## F I L E D United States Court of Appeals Tenth Circuit 

### APR 27 2004 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

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

SANDER RUE, Plaintiff - Appellee, v. THE CITY OF ALBUQUERQUE, a municipal corporation; FRANCIE D. 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. No. 02-2316- 2 - 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 onthe 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-Appelle e 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 Vo ting Rights Institute, Boston, Massachusetts for Defendants-Appellants in 02-2316. James Bopp, Jr., (Henry M. Bohnhoff, Rodey, Dickaso n, Sloan, Akin & Robb, Albuquerque, New Mexico; and Paul M. Kienzle, III, Scott & Kienzel, PA, Albuquerque, New Mexico with him on the brief), Bop p, Coleson & Bostrom, Terre Haute, Indiana for Plaintiff-Appellee in 02-2 316.

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

LUCERO , Circuit Judge.

In response to the increasingly apparent need to re form the ways in which political campaigns are financed, the city of Albuq uerque implemented a campaign-finance reform system in 1974. It adopted limits on campaign1 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). - 3 - expenditures and contributions in municipal electio ns. 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. Citycouncil candidate Sander Rue brought a similar suitchallenging the expenditure limit for city-council candidates and obtained a favorable summary judgment as well. Both cases are before us on review, and beca use they present similar issues, we consolidate them for review. Exercising jurisdi ction 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 op inion 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 gov ernment in 1974, Albuquerque amended its city charter and implemente d an election code imposing disclosure requirements and limiting expenditures and contributions for municipal elections. More than ninety percent of voters appr oved these reform measures. As it reads today, the election code provides:2 Albuquerque’s city charter also caps individual c ontributions at five

percent of the annual salary of the office. Id. at sec. 4(e). The propriety of the contribution limits, which theoretically would appe ar to allow twenty individual contributors to fund one hundred percent of a campa ign at the full expenditure limitation level, is not before us. - 4 - No candidate shall allow or accept contributions ormake expenditures in excess of the following for any election: 1. To a candidate for the office of Councillor, con tributions or expenditures equal to twice the amount of the annual sala ry 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, contribu tions or expenditures equal to twice the amount of the annual salary paid by the City of Albuquerque to the Mayor as of the d ate 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 ci ty-council election from 1974 to 1995. Limits on the 1997 election were temporarily enjoined pursuant to a court order; however, parties to that litigation stipulat ed dismissal of the lawsuit, and the spending limits were restored for the 1999 elec tion. For the 2001 elections, the mayoral-campaign expenditure limit was $174,720 ; city-council candidates were limited to spending a maximum of $17,056. Vio lation of these limits carries a fine of up to $500 per violation, removal from of fice, and/or public reprimand. After filing suit in federal district court on Augu st 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- 5 -

(D.N.M. 2001) (“Homans I ”). He then filed an interlocutory appeal on Septe mber 4, 2001, seeking an emergency injunction pending ap peal. Two days later, a twomember motions panel of this court granted the requ est and enjoined enforcement of the expenditure limit pending review of the meri ts. 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 est ablished a likelihood of success on the merits regarding his claim that the expenditure limit violated the First and Fourteenth Amendments under Buckley v. Va leo , 424 U.S. 1 (1976) (per curiam). Homans II , 264 F.3d at 1243–44. On February 13, 2002, the parties filed a joint mot ion for stipulated admission of evidence and expedited determination o n the merits in district court. The district court entered a declaratory judgment i n favor of Homans and permanently enjoined enforcement of the provision i n 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 electio n. In his suit filed in federal3 Although the elections have passed, this does notrender the cases moot

because the issues raised are “capable of repetitio n, 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). - 6 - district court in September, 2001, he claimed that the city-council campaignexpenditure limitation violates Buckley . The district court granted summary judgment in favor of Rue and permanently enjoined e nforcement of the citycouncil 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 standar ds used by the district court and construing the facts in the light most favorabl e 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 factu al findings for clear error. Fed. R. Civ. P. 52(a). Because this case implicate s First Amendment concerns,- 7 -

however, we have “an obligation to make an independ ent examination of the whole record in order to make sure that the judgmen t 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). W e therefore view the evidence objectively rather than in the li ght most favorable to the City. Our standard in reviewing Rue’s case is thus more f avorable 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 injunc tion in Homans’ case was
proper. III As an initial matter, we determine whether the Homa ns II decision, in which a motions panel of this court granted an inju nction 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 and4 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, a s opposed to his likelihood of (continued...) - 8 - restricts us in our merits determination. 4 The district court agreed, stating that although it was inclined to conclude that the expen diture limit for mayoral campaigns survives the exacting scrutiny required u nder Buckley , it was bound by the motions-panel ruling to conclude otherwise. Ho mans III , 217 F. Supp. at 1206. We disagree. In general, the law of the case doctrine provides t hat “when a court decides upon a rule of law, that decision should continue t o govern the same issues in subsequent stages in the same case.” Arizona v. Ca lifornia , 460 U.S. 605, 618 (1983). Law of the case “is solely a rule of pract ice 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. Lu bar , 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 limite d to the conclusion that Homans had shown a likelihood of success on the merits of his claim. 5 Homans II , 2645 (...continued)

success on the merits, such language is dicta. Dic ta 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). - 9 - F.3d at 1243–44. Courts repeatedly have emphasizedthat a decision as to the likelihood of success is tentative in nature and no t 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 grantin g 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. Tr ading & Prod. Corp. , 202 F.3d 469, 473 (1st Cir. 2000). Were the opposite t rue, 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 r eviewing the merits. This is not the rule. When reviewing a decision by a priormotions panel, we are “uninhibited by the law of the case doctrine.” Sti fel , 81 F.3d at 1544. Our own circuit precedent expressly rejects the pro position 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 ofte n tentative because it is based on an abbreviated record and made without the benef it of full briefing and oral argument.” Id. at 1544. In the instant case, the motions panel d id not hear oral6 From this it follows that neither the district co urt considering Rue’s claim

nor this court in reviewing that decision is constr ained by the Homans II ruling. - 10 - argument, and briefing proceeded on an expedited sc hedule in light of the impending election. Homans filed his motion on Sep tember 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 th e 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 no t 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 concludin g that it was bound by the law of the case doctrine.
IV We proceed to the merits of Homans’ and Rue’s claim s. 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 provisio ns must begin with an analysis of the watershed case of Buckley v. Valeo , 424 U.S. 1 (1976). Analyzing- 11 -

the 1974 amendments to the Federal Election Campaig n Act (“FECA”), the Supreme Court developed a jurisprudential distincti on between restrictions on campaign expenditures and restrictions on campaign contributions. Although both types of restrictions limit core political spe ech and are therefore subject to “exacting scrutiny,” id. at 16, the Court concluded that expenditure limits impose “significantly more severe restrictions on protecte d 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 comm unication during a campaign necessarily reduces the quantity of expression by r estricting 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 ra ise graver constitutional concerns and are invalidated more frequently. Id. at 55–56, 59 (upholding contribution limits but invalidating expenditure li mits); see also McConnell v. Fed. Election Comm’n , 540 U.S. ___, 24, 2003 WL 22900467 (2003) (“In Buckleyand subsequent cases, we have subjected restrictio ns on campaign expenditures to closer scrutiny than limits on camp aign contributions.”); Fed. Election Comm’n v. Colo. Republican Fed. Campaign C omm. , 533 U.S. 431, 440 (2001) (“Colorado Republican II ”) (“[L]imits on political expenditures deserve closer scrutiny than restrictions on political cont ributions.”); Nixon v. Shrink Mo.
Gov’t PAC , 528 U.S. 377, 387–88 (2000) (“Shrink Missouri ”) (concluding that- 12 -

differing standards govern review of contribution l imits and expenditure limits, and that contribution limits may be justified when they are “closely drawn” to serve a “sufficiently important interest”); Fed. El ection Comm’n v. Mass. Citizens for Life , 479 U.S. 238, 259–60 (1986) (“We have consistentl y held that restrictions on contributions require less compelli ng justification than restrictions on independent spending.”). Although a less stringent standard of review applie s to limits on political contributions, we conclude that the standard for expenditure limits operates identically to strict scrutiny review. To be uphel d, therefore, the campaignexpenditure restrictions must be both narrowly tail ored, 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 stat e restrictions on corporate political expenditures); Kruse v. City of Cincinnat i , 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 essenti al to acknowledge that such scrutiny is not “strict in theory, but fatal in fac t.” See, e.g. , Grutter v. Bollinger , 123 S. Ct. 2325, 2338 (2003). Despite this repeate d admonition by the Supreme7The three rationales proffered were as follows: (1) to deter corruption

and the appearance of corruption; (2) to equalize c andidates’ resources; and (3) to contain the skyrocketing costs of political campaig ns. - 13 - Court, appellees insist that Buckleyimposes a per se ban on all candidateexpenditure restrictions. Given the Supreme Court’ s distaste for “imposing judicial formulas so rigid that they become a strai tjacket that disables government from responding to serious problems,” Denver Area E duc. Telecomm. Consortium, Inc. v. FCC , 518 U.S. 727, 741 (1996), we are obliged to disag ree. In Buckley , defenders of FECA’s restrictions on candidate exp enditures proffered various rationales to justify the limits, 424 U.S. at 55–57; 7nonetheless, the Court invalidated the expenditure cap, holding that “[n]o governmental interest that has been suggestedis sufficient to justify the restriction.” Id. at 55 (emphasis added). The Court’s chosen language leav es open the possibility that at least in some circumstances expenditure limits m ay withstand constitutional scrutiny. See Kruse , 142 F.3d at 920 (Cohn, J., concurring) (stating t hat “Buckley . . . is not a broad pronouncement declaring all ca mpaign 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 su rvive exacting scrutiny, we evaluate Albuquerque’s attempt to do so.
A- 14 -

To satisfy strict scrutiny review, Albuquerque mustestablish that its candidate-expenditure restrictions are necessary to further a compelling state interest. Albuquerque sets forth the following rat ionales to justify the limits: (1) deterrence of corruption and enhancement of public confidence in the electoral process; (2) preservation of officeholders’ abilityto perform their duties without devoting excessive time to fundraising; and (3) enc ouragement of electoral competition. We address each rationale.
1 Speaking nearly five decades ago, Justice Frankfurt er made the following assessment of the corruption and public confidence issue: We all know . . . that one of the great political e vils of the time is the apparent hold on political parties which business i nterests and certain organizations seek and sometimes obtain by reason o f liberal campaign contributions. Many believe that when an individua l or association of individuals makes large contributions for the purpo se of aiding candidates of political parties in winning election s, they expect, and sometimes demand, and occasionally, at least, recei ve, 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 expla ined: Leave the perception of impropriety unanswered, and the cynical assumption that large donors call the tune could je opardize the willingness of voters to take part in democratic go vernance. Democracy works only if the people have faith in those who go vern, and that faith is bound to be shattered when high officials and th eir appointees engage in activities which arouse suspicions of malfeasanc e and corruption.- 15 -

Shrink Missouri , 528 U.S. at 390 (quotation omitted). Most recent ly, 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 corrup tion or its appearance constitutes a sufficiently important interest to ju stify political contribution limits.”). Despite this precedent, Homans argues t o no avail that as a matter of law Buckleymandates that expenditure limits can never be just ified by the anticorruption 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
necessaryto serve this end. See Burson v. Freeman , 504 U.S. 191, 198 (1992) (noting that exacting scrutiny requires that the re gulation be necessaryto serve a compelling state interest). In the particular circ umstances 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 l imits were necessary to prevent circumvention of permissible campaign-finance provi sions, the Court relied on the factual conclusion that “[t]here is no indicati on that the substantial criminal- 16 -

penalties for violating the contribution ceilings c ombined with the political repercussions of such violations will be insufficie nt.” 424 U.S. at 26, 55–56. Attaching significance to the fact that FECA permitted successful candidates to retain contributions in excess of expenditure limit s and to use these funds for any lawful purpose, the BuckleyCourt explained: “This provision undercuts whatev er marginal role the expenditure limits might otherwis e play in enforcing contribution ceilings.” Id. Contrary to appellees’ contention, Buckleydoes not preclude the use of expenditure limits to further astate’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 th at the anti-corruption rationale may, under some circumstances, justify candidate-expenditure caps). Nor are we persuaded that subsequent case law prohi bits the use of expenditure caps to deter corruption as a matter of law. In Kruse , the Sixth Circuit reached the opposite conclusion and held th at NC-PAC and Colo. Republican Federal Campaign Comm. v. Federal Electi on Comm’n , 518 U.S. 604 (1996) (“Colorado Republican I ”) “make eminently clear that spending limits . . . are unconstitutional not simply because of th e 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-P AC and Colorado Republican I

.- 17 -

In NC-PAC , the Court invalidated restrictions on political a ction committees’ independent expenditures when the spend ing was not coordinated with a campaign; the court did not address the perm issibility of restrictions on candidate expenditures. 470 U.S. at 496–98. Even were NC-PAC ’s reasoning to apply to restrictions on candidate expenditures, it s holding would be limited to the facts in that case. The Court’s explicit holding w as that “[o]n this record , . . . an exchange of political favors for uncoordinated expe nditures remains a hypothetical possibility and nothing more.” Id. at 498 (emphasis added). Similarly fact-bound is the holding in Colorado Rep ublican I , in which the Supreme Court invalidates limits on spending by pol itical parties, which are treated as “independent expenditures.” 518 U.S. at613–19. The Court based its conclusion on the absence of coordination between t he 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’ independe nt expenditures is necessary to combat a substantial d anger 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 “conv incing evidence” and thus justify the need for expenditure limits to reduce c orruption or the appearance of corruption.8 Notably, evidence of circumvention of contributio n limits, standing

alone , could not sustain the more onerous burdens impose d by expenditure limits: The discussion in [the earlier section of the Buckley Opinion] explains why the Act’s expenditure limitations impose far gr eater restraints on the freedom of speech and association than do its c ontribution limitations. The markedly greater burden on basic freed oms caused by [FECA’s independent expenditure provision] thus can not be sustained simply by invoking the interest in maximizing the e ffectiveness of the less intrusive contribution limitations. Buckley , 424 U.S. at 44; see also Kruse , 142 F.3d at 915–16 (holding that Buckleyexpressly rejects the argument that spending caps are justified by the need to enforce contribution limits). - 18 - 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 expe nditure limits are necessaryto deter corruption. The City submits the following a s evidence to support its position: (1) evidence demonstrating the ease with which contribution limits are circumvented; (2) voter turnout statistics; (3) vot er surveys; and (4) anecdotal evidence of corruption. As to the first category of evidence, the City focu ses on the use of tactics such as “bundling” at the federal level, arguing th at 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 th e federal level are9 This statement suggests that turnout rates correl ate with expenditure

limits because expenditure limits decrease the perc eption of corruption, which in (continued...) - 19 - comparable to those at the local level. Although t he City is entitled to rely on evidence from other jurisdictions to justify campai gn-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 th e 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 e vidence, suggesting that local bundling practices are analogous to federal ones. But the City’s evidence of the need to deter corrup tion is not limited to documenting bundling at the federal level—the City introduces additional, independent evidence of the public appearance of co rruption. Submitting statistics on Albuquerque voter turnout, the City a rgues that, contrary to common claims that expenditure limits suppress voter turno ut, Albuquerque voters are more likely to vote when expenditure limits are imp osed. Recognizing a positive relationship between voter turnout and the public p erception of corruption is not unprecedented; as earlier noted, the Supreme Court has articulated, “Leave the perception of impropriety unanswered, and the cynic al assumption that large donors call the tune could jeopardize the willingne ss of voters to take part in democratic governance.” Shrink Missouri , 528 U.S. at 390. 9 To establish the9 (...continued)

turn increases turnout. Albuquerque, however, sugg ests another reason for the relationship between turnout rates and expenditure limits—one which does not implicate the anti-corruption rationale. It proffe rs the somewhat counterintuitive claim that expenditure limits improve the public’s knowledge base, which in turn increases turnout. Implicitly, then, Albuquerque suggests that expendi ture limits are necessary not only to further an interest in de terring corruption, but also to further an interest in enhancing the electorate’s k nowledge.

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% vot ed.

11 Kruse implicitly rejected a similar argument that turnou t rates might be used to demonstrate the need to further an interestother than anti-corruption. 142 (continued...) - 20 - relationship in the instant case, the City submits that in Albuquerque elections from 1974 until 2001, an average of 40.3% of regist ered voters participated in all city elections for which the spending limits were i n place. 10 This figure is particularly impressive when compared to the 25 to 35% turnout rate for city elections nationally. This comparison figure, howe ver, 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 Al buquerque voter turnout as a percentage of the voting age population reveals a t urnout rate of only 28.3% between 1984 and 1989. While these figures may cas t doubt on the suggestion that spending limits inhibitturnout 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 co ncedes. 1111 (...continued)

F.3d at 916. Because we are unpersuaded that turno ut rates in fact correlate with expenditure limits, we have no occasion to reach th is 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 marginof sampling error of +/- 4.9%. Appellees’ argument that majoritarian views canno t dictate the bounds of First Amendment protections is misplaced. Such bar ometers of public sentiment are relevant in the campaign-finance context, to th e extent that they show the need to remedy a public perception of corruption. See , e.g. , Shrink Missouri , 528 U.S. at 394. - 21 - Telephone survey results 12 are submitted by Albuquerque in support of its argument that expenditure limits are necessary to c ombat the public perception of corruption. 13 This survey evidence does suggest that Albuquerqu e voters have more confidence in the integrity of local elections than federal elections, which have no spending limits. On the other hand, appell ees’ evidence also suggests that voters generally trust local government more t han state and federal government, regardless of spending limits. Albuquerque’s survey results demonstrate that voters think that the removal of s pending limits increases the potential for corruption. By contrast, appellees’ evidence suggests that the14 Neither the utilization of candidate issue questi onnaires 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 - amount of spending in an election does not affect v oter cynicism when other variables are controlled. Anecdotal evidence supports Albuquerque’s contentio n that special interests are perceived to exercise an undue influe nce in elections. For example, a New Mexico State Senator described the local infl uence of contributions from certain industries. Specifically, she cited the in fluence 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 obtai ning favorable revenue-sharing compacts with the state. An expert in the field of campaign-finance, Larry Makinson, testified to a correlation between legisl ative voting and campaigncontributions at the federal level, 14 citing as an example the Tauzin-Dingell bill. While recognizing the possibility that the governme nt may provide sufficient evidence of the need for candidate-expen diture caps to prevent corruption, we nonetheless conclude that the eviden ce 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- 23 -

undue influence by special interests and anecdotal evidence of corruption surrounding the 1972 election; indeed, the Buckleyevidence was of a far greater magnitude than that presented here and smelled of a ctual 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 influ ence of the dairy industry, illegal corporate contributions, and promise of dip lomatic posts in exchange for hefty campaign contributions). While undoubtedly t roubling, Albuquerque’s evidence does not approach the palpable sense of co rruption prompting the federal amendments in 1974. Because the Buckleyevidence was held insufficient to demonstrate that FECA’s candidate-expenditure li mits were necessary to serve the compelling state interest in deterring corrupti on, 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 exis tence of but one state interest sufficiently compelling to justify campaig n-finance regulation: the anticorruption rationale. See NC-PAC , 470 U.S. at 496–97. This initial recognition does not, of course, foreclose the possibility thatother compelling state interests may be identified in future cases, and in the case on review Albuquerque submits- 24 -

evidence of additional interests that it claims jus tify campaign expenditure caps. The City argues that the caps are necessary to serv e 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 spendi ng,” the city submits evidence documenting the fundraising burdens of can didates and officeholders. (Homans Appellant’s Br. at 52; Rue Appellant’s Br. at 54.)
In Kruse , the Sixth Circuit concluded that the need to pres erve officeholders’ time and ability to perform official duties is merely a restatement of the containing-skyrocketing-campaign-costs ratio nale rejected in Buckley : The need to spend a large amount of time fundraisin g is a direct outgrowth of the high cost of campaigns. However, because the government cannot constitutionally limit the cost o f 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 con taining 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 a nd the resulting limitation on- 25 -

the scope of federal campaigns.” 424 U.S. at 57 (e mphasis added). Albuquerque does not merely rely on the skyrocketing costs of c ampaigns in and of themselves; rather, the City cites an additional reason why inc reasingly expensive campaigns hurt the electoral system: the woes of poor challe ngers 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 ne cessaryto further this interest, Albuquerque submits excerpts from the boo k Speaking Freelycontaining interviews of retired congressional representatives that present a disturbing view into the fundraising pressures imposed on federal c andidates. Additionally, the City cites statements made by local officials descr ibing the time pressures imposed by fundraising in the absence of expenditur e limits. Dede Feldman, a New Mexico State Senator who also ran for Albuquerq ue 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 r aise more money in the Senate races, I spent a lot more time fund-rais ing and I tried to raise money from larger contributions . . . . Doing so m uch fund-raising was incredibly time-consuming and cut into my other campaigning and my regular job. The fund-raising had to be done durin g the day and I therefore had less time to do my regular job. In a ddition, I had less time to engage in direct contact with the voters by going door-to-door.- 26 -

(2 Rue R. Doc. 47 at 708–09.) In discussing the fu ndraising burden imposed during the recent election for which spending limit s 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 t hree hours every day making fundraising phone calls. I have never before had t o 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 offi cials’ time in the absence of spending limits is not significantly greater than w hen 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 spen t 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 c andidate-expenditure caps are necessary to further the state’s interest in protec ting 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 officeholde rs’ time amounts to a problem of constitutional proportions. The claim t hat fundraising prevents officeholders from engaging in alternative campaign tactics such as individual door-to-door contact is interesting. Albuquerque d oes not articulate any reason why there is a compelling state interest in channel ing campaign resources to favor- 27 -

individual voter contact rather than fundraising ta ctics. There is no indication in the record that, for example, the added burden of f undraising events and phone calls is more demanding on an officeholder’s time t han the burden of individual

voter contact. Nor does the record persuade us that individual vot er contact is a fundamentally superior campaign strategy because fu ndraising efforts compromise an officeholder’s ability to communicate with the p ublic. 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 co ntact; records of past campaign contributors do not suggest that the targe t for contribution solicitations differs significantly from the general Albuquerque public at large. On the contrary, candidate Guerrero states that time spenton fundraising cannot be distinguished from time spent on other campaign tac tics 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 vot er 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 evide nce, even when viewed in the15 Notably, Rue does not raise this argument. - 28 - light most favorable to the City, fails to demonstr ate that expenditure limits are necessary to further a compelling state interest in preserving officeholders’ time.
3 Finally, the City argues that campaign-spending lim its are necessary to further the state interest in promoting electoral c ompetition. 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 competitio n because large incumbent war chests tend to discourage serious cha llengers. (2 Rue R. Doc. 43 at 674.) Homans argues that this merely rehashes the equalization-of-candidate-resources rationale rejec ted in Buckley

. 15 See Buckley , 424 U.S. at 56 (rejecting the argument that equaliz ing candidates’ resources constitutes a compelling state interest). In Buckl ey , 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 competi tion constitutes an interest distinct from the equalization-of-candidate-resourc es rationale rejected in Buckley . Thus, nothing precludes this court from recogniz ing robust electoral- 29 -

competition as a state interest sufficiently compel ling to justify the expenditure limits.We do not resolve this question because there is in sufficient evidence in the record, even when viewed in the light most favorabl e to the City, to establish that spending limits actually enhance electoral competit ion. While the City’s statistical evidence does tend to undercut the doom sday prediction that spending limits discourage competition by insulating incumbe nts, 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 serv e this end.
B We conclude that Albuquerque’s evidence, even when viewed in the light most favorable to the City, fails to establish thatits 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 A lbuquerque, fails to sustain its burden, and the permanent injunction was appropriat ely granted. Given these holdings, we have no occasion to determine whether the expenditure limits are narrowly tailored. It is clear from the record, an d from the many other cases- 30 -

dealing with the problem, that there is an increasi ng drive, and need, for campaign finance reform. We do not intend by our h olding—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 meas ures to eradicate corruption: limiting the size of campaign contribu tions, improvement of electoral competition, enhancement of voter participation, an d 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 th ese 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 an d may condition acceptance of public funds on an agreement by the candidate to abide by specified expenditure limitations.”). As for the prescriptio n before us–a rigid limitation of campaign expenditures—Albuquerque has failed to sub mit sufficient evidence of a compelling state interest justifying such limits. For the foregoing reasons, we AFFIRM both decisions of the district court.1 I refer to Judge Lucero’s opinion as the “principa l 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. 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 wi th 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 incons istent with the following. 1 I write separately for two reasons: First, to explainwhat 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 pr omoting electoral competition – are fundamentally at odds with Buckleyand its progeny. The principal opinion’s careful analysis of the evi dence presented by Albuquerque leads it to the undoubtedly correct con clusion 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 th at while prevention of corruption has been recognized as a compelling interest justif ying campaign contribution limits, it was specifically rejected by Buckleyas a sufficient reason to limit direct campaign spending. Further, in my view the two “ne w” interests the City asserts- 2 -

in defense of the statute are neither new nor compe lling, nor are the spending caps tailored narrowly to serve them. Since all th ree of the asserted interests are thus constitutionally incapable of justifying spend ing restrictions as a matter of law, the court need not entertain the evidence subm itted by the City. Strict Scrutiny and Buckley v. Valeo It is true that strict scrutiny does not require au tomatic 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 individua ls spend too much time and money on the political process. Unless the City co nvinces 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 assoc iated with campaign spending has remained essentially untouched for nearly thirty years. See- 3 -

McConnell v. Fed. Election Comm’n , 124 S. Ct. 619, 655 (2003) (reemphasizing heightened level of scrutiny for restrictions on ca mpaign expenditures). Its central holding on expenditures has stood the test of time, both from judicial tinkering and legislative onslaught. That Albuquer que’s spending caps have evaded judicial review for more than 25 years is qu ite a feat. After careful deliberation, however, the City’s limits cannot sta nd under well-established precedent. I agree that the BuckleyCourt 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 campaign ing: In a republic where the people are sovereign, the a bility of the citizenry to make informed choices among candidates for office is essential, for the identities of those who are elec ted will inevitably shape the course that we follow as a nation. As th e 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 spend ing limits impinge upon this right: A restriction on the amount of money a person or gr oup can spend on political communication during a campaign necessari ly reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.- 4 -

This is because virtually every means of communicat ing ideas in today’s mass society requires the expenditure of mo ney. Id. at 19 (footnote omitted). It concluded with a bro ad holding that government does not have the right to pass judgmenton 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 wastef ul, excessive, or unwise. In the free society ordained by our Consti tution it is not the government but the people – individually as citizen s and candidates and collectively as associations and political comm ittees – who must retain control over the quantity and range of debat e 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 in terested 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 ot her 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 McConnellmay not have left us with many clear rules, but on e 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.- 5 -

Election Comm’n , 518 U.S. 604, 627 (1996) (Kennedy, J., concurring in part and dissenting in part). Thus, the Supreme Court has “ routinelystruck down limitations on independent expenditures by candidat es.” 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 m ore closely scrutinized). One can safely conclude that Buckleyforecloses a finding that spending limitations can be narrowly tailored to further gov ernmental justifications other than the anti-corruption interest sustained by the Supreme Court, no matter what evidence may be presented. In short, the City mustdo 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 stric t scrutiny does not establish a “per se” restriction on campaign spendi ng schemes, it does set a high standard. The Supreme Court likens “corruption” to the “subversion of the political process. Elected officials are influence d 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 cor ruption is the financial quid pro quo: dollars for political favors.” NCPAC , 470 U.S. at 497. Nevertheless,- 6 -

while the Supreme Court has routinely upheld contri bution limits under the corruption rationale, it has equally routinely stru ck 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 agen da do not pose a particular risk of corrupting the candidate making the expenditure. While more recent cases appear to have taken a slig htly broader view of the corruption rationale on the contribution limits sid e 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 who le has not yet shown any willingness to do so on the spending side. The Sup reme Court’s skeptical view of spending limitations in Buckley is based on a realistic appraisal of modern campaigning. Conveying a campaign message to a lar ge electorate can be costly, whether it is by direct mail, television, radio, orstaged events. See Buckley , 424 U.S. at 19-20. While technological innovations suc h as the internet may make it more economical to reach some segments of the elect orate, 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 reso urces to get his views out. See id. at 19, 57.2 This is to say nothing of the inevitable unintende d consequences. Some

commentators suggest that a possible consequence of spending restrictions will be to drive political spending further out of the cont rol 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 ha s increased influence of interest groups). - 7 - The quality of contemporary political communication s 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. Th e answer to concerns about political campaigning, however, does not rest in ar bitrary limits that reduce the amount of speech available to the public with no re duction 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 el ectorate.” Id . at 56. In other words, the candidate’s spending does nothi ng to corrupt the candidate. “If a [] candidate can raise $1 from each voter, wh at evil is exacerbated by allowing that candidate to use all that money for p olitical 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 lim itations 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 [spendin g limits] cannot be sustained- 8 -

simply by invoking the interest in maximizing the e ffectiveness 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-cor ruption rationale.” Kruse , 142 F.3d at 915. Thus, while Judge Lucero is correct i n finding that Albuquerque put forth insufficient evidence to show that its spendi ng 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 spendin g caps: they relieve elected officials of the heavy burden of raising th e money they need to spend to get reelected. The principal opinion disagrees wit h 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 spen ding restrictions, 424 U.S. at 57, by concluding that the BuckleyCourt was concerned only with “the woes of poor challengers,” not the distractions faced by of ficeholders. Supraat 24.- 9 -

It is true that the woes of underfunded challengers and the distractions of officeholders are not the same, and Buckleydoes 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 governm ent the power to determine that spending to promote one’s political views is w asteful, excessive, or unwise.” Buckley , 424 U.S. at 57. This is not limited to protectin g the interests of underfunded challengers. The Court is clearly and explicitly addressing whether the government may wrest from “the people – individ ually as citizens and candidates and collectively as associations and pol itical committees – control over the quantity and range of debate on public issues i n a political campaign” because it feels the time and money spent on campaigns coul d 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 ca mpaign spending,” see id. (emphasis added), a mere consequence of that growth– more time spent fundraising – certainly cannot provide such a basis. This is so even if Albuquerque’s city councilors believe candidates are spending was teful, excessive, or unwise amounts of money on their campaigns or if candidate s would prefer to have more time for other activities.- 10 -

Because Buckleyrejected this broad argument in favor of spending caps, it did not need to address each of the numerous subord inate arguments the parties in that case put forth. But it is worth noting that c ontrary to the City’s contention the Buckley Court did consider the exact argument made here, th at the “thirst for money has forced candidates to divert time and ener gy to fund-raising and away from other activities, such as addressing the subst antive 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 disg usting, demeaning, disenchanting, debilitating experience of a politic ian’s life. It’s stinky. It’s lousy. I just can’t tell you how much I hate it.”)

. Since Buckleyis directly controlling, I would again agree with the Sixth Circuit and reject this proposed justification with out 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 of ficeholder from doing her job, cannot serve as a basis for limiting campaign spend ing.”). The principal opinion nonetheless deals effectivelywith the City’s factual arguments on this point. That legislators might wi sh 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 li ke it. What is surprising is3 Not only are officeholders not required to run forreelection if they feel it

interferes with their ability to represent their co nstituents, but if political advertisements are as ineffectual at informing vote rs as the City here seems to claim, see Rue Appellant’s Br. at 15-17, then surely a ration al candidate would (continued...) - 11 - that many commentators, normally so exacting in the ir criticism of the selfdealing of the political branches, are willing to a ccept 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 o r legislation had been harmed by inattentive law makers, nor that elected officia ls’ work product would substantially improve because the officials could s pend more time on the job. It is doubtful that Albuquerque’s elected officials wo uld admit that they have been unable to provide quality governance despite the ri gors of campaigning. In any event, courts are not in a position to make such ju dgments 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 comp laints 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 expen se of3 (...continued)

not waste much time raising money to pay for them. - 12 - their other duties) seems to be a rather weak reaso n to override core First Amendment concerns. Freeing politicians from havin g 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 jus tification. By way of example, as the principal opinion notes, an approach whose cons titutionality has been sanctioned by Buckleyis an obvious solution. Buckley upheld voluntary spending limits on presidential campaigns where the candidat e 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 wo uld presumably take fundraising pressure off of elected officials and also allow challengers to forego the rigors of purely private fund-raising. Another app roach 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. Alb uquerque’s contribution limits are currently set at five percent of the spending c aps; while the record does not- 13 -

disclose the governmental rationale for this formul a, there is no reason the City could not revisit these limits in response to the r ealities 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 furtherthe 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 a gain, I agree with the conclusion of the principal opinion – that Albuquer que has failed to show that this interest is served by its spending limits. I do no t believe Buckley , however, allows us to entertain this interest as a proposed rationa le for spending limits. Albuquerque’s argument is that “campaign spending p oses a threat to [electoral] competition because large incumbent warchests tend to discourage4 This argument undermines Albuquerque’s claim that campaign spending is

not important for challengers hoping to inform or p ersuade voters because communication with likely voters is not expensive. See Rue Aplt. Br. at 16-17, 62-63. - 14 - serious challengers.” Supra at 27-28. Thus, the City contends that spending caps are needed to equalize candidate resources, which i n turn may improve electoral competition. This interest, like the others urged on us here, however, was considered and rejected by the BuckleyCourt. 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 spee ch of some elements of our society in order to enhance the rel ative voice of others is wholly foreign to the First Amendment, wh ich was designed to secure the widest possible dissemination of info rmation from diverse and antagonistic sources, and to assure unf ettered interchange of ideas for the bringing about of political and so cial changes desired by the people. 424 U.S. at 48-49 (quotations omitted). The Suprem e Court couched its language broadly in response to the argument that spending c aps are necessary to “encourage participation as candidates by many who in the past remained inactive on the ground that, inevitably, they could not comp ete against the established fund-raiser.” Buckley , Br. of Attorney General & FEC at 36. 4 The Buckley Court, however, rejected this claim: “[E]qualization of pe rmissible campaign expenditures might serve not to equalize the opport unities of all candidates but to- 15 -

handicap a candidate who lacked substantial name re cognition or exposure of his views before the start of the campaign.” 424 U.S. at 56-57. Thus, I believe Buckleydoes 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 sh ould make clear to trial courts and future potential litigants that time and money spent attempting to build a record justifying spending restrictions based on th is argument would be wasted. Even if encouraging competition were a compelling i nterest, many of the alternative proposals identified above would be les s restrictive means of serving this interest. For example, increasing the number of seats, limiting the number of terms individuals can serve, raising contribution l imits, and supplementing private donations with public funds all could help relative ly unknown candidates amass the resources necessary to challenge a sitting offi ceholder without impinging on the First Amendment. Conclusion The principal opinion correctly notes that Buckleyis the starting point for analysis in any campaign finance case. In this cas e, Buckleyis also the endpoint because Buckley itself precludes our recognition of the reformulate d interests urged on us by Albuquerque. Besides this imposing legal impediment, I see two- 16 -

possible consequences of the principal opinion’s an alysis: First, it would encourage additional attempts by governments to abr idge citizens’ rights to engage in (sometimes expensive) political speech th rough 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 relia nce 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 th e high cost of politics will undercut the central holding of Buckley that most s pending limitations are constitutionally foreclosed by the First Amendment.