo governmental interest that has been suggested is

sufficient to justify . . . [the] campaign finance expenditure

limitations.” /d. at 55 (emphasis-added). But in so holding,

the Court recognized that a sufficiently strong interest in

campaign expenditure limits could outweigh free speech

concerns. See Pet. App. | 13a-1 18a.

7

Buckley related solely to a federal regulation of federal

candidates. The Court has never considered the

constitutionality of a state's regulation of expenditures of

candidates for state office for the purpose of protecting the

republican form of state government. The Court’s analysis

of Vermont’s expenditure limits should take into account that

these limits represent a state's conscious and considered

effort to bolster deliberation and political participation in

order to prevent the erosion of its republican government.

This distinction from Buckley changes the constitutional

calculus in at least two ways. First, the Constitution’s

affirmative protection of states’ republican forms of

government counsels deference when the states enact.

protective measures of their own. Second, states have a

significant interest in preserving their republican forms of

government through enhanced deliberation and political

participation.

Il. VERMONT HAS A VITAL INTEREST IN

PRESERVING ITS REPUBLICAN FORM OF

GOVERNMENT THROUGH AN ELECTION

PROCESS THAT ENCOURAGES PUBLIC

INVOLVEMENT AND DELIBERATION.

Vermont has an undeniable right to preserve the integrity

of its own government and electoral system. See First Nat'l

Bank of Boston v. Bellotti, 435 U.S. 765, 788-789 (1978)

(“[P]reserving the integrity of the electoral process . . . [is an]

interest{] of the highest importance.”); accord McConnell v.

FEC, 540 U.S. 93, 136-137 (2003) (considering competing

interests such as the integrity of the electoral process).

Vermont designed its expenditure limits to (1) “bolster voter

interest and engagement in elective politics” and (2)

“enhance the quality of political debate and voters’

understanding of the issues.” Pet. App. 127a. These

interests are themselves safeguarded by the Constitution