Background Paper #1

Table of Contents
Overview
Part I Buckley v Valeo
Part II Ohio the Local Connection
References and Resources

Overview

Many reformers believe that the 1976 benchmark Supreme Court decision Buckley v Valeo stands as a barrier to campaign finance reform much the same way that Plessy v Ferguson once blocked the fight to end school segregation. Just as Brown v Board of Education overturned Plessy and desegregated schools, they hope for a court case that will overturn or modify Buckley.

The Buckley decision set up the First Amendment arguments used by opponents of campaign finance reform proposals. Buckley reasoned that campaign speech often requires the spending of money, that money is the fuel that powers political speech. Therefore, the spending of money for speech is entitled to some First Amendment protection. This ruling has led to the question asked by citizens and reformers: If you don't have money, where is your speech?

In 1998 three separate Ohio campaign finance laws were in the federal courts. The leading precedent for each case was Buckley. Although the Buckley decision involved campaign finance laws for federal candidates, the courts also judge state and local reforms using the Buckley standard. Therefore, anyone working on reform at the state or local level must be familiar with the guidelines set forth in the Buckley decision.

Campaign finance activist Ben Senturia has compared the Buckley decision's relation to campaign finance reform to that of a large tree in the middle of a ball field: the game can still be played, he says, but it has to be played around the tree.

Post Watergate Reforms

The decade of the 1970s saw a drastic overhaul of campaign finance rules, spurred on by the Watergate scandal. After President Nixon resigned amid the scandal, Congress amended the Federal Election Campaign Action of 1971 by passing a whole series of reforms, the most important being the Federal Election Campaign Act of 1974 (FECA):

FECA set ceilings on contributions to federal candidates for individuals, PACs, and national political parties. It regulated political expenditures with a series of caps on presidential, senate and house campaigns. It also put a cap on independent expenditures and on spending of candidates' own money in a campaign. Stringent reporting and disclosure requirements were required, as well as optional public funding of presidential elections.

In order to settle any constitutional issues in this sweeping legislation before the 1976 presidential elections, Congress created an expedited judicial review process that examined all of FECA in a single case before it went into effect. This became the Buckley case.

On November 10, 1975 the Supreme Court heard oral argument on all four of FECA's components, as well as two related challenges. Six weeks later on January 30, 1976 the Court released its 294-page Buckley v. Valeo decision. It was a complicated per curium decision with the justices having separate opinions in the different parts. Only three of the eight justices agreed with the complete per curium decision.

Contribution Limits

Optional Public Funding of Presidential Elections

Reporting and Disclosure Requirements

Creation of the Federal Elections Commission

Expenditure Limits

"A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of the exploration, and the size of the audience reached. This is because virtually every means of communicating ideas in today's mass society requires the expenditure of money." (From the text of Buckley v. Valeo)

Evolution of Buckley

The Buckley decision is being subjected to criticism throughout the country as citizens in cities and states are demanding an end to the escalation cost of elections. Grassroots citizens' movements have led to reforms in several states from Maine to Arizona. Over seventy cities from New York City to Los Angeles have enacted local reform laws. However, the courts have continued the very different treatments of spending limits and contribution limits. In various spending limit cases, they have stuck down limits on independent expenditures on behalf of federal candidates by, PACs, nonprofit groups, and political parties. The courts have continued to uphold contribution limits unless they were considered too low or restrictive. Citizens must be aware of these court decisions when they craft reform proposals.

Consequences of Buckley

Congress had intended an integrated series of regulations with expenditure and contribution limits reinforcing each other. The intent was to minimize the impact of money on elections.

However, the Buckley decision produced a very different set of consequences. By upholding contribution limits, money became harder to raise. By striking down spending limits, the demand for more money increased. The Brennan Center for Justice describes the resulting system as "an engine for the glorification of money." The Center cites the following

consequences of the Buckley decision:

Increased political power of rich candidates

Increased political power of special interests

Subversion of the system of Public Funding of Presidential Elections (cannot limit independent expenditures)

In addition to the voices of ordinary citizens, the experts are also speaking out. In January 1998, 200 constitutional and legal scholars called on the Supreme Court to reverse the Buckley decision, saying

"The decision overstated the extent to which reasonable limits on campaign expenditures impinge on free speech. The Court also underestimated the corrosive effect of unlimited campaign expenditures on the integrity of our political process"

The scholars joined 24 state Attorneys General and the Secretaries of State or chief elections officers of 21 states who in 1997 also called for a reversal of Buckley.

Part Two: Ohio Connections

During 1998 Ohio was on the cutting edge of efforts to challenge the U.S. Supreme Court to revisit the Buckley decision. A local ordinance in Cincinnati and a state judicial law both worked their way to an appeal for review by the nation's highest court. The Supreme Court, however, chose to let lower court rulings stand. In December another local law, an Akron ballot initiative overwhelmingly approved by voters in the November elections, was challenged in district federal courts.

Cincinnati

In 1995 the Cincinnati City Council passed an ordinance setting mandatory campaign expenditure limits in City Council elections. The ordinance, which stated that candidates could not spend more than three times the $45,264 annual salary for a Council position in their campaign (for a total of $136,000), was a direct challenge to the Buckley ruling. The city also enacted a separate contribution limits ordinance. The two campaign finance ordinances that were intended to be part of a total reform package to address escalating spending on council races. In 1995 the top 15 candidates competing for the nine at-large seats spent a total of $2,265,000.

A suit challenging the ordinance was filed in federal court. Kruse v. City of Cincinnati represented the first opportunity in twenty years for a direct challenge to Buckley's decision to strike down mandatory expenditure limits. The city retained the National Voting Rights Institute in Boston to co-lead counsel in defense of the ordinance. The city argued the case on the following grounds: interest on curbing corruption and appearance of corruption; protecting the integrity of the electoral process; equalizing the ability of all citizens to participate in the election; limiting skyrocketing costs.

Court Action in Cincinnati Case

January 1997: The U.S. District Court for Southern District of Ohio ruled the ordinance unconstitutional.

April 1998: The U.S. District Court of Appeals for the Sixth Circuit upheld the lower court.

September 1998: The U.S. Supreme Court denied City's petition for Supreme Court review, thus upholding lower court.

With the spending ordinance gone, the City Council rescinded the companion Contribution Limit Ordinance in December of 1998. Reform advocates now contemplate the next step, which may be a citizen ballot initiative. The League of Women Voters of Greater Cincinnati has been active in all efforts to develop, pass, and defend the ordinances.

The Kruse case generated extensive national publicity and support. It drew support from President Clinton, twenty-six state attorneys general, the secretaries of state or chief elections officers from twenty-one states, and twenty U.S. senators. The case received editorial support form the New York Times and the Boston Globe, as well as extensive media coverage of the Supreme Court's announcement.

Ohio Court Judges

In 1995 the Ohio Supreme Court amended Code of Judicial Conduct of the Ohio Supreme Court to establish spending caps for judicial candidates. The caps varied according to which level of the judiciary the candidate was running for, from $50,000 for a candidate for a county or municipal court to $500,000 for the state's high court.

The Ohio Supreme Court adopted the expenditure limits in response to a serious threat to public confidence in the judicial system caused by ever-increasing spending in judicial campaigns. This has created a perception of "justice for sale."

About 87 percent of state judges nationwide are held accountable in elections, running either against opponents or in retention elections

The judicial spending limits were challenged by two Cuyahoga County Common Pleas judges in 1996 in Marshall v. Suster. A federal judge found in favor of the plaintiffs, and the Court of Appeals for the Sixth Circuit upheld that ruling.

On October 28, 1998 the Ohio Attorney General's Office, representing the Ohio Supreme Court, filed a petition for review with the U.S. Supreme Court. Ohio Attorney General Betty Montgomery asked the U.S. Supreme Court to grant an exception to the Buckley decision equating spending with First Amendment free speech rights. "Judges are different," the appeal stated. "For all other elected offices, impartiality is unnecessary, and indeed discouraged. Voters have a right to elect representatives biased toward their viewpoints. But with judges, political-issue bias is unwelcome." In December the National Voting Rights Institute filed an amicus brief on behalf of the many secretaries of state and chief elections officers from across the country who have asked for a review of the Buckley decision.

On January 19, 1999 the U.S. Supreme Court let stand, without comment, the Marshall v. Suster ruling that tossed out the Ohio judicial spending caps.

In the meantime, while the appeal to the Sixth Circuit Court of Appeals was pending, the Ohio Supreme Court set new spending caps in 1998 that were tied to the population size of the jurisdiction in which a candidate is running for judge. The case is now returned to the U.S. District Court in Cleveland, where the court may consider the new limits.

Ohio Chief Justice Thomas Moyer has said that Ohio may move to dismiss the case.

Akron

In November 1998 a decisive 63 percent of Akron voters passed a comprehensive campaign finance reform charter amendment to regulate mayor and city council elections. The amendment, placed on the ballot by citizen initiative, was developed by a group of grassroots citizens with the support of the Dollars and Democracy Project.

Provisions of the new law include:

Contribution Limits: $300 from any individual, political party or political action committee to mayor and at-large City Council candidates; $100 from any individual, political party or political action committee to a ward candidate; $25 cash contribution from individuals.

Limit to 25 percent the amount of money any mayoral or at-large candidate could receive from people living outside of Akron

Require candidates, within 60 days after a general election, to turn over unused campaign funds to charities or to the city's general fund.

Require candidates to list the employer of any person donating $50 or more.

Limit fund raising to the 11 months preceding the municipal general election and prohibit it at all other times.

A lawsuit landed the new campaign finance law in court within weeks. Plaintiffs include a former and two current Akron City Council members who say the amendment is an unconstitutional abridgement of free speech. On December 15, 1998, U.S. District Judge Dan Polster signed an injunction stopping the city from enforcing the new law. The city law director will be required to defend the law, although the City of Akron opposes it. Therefore, two separate local groups of supporters of the law have asked the judge for permission to intervene in the lawsuit.

When the charter amendment was placed on the ballot in September, the Akron League of Women Voters asked the Brennan Center for Justice about possible constitutional challenges to this proposal. Brennan cited several possible challenges, including the restricted fund raising season, the nonresident contribution limits, the surplus campaign funds deposit, the $300 and $100 non-cash contribution limits, the $25 limit on cash contributions. In other words, they believe the law can be challenged at almost any level.

Ric Bainter of the National Civic League, which provided some assistance to the Akron Dollars and Democracy group, points out that over seventy-five cities in the United States have some form of local campaign finance reform laws currently in effect. The various provisions contained in the new Akron law already exist in local reforms currently in effect in other cities, although not all together in this particular combination. Since the vast majority of the local reform legislation in cities around the country has never been challenged in court, it is not known what the courts will do with the Akron law. Even though this amendment does not contain spending limits, it will still be decided on Buckley and other court decisions that interpret Buckley.

In a new twist, on February 25, 1999, Judge Polster put a hold on the federal lawsuit and gave all parties involved three months to come up with a workable, constitutional plan to limit the influence of political contribution on Akron municipal elections. He expressed concerns on the constitutionality of the ordinance but applauded the intent of the citizens.

Attorney General Betty Montgomery

Attorney General Betty Montgomery represented Ohio in its petition before the U.S. Supreme Court for a review of the Marshall v. Suster decision.

In January of 1997 Montgomery also joined the top law-enforcement officials of 24 states who have called for the reversal of the 1976 Buckley decision. "As state attorneys general -- many of us elected -- we believe the experience of campaigns teaches the lesson that unlimited campaign spending threatens the integrity of the election process," the 24 officials said in a statement released after the nationwide clamor over spending in the 1996 elections. Of the attorneys general who called for the reversal of the 1976 ruling, 19 are Democrats and 5 are Republicans.

(Note: Some campaign finance law challenges are in various state courts throughout the country, but most election law challenges are filed directly in the federal court system because of First Amendment issues. Lower federal courts are not able to overrule the holdings in Buckley. They do not have the authority to do this. The strategy is to get a case to the Supreme Court.)

References and Resources

Akron Area League of Women Voters, c/o Christ United Methodist Church, 380 Mineola Avenue, Akron 44303-1304, (330) 836-1974, KECK@LEK.NET

Akron Dollars and Democracy Project, Greg Coleridge, 513 W. Exchange, Akron, OH 44302, (330) 253-9151, AFSCole@aol.com

Brennan Center for Justice at NYU School of Law, 161 Avenue of the Americas, 5^th Floor, New York, NY 10013, (212) 998-6730, www.brennancenter.org, e-mail brennancenter@nyu.edu

National Civic League, 1445 Market Street, Suite 300, Denver, CO 80202, (303) 571-4343, www.ncl.org/ncl

National Voting Rights Institute, 294 Washington St, Suite 713, Boston, MA 02108, http://www.nvri.org/

Ohio Attorney General Betty Montgomery, 30 E. Broad Street, 17^th Floor, Columbus, OH 43266, (614) 466-4320, http://www.ag.state.oh.us/

*******************************

Developed in association with the Dollars and Democracy Project of SW Ohio. Funded by the Joyce Foundation.