# Amicus Curiae Brief — City of Albuquerque v. Homans

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1363%3A06

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2004
- **Citation:** 543 U.S. 1002

## Text

| 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

py a et lay eee iil

~

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

11

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1363%3A06. Public record. Not legal advice.