Legal Library

IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

JOHN R. KRUSE, et al.,

Plaintiffs,

v.

THE CITY OF CINCINNATI, et al.,

Defendants.

JUDGE WEBER

CASE NO. C-1-96-25

DEFENDANTS' MEMORANDUM IN OPPOSITION TO PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

In July 1995, in response to the dramatic rise in spending for city council campaigns, the City Council of Cincinnati enacted Ordinance 240-1995, setting overall limits on campaign expenditures in city council elections. The limits were set at the reasonable level of three times the annual salary for a city councilmember, a level of approximately $140,000. In passing this ordinance, the City Council recognized that twenty years ago the U.S. Supreme Court had struck down campaign expenditure limits in congressional elections on First Amendment grounds. Buckley v. Valeo, 424 U.S. 1 (1976). Following twenty months of deliberation and debate, however, the City Council decided that new facts and circumstances on the influence of money in the City's elections warranted a reconsideration of that ruling.

In March 1996, plaintiffs filed their amended complaint seeking to invalidate the City's campaign spending limits ordinance. In July 1996, plaintiffs filed their motion for summary judgment. In November 1996, all parties jointly stipulated to a preliminary injunction which enjoined enforcement of the ordinance during the course of this litigation so as to allow for the necessary judicial deliberation on the complex constitutional issues presented by this case. Defendants now file this memorandum in opposition to plaintiffs' motion for summary judgment.

The issues in this case go to the very core of our democracy. The question here is whether the City of Cincinnati, to protect its democratic process and the constitutional rights of all its citizens, may reasonably regulate the campaign spending of city council candidates in its elections. This case is not ripe for summary judgment as there are genuine issues of material fact present in this litigation. Accordingly, plaintiffs' motion for summary judgment should be denied.

II. PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT SHOULD BE DENIED BECAUSE THERE ARE MATERIAL FACTS IN DISPUTE

A. Standard of Review

This case is now before this Court on plaintiffs' motion for summary judgment:

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. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

A fact is material if it could affect the outcome of the suit. Its materiality is determined by the substantive law applicable to the case. Id. at 248.

At a November 18, 1996 conference before this Court, plaintiffs stated, through their counsel, that, for the purposes of their motion for summary judgment, they would stipulate to any facts the City would put foward in its defense of Ordinance 240, arguing that the City's facts are immaterial. See Defendants' Exhibit 1, transcript of November 18, 1996 proceedings, pg.48-49. The City attaches to this memorandum its Statement of Facts.{1}

Contrary to plaintiffs' assertions, the facts in dispute here materially affect the outcome of this suit. Plaintiffs have not met their "burden of establishing that there is no material fact in dispute..." Adickes v. S.M.Kres and Co., 398 U.S. 144, 157 (1970). The disputes go directly to the court's determination of whether there were any stated legislative purposes for the ordinance; whether the stated purposes constitute sufficiently important state interests; whether the ordinance is closely drawn to address those interests; and whether the ordinance's spending limit is set at a level sufficient for city council candidates to run a reasonable and viable campaign.

B. Material facts are in dispute about the Council's purposes for enacting Ordinance 240-1995.

There are two major aspects of the City Council's purposes in enacting Ordinance 240-1995 which are in dispute in this litigation. First, there is a dispute as to whether there were any purposes at all.{2} Second, there is a dispute as to whether the purposes relate to the City's sufficiently important state interests.{3} In actuality, the Council's vote enacting the ordinance marked a culmination of more than twenty months of legislative debate, Law Committee work, and citizen input.{4} The City's Statement of Facts detail these debates. Plaintiffs' insistence that Ordinance 240 lacked any valid purposes directly conflicts with this history.{5}

The ordinance's purposes were discussed numerous times by the full Council and by the Council's Law and Public Safety Committee, which had jurisdiction over the issues. Vice Mayor Peter Strauss presented a campaign finance reform ordinance to the Council in August 1993. Common Cause testified about how costly campaigns create the perception that "special interests are substantially involved."{6} The City Council defeated that ordinance.

After campaign expenditures soared in the November 1993 elections, Councilmember Todd Portune, who led the effort for Ordinance 240, called for campaign finance reform, articulating as a purpose the City's need to prevent the appearance of corruption: "The way in which money is being spent hurts other qualified candidates who don't have access to big money interests...[I]t fosters the impression that only special interests are controlling the direction of the City." {7}

In early 1994, the Law Committee recommended and the Council approved placing before the voters an amendment to the City Charter to give the Council authority to enact reform measures. The League of Women Voters' campaign for passage of the amendment focused on the growing appearance of corruption increases associated with large amounts of money in Council races. {8} Cincinnati voters approved the Charter amendment by a 51.2% vote on May 3, 1994.

The Law Committee on June 28, 1994 approved forming a citizens' advisory board to make recommendations for campaign finance reform, and the council approved it on June 29. From September 1994 to June 1995, the Campaign Finance Advisory Board met 20 times in open, public meetings. When the Advisory Board gave the Council its report on June 7, 1995, the Board did not recommend mandatory spending limits because of Buckley v. Valeo. A minority of the Board, however, dissented, calling for a limit of three times a council member's salary.

Todd Portune then proposed the spending limits ordinance to the Council, and the Committee debated it over several meetings. The League of Women Voters testified to the Committee that escalating campaign expenditures discourages potential candidates and "denies the electorate a choice of candidates."{9}

These twenty months of civic debate formed the factual backdrop for the Law Committee's and full Council's passage of Ordinance 240. At the full Council hearing, Vice Mayor Yates spoke directly about the need to prevent the appearance of corruption, emphasizing how large amounts of money spent in council elections may influence policy decisions.{10} Councilmember Bobbie Sterne, who spoke about the exorbitant amounts of money being spent, explains in her affidavit that citizens had discussed with her their views that "those who made large contributions expected to get loyal support for their positions in matters before the council." {11} Mr. Portune and Mr. Yates, both of whom are attorneys, stated that voters wanted the Council to provide leadership on campaign finance reform. Each stated the changed facts in Cincinnati warranted revisiting Buckley. {12}

III. SUMMARY OF ARGUMENT

The City has "sufficiently important state interest[s]" which justify its ordinance limiting campaign expenditures in its city council elections and the ordinance employs means which are "closely drawn to avoid unnecessary abridgement of associational freedoms." Buckley, 424 U.S. at 25 (citations omitted).{13} These interests include: 1) preventing the appearance of corruption; 2) preventing actual corruption; 3) equalizing the ability of all citizens to participate in elections and affect the choices available to them; 4) opening the electoral process to candidates less able to meet the prohibitive costs of election campaigns; 5) protecting the Equal Protection rights of all Cincinnati voters to participate in the electoral process on an equal and meaningful basis; 6) protecting the First Amendment rights of all Cincinnati voters to be heard in the electoral process and to hear information from all candidates.

The Supreme Court in Buckley considered the first four interests cited above, but new facts and circumstances about the influence of money in Cincinnati City Council elections demonstrate that the Court's ruling on those interests with respect to campaign expenditure limits needs to be revisited. The last two interests are new interests which also justify the City's ordinance. These interests were not presented to the Court in Buckley and the Court, therefore, did not decide whether such interests justify limits on campaign expenditures. With each of the City's interests, there are genuine issues of material fact proving that this case is not ripe for summary judgment.

The City's ordinance is further justified as a reasonable regulation on the manner of speech in the election process, in accordance with the long line of court rulings upholding reasonable time, manner, and place regulations. See Kovacs v. Cooper, 336 U.S. 77 (1949). The campaign spending limits do not prevent candidates from speaking. Rather, they regulate how loudly candidates may speak so as to ensure that some candidates do not drown out the voices of others in the election process. The new facts and circumstances about the influence of money in Cincinnati City Council elections demonstrate that the Buckley Court's ruling on this point needs to be revisited.

IV. ARGUMENT

A. The City's Ordinance is Justified By Sufficiently Important State Interests

1. The City's ordinance is justified by the interest in preventing the appearance of corruption in the election process.

The City's interest in avoiding the appearance of corruption in the election process is a sufficiently important state interest which justifies its campaign spending limits ordinance. In recent years, the City has witnessed a dramatic increase in campaign spending in its city council elections, with the highest candidate expenditure rising from $75,000 in 1989, to $362,000 in 1995, an increase of more than 480 percent. See Statement of Facts, No. ___; Defendants' Exhibit 2, Affidavit of Larry Makinson, 3 (hereinafter referred to as "Makinson Affidavit"). In 1989, the total amount of money spent by all city council candidates was $990,000. In 1995, candidates spent a new record total of $2.33 million. Id. This unlimited campaign spending has fueled an overwhelming public perception in Cincinnati that such money is corrupting the City's election and legislative processes, eroding the public's trust in the city government and in the democratic system. See Statement of Facts, No. __; Defendants' Exhibit 3, Affidavit of John Deardourff (hereinafter referred to as "Deardourff Affidavit").

The public perception in Cincinnati of corruption in the local political process has reached crisis proportions. An overwhelming majority of Cincinnati residents believe:

Statement of Facts, Nos. ___-___; Deardourff Affidavit, 6-17.

In Buckley, the Supreme Court upheld congressional limits on campaign contributions to candidates made by individuals and political action committees. 424 U.S. at 23-38. The Court found that the limits were justified by Congress' interest in preventing corruption and the appearance of corruption. The Court specifically cited the dangers associated with public perception of corruption. Id. at 27. It 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.'" Id., citing CSC v. Letter Carriers, 413 U.S. 548, 565 (1973).

In ruling on the campaign expenditure limits passed by Congress, the Court found that Congress' interest in preventing the appearance of corruption was sufficiently served by the contribution limits. It held, therefore, that the interest in preventing the appearance of corruption did not justify the expenditure limits. Id. at 55.

Two years after it issued the Buckley ruling, however, the Court indicated that it will review issues of money in the political process upon a showing of new facts. In First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978), the Court addressed the constitutionality of a Massachusetts statute prohibiting corporations from making contributions or expenditures to influence the outcome of ballot initiatives which did not materially affect the property, business, or assets of the corporation. Though the Court struck down the statute on First Amendment grounds, it left the door open for another case which could demonstrate corporate influence over the initiative process. The Court stated:

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. But there has been no showing that the relative voice of corporations has been overwhelming or even significant in influencing referenda in Massachusetts or that there has been any threat to the confidence of the citizenry in government. Id. at 789-90 (citation omitted).

More recently, the Court has further recognized the harmful effects of concentrated wealth on the political process. In Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), the Court upheld a Michigan criminal statute preventing corporations from spending general funds as independent expenditures in state elections. The Court found that Michigan had a compelling interest in combatting a "different type of corruption in the political arena: the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public's support for the corporation's political ideas." Id. at 660. As one constitutional scholar writes, the Austin Court "squarely acknowledged -- for the first time in constitutional discourse -- that inequalities of private economic power tend to reproduce themselves in the political sphere and displace legitimate democratic governance." Stephen Loffredo, Poverty, Democracy and Constitutional Law, 141 U. Pa. L. Rev. 1277, 1285 (1993). {14}

The facts in this case demonstrate that the Cincinnati public's perception of corruption at the local and federal level has significantly worsened in the twenty years since the Court issued its Buckley ruling -- this despite the existence of contribution limits in federal elections during that time period. Seventy-six percent of Cincinnati residents believe the problem of money in politics is greater today than it was twenty years ago. Statement of Facts, No. ___; Deardourff Affidavit, 10.

These new circumstances support a reconsideration of the Buckley ruling. The record here reveals that the dramatic increase in campaign spending in Cincinnati city council elections constitutes a "threat to the confidence of the citizenry in government." Bellotti, 435 U.S. at 789-90. Contribution limits, alone, have not sufficiently addressed the state interest of preventing the appearance of corruption, as the Buckley Court thought they would twenty years ago. The new facts presented in this case should now be applied to the reasoning set forth in Buckley and Bellotti. The City's ordinance limiting campaign expenditures in city council elections is now necessary "'if confidence in the system of representative Government is not to be eroded to a disastrous extent.'" Buckley, 424 U.S. at 27 (citation omitted).{15 }

2. The City's ordinance is justified by the interest in preventing actual corruption in the election process.

The City's interest in preventing actual corruption in the election process is a sufficiently important state interest which justifies its campaign spending limits ordinance. The facts of this case demonstrate that "the rise in the overall cost of city council races has caused a corresponding rise in the influence of wealthy donors in the City's elections, with such donors increasingly dominating the campaign financing process." Statement of Facts, No. ___; Makinson Affidavit, 6-7. With this dominance of wealthy donors comes the danger of actual corruption as large campaign contributors gain special access to city councilmembers and increasingly expect something in return for their money.

The factual record here reveals an extreme concentration of influence among those able to contribute large sums of money to city council campaigns:

Statement of Facts, Nos. ___-___; Makinson Affidavit, 4-6.

Money buys influence in the City's election and legislative processes. With the dramatic escalation in the costs of city council elections, large campaign donors have become ever more important, and the danger of actual corruption has become ever more apparent. As one former city council candidate states:

I believe that most people who run for political office in Cincinnati are decent people. But, I have been around this process for a long time. With the rising costs of city council elections, candidates and elected officials are boxed in by financial interests. They know that if they want the support of such interests, they better pay attention to their issues.

Defendants' Exhibit 10, Affidavit of Donald Driehaus, 4 (hereinafter referred to as "Driehaus Affidavit").

At issue here is the basic integrity of the City's election process. The Buckley Court recognized that corruption and the appearance of corruption constituted a serious threat to that integrity. 424 U.S. at 26-27. It found that Congress' interest in addressing that threat justified contribution limits in congressional elections. Id. at 23-38. The new facts and circumstances presented in this case demonstrate that the escalating costs of Cincinnati city council elections fuels the danger both of corruption and the appearance of corruption. The City's ordinance limiting spending in city council campaigns protects the integrity of the City's election process. It is justified by the sufficiently important state interest of preventing corruption and the appearance of corruption.

3. The City's ordinance is justified by the interest in equalizing the ability of all citizens to participate in elections and affect the choices available to them.

The City's interest in equalizing the ability of all citizens to participate in elections and affect the choices available to them is a sufficiently important state interest which justifies its campaign spending limits ordinance. Our democracy is premised on the promise of political equality, of all citizens having an equal say in the election of their government. Yet, that promise is undermined in Cincinnati by the rising costs of city council elections and the corresponding influence of large campaign contributors. By setting reasonable limits on candidate expenditures in city council elections, the City's ordinance levels the playing field for all candidates and voters and protects the promise of political equality.

The facts in this case demonstrate that Cincinnati citizens do not have an equal say in the election of their city councilmembers. Most citizens do not have large sums of money to contribute to city council campaigns. They cannot afford to be heard at a level equal to the large campaign contributor. Their influence in the election process, in determining which candidates will be viable and which candidates will be heard, is dwarfed by the undue influence of wealthy donors. Plaintiffs cannot deny that the 702 individuals who provided more than $2.5 million to city council campaigns from 1991 to 1995 exercised enormously greater influence on the city council election process than did the vast majority of Cincinnati citizens. This state of political inequality endangers democracy in the City of Cincinnati. See Statement of Facts, Nos. ___-___; Makinson Affidavit.

The Buckley Court held that "the concept that the government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment..." 424 U.S. at 48-49. The new facts and circumstances presented by this case demand a reconsideration of that holding. What is foreign to the First Amendment is the notion that concentrated wealthy interests have the right to undermine the promise of political equality and to threaten the very fabric of the democratic process. As the U.S. Court of Appeals for the District of Columbia stated in Buckley in its ruling upholding the contribution and expenditure limits:

It would be strange indeed if, by extrapolation outward from the basic rights of individuals, the wealthy few could claim a constitutional guarantee to a stronger political voice than the unwealthy many because they are able to give and spend more money, and because the amounts they give and spend cannot be limited. Buckley v. Valeo, 519 F. 2d 821, 841 (D.C. Cir. 1975).

As one First Amendment scholar recently wrote, "[Buckley] misunderstood not only what free speech really is but what it really means for free people to govern themselves." Ronald Dworkin, "The Curse of American Politics," The New York Review of Books, October 17, 1996, 24.{16}

4. The City's ordinance is justified by the interest in opening the electoral process to candidates less able to meet the prohibitive costs of election campaigns.

The City's interest in opening the electoral process to candidates less able to meet the prohibitive costs of election campaigns is a sufficiently important state interest which justifies its campaign spending limits ordinance. The rising costs of Cincinnati city council campaigns makes the process of running as a candidate increasingly an exclusive one. The facts presented here demonstrate that candidates who lack access to wealth face an unfair disadvantage in a system which allows for unlimited spending. See Statement of Facts, Nos. ___-___; Makinson Affidavit.

Donald Driehaus, for example, ran for Cincinnati City Council in 1995 as a challenger candidate. He raised and spent approximately $30,000 for his campaign, less than one-tenth of the expenditures of City Councilmember Phil Heimlich. Driehaus could not be heard as a candidate in the at-large election up against others spending hundreds of thousands of dollars to broadcast their messages. As Driehaus says, "[w]ith other candidates spending two to ten times more than me, my message as a candidate was drowned out." Driehaus Affidavit, 3.

Many other citizens do not even attempt to run for city council. They are discouraged from the start by the increasing levels of campaign spending. As Rev. Kazava Smith says in his affidavit:

I know some good people who have thought about running for city council, but because they do not have any financial backing, they do not even enter the process...The city suffers when some good minds do not even run for city council because of the high costs.

Defendants' Exhibit 11, Affidavit of Rev. Kazava Smith, 3 (hereinafter referred to as "Smith Affidavit").

A candidate's ability to raise money from wealthy donors cannot be viewed as a measure of a candidate's popular support. One candidate might have 1,000 supporters, each of whom can only afford to contribute one dollar. Another candidate might have only 10 supporters, but each can afford to contribute $1,000. The former candidate has 100 times more supporters than the latter, but will be outspent by a factor of ten to one. The former candidate's message will be drowned out even though he or she has greater popular support. Plaintiff Kruse admitted in his deposition that the amount of money a city council candidate can raise does not relate directly to the strength of that candidate's popular support. See Defendants' Exhibit 12, Kruse deposition, 168.

The Supreme Court has already recognized that a system which discriminates against candidates based on their economic status is unconstitutional. In Bullock v. Carter, 405 U.S. 134 (1972), the Court struck down on Equal Protection grounds a series of filing fees that the state of Texas required primary candidates to pay to their political parties. The filing fees ranged from $150 to $8,900 for local and state legislative candidates. The Court held that, with the high filing fees:

potential official seekers lacking both personal wealth and affluent backers are in every practical sense precluded from seeking the nomination of their chosen party, no matter how qualified they might be, and no matter how enthusiastic their popular support. Id. at 143.

The system of unlimited spending in Cincinnati city council elections discriminates against candidates according to their economic status. The new facts and circumstances of this case warrant a reconsideration of the Buckley Court's holding in this area. The City's ordinance setting reasonable limits on campaign spending in city council elections will open the electoral process to candidates of lesser means, enabling new voices to be heard. It will help level the playing field for all candidates. Candidates with access to wealthy donors may still speak and will still be heard. But, candidates without access to money will no longer have their voices drowned out nor be discouraged from entering the process.

5. The City's ordinance is justified by the interest in protecting the Equal Protection rights of all Cincinnati voters and candidates

The City's interest in protecting the Equal Protection rights of all Cincinnati voters and candidates is a sufficiently important state interest which justifies its campaign spending limits ordinance. This is a new interest which was neither presented to, nor addressed by, the Buckley Court. The facts of this case demonstrate that campaign spending limits in Cincinnati city council elections are now necessary to address this interest.

The Supreme Court has long recognized that a process which becomes "an integral part...of the elective process that determines who shall rule and govern..." must be open to all. Terry v. Adams, 345 U.S. 461, 469 (1953) (invalidating an all-white association's pre- primary candidate nominating process as an unconstitutional infringement on the right to vote of African-American citizens). The Court has held that the public election process "is an exclusively public function." Flagg Brothers v. Brooks, 436 U.S. 149, 158 (1978). As such, "any 'part of the machinery for choosing officials' becomes subject to the Constitution's restraints," even if that machinery is a private association taking "the form of 'voluntary association' of unofficial character." Terry, 345 U.S. at 481 (Justice Clark, concurring), quoting Smith v. Allwright, 321 U.S. 649, 664 (1944). As the Court again recognized last term, exclusion from "an integral part" of the election process, "does not merely curtail [citizens'] voting power, but abridges their right to vote itself. Morse v. Republican Party of Virginia, 116 S.Ct. 1186, 1200 (1996).

The facts of this case demonstrate that the process of raising unlimited funds in Cincinnati city council campaigns has become "an integral part" of the City's election process. See Statement of Facts, Nos. __-__; Makinson Affidavit. Candidates and their voter-supporters who do not have access to wealth are effectively excluded from that process. Id. There is, in essence, a "wealth primary" in Cincinnati city council campaigns, a process which occurs long before election day. For most candidates, it has become "part of the machinery" of getting elected. If they win the wealth primary -- if they raise and spend the most money -- they will most likely win a seat on the Cincinnati City Council.

Cincinnati voters and candidates effectively excluded from the wealth primary in city council elections are denied their constitutional right to participate in the election process on an equal and meaningful basis. See Morse; Terry; Smith; Nixon v. Herndon, 273 U.S. 536 (1927); and Nixon v. Condon, 286 U.S. 73 (1932). See also Jamin Raskin & John Bonifaz, "Equal Protection and The Wealth Primary," Yale Law & Policy Review, Vol. 11, No. 2 (1993), 273-332. The wealth primary disadvantages such voters "in their opportunity to influence the political process effectively." Davis v. Bandemer, 478 U.S. 109, 133 (1986). It undermines and debases the constitutionally guaranteed value of their votes. See Baker v. Carr, 369 U.S. 186 (1962); Wesberry v. Sanders, 376 U.S. 1 (1963); Gray v. Sanders, 372 U.S. 368 (1963); Reynolds v. Sims, 377 U.S. 533 (1964) (finding that the dilution and debasement of the right to vote is as unconstitutional as the absolute prohibition of the franchise). It presents a "real and appreciable impact on the exercise of the franchise." Bullock v. Carter, 405 U.S. 134, 144 (1972) (striking down as unconstitutional under the Equal Protection Clause a system of high candidate filing fees: "[W]e would ignore reality were we not to find that this system falls with unequal weight on voters, as well as candidates, according to their economic status." Id.). See also Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966) (striking down as unconstitutional under the Equal Protection Clause a $1.50 poll tax in Virginia state elections.) Like the filing fee at issue in Morse, the wealth primary system in Cincinnati city council elections "undercuts [voters'] influence on the field of candidates whose names will appear on the ballot, and thus weakens the 'effectiveness' of their votes..." Morse, 116 S.Ct. at 1199.

The City's ordinance will help level the playing field for all voters and candidates, thereby ending the wealth primary process in Cincinnati city council elections. The ordinance ensures that the entire election process will be open to all, regardless of economic status. With an overall campaign spending limit set at the reasonable level of $140,000, the Cincinnati city council elections will no longer include an integral part of the process which effectively excludes voters and candidates who lack access to wealth. It will prevent wealthy donors from dominating city council elections through a system which "undercuts [voters'] influence on the field of candidates whose names will appear on the ballot, and thus weakens the 'effectiveness' of their votes..." Morse, 116 S.Ct. at 1199. The ordinance will protect the constitutional rights of all Cincinnati voters and candidates to participate in the election process on an equal and meaningful basis.

6. The City's ordinance is justified by the interest in protecting the First Amendment rights of all Cincinnati voters to hear all candidates' views and qualifications and to be heard in the political process.

In recent decisions concerning First Amendment issues connected with election campaigning, the Supreme Court has employed the following analysis: (1) does the statute or practice regulate political speech in a substantial manner; (2) is the regulation content or viewpoint based; (3) does the state have a compelling interest for the regulation; and (4) is the restriction on First Amendment rights narrowly drawn to achieve that end. McIntyre v. Ohio Elections Commission, ___ U.S. ___, 115 S.Ct. 1511, 1518 (1995); Burson v. Freeman, 504 U.S. 191 (1992); Briggs v. Ohio Elections Commission, 61 F3d 487,493, n. 5 (6th Cir. 1995).

This court must weigh the First Amendment rights of voters to hear the viewpoints and qualifications of all candidates against plaintiffs' claim that the First Amendment protects an alleged right to spend unlimited amounts of money. Evaluating competing First Amendment rights in the election context is a "particularly difficult reconciliation" and requires careful analysis of facts surrounding the enactment of the ordinance and its impact on voters' rights. Burson v. Freeman, 504 U.S. at 199.

The First Amendment rights of the voters have consistently been awarded paramount protection to the candidate's rights in election cases. Rosen v. Brown, 970 F.2d 169, 175 (6th Cir. 1992) citing Anderson v. Celebreeze, 460 U.S. 780, 786-88 (1983). Thus, the City's actions must protect and facilitate the voters' rights to participate in the electoral process.

The City unquestionably has a sufficiently important state interest "in fostering an informed electorate." Eu v. San Francisco Democratic Comm., 489 U.S. 214, 2 28 (1989) citing Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 220 (1986); Anderson v. Celebreeze, 460 U.S. at 796. The First Amendment's protection of robust and open debate about campaign issues and candidate qualifications depends on the right to speak and on the right to receive information during the public debate.{17}

The Supreme Court, in First National Bank v. Bellotti, 435 U.S. 765 (1978), relied upon the voters' right to hear speech in its holding allowing corporations to present their opposition to a referendum enacting a graduated personal income tax. The Court focused on the fact that the "First Amendment protects interests broader than those of a party seeking their vindication" and includes the interests of society in learning the position of the bank on the issue. Id. at 776. See also, Eu v. San Francisco County Democratic Comm., 489 U.S. at 223 (California's ban on party endorsements in primaries "hamstrings voters seeking to inform themselves about the candidates and the campaign issues.")

In Buckley v. Valeo, the Court acknowledged that the government has a vital interest in "facilitat[ing] and enlarg[ing] public discussion and participation in the electoral process." 424 U.S. at 92. This important purpose of opening up the campaign debate to all voters and candidates was in the forefront of the Council's action. The Law Committee had heard citizens groups' warnings that the high spending candidates were drowning out the views and qualifications of more modest funded candidates.

Further, Cincinnati voters have not only a First Amendment right to hear campaign speech, but also a right to be heard both in the election and legislative processes. With the dramatic rise in campaign spending, voters without wealth are effectively denied their right to be heard. The increasing dominance of wealthy donors in city council elections serves to subjugate the voices of most Cincinnati voters.

The facts of this case demonstrate that voters without wealth cannot compete in the debate of ideas which is at the core of our elections process and which is protected by the First Amendment. Williams v. Rhodes, 393 U.S. 23, 32 (1968). See Statement of Facts, Nos. __-___; Makinson Affidavit, Driehaus Affidavit, Smith Affidavit.

The Supreme Court has opened up, not closed, the electoral process by striking down state created barriers to effective voter participation as violations of the First Amendment. In Williams v. Rhodes, 393 U.S. 23, the Supreme Court struck down Ohio's statutory regime which erected numerous barriers for George Wallace's supporters to get his name on the presidential primary ballot. The Court articulated the First Amendment's protection of voters' rights to include: "the right of qualified voters, regardless of their political persuasion, to cast their votes effectively." Id. at 31. See also, Anderson v. Celebreeze, 460 U.S. at 787-88 (First Amendment rights of voters to cast their votes effectively); Illinois Bd. Of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979) ( First Amendment protects voters' rights "to cast their ballots effectively.")

The City's ordinance promotes these First Amendment rights by creating a level playing field for all voters and candidates and by ending the undue influence of wealthy donors in the City's election and legislative processes.

The high costs of city council elections today discourage qualified potential candidates who are without wealth or access to wealth from running for the council, and, thus, limit voters' choices. Candidates without wealth or access to wealth are unable to raise and spend hundreds of thousands of dollars to deliver their messages. During the twenty months of debate and deliberation about the campaign finance issue in the City's elections, Councilmembers Todd Portune and Tyrone Yates and the League of Women Voters of the Cincinnati Area voiced their concerns about this imbalance in voters' and candidates' ability to speak in elections. They explained that this imbalance results in an electorate deprived of opposing viewpoints which are necessary to be accurately informed both about issues and about candidate qualifications. This represents a serious threat to democracy. It conflicts with the City's interest in an informed electorate. Anderson v. Celebreeze, 460 U.S. at 796 ("There can be no question about the legitimacy of the state's interest in fostering informed and educated expressions of the popular will in a general election.")

B. The City's ordinance is closely drawn to address its sufficient important state interests.

Under established case law, this court's decision about whether the ordinance is closely drawn is heavily factual. Burson v. Freeman, 504 U.S. at 200. In determining the constitutionality of Tennessee's ban on electioneering at the polls, the Burson Court considered the evolution of election reform which led to protecting voters' privacy at the polls, as well as how the regulation limited the campaign rights of candidates. Id. In determining whether the 100-foot zone was sufficiently tailored, the Court decided the factual dispute: "The real question is how large a restricted zone is permissible or sufficiently tailored." 504 U.S. at 208. The question in Buckley of how the contribution and expenditure limits would operate to affect congressional campaigns was a factual inquiry. 424 U.S. at 13-29.

The City's ordinance is closely drawn to address its sufficiently important state interests. The ordinance sets the overall campaign spending limit in Cincinnati city council elections at the reasonable level of $140,000. The facts of this case demonstrate that this level of expenditures for a city council campaign is more than sufficient for candidates to broadcast their messages and be heard while ensuring that the City's interests in protecting the integrity of the democratic process will be addressed.

Television advertising is a key means of name recognition for Cincinnati city council candidates and accounts for the largest amount of a candidate's campaign expenditures. As the Defendant-Intervenors' expert Jerry Galvin describes, based on his 30 years of experience in the advertising business in Greater Cincinnati:

In my experience, virtually all successful candidates for Cincinnati City Council have purchased television advertising time to communicate their message to voters. Television advertising time is used to increase a candidate's name recognition among potential voters and to commuicate a message to voters as to why such candidates should be elected to City Council. In my experience, the cost of television advertising represents the largest portion of expenditures made on behalf of successful candidates for Cincinnati City Council.

Affidavit of Jerry Galvin, 2, (submitted with Defendant-Intervenors' brief in opposition to Plaintiffs' Motion for Summary Judgment) (hereinafter referred to as "Galvin Affidavit.")

See also Statement of Facts, Nos. ___-____.

Cincinnati city council candidates need not purchase unlimited amounts of media time in order to get name recognition in a sufficient manner. As Galvin explains:

[A]n advertising purchase of 1,000 gross ratings points during a thirty-day period is more than sufficient to assure that all households in the community will be sufficiently exposed to the advertising message. In fact, a media buy of 1,000 gross ratings points will assure that many local viewers will see an advertisement several times, not just once. Based upon my familiarity with local media advertising pricing, it is my opinion that a local candidate for Cincinnati City Council could purchase 1,000 gross ratings points for no more than approximately $70,000 to $80,000.

Galvin Affidavit, 4; Statement of Facts, No. ___.

In recent years, some candidates, including plaintiff John Kruse, have purchased "unnecessarily excessive quantities of television advertisements." Id. These excessive purchases "have the effect of buying up more advertising spots than necessary to communicate with voters [and]...of preempting the right of other, less well-funded candidates, to purchase the most valuable advertising spots." Id. With the campaign spending limit set at approximately $140,000, city council candidates who raise funds to that level will be able to purchase enough television time to broadcast their messages and still have an ability to spend approximately half of their campaign money on other expenses. This is a material fact in dispute in this litigation.

Further, the experience of the 1995 city council election in Cincinnati demonstrates that candidates can not only broadcast their messages in a sufficient manner but can also win on a budget of less than $140,000. Of the nine winning candidates in 1995, four spent less than $140,000, including City Councilmember Tyrone Yates who spent only $33,000. See Portune Affidavit; Sterne Affidavit; Yates Affidavit; Statement of Facts, Nos. __-___. This list includes challenger candidate Minette J. Cooper who spent far below the $140,000 level to win election in 1995, and who states in her affidavit that "an effective, winning campaign can be financed for well under" the ordinance's limit. See Cooper Affidavit, 3. Candidates winning on these reasonable campaign budgets testify to the importance of direct voter contact in Cincinnati elections and participation in candidate forums for communicating substantive messages to the electorate. See Cooper Affidavit; Sterne Affidavit; Yates Affidavit. See also Qualls Affidavit (describing how a system of unlimited spending can force candidates to spend even higher amounts and stating that the ordinance sets "a very reasonable limit.")

The City's ordinance provides more than enough ability for city council candidates to spend campaign money in amounts sufficient for reaching Cincinnati voters. The ordinance is closely drawn to address its sufficiently important state interests.

C. The City's ordinance is a reasonable regulation on the manner of speech in the city council election process.

The City's ordinance is constitutionally justified by sufficiently important state interests which protect the integrity of the City's election process. In the alternative, the City's ordinance is constitutionally justified as a reasonable regulation on the manner of speech, in accordance with the long line of court rulings upholding reasonable time, manner, and place regulations.

The Supreme Court has long held that the government may impose reasonable regulations on the manner of speech and that the First Amendment does not include a right to drown out the speech of others. In Kovacs v. Cooper, 336 U.S. 77 (1949), the Court reviewed a Trenton, New Jersey ordinance regulating the use of soundtrucks on public streets. The Court held that the ordinance was a reasonable regulation on the manner of speech: "Unrestrained use throughout a municipality of all sound amplifying devices would be intolerable." Id. at 81.

Central to the Court's ruling in Kovacs was its view that public streets were designed for use by the public and ought not to be obstructed by any specific individuals or groups of individuals. "Opportunity to gain the public's ears by objectionably amplified sound on the streets is no more assured by the right of free speech than is the unlimited opportunity to address gatherings on the streets." Id. at 87-88. As Justice Jackson wrote in his concurrence, "[f]reedom of speech for Kovacs does not, in my view, include freedom to use sound amplifiers to drown out the natural speech of others." Id. at 97. See also Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 805-806 (1984) (upholding municipal ordinance prohibiting posting of signs on public property and citing Kovacs).

Just as the Trenton ordinance in Kovacs was a reasonable regulation on the manner of speech which protected the purpose of the public streets, the City's ordinance here is a reasonable regulation on the manner of speech which protects the purpose of public elections. By limiting campaign expenditures for all candidates, it ensures that some will not speak in such a manner so as to drown out the speech of others.

The Buckley Court sought to create an irrational distinction between the Kovacs holding and its holding on campaign expenditure limits. "The decibel restriction upheld in Kovacs," the Court stated, "limited the manner of operating a sountruck, but not the extent of its proper use." 424 U.S. at 18-19, n.17. Yet, one's manner of speech necessarily involves how loudly one speaks. A person who is whispering is speaking in a different way, using a different manner of speech, than one who is shouting. A candidate who is flooding the television airwaves with excessive 30-second commercials is speaking in a different manner than a candidate who is engaged in direct voter contact throughout the city. As Judge J. Skelly Wright, the author of the D.C. Circuit Court of Appeals decision in Buckley, wrote following the Supreme Court's Buckley ruling: "[T]he distinction [between manner and extent of speech] simply does not bear up under analysis." J. Skelly Wright, "Politics and the Constitution: Is Money Speech?," 85 Yale Law Journal 1001, 1011, n.41 (1976).

The new facts presented in this case demonstrate that candidates for Cincinnati City Council use different manners of speech in their campaigns and that some have been drowning out the speech of others with excessive campaign expenditures. See Cooper, Portune, Sterne, and Yates Affidavits; Makinson Affidavit; Galvin Affidavit. The City's ordinance follows a long line of reasonable regulations on the manner of speech, and, as such, protects the basic integrity of the City's election process.

V. CONCLUSION

The plaintiffs' motion for summary judgment is not ripe. The City has demonstrated that there are numerous material facts in dispute. Further, these facts were not available to the Buckley Court and they provide an entirely new context for addressing the constitutional questions presented in this case. The City has the right to go to trial on the factually-based inquiry of whether it has sufficiently important state interests justifying its campaign spending limits ordinance and whether the limit is set at a reasonable level which allows Cincinnati city council candidates to run a viable campaign. The plaintiffs' motion should be denied.

FOOTNOTES

1 The Statement of Facts includes data presented in the City's two expert affidavits, (Affidavit of Larry Makinson and Affidavit of John Deardourff). These expert affidavits further confirm the basis of the City Council's actual purposes in passing Ordinance 240-1995. See Contractors Ass'n v. City of Philadelphia, 6 F.3d 990 (3rd Cir. 1993); Harrison & Burrowes Bridge Constructors v. Cuomo, 981 F. 2d 50 (2nd Cir. 1992); Coral Construction Company v. King County, 941 F. 2d 910 (9th Cir. 1991) (allowing for additional factual development following enactment of an ordinance or statute to explain further the basis of the actual purposes behind the legislative actions). The standard from Shaw v. Hunt, 116 S.Ct. 1894 (1996), is not applicable here since the City had actual purposes in passing its campaign spending limits ordinance. Here, the issue is a moot one since the plaintiffs have agreed to stipulate to all facts as true and since there are material facts in dispute.

2 Plaintiffs argue that the ordinance had no actual purpose supporting it. Plaintiffs' Motion for Resolution on Motion for Summary Judgment, 14.

3 Id. at 10.

4 See Defendants' Exhibits 5-7, Affidavits of Councilmembers Todd Portune, Bobbie Sterne, and Tyrone Yates.

5 Plaintiffs have alleged that the Defendants acted with "willful and malicious intent" in passing the ordinance. Plaintiffs' First Amended Complaint, 12. The extensive legislative history clearly demonstrates that this argument is frivolous.

6 See Testimony before Law Committee, Aug. 31, 1993, Janet Lewis, Executive Director, Common Cause/Ohio, attached to Portune Affidavit.

7 Portune Statement of Oct.22, 1993, attached to Portune Affidavit.

8 See Cincinnati Post editorial, April 28, 1994, attached to Portune Affidavit.

9 See Statement of Dell Heitkamp attached to Portune Affidavit.

10 Campaign finance matters are way out of control with the amount of money that is spent to influence the political process." See Transcript of July 6, 1995 Council meeting, Defendants' Exhibit 13, pg 9. Mr. Yates explains in his affidavit that he has seen councilmembers who received large contributions from corporate contributors vote on matters of critical importance to those contributors and has even suggested that some votes appear to be pay backs for the contributions. Yates Affidavit.

11 Sterne Affidavit, para. 14.

12 Transcript of July 5, 1996 Council meeting, 2, 4.

13 The Supreme Court in Buckley set forth this standard for analyzing the constitutionality of campaign contribution and expenditure limits passed by the United States Congress. While the Court referred to "'the closest scrutiny,'" Buckley v. Valeo, 424 U.S. 1, 25 (1976) (citing NAACP v. Alabama, 357 U.S. 449, 460-461 (1958), it did not, at any time in the opinion, cite strict scrutiny as the standard nor did it employ the commonly understood language for strict scrutiny, requiring a "compelling state interest" and means which are "narrowly drawn" to meet that interest.

14Plaintiffs cite Colorado Republican Federal Campaign Committee v. Federal Election Commission, 116 S.Ct. 2309 (1996) as "reaffirming and extending Buckley." Plaintiffs' Motion for Resolution on Motion for Summary Judgment, pg. 4. However, in that case a plurality of the Supreme Court found that the party expenditures at issue were independent expenditures and did not reach the issue of campaign spending limits.

15 See also Planned Parenthood v. Casey, 505 U.S. 833, 861 (1992), for a reaffirmation of the principle that the Court will reexamine a prior holding based upon new facts and circumstances: "In constitutional adjudication as elsewhere in life, changed circumstances may impose new obligations, and the thoughtful part of the Nation would accept each decision to overrule a prior case a response to the Court's constitutional duty."

16 Ronald Dworkin, a professor of First Amendment and constitutional law, led the issuance of a statement in late October 1996 of prominent constitutional scholars from across the nation calling for the reversal of the Buckley ruling.

17 This Country has a ". . .profound national commitment to the principle that the debate on public issues should be uninhibited, robust and wide-open. . ." New York Times v. Sullivan, 376 U.S. 254, 271 (1974).