Amicus Curiae Brief — City of Albuquerque v. Homans

No. 04-413 OCT 25 2004

_Ort Ch OF THE CLERK

In The

Supreme Court of the Anited States

,

v

THE CITY OF ALBUQUERQUE,

a municipal corporation, et al.,

Petitioners,

V.

RICK HOMANS and SANDER RUE,

Respondents.

4

_

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

,

vv

BRIEF AMICUS CURIAE OF THE

SECRETARIES OF STATES OF IOWA,

OREGON, NEW MEXICO AND WISCONSIN

IN SUPPORT OF PETITIONERS

,

Vv

RICHARD E. SCHWARTZ

Counsel of Record

DANIEL T. BROWN

Of Counsel

CROWELL & MORING LLP

1001 Pennsylvania Avenue, N.W.

Washington, DC 20004-2595

(202) 624-2500

October 25, 2004

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

Se TAF Ee I oa enn csedccdasaeinscephinanaeracens il

Pe TE SIT RITE ide sss.ncceahssandevasnsncrecananersnnaanis 1

PRIA ET SOE TK RRRE SAMI sivcnéninccdsssenenascsonsscensees 2

REASONS FOR GRANTING THE PETITION.......... 3

ee ITE sc dnics<aleus cucansseeceusisinnuisidetensarbananeeibienss 11

ii

TABLE OF AUTHORITIES

Page

CASES

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

CI sévancavinienctievtedmiiind deanna chacmmateeiaaiadaiacuraess 10

Buckley v. Valeo, 424 U.S. 1 (1976) ....... eee eeeeeeeeeeeeeeeee passim

Cruzan v. Director, Mo. Dept. of Health, 497 U.S.

EE 6 RI vkceidcvccencsscsxcaninsscincusnnaiceninnisiiatakiennieiin 10

Kruse v. City of Cincinnati, 142 F.3d 907 (6th Cir.

BID vvxccssicesscececocasencicuen sabanenesbacpianedazictienk cada ammnnneadiaie 10

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

LGBTOOE COR Cie: Rater. Tih; Be waiesiers sevrscsevcnersnsnivvovsnnsns 5

McConnell v. Federal Election Comm’n, 540 U.S.

OR, 28 BG Ga Ce oiikitecetinecteicicionaain 9

New State Ice Co. v. Liebmann, 285 U.S. 262 (1932)........ 10

MISCELLANEOUS

Vincent Blasi, Free Speech and the Widening Gyre

of Fund-Raising, 94 COLUMBIA L. REv. 1281

SE osisesiinnsstiahsduaptsseuincncrneneal Sans suisasleniehigtaicbnsiliineldatorenieates 4,7

John C. Bonifaz, Brenda Wright, and Gregory G.

Luke, Challenging Buckley v. Valeo: A Legal

Strategy, 33 AKRON L. REV. 39 (1999) ..............ccccccseeeeeeee 7

California Clean Election Campaign, Arizona — Clean

Elections Works! at http://www.caclean.org/content/

victories/az_works.php?path=content/victories/az_

I ies taicsscssannnchcasitentacd Seale ibiacliiutsiiimmrncnnsbinitnats 9

ili

TABLE OF AUTHORITIES — Continued

Beth Donavan, Constitutional Issues Frame Consti-

tutional Options, 51 CONG. Q. WKLY. REP. 437

ei dasnitintatelea vaniteionn Gietiaanes:sicninad tntiasdinnasdesciianininiaenie

Beth Donavan, Finance by Gutting Public Funding,

51 ConG. Q. WELY. REP. 1534 (1993)...

Beth Donovan, House. Takes First Big Step in

Overhauling System, 51 CONG. Q. WKLY. REP.

NINN cite SU Saiabeaninicheignnaskeva shekekncbannseksvakiinnehies

Beth Donovan, House Will Vote on Limits Nearly $1

Million in ‘96, 51 CONG. Q. WKLY. REP. 3091

IL cihracehc eis loviiinn hin dad echanedtiaaanyuinlcieesnnintinitacias

ELIZABETH DREW, POLITICS AND MONEY: THE NEW

ROAD TO CORRUPTION (1983)...............csccsseccsecceseceeees

Free Speech and Campaign Finance Reform:

Subcommittee Hearing on the Constitution Before

the House Comm. on the Judiciary, 105th Cong.

~ Sess. 1 (1997) available at http://www.house.gov.

oi is cisscddacinnnusensnnanmeiadsbecinansns

Ken Hechier, Financing Elections: West Virginia,

the States, and the Nation, 7 W. VA PUBLIC

AFFAIRS REPORTER 3 (1990), at http://www.polsci.

wvu.edu/ipa/par/report_7_3.html..............c.cccccceeees

Paul S. Herrnson and Ronald A. Faucheaux,

Candidates Devote Substantial Time and Effort

to Fundraising (July 7, 2000), at http://www.

bsos.umd.edu/gvpt/herrnson/reporitime.html.........

Hoover Institution: Public Policy Inquiry, Cam-

paign Finance, State and Local Overview, at

http://www.campaignfinancesite.org/structure/sta

tes1.html (last updated Sept. 20, 2004)..........0000.....

Page

iv

TABLE OF AUTHORITIES — Continued

Page

PETER LINDSTROM, CENTER FOR RESPONSIVE POLI-

TICS, CONGRESS SPEAKS: A SURVEY OF THE 100TH

EEE RRS joe ee ree oF a, or UN ieee 5

Ruth Marcus & Charles Babcock, One Day in the

Fundraising Trail: Dawn to Dusk/Chasing the

Dollars, THE BOSTON GLOBE, May 16, 1997.................0.. 6

INTEREST OF AMICI

Amici include the following Secretaries of State:

Chester J. Culver of Iowa, Bill Bradbury of Oregon,

Rebecca Vigil-Giron of New Mexico, and Douglas La

Follette of Wisconsin.’ Amici serve as the chief elections

officers of their states, which gives them extensive experi-

ence with the issues raised in this case.

Amici seek review of the Tenth Circuit’s decision

because they believe that it is contrary to this Court’s

holding in Buckley v. Valeo, 424 U.S. 1 (1976). As the chief

elections officers in their states, they are particularly

concerned about the impact that the Tenth Circuit’s

decision will have on the ability of States and localities to

enact effective reform measures sought by their citizens

and legislators. Moreover, Amici are concerned about the

detrimental impact that the split among the Tenth, Sixth,

and Second Circuits will have on their efforts to enact

innovative campaign finance laws. As discussed further

below, the present uncertainty regarding mandatory

spending limits has a chilling effect on the creativity of the

State and local governments which should be serving as

laboratories of democracy.

If the Tenth Circuit correctly interpreted Buckley as

imposing a per se ban on mandatory campaign spending

limits, Amici urge this Court to reconsider its holding

in Buckley and permit Albuquerque to demonstrate that

its campaign expenditure limits satisfy constitutional

’ The parties have consented to the filing of this brief. Their letters -

are on file with the Clerk of this Court. Pursuant to Rule 37.6, amici

state that no counsel for any party has authored this brief in whole or

in part, and no person or entity made a financial contribution to the

preparation or submission of this brief.

requirements. If such a per se ban truly exists as a result

of Buckley, that ban will stifle the creativity of States and

localities in this arena. As the Petitioners demonstrate,

the circumstances that led this Court to enact that barrier

28 years ago have changed. This Court should reconsider

the extent of First Amendment limits on campaign expen-

diture laws. See Petition for Certiorari at 26-29.

¢

STATEMENT OF THE CASE

This case involves amendments to its city charter that

the City of Albuquerque adopted in 1974. These amend-

ments were adopted with the approval of over 90% of the

city’s voters. See Petition for Certiorari at 2. The amend-

ments have succeeded in deterring the appearance of

corruption and promoting public confidence in city gov-

ernment. See id. at 2-3. As the Homans District Court

found, limits on campaign contributions alone have been

ineffective in achieving those goals in federal elections. Jd.

at 3. Petitioner summarized additional ills attributable to

the lack of spending limits in our current system of cam-

paign finance. See id. at 3-4.

A split among the circuits exists on this important

issue. The Tenth and Sixth Circuits have held that such a

barrier exists while the Second Circuit has recently held

that Buckley does not erect such a barrier. See Petition for

Certiorari at 11-12. The importance of this issue is demon-

strated by studies that show the current degree of cyni-

cism among the population and diminishing voter turnout.

Regardless of the actual scope of Buckley’s holding, Amici

urge this Court to grant the Petition and remove the cloud

over the constitutionality of campaign spending limits.

,

v

-

Rem — —— -_

3

REASONS FOR GRANTING THE PETITION

Amici urge the granting of the petition for three

reasons. The first is the strong citizen desire for reform.

That desire has expressed itself in numerous reform

efforts. While some State and local legislative bodies have

interpreted Buckley to allow mandatory campaign spend-

ing limits, the available data show that many have not

enacted such limits because they believe that Buckley bars

them. Second, this Court has recognized the benefit of

allowing state legislatures — as the laboratories of democ-

racy — to function as unfettered by judicial constraints as

reasonably possible. Third, whether or not Buckley is

correctly read to impose a per se barrier, declaring now

that no such barrier exists will enable States and localities

to address the problem more effectively because more

minds will come to bear on the issue.

1. There is a strong appetite for reform and experi-

mentation in State and local governments. This appetite

has manifested itself in simple expressions of disappoint-

ment with the high cost of campaigns and the perception

of corruption that flows from the realities of fundraising.

This appetite is manifested in attempts to enact campaign

spending limitations at the federal — and, sometimes,

State and local — level.

a. The costs of elections at both the Federal and

State levels have continued to skyrocket. This trend of

rising costs, while evident to the Buckley Court in 1976,

has continued to increase in the ensuing 28 years. Politi-

cians and commentators alike believe that too much

4

valuable time is devoted to this ceaseless endeavor to raise

funds.”

Politicians consider the fundraising process debilitat-

ing because it takes away time that could be spent more

valuably by serving their constituents. This problem

presents itself at the federal and local levels. At the state

level, one study has shown that a majority of candidates

for statewide office spend at least one-quarter of their time

fundraising for their campaigns; nearly one-third of

candidates for state legislative office are similarly preoc-

cupied with fundraising.”

In addition, numerous Congressmen have recounted

their fundraising experiences. For example, one Republi-

can Senator (unnamed) admitted, “I knew Congress well

before I came here, but I did not know the amount of time

consumed by fundraising and how that encroaches on your

ability to work here. It devours one’s time — you spend the

two or three years before your re-election fundraising. The

* See Vincent Blasi, Free Speech and the Widening Gyre of Fund-

Raising, 94 COLUMBIA L. REV. 1281 (1994) (stating that candidates

spend too much time fundraising) [hereinafter Blasi, Free Speech); see

also id. at n.1 (citing DAN CLAWSON ET AL., MONEY TALKS: CORPORATE

PACs AND POLITICAL INFLUENCE 79, 203-04 (1992); FRANK J. SORAUF,

INSIDE CAMPAIGN FINANCE: MYTHS AND REALITIES 72-73, (1992); BROOKS

JACKSON, HONEST GRAFT: BIG MONEY AND THE AMERICAN POLITICAL

PROCESS 69, 91-92, 108 (1990); DAvID B. MAGLEBY & CANDICE J. NELSON,

THE MONEY CHASE: CONGRESSIONAL CAMPAIGN FINANCE REFORM 43-45,

197 (1990); BURDETT LOOMIS, THE NEW AMERICAN POLITICIAN: AMBITION,

ENTREPRENEURSHIP, AND THE CHANGING FACE OF POLITICAL LIFE 195-96

(1988); ELIZABETH DREW, POLITICS AND MONEY: THE NEW ROAD TO

CORRUPTION 96 (1983)).

* Paul S. Herrnson and Ronald A. Faucheaux, Candidates Devote

Substantial Time and Effort to Fundraising (July 7, 2000), at http://

www.bsos.umd.edu/gvpt/herrnson/reporttime. html.

5

other years, you're helping others.” Likewise, former

House Majority leader Richard Gephardt has also ex-

plained that “If you have the need to raise three or four

hundred thousand dollars, you’re taking an enormous

amount of the member’s time just to raise money.”

The need for politicians to spend huge sums to win

elections raises the perception of, and conditions for,

corruption. Campaign funds come from special interest

groups with legislative agendas. When politicians win

elections with these funds and then continue to receive

financial backing from these same special interest groups,

these politicians will be under pressure to cater to these

groups. See Landell v. Sorrell, No. 00-9159 (L), 2004 WL

1837394 (2d Cir. Aug. 18, 2004) at *20-*21. Perhaps that is

why the phrase “special interest politics” has become so

commonplace in our national political discourse.

Politicians routinely confirm that this problem is real.

For example, former Rep. Dan Glickman (D-Kan.) admits

that “[mJoney has made it more difficult for Democrats to

define an economic agenda that is different from the

Republican agenda; we are taking from the same contribu-

tors.” These very reasons are why Congress periodically

* PETER LINDSTROM, CENTER FOR RESPONSIVE POLITICS, CONGRESS

SPEAKS: A SURVEY OF THE 100TH CONGRESS 80 (1988).

* ELIZABETH DREW, POLITICS AND MONEY: THE NEW ROAD TO

CORRUPTION 51 (1983).

* Ken Hechier, Financing Elections: West Virginia, the States, and

the Nation, 7 W. VA PUBLIC AFFAIRS REPORTER 3 (1990), available at

http//www.polsci.wvu.edu/ipa/par/report_7_3.html [hereinafter Hechier,

Financing Elections). See also, Free Speech and Campaign Finance

Reform: Subcommittee Hearing on the Constitution Before the House

Comm. on the Judiciary, 105th Cong. Sess. 1 (1997) (attaching statement of

Gene Karpinski, Executive Director of U.S. Public Interest Research

(Continued on following page)

6

considers solutions to free candidates from excessive

fundraising obligations.’

b. To address this need, which is felt at the State

and local levels as much as at the federal level, various

State and local governments have enacted — or considered

but declined to enact — campaign spending limits. Since

this Court’s ruling in Buckley in 1976, however, legisla-

tures and legal scholars have often viewed mandatory

campaign spending limits regulation as per se prohibited.

In January 1997, Senator Arlen Specter (of Pennsylvania)

commented that fundamental campaign finance reform

remained impossible without overturning Buckley.* In

Group stating “with this kind of influence accorded to big money in

our political system, the candidates and the political parties will

increasingly look alike on all issues of importance to moneyed

interests”), available at http://www.house.gov.judiciary/22226.htm

{hereinafter Karpinski, Free Speech and Campaign Finance Reform).

* In 1993, Members of the House of Representatives frequently

commented on it. See, e.g., 139 CONG. REC. H10656 (daily ed. Nov. 22,

1993) (remarks of Rep. Gejdenson); id. at H10665 (remarks of Rep.

Harman); id. at H10670 (remarks of Rep. Reed); id. at H10671 (re-

marks of Rep. Hughes); id. at H10672 (remarks of Rep. Beilenson); id.

at H10675 (remarks of Rep. Woolsey); Beth Donovan, House Takes First

Big Step in Overhauling System, 51 CONG. Q. WKLY. REP. 3246, 3248

(1993); Beth Donovan, House Will Vote on Limits Nearly $1 Million in

‘96, 51 CONG. Q. WKLY. REP. 3091 (1993). See also Ruth Marcus &

Charles Babcock, One Day in the Fundraising Trail: Dawn to

Dusk/ Chasing the Dollars, THE BOSTON GLOBE, May 16, 1997 at Al

(quoting U.S. Senator Robert Byrd of West Virginia in a March 1997

Senate floor speech: “The incessant money chase that permeates every

crevice of our political system is like an unending circular marathon.

And it is a race that sends a clear message to the people: that it is

money, money, money that reigns supreme in American politics.”).

* Senator Specter noted in his remarks on the floor of the Senate

that a growing group of prominent legal scholars have called for the

reversal of Buckley. Karpinski, Free Speech and Campaign Finance

Reform, supra note 6.

(Continued on following page)

7

advocating for campaign finance reform, he further

stated, “I believe that running for office should remain a

matter of issues, tenacity, integrity and old-fashioned

campaigning. Running for office should not become a

simple function of money.”

In spite of this adversity, the appetite for reform

remains strong, and State and local legislatures have

attempted to adopt reforms within the constraints of

Buckley’s perceived per se barrier. For example, as noted

by The Hoover Institution:

* Since 1990, 30 states have radically changed

their campaign finance laws, 17 of them between

1995 and 1998.

¢ From 1972 to 1996, 45 initiatives and/or refer-

enda, as well as charter amendments on election

reform, were placed on state ballots. In 36 of

these cases, a majority of voters supported en-

actment.

e 24 states, as of 1998, have statutes on the books

providing some sort of public financing for elec-

tion campaigns. Also, 12 states and New York

City have some form of expenditure limitation.

Indeed, in 1993 “Congressional deliberations, opposition to

campaign spending limits has most often been expressed in terms of

constitutional concerns.” See Blasi, Free Speech, supra note 2, at 1288

(citing Beth Donovan, Constitutional Doubts Bedevil Hasty Campaign

Finance Bill, 51 CONG. Q. WKLY. REP. 2215, 2217 (1993)); Beth Donavan,

Finance by Gutting Public Funding, 51 Conca. Q. WKLY. REP. 1534, 1539

(1993); Beth Donavan, Constitutional Issues Frame Constitutional

Options, 51 CONG. Q. WKLY. REP. 437 (1993).

* Id.; see also John C. Bonifaz, Brenda Wright, and Gregory G. Luke,

Challenging Buckley v. Valeo: A Legal Strategy, 33 AKRON L. REV. 39, 41

(1999) (“Members of Congress have introduced 11 bills since 1976 which

would establish campaign spending limits for federal elections.”).

8

¢ What these various states - and many municipali-

ties — have in common is strong voter sentiment for

change, harnessed by diverse grassroots coalitions

and reform-minded legislators.

Various state and federal polls confirm that voters are

overwhelmingly in favor of more effective campaign

finance reform.

¢ Between 1976 to 1986, campaign spending in

West Virginia state Senate races increased an

average of 875% from approximately $155,000 to

$1,511,000. In 1986, a sample of West Virginia

voters were polled regarding whether they be-

lieved “there should be a limit on how much a

person can spend on running for public office.”

75.5% said yes, 16.8% said no, and 7.7% were

undecided.”

¢ 64% of Arizonans support public funding for cam-

paigns (Arizona Republic poll, Oct. 2002) and

66% specifically support Clean Elections (KAET

poll, June, 2002). 80% of Arizonans believe that

’* Hoover Institution: Public Policy Inquiry, Campaign Finance,

State and Local Overview, at http://www.campaignfinancesite.org/

structure/states1.html (last updated Sept. 20, 2004).

" Hechier, Financing Elections, supra note 6. In its 1990 sessions,

West Virginia’ s House of Delegates “passed, by a vote of 86-14, a

constitutional amendment ‘to amend the State Constitution to permit

the Legislature to limit the amount of money which can be spent

advocating or opposing a nomination or election of any candidate, or the

passage or defeat of any issue, thing or item to be voted upon at public

election.’ The elation of supporters of the constitutional amendment,

scheduled to be placed on the general election ballot in 1990, was short-

lived, however. The state Senate quickly buried the amendment by

double referencing it to the Government Organization and Judiciary

Committees, where it died without further consideration despite frantic

and repeated efforts of the secretary of state to revive it.” Jd.

9

contributions influence votes on public policy

(Behavior Research Center poll, December,

2001).

2. At various times and in various contexts, this

Court has espoused the value of deferring to the legislative

process to produce creative solutions to pressing social

problems. Indeed, it is a canon of this Court that such

cases should be decided narrowly. See McConnell v. Fed-

eral Election Comm’n, 540 U.S. 93, 124 S. Ct. 619, 688

(2003). Aside from a constraint on overbroad pronounce-

ments, the benefits to society that flow from allowing our

legislatures to conduct the business of policy making

through law weigh strongly in favor of clarifying that no

per se barrier exists. As Justice Brandeis famously ob-

served:

To stay experimentation in things social and economic

is a grave responsibility. Denial of the right to ex-

periment may be fraught with serious consequences

to the Nation. 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. This Court has the power to

prevent an experiment. We may strike down the stat-

ute which embodies it on the ground that, in our opin-

ion, the measure is arbitrary, capricious. or

unreasonable.... But in the exercise of this high

power, we must ever be on guard, lest we erect our

prejudices into legal principles. If we would guide by

the light of reason, we must let our minds be bold.

* California Clean Election Campaign, Arizona - Clean Elections

Works! at http://www.caclean.org/content/victories/az_works.php?path=

content/victories/az_works.php&.

10

New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932)

(dissenting opinion) cited in Boy Scouts of America and

Monmouth Council v. Dale, 530 U.S. 640, 664 (2000)

(Stevens, J., dissenting). Cf’ Cruzan v. Director, Mo. Dept.

of Health, 497 U.S. 261, 292 (1990) (O’Connor, J., concur-

ring) (the “challenging task of crafting procedures for

safeguarding ... liberty interests is entrusted to the

‘laboratory’ of the states .. . in the first instance.”).

This Court should remove the artificial limit on States

and localities imposed by a per se prohibition on campaign

spending limits and, instead, make clear that the proper

standard of review of such legislation is and will be mean-

ingful strict scrutiny that is not “‘strict in theory, but fatal

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

237 (1995) (quoting Fullilove v. Klutznick, 448 U.S. 448,

519 (Marshall, J., concurring in judgment)).

3. The current split among the circuits on this

important issue demonstrates that it should be clarified by

this Court. By clarifying now that no per se barrier is

imposed by the First Amendment, this Court will be

opening an avenue of reform to the States and localities

eager to enact reform that they have avoided because of

the belief that Buckley imposes a per se barrier to cam-

paign spending limits.

Allowing the Tenth Circuit decision to stand deprives

citizens who reside within that Circuit of the creativity of

the State and local legislatures whose spending limits

legislation would surely be struck down. This is likewise

the case in the Sixth Circuit in light of the decision in

Kruse v. City of Cincinnati, 142 F.3d 907 (6th Cir. 1998).

Delaying this clarification will have an impact beyond

the Tenth and Sixth Circuits. The perception of a per se

Pi Sree

11

barrier constrains the legislative process in States and

localities outside of those circuits. The chilling effect that

flows from the uncertainty inherent in a circuit split is

further compounded by the fact that every panel of circuit

judges that has considered this issue has split on the

question of whether Buckley imposes a per se barrier. This

effect cannot be ignored.

Amici urge this Court to grant certiorari to decide

whether to free our State and local legislatures from the

constraints on their ability to experiment in the realm of

campaign finance reform that are the byproduct of the

belief that the First Amendment imposes a per se prohibi-

tion on campaign spending limits laws.

¢

CONCLUSION

The petition for certiorari should be granted.

Respectfully submitted,

RICHARD E. SCHWARTZ

Counsel of Record

DANIEL T. BROWN

Of Counsel

CROWELL & MorING LLP

1001 Pennsylvania Avenue, N.W.

Washington, D.C. 20004

(202) 624-2500

October 25, 2004