Legal Library

No. _____
_______________________________________________________________

IN THE
Supreme Court of the United States
OCTOBER TERM, 1997

___________________

CITY OF CINCINNATI; ROXANNE QUALLS, Councilmember and Mayor of the City of Cincinnati; DWIGHT TILLERY, Councilmember; TYRONE YATES, Councilmember; TODD PORTUNE, Councilmember; BOBBIE STERNE, Councilmember; PHILIP M. HEIMLICH, Councilmember; MINETTE J. COOPER, Councilmember; THOMAS A. LUKEN, Councilmember; NICHOLAS J. VEHR, Councilmember; CHARLES WINBURN, Councilmember, JOHN F. SHIRLEY, City Manager of the City of Cincinnati,

Petitioners,

v.

JOHN R. KRUSE; KRUSE FOR COUNCIL COMMITTEE; THOMAS E. BRINKMAN, JR.;MARK W. MILLER,


Respondents.

_____________________

On Petition for a Writ of Certiorari to the
United States Court of Appeals for the Sixth Circuit

_____________________

PETITION FOR WRIT OF CERTIORARI

______________________

JOHN C. BONIFAZ
Counsel of Record
BRENDA WRIGHT
GREGORY G. LUKE
National Voting Rights Institute
294 Washington Street
Suite 713
Boston, Massachusetts 02108
(617) 368-9100 Phone
(617) 368-9101 Fax

FAY D. DUPUIS
City Solicitor
KARL P. KADON, III
Deputy City Solicitor
The City of Cincinnati
Room 214, City Hall
801 Plum Street
Cincinnati, Ohio 45202
(513) 352-3333 Phone
(513) 352-1515 Phone

Attorneys for Petitioners

QUESTIONS PRESENTED

1. Whether, consistent with this Court’s ruling in Buckley v. Valeo, 424 U.S. 1 (1976), states and municipalities may enact campaign spending limits for their elections upon proof of new facts and circumstances not available nor presented to the Buckley Court which establish that compelling governmental interests justify the limits.

2. Whether, if the Court of Appeals for the Sixth Circuit correctly read Buckley to hold that all campaign spending limits are per se unconstitutional, Buckley should now be overruled to permit a showing at trial of new facts and circumstances and new compelling governmental interests which justify such limits.

LIST OF ALL PARTIES TO THE PROCEEDINGS BELOW

In addition to the Petitioners and Respondents as listed in the caption, the following parties participated in the proceedings below:

Defendant-Intervenors Charter Committee of Greater Cincinnati, Hamilton County Democratic Party, and A. Matthew Rosen; and

Defendant-Intervenors African-American Small Business Committee PAC and Barbara Milon.

CORPORATE DISCLOSURE STATEMENT

In accordance with Supreme Court Rule 29.6, the Petitioner City of Cincinnati hereby states that it is a municipal corporation. It has no parent company nor does it have any subsidiaries or affiliated corporations.

OPINIONS BELOW

The opinion of the United States Court of Appeals for the Sixth Circuit is reported at 142 F.3d 907 (6th Cir. 1998), and is reprinted in the Appendix to this petition at App. 1-32. The opinion of the District Court for the Southern District of Ohio is unpublished and is reprinted at App. 33-49.

STATEMENT OF JURISDICTION

The United States Court of Appeals for the Sixth Circuit entered judgment on April 27, 1998 and denied Defendants-Appellants’ Petition for Rehearing and Suggestion for Rehearing En Banc on June 18, 1998. App. 50-51. This Court has jurisdiction pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED

The First Amendment to the United States Constitution provides in pertinent part:

"Congress shall make no law…abridging the freedom of speech…"

The Fourteenth Amendment to the United States Constitution provides in pertinent part:

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States…"

City of Cincinnati Ordinance 240-1995 is reprinted in the Appendix at App. 52-56.

STATEMENT OF THE CASE

In July 1995, following twenty months of study and deliberation, the Cincinnati City Council enacted limits on campaign expenditures in city council elections. App. 52-56. The city council set the limits at the level of three times the annual salary for a city councilmember, a level of approximately $140,000.(1) App. 54. The City enacted the limits to address a pervasive public perception of corruption in its local election process and in its local government, a crisis in public confidence fueled by the City’s system of unlimited campaign spending.(2) Further, the City enacted the limits to address an increasing threat of actual corruption resulting from the rising costs of city council campaigns.(3) The City’s action drew, in part, on the two decades of federal election experience demonstrating that contribution limits alone are insufficient for addressing the important governmental interest of preventing corruption and the appearance of corruption in the electoral process.(4)

The City also enacted the campaign spending limits to address two new compelling governmental interests. First, the City has an interest in freeing its elected officials from the pressures of fundraising to ensure that they are able to carry out their representative duties without interference.(5) Second, the Cincinnati experience of unlimited campaign spending includes a unique "black-out" phenomenon with respect to television advertising time. City council candidates with large sums of money early in the election season have been able, through excessive television advertising purchases, effectively to preempt other less well-funded candidates from broadcasting their messages on prime-time television in the critical weeks leading to election day. The City’s limits address its interest in preventing some city council candidates from blocking other candidates’ access to key television advertising time.(6)

In March 1996, Respondent John R. Kruse, an unsuccessful city council candidate, his political committee, and two financial contributors to Cincinnati city council campaigns filed a complaint in the U.S. District Court for the Southern District of Ohio, alleging that Cincinnati’s campaign spending limits ordinance violated their First and Fourteenth Amendment rights. Respondents named as defendants (Petitioners) the City of Cincinnati, the mayor, each of the nine councilmembers, and the city manager. R.No.3, Respondents’ Amended Complaint.

A. Statement Of Facts

The Cincinnati city council’s vote in July 1995 approving Ordinance 240-1995 marked a culmination of more than twenty months of legislative debate and citizen input. The record demonstrates that the city council enacted the campaign spending limits to address its interest in preventing corruption and the appearance of corruption in the local election process; in freeing its elected officials from the pressures of fundraising so as to ensure that they are able to carry out their representative duties without interference; and in preventing some city council candidates from blocking other candidates’ access to key television advertising time.(7)

In the district court proceedings, the City of Cincinnati, in its opposition to Respondents’ motion for summary judgment, presented a factual record demonstrating new facts and circumstances which justify the City’s campaign spending limits and which warrant a trial at which the district court could properly weigh the evidence demonstrating the necessity of the limits. This record includes the following facts:

B. The Lower Court Decisions

(1) The District Court Ruling

Respondents filed a motion for summary judgment on July 5, 1996, arguing that Cincinnati’s campaign spending limits are per se unconstitutional under Buckley v. Valeo, 424 U.S. 1 (1976).

At a November 18, 1996 scheduling conference, all parties jointly stipulated to a preliminary injunction which enjoined enforcement of the ordinance during the litigation.(9) In urging a decision on summary judgment, the Respondents agreed to stipulate that any and all facts set forth by the City in defense of its ordinance are true for the purposes of its motion for summary judgment.(10)

At the close of oral argument on January 31, 1997, the District Court issued an oral opinion and final judgment granting the Respondents’ motion for summary judgment and declaring the City’s ordinance unconstitutional under Buckley. App. 33-49. The Court stated, however, its belief that the ordinance’s $140,000 limit is "more than reasonable" for a Cincinnati city council election. App. 39.

(2) The Sixth Circuit Ruling

The Petitioners appealed the District Court’s ruling to the United States Court of Appeals for the Sixth Circuit. The City of Cincinnati emphasized in its appeal, as it did before the district court, that it seeks only the opportunity to prove at trial that its campaign spending limits are necessary to address its compelling governmental interests.(11) On April 27, 1998, a three-judge panel of the Sixth Circuit denied the City that opportunity and affirmed the District Court’s ruling. App. 1-32.

A majority of the Sixth Circuit panel held that, under this Court’s decisions in Buckley, Fed. Election Comm’n v. Nat’l Conservative Political Action Comm., 470 U.S. 480 (1985) ("NC-PAC") and Colo. Republican Fed. Campaign Comm. v. Fed. Election Comm’n, 518 U.S. 604, 116 S. Ct. 2309 (1996)("Colorado Republican"), Cincinnati’s campaign spending limits are per se unconstitutional. App. 18-20. Further, the panel ruled that, were it to consider the factual record, the City did not demonstrate that campaign spending limits are necessary to address the compelling governmental interest of preventing corruption and the appearance of corruption in the electoral process. App. 20. The panel held that Cincinnati could not rely on the twenty-two years of federal election experience with contribution limits to demonstrate that such limits working alone are insufficient for addressing that interest. Id. The panel stated its view -- unsupported by the facts in the record -- that the ineffectiveness of contribution limits in federal elections is "explained primarily by the ‘soft-money’ loophole…" App. 20-21(citing Note, Soft Money: The Current Rules and the Case for Reform, 111 Harv. L. Rev. 1323 (1998)).

The panel also held that Cincinnati could not go to trial to prove that its campaign spending limits are justified by a new and compelling governmental interest in freeing the City’s elected officials from the pressures of fundraising. App. 22-23. The panel admitted that the time a candidate must spend raising money for her campaign "detracts an officeholder from doing her job," App. 23, but it nonetheless ruled that the interest in reducing the time elected officials spend on fundraising "cannot serve as a basis for limiting campaign spending." Id.

The panel’s opinion does not address the City’s argument that its campaign spending limits are also justified by a new and compelling governmental interest in preventing some city council candidates from blocking other candidates’ access to key television advertising time.

U.S. District Judge Avern Cohn(12) issued a concurring opinion. App. 29-32. While joining the majority’s affirmance of the District Court’s ruling, Judge Cohn disagreed with the majority’s reading of Buckley with respect to campaign spending limits: "The Supreme Court’s decision in Buckley…is not a broad pronouncement declaring all campaign expenditure limits unconstitutional." App. 31-32.

REASONS FOR GRANTING THE WRIT

This case is of the utmost importance to the nation and to the state of American democracy. In the twenty-two years since this Court’s ruling in Buckley v. Valeo, the United States has witnessed an explosion of campaign spending in federal elections, with the 1996 election cycle marking the most expensive election yet in U.S. history.(13) Campaign spending has also dramatically risen in state and local elections across the country.(14) This unlimited spending has seriously undermined public confidence in our electoral process and in our democratic institutions.(15) It has presented an increased threat of actual corruption as large contributors dominate the financing of public election campaigns.(16) It has placed enormous time pressures on officeholders running for re-election, interfering with their ability to carry out their governing duties.(17)

At issue in this case is whether states and municipalities, in the face of new facts and circumstances associated with unlimited campaign spending, may employ reasonable campaign spending limits to protect the integrity of their elections and their governments. Like the Petitioner City of Cincinnati, other jurisdictions have applied this remedy to address the dangers resulting from unlimited campaign spending. Last year, the State of Vermont enacted campaign spending limits for its state elections, to take effect in the 2000 election cycle.(18) Since 1974, the City of Albuquerque has maintained limits on campaign expenditures for its local elections.(19) In July 1995, the Supreme Court of Ohio revised its judicial code of ethics to set campaign spending limits for that state’s judicial elections.(20)

The Sixth Circuit’s ruling endangers the ability of states and municipalities to respond to serious threats to their democratic processes.(21) Under this ruling, no set of facts can ever be proved which would demonstrate the necessity for campaign spending limits. Under this ruling, no new and compelling governmental interests can ever be considered that might justify campaign spending limits.

The Sixth Circuit’s ruling conflicts with Buckley. This Court in Buckley did not close the door to proof of any and all new facts and circumstances and any and all new compelling governmental interests which would justify campaign spending limits. Buckley, 424 U.S. at 55-56. This case presents new facts and circumstances demonstrating that contribution limits alone have proven insufficient for addressing the compelling governmental interest of preventing corruption and the appearance of corruption in the electoral process. This case also presents new and compelling governmental interests which justify campaign spending limits.

In the alternative, if Buckley did hold that campaign spending limits are per se unconstitutional, this Court should now revisit that ruling. The facts do matter. A ruling forever closing the door to the lessons of governmental experience with unlimited campaign spending runs contrary to the constitutional responsibilities of this Court. As this Court stated in Planned Parenthood v. Casey, 505 U.S. 833, 864 (1992):

In constitutional adjudication as elsewhere in life, changed circumstances may impose new obligations, and the thoughtful part of the Nation could accept each decision to overrule a prior case as a response to the Court’s constitutional duty.

This Court should grant the petition for certiorari to correct the Sixth Circuit’s erroneous reading of Buckley and to resolve the critical question of whether state and local governments can ever determine that campaign spending limits are necessary to address serious threats to the democratic process.

I. THE RULING BELOW CONFLICTS WITH BUCKLEY V. VALEO

A. This Court in Buckley Did Not Hold That No New Facts and Circumstances Could Ever Be Proved Which Would Demonstrate the Necessity for Campaign Spending Limits

In Buckley, this Court upheld congressional limits on campaign contributions in federal elections as justified by the sufficiently important governmental interests of preventing corruption and the appearance of corruption. Buckley, 424 U.S. at 23-38. In assessing the constitutionality of congressional limits on campaign expenditures in federal elections, this Court found, on the record before it, that the contribution limits alone would be sufficient for addressing such governmental interests. While the appellate court had ruled that "the expenditure restrictions are necessary to reduce the incentive to circumvent direct contribution limits,"(22) this Court found:

There is no indication [in the record] that the substantial criminal penalties for violating the contribution ceilings combined with the political repercussion of such violations will be insufficient to police the contribution provisions. Buckley, 424 U.S. at 55-56. This pivotal passage from Buckley unambiguously reveals that a key empirical judgment -- drawn from the record -- ultimately determined the constitutionality of the congressional campaign spending limits. For what if the record in Buckley had established that the "substantial criminal penalties" and the "political repercussion" were not sufficient to "police the contribution provisions"? Clearly, Buckley leaves the door open for a different factual record which would justify the need for campaign spending limits.

The Sixth Circuit panel’s opinion misreads this crucial aspect of the Buckley ruling. It also misapplies this Court’s holdings in NC-PAC and in Colorado Republican to this case. The panel states:

We are not unaware of the excesses of the federal campaign system. However, to the extent the City is relying on its interest in preventing real and perceived quid pro quo corruption, the Supreme Court’s decisions in Buckley, NC-PAC and Colorado Republican clearly foreclose this argument as a matter of law. App. 18-19. As demonstrated above, the argument that campaign spending limits are a necessary concomitant to contribution limits was rejected by the Buckley Court only as a matter of fact. There is no other way of reading the Court’s pivotal passage on this point. Further, NC-PAC and Colorado Republican address spending limits on independent expenditures by political action committees and by political parties, not spending limits on expenditures by and coordinated with candidate campaigns. This case is the first case since Buckley to raise the question of spending limits on campaign expenditures by candidates. Even if NC-PAC and Colorado Republican were to be interpreted as foreclosing such an argument as a matter of law with respect to limits on independent expenditures by PACs and by political parties,(23) the factually contingent nature of this Court’s ruling in Buckley on spending limits on campaign expenditures would not change.

Further, this Court decided Buckley on a limited factual record, a consequence of a provision for expedited judicial review included in the 1974 amendments to the Federal Election Campaign Act. 2 USC § 437h. That provision effectively precluded any possibility for trial and, therefore, the summary judgment standard was not applicable in Buckley. The record in this case, at this summary judgment stage, is different. It presents new facts and circumstances which demonstrate the necessity for campaign spending limits to address Cincinnati’s interest in preventing corruption and the appearance of corruption in the electoral process.

The City’s expert, John Deardourff, a public opinion researcher with more than 30 years of experience, testified in his affidavit to a pervasive public perception of corruption in Cincinnati with respect to the city council election process. R.No.38, Deardourff Aff. The City demonstrated, through Mr. Deardourff’s testimony, that this crisis in public confidence in Cincinnati with respect to the political system is directly tied to unlimited campaign spending.(24)

In holding that the congressional limits on campaign contributions were justified by Congress’ interest in preventing corruption and the appearance of corruption, the Buckley Court specifically cited the dangers associated with public perception of corruption. This Court held that

Congress could legitimately conclude that the avoidance of the appearance of improper influence ‘is also critical…if confidence in the system of representative Government is not to be eroded to a disastrous extent.’" Buckley, 424 U.S. at 27, citing CSC v. Letter Carriers, 413 U.S. 548, 565 (1973). The expert evidence in this record demonstrates that public confidence in the system of representative government in Cincinnati has been "eroded to a disastrous extent," and that contribution limits alone are insufficient to address this public perception of corruption.

The City has also presented crucial expert testimony that "the rise in the overall cost of city council races has caused a rise in the influence of wealthy donors in the City’s elections, with such donors increasingly dominating the campaign fundraising process." R.No.38, Makinson Aff., 6-7(emphasis added). From 1991 to 1995, one-third of one percent of the metropolitan area’s population provided more than $3.9 million in campaign contributions to city council candidates, amounting to nearly 70% of all the money raised by those candidates. Id. at 6. The Buckley Court did not hear this critical evidence linking unlimited campaign spending with a corresponding rise in the influence of wealthy donors in elections.

Like Cincinnati, the nation as a whole has witnessed the harmful impact of unlimited campaign spending in elections. In the twenty-two years since Buckley, the federal election experience has demonstrated that contribution limits will not, alone, sufficiently address the problem of corruption and the appearance of corruption in the electoral process. The federal experience teaches that, in a system of campaign contribution limits but unlimited campaign spending, large campaign donors will often bundle their contributions, leading to undue influence on the electoral and legislative processes.(25) Further, the fear that an opponent will spend vast sums of money in pursuit of a campaign victory has fueled a never-ending set of schemes to evade the federal limits. During the most recent federal election, limits on contributions were rendered meaningless by the pressure of increasing levels of spending. The result was a campaign finance system characterized by monied interest contributions in the millions of dollars.(26)

The Sixth Circuit panel held that Cincinnati could not rely upon this federal election experience with contribution limits to bolster its studied conclusion that contribution limits alone are ineffective to prevent corruption and the appearance of corruption. The panel stated: "The City mistakenly relies on the federal experience in national elections with contribution limitations to support its contention that they will inevitably prove inadequate at the local level." App. 20.

The Sixth Circuit’s ruling runs counter to the very essence of the governing process. As this Court held in Renton v. Playtime Theatres, Inc., 474 U.S. 41, 51-52 (1986), cities may rely on the experiences of other jurisdictions in the development and enactment of new laws. Cincinnati need not repeat a failed experiment in order to demonstrate that it is a failure. "To insist that governmental interests justifying such legislation could only be found in specific local experiences and conditions would be unrealistically to require deliberate subjection to those experiences and conditions before attempting to avoid them." Wall Distributors, Inc. v. The City of Newport News, Virginia, 782 F. 2d 1165, 1169, n.7 (4th Cir. 1986).(27)

With the new facts and circumstances in this record, Cincinnati clearly demonstrated its right to go to trial to prove that its campaign spending limits are necessary to address the compelling governmental interest of preventing corruption and the appearance of corruption in the electoral process. The Sixth Circuit ruling closing the door on this evidence should be reviewed by this Court.

B. This Court in Buckley Did Not Hold That No New and Compelling Governmental Interests Could Ever Be Presented Which Would Justify Campaign Spending Limits

This Court in Buckley did not hold that there could never be a new and compelling governmental interest that would justify campaign spending limits. Rather, this Court stated: "No governmental interest that has been suggested is sufficient to justify [the congressional campaign spending limits]." Buckley, 424 U.S. at 55 (emphasis added). The implication is clear. The door remains open to compelling governmental interests that were not suggested to the Buckley Court. This Court reaffirmed that point in NC-PAC, stating that "preventing corruption or the appearance of corruption are the only legitimate and compelling government interests thus far identified for restricting campaign finances." NC-PAC, 470 U.S. at 496-497 (emphasis added).

Cincinnati has presented two new and compelling governmental interests which justify its campaign spending limits. First, the City has an interest in freeing its elected officials from the pressures of fundraising to ensure that they are able to carry out their representative duties without interference.

The increasing amount of time elected officials in Cincinnati spend raising money for their campaigns has fueled the erosion of public confidence in the democratic process. As the City’s Campaign Finance Advisory Board found in its final report to the Cincinnati city council, the time candidates spend raising money is directly tied to the rising costs of city council campaigns. R.No.38, Advisory Board Report,4. This new fact associated with unlimited campaign spending has a real and detrimental impact on the ability of elected officials to govern and gives rise to a new compelling interest justifying campaign spending limits.(28)

Further, twenty-two years of experience of unlimited campaign spending in federal elections provides added weight to a new compelling governmental interest in preserving the time of elected officials for carrying out their official duties. See Blasi at 1281: "Candidates for office spend too much time raising money. This is scarcely a controversial proposition." (citing sources on the burdens of fundraising in federal elections).(29)

The City has also presented a new and compelling governmental interest in preventing some city council candidates from blocking other candidates’ access to key television advertising time. The record in this case identifies a new set of facts which show that, in Cincinnati, city council candidates with large sums of money early in the election season are able effectively to shut out other candidates from broadcasting their messages on prime time television in the critical weeks leading to election day -- a black-out phenomenon.(30) The Buckley record did not include this crucial evidence.

As explained in the expert testimony of Jerry Galvin, an advertising executive with 28 years of experience in the creation and production of television advertisements for Cincinnati city council candidates, well-funded city council candidates engage in media campaigns which "have the effect of preempting the right of other less well-funded candidates from purchasing the most valuable advertising spots." R.No.38, Galvin Aff.,4. Candidates in Cincinnati make such excessive television advertising purchases in such a way as to "drown[ ] out" the campaigns of less well-funded candidates. Id. at 6. The City’s campaign spending limits will break up this "effective monopoly on the most valuable advertising time." Id. at 5.

In the related First Amendment area of television broadcasting, this Court recently reaffirmed the governmental interest of promoting the widespread dissemination of information from a multiplicity of sources. See Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180, 117 S.Ct. 1174, 1189 (1997)(upholding the "must-carry" provisions of the Cable Television Consumer Protection and Competition Act of 1992): "Congress has an independent interest in preserving a multiplicity of broadcasters to ensure that all households have access to information and entertainment on an equal footing with those who subscribe to cable." In the area of elections, Cincinnati surely has at least an equally important interest in preserving candidates’ access to a key medium of communication to the voters during a crucial period in the election campaign.(31)

In his concurrence, Judge Cohn states his disagreement with the majority opinion’s reading of Buckley. Judge Cohn writes:

The Supreme Court’s decision in Buckley…is not a broad pronouncement declaring all campaign expenditure limits unconstitutional. It may be possible to develop a factual record to establish that the interest in freeing officeholders from the pressures of fundraising so they can perform their duties, or the interest in preserving faith in our democracy, is compelling, and that campaign expenditure limits are a narrowly tailored means of serving such an interest. App. 31-32.(32)

The majority opinion’s finding that campaign spending limits are per se unconstitutional conflicts with this Court’s ruling in Buckley. It endangers the ability of state and local governments to address serious threats to their democracies resulting from unlimited campaign spending. It should be reviewed by this Court.

II. IF THE RULING BELOW DOES NOT CONFLICT WITH BUCKLEY, THIS COURT SHOULD REVISIT BUCKLEY IN LIGHT OF NEW FACTS AND CIRCUMSTANCES ASSOCIATED WITH UNLIMITED CAMPAIGN SPENDING

If Buckley does, in fact, stand for the proposition that all campaign spending limits are per se unconstitutional, the new facts and circumstances of this case merit this Court’s reconsideration of that ruling.

This Court has recognized that a prior holding may require reexamination based on changed circumstances.

In constitutional adjudication as elsewhere in life, changed circumstances may impose new obligations, and the thoughtful part of the Nation could accept each decision to overrule a prior case as a response to the Court’s constitutional duty.

Planned Parenthood v. Casey, 505 U.S. 833, 864 (1992). See also First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978):

According to appellee, corporations are wealthy and powerful and their views may drown out other points of view. If appellee’s arguments were supported by record or legislative findings that corporate advocacy threatened imminently to undermine democratic processes, thereby denigrating rather than serving First Amendment interests, these arguments would merit our consideration. Id. at 789-90;

and Harper v. Virginia Board of Elections, 383 U.S. 663 (1966)(overruling Butler v. Thompson, 341 U.S. 937 (1951)(per curiam), and Breedlove v. Suttles, 302 U.S. 277 (1937), and invalidating a $1.50 poll tax as violative of the Equal Protection Clause):

[T]he Equal Protection Clause is not shackled to the political theory of a particular era. In determining what lines are unconstitutionally discriminatory, we have never been confined to historic notions of equality, any more than we have restricted due process to a fixed catalogue of what was at a given time deemed to be the limits of fundamental rights. Notions of what constitutes equal treatment for purposes of the Equal Protection Clause do change. Harper, 383 U.S. at 669 (emphasis in original).

If Buckley holds that campaign spending limits are per se unconstitutional and thus bars all consideration of newly developed facts, it renders meaningless the process of judicial scrutiny. The facts do matter, even under strict scrutiny analysis. As this Court stated in Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 237 (1995): "[W]e wish to dispel the notion that strict scrutiny is ‘strict in theory, but fatal in fact.’" (quoting Fullilove v. Klutznick, 448 U.S. 448, 519,(1980) MARSHALL, J., concurring in judgment).

A survey of this Court’s rulings addressing campaign finance regulations since Buckley demonstrates the factually-intensive nature associated even with strict scrutiny analysis. For example, in Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), this Court applied a factual record developed at trial in upholding a Michigan statute limiting corporate expenditures in state elections. In Meyer v. Grant, 486 U.S. 414 (1988), this Court reviewed the evidence presented at trial in striking down a Colorado law prohibiting paid circulators for initiative petitions. In California Medical Ass’n v. Federal Election Comm’n, 453 U.S. 182 (1981), this Court, in upholding FECA’s limitations on individual contributions to political action committees, stated that the factual record supported the conclusion that the challenged limitations were necessary "to prevent circumvention of the very limitations on contributions upheld in Buckley." Id. at 197-98.

Strict scrutiny analysis still requires scrutiny. If Buckley closed the door -- regardless of the facts -- to any and all campaign spending limits, this Court should revisit that ruling.(33)

CONCLUSION

For the foregoing reasons, the petition for a writ of certiorari should be granted.

DATED: September 15, 1998

Respectfully submitted,

JOHN C. BONIFAZ
Counsel of Record
BRENDA WRIGHT
GREGORY G. LUKE
National Voting Rights Institute
294 Washington Street
Suite 713
Boston, Massachusetts 02108
(617) 368-9100 Phone
(617) 368-9101 Fax

FAY D. DUPUIS
City Solicitor
KARL P. KADON, III
Deputy City Solicitor
The City of Cincinnati
Room 214, City Hall
801 Plum Street
Cincinnati, Ohio 45202
(513) 352-3333 Phone
(513) 352-1515 Phone

FOOTNOTES



(1) In November 1995, the city council also enacted limits on campaign contributions in city council elections. The contribution limits include a $1,000 limit on individuals and a $2,500 limit on political action committees and campaign committees. City of Cincinnati Ordinance No. 336-1995, amended by Ordinance No. 9-1997.

(2) R.No.38, Exh.1, Statement of Facts, 10-12 ("Statement of Facts"); Exh.4, Affidavit of John D. Deardourff, 1-17 ("Deardourff Aff."). The full record in the District Court will be referred to as "R."

(3) R.No.38, Statement of Facts, 1-5; Exh.3, Affidavit of Larry Makinson, 1-7 ("Makinson Aff.").

(4) R.No.38, Exh.7, Affidavit of Bobbie L. Sterne, 4-5 ("Sterne Aff.").

(5) R.No.38,Exh.6, Attachments to Affidavit of Todd B. Portune: Final Report of the Campaign Finance Advisory Board, 4 ("Advisory Board Report"); Report of the League of Women Voters of the Cincinnati Area, 1 ("League of Women Voters Report"); Exh.11, Affidavit of Rev. Kazava Smith, 4 ("Smith Aff.").

(6) R.No.38, Statement of Facts, 13; R.No.37, Affidavit of Jerry Galvin ("Galvin Aff.").

(7) R.No.38, Statement of Facts; Deardourff Aff.; Makinson Aff.; Advisory Board Report; League of Women Voters Report; Smith Aff.; R.No.37, Galvin Aff.

(8) An overwhelming majority of Cincinnati residents further believe that unlimited campaign spending: 1) discourages potential candidates from running for public office, thereby narrowing the range of choices available to voters; 2) prevents the electorate from hearing some campaign messages among candidates who do run, thus depriving voters of information relevant to their voting decisions; and 3) discourages people from voting and participating in the political process. R.No.38, Deardourff Aff.,15.

(9) In addition to the Petitioners City of Cincinnati, et. al. and the Respondents, the parties included two sets of defendant-intervenors: the Charter Committee of Greater Cincinnati, the Hamilton County Democratic Party, and a former city council candidate; and the African American Small Business PAC and a former city council candidate.

(10) Counsel for Respondents informed the district court at the November 18, 1996 scheduling conference that "[w]e want you to presume that at trial [the City of Cincinnati] can prove x at trial and [the City of Cincinnati] can prove Y and at trial [the City of Cincinnati] can prove z. And [the City of Cincinnati] can make that list as long as [it] wants. [The City of Cincinnati] can say anything [it] wants if [it] thinks [it] can prove it at trial. For purposes of our motion for summary judgment, we want you to presume that every fact that [the City of Cincinnati] says that [it] can prove, that [it] in fact will prove at trial." R.No.38,Exh.2.

(11) The standard for review of a motion for summary judgment is well-settled. As this Court stated in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986): A case is ripe for summary judgment when there exists no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. A genuine issue of material fact is present if the evidence is such that a reasonable jury could return a verdict for the non-moving party...In reaching its conclusion, the court must resolve all significant doubt over factual issues, if any, in favor of the non-movant and draw all reasonable inferences against the moving party's motion. (12) United States District Judge for the Eastern District of Michigan, sitting by designation.

(13) Ruth Marcus & Charles Babcock, "The System Cracks Under Weight of Cash; Candidates, Parties and Outside Interests Dropped a Record $2.7 Billion," The Washington Post, February 9, 1997, A1 ("Marcus and Babcock").

(14) Kevin Sack, "High Stakes and Higher Antes in Statehouse Races," The New York Times, September 6, 1998, A1.

(15) Fred Wertheimer and Susan Weiss Manes, Campaign Finance Reform: A Key to Restoring the Health of Our American Democracy, 94 Colum. L. Rev. 1126-1131 (1994).

(16) Id. at 1131-1142; Jamin Raskin and John Bonifaz, Equal Protection and the Wealth Primary, 11 Yale L. & Pol'y Rev. 273, 293-297, 326-328 (1993)("Raskin and Bonifaz"); Charles Lewis and the Center for Public Integrity, The Buying of the Congress (1998).

(17) Vincent Blasi, Free Speech and the Widening Gyre of Fund-Raising: Why Campaign Spending Limits May Not Violate the First Amendment After All, 94 Colum. L. Rev. 1281 (1994).

(18) Vt.Stat.Ann. 17, Sec. 2805a(effective November 4, 1998).

(19) Albuquerque, N.M. Charter, art. XIII, Election Code, Sec. 4.

(20) Supreme Court of Ohio Code of Judicial Conduct, Canon VII(C)(6). The Sixth Circuit recently affirmed a district court ruling invalidating the judicial campaign spending limits on First Amendment grounds. Suster v. Marshall, 1998 U.S.App. LEXIS 17445. The Sixth Circuit held that, according to Buckley, campaign finance regulation can only be justified by the compelling governmental interest of preventing corruption and the appearance of corruption in the electoral process. The panel thus rejected the state supreme court's defense of its spending limits as justified by a new compelling governmental interest in protecting the impartiality and the appearance of impartiality of the state judiciary. Id. at *27.

(21) The United States Congress has also demonstrated interest in employing campaign spending limits for federal elections. Members of Congress have introduced campaign spending limit bills eleven times since this Court's ruling in Buckley. S.1684 and S.1185 (98th Congress); S.59 (99th Congress); H.R.2473 (100th Congress); H.R.1456 (101st Congress); H.Res. 168 and H.R.3571 (103rd Congress); H.R.3651 and H.R.3658 (104th Congress); and S.1057 and H.R.77 (105th Congress).

(22) Buckley, 519 F.2d 817, 859 (D.C. Cir. 1975).

(23) The panel's own citation to Colorado Republican demonstrates the factually contingent nature of the Supreme Court's ruling in that case: "As the Court reasoned in Colorado Republican, 'the lack of coordination between the candidate and the source of the expenditure...prevents us from assuming, absent convincing evidence to the contrary, that a limitation on political parties' independent expenditures is necessary to combat a substantial danger of corruption in the electoral system.'" App. 19, quoting Colorado Republican, 116 S. Ct. at 2316-17 (emphasis added).

(24) Cincinnati residents "firmly believe that their own and others' level of trust in the integrity of the political system has been eroded by the amount of money in politics." R.No.38, Deardourff Aff.,9. An overwhelming majority of Cincinnati residents agree with the statement, "The amount of money in election campaigns has caused me to lose a great deal of faith in the political system." Id. at 10.

(25) Raskin and Bonifaz, 326-327 (citing Larry Makinson, Open Secrets: The Encyclopedia of Congressional Money & Politics (2d ed. 1992).

(26) See Marcus & Babcock; "Dawn to Dark/Chasing the Dollars: One Day on the Fundraising Trail," The Boston Globe, May 16, 1997, A1, A12, 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."

(27) The Sixth Circuit compounds its error by seeking to explain the ineffectiveness of contribution limits in federal elections as resulting from the "soft-money" loophole. App. 20-21, citing Note, Soft Money: The Current Rules and the Case for Reform, 111 Harv. L. Rev. 1323 (1998). This claim is completely unsupported by the record in this case. It is a well-settled principle of law that, with the exception of judicially noticed facts, courts must rely only upon the record presented in making their decisions. Witters v. Washington Dept. of Servs. for Blind, 474 U.S. 481, 489 n.3 (1986).

Further, this analysis of the federal experience is wrong. "Soft money" is money raised by political parties in unlimited amounts for non-federal election purposes. Federal law prohibits the use of soft money to directly influence a federal campaign, "except when used in the limited, party-building activities specifically designated in the statute." Colorado Republican, 116 S.Ct at 2313, citing 2 USC Sec. 431(8)(B). While the abuses with the soft-money loophole are indeed significant and the current subject of national debate, they do not explain the insufficiency of contribution limits in federal candidate campaigns. Rather, as the City and the amici states have emphasized, large campaign donors, in a system of unlimited campaign spending, will often seek to evade contribution limits through the bundling of contributions.

The fact that the Sixth Circuit panel's view here is unsupported by the record only highlights why this case must go to trial for a proper weighing of the evidence.

(28) See R.No.38, Smith Aff.,4: "[T]he high costs of City Council campaigns today causes our City Councilmembers to spend too much time raising money for the next election, rather than focusing on their responsibilities on governing the city;" R.No.38, League of Women Voters Report,1: "More time than is reasonable is spent raising money for campaigns, which may interfere with time for governing." See also Blasi at 1283: "Legislators and aspirants for legislative office who devote themselves to raising money round-the-clock are not in essence representatives."

(29) See also Martin Schram, Speeking Freely: Former Members of Congress Talk About Money in Politics 37-46 (1995) (former Members of Congress discuss the enormous pressures of fundraising and its drain on their time for performing their official duties); Dan Clawson et al., Money Talks: Corporate PACs and Political Influence 7-8 (1992): "The quest for money is never ending...To pay for an average winning campaign, representatives need to raise $3,700 and senators $12,000 during every week of their term of office." (emphasis in original); Philip M. Stern, Still the Best Congress Money Can Buy 119 (1992)(quoting former Congressman Bob Edgar, a Pennsylvania Democrat who resigned from the House to avoid another campaign fundraising cycle: "Eighty percent of my time, 80 percent of my staff's time, 80 percent of my events and meetings were fundraisers. Rather than go to a senior center, I would go to a party where I could raise $3,000 or $4,000."); 138 Cong. Rec. S115 (daily ed. Jan. 6, 1987) (statement of U.S. Senator Robert Byrd of West Virginia): "To raise the money, Senators start hosting fund-raisers years before they next will be in an election. They all too often become fund-raisers first, and legislators second."

(30) Supra note 6.

(31) Cincinnati, of course, would not have the power to address this phenomenon by imposing "fairness" requirements directly on the television stations, given the Federal Communications Commission's jurisdiction over regulation of broadcast media.

(32) While Judge Cohn correctly reads Buckley to have allowed for proof of new facts and circumstances and new and compelling governmental interests which would justify campaign spending limits, he errs in joining the majority's affirmance of the district court's granting of summary judgment. Judge Cohn points out that Buckley was decided on a slender factual record. He then states: "Similarly, although the City here attempted to develop a compelling factual record, it failed to do so." App. 29.

Judge Cohn does not apply the correct standard for summary judgment. Summary judgment can only be granted "when there exists no genuine issues of material fact and the moving party is entitled to judgment as a matter of law." Anderson, 477 U.S. at 248. Cincinnati presented genuine issues of material fact in this record. These genuine issues of material fact go directly to Judge Cohn's points on "the interest in freeing officeholders from the pressures of fundraising so they can perform their duties" and "the interest in preserving faith in our democracy." App. 31-32. Having made this showing, the City should have been allowed its opportunity to go to trial to prove its case. It is precisely at trial, not at the summary judgment stage, where the City would be required to develop "a compelling factual record."

(33) In the twenty-two years since Buckley, the ruling has generated considerable dissent from constitutional scholars. See Leslie Wayne, "Scholars Ask Court to Backtrack, Shutting Floodgates on Political Spending," The New York Times, November 10, 1996, A30; Ronald Dworkin, "The Curse of American Politics," New York Review of Books, October 17, 1996; Roland S. Homet, Jr., Fact Finding in First Amendment Litigation: The Case of Campaign Finance Reform, 21 Okla. City U.L. Rev. 97 (1996); Cass R. Sunstein, Is Free Speech the Enemy of Democracy?, Boston Rev., (Mar./Apr. 1993); Ray Forrester, The New Constitutional Right to Buy Elections, 69 A.B.A.J. 1078, 1080 (1993); J. Skelly Wright, Money and the Pollution of Politics: Is the First Amendment an Obstacle to Political Equality?, 82 Colum L. Rev. 611 (1982). The City of Cincinnati argues that Buckley allows for proof of new facts and circumstances and new compelling governmental interests which would justify campaign spending limits, such as the City has presented in this case. If, however, Buckley is to be read as declaring all campaign spending limits per se unconstitutional, the City shares the view of many constitutional scholars that this Court should overrule Buckley.