Amicus Curiae Brief — City of Albuquerque v. Homans

| Supreme Court US.

() OCT 25 2004

No. 04-413 OFFICE OF THE CLERK

In The |

Supreme Court Of The United States

4

THE CITY OF ALBUQUERQUE,

a municipal corporation, et al.,

Petitioners

¥.

RICK HOMANS and SANDER RUE,

Respondents

¢

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

TENTH CIRCUIT

+

BRIEF OF THE STATES OF CONNECTICUT,

ARIZONA, COLORADO, IOWA, KENTUCKY,

MARYLAND, MINNESOTA, NEW MEXICO,

OKLAHOMA, VERMONT AND WISCONSIN, AS AMICI

CURIAE IN SUPPORT OF THE PETITIONERS

+

* RICHARD BLUMENTHAL

ATTORNEY GENERAL

OF CONNECTICUT

Gregory T. D'Auria

Associate Attorney General

Jane R. Rosenberg

Assistant Attorney General

Office of the Attorney General

* Counsel of Record 55 Elm Street, P.O. Box 120

(Additional counsel Hartford, CT 06141-0120

_on inside cover) (860) 808-5020

Printed by

Brescia’s Printing Services, Inc.

66 Connecticut Boulevard

East Hartford, CT 06108

528-4254 .

eT ee ee ee eS

TERRY GODDARD

Attorney General of

Arizona

1275 West Washington

Phoeniz, AZ 85007

KEN SALAZAR

Attorney General of

Colorado

1525 Sherman St., 7" FI.

Denver, CO 80203

THOMAS J. MILLER

Attorney General of Iowa

Hoover Building, 2d Floor

1305 E. Walnut

Des Moines, IA 50319

GREGORY D. STUMBO

Attorney General of

Kentucky

State Capitol, Suite 118

Frankfort, KY 40601

J. JOSEPH CURRAN, JR

Attorney General of

Maryland

200 St. Paul Place

Baltimore, MD 21202

MIKE HATCH

Attorney General of

Minnesota

102 State Capitol

75 Rev. Dr. Martin Luther

King, Jr. Blvd.

St. Paul, MN 55155

PATRICIA A. MADRID

Attorney General of

New Mexico

P.O. Drawer 1508

Sante Fe, NM 87504-1508

W.A. DREW EDMONDSON

Attorney General of

Oklahoma

2300 N. Lincoln Bivd.,

Suite 112 ‘

Oklahoma City, OK 73105

WILLIAM H. SORRELL

Attorney General of

Vermont

109 State Street

Montpelier, VT 05609

_ PEGGY A. LAUTENSCHLAGER

Attorney General of

Wisconsin

114 East State Capitol

Madison, WI 53707

TABLE OF CONTENTS

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~

INTEREST OF THE AMICI CURIAE............... I

REASON FOR GRANTING THE WRIT............ 2

THE UNCERTAINTY CREATED BY

THE TENTH CIRCUIT’S RULING,

IF NOT RESOLVED, WILL

LIMIT THE STATES ‘ABILITY TO

EXPERIMENT WITH CAMPAIGN

FINANCE REFORM MEASURES

INVOLVING EXPENDITURE

LIMITATIONS AND THEREBY

UNDERMINE THE STATES’ VITAL

ROLE AS THE “LABORATORIES OF

EL iiss kUbinlaawenebnsianbhsckecenseescuse 2

A. The Compelling Interests Cited

By The City Of Albuquerque In

Defense Of Its Charter Provision

Limiting Campaign Expenditures

Are Interests Shared By States

cele c iu Niapbadadvakassnendixeseess 3

B. The Problems That Undermine

The Current Campaign Finance

System Have Been The Catalysts

For A Wide Range Of State

Finance Reform Efforts.....................05. 5

in Reform Efforts To Date Have

Not Solved The Problems

That Undermine The Current -

Campaign Finance System..................... 7

D. The Conflict Between The Tenth

And The Second Circuit, If Not

Resolved, Will Jeopardize

The States’ Ability To Experiment

With Reform And Fulfill Their

Crucial Role As The

Laboratories of Democracy..................... 9

IG cx ssn ch chisensdennenracoucacosuanacnuee 11

li

TABLE OF AUTHORITIES

CASES PAGE

Arizona v. Evans, 514 U.S. 1 (1995)...............2.4 2

Buckley v. Valeo, 424 U.S. 1 (1976)............... 1,4,9, 10

Homans v. City of Albuquerque,

366 F.3d 900 (10" Cir. 2004)...........000002. 3, 10

Landell v. Sorrell, No. 00-9159(L),

2004 WL 1837394

(2d Cir., Atag, 15, FIOF)...ccccccvesess 1, 4, 6, 8, 10

New State Ice Co. v. Liebmann,

FEF Cie SURE CRI bkbintaestccnesadscnsebern yA

Reeves, Inc. v. Stake,

OT Uae ee LE sks cannes dccciscncchans 2

Rosenstiel v. Rodriquez,

101 F.3d 1544 (8" Cir.1996),

cert. denied, 520 U.S. 1229

CPDIET Bavedkevesssucauspasauseriwacseneiacnssaeanl 4

State v. Alaska Civil Liberties Union,

978 P.2d 597 (Alaska 1999),

cert. denied, 528 U.S. 1153

Vannatta v. Keisling, 151 F.3d 1215

(9" Cir.1998), cert. denied,

S25 UB. WUE III a osc vscsciconiscckesiexcoces 6

Vote Choice, Inc. v. DiStefano,

ee Ti a | ements 4

iil

STATUTES AND CONSTITUTIONS

Alaska Senate Bill 191 (1996).....................000 6

Colo. Const. Art. XXVIII (2003).................0008 4, 5,6

Me. Rev. Stat. Ann., Title 21-A,

COI Fak dncccetnnavasrerssscateeeees 6

Oregon 1994 Ballot Measure 6..................00000 8s 6

1997 Vt. Laws Pub. Act 64,

codified at Vt. Stat. Ann. tit. 17,

CHRD. FP BS BOO k ~ GW se ese cisanssasisigensan 3, 5,6

OTHER AUTHORITIES

Adam Lioz, U.S. PIRG Education

Fund Report, “The Role of

Money in the 2002

Congressional Elections,”

(June, 2003)........ en ort 5

Center for Responsive Politics,

“A National Survey of the

Public’s Views on How

Money Impacts our

Political System,” conducted

by the Princeton Survey

Research Associates

(PND, TOT iassisxistichisewedameeeeee 5

Derek Cressman, U.S. PIRG Education

Fund Report, “Lone Star

Election Laws,” (July, 2000).................. 8,9

iV

Ronald Michaelson, “Trends in

Campaign Financing,”

The Book of States, Vol. 35

S. Loffredo, “Poverty, Democracy

and Constitutional Law,”

141 U. Pa. L. Rev. 1277

Pee ince chivevsdcintibndcecanbveieecneesnccantes 5

INTEREST OF THE AMICI CURIAE

The amici curiae State of Connecticut and the States

identified on the cover (the “Amici States”), by and through

their attorneys general, respectfully submit this brief in

support of the City of Albuquerque’s Petition for a Writ of

Certiorari. |

The Amici States have a vital interest in this case

because it will directly impact their ability to enact their

own campaign finance reforms. Since 1976, when this

Court struck down candidates’ campaign spending limits in

Buckley v. Valeo, 424 U.S. 1 (1976), the Amici States have

seen an astronomical increase in campaign spending by

political candidates that has fueled a generally held

perception that money buys power. They have further

found that the intense pressure to raise funds negatively

impacts the time that elected officeholders have available to

serve the public and that, for an increasing number of their

citizens, running for office is a financial impossibility.

To combat these extremely serious problems, which

threaten to undermine the foundation of our democracy and

have no easy solution, the Amici States, like the City of

Albuquerque, have enacted, or would like to enact, a wide

variety of campaign finance reforms, including reforms that

limit candidate expenditures. As the “laboratories of

democracy,” the States’ experimentation in this regard is

crucial if viable solutions to this national crisis are

ultimately to be found.

The States’ ability to experiment with reform is

jeopardized, however, by the cloud of uncertainty that has

been created by the conflict between the Tenth Circuit’s

ruling in this case, which effectively held that Buckley v.

Valeo, 424 U.S. 1 (1976), imposed a per se ban on

campaign expenditure limits, and the Second Circuit’s

ruling in Landell v. Sorrell, No. 00-9159(L), 2004 WL

1837394 (2d Cir., Aug. 18, 2004), which reached precisely

the opposite conclusion. Because the resulting uncertainty

over the constitutionality of any campaign finance reform

measure involving expenditure limitations, if not resolved,

will effectively foreclose all state reform involving such

limitations and chill state campaign finance reform efforts

in general, the Amici States respectfully urge this Court to

grant the City’s petition for a writ of certiorari in order to

clarify this area of the law, reverse the Tenth Circuit’s

ruling, and permit the States to experiment with much-

needed campaign finance reform.

REASON FOR GRANTING THE WRIT

THE UNCERTAINTY CREATED BY THE TENTH

CIRCUIT’S RULING, IF NOT RESOLVED, WILL

LIMIT THE STATES’ ABILITY TO EXPERIMENT

WITH CAMPAIGN FINANCE REFORM

MEASURES INVOLVING EXPENDITURE

LIMITATIONS AND THEREBY UNDERMINE THE

STATES’ VITAL ROLE AS THE “LABORATORIES

OF DEMOCRACY.”

As this Court has long recognized, the States are the

“laboratories of democracy.” See New State Ice Co. v.

Liebmann, 285 U.S. 262, 311 (1932)(Brandeis, J.,

dissenting); Reeves, Inc. v. Stake, 447 U.S. 429, 441

(1980); Arizona v. Evans, 514 U.S. 1, 8 (1995). “It is one of

the happy incidents of the federal system that a single

courageous State may, if its citizens choose, serve as a

laboratory; and try novel social and economic experiments

without risk to the rest of the country.” New State Ice Co. v.

Liebmann, 285 U.S. 262, 311 (1932)(Brandeis, J.,

dissenting).

One area in which such experimentation is not only

valuable, but essential, is in the area of campaign finance

reform, in which the same deep-seated problems identified

by the City of Albuquerque threaten the integrity of the

democratic process at all levels of government nationwide.

By experimenting with campaign finance reform, the States

advance their own vital interest in structuring their own

political processes at the State level while, at the same time, |

providing information that is crucial to resolving the federal

campaign finance crisis that plagues the nation as a whole.

Although the States, to date, have actively experimented

with campaign finance reform, the uncertainty created by

the conflict between the Tenth and the Second Circuits

concerning the constitutionality of expenditure limitations

threatens the continued vitality of these crucial state reform

efforts.

A. The Compelling Interests Cited By The City

Of Albuquerque In Defense Of Its Charter

Provision Limiting Campaign Expenditures

Are Interests Shared By States Nationwide.

Three compelling governmental interests motivated

the City of Albuquerque to enact its city charter provision

limiting campaign expenditures in municipal elections: (1)

deterrence of actual or perceived corruption and

-enhancement of public confidence in the electoral process;

(2) preservation of officeholders’ ability to perform their

duties without devoting excessive time to fundraising; and

(3) encouragement of electoral competition. Homans y.

City of Albuquerque, 366 F.3d 900, 907 (10" Cir. 2004).

These interests are by no means unique to Albuquerque. On

the contrary, they are interests shared by virtually every

State in the country.

Like Albuquerque, the States have a compelling

governmental interest in preventing corruption and the

appearance of corruption in the electoral process. In

Vermont, for example, the state legislature has found that

“[large contributions and large expenditures by persons or

committees . . . reduce public confidence in the electoral

process and increase the appearance that candidates and

elected officials will not act in the best interests of Vermont

citizens.” 1997 Vt. Laws Pub. Act 64 (H. 28)(finding 9).

Citing evidence that “[e]ven with contribution limits, the

arms race mentality has made candidates beholden to

financial constituencies that contribute to them, and

candidates must give them special attention because the

contributors will pay for their campaigns,” Landell v.

Sorrell, 2004 WL 1837394 at * 21 (2d Cir., Aug. 18, 2004),

the Second Circuit has concluded that “Vermont has a

compelling interest in safeguarding its political process

from such contributor dominance, because it corrupts the

process for achieving accessibility and accountability of

state officials and candidates.” /d.

The same is true of all States. See, e.g., Colo. Const.

Art. XXVIII, § 1 (2003). As this Court has emphasized,

“the avoidance of the appearance of improper influence is

... Critical . . . if confidence in the system of representative

Government is not to be eroded to a disastrous extent.”

Buckley, 424 U.S. at 27 (internal quotation marks omitted).

The States also have a compelling interest in

curbing the staggering cost of campaigning in order to

allow officeholders to spend less time fundraising and more

time performing their official duties. See Landell v. Sorrell,

2004 WL 1837394 at *26 (2d Cir., Aug. 18, 2004);

Rosenstiel v. Rodriquez, 101 F.3d 1544,1553 (8" Cir.1996),

cert. denied, 520 U.S. 1229 (1997); Vote Choice, Inc. v.

DiStefano, 4 F.3d 26, 39 (1* Cir. 1993). As one Senator has

observed, “all too often [legislators] become fund-raisers

first, and legislators second.” 138 Cong. Rec. § 115 (daily

ed. Jan. 6,1987)(statement of Sen. Byrd). The result is that

legislators have little time to focus on their constituents’

needs and what time they do have is often devoted to those

who contribute the most. Landell, at *24-25.

The third interest cited by Albuquerque — the

promotion of electoral competition — is likewise shared by

the States. Across the country, incumbent candidates

generally have far more access to campaign funds than

their challengers and have enormous financial war chests

that discourage new faces from even attempting to run for

office. In effect, running for office has become a financial

impossibility for most Americans. See 1997 Vt. Laws Pub.

Act 64 (H. 28)(finding 1); Colo. Const. Art. XXVIII, § 1

(2003); Adam Lioz, U.S. PIRG Education Fund Report,

“The Role of Money in the 2002 Congressional Elections,”

(June, 2003).

Correcting these problems is of critical importance

to the States. As a national survey has revealed, a majority

of Americans are dissatisfied with the state of our political

system and cite the role of money in politics as one of the

primary sources of their discontent. Center for Responsive

Politics, “A National Survey of the Public’s Views on How

Money Impacts our Political System,” conducted by the

Princeton Survey Research _ Associates (June,

1997)(available at www.opensecrets.org/pubs/survey/htm).

Succinctly summing up the situation, one scholar has

observed that the inordinate role that wealth plays in

American politics is the “most pressing threat to American

democracy today.” S. Loffredo, “Poverty, Democracy and

Constitutional Law,” 141 U. Pa. L. Rev. 1277, 1279 (1993).

B. The Problems That Undermine The Current

Campaign Finance System Have Been The

Catalysts For A Wide Range Of State

Campaign Finance Reform Efforts.

In response to the deep-seated problems plaguing

the current system of campaign financing, the States have

experimented with a wide range of reforms.

Vermont’s legislature has adopted a comprehensive

finance reform act that incorporates candidate expenditure

limitations akin to those at issue in the present case, in

addition to varied limits on in-state and out-of-state

contributions, ‘disctosure provisions governing political

advertisements, and mandatory expenditure reporting

requirements. See 1997 Vermont Campaign Finance

Reform Act (“Act 64”), codified at Vt. Stat. Ann. tit. 17,

chap. 59 §§ 2801 — 2883.

Other States have tried myriad other reforms. For

example, some States, such a Missouri, Oregon, Montana

and the District of Columbia, have experimented with

restricting campaign contributions to small amounts

ranging from $100 to $250.

Other States have tried to limit the source of

contributions. For example, Alaska tried capping the

contributions that candidates for statewide office could

receive from out-of-state contributors. See Alaska Senate

Bill 191 (1996); State v. Alaska Civil Liberties Union, 978

P.2d 597 (Alaska 1999), cert. denied, 528 U.S. 1153

(2000). In Oregon, the legislature passed a state

constitutional amendment that prohibited candidates from

state office from raising more than 10% of their campaign

funds from contributors outside the candidate’s electoral

district. See Oregon 1994 Ballot Measure 6; Vannatta v.

Keisling, 151 F.3d 1215 (9" Cir.1998), cert. denied, 525

U.S. 1104 (1999); see also Landell at *47-49..

Still other States have sought to ban certain

contributions altogether. For example, Colorado amended

its state constitution in 2002 to ban corporate and union

contributions to candidates and political parties, in addition

to imposing contribution limits and voluntary spending

limits. See Colo. Const. Art. XXVIII.

In several States, including Maine and Arizona, the

legislatures have experimented with public financing. In

Maine, for example, a candidate may receive public

campaign financing provided he foregoes any private

contributions, including self-financing, and limits his

spending to the amount provided by the fund. Me. Rev.

Stat. Ann., Title 21-A, Chapter 14. If a candidate who runs

such a “clean” campaign is out-spent by a non-participating

opponent, the State matches the excess expenditures one-

for-one. /d.

The significance of these reforms is their variety.

While not all of them have withstood legal challenges, they

each represent a creative approach to the problem. As one

commentator has observed:

It is clear that states have been activists in

the area of campaign finance regulation.

And while some common approaches and

trends can be identified, it is also apparent

that the varying political cultures in each

state give rise to different solutions. What is

deemed a problem in one state is often

disregarded in another. . . . [E]ach state is its

own laboratory for reform.

Ronald Michaelson, “Trends in Campaign Financing,” The

Book of States, Vol. 35, p. 275 (2003).

The advantages of such a situation are obvious. The

States are able to experiment with unique reform measures

that address their own particular needs and allow them to

freely structure their own political processes. At the same

time, such experimentation provides a valuable model for

reform for other States and municipalities and, most

importantly, for the federal government, which is itself

struggling to address an enormous campaign finance

problem in presidential and congressional elections 2

nationwide. Clearly, the entire country benefits from the

wealth of information generated by this scheme. As Justice

Brandeis wisely warned, “[dJenial of the right to

experiment may be fraught with serious consequences to

the nation.” New State Ice Co. y. Liebmann, 285 U.S. 262,

311 (1932)(Brandeis, J., dissenting).

C. Reform Efforts To Date Have Not Solved The

Problems That Undermine The Current

Campaign Finance System.

Despite the myriad state reform efforts to date, the

problems plaguing the current campaign finance system

have not been solved. It has become increasingly clear that

contribution limitations alone are not the answer and that

further experimentation with additional measures, including

expenditure limitations, is crucial.

In 1997, Vermont adopted expenditure limitations

as part of its comprehensive campaign finance reform Act

because it was evident to the legislature that unbridled

campaign expenditures were forcing candidates to spend

too much time fundraising, causing candidates to give

preferred status to contributors over non-contributors, and

hindering the robust debate of issues. Landell at *5. In

particular, the legislature concluded that contribution limits

alone, without expenditure limits, exacerbated the time

problem because candidates were forced to spend more

time collecting smaller contributions from a greater number

of donors than would be the case with no contribution

limits at all. Landell at *25. Contribution limits coupled

with expenditure limits, however, meant that candidates

simply did not have to spend as much time and energy

raising money. /d.

In addition to addressing the time problem,

expenditure limitations have the potential to prevent

candidates from pouring unlimited amounts of money into

advertising instead of communicating with voters through

arguably more meaningful ways, such as through debates

and speeches. As one study has pointed out, “[aJll too

often, frontrunners will simply refuse to debate [their]

opponent[s], preferring instead to raise campaign funds and

buy commercials.” Derek Cressman, U.S. PIRG Education

Fund Report, “Lone Star Election Laws,” § II (July,

2000)(available at http://prig.org/democracy/democracy.

asp?id2=5977&id3=CFR&). In such a situation, underdog

candidates, who are at a disadvantage financially, “are

unable to compete as effectively as they could in debates

which put all candidates on more equal footing.” /d.

a te

Expenditure limitations also may be used to prevent

millionaire candidates from using their own resources to

vastly outspend opponents who are relying on small

contributions. Derek Cressman, U.S. PIRG Education F und

Report, “Lone Star Election Laws,” § II (July, 2000)

(available at http://prig.org/democracy/democracy.asp?id2

=5977&id3=CFR&). As _ noted above, “millionaire

candidates distort the electoral process and make it

considerably more difficult for ordinary citizens to run for

office because the level of funds needed to compete with

millionaires is beyond the reach of most candidates.” /d.

§ Il.

Given the potential for expenditure limitations to be

valuable tools in controlling the influence of money in

electoral campaigns not only at the municipal level, as in

Albuquerque, but also at the state and federal level, further

experimentation is vital. Only by allowing the States to

explore freely and fully the possibilities of expenditure

limitations will it be possible to determine whether, and to

what extent, such limitations hold the key to solving the

enormous campaign finance problem that is plaguing the

nation’s current electoral system.

D. The Conflict Between The Tenth And The

Second Circuit, If Not Resolved, Will

Jeopardize The States’ Ability To

Experiment With Reform And Fulfill Their

Crucial Role As The Laboratories Of

Democracy.

The Tenth Circuit’s erroneous conclusion -- that all

limitations on candidate expenditures are per se

unconstitutional under Buckley and that none of the three

governmental interests advanced by Albuquerque could

ever provide a_ sufficiently compelling governmental

interest to support expenditure limits -- threatens the States’

continued experimentation with campaign finance reform

in two significant ways.

First, it effectively forecloses the ability of the

States to adopt reforms that include limitations on

campaign expenditures. Although the Second Circuit

concluded in Landell that Buckley did not constitute a per

se ban on expenditure limitations, the uncertainty created

by the conflict between the Tenth and the Second Circuits

on the issue will be sufficient to deter many legislatures,

even those in the Second Circuit, from gambling on the

constitutionality of legislation that includes expenditure

limitations. Given the time, effort, and compromise that is

necessary to enact campaign finance reform, legislators

may eschew pushing for reforms of questionable

constitutionality.

Second, the conflict between the Tenth and Second

Circuits’ rulings creates uncertainty as to whether the

States’ interests in preventing corruption and_ the

appearance of corruption, protecting the time of

officeholders and candidates from the burdens of

fundraising, and fostering electoral competition are

“compelling.” By holding, in contrast to the Second

Circuit, that each of these three interests is “constitutionally

incapable of justifying spending restrictions as a matter of

law,” Homans v. City of Albuquerque, 366 F.3d 900, 915

(10" Cir. 2004), and that the latter two interests are “neither

new nor compelling,” id. at 914, the Tenth Circuit

indirectly raises uncertainty as to whether these interests

would be adequate to justify other, as yet untested, types of

reforms. Because, as noted above, uncertainty regarding an

act’s constitutionality renders it far less likely to be

enacted, the Tenth Circuit’s ruling will potentially have a

chilling effect on new reforms that are based on the same

compelling interests that were deemed constitutionally

inadequate in the present case.

To avoid this situation, and ensure that the States

are not foreclosed from vital experimentation based on a

wholly erroneous interpretation of Buckley, it is essential

10

ee ee ee

that this Court grant the Petition to review the Tenth

Circuit’s ruling in this case and clarify this important area

of the law.

CONCLUSION

For all of the foregoing reasons, the Amici States

respectfully request that the Court grant the City of

Albuquerque’s Petition for a Writ of Certiorari.

Respectfully submitted,

*RICHARD BLUMENTHAL

Attorney General of Connecticut

GREGORY T. D’AURIA

Associate Attorney General

JANE ROSENBERG

Assistant Attorney General

55 Elm Street

P.O. Box 120

Hartford, CT 06141-0120

Tel. No. (860) 808-5020

*Counsel of Record

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