Legal Library

CASE NO. 97-3174

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

RONALD SUSTER: PATRICIA CLEARY,

Plaintiffs-Appellees Cross-Appellants

BETH SMITH;, ET AL.,

Intervenors-Plaintiffs-Appellees

TIMOTHY P. MALONEY,

Intervenor-Plaintiff-Appellee

v.

JONATHAN W. MARSHALL; ROBIN G. WEAVER; DAVID T. EVANS;
THOMAS J. MOYER, Chief Justice; ANDREW DOUGLAS;
ALICE ROBIE RESNICK; FRANCIS E. SWEENEY;
PAUL E. PFEIFER; DEBORAH L. COOK; EVELYN L. STRATTON,

Defendants-Appellants Cross-Appellees


ON APPEAL FOR THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO


AMICUS CURIAE BRIEF OF ARIZONA, CONNECTICUT,
FLORIDA, HAWAII, INDIANA, IOWA, KANSAS, KENTUCKY,
MASSACHUSETTS, MICHIGAN, MINNESOTA, MISSISSIPPI,
MONTANA, NEVADA, NEW HAMPSHIRE, NORTH CAROLINA,
NORTH DAKOTA, OKLAHOMA, UTAH, VERMONT,
WASHINGTON, WEST VIRGINIA; AND SECRETARIES OF STATE
OF CONNECTICUT, MASSACHUSETTS, MONTANA, NEW HAMPSHIRE,
TENNESSEE, WASHINGTON, WEST VIRGINIA, AND WISCONSIN;
NATIONAL VOTING RIGHTS INSTITUTE; AND
BRENNAN CENTER FOR JUSTICE

TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTRODUCTION

STATEMENT OF ISSUE

SUMMARY OF ARGUMENT

ARGUMENT

A. Ceiling on Campaign Expenditures in Judicial Elections Does Not Violate the First Amendment.

B. Buckley v. Valeo Does Not Require That All Campaign Expenditure Limits be Invalidated.

CONCLUSION


TABLE OF AUTHORITIES

CASES

Ackerson v. Kentucky Judicial Retirement & RemovalCommission, 776 F.Supp. 309 (W.D. Ky. 1991)

Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990)

Berger v. Supreme Court of Ohio, 598 F.Supp. 69 (S.D. Ohio 1984), aff'd. 861 F.2d 719 (6th Cir. 1988)

Beshear v. Butt, 863 F. Supp. 913 (E.D. Ark. 1994)

Buckley v. Illinois Judicial Inquiry Board, 997 F.2d 224 (7th Cir. 1993)

Buckley v. Valeo, 424 U.S. at 26-27 (1976)

Buckley v. Valeo, 519 F.2d 821 (D.C. Cir. 1975)

Carver v. Nixon, 72 F.2d 633 (8th Cir. 1995), cert. denied, ___ U.S. ___, 116 S.Ct. 2579, 135 L.Ed.2d 1094 (1996)

CSC v. Letter Carriers, 413 U.S. 548 (1973)

FEC v. Nat'l Right to Work Comm., 459 U.S. 197 (1982)

Kovacs v. Cooper, 336 U.S. 77 (1949)

McCormick v. U.S. 500 U.S. 257 (1991)

Morial v. Judiciary Commission, 565 F.2d 295 (5th Cir. 1977), cert. denied, 435 U.S. 1013 (1978)

Republican Nat'l Committee v. FEC, 487 F.Supp. 280(S.D. N.Y.), aff'd 445 U.S. 955 (1980)

Rosenstiel v. Rodriguez, 101 F.3d 1544 (8th Cir. 1996)

Schenck v. United States, 249 U.S. 47 (1919)

Shrink Mo. Gov't PAC v. Maupin, 71 F.3d 1422 (8th Cir. 1995)

Stretton v. Disciplinary Board of Supreme Court of Pa., 944 F.2d 137 (3rd Cir. 1991)

Taylor v. Hayes, 418 U.S. 488 (1974)

Tumey v. Ohio, 273 U.S. 510 (1927)

U.S. v. International Union, 352 U.S. 567 (1957)

United States v. O'Brien, 391 U.S. 367 (1968)

Vote Choice, Inc. v. DiStefano, 4 F.3d 26 (1st Cir. 1993)

Ward v. Village of Monroeville, Ohio, 409 U.S. 57 (1972)


STATUTES AND REGULATIONS

Canon 7 of Model Code of Judicial Conduct 8


MISCELLANEOUS

American Bar Association, Model Code of Judicial Conduct, Canon 5C(2) (1990)

Champagne, "Judicial Reform in Texas," 72 Judicature 146 (1988)

Paul A. Freund, Federal Regulation Of Campaign Finance: Some Constitutional Questions, 71 (Citizens Research Foundation Ed., Study No. 18, 1972)

L. Tribe, American Constitutional Law, §13-27 at 1135 (2d Ed. 1988)

Monaghan, "The Supreme Court, 1995 Term: Leading Cases," 110 Harvard Law Rev. 135, 243 - n.69/70, 244 - n. 71-74 (1996)

M.A. Nicholson, Buckley v. Valeo, the Constitutionality of the Federal Election Campaign Act Enactments of 1974, 1977 Wis. L. Rev. 323

The New Constitutional Right to Buy Elections, 69 ABA Journal, 1078 (1983) 22

"Panel's Proposal Would Change Way Judges Are Picked, Elected," Seattle Post-Intelligencer, 1996 General Election Guide (1996)

Shane, "Commentary, Back to the Future of the American State: Overruling Buckley v. Valeo and other Madisonian steps," 57 U. Pitt. L. Rev. 443 (1996)

Shepard, "Campaign Speech: Restraint and Liberty in Judicial Ethics," 9 Geo. J. Legal Ethics, 1059 (1996)

State Judicial Elections and Procedural Due Process," 31 Harv. Civ. R.-Civ. L. L. Rev. 187, 194 (1996)

Weiner, "Popular Justice: State Judicial Elections and Procedural Due Process," 31 Harv. C.R.-C.L. L. Rev. 187 (1996)

J. Skelly Wright, Politics and the Constitution: Is Money Speech?, 85 Yale L.J. 1001 (1976)

Wright, "Money and the Politics: Is the First Amendment an Obstacle to Political Equality?" 82 Colum. L. Rev. 609 (1982)



I.

INTRODUCTION

This amicus curiae brief is filed in support of the Appellants by the Attorneys General of Arizona, Connecticut, Florida, Hawaii, Indiana, Iowa, Kansas, Kentucky, Massachusetts, Michigan, Minnesota, Mississippi, Montana, Nevada, North Carolina, North Dakota, Oklahoma, Utah, Vermont, Washington and West Virginia. The State of New Hampshire, which has no judicial elections, joins in part IV (B). Also joining in the brief are the Secretaries of State of Connecticut, Massachusetts, Montana, New Hampshire, Tennessee, Washington, West Virginia, and Wisconsin; the National Voting Rights Institute; and the Brennan Center for Justice.

The amici States have a compelling interest in preventing corruption and the appearance of corruption in all State political elections. The amici States also have compelling interests in limiting the negative impacts of fundraising on the performance of public officials. Public distrust of government because of campaign finance issues adversely affects all government officials.

In the years since the Supreme Court decided Buckley v. Valeo, 424 U.S. 1 (1976), the amici States have seen marked increases in the amount of campaign expenditures. The astronomical increase in campaign spending was not anticipated by the Supreme Court, but is a direct consequence of the ruling in Buckley. The amici States are concerned that limits on individual campaign contributions alone do not prevent corruption or the appearance of corruption, as Buckley optimistically assumed.

Further, as the experience in judicial elections particularly illustrates, there are compelling State interests beyond prevention of the most extreme forms of corruption. All States, however they select judges, have a compelling State interest in preventing partiality in adjudication, assuring judicial integrity, and assuring public belief in judicial impartiality. Six States elect judges in partisan elections; thirteen States, including Ohio, have contested, nonpartisan elections. Sixteen States have appointive judges who stand election for retention; Montana has retention elections for unopposed judges. Twelve States have mixed appointive and elective systems. Thus, only a few States have no judicial elections. Schochinski, "Towards an Independent, Fair, and Competent Judiciary," 7 Geo. J. Legal Ethics 839, 848-849 (1994).

Each State joining this brief has a vital interest in (a) preserving the free speech and due process rights of our citizens; (b) preserving the integrity of the judiciary and avoiding the appearance of corruption in judicial offices; (c) reducing corruption and the appearance of corruption in government generally; and (d) assuring public faith and participation in the democratic process. Accordingly, the amici States respectfully urge this Court to uphold Canon 7(c)(6) of the Ohio Code of Judicial Conduct, which places a ceiling on the amount of funds a candidate may spend in a judicial election campaign. In so doing the amici States believe this Court may critically reexamine the Supreme Court's conclusion in Buckley v. Valeo, 424 U.S. 16 (1976), that a ceiling on campaign expenditures violates the First Amendment to the United States Constitution.

The Amici submit that, whatever reasoned underpinning Buckley may have had when it was decided, the events of the last twenty years reveal that reasonable ceilings on campaign spending are needed to insure the robust and "unfettered interchange of ideas" that is at the core of the First Amendment. Buckley v. Valeo, 424 U.S. at 14, quoting Roth v. United States, 354 U.S. 476, 484 (1957). Ohio has established a compelling interest in shielding its judiciary from the appearance of corruption and potential for improper influence which flow from excessive campaign expenditures. The expenditure limitations at issue in this case are narrowly tailored to serve this interest.

Amici bring to this Court's attention a pending appeal before the Sixth Circuit in Kruse v. City of Cincinnati, Case No. 97-3194, docketed March 3, 1997. In Kruse, the City of Cincinnati is appealing a district court ruling striking down, as unconstitutional, campaign expenditure limits enacted by the Cincinnati City Council for its city council races. The district court issued its decision on the basis of Buckley. In defense of its ordinance, the City has developed a factual record on the facts and circumstances in Cincinnati city council elections which warrant a reconsideration of the Buckley ruling. The present case raises issues of campaign expenditure limits in judicial elections while Kruse raises issues regarding campaign expenditure limits in local legislative elections.

Amicus National Voting Rights Institute is a non-profit organization dedicated to protecting the rights of non-wealthy voters and candidates in the political process. The Institute is engaged in litigation and public education across the country which focuses on the discriminatory impact of the current campaign finance system on voters and candidates based on their economic status. The Institute represents the City of Cincinnati in Kruse in defense of the city's ordinance setting campaign expenditure limits in Cincinnati city council elections. The Institute's litigation also includes representation of the NAACP and others in a case before the Ninth Circuit Court of Appeals involving the private financing of judicial elections in California. NAACP v. Jones, Ninth Circuit case no. 96-56455.

The Brennan Center for Justice is a partnership between law clerks who served Justice William Brennan, Jr., and the faculty of New York University School of Law, designed to honor Justice Brennan. In keeping with Justice Brennan's legendary contributions to the law of American democracy, the Center has chosen to concentrate initially on a Democracy Project. The Brennan Center joins in this brief as it recognizes the need, in light of new facts and circumstances about money in politics today, to revisit Buckley v. Valeo.

For the reasons set forth below, and in the brief of appellants, the amici States respectfully request this Court to reverse the decision of the district court to the extent it found the ceiling on campaign expenditures in Canon 7(c)(6) unconstitutional.

II.

STATEMENT OF THE ISSUE

Whether the district court erred in granting preliminary injunctions prohibiting the enforcement of Judicial Canon VII(C)(6) even though such Canon is a constitutional regulation?

III.

SUMMARY OF ARGUMENT

Amici States submit that our system of governance is confronted with a blight so serious that the electoral process itself -- and the First Amendment rights of our citizens to participate in it -- is surely being undermined. The huge amounts of money required to seek and win election to public office and the appearance of corruption attendant thereto threaten fundamental democratic principles. Newspaper headlines, editorials, and criticisms surrounding the effect of big money on politics are seen almost daily. One legal commentator summarized the crisis as follows: "The inordinate role that wealth plays in American politics [is] the most pressing threat to American democracy today." S. Loffredo, "Poverty, Democracy and Constitutional Law," 141 U. Pa. L. Rev. 1277, 1278-79 (1993).

The Ohio Supreme Court enacted a narrowly tailored and reasonable ceiling on total campaign expenditures in judicial elections. That spending limitation is the subject of this appeal. Canon 7(c)(6) must be upheld in the face of the First Amendment challenge for two reasons. First, for purposes of First Amendment analysis, judges stand in a different position with relationship to public trust than do elected legislative and executive branch officials and judicial elections are different from legislative and executive branch elections. Reasonable limitations on judicial campaign practices implicate not only the Free Speech interests of candidates and their supporters, but also the important interests in an impartial judiciary that underlie the Due Process Clause. States have a compelling interest in assuring judicial impartiality and public acceptance of the rule of law. The Ohio Supreme Court weighed those interests and concluded that limitations on judicial campaign expenditures are necessary to protect this fundamental right to an independent and impartial judiciary. The limitation at issue here merely affects the manner of speech and should be upheld. See Section IV. A. below.

Second, in Section IV. B. below, Amici set forth why campaign expenditure ceilings are constitutional and why the broad language of Buckley v. Valeo to the contrary must be reexamined. Buckley held that spending limitations were not necessary because contribution limitations would prevent corruption. Twenty years of experience since Buckley reveal that the taint of corruption created by big money in politics has not been lifted simply by imposing limits on individual contributions. On the contrary, the last twenty years have seen an unprecedented increase in campaign spending, and an institutionalization of the need for huge sums of money to participate in the electoral process which reduces public acceptance of the electoral process. Thus, reasonable, narrowly tailored campaign spending limitations are necessary to further compelling State interests.

IV.

ARGUMENT

A. A Ceiling on Campaign Expenditures in Judicial Elections Does Not Violate the First Amendment.

The States have a compelling interest in avoiding even the appearance of bias by judges. The Supreme Court has held that even an indirect financial interest in a pending case can present sufficient risk of bias to violate the Due Process Clause. It therefore invalidated State court action where the police court judge received a small amount of each fine, Tumey v. Ohio, 273 U.S. 510 (1927), and held a mayor could not adjudicate traffic offenses where fines went into the town treasury, Ward v. Village of Monroeville, Ohio, 409 U.S. 57 (1972). Even the appearance of bias can at times create sufficient risk to the right to fair trial to violate due process. Taylor v. Hayes, 418 U.S. 488, 501 (1974) (requiring recusal in attorney contempt case by trial judge). See Weiner, "Popular Justice: State Judicial Elections and Procedural Due Process," 31 Harv. C.R.-C.L. L. Rev. 187, 190-191 (1996).

Assuring an impartial judiciary is a compelling State interest sufficient to permit reasonable regulation of judicial elections necessary to achieve that purpose. Ackerson v. Kentucky Judicial Retirement & Removal Commission, 776 F.Supp. 309, 315 (W.D. Ky. 1991) (upholding limitations in Canon 7 of Model Code of Judicial Conduct on candidate's discussion of litigation issues). States have a compelling interest in assuring that "judicial campaigns are run in a manner so as not to damage the actual and perceived integrity of state judges and the bar . . . ." Berger v. Supreme Court of Ohio, 598 F.Supp. 69, 75 (S.D. Ohio 1984), aff'd. 861 F.2d 719 (6th Cir. 1988) (upholding prohibition on misrepresentation or campaign pledges on disputed legal issues). "The fact that a state chooses to select its judges by popular election . . . does not signify the abandonment of the ideal of an impartial judiciary carrying out its duties fairly and thoroughly." Stretton v. Disciplinary Board of Supreme Court of Pa., 944 F.2d 137, 142 (3rd Cir. 1991) (judicial candidates could be restricted from commenting on issues likely to come before them as judges and from personally soliciting campaign contributions).{1} "The state's interest in ensuring that judges be and appear to be neither antagonistic nor beholden to any interest, party, or person is entitled to the greatest respect." Morial v. Judiciary Commission, 565 F.2d 295, 302 (5th Cir. 1977), cert. denied, 435 U.S. 1013 (1978) (upholding requirement that judge resign before campaigning for non-judicial office).

Restrictions on judicial election practices involve not only the First Amendment interests of candidates, but also the interests in an impartial judiciary which underlie the Due Process Clause. As set forth by Randall Shepard, Chief Justice of the Indiana Supreme Court, it is inappropriate to view judicial campaign limitations without considering the interests of due process.

The First Amendment analysis by its nature tends to highlight the electoral interests of the judge as a candidate and the citizens as voters. It often fails to recognize that these men and women are candidates to a single end, that of becoming judges, and once judges, the interests of the litigants they serve and the judicial system as a whole should be paramount. Once this is appreciated, the restraints on judicial electioneering can be seen for what they are, due process protections for litigants arguing before the elected judges.

Shepard, "Campaign Speech: Restraint and Liberty in Judicial Ethics," 9 Geo. J. Legal Ethics, 1059, 1060 (1996) (discussing limitations on judicial campaign promises).

The record establishes that the quantity of expenditures in judicial campaigns, and not just the amount of individual contributions, creates a perception of "justice for sale." The University of Cincinnati Institute for Policy Research conducted a survey of Ohio residents regarding public perception of the judiciary and the impact of campaign contributions. Affidavit of Alfred Tuchfarber. The Ohio Supreme Court requested the poll. Ninety percent of respondents believed that judicial decisions are influenced by campaign contributions some of the time; only seven percent believed decisions were never influenced by campaign contributions. Even more appalling, eight percent believed decisions were always influenced by contributions made to the judges' campaigns and over twenty-three percent believed judges were influenced by campaign contributions most of the time.

The Board of Commissioners on Grievances and Discipline of the Ohio Supreme Court concluded that the rising costs of judicial elections was a cause of this public perception of judicial bias.

[I]t was the position of the Board that the fundamental value of an independent and impartial judiciary, and its perception as such by the public it serves, is a sufficiently compelling state interest to justify the limitations to minimize the perception of "justice for sale" engendered by the continually rising costs of judicial elections at all levels and the solicitation of contributions to fund the same.

Affidavit of Harry W. White.

The Ohio Supreme Court limitations on campaign expenditures are narrowly tailored and necessary to avoid the appearance of judicial bias. Limitations on individual contributions were not enough, the Board of Commissioners on Grievances and Discipline concluded:

The position of the Board [of Commissioners on Grievances and Discipline] as reported was based upon a consideration that the solicitation of contributions in a political campaign is driven by the expenditures undertaken or anticipated. Therefore, the beneficial and constitutionally permissive limitations on contributions to the judicial candidate would be minimized, if not eliminated, without a complementary limitation on expenditures. Limited contribution levels and unlimited expenditures could result in a judicial campaign expanding the scope and number of contributors to the extent that the perception of "justice for sale" would become more widespread.

Affidavit of Harry W. White.

It was also the public's view that spending limits would be most useful to reduce the influence of campaign contributions on judicial elections. Of those interviewed in the University of Cincinnati poll, fifty-five percent believed limits on campaign spending would be very useful in helping to limit the influence of campaign contributions on judicial decisions. This was ten percent higher than the comparable view on limits on campaign contributions. About 89 percent of those surveyed believed campaign spending limits would be at least somewhat useful in limiting the influence of campaign contributions on judicial decisions.

The Bar Committee that studied the issue in Ohio also concluded that limitations on total spending were needed. The Ohio State Bar Association appointed a commission to study the issue of judicial campaign contributions and expenditures. This Commission unanimously recommended limitations upon both campaign contributions and overall spending. (Memorandum to the Board of Governors of the Ohio State Bar Association from the Ad Hoc Committee to Review Supreme Court Campaign Finances, Aug. 23, 1993, p. 1-2.) The chair, Gerald L. Draper, is an experienced lawyer and former president of both the Columbus Bar and the Ohio State Bar. Mr. Draper testified:

In my view, reasonable limitations on contributions to judicial candidates and overall limitations upon spending in judicial campaign races not only promote the public perception of judicial neutrality, but are the best means, short of merit selection of judges, available to achieve that desired result.

Affidavit of Dwyer.

A municipal court judge also testified by affidavit of "an ever increasing skepticism by the citizens of Franklin County as to judicial impartiality caused by a reliance by judges on individuals who contribute to judicial campaigns." Affidavit of Judge Richard C. Pfeiffer. Judge Pfeiffer also concluded that limitations on campaign contributions alone would not substantially remove this perception by the public that "money influences judicial fairness." Both law reviews and the mainstream press provide numerous instances where public perception of impartiality is strained by the high costs of today's judicial elections -- and the means used to pay those costs.

The problems arising from high campaign spending in judicial elections differ from those for legislative or executive offices, as shown by studies of Texas judicial elections. Most contributions come from lawyers or potential litigants, so the base of contributors is quite small. Champagne, "Judicial Reform in Texas," 72 Judicature 146, 149 (1988). This is also the group most likely to be affected by the judge's official performance in individual cases. In one Texas judicial race, over one million dollars in contributions were received, and about half came from only 76 donors, many of whom were related or affiliated with the same law firm. Id. A newspaper report on the campaign treasuries of the nine members of the Texas Supreme Court in 1987 showed that eight law firms contributed about 18 percent of the total campaign treasuries. Three law firms had given over $ 722,000 to the justices' campaigns between 1980 and 1987, or nine percent of the nine justices' total campaign contributions. Id. at 153. In a 1989 Pennsylvania Supreme Court race, the winning candidate spent $1,400,000 -- $800,000 contributed by law firms. Weiner, "Popular Justice: State Judicial Elections and Procedural Due Process," 31 Harv. Civ. R.-Civ. L. L. Rev. 187, 194 (1996). According to the same article, California has had the most expensive judicial campaign in American history, with over $11,400,000 spent in a 1986 retention election in which three state supreme court justices were defeated. Id. at 195. As that author observed:

These are just examples of a nation-wide phenomenon. Given the increasingly expensive nature of elections generally, judges must seek substantial campaign contributions, often from litigants and lawyers with business before the judge at issue.

Id. at 196.

Caps on individual campaign contributions do not address the problems created by competition for contributions from two or more segments of the bar. This and the increased use of expensive advertising media are cited as the two most significant factors causing a dramatic increase in the dependency on, and influence of, campaign contributions in judicial elections in the last twenty years. 31 Harv. Civ. R.- Civ. L. L. Rev. at 193. The Mobile Register in an editorial dated December 29, 1994, claimed that the "public's estimate of judicial elections was pushed to its lowest point" by a recent state supreme court election. The reason, asserted the paper, was that "Plaintiffs' lawyers on the one side and business interests on the other pour millions of dollars into judicial campaigns to get their respective allies elected to the bench." A Judicature article asserted that the Texas Supreme Court, and some lower court, races have seen "campaign finance wars between plaintiff and defense lawyers." 72 Judicature at 149.

Ohio is not the only State that has had a state-wide commission conclude that the high cost of judicial elections is itself a critical problem. In Washington State, a commission appointed by the Supreme Court Chief Justice, the Governor, and legislative leaders recently called for shifting from a competitive election to a retention election for judges. A key reason is to reduce the mounting cost of judicial campaigns. The commission concluded, "Maintaining impartiality is difficult when one must seek very substantial financial help from special interest groups." "Panel's Proposal Would Change Way Judges Are Picked, Elected," Seattle Post-Intelligencer, 1996 General Election Guide (1996).

States and the public reasonably fear that this competitive fundraising spiral can have significant adverse effects on the performance of judges. As shown by the examples above, the extent of contributions from one or more affected segment of the bar can be very significant. Knowledge of this dependence plus the efforts required to organize a fundraising campaign sufficient to generate upwards of one million dollars for statewide races clearly can adversely affect the performance of the judge.{2}

B. Buckley v. Valeo Does Not Require That All Campaign Expenditure Limits be Invalidated

The States respectfully submit that the pronouncement in Buckley v. Valeo on limits on expenditures does not end the inquiry. This case presents facts and legal arguments which were not considered in Buckley. Moreover, the reasoning of the Buckley case should not preclude all limits on campaign expenditures.

1. The Buckley decision.

In 1974, in the wake of Watergate, and other scandals involving campaign financing, Congress passed a series of amendments to the Federal Election Campaign Act ("FECA"). The amendments imposed limits on the amount of individual and Political Action Committee ("PAC") contributions to federal candidates as well as limits on overall campaign expenditures in congressional and presidential elections.

A suit was promptly filed challenging, on First Amendment grounds, the limits on individual contributions and the overall caps on expenditures. The United States Court of Appeals for the District of Columbia Circuit upheld the limits on contributions and expenditures finding that the government had "a clear and compelling interest in safeguarding the integrity of elections and avoiding the undue influence of wealth". Buckley v. Valeo, 519 F.2d 821, 841 (D.C. Cir. 1975). Judge J. Skelly Wright wrote that:

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 then the unwealthy many because they are able to give and spend more money, and because the amounts they give and spend cannot be limited.
Id.

On appeal, the United States Supreme Court affirmed in part and reversed in part. The Court upheld the limitations on individual and PAC contributions of $1000 and $5000 respectively in a primary or general election. It is significant for purposes of this appeal that the Supreme Court found the government's interest in preventing corruption and the appearance of corruption sufficient to justify limitations upon the exercise of the First Amendment right of all citizens to contribute funds in support of political candidates.

To the extent that large contributions are given to secure political quid pro quo's from current and potential office holders, the integrity of our system of representative democracy is undermined.

. . . .

Of almost equal concern as the danger of actual quid pro quo arrangements is the impact of appearance of corruption stemming from political awareness of the opportunities for abuse inherent in a regime of large individual financial contributions. . . . here, as there, 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 v. Valeo, 424 U.S. at 26-27, quoting CSC v. Letter Carriers, 413 U.S. 548, 565 (1973). Applying this reasoning, the Court upheld another provision of FECA which limited the overall amount that an individual could contribute to all federal candidates to $25,000 during any calendar year. Buckley v. Valeo, 424 U.S. at 38.

The Court went on to reverse the Court of Appeals and strike down the overall limit on campaign expenditures. The Court noted that the "major evil associated with rapidly increasing campaign expenditures is the danger of candidate dependence on large contributions." 424 U.S. at 55. The Court reasoned that "[t]he interest in alleviating the corrupting influence of large contributions" was served by FECA's restrictions on individual and PAC contributions and the disclosure provisions which were upheld.

The Court's decision in Buckley unequivocally recognized that the government's interest in arresting the appearance of corruption and impropriety in the election process is sufficiently compelling to outweigh First Amendment interests in expending money on political campaigns. Amici submit, as discussed in further detail below, that the real life experience of the twenty years since Buckley was handed down requires reexamination of expenditure limits in order to address the fact that limits on individual contributors have not alleviated the appearance of corruption in the election process.

In addition, there are other competing interests of constitutional significance which were not raised or not fully developed by the parties nor considered by the Court in Buckley. Those interests include the rights of all candidates to be heard and all voters to hear the views of all candidates without the speech of one candidate drowning out that of others.

2. The Supreme Court's First Amendment Jurisprudence Including Buckley Supports Limits On Total Expenditures

Just as the First Amendment does not give one the right to falsely shout 'fire' in a theater, Schenck v. United States, 249 U.S. 47 (1919), or the right to incite a riot, it does not allow the speech of one person to drown out the speech of others.

The Supreme Court has consistently recognized that speech rights may be restricted where they tread on speech rights of others. See Kovacs v. Cooper, 336 U.S. 77 (1949). In Kovacs, the Court upheld an ordinance of the city of Trenton prohibiting the use of sound trucks on the city streets. The Court reasoned that the "[o]pportunity 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." 336 U.S. at 87-88. And, as Justice Jackson wrote in a concurring opinion, "freedom 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. Kovacs stands as one case in a long line of decisions upholding reasonable limitations on the manner of speech.{3}

In Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), a six-member majority of the Supreme Court upheld a limitation on independent corporate spending in elections. The Court found that the regulation furthered a compelling state interest not in eliminating "financial quid pro quo" corruption, but in reducing "a different type of corruption in the political arena: the corrosive and distorting effects [upon the election process] of immense aggregation of wealth that are accumulated with the help of the corporate form . . . ." Id. at 660. See also FEC v. Nat'l Right to Work Comm., 459 U.S. 197, 207 (1982) (acknowledging legitimate interest in "ensuring that substantial aggregations of wealth amassed by the special advantage of the corporate form of organization should not be converted into political 'war chests' which could be used to incur political debts from legislators who are aided by the contributions"); U.S. v. International Union, 352 U.S. 567, 585 (1957) (interpreting 18 U.S.C. § 610 prohibition upon corporate and labor organization contributions in connection with federal elections in a manner consistent with "the long series of congressional efforts calculated to avoid the deleterious influences on federal elections resulting from the use of money by those who exercise control over large aggregations of capitol.") The state interest in preventing the "corrosive and distorting effects" of large aggregations of wealth on elections has been repeatedly recognized as compelling. The States submit that this interest fully supports the ceiling imposed by Canon 7(c)(6).

A cap on total campaign expenditures is but one more example of a reasonable restriction on the manner, in this case on the volume, of speech. Limiting the money spent in political campaigns does nothing to restrict the content of the message. Rather, these restrictions simply control the quantity of speech. As one noted commentator explained:

The right to speak is, I submit, more central to the values envisaged by the First Amendment than the right to spend. We are dealing here not so much with the right of personal expression or even association, but with dollars and decibels. And just as the volume of sound may be limited by law, so the volume of dollars may be limited without violating the First Amendment.

Paul A. Freund, Federal Regulation Of Campaign Finance: Some Constitutional Questions, 71, 72 (Citizens Research Foundation Ed., Study No. 18, 1972).

In today's political environment, the huge sums of money expended on political campaigns are overwhelmingly devoted to mass advertising whether by television, radio or direct mail. It is accepted campaign strategy to have a sufficiently large "war chest" to drown out the opposition by placing a sufficiently large number of advertisements relative to the opposition that the public can only hear and comprehend one side's arguments. In reality unlimited campaign expenditures reduce the free exchange of ideas at the core of the First Amendment because candidates are drowned out in the course of a campaign. See L. Tribe, American Constitutional Law, §13-27 at 1135 (2d Ed. 1988).

Moreover, because a huge war chest is a prerequisite to a campaign, many people do not even undertake to become candidates, and hence the public never has the opportunity to hear their views as the cost of being heard in the debate is prohibitive. These potential candidates are simply scared off by the necessity of soliciting the contributions needed in order to participate in the dialogue of a political campaign. In short, the articulated purpose of the Buckley Court in striking down expenditure limitations: promoting the "unfettered exchange of ideas," Buckley v. Valeo 424 U.S. at 14, is undermined by the Court's holding. The Buckley Court's First Amendment analysis was described by Professor Forrester as follows:

This sweeping pronouncement is about as sound as a declaration that the First Amendment protects the use of bullhorns by those able to afford them to drown out other speakers in political debate. When justified, the law does equalize voices so all can hear the several messages without undue interference or advantage. That is the sounder, freer view of the First Amendment.

The New Constitutional Right to Buy Elections, 69 ABA Journal, 1078, 1080 (1983).{4}

The quaint days when political candidates could campaign on street corners with bullhorns and sound trucks may be gone forever. Yet, the States believe that the reasoning of the Supreme Court in Kovacs v. Cooper, supra, remains vital to today's political reality.

The reasoning of the Buckley Court in upholding limits on individual contributions should, under today's facts, apply to overall expenditure limits. The Buckley Court assumed that limits on individual contributions would adequately address the state interest in alleviating corruption and the appearance of corruption and there was no need for an overall expenditure limit. Thus spending limits were not believed necessary to further these compelling state interests. The Amici States submit that the reality of the past 21 years establishes that contribution limits are not enough.

3. Corruption and The Appearance of Corruption Are Sufficiently Compelling State Interests to Justify A Ceiling On Campaign Expenditures

Has the Buckley Court's prediction that limiting the amounts that individuals and PACs can contribute will adequately address the corrupting influence of money in politics been borne out in practice? The answer is a resounding "no".

This Court need look no further than the affidavit of Alfred Tuchfarber filed by the defendants-appellants below to see the devastating effect that unlimited campaign spending has on the public's perception of governmental institutions. Mr. Tuchfarber is the director of Policy Research at the University of Cincinnati. A public opinion survey taken by Tuchfarber in October, 1994 found that an astounding 93% of Ohio residents believe that a judge's courtroom decisions are influenced at least some of the time by contributions made to the judge's campaign. Fifty-six percent (56%) of the public believed that limits on total campaign spending would be "very useful" in helping to limit the influence of campaign contributions on judicial decisions.

The University of Cincinnati survey provides a snapshot of the public's distrust of government. The perception of corruption and resulting distrust of government and unwillingness to participate in the democratic process is deep, widespread and an insidious threat to our democracy. And there can be little wonder why. Almost daily, the public is bombarded with news of campaign scandals, favoritism, illegal donations, million-dollar fund-raising parties, hundred-thousand-dollar campaign contributions and junkets with high-level donors and elected officials. Each election cycle, the public is subjected to an increasingly banal barrage of television and radio commercials paid for out of huge war chests. The message that big money has polluted our politics is not limited to the headlines. Reference to the corrupting effect of money in politics is ubiquitous - from the editorial pages of major newspapers to late night television comedians.

On October 31, 1996, the Boston Globe published an editorial entitled simply "A Political Scandal" decrying the influence of money in politics. The Globe stated, "All that cash may be merely unseemly, but the lopsided influence it carries makes it undemocratic." See McCormick v. U.S. 500 U.S. 257, 272-74 (1991) (discussing effect of campaign contributions in the context of extortion prosecution); Monaghan, "The Supreme Court, 1995 Term: Leading Cases," 110 Harvard Law Rev. 135, 243 - n.69/70, 244 - n. 71-74 (1996); Shane, "Commentary, Back to the Future of the American State: Overruling Buckley v. Valeo and other Madisonian steps," 57 U. Pitt. L. Rev. 443 (1996) (and references therein); Wright, "Money and the Politics: Is the First Amendment an Obstacle to Political Equality?" 82 Colum. L. Rev. 609 (1982), (and studies referenced therein).

The Buckley v. Valeo Court recognized that the state has a sufficiently compelling interest in addressing the perception of political corruption to limit First Amendment rights. See also Austin v. Michigan Chamber of Commerce, 494 U.S. at 660. At least two federal circuit courts of appeals have recently held that the corruptive influences of unlimited campaign contributions and expenditures include the negative impact fund-raising efforts have upon a candidate's ability to effectively campaign. See Rosenstiel v. Rodriguez, 101 F.3d 1544, 1553 (8th Cir. 1996), petition for cert pending; Vote Choice, Inc. v. DiStefano, 4 F.3d 26, 39 (1st Cir. 1993). As the Eighth Circuit reasoned in upholding the voluntary expenditure limitations included within Minnesota's public financing system,

the State seeks to promote a reduction in the possibility for corruption that may arise from large campaign contributions and a diminution in the time candidates spend raising campaign contributions, thereby increasing the time available for discussion of the issues and campaigning. It is well settled that these governmental interests are compelling.

Rosenstiel v. Rodriguez, 101 F.3d at 1553, citing Shrink Mo. Gov't PAC v. Maupin, 71 F.3d 1422, 1426 (8th Cir. 1995); Republican Nat'l Committee v. FEC, 487 F.Supp. 280, 285 (S.D. N.Y.), aff'd 445 U.S. 955 (1980); Carver v. Nixon, 72 F.2d 633, 638 (8th Cir. 1995), cert. denied, ___ U.S. ___, 116 S.Ct. 2579, 135 L.Ed.2d 1094 (1996).

It is overwhelmingly evident that the limits on individual and PAC donations upheld in Buckley have not arrested the appearance of political corruption which flows from a candidate's need to solicit and expend huge amounts of campaign funds. In fact as discussed above, public distrust of the campaign process has dramatically increased in recent decades. The State of Ohio's attempt to limit overall expenditures in judicial elections is a narrowly tailored response to this crisis, and should be upheld.

V.

CONCLUSION

The Amici urge this Court to reevaluate campaign expenditure limits in judicial elections in light of the facts and compelling state interests presented in this case which were not raised in Buckley. We submit that Buckley does not and should not stand as a bar to judicial campaign expenditure limits and request the Court to reverse the district court's decision striking down Canon 7(c)(6) as unconstitutional.

Dated: March 17, 1997

Joseph C. Kohn, Esq.
Kohn, Swift & Graf, P.C.
1101 Market Street, Suite 2400
Philadelphia, Pennsylvania 19107-2924
(215) 238-1700 (ph)
(215) 238-1968 (fax)

Richard A. Cordray, Esq. (Ohio Bar No. 0038034)
4900 Grove City Road
Grove City, Ohio 43123
(614) 539-1661 (ph)
(614) 539-9333 (fax)

John C. Bonifaz, Esq.
Abigail Turner, Esq.
National Voting Rights Institute
401 Commonwealth Avenue,
2nd Floor
Boston, Massachusetts 02215
(617) 867-0740 (ph)
(617) 867-0741 (fax)

COUNSEL FOR AMICUS NATIONAL VOTING RIGHTS INSTITUTE

E. Joshua Rosenkranz, Esq.
Brennan Center for Justice
161 Avenue of the Americas
5th Floor
New York, NY 10013
(212) 998-6730 (ph)

BRENNAN CENTER FOR JUSTICE

Thomas J. Miller
Attorney General of Iowa
Elizabeth Osenbaugh
Solicitor General
Hoover Building
Des Moines, IA 50319
(515) 281-3349 (ph)
(515) 281-4209 (fax)

Grant Woods
Attorney General of Arizona
Office of the Attorney General
1275 West Washington Street
Phoenix, AZ 85007

Richard Blumenthal
Attorney General of Connecticut
Office of the Attorney General
55 Elm Street
Hartford, CT 06141-0120

Robert A. Butterworth
Attorney General of Florida
The Capitol
Tallahassee, FL 32399-1050

Margery S. Bronster
Attorney General
State of Hawaii
425 Queen Street
Honolulu, HI 96813

Jeffrey A. Modisett
Attorney General of Indiana
219 Statehouse
Indianapolis, IN 46204

Carla J. Stovall
Attorney General of Kansas
Office of the Attorney General
Judicial Building
301 West Tenth Street
Topeka, KS 66612-1597

Albert B. Chandler, III
Attorney General
State of Kentucky
Capitol Building, Suite 118
700 Capital Avenue
Frankfort, KY 40601-3449

Scott Harshbarger
Attorney General
The Commonwealth of Massachusetts
One Ashburton Place
Boston, MA 02108

Frank J. Kelley
Michigan Attorney General
P.O. Box 30212
Lansing, MI 48909-0212

Hubert H. Humphrey III
Attorney General of Minnesota
Office of the Attorney General
State Capitol
Suite 102
St. Paul, MN 55155

Mike Moore
Attorney General of Missisippi
Office of the Attorney General
P.O. Box 220
Jackson, MS 39205-0220

Joseph P. Mazurek
Attorney General
State of Montana
Justice Building
P.O. Box 201401
Helena, MT 59620-1401

Frankie Sue Del Papa
Attorney General of Nevada
Office of the Attorney General
Old Supreme Court Bldg.
198 South Carson
Carson City, NV 89710

Steven M. Houran
Acting Attorney General
New Hampshire Office of the Attorney General
33 Capitol Street
Concord, NH 03301-6397

Michael F. Easley
Attorney General of North Carolina
P.O. Box 629
Raleigh, NC 27602

Heidi Heitkamp
Attorney General of North Dakota
600 E. Boulevard
Bismarck, ND 58505-0040

W.A. Drew Edmondson
Attorney General of Oklahoma
2300 N. Lincoln Boulevard, Suite 112
Oklahoma City, OK 73105

Jan Graham
Utah Attorney General
236 State Capitol
Salt Lake City, UT 84114

J. Wallace Malley, Jr.
Acting Attorney General
Office of the Attorney General
109 State Street
Montpelier, VT 05609-1001

Christine O. Gregoire
Attorney General of Washington
1125 Washington Street
P.O. Box 40100
Olympia, WA 98504-0100

Darrell V. McGraw, Jr.
West Virginia Attorney General
State Capitol, Room E-26
Charleston, WV 25305
(304) 558-2021

COUNSEL FOR AMICI STATES

Miles Rapoport
Secretary of State
State of Connecticut

William F. Galvin
Secretary of State
Commonwealth of Massachusetts

Michael Cooney
Secretary of State
State of Montana

William Gardner
Secretary of State
State of New Hampshire

Riley Darnell
Secretary of State
State of Tennessee

Ralph Munro
Secretary of State
State of Washington

Ken Hechler
Secretary of State
State of West Virginia

Douglas LaFollette
Secretary of State
State of Wisconsin

SECRETARIES OF STATE

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing Amicus Curiae Brief was sent by regular U.S. Mail, postage prepaid on this 17th day of March, 1997 to:

Timothy J. Grendell, Esq.
Mark A. Ferguson, Esq.
Taft, Stettinius & Hollister
Bond Court Building
1300 East Ninth Street
Columbus, OH 43215-4291

John F. Birath, Jr., Esq.
Bricker & Eckler
100 South Third Street
Columbus, OH 43215-4291

Marc E. Dann
Betras & Dann
114 East Front Street
Youngstown, OH 44503

James S. Gentile, Esq.
204 Stambaugh Building
44 Federal Plaza
Youngstown, OH 44503

Michael Renner
Chief Counsel
Ohio Attorney General's Office
State Office Tower
30 East Broad Street
Columbus, OH 43266-0410

ELIZABETH M. OSENBAUGH
Solicitor General

FOOTNOTES

{1} Although Buckley v. Illinois Judicial Inquiry Board, 997 F.2d 224, 227 (7th Cir. 1993), struck as overly broad a rule limiting judicial campaign speech, that case also emphasized the importance of judicial impartiality. ("Justice under law is as fundamental a part of the Western political tradition as democratic self-government and is historically more deeply rooted, having been essentially uncontested within the mainstream of the tradition since at least Cicero's time."). See also Beshear v. Butt, 863 F. Supp. 913 (E.D. Ark. 1994) (canons limiting campaign speech unduly broad).

{2} These concerns are not wholly allayed by prohibiting judges from personally soliciting funds. Under the ABA model code, judicial candidate committees can solicit and accept "reasonable campaign contributions and public support from lawyers." American Bar Association, Model Code of Judicial Conduct, Canon 5C(2) (1990). See 7 Geo. J. Legal Ethics at 849- 853.

{3} While the Buckley court did address the Kovacs decision in setting forth general First Amendment principles, 424 U.S. at 18, n.17, Amici believe that the argument presented here is distinguishable from the analysis rejected in Buckley.

{4} Buckley v. Valeo has also been criticized for equating the spending of money with expression. The Court of Appeals in Buckley had analyzed the FECA restrictions as restrictions on conduct, not speech, and, therefore, subject to the Supreme CourtÕs decision in United States v. O'Brien, 391 U.S. 367 (1968). See, J. Skelly Wright, Politics and the Constitution: Is Money Speech?, 85 Yale L.J. 1001 (1976); M.A. Nicholson, Buckley v. Valeo, the Constitutionality of the Federal Election Campaign Act Enactments of 1974, 1977 Wis. L. Rev. 323.