Opposition Brief — City of Albuquerque v. Homans

No. 04-413

Jn The

Supreme Court of the Gnited States

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THE CITY OF ALBUQUERQUE,

a municipal corporation, et al.,

Petitioners,

VS.

RICK HOMANS and SANDER RUE,

~ Respondents.

,

v

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

2

vv

RESPONDENT RICK HOMANS’

BRIEF IN OPPOSITION

¢

KELEHER & MCLEOD, P.A.

THOMAS C. BIRD

Counsel of Record

RICHARD L. ALVIDREZ

Post Office Box AA

Albuquerque, NM 87103

(505) 346-4646

Counsel for Respondent Rick Homans

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Did the Tenth Circuit correctly strike down the

campaign spending limit imposed on Albuquerque munici-

pal elections on the grounds that all of the interests

offered by the City in defense of the limit had been consid-

ered and rejected in Buckley v. Valeo, 424 U.S. 1 (1976)

and that the City failed to present sufficient evidence to

justify the spending limit?

2. Does a split between the Tenth and Second Cir-

cuits exist, where neither court has treated Buckley as an

absolute prohibition against campaign spending limits?

3. Should this Court consider whether preserving

the time of officeholders is a compelling state interest,

where the campaign spending limit imposed by the City

was not narrowly tailored to serve such an interest and

the City presented almost no evidence of the amount of

time City officeholders spent on campaign fundraising?

4. Should the Court overturn Buckley?

il

TABLE OF CONTENTS

RELEVANT AUTHORITY INVOLVED.........................

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A.

B.

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THE TENTH CIRCUIT CORRECTLY AP-

PLIED THE BUCKLEY STRICT SCRUTINY

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THE CITYS PETITION INCORRECTLY

POSITS A SPLIT BETWEEN THE TENTH

AND SECOND CIRCUITS CONCERNING

WHETHER BUCKLEY ABSOLUTELY PRO-

HIBITS CAMPAIGN SPENDING LIMITS.......

THE ALBUQUERQUE ORDINANCE, AND

THE RECORD OFFERED IN ITS DEFENSE,

PROVIDE A POOR SETTING FOR CONSID-

ERING WHETHER PROTECTING THE

TIME OF OFFICEHOLDERS FROM THE

BURDENS OF FUNDRAISING IS A COM-

PELLING STATE INTEREST...........00..........08

THE COURT SHOULD NOT OVERTURN

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TABLE OF AUTHORITIES

Page

CASES:

Agostini v. Felton, 521 U.S. 203 (1997) seccccccccccceceeeeeccce... 16

Air Courier Conf. of America v. American Postal

Workers Union, AFL-CIO, 498 U.S. 517 (1991)............ 15

Board of Airport Comm’rs v. Jews for Jesus, Inc.,

Fs CBOE) vseiisacvsnscaresenessrrseessonycancovsvavsvesecoessnecs 15

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

Colorado Republican Fed. Campaign Comm. v. Fed.

Election Comm’n, 518 U.S. 608 (1996).......................... 13

Denver Area Educ. Telecomm’s Consortium, Inc. v.

Pr aey SPAE OI, TAT (ROU) ince cesscssersnssoncscasssnsceseeccessoosess 11

Dickerson v. United States, 530 U.S. 428 (2000).............. 17

Grutter v. Bollinger, 539 U.S. 306 (2003) .........ccccccccccc---. 11

Homans v. City of Albuquerque, 264 F.3d 1240

SS PRE MOE ia descincesskiesenepesanicehasicecexesunhiosuscosennadcevecssecee 4

Homans v. City of Albuquerque, 366 F.3d 900 (10th

eh hanes cet gah ie/e cece csr be cose mane passim

Hubbard v. United States, 514 U.S. 695 (1995)................ 16

Landell v. Sorell, 382 F.3d 91 (2d Cir. 2004) (peti-

tion for rehearing pending) ..0.0.........cecccccsccecccecceees passim

McConnell v. Fed. Election Comm’n, 540 U.S. 93

ee ME CO as aassciorssisossasesncssocesesenvsnonsvevscsanaseasosnocss 17

Staub v. City of Baxley, 355 U.S. 313 (1958) ...ccccccccceeeeee-. 15

State Oil Co. v. Khan, 522 U.S. 3 (1997).....00....000..0005000.. 16

United States v. Castillo, 140 F.3d 874 (10th Cir.

NN SU adie radical cst aa vada vans chokseacsdercnsatccdieneesicoaseccieccsaccs 9

lV

TABLE OF AUTHORITIES — Continued

Page

United States v. IBM, 517 U.S. 843 (1996) .........0.0........ 17

United States v. Salerno, 481 U.S. 739 (1987).................... 9

United States v. Virginia, 518 U.S. 515 (1996)................. 14

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JURISDICTIONAL STATEMENT

Mr. Homans concurs with the Statement of Jurisdic-

tion set out in the Petition of the City of Albuquerque (the

“City”). Pet. at 1.

a

RELEVANT AUTHORITY INVOLVED

Mr. Homans concurs with the City’s recitation of

Constitutional Provisions and Statutes Involved, Pet. at 1,

except that it omits the portion of the First Amendment

protecting the associational rights invoked by Mr.

Homans. (“Congress shall make no law ... abridging ...

the right of the people to assemble... . ”).

s

STATEMENT OF THE CASE

A. Relevant Facts

The City enacted Article XIII, Section 4(d) in 1974 as

part of a comprehensive restructuring of City government.

The restructuring entailed adoption of a new City charter,

creating a home rule government and replacing the

commissioner-manager system with a _ council-mayor

structure. Rue App. at 744-45. Albuquerque voters thus

approved the campaign spending and contribution limits

as part of a broad reorganization of Albuquerque’s City

government, not as a single item referendum. App. at 3.

The City’s Campaign spending limit was twice the

mayor’s salary, or $174,720, at the time of the 2001 City

election. App. at 3, 4. Violation of the spending limit

exposes a candidate to fires, removal from office, and

public reprimand. App. at 4.

As part of his mayoral campaign effort, Mr. Homans

launched a campaign of “Great Ideas for Albuquerque.”

Homans App. at 298. The Homans campaign included

such proposals as eliminating the gross receipts tax on

medical services to encourage healthcare providers to

remain in the City; restoration of the endangered Bosque

area adjacent to the Rio Grande; and a “311” telephone

line to provide citizens with assistance in dealing with

City departments and agencies, among other ideas. Id. at

298-99. In addition, Homans procured office space and

hired campaign workers to assist in his campaign for

mayor. Id. at 299. Homans’ campaign for mayor was his

first attempt at elected public office. Jd. at 298. Homans’

initial polling indicated that only two percent (2%) of city

registered voters considered voting for him as mayor. /d.

In order to run a successful political campaign that

allows a candidate to get his or her message out to the

over 220,000 registered voters in the City, a candidate

-needs to maintain a sustained frequency rating for his or

her campaign message with the voters. Jd. at 302. A

frequency rating is the repeated exposure of the candi-

date’s message to the electorate. Id. An effective media

campaign with a sufficient frequency rating to reach a

substantial number of registered voters in the City re-

quires an integrated approach to advertising that neces-

sarily involves the use of such media as television, radio,

billboards, print, internet and other media. Jd.

The cost for a single, one-page newspaper advertise-

ment in a city newspaper of general circulation is between

$5,000 and $9,000. Jd. The cost for a full-color advertise-

ment can be even more. /d. A single billboard advertise-

ment along one of the two interstate highways running

through the City costs between. $2,500 and $5,000 per

3

month, depending on the location and the size of the

billboard. Id. A single direct mailing to the over 220,000

voters in the City costs between $50,000 and $80,000 for

the mailer and postage. Jd. at 303. An average quality

political television commercial costs between $2,500 to

$10,000 for production of the commercial alone. Id. Airing

a commercial for a thirty-second spot during a news

broadcast on a local city television station costs between

$1,000 and $1,500 per showing. Jd. An effective television

campaign designed to reach the more than 220,000 regis-

tered voters in the City would need to run at least twelve

(12) continuous weeks in order to maintain an adequate

frequency rating with voters. Id. An effective television

campaign costs between $40,000 to $50,000 per week. Jd.

The cost of a television campaign alone can run between

$480,000 to $600,000. Id. The cost of this media exposure

can easily exceed the $174,720 spending limit imposed by

the City Charter. Id.

Significantly, the suspension of the campaign spend-

ing limits appeared to have no harmful effect on the 2001

mayoral election in Albuquerque, as measured by the

yardsticks the City’s experts employed. The City’s experts

pointed to Albuquerque’s zero percent (0%) incumbency

success rate as evidence that spending limits have im-

proved Albuquerque’s elections. Jd. at 317. In the 2001

election, the incumbent mayor, Jim Baca, finished fourth

in a field of eight candidates. App. at 54.

The City also argued that the absence of spending

limits decreases voter turnout. The turnout for the Octo-

ber 2, 2001 election, however, was over 42% of registered

voters. Homans App. at 55, 61. The average turnout for

the period between 1989 and 1999 was about 35%. Id. A

4

significant increase in voter turnout thus accompanied

suspension of campaign spending limits.

The City’s experts also incorrectly predicted a large

spending gap between incumbents and challengers.

Homans App. at 322-324. In the 2001 election, two chal-

lengers (Mr. Chavez and Mr. Homans) raised and spent

more money than the incumbent. App. at 55.

Mr. Homans, the biggest spender in the 2001 election,

finished fifth in the mayoral race. Id. at 54. Mr. Schwartz

did not exceed the spending limit and finished second. /d.

at 54, 56. These simple, hard facts belie the City’s anec-

dotes and suppositions about the effects of spending limits

on electoral health in Albuquerque.

B. Procedure

Mr. Homans challenged the City’s campaign spending

limit in an action filed on August 1, 2001. App. at 4. Mr.

Homans sought and obtained a temporary restraining

order against enforcement of the limit. Jd. The trial court

later denied Mr. Homan’s motion for a preliminary injunc-

tion, but on September 6, 2001, the Court of Appeals for

the Tenth Circuit granted an injunction against the

enforcement of the limit pending review of the case on the

merits. App. at 4; Homans v. City of Albuquerque, 264 F.3d

1240, 1245 (10th Cir. 2001) (per curiam).

The district court granted Mr. Homans a permanent

injunction and declaratory relief on February 13, 2002.

App. at 4. The City appealed and the Tenth Circuit af-

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

(10th Cir. 2004). The City unsuccessfully sought rehearing

5

or rehearing en banc. App. 68-69. The City petitioned this

Court for a writ of certiorari on September 22, 2004.

4

REASONS FOR DENYING THE PETITION

The Homans court correctly rejected the City’s justifi-

cations for the campaign spending limit because this Court

considered and rejected them all (prevention of corruption

or the appearance of corruption, protection of officeholder

time from the burdens of fundraising, and promotion of

electoral competition) 28 years ago in Buckley v. Valeo, 424

U.S. 1 (1976). The Homans court wisely declined the City’s

invitation to retread the interests considered in Buckley.

In any event, all of the members of the Homans panel

agreed that the City had failed to present evidence suffi-

cient to sustain the spending limits under any of the

justifications it advanced.

The City seeks review principally on the argument

that a conflict between the Tenth and Second Circuits has

arisen concerning whether Buckley operates as a per se

constitutional bar to campaign spending limits. The

premise underlying this argument, however, is mistaken.

The Homans opinion repeatedly recognizes that, contrary

to Mr. Homans’ argument, Buckley was not a per se prohi-

bition against campaign spending limits. The Tenth and

Second Circuits agree on this point. The City’s attempt to

portray a split rests on a mischaracterization of the

opinion below.

The Tenth and Second Circuits do differ in their views

about whether protecting the time of officeholders is a

compelling state interest justifying campaign spending

limits. The Homans case offers a poor occasion for address-

ing this difference, however, because the City’s spending

6

limit imposes the same restriction on incumbents and

challengers and because the Homans record contains

virtually no evidence showing how much time City officials

spend raising campaign funds. The City’s spending limit

suffers from obvious “tailoring” defects because it does not

differentiate between incumbents and challengers, or even

between contributed money and a candidate’s own re-

sources.

Finally, the City has suggested no good reason for

overturning Buckley, particularly on the record presented

in defense of the City’s spending limits. Principles of stare

decisis weigh heavily against abandoning the wise balance

struck in Buckley.

I. THE TENTH CIRCUIT CORRECTLY APPLIED

THE BUCKLEY STRICT SCRUTINY STANDARD.

The Homans opinion represents a reasoned applica-

tion of the strict scrutiny standard required by Buckley.

Judge Tymkovich’s opinion, joined by Judge O’Brien (the

“majority opinion”), recognized that Buckley had already

rejected the prevention of corruption as a compelling

interest justifying campaign spending limits. App. at 32-

34. The majority opinion also rejected the two “new”

interests offered by the City — the state’s interest in

relieving officerholders from the burdens of fundraising

and the promotion of electoral competition. The Buckley

Court rejected these interests, or broader interests sub-

suming them.

First, the majority opinion concluded, unremarkably,

that since the federal government’s interest in preventing

corruption did not warrant the spending limits rejected in

Buckley, the City’s spending limit could not be defended on

an anti-corruption rationale. App. at 32-34. “There is no

basis to retreat from Buckley’s essential teaching that

campaign spending restrictions are not narrowly tailored

to further the governmental interest in reducing corrup-

tion.” App. at 34. Significantly, the majority opinion’s

analysis of the City’s anti-corruption argument begins by

acknowledging that strict scrutiny, while setting a high

standard, “does not establish a ‘per se’ restriction on

campaign spending schemes. ...” App. at 32.

Next, the majority opinion concluded that the City’s

purported interest in protecting officeholders (or candi-

dates) from the strain of fundraising was subsumed within

a broader interest rejected in Buckley, the “cost-control”

rationale. App. at 34-37. The rejection of a broad cost-

control justification for the spending limits addressed in

Buckley made addressing each of the subordinate argu-

ments put forth in that case unnecessary. App. at 36. In

any event, the Buckley record contradicts the City’s char-

acterization of the interest in preventing officeholders or

candidates from diverting time and energy to fundraising

as “new.” App. at 36. See also Landell v. Sorell, 382 F.3d

91, 188-189 (2d Cir. 2004) (Winter, J., dissenting) (petition

for rehearing en banc pending) (demonstrating that the

court of appeals and the Supreme Court in Buckley consid-

ered arguments based on the interest of protecting candi-

date and officeholder time).

The majority opinion also correctly determined that

the Buckley Court considered and rejected the argument

that spending limits are necessary to promote electoral

competition. App. at 39-41. The City argued that “cam-

paign spending poses a threat to [electoral] competition

because large incumbent war chests tend to discourage

serious challengers.” App. at 39. The majority opinion,

however, recognized that the Buckley Court had discarded

this rationale in concluding that “equalization of permissi-

ble campaign expenditures might serve not to equalize the

opportunities of all candidates but to handicap a candidate

who lacked substantial name recognition or exposure of

his views before the start of the campaign.” App. at 40

(quoting Buckley, 424 U.S. at 56-57).

The real substance of the majority opinion in Homans

was the recognition that the interests proferred by the

City were identical to, or subsumed within, the interests

addressed and rejected in Buckley. The majority opinion

thus cautioned against efforts, like the City’s arguments,

to repackage rationales the Buckley court had already

judged to be insufficient to support campaign spending

limits. See App. at 29 (noting that “we should be careful

not to credit attempts to reformulate arguments that the

Supreme Court rejected long ago.”); 35 (stating that Judge

Lucero’s approach could encourage additional attempts by

governments to limit political speech by artfully restating

the governmental interests rejected in Buckley). The

majority opinion differed from Judge Lucero’s analysis in

concluding that Buckley itself precludes recognition of the

reformulated interests urged by the City. App. at 41. Judge

Lucero concluded, on the other hand, that Buckley did not

foreclose consideration of the record the City presented,

but that the City’s evidence failed to show that the spend-

ing limit was necessary to further a compelling state

interest. Like the majority opinion, Judge Lucero’s analy-

sis expressly acknowledged that Buckley’s strict scrutiny

standard does not create a per se prohibition against

spending limits. App. at 11-12. Thus, none of the three

judges on the Homans panel regarded Buckley as an

9

absolute or per se condemnation of spending caps for

political campaigns.’

The majority opinion affirmed on the legal ground

that the City had not offered any justification for its

spending limit not already considered and rejected by the

Buckley court. Judge Lucero concluded that Buckley did

not foreclose consideration of the interests urged by the

City, but that the evidence the City presented failed to

satisfy the strict scrutiny standard imposed by Buckley.

The majority opinion agreed with Judge Lucero’s assess-

ment of the deficiencies in the City’s factual showing, but

determined that consideration of the facts was unneces-

sary, in light of the failure of the City to identify interests

different from those addressed in Buckley. In sum, the

Homans opinion arrived at the correct conclusion because

the City’s defense of its spending limit was factually and

legally inadequate.

’ Mr. Homans argued that the Buckley opinion created such a ban

because the Buckley court affirmed a successful facial attack on the

spending limits imposed by the 1974 amendments to the Federal

Electric Campaign Act. By definition, a facial challenge requires the

challenger to establish that “no set of circumstances exists under which

the {a]ct would be valid.” United States v. Castillo, 140 F.3d 874, 879,

n.3 (10th Cir. 1998) (quoting United States v. Salerno, 481 U.S. 739, 745

(1987)) (emphasis in original). The Homans court, however, did not

adopt this reasoning.

10

Il. THE CITY’S PETITION INCORRECTLY POS-

ITS A SPLIT BETWEEN THE TENTH AND

SECOND CIRCUITS CONCERNING WHETHER

BUCKLEY ABSOLUTELY PROHIBITS CAM-

PAIGN LIMITS.

The City’s principal argument for reviewing the

Homans opinion rests on the false premise that the Tenth

Circuit applied Buckley as if it created a per se barrier to

campaign spending limits. Pet. at 7 (“Judge Tymkovich’s

opinion ... viewed Buckley as an absolute bar to spending

limits regardless of the factual circumstances and legal

interests supporting the limits.”); at 11 (“The Tenth Circuit’s

ruling ... views Buckley as forever foreclosing the constitu-

tionality of [expenditure] limits,-improperly treating First

Amendment strict scrutiny as an automatic death knell for

expenditure limits.”) The City contrasts this purportedly

categorical interpretation with the Second Circuit’s reading

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

(petition for rehearing pending). Pet. at 11, 12, 13, 14, 16.

The City contends that the Tenth and Second Circuits have

thus disagreed on whether Buckley forecloses the possibility

that spending limits could be justified by compelling gov-

ernmental interests. Pet. at 2, 12.

As demonstrated above, the City’s characterization of

the Homans opinion is inaccurate. The majority opinion

and Judge Lucero’s opinion stressed repeatedly that

Buckley could not be viewed as an absolute prohibition

against spending limits. See, e.g., App. at 11 (Judge Lucero

disagreeing with appellees’ contention that Buckley im-

poses a per se ban on all candidate expenditure restric-

tions); at 29 (majority opinion agreeing that strict scrutiny

does not require automatic invalidation of governmental

regulations), at 30 (majority opinion agreeing “that the

11

Buckley Court did not adopt a per se rule against cam-

paign spending limits.”). Indeed, Judge Lucero’s opinion

and the majority opinion cited Grutter v. Bollinger, 539

U.S. 306 (2003), in support of the same proposition urged

by the City: that strict scrutiny is not “strict in theory, but

fatal in fact.” Compare App. at 11, 29 with Pet. at 16

(“strict scrutiny is still scrutiny, not a ‘straightjacket that

disables Government from responding to serious prob-

lems.’”) (quoting Denver Area Educ. Telecomm’s Consor-

tium, Inc. v. FCC, 518 U.S. 727, 741 (1996)). The Landell

opinion also makes precisely this point, using precisely the

language quoted in the Homans opinion. See Landell, 382

F.3d at 112 (“Indeed, the Supreme Court has been clear in

its rejection of the view that strict scrutiny is strict in

theory, but fatal in fact.”) (internal quotations and authori-

ties omitted).

The City’s portrayal of a split between the Second and

Tenth Circuits thus arises from a mischaracterization of

the Homans ruling. The majority opinion and Judge

Lucero’s opinion expressly disavowed the per se reading of

Buckley incorrectly attributed to them by the City. The

majority opinion instead conciuded, correctly, that the City

had offered no justifications for its campaign spending

limit not already passed upon in Buckley.

Ill. THE ALBUQUERQUE ORDINANCE, AND THE

RECORD OFFERED IN ITS DEFENSE, PRO-

VIDE A POOR SETTING FOR CONSIDERING

WHETHER PROTECTING THE TIME OF OF-

FICEHOLDERS FROM THE BURDENS OF

FUNDRAISING IS A COMPELLING STATE IN-

TEREST.

The Homans and Landell opinions do differ in their

assessment of whether preserving officeholders’ time from

12

the burdens of fundraising is a compelling state interest

which might justify spending limits. The majority opinion

in Homans concluded that this interest had been ad-

dressed and rejected in Buckley. App. at 34-39. Judge

Lucero concluded that, although the Buckley Court had

not weighed preservation of officeholder time as a possible

reason for spending limits, the evidence the City had

submitted was not sufficient to show that spending limits

are necessary to further this interest. App. at 23.

Obversely, the majority in Landell held that the

record in that case demonstrated that Vermont’s interest

in protecting the time of candidates and elected officials

from fundraising could justify spending limits. Landell,

382 F.3d at 124-125. Judge Winter, dissenting, recounted

at length the record from Buckley confirming that the

interest in reducing the burdens of fundraising on office-

holders was squarely presented to and considered by the

Court of Appeals and the Supreme Court in Buckley. 382

F.3d at 188 nn.24-27. This is the only significant difference

between the legal holdings of the Second and Tenth

Circuits.

The Homans case, however, offers a poor setting for

weighing (or reweighing) the sufficiency of the govern-

ment’s interest in preserving the time of officeholders.

First, the City’s campaign spending limit makes no

distinction between officeholders seeking reelection and

challengers. It imposes the same limit on both kinds of

mayoral candidates. In doing so, it disregards the signifi-

cant differences between the state’s interest in protecting

the time of an elected official, an officer of the state, and

in protecting the time of challengers. Judge Lucero’s

opinion, for example, emphasized the difference between

the City’s interest in protecting officeholders, as opposed

13

to challengers, from the burden of fundraising. App. at 22

(“the woes of poor challengers aside, such campaigns

distract officeholders from performing their official du-

ties.”) (emphasis in original). The majority opinion agreed

that the “woes of under-funded challengers and the dis-

tractions of officeholders are not the same,” but concluded

that “[b]oth concerns are, however, aspects of the broader

interest in controlling the costs of campaigns, an issue the

Buckley Court did consider and firmly reject.” App. at 35.

The statute at issue in Landell, Act 64, permitted

incumbents to spend only 85% (or 90%, in the case of

incumbent candidates for the General Assembly) of the

limit imposed on challengers. 382 F.3d at 99. This differen-

tial serves to neutralize the advantages incumbents often

enjoy from free media exposure. Jd. at 128. It also corre-

sponds with the state’s more significant interest in protect-

ing the time of its officers.

In contrast, the spending limit at issue in Homans

imposes the same spending restrictions on incumbents and

challengers. It thus improperly fails to account for the

differences between the state’s interest in preserving

officeholder time and in preserving a challenger’s time. It

instead imposes the same burden to accomplish very

different interests.

The City’s spending limit also fails to differentiate

between contributed monies and the candidate’s own

resources. “The central holding in Buckley is that spending

money on one’s own speech must be permitted[.]” App. at

31 (quoting Colorado Republican Fed. Campaign Comm. v.

Fed. Election Comm’n, 518 U.S. 604, 627 (1996) (Kennedy,

J., concurring in part and dissenting in part)). The state’s

interest in a spending limit obviously varies depending

14

upon whether a candidate uses contributed funds or his

own funds, and an officeholder whose own funds permit

him to finance a reelection campaign independently would

be free from the burdens of fundraising. This Court has

routinely struck down limitations on independent expendi-

tures by candidates. App. at 31. The spending limit there-

fore cannot be fairly characterized as “narrowly tailored”

to serve either an anti-corruption or preservation of time

interest. These “tailoring” defects detract significantly

from the defensibility of the spending limit.

The clear “tailoring” deficiencies in the City’s cam-

paign spending limit provide case-specific, narrow grounds

for affirming the rulings of the Tenth Circuit and the trial

court in this case. Apart from whether Buckley is a per se

ban against campaign spending limits, whether protection

of officeholder time is a compelling state interest, or

whether Buckley should be overruled, the City’s campaign

spending limit is plainly an exercise in overkill. It over-

shoots anti-corruption interests by imposing the same

spending limit on contributed funds as it imposes on a

candidates’ own money. It over-protects any interest in

preserving the time of officeholder by imposing the same

limit on challengers and incumbents. In light of the pre-

Buckely origins of the City’s campaign spending limit,

satisfaction of the “narrow tailoring” requirement imposed

by Buckley would have been a lucky guess. The City’s legal

and factual justifications for the campaign spending limit,

and its scope, are necessarily post hoc. See, e.g., United

States v. Virginia, 518 U.S. 515, 533 (1996) (“The justifica-

tion must be genuine, not hypothesized or invented post

hoc in response to litigation.”).

In circumstances such as these, consideration of the

tailoring problems in the City’s spending limit would

15

wisely avoid the broader constitutional issues this case

presents. See, e.g., Board of Airport Comm’rs v. Jews for

Jesus, Inc., 482 U.S. 569, 573-574 (1987) (holding that

overbreadth of a resolution banning “First Amendment

activities” at Los Angeles International Airport obviated a

decision about whether the airport was a public forum).

Principles of judicial restraint favor resolution of constitu-

tional issues on the narrowest possible grounds. See, e.g.,

Air Courier Conf. of America v. American Postal Workers

Union, AFL-CIO, 498 U.S. 517, 531 (1991) (Stevens, J.,

concurring). “The Court has long insisted ... on keeping

constitutional adjudication, when unavoidable, as narrow

as circumstances will permit.” Staub v. City of Baxley, 355

U.S. 313, 330 (1958) (Frankfurter, J., dissenting). Regard-

less whether the City has compelling interests in prevent-

ing corruption or in preserving officeholder time, the City’s

spending limit is too broad to pass the “narrowly tailored”

test.

Furthermore, the record in this case contains scant

evidence relating to the City’s proferred interest in pre-

serving the time of officeholders. The City cites the testi-

mony of only two City officeholders, former Mayor Jim

Baca and former Council Member Dede Feldman. Pet. at

22. Former Mayor Baca recounted his experience of being

“forced to spend three hours every day making fundraising

phone calls.” Pet. at 22. Former Mayor Baca does not

disclose, however, whether he spent three hours per day

fundraising for a period of several weeks, for months, or

for only a few days. Ms. Feldman’s testimony is even less

helpful. She merely pointed out that, as a state senator not

subject to spending limits, she “spent a lot more time

fundraising” than she did as a City Council candidate. Pet.

at 22.

16

The magnitude of the City’s interest in protecting the

time of officeholders necessarily bears some relation to

what the evidence shows about the time City officeholders

spend on fundraising. Yet, the City failed to provide such

evidence.

The breadth of the City’s spending limit and the

factual record offered in support of it thus make this case

an inadequate laboratory for testing the City’s interest in

protecting the time of officeholders from fundraising. In

contrast, the record submitted in Landell in support of Act

64 appears to offer a much more suitable environment for

such a test. See Landell, 382 F.3d at 121-124 (describing

some of the “powerful evidence” of time pressures imposed

by fundraising on candidates, including officeholders). The

Homans opinion is not the right case for undertaking an

analysis of the purportedly “new” state interest in protect-

ing the time of officeholders, even assuming such an

interest is truly new.

IV. THE COURT SHOULD NOT OVERTURN

BUCKLEY V. VALEO.

The doctrine of stare decisis protects the legitimate

expectation of a society living under the law. Hubbard uv.

United States, 514 U.S. 695, 716 (1995) (Scalia, J., concur-

ring). The doctrine reflects “a policy judgment that in most

matters it is more important that the applicable rule of

law be settled than that it be settled right.” State Oil Co. v.

Khan, 526 U.S. 3, 20 (1997) (quoting Agostini v. Felton,

521 U.S. 203, 235 (1997)) (internal quotation marks

omitted). Even in constitutional cases, the doctrine is so

influential that this Court has always required a depar-

ture from precedent to be supported by some special

17

justification. Dickerson v. United States, 530 U.S. 428, 443

(2000); United States v. IBM, 517 U.S. 843, 856 (1996).

The City offers no special justification for disregarding

stare decisis and discarding Buckley. The Buckley ap-

proach has proven adaptable and flexible by permitting

governments to impose contribution limits, disclosure

requirements, and other measures promoting electoral

health, while respecting the rights of political candidates

to spend the money required to express their political

views. As the Homans court noted “Buckley’s strong

affirmation of the free speech rights associated with

campaign spending has remained essentially untouched

for nearly thirty years.” App. at 29 (citing McConnell v.

Fed. Election Comm’n, 540 U.S. 93, 124 S. Ct. 619, 655

(2003)). The central holding in Buckley on campaign

spending limits has “stood the test of time, both from

judicial tinkering and legislative onslaught.” Id. The City

cannot fault the wise constitutional balance struck in

Buckley between the freedoms essential to the proper

operation of our political system and the state’s interest in

preventing corruption, or its appearance, in the election

process.

18

CONCLUSION

The Court should deny the City’s petition.

Respectfully submitted,

KELEHER & MCLEOD, P.A.

THOMAS C. BIRD

RICHARD L. ALVIDREZ

Post Office Box AA

Albuquerque, N.M. 87103

(505) 346-4646

(505) 346-1370 (fax)

Counsel for Respondent

Rick Homans