Homans v. City of Albuquerque

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
APR 27 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

RICK HOMANS,

Plaintiff - Appellee,
v.
No. 02-2244
THE CITY OF ALBUQUERQUE, a
municipal corporation; FRANCIE D.
CORDOVA, in her capacity as Clerk
of the City of Albuquerque,

Defendants - Appellants.

SANDER RUE,

Plaintiff - Appellee,
v.

THE CITY OF ALBUQUERQUE, a
municipal corporation; FRANCIE D.
No. 02-2316
CORDOVA, in her capacity as Clerk
of the City of Albuquerque; THE
CITY OF ALBUQUERQUE BOARD
OF ETHICS AND CAMPAIGN
PRACTICES, a board of the City of
Albuquerque,

Defendants - Appellants.
 Appeals from the United States District Court
for the District of New Mexico
(D.C. No. CIV-01-917 MV/RLP)
(D.C. No. CIV-01-1036 JP/LFG)

Brenda Wright (Lisa J. Danetz, National Voting Rights Institute, Boston,
Massachusetts; Robert M. White, City Attorney, and Randy M. Autio, Deputy
City Attorney, Albuquerque, New Mexico, with her on the briefs), National
Voting Rights Institute, Boston, Massachusetts for Defendants-Appellants in 02-
2244.

Thomas C. Bird (Richard L. Alvidrez with him on the brief), Keleher & McLeod,
P.A., Albuquerque, New Mexico for Plaintiff-Appellee in 02-2244.

Lisa J. Danetz (Brenda Wright, National Voting Rights Institute, Boston,
Massachusetts; Robert M. White, City Attorney, and Randy M. Autio, Deputy
City Attorney, with her on the briefs), National Voting Rights Institute, Boston,
Massachusetts for Defendants-Appellants in 02-2316.

James Bopp, Jr., (Henry M. Bohnhoff, Rodey, Dickason, Sloan, Akin & Robb,
Albuquerque, New Mexico; and Paul M. Kienzle, III, Scott & Kienzel, PA,
Albuquerque, New Mexico with him on the brief), Bopp, Coleson & Bostrom,
Terre Haute, Indiana for Plaintiff-Appellee in 02-2316.

Before LUCERO, O’BRIEN, and TYMKOVICH, Circuit Judges.

LUCERO, Circuit Judge.

In response to the increasingly apparent need to reform the ways in which

political campaigns are financed, the city of Albuquerque implemented a

campaign-finance reform system in 1974. It adopted limits on campaign

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expenditures and contributions in municipal elections. In 2001, mayoral

candidate Rick Homans brought a challenge under the First and Fourteenth

Amendments 1 to the mayoral-candidate expenditure restriction; ruling in favor of

Homans, the district court permanently enjoined enforcement of this limit. City-

council candidate Sander Rue brought a similar suit challenging the expenditure

limit for city-council candidates and obtained a favorable summary judgment as

well. Both cases are before us on review, and because they present similar issues,

we consolidate them for review. Exercising jurisdiction under 28 U.S.C. § 1291,

we affirm. The following expresses the opinion of the court as to parts I, II, and

III. As to part IV, it concurs in part with the opinion of Judge Tymkovich, which

constitutes the majority opinion of the court as to part IV.

I

As part of an overall restructuring of its city government in 1974,

Albuquerque amended its city charter and implemented an election code imposing

disclosure requirements and limiting expenditures and contributions for municipal

elections. More than ninety percent of voters approved these reform measures.

As it reads today, the election code provides:

1
Protections afforded under the First Amendment have been incorporated
into the Fourteenth Amendment to apply against the states. Everson v. Bd. of
Educ., 330 U.S. 1, 13–15 (1947).

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 No candidate shall allow or accept contributions or make expenditures
in excess of the following for any election:
1. To a candidate for the office of Councillor, contributions or
expenditures equal to twice the amount of the annual salary paid
by the City of Albuquerque to Councillors as of the date of filing
of the Declaration of Candidacy.
2. To a candidate for the office of Mayor, contributions or
expenditures equal to twice the amount of the annual salary paid
by the City of Albuquerque to the Mayor as of the date of filing
of the Declaration of Candidacy.

Albuquerque City Charter, art. XIII, sec. 4(d). 2 Candidate-expenditure

restrictions were in effect for each mayoral and city-council election from 1974 to

1995. Limits on the 1997 election were temporarily enjoined pursuant to a court

order; however, parties to that litigation stipulated dismissal of the lawsuit, and

the spending limits were restored for the 1999 election. For the 2001 elections,

the mayoral-campaign expenditure limit was $174,720; city-council candidates

were limited to spending a maximum of $17,056. Violation of these limits carries

a fine of up to $500 per violation, removal from office, and/or public reprimand.

After filing suit in federal district court on August 10, 2001, plaintiff Rick

Homans filed a motion for a preliminary injunction, which was denied on

September 1, 2001. Homans v. City of Albuquerque, 160 F. Supp. 2d 1266

2
Albuquerque’s city charter also caps individual contributions at five
percent of the annual salary of the office. Id. at sec. 4(e). The propriety of the
contribution limits, which theoretically would appear to allow twenty individual
contributors to fund one hundred percent of a campaign at the full expenditure
limitation level, is not before us.

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(D.N.M. 2001) (“Homans I”). He then filed an interlocutory appeal on September

4, 2001, seeking an emergency injunction pending appeal. Two days later, a two-

member motions panel of this court granted the request and enjoined enforcement

of the expenditure limit pending review of the merits. Homans v. City of

Albuquerque, 264 F.3d 1240, 1245 (10th Cir. 2001) (per curiam) (“Homans II”).

In doing so, the motions panel held that Homans established a likelihood of

success on the merits regarding his claim that the expenditure limit violated the

First and Fourteenth Amendments under Buckley v. Valeo, 424 U.S. 1 (1976) (per

curiam). Homans II, 264 F.3d at 1243–44.

On February 13, 2002, the parties filed a joint motion for stipulated

admission of evidence and expedited determination on the merits in district court.

The district court entered a declaratory judgment in favor of Homans and

permanently enjoined enforcement of the provision in August 2002. Homans v.

City of Albuquerque, 217 F. Supp. 1197 (D.N.M. 2002) (“Homans III”). While

the court stated its own view that the expenditure limitations restriction survives

exacting scrutiny under Buckley, it found the contrary conclusion mandated by the

motions-panel’s ruling in Homans II. Homans III, 217 F. Supp. at 1206.

Albuquerque appeals.

Plaintiff Sander Rue was a duly qualified candidate for District Five City

Councillor who also ran in the October 2001 election. In his suit filed in federal

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district court in September, 2001, he claimed that the city-council campaign-

expenditure limitation violates Buckley. The district court granted summary

judgment in favor of Rue and permanently enjoined enforcement of the city-

council restriction on October 11, 2002, relying on the motions-panel’s ruling in

Homans II and the district court’s decision in Homans III. Rue v. City of

Albuquerque, Civ. No. 01-1036 JP/LFG (D.N.M. Oct. 11, 2002). Albuquerque

appeals. 3

II

As to the grant of summary judgment in Rue’s case, we review the district

court’s decision de novo, applying the same standards used by the district court

and construing the facts in the light most favorable to Albuquerque. See Simms

v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d 1321,

1326 (10th Cir. 1999).

With regard to the final decision in Homans III, we ordinarily review the

district court’s legal conclusions de novo, Dang v. UNUM Life Ins. Co. of Am.,

175 F.3d 1186, 1189 (10th Cir. 1999), and its factual findings for clear error.

Fed. R. Civ. P. 52(a). Because this case implicates First Amendment concerns,

3
Although the elections have passed, this does not render the cases moot
because the issues raised are “capable of repetition, yet evading review.” See
First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 774 (1978); Suster v.
Marshall, 149 F.3d 523, 527 (6th Cir. 1998).

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however, we have “an obligation to make an independent examination of the

whole record in order to make sure that the judgment does not constitute a

forbidden intrusion on the field of free expression.” Bose Corp. v. Consumers

Union of U.S., Inc., 466 U.S. 485, 499 (1984) (quotations omitted). We therefore

view the evidence objectively rather than in the light most favorable to the City.

Our standard in reviewing Rue’s case is thus more favorable to the City

than our standard in Homans’ case. For this reason, with respect to each claim,

we evaluate the evidence first in the light most favorable to the City to determine

whether summary judgment was proper in Rue. Only if this less stringent

standard is satisfied will we conduct an independent and objective examination of

the evidence to review whether the permanent injunction in Homans’ case was

proper.

III

As an initial matter, we determine whether the Homans II decision, in

which a motions panel of this court granted an injunction pending appeal against

the expenditure limit, has binding effect. See Homans II, 264 F.3d at 1243, 1245.

Attempting to leverage this interlocutory decision to its maximum possible effect,

Homans argues that the Homans II ruling constitutes the law of the case and

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restricts us in our merits determination. 4 The district court agreed, stating that

although it was inclined to conclude that the expenditure limit for mayoral

campaigns survives the exacting scrutiny required under Buckley, it was bound by

the motions-panel ruling to conclude otherwise. Homans III, 217 F. Supp. at

1206. We disagree.

In general, the law of the case doctrine provides that “when a court decides

upon a rule of law, that decision should continue to govern the same issues in

subsequent stages in the same case.” Arizona v. California, 460 U.S. 605, 618

(1983). Law of the case “is solely a rule of practice and not a limit on the power

of the court.” Mason v. Texaco, Inc., 948 F.2d 1546, 1553 (10th Cir. 1991)

(citing Messinger v. Anderson, 225 U.S. 436, 444 (1912)). Thus, the doctrine is

discretionary rather than mandatory. Kennedy v. Lubar, 273 F.3d 1293, 1299

(10th Cir. 2001); Stifel, Nicolaus & Co. v. Woolsey & Co., 81 F.3d 1540, 1544

(10th Cir. 1996).

In the instant matter, the two judge panel decision of our court constituted

an interlocutory ruling, and its holding was limited to the conclusion that Homans

had shown a likelihood of success on the merits of his claim. 5 Homans II, 264

4
In similar fashion, Rue argues that the Homans II order binds review of
the merits of the city-council limits.
5
To the extent that any language in Homans II can be read as an
assessment of the actual merits of Homans’ claim, as opposed to his likelihood of
(continued...)

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F.3d at 1243–44. Courts repeatedly have emphasized that a decision as to the

likelihood of success is tentative in nature and not binding at a subsequent trial on

the merits. Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981) (“[F]indings of

fact and conclusions of law made by a court granting a preliminary injunction are

not binding at trial on the merits.”); Southco, Inc. v. Kanebridge Corp., 324 F.3d

190, 195 (3d Cir. 2003); A.M. Capen’s Co. v. Am. Trading & Prod. Corp., 202

F.3d 469, 473 (1st Cir. 2000). Were the opposite true, an unacceptable conflation

of the merits decision and the preliminary inquiry would result. Moreover, if the

district court were bound in the manner suggested, then the decision of the

motions panel would also bind the appellate panel reviewing the merits. This is

not the rule. When reviewing a decision by a prior motions panel, we are

“uninhibited by the law of the case doctrine.” Stifel, 81 F.3d at 1544.

Our own circuit precedent expressly rejects the proposition urged by

Homans and articulates the rationale for doing so. See id. at 1543–44. As we

have explained, “a motions panel’s decision is often tentative because it is based

on an abbreviated record and made without the benefit of full briefing and oral

argument.” Id. at 1544. In the instant case, the motions panel did not hear oral

5
(...continued)
success on the merits, such language is dicta. Dicta is not subject to the law of
the case doctrine. See In re Meridian Reserve, Inc. v. Bonnett Res. Corp., 87
F.3d 406, 410 (10th Cir. 1996).

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argument, and briefing proceeded on an expedited schedule in light of the

impending election. Homans filed his motion on September 4, 2001, and the City

was required to submit its response the next day; the motion was granted on the

following day, September 6, 2001. In light of this truncated schedule and the

“avowedly preliminary [and] tentative” nature of the emergency-injunction ruling,

Council of Alternative Political Parties v. Hooks, 179 F.3d 64, 69 (3d Cir. 1999)

(quotation omitted), a motions-panel ruling does not establish the law of the case;

therefore, neither the district court nor this court is constrained in its review of

the merits by the September 6 ruling. 6 Accordingly, we reject Homans’ argument

and hold that the district court erred in concluding that it was bound by the law of

the case doctrine.

IV

We proceed to the merits of Homans’ and Rue’s claims. Although the two

cases stand in differing procedural postures, they raise an identical substantive

claim: that the campaign-expenditure limits in the Albuquerque City Charter

violate the First and Fourteenth Amendments.

Every challenge to campaign-finance reform provisions must begin with an

analysis of the watershed case of Buckley v. Valeo, 424 U.S. 1 (1976). Analyzing

6
From this it follows that neither the district court considering Rue’s claim
nor this court in reviewing that decision is constrained by the Homans II ruling.

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the 1974 amendments to the Federal Election Campaign Act (“FECA”), the

Supreme Court developed a jurisprudential distinction between restrictions on

campaign expenditures and restrictions on campaign contributions. Although

both types of restrictions limit core political speech and are therefore subject to

“exacting scrutiny,” id. at 16, the Court concluded that expenditure limits impose

“significantly more severe restrictions on protected freedoms” than limits on

contributions. Id. at 22. As the Court explained, 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 their exploration, and the size of the audience reached.”

Id. at 19, 22. For this reason, expenditure limits raise graver constitutional

concerns and are invalidated more frequently. Id. at 55–56, 59 (upholding

contribution limits but invalidating expenditure limits); see also McConnell v.

Fed. Election Comm’n, 540 U.S. ___, 24, 2003 WL 22900467 (2003) (“In

Buckley and subsequent cases, we have subjected restrictions on campaign

expenditures to closer scrutiny than limits on campaign contributions.”); Fed.

Election Comm’n v. Colo. Republican Fed. Campaign Comm., 533 U.S. 431, 440

(2001) (“Colorado Republican II”) (“[L]imits on political expenditures deserve

closer scrutiny than restrictions on political contributions.”); Nixon v. Shrink Mo.

Gov’t PAC, 528 U.S. 377, 387–88 (2000) (“Shrink Missouri”) (concluding that

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differing standards govern review of contribution limits and expenditure limits,

and that contribution limits may be justified when they are “closely drawn” to

serve a “sufficiently important interest”); Fed. Election Comm’n v. Mass. Citizens

for Life, 479 U.S. 238, 259–60 (1986) (“We have consistently held that

restrictions on contributions require less compelling justification than restrictions

on independent spending.”).

Although a less stringent standard of review applies to limits on political

contributions, we conclude that the standard for expenditure limits operates

identically to strict scrutiny review. To be upheld, therefore, the campaign-

expenditure restrictions must be both narrowly tailored, Fed. Election Comm’n v.

Nat’l Conserv. Political Action Comm., 470 U.S. 480, 496 (1985) (“NC-PAC”),

and necessary to serve a compelling state interest, Mass. Citizens for Life, 479

U.S. at 251–52. See also Austin v. Mich. Chamber of Commerce, 494 U.S. 652,

657 (1990) (applying strict scrutiny to review state restrictions on corporate

political expenditures); Kruse v. City of Cincinnati, 142 F.3d 907, 912–13 (6th

Cir. 1998) (holding that municipal restrictions on candidate expenditures are

subject to strict-scrutiny review).

In conducting strict scrutiny review, it is essential to acknowledge that such

scrutiny is not “strict in theory, but fatal in fact.” See, e.g., Grutter v. Bollinger,

123 S. Ct. 2325, 2338 (2003). Despite this repeated admonition by the Supreme

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Court, appellees insist that Buckley imposes a per se ban on all candidate-

expenditure restrictions. Given the Supreme Court’s distaste for “imposing

judicial formulas so rigid that they become a straitjacket that disables government

from responding to serious problems,” Denver Area Educ. Telecomm.

Consortium, Inc. v. FCC, 518 U.S. 727, 741 (1996), we are obliged to disagree.

In Buckley, defenders of FECA’s restrictions on candidate expenditures

proffered various rationales to justify the limits, 424 U.S. at 55–57; 7 nonetheless,

the Court invalidated the expenditure cap, holding that “[n]o governmental

interest that has been suggested is sufficient to justify the restriction.” Id. at 55

(emphasis added). The Court’s chosen language leaves open the possibility that

at least in some circumstances expenditure limits may withstand constitutional

scrutiny. See Kruse, 142 F.3d at 920 (Cohn, J., concurring) (stating that “Buckley

. . . is not a broad pronouncement declaring all campaign expenditure limits

unconstitutional,” and that it remains possible to develop a factual record that

would sustain such restrictions). Concluding that it might be possible to devise a

system of campaign-expenditure limits that would survive exacting scrutiny, we

evaluate Albuquerque’s attempt to do so.

A

7
The three rationales proffered were as follows: (1) to deter corruption
and the appearance of corruption; (2) to equalize candidates’ resources; and (3) to
contain the skyrocketing costs of political campaigns.

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 To satisfy strict scrutiny review, Albuquerque must establish that its

candidate-expenditure restrictions are necessary to further a compelling state

interest. Albuquerque sets forth the following rationales to justify the limits: (1)

deterrence of corruption and enhancement of public confidence in the electoral

process; (2) preservation of officeholders’ ability to perform their duties without

devoting excessive time to fundraising; and (3) encouragement of electoral

competition. We address each rationale.

1

Speaking nearly five decades ago, Justice Frankfurter made the following

assessment of the corruption and public confidence issue:

We all know . . . that one of the great political evils of the time is the
apparent hold on political parties which business interests and certain
organizations seek and sometimes obtain by reason of liberal campaign
contributions. Many believe that when an individual or association of
individuals makes large contributions for the purpose of aiding
candidates of political parties in winning elections, they expect, and
sometimes demand, and occasionally, at least, receive, consideration by
the beneficiaries of their contributions which not infrequently is
harmful to the general public interest.

United States v. United Auto. Workers, 352 U.S. 567, 576 (1957) (quotation

omitted). Some time later, the Supreme Court explained:

Leave the perception of impropriety unanswered, and the cynical
assumption that large donors call the tune could jeopardize the
willingness of voters to take part in democratic governance. Democracy
works only if the people have faith in those who govern, and that faith
is bound to be shattered when high officials and their appointees engage
in activities which arouse suspicions of malfeasance and corruption.

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Shrink Missouri, 528 U.S. at 390 (quotation omitted). Most recently, the Supreme

Court reiterated the importance of preventing corruption or its appearance in the

context of political contribution limits. See McConnell, 540 U.S. at 33 (“Our

cases have made clear that the prevention of corruption or its appearance

constitutes a sufficiently important interest to justify political contribution

limits.”). Despite this precedent, Homans argues to no avail that as a matter of

law Buckley mandates that expenditure limits can never be justified by the anti-

corruption rationale.

It is well-established that the deterrence of corruption constitutes a

compelling state interest. See Austin, 494 U.S. at 657–60; NC-PAC, 470 U.S. at

496–97. The question remains whether Albuquerque’s expenditure limits are

necessary to serve this end. See Burson v. Freeman, 504 U.S. 191, 198 (1992)

(noting that exacting scrutiny requires that the regulation be necessary to serve a

compelling state interest). In the particular circumstances of Buckley, the Court

rejected the anti-corruption rationale in reviewing FECA’s campaign-expenditure

limits, concluding that the interest in preventing corruption was served adequately

in that case by the federal contribution limits and disclosure provisions.

Rejecting the corollary argument that expenditure limits were necessary to prevent

circumvention of permissible campaign-finance provisions, the Court relied on

the factual conclusion that “[t]here is no indication that the substantial criminal

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penalties for violating the contribution ceilings combined with the political

repercussions of such violations will be insufficient.” 424 U.S. at 26, 55–56.

Attaching significance to the fact that FECA permitted successful candidates to

retain contributions in excess of expenditure limits and to use these funds for any

lawful purpose, the Buckley Court explained: “This provision undercuts whatever

marginal role the expenditure limits might otherwise play in enforcing

contribution ceilings.” Id. Contrary to appellees’ contention, Buckley does not

preclude the use of expenditure limits to further a state’s anti-corruption interest

in all circumstances. Cf. Kruse, 142 F.3d at 915 (acknowledging that Buckley

may be interpreted to leave open the possibility that the anti-corruption rationale

may, under some circumstances, justify candidate-expenditure caps).

Nor are we persuaded that subsequent case law prohibits the use of

expenditure caps to deter corruption as a matter of law. In Kruse, the Sixth

Circuit reached the opposite conclusion and held that NC-PAC and Colo.

Republican Federal Campaign Comm. v. Federal Election Comm’n, 518 U.S. 604

(1996) (“Colorado Republican I”) “make eminently clear that spending limits

. . . are unconstitutional not simply because of the presence of contribution limits

but because they are not narrowly tailored to serve this interest.” 142 F.3d at 915.

We conclude that this view reads too much into NC-PAC and Colorado

Republican I.

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 In NC-PAC, the Court invalidated restrictions on political action

committees’ independent expenditures when the spending was not coordinated

with a campaign; the court did not address the permissibility of restrictions on

candidate expenditures. 470 U.S. at 496–98. Even were NC-PAC’s reasoning to

apply to restrictions on candidate expenditures, its holding would be limited to the

facts in that case. The Court’s explicit holding was that “[o]n this record, . . . an

exchange of political favors for uncoordinated expenditures remains a

hypothetical possibility and nothing more.” Id. at 498 (emphasis added).

Similarly fact-bound is the holding in Colorado Republican I, in which the

Supreme Court invalidates limits on spending by political parties, which are

treated as “independent expenditures.” 518 U.S. at 613–19. The Court based its

conclusion on the absence of coordination between the candidate and the source

of the expenditure, which prevented the Court from assuming, “absent convincing

evidence to the contrary, that a limitation on political parties’ independent

expenditures is necessary to combat a substantial danger of corruption of the

electoral system.” Id. at 617–18 (emphasis added). Both NC-PAC and Colorado

Republican I thus explicitly leave open the possibility that in certain

circumstances, a factual record may establish “convincing evidence” and thus

justify the need for expenditure limits to reduce corruption or the appearance of

corruption.

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 Unfortunately for Albuquerque, we conclude that the record in this case

does not aggregate to such “convincing evidence.” As a consequence, we are

bound to reject the contention that the City’s expenditure limits are necessary to

deter corruption. The City submits the following as evidence to support its

position: (1) evidence demonstrating the ease with which contribution limits are

circumvented; (2) voter turnout statistics; (3) voter surveys; and (4) anecdotal

evidence of corruption.

As to the first category of evidence, the City focuses on the use of tactics

such as “bundling” at the federal level, arguing that expenditure limits are

necessary to prevent circumvention of contribution limits. Assuming that such

evidence could demonstrate that expenditure limits are necessary to reduce

corruption, 8 we are not persuaded that bundling practices at the federal level are

8
Notably, evidence of circumvention of contribution limits, standing
alone, could not sustain the more onerous burdens imposed by expenditure limits:

The discussion in [the earlier section of the Buckley Opinion] explains
why the Act’s expenditure limitations impose far greater restraints on
the freedom of speech and association than do its contribution
limitations. The markedly greater burden on basic freedoms caused by
[FECA’s independent expenditure provision] thus cannot be sustained
simply by invoking the interest in maximizing the effectiveness of the
less intrusive contribution limitations.

Buckley, 424 U.S. at 44; see also Kruse, 142 F.3d at 915–16 (holding that
Buckley expressly rejects the argument that spending caps are justified by the
need to enforce contribution limits).

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comparable to those at the local level. Although the City is entitled to rely on

evidence from other jurisdictions to justify campaign-finance reform measures,

Shrink Missouri, 528 U.S. at 394 & n.6 (citing Renton v. Playtime Theaters, Inc.

475 U.S. 41, 51–52 (1986)), it may only do so if the evidence relied upon is

“reasonably believed to be relevant to the problem that the city addresses.” Id.

The City does not proffer any argument, much less evidence, suggesting that local

bundling practices are analogous to federal ones.

But the City’s evidence of the need to deter corruption is not limited to

documenting bundling at the federal level—the City introduces additional,

independent evidence of the public appearance of corruption. Submitting

statistics on Albuquerque voter turnout, the City argues that, contrary to common

claims that expenditure limits suppress voter turnout, Albuquerque voters are

more likely to vote when expenditure limits are imposed. Recognizing a positive

relationship between voter turnout and the public perception of corruption is not

unprecedented; as earlier noted, the Supreme Court has articulated, “Leave the

perception of impropriety unanswered, and the cynical assumption that large

donors call the tune could jeopardize the willingness of voters to take part in

democratic governance.” Shrink Missouri, 528 U.S. at 390. 9 To establish the

9
This statement suggests that turnout rates correlate with expenditure
limits because expenditure limits decrease the perception of corruption, which in
(continued...)

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relationship in the instant case, the City submits that in Albuquerque elections

from 1974 until 2001, an average of 40.3% of registered voters participated in all

city elections for which the spending limits were in place. 10 This figure is

particularly impressive when compared to the 25 to 35% turnout rate for city

elections nationally. This comparison figure, however, is based on the percentage

of the voting-age population, not the percentage of registered voters as it was in

the Albuquerque figure; indeed, a calculation of Albuquerque voter turnout as a

percentage of the voting age population reveals a turnout rate of only 28.3%

between 1984 and 1989. While these figures may cast doubt on the suggestion

that spending limits inhibit turnout rates, they assuredly do not establish the

affirmative of the proposition: that Albuquerque’s spending limit actually

increases turnout rates, as the City’s own expert readily concedes. 11

9
(...continued)
turn increases turnout. Albuquerque, however, suggests another reason for the
relationship between turnout rates and expenditure limits—one which does not
implicate the anti-corruption rationale. It proffers the somewhat counterintuitive
claim that expenditure limits improve the public’s knowledge base, which in turn
increases turnout. Implicitly, then, Albuquerque suggests that expenditure limits
are necessary not only to further an interest in deterring corruption, but also to
further an interest in enhancing the electorate’s knowledge.
10
The data for the two elections for which spending limits were enjoined
are as follows: in the 1997 election, only 33% of registered voters turned out; in
the 2001 election, however, an impressive 42.4% voted.
11
Kruse implicitly rejected a similar argument that turnout rates might be
used to demonstrate the need to further an interest other than anti-corruption. 142
(continued...)

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 Telephone survey results 12 are submitted by Albuquerque in support of its

argument that expenditure limits are necessary to combat the public perception of

corruption. 13 This survey evidence does suggest that Albuquerque voters have

more confidence in the integrity of local elections than federal elections, which

have no spending limits. On the other hand, appellees’ evidence also suggests

that voters generally trust local government more than state and federal

government, regardless of spending limits. Albuquerque’s survey results

demonstrate that voters think that the removal of spending limits increases the

potential for corruption. By contrast, appellees’ evidence suggests that the

11
(...continued)
F.3d at 916. Because we are unpersuaded that turnout rates in fact correlate with
expenditure limits, we have no occasion to reach this issue.
12
Survey results are an acceptable form of evidence to demonstrate the
need for campaign-finance reform measures. Shrink Missouri, 528 U.S. at 394;
Mont. Right to Life Ass’n v. Eddleman, 306 F.3d 874, 882 (9th Cir. 2002);
Daggett v. Comm’n on Governmental Ethics Elections, 205 F.3d 445, 457–58 (1st
Cir. 2000).
13
The City’s evidence is the result of a telephone survey conducted in
August 1998 by Lake Snell Perry & Associates of 400 registered voters who
reside in Albuquerque. These results have a margin of sampling error of +/-
4.9%.
Appellees’ argument that majoritarian views cannot dictate the bounds of
First Amendment protections is misplaced. Such barometers of public sentiment
are relevant in the campaign-finance context, to the extent that they show the need
to remedy a public perception of corruption. See, e.g., Shrink Missouri, 528 U.S.
at 394.

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amount of spending in an election does not affect voter cynicism when other

variables are controlled.

Anecdotal evidence supports Albuquerque’s contention that special

interests are perceived to exercise an undue influence in elections. For example,

a New Mexico State Senator described the local influence of contributions from

certain industries. Specifically, she cited the influence of the alcohol industry in

delaying legislation to prohibit “drive-up windows” for the purchase of alcohol,

and the influence of the gambling industry in obtaining favorable revenue-sharing

compacts with the state. An expert in the field of campaign-finance, Larry

Makinson, testified to a correlation between legislative voting and campaign-

contributions at the federal level, 14 citing as an example the Tauzin-Dingell bill.

While recognizing the possibility that the government may provide

sufficient evidence of the need for candidate-expenditure caps to prevent

corruption, we nonetheless conclude that the evidence before us, even viewed in

the light most favorable to Albuquerque, is no more compelling than the evidence

the Court effectively rejected in Buckley. 424 U.S. at 29. In Buckley, FECA’s

defenders also submitted survey evidence suggesting that the public perceived

14
Neither the utilization of candidate issue questionnaires as a tool to
achieve such correlation nor the propriety of such questionnaires in the
fundraising and lobbying process was presented to the district court and we do not
reach the issue.

- 22 -
undue influence by special interests and anecdotal evidence of corruption

surrounding the 1972 election; indeed, the Buckley evidence was of a far greater

magnitude than that presented here and smelled of actual quid pro quo. See id. at

27 n. 28 (referencing Buckley v. Valeo, 519 F.2d 821, 839–40, & nn. 36–38 (D.C.

Cir. 1975) for evidence documenting the undue influence of the dairy industry,

illegal corporate contributions, and promise of diplomatic posts in exchange for

hefty campaign contributions). While undoubtedly troubling, Albuquerque’s

evidence does not approach the palpable sense of corruption prompting the

federal amendments in 1974. Because the Buckley evidence was held insufficient

to demonstrate that FECA’s candidate-expenditure limits were necessary to serve

the compelling state interest in deterring corruption, we are compelled to

conclude that Rue is entitled to summary judgment. A fortiori, we hold that the

evidence in Homans’ case, which need not be viewed in the light most favorable

to the City, fails to sustain the City’s burden.

2

Thus far, the Supreme Court has recognized the existence of but one state

interest sufficiently compelling to justify campaign-finance regulation: the anti-

corruption rationale. See NC-PAC, 470 U.S. at 496–97. This initial recognition

does not, of course, foreclose the possibility that other compelling state interests

may be identified in future cases, and in the case on review Albuquerque submits

- 23 -
evidence of additional interests that it claims justify campaign expenditure caps.

The City argues that the caps are necessary to serve the compelling state interest

of preserving officeholders’ time and enabling them to perform official duties.

Claiming that “when campaign spending is unlimited, as is true for congressional

elections, fundraising becomes a full-time job for candidates and officeholders

fearful of being outmatched by an opponent’s spending,” the city submits

evidence documenting the fundraising burdens of candidates and officeholders.

(Homans Appellant’s Br. at 52; Rue Appellant’s Br. at 54.)

In Kruse, the Sixth Circuit concluded that the need to preserve

officeholders’ time and ability to perform official duties is merely a restatement

of the containing-skyrocketing-campaign-costs rationale rejected in Buckley:

The need to spend a large amount of time fundraising is a direct
outgrowth of the high cost of campaigns. However, because the
government cannot constitutionally limit the cost of campaigns, the
need to spend time raising money, which admittedly detracts an
officeholder from doing her job, cannot serve as a basis for limiting
campaign spending.

142 F.3d at 916–17. We view the Kruse court’s conflation of the two rationales

as inaccurate and conclude that the preservation of officeholders’ time is wholly

separate. In Buckley, the Court rejected the proffered rationale of containing the

skyrocketing costs of campaigns as follows: “[T]he mere growth in the cost of

federal election campaigns in and of itself provides no basis for governmental

restrictions on the quantity of campaign spending and the resulting limitation on

- 24 -
the scope of federal campaigns.” 424 U.S. at 57 (emphasis added). Albuquerque

does not merely rely on the skyrocketing costs of campaigns in and of themselves;

rather, the City cites an additional reason why increasingly expensive campaigns

hurt the electoral system: the woes of poor challengers aside, such campaigns

distract officeholders from performing their official duties. Buckley makes no

mention of this rationale and thus does not necessarily preclude the recognition of

this as a compelling state interest.

To show that its campaign-expenditure limits are necessary to further this

interest, Albuquerque submits excerpts from the book Speaking Freely containing

interviews of retired congressional representatives that present a disturbing view

into the fundraising pressures imposed on federal candidates. Additionally, the

City cites statements made by local officials describing the time pressures

imposed by fundraising in the absence of expenditure limits. Dede Feldman, a

New Mexico State Senator who also ran for Albuquerque City Council in 1995,

compares the differences in state campaigns versus Albuquerque campaigns:

Campaigning with and without spending limits is very different . . . .
Because there was unlimited spending and I had to raise more money in
the Senate races, I spent a lot more time fund-raising and I tried to raise
money from larger contributions . . . . Doing so much fund-raising was
incredibly time-consuming and cut into my other campaigning and my
regular job. The fund-raising had to be done during the day and I
therefore had less time to do my regular job. In addition, I had less
time to engage in direct contact with the voters by going door-to-door.

- 25 -
(2 Rue R. Doc. 47 at 708–09.) In discussing the fundraising burden imposed

during the recent election for which spending limits were enjoined, former mayor

Jim Baca comments, “As a result of this new money chase in this year’s mayoral

election in Albuquerque, I am now forced to spend three hours every day making

fundraising phone calls. I have never before had to do this in my political

career.” (2 Homans Doc. 24 at 512.) On the other hand, other evidence in the

record suggests that the strain on Albuquerque officials’ time in the absence of

spending limits is not significantly greater than when a spending limit is in place.

For example, Michael Guerrero, who entered the 1999 City Council race while the

spending limit was in place, testified that he spent between ten to fifteen hours

per week raising funds.

Limited to the record before us, we cannot conclude that Albuquerque has

submitted sufficient evidence to demonstrate that candidate-expenditure caps are

necessary to further the state’s interest in protecting officials’ abilities to conduct

their jobs. While it may seem so to candidates at the time, we are not convinced

that the burdens imposed on Albuquerque officeholders’ time amounts to a

problem of constitutional proportions. The claim that fundraising prevents

officeholders from engaging in alternative campaign tactics such as individual

door-to-door contact is interesting. Albuquerque does not articulate any reason

why there is a compelling state interest in channeling campaign resources to favor

- 26 -
individual voter contact rather than fundraising tactics. There is no indication in

the record that, for example, the added burden of fundraising events and phone

calls is more demanding on an officeholder’s time than the burden of individual

voter contact.

Nor does the record persuade us that individual voter contact is a

fundamentally superior campaign strategy because fundraising efforts compromise

an officeholder’s ability to communicate with the public. Given the individual

contribution-limits in Albuquerque, officeholders are likely to communicate with

a broad swath of potential fundraisers in much the same way they would

communicate with the public through door-to-door contact; records of past

campaign contributors do not suggest that the target for contribution solicitations

differs significantly from the general Albuquerque public at large. On the

contrary, candidate Guerrero states that time spent on fundraising cannot be

distinguished from time spent on other campaign tactics because “a lot of times

when you’re fund-raising, you’re also campaigning.” (3 Rue R. Doc. 52 at 760.)

We take this to mean that the message disseminated in fundraising efforts often

coincides with the message disseminated through voter contact—they are

generally one and the same; the City makes no effort to rebut this assumption.

For these reasons, we hold that Albuquerque’s evidence, even when viewed in the

- 27 -
light most favorable to the City, fails to demonstrate that expenditure limits are

necessary to further a compelling state interest in preserving officeholders’ time.

3

Finally, the City argues that campaign-spending limits are necessary to

further the state interest in promoting electoral competition. One expert in the

field of campaign-finance reform explains:

Electoral competition is another central component of democratic
governance. In many respects, the ultimate weapon of public
accountability in a democratic system is the ability of citizens to remove
political actors through elections. And, electoral competition is the
mechanism that keeps accountability viable . . . . High levels of
campaign spending poses a threat to such competition because large
incumbent war chests tend to discourage serious challengers.

(2 Rue R. Doc. 43 at 674.) Homans argues that this merely rehashes the

equalization-of-candidate-resources rationale rejected in Buckley. 15 See Buckley,

424 U.S. at 56 (rejecting the argument that equalizing candidates’ resources

constitutes a compelling state interest). In Buckley, however, the Court spoke

solely to the equalization of candidate resources; it did not address the possible

rationale of improving electoral competition. Id. at 48–49, 56–57. We are

persuaded that the improvement of electoral competition constitutes an interest

distinct from the equalization-of-candidate-resources rationale rejected in

Buckley. Thus, nothing precludes this court from recognizing robust electoral

15
Notably, Rue does not raise this argument.

- 28 -
competition as a state interest sufficiently compelling to justify the expenditure

limits.

We do not resolve this question because there is insufficient evidence in the

record, even when viewed in the light most favorable to the City, to establish that

spending limits actually enhance electoral competition. While the City’s

statistical evidence does tend to undercut the doomsday prediction that spending

limits discourage competition by insulating incumbents, it falls short of proving

the contrary—that spending limits actually improve electoral competition—as the

City’s own expert admits. Even were we to assume that enhancement of electoral

competition constitutes a compelling state interest, there is insufficient evidence

in this record to show that expenditure limits serve this end.

B

We conclude that Albuquerque’s evidence, even when viewed in the light

most favorable to the City, fails to establish that its candidate-expenditure limits

are necessary to serve a compelling state interest. Thus, summary judgment in

favor of Rue was proper. It follows that the City’s evidence in Homans III, which

need not be viewed in the light most favorable to Albuquerque, fails to sustain its

burden, and the permanent injunction was appropriately granted. Given these

holdings, we have no occasion to determine whether the expenditure limits are

narrowly tailored. It is clear from the record, and from the many other cases

- 29 -
dealing with the problem, that there is an increasing drive, and need, for

campaign finance reform. We do not intend by our holding—that Albuquerque

has failed in the instant case to demonstrate a compelling state interest for its

expenditure provisions—to discourage future efforts in reforming our electoral

system; we merely hold that on the record before us, Albuquerque has failed to

justify its expenditure limits.

Other jurisdictions have attempted alternative measures to eradicate

corruption: limiting the size of campaign contributions, improvement of electoral

competition, enhancement of voter participation, and preservation of candidates’

scarce time resources, and they have done so within constitutional bounds.

Notably, the Court has stated that public financing measures including

expenditure limits may be implemented to achieve these ends without running

afoul of the First Amendment. See Buckley, 424 U.S. at 57 n.65 (“Congress may

engage in public financing of election campaigns and may condition acceptance

of public funds on an agreement by the candidate to abide by specified

expenditure limitations.”). As for the prescription before us–a rigid limitation of

campaign expenditures—Albuquerque has failed to submit sufficient evidence of

a compelling state interest justifying such limits.

For the foregoing reasons, we AFFIRM both decisions of the district court.

- 30 -
Nos. 02-2244, 02-2316, Homans v. City of Albuquerque; Rue v. City of
Albuquerque; TYMKOVICH, J., affirming, concurring in part and concurring in
the result. O’BRIEN, J. joins.

I agree with much of Judge Lucero’s analysis and with the ultimate

disposition of the issues on appeal. Specifically, I concur with Parts I, II, and III,

and with the analysis of Part IV that is not inconsistent with the following. 1 I

write separately for two reasons: First, to explain what I view as the Supreme

Court’s narrow application of Buckley’s anti-corruption rationale in campaign

expenditure cases. Second, to demonstrate why the other rationales submitted by

the City – preservation of officeholder time and promoting electoral competition –

are fundamentally at odds with Buckley and its progeny.

The principal opinion’s careful analysis of the evidence presented by

Albuquerque leads it to the undoubtedly correct conclusion that the City’s

campaign spending restrictions are unconstitutional. I, however, would agree

with the Sixth Circuit’s holding that under Buckley such restrictions cannot be

supported as a matter of law. See Kruse v. City of Cincinnati, 142 F.3d 907, 915-

19 (6th Cir. 1998). In particular, I would hold that while prevention of corruption

has been recognized as a compelling interest justifying campaign contribution

limits, it was specifically rejected by Buckley as a sufficient reason to limit direct

campaign spending. Further, in my view the two “new” interests the City asserts

1
I refer to Judge Lucero’s opinion as the “principal opinion” because the
three judge panel is unanimous in its agreement on the result, and note that this
opinion is the majority only as to Part IV.
in defense of the statute are neither new nor compelling, nor are the spending

caps tailored narrowly to serve them. Since all three of the asserted interests are

thus constitutionally incapable of justifying spending restrictions as a matter of

law, the court need not entertain the evidence submitted by the City.

Strict Scrutiny and Buckley v. Valeo

It is true that strict scrutiny does not require automatic invalidation of

governmental regulations. See Grutter v. Bollinger, 123 S. Ct. 2325, 2338 (2003).

Nevertheless, where core First Amendment principles are at stake, courts must

bring a healthy skepticism to claims that individuals spend too much time and

money on the political process. Unless the City convinces us that its regulations

are necessary to serve a compelling interest, see Federal Election Comm’n v.

Mass. Citizens for Life, Inc., 479 U.S. 238, 251-52 (1986), and are narrowly

tailored to serve that interest, we must invalidate them. See Federal Election

Comm’n v. Nat’l Conservative Political Action Comm., 470 U.S. 480, 496 (1985)

(“NCPAC”).

While I agree it is theoretically possible to bring evidence of corruption in

support of spending limitations under Buckley, we should be careful not to credit

attempts to reformulate arguments that the Supreme Court rejected long ago.

Buckley’s strong affirmation of the free speech rights associated with campaign

spending has remained essentially untouched for nearly thirty years. See

-2-
McConnell v. Fed. Election Comm’n, 124 S. Ct. 619, 655 (2003) (reemphasizing

heightened level of scrutiny for restrictions on campaign expenditures). Its

central holding on expenditures has stood the test of time, both from judicial

tinkering and legislative onslaught. That Albuquerque’s spending caps have

evaded judicial review for more than 25 years is quite a feat. After careful

deliberation, however, the City’s limits cannot stand under well-established

precedent.

I agree that the Buckley Court did not adopt a per se rule against campaign

spending limits. The Court began by explaining the particular importance of First

Amendment rights in the arena of political campaigning:

In a republic where the people are sovereign, the ability of the
citizenry to make informed choices among candidates for office is
essential, for the identities of those who are elected will inevitably
shape the course that we follow as a nation. As the Court observed
in Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971), “it can
hardly be doubted that the constitutional guarantee has its fullest and
most urgent application precisely to the conduct of campaigns for
political office.”

Buckley, 424 U.S. at 14-15.

The Court went on to address specifically how spending limits

impinge upon this right:

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 their exploration, and the size of the audience reached.

-3-
 This is because virtually every means of communicating ideas in
today’s mass society requires the expenditure of money.

Id. at 19 (footnote omitted). It concluded with a broad holding that

government does not have the right to pass judgment on how or why a

person expends campaign resources:

The First Amendment denies government the power to determine that
spending to promote one’s political views is wasteful, excessive, or
unwise. In the free society ordained by our Constitution it is not the
government but the people – individually as citizens and candidates
and collectively as associations and political committees – who must
retain control over the quantity and range of debate on public issues
in a political campaign.

Id. at 57.

As Justice White observed in dissent, this is not the language of a Court

limiting its decision to the facts before it, or interested in encouraging

governments to enact similar restrictions with more elaborate justifications. See

id. at 266 (“The Court . . . holds that a candidate has a constitutional right to

spend unlimited amounts of money, mostly that of other people, in order to be

elected.”) (White, J., dissenting).

The hundreds of pages of campaign finance opinions written by the

Supreme Court beginning with Buckley and culminating most recently with

McConnell may not have left us with many clear rules, but one remains intact:

“The central holding in [Buckley] is that spending money on one’s own speech

must be permitted. . . .” Colorado Republican Fed. Campaign Comm. v. Fed.

-4-
Election Comm’n, 518 U.S. 604, 627 (1996) (Kennedy, J., concurring in part and

dissenting in part). Thus, the Supreme Court has “routinely struck down

limitations on independent expenditures by candidates.” Federal Election

Comm’n v. Colorado Republican Federal Campaign Comm., 533 U.S. 431, 441

(2001) (“Colorado II”) (emphasis added); see also McConnell, 124 S.Ct. at 655

(reiterating that expenditure limitations will be more closely scrutinized).

One can safely conclude that Buckley forecloses a finding that spending

limitations can be narrowly tailored to further governmental justifications other

than the anti-corruption interest sustained by the Supreme Court, no matter what

evidence may be presented. In short, the City must do more than offer academic

distinctions of the rationales rejected in Buckley. Albuquerque failed to do so

here.

Corruption and Campaign Expenditures

While I agree with the principal opinion that strict scrutiny does not

establish a “per se” restriction on campaign spending schemes, it does set a high

standard. The Supreme Court likens “corruption” to the “subversion of the

political process. Elected officials are influenced to act contrary to their

obligations of office by the prospect of financial gain to themselves or infusions

of money into their campaigns. The hallmark of corruption is the financial quid

pro quo: dollars for political favors.” NCPAC, 470 U.S. at 497. Nevertheless,

-5-
while the Supreme Court has routinely upheld contribution limits under the

corruption rationale, it has equally routinely struck down spending restrictions.

See Colorado II, 533 U.S. at 440-41. The reason for the difference is the Court’s

determination – grounded in law and common sense – that expenditures by a

candidate to promote the candidate’s political agenda do not pose a particular risk

of corrupting the candidate making the expenditure.

While more recent cases appear to have taken a slightly broader view of the

corruption rationale on the contribution limits side of the equation, see, e.g.,

Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377, 389 (2000) (expressing

concern about “the broader threat from politicians too compliant with the wishes

of large contributors”), the Supreme Court as a whole has not yet shown any

willingness to do so on the spending side. The Supreme Court’s skeptical view of

spending limitations in Buckley is based on a realistic appraisal of modern

campaigning. Conveying a campaign message to a large electorate can be costly,

whether it is by direct mail, television, radio, or staged events. See Buckley, 424

U.S. at 19-20. While technological innovations such as the internet may make it

more economical to reach some segments of the electorate, overall costs are

unlikely to go down anytime soon. The bottom line is that political speech can

only be communicated where a candidate has the resources to get his views out.

See id. at 19, 57.

-6-
 The quality of contemporary political communications may give us pause,

but the First Amendment does not have an exception for messages we find

repetitive, in poor taste, or too hard-hitting. The answer to concerns about

political campaigning, however, does not rest in arbitrary limits that reduce the

amount of speech available to the public with no reduction in real or perceived

corruption by candidates or elected officials. 2 The Supreme Court has made it

clear that a candidate’s expressing his political views is not corrupting: “There is

nothing invidious, improper, or unhealthy in permitting [legally-raised] funds to

be spent to carry the candidate’s message to the electorate.” Id. at 56.

In other words, the candidate’s spending does nothing to corrupt the candidate.

“If a [] candidate can raise $1 from each voter, what evil is exacerbated by

allowing that candidate to use all that money for political communication?” Id. at

56 n.64 (quoting Buckley v. Valeo, 519 F.2d 817, 917 (D.C. Cir 1975) (Tamm, J.,

dissenting in part)). Thus, candidate spending limitations cannot be justified by

the anti-corruption rationale. Id. at 55-57. This is because “[t]he markedly

greater burden on basic freedoms caused by [spending limits] cannot be sustained

2
This is to say nothing of the inevitable unintended consequences. Some
commentators suggest that a possible consequence of spending restrictions will be
to drive political spending further out of the control of candidates and into the
hands of independent groups. See generally Lillian R. BeVier, Money and
Politics, A Perspective on the First Amendment and Campaign Finance Reform,
73 Calif. L. Rev. 1045 (1985) (noting that campaign finance reform has increased
influence of interest groups).

-7-
simply by invoking the interest in maximizing the effectiveness of the less

intrusive contribution limits.” Id. at 44.

There is no basis to retreat from Buckley’s essential teaching that campaign

spending restrictions are not narrowly tailored to further the governmental interest

in reducing corruption. I therefore agree with the Sixth Circuit that “campaign

spending limits cannot be justified by the anti-corruption rationale.” Kruse, 142

F.3d at 915. Thus, while Judge Lucero is correct in finding that Albuquerque put

forth insufficient evidence to show that its spending limits were necessary to

prevent corruption, I doubt that any evidence would sustain such limitations under

Buckley.

Fund-raising Burdens on Candidates

Albuquerque advances a second rationale for spending caps: they relieve

elected officials of the heavy burden of raising the money they need to spend to

get reelected. The principal opinion disagrees with Homans’s and Rue’s

argument that this is simply a reformulation of the cost-control rationale

considered and rejected by the Supreme Court in Buckley. The opinion

distinguishes Buckley’s holding that the “allegedly skyrocketing cost of political

campaigns” is not an interest that can support spending restrictions, 424 U.S. at

57, by concluding that the Buckley Court was concerned only with “the woes of

poor challengers,” not the distractions faced by officeholders. Supra at 24.

-8-
 It is true that the woes of underfunded challengers and the distractions of

officeholders are not the same, and Buckley does not explicitly mention the latter.

Both concerns are, however, aspects of the broader interest in controlling the

costs of campaigns, an issue the Buckley Court did consider and firmly reject.

The Court said, “The First Amendment denies government the power to determine

that spending to promote one’s political views is wasteful, excessive, or unwise.”

Buckley, 424 U.S. at 57. This is not limited to protecting the interests of

underfunded challengers. The Court is clearly and explicitly addressing whether

the government may wrest from “the people – individually as citizens and

candidates and collectively as associations and political committees – control over

the quantity and range of debate on public issues in a political campaign” because

it feels the time and money spent on campaigns could be better utilized on other

endeavors. Id. If the “mere growth” of the cost of campaigns “provides no basis

for governmental restrictions on the quantity of campaign spending,” see id.

(emphasis added), a mere consequence of that growth – more time spent fund-

raising – certainly cannot provide such a basis. This is so even if Albuquerque’s

city councilors believe candidates are spending wasteful, excessive, or unwise

amounts of money on their campaigns or if candidates would prefer to have more

time for other activities.

-9-
 Because Buckley rejected this broad argument in favor of spending caps, it

did not need to address each of the numerous subordinate arguments the parties in

that case put forth. But it is worth noting that contrary to the City’s contention

the Buckley Court did consider the exact argument made here, that the “thirst for

money has forced candidates to divert time and energy to fund-raising and away

from other activities, such as addressing the substantive issues.” Buckley, Br. of

Appellees Center for Public Financing of Elections, Common Cause, League of

Women Voters of the United States at 72-73 (quoting Senator Humphrey:

“Campaign financing is a curse. It’s the most disgusting, demeaning,

disenchanting, debilitating experience of a politician’s life. It’s stinky. It’s

lousy. I just can’t tell you how much I hate it.”).

Since Buckley is directly controlling, I would again agree with the Sixth

Circuit and reject this proposed justification without reaching the details of

Albuquerque’s arguments. See Kruse, 142 F.3d at 916-17 (“[T]he need to spend

time raising money, which admittedly detracts an officeholder from doing her job,

cannot serve as a basis for limiting campaign spending.”).

The principal opinion nonetheless deals effectively with the City’s factual

arguments on this point. That legislators might wish to free themselves from the

pressures of fund-raising is not surprising. Fund-raising is hard work and can be

quite time consuming. Few candidates reportedly like it. What is surprising is

- 10 -
that many commentators, normally so exacting in their criticism of the self-

dealing of the political branches, are willing to accept the most optimistic

projections about reform proposals’ likely effects. See generally Lillian R.

BeVier, What Ails Us?, 112 Yale L. J. 1135, 1138 (2003) (commenting on how

most campaign finance proposals miss the reformers’ target).

The principal opinion is quite right that the City presented no plausible

evidence that the quality of municipal governance or legislation had been harmed

by inattentive law makers, nor that elected officials’ work product would

substantially improve because the officials could spend more time on the job. It

is doubtful that Albuquerque’s elected officials would admit that they have been

unable to provide quality governance despite the rigors of campaigning. In any

event, courts are not in a position to make such judgments about the quality of

legislation based on such an illusory rationale. See Buckley, 424 U.S. at 57.

Furthermore, contrary to former Mayor Baca’s concerns about the increased

burdens of fund-raising (itself an echo of the complaints of the appellees in

Buckley), officeholders are not “forced” to spend any time making calls or

otherwise seeking funds. 3 That they choose to do so (allegedly at the expense of

3
Not only are officeholders not required to run for reelection if they feel it
interferes with their ability to represent their constituents, but if political
advertisements are as ineffectual at informing voters as the City here seems to
claim, see Rue Appellant’s Br. at 15-17, then surely a rational candidate would
(continued...)

- 11 -
their other duties) seems to be a rather weak reason to override core First

Amendment concerns. Freeing politicians from having to make that choice is not a

compelling governmental interest.

Finally, of course, whatever the merits of spending limits, they must be

narrowly tailored to further the constitutional justification. By way of example, as

the principal opinion notes, an approach whose constitutionality has been

sanctioned by Buckley is an obvious solution. Buckley upheld voluntary spending

limits on presidential campaigns where the candidate accepts public funds. 424

U.S. at 85-86. If the City’s elected officials and its voters truly feel obliged to

limit campaign spending, they should be willing to put their money (tax dollars)

where their mouths are. A public funding scheme would presumably take fund-

raising pressure off of elected officials and also allow challengers to forego the

rigors of purely private fund-raising. Another approach would be to raise limits on

contributions. Candidates could then save time by seeking fewer, larger,

donations. Not only would this free up candidates’ time, but it would also lessen

any pressure to evade low contribution limits. Albuquerque’s contribution limits

are currently set at five percent of the spending caps; while the record does not

3
(...continued)
not waste much time raising money to pay for them.

- 12 -
disclose the governmental rationale for this formula, there is no reason the City

could not revisit these limits in response to the realities of modern campaigning.

State and local governments are also free to limit the number of times an

individual can run for the same office. Another simple solution would be to

expand the number of seats in a given elective body, in this case the Albuquerque

City Council. With fewer constituents to represent, and fewer potential voters to

persuade, candidates would have to spend less time on all forms of campaigning,

including fund-raising.

In short, Albuquerque’s restrictions do not further the objective of reducing

corruption. Nor are they “closely drawn” in light of the many alternatives that are

not constitutionally suspect. They accordingly do not comport with the plain

teaching of Buckley.

Electoral Competition

Albuquerque’s final constitutional justification is that spending limits are

necessary to promote electoral competition. Once again, I agree with the

conclusion of the principal opinion – that Albuquerque has failed to show that this

interest is served by its spending limits. I do not believe Buckley, however, allows

us to entertain this interest as a proposed rationale for spending limits.

Albuquerque’s argument is that “campaign spending poses a threat to

[electoral] competition because large incumbent war chests tend to discourage

- 13 -
serious challengers.” Supra at 27-28. Thus, the City contends that spending caps

are needed to equalize candidate resources, which in turn may improve electoral

competition. This interest, like the others urged on us here, however, was

considered and rejected by the Buckley Court. Addressing the argument that

spending limits are necessary “to equalize the relative ability of individuals and

groups to influence the outcome of elections,” the Court stated,

[T]he concept that 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, which was designed
to secure the widest possible dissemination of information from
diverse and antagonistic sources, and to assure unfettered interchange
of ideas for the bringing about of political and social changes desired
by the people.

424 U.S. at 48-49 (quotations omitted). The Supreme Court couched its language

broadly in response to the argument that spending caps are necessary to

“encourage participation as candidates by many who in the past remained inactive

on the ground that, inevitably, they could not compete against the established

fund-raiser.” Buckley, Br. of Attorney General & FEC at 36. 4 The Buckley Court,

however, rejected this claim: “[E]qualization of permissible campaign

expenditures might serve not to equalize the opportunities of all candidates but to

4
This argument undermines Albuquerque’s claim that campaign spending is
not important for challengers hoping to inform or persuade voters because
communication with likely voters is not expensive. See Rue Aplt. Br. at 16-17,
62-63.

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handicap a candidate who lacked substantial name recognition or exposure of his

views before the start of the campaign.” 424 U.S. at 56-57.

Thus, I believe Buckley does effectively “preclude[] this court from

recognizing robust electoral competition as a state interest sufficiently compelling

to justify the expenditure limits.” Cf. supra at 28. Because the Supreme Court

has rejected this proposed rationale, this court should make clear to trial courts

and future potential litigants that time and money spent attempting to build a

record justifying spending restrictions based on this argument would be wasted.

Even if encouraging competition were a compelling interest, many of the

alternative proposals identified above would be less restrictive means of serving

this interest. For example, increasing the number of seats, limiting the number of

terms individuals can serve, raising contribution limits, and supplementing private

donations with public funds all could help relatively unknown candidates amass

the resources necessary to challenge a sitting officeholder without impinging on

the First Amendment.

Conclusion

The principal opinion correctly notes that Buckley is the starting point for

analysis in any campaign finance case. In this case, Buckley is also the endpoint

because Buckley itself precludes our recognition of the reformulated interests

urged on us by Albuquerque. Besides this imposing legal impediment, I see two

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possible consequences of the principal opinion’s analysis: First, it would

encourage additional attempts by governments to abridge citizens’ rights to

engage in (sometimes expensive) political speech through artful restatements of

the governmental interests rejected in Buckley. Second, by couching its decision

on the lack of a sufficient record, rather than on the protections of the First

Amendment, the principal opinion tempts heavy reliance on surveys, statistical

analysis, and other time-consuming and costly forms of record building when the

inevitable litigation arises from those abridgments. The Supreme Court has given

us little reason to expect that new criticism of the high cost of politics will

undercut the central holding of Buckley that most spending limitations are

constitutionally foreclosed by the First Amendment.

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