Daggett v. Webster: Amicus Brief filed with the U.S. Court of Appeals for the First Circuit

Daggett v. Webster: Amicus Brief filed with the U.S. Court of Appeals for the First Circuit

September 5, 1996
|
IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIRST CIRCUIT
 
____________________________________
 
Beverly C. Daggett, et al., 
Plaintiffs-Appellees
 
v.
 
Peter B. Webster, et al.,
Defendants-Appellants.
 
_______________________________
 
APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF MAINE 
_______________________________
 
BRIEF OF MAINE PEOPLE’S ALLIANCE AS AMICUS CURIAE IN SUPPORT OF APPELLEES, SEEKING AFFIRMANCE OF JUDGMENT BELOW
 
 
 
IDENTITY AND INTEREST OF AMICUS
 
The Maine People’s Alliance respectfully submits this brief as amicus curiae in support of the constitutionality of the campaign reforms established under the Maine Clean Election Act ("MCEA"), 21-A M.R.S.A. §§ 1121, et seq., adopted by Maine voters on November 5, 1996. All parties have consented to the filing of this brief, and the brief accordingly is filed pursuant to Rule 29(a) of the Federal Rules of Appellate Procedure.
 
The purpose of the Maine People’s Alliance ("MPA") is to unite Maine’s unrepresented citizens in their communities so that together they can identify common concerns and develop the skills and resources necessary to represent themselves effectively in all decision-making forums. Made up of more than 16,000 members, MPA works to empower low- and moderate-income leadership and members to develop the strategies to influence public policy and to present a challenge to social, political and economic injustice throughout the state. MPA campaigned across the State of Maine to support passage of the MCEA in 1996. Its advocacy touches a wide variety of issues that affect the vital interests of Maine citizens, particularly those of low or moderate income. Most recently, MPA’s activities have included defending Maine’s initiative and referendum process against legislative efforts to weaken it; working to increase Medicaid eligibility for children in low-income families and expand prescription drug coverage for seniors and disabled citizens; and strengthening and renewing Maine’s Toxic Use Reduction law. Beyond the success of its campaigns on specific issues, MPA seeks to empower Maine’s citizens, develop grassroots leaders, and organize people into an effective force to improve the lives of all people in Maine.
 
In furtherance of its organizational mission, MPA campaigned for the passage of the Act whose constitutionality is at issue in this litigation. The reforms achieved by the MCEA are vital to MPA and its membership because they are necessary to open up Maine’s political process to greater participation by those lacking wealth or access to wealth. This brief amicus curiae emphasizes the impact of Maine’s reforms on the rights of low- and moderate-income citizens and explains why a system of public financing system is needed to realize the ideal of a truly representative government.
 
This brief does not canvass all of the arguments supporting the constitutionality of the MCEA, because that would serve only to repeat matters treated more comprehensively in the briefs of the State of Maine and the Edmonds amici. This brief seeks instead to place before the Court one important perspective: that of poor and nonwealthy citizens whose interests are deeply affected by the critical reforms achieved by the MCEA. That perspective is vital in understanding the compelling interests supporting the public financing system established by the MCEA.
 
SUMMARY OF ARGUMENT
 
The adoption of public financing for Maine elections protects the rights of nonwealthy citizens and candidates to equal political participation by permitting candidates a meaningful opportunity to seek office even if they lack wealth or access to wealth. The average cost of a winning Senate race now exceeds $20,000 and the average cost of a winning House race exceeds $6,000.[fn 1] Even though these sums are not large in comparison to the
 
amounts spent in some states, the fact remains that most poor and low-income citizens in Maine cannot realistically contemplate a candidacy in the absence of public financing. And while some might assume that persons living in poverty, or subsisting on incomes that are consumed primarily by necessities such as food and shelter, will of course not expect to be viable candidates for office in today’s society, such assumptions should not be tolerated in a true democracy. Choosing candidates through a "wealth primary" that effectively excludes poor and non-wealthy citizens is no more acceptable today than was choosing candidates through the "white primary" used in the South earlier in this century. Maine’s public financing system is a fully constitutional method of restoring the democratic ideal of election contests fueled by competition between ideas rather than competition between pocketbooks.
 
For these reasons, as well as those canvassed in the briefs to be filed by the State of Maine and the Edmonds amici, the Maine People’s Alliance respectfully urges the Court to affirm the constitutionality of Maine’s campaign finance reforms.
 
ARGUMENT
 
MAINE’S COMPELLING INTEREST IN PROTECTING THE RIGHTS OF NONWEALTHY CITIZENS AND CANDIDATES TO EQUAL POLITICAL PARTICIPATION STRONGLY SUPPORTS THE CONSTITUTIONALITY OF MAINE’S PUBLIC FINANCING PROVISIONS.
 
The central purpose of the MCEA is to provide a system of public financing for Maine elections that will strengthen public confidence in government and promote electoral competition by reducing the need for candidates to rely upon private contributions to finance their campaigns. It does not infringe any protected First Amendment rights, but instead enhances political debate by providing public financing to candidates who can demonstrate public support but might otherwise lack the financial resources to communicate their message and mount a viable electoral campaign.
The record amply demonstrates the importance of these reforms in opening up Maine’s political process to full and equal political participation by all citizens. In 1984, all candidates for the Maine Senate together spent a total of $356,539 in seeking election. In 1998, Senate candidates spent over $1.38 million — an increase of 288 percent over the last 15 years.[fn 2] While information on House expenditures was available only going back to 1988, even in that time span total expenditures have nearly doubled, rising from $826,537 in 1988 to approximately $1.53 million in 1998 — an 84.6 percent increase.[fn 3]
 
The increasing amount of money spent on election campaigns does not correlate to an increase in the amount of candidate participation in Maine. To the contrary, fewer candidates ran for the Maine House in 1998 than in 1988 (323 in 1998 compared to 338 in 1988), while in the Senate, the number of candidates running was the same in 1998 as in 1984, when spending was only one-third of the 1998 level.[fn 4]
 
The number of candidates running, however, does not alone tell the full story. The authors of a recent study of state legislative races in 18 states, including Maine, found that that "an incumbent whose opponent does not exceed 25 percent of his or her spending level is ‘financially unopposed,’ and the election result is generally a foregone conclusion."[fn 5] In Maine, 35 percent of the putatively contested legislative races fit this definition of "financially unopposed," in that challengers had less than one-quarter of the funds that were available to the incumbents they were challenging. Id. at 105, Table 6-2 (examining data from 1992). The percentage of "financially unopposed" elections in Maine was the highest among the five states in the study whose legislatures were categorized as most similar to Maine in terms of their level of professionalism — that is, states having citizen legislatures rather than professional legislatures.[fn 6] Id.
 
Furthermore, the median expenditures of challengers in contested House races in Maine has been decreasing compared to those of incumbents; in 1992 the median expenditure of challengers in Maine was only 42.8 percent of that of incumbents, compared to 60.4 percent in 1986.[fn 7] Ninety-one percent of legislative incumbents in (nominally) contested elections were re-elected in Maine in 1992, with 71 percent of incumbents outspending their opponents.[fn 8] Large contributions flow much more readily to incumbents than to challengers in Maine, see Affidavit of Sen. Rochelle Pingree at ¶ 29, with the result that competition is stifled. Indeed, in 1998, not a single Senate seat was won by a challenger. Affidavit of Jay Hibbard at ¶ 36.
 
Thus, under the prior system where private resources were the only avenue available for funding a campaign, those who lacked such resources or ready access to them were effectively excluded from meaningful political participation. Without public financing, low- and moderate-income citizens are relegated to the role of outside observers, offered a choice between the candidates pre-selected in the "wealth primary" that too often determines which candidates will be viable competitors. By voting to provide public financing of elections in Maine, the citizens of Maine have properly declared that choosing candidates through a "wealth primary" that effectively excludes poor and non-wealthy citizens is no more acceptable today than was choosing candidates through the "white primary" used in the South earlier in this century.
 
The Supreme Court’s decision in Terry v. Adams, 345 U.S. 461 (1953), illustrates the compelling state interests at stake in opening up to all citizens the ability to participate in every "integral part . . . of the elective process that determines who shall rule and govern. . . ." 345 U.S. at 469. In Terry, the Supreme Court addressed a Fourteenth Amendment challenge by African-American voters to the pre-primary endorsement process of a wholly private entity, the Jaybird Association. The Association’s private nominating process was not governed by state or federal laws and did not use state or federal elective machinery or funds. The Supreme Court nevertheless ruled that the Association’s nominating process unconstitutionally infringed African Americans’ right to vote, because the private nominating process had come to determine, as a practical matter, which candidates could win the Democratic primary. Because the "Jaybird primary" had become "an integral part . . . of the elective process", the exclusion of a class of voters from that process violated their right to equal protection, even though the Jaybird primary was run by wholly private actors. Id. at 469.[fn 9]
 
Other Supreme Court decisions have recognized "the real and appreciable impact on the exercise of the franchise" that voters face under a system that excludes certain candidates on the basis of their lack of wealth. Bullock v. Carter, 405 U.S. 134, 144 (1972). In Bullock, the Court struck down candidate filing fees that Texas required primary candidates to pay to their political parties. "We would ignore reality," the Court stated, "were we not to find that this system falls with unequal weight on voters, as well as candidates, according to their economic status." 405 U.S. at 144. As the Court noted, "Many potential office seekers lacking both personal wealth and affluent backers are in every practical sense precluded from seeking the nomination of their chosen party, no matter how qualified they might be, and no matter how broad or enthusiastic their popular support." Id. at 143. See also Harper v. Virginia Board of Elections, 383 U.S. 663, 666 (1966) (striking down Virginia’s $1.50 poll tax and declaring that "[v]oter qualifications have no relation to wealth....").
 
Like the private nominating process in Terry, the campaign financing process has become an integral part of Maine’s election system. As in Bullock, the need for funds to run a viable election campaign means that a candidate without access to such funds is "in every practical sense precluded" from seeking nomination or election, no matter how qualified he or she might be. Bullock, 405 U.S. at 143. Maine’s public financing system, in which certified candidates agree to forgo private funds and in return receive public financing for their campaigns, will help to end the "wealth primary" and open up the candidate selection process to all voters. This goal of assuring that all citizens have access to the funds necessary to participate in the political process is a compelling state interest that strongly supports Maine’s adoption of a public financing system.
 
The interests at stake in opening up the political process to all voters are no less compelling simply because the amounts needed to run for office in Maine, with its citizen-legislature model, may not be as high as in more populous states with professional legislatures. In 1998, the average amount spent in winning a House seat in Maine was $6,464, while the average amount spent in winning a Senate seat was $23,582 in 1998.[fn 10] The typical Maine household, with an annual pre-tax income of $34,132, cannot contemplate supporting a viable candidacy at such levels without incurring a financial burden far disproportionate to its disposable income. Moreover, fully 10.6 percent of Maine citizens live in poverty and are obviously unable to spend such amounts on a candidacy in the absence of public financing.[fn 11] Any argument that the costs of running for office in Maine are not really an obstacle for a determined candidate who lacks private funds is reminiscent of the argument that a poll tax of $1.00 surely would not deter anyone who really wanted to exercise the right to vote. When Claude Pepper, later a congressman from Florida, encountered that argument during a 1942 debate on the constitutionality of the poll tax, he "ambled over to the microphone and remarked, ‘Well, a dollar ain’t much if you got one.’"[fn 12] For some, the several thousand dollars needed to fund a typical candidacy in Maine poses no obstacle; but the many for whom it does are also full citizens whose exclusion is incompatible with the ideals of a true democracy.
 
Plaintiff-appellants, by opposing both public financing and contribution limits, seem to suggest that those who lack the personal resources to compete against well-funded opponents should simply ask their supporters for large donations. This let-them-eat cake argument defies political reality. Of course, those who wish to reject public financing may do so, and the new contribution limits are still high enough to allow adequate fundraising from supporters able to contribute at the $250 level (or $500 for gubernatorial elections). See Corrado Report at 23-34. But for many Maine citizens, even a $250 contribution limit is more theoretical than real, since they cannot afford a contribution anywhere near that level — much less a $1,000 contribution. For these citizens and the candidates they would like to elect, public financing represents an alternative that opens up the political process by allowing participation that is not dependent on access to private funds.
 
Contrary to a common misconception, the goal of improving the access of nonwealthy citizens to the political process through public financing of elections is fully compatible with the Supreme Court’s decision in Buckley v. Valeo, 424 U.S. 1 (1976). Buckley upheld the constitutionality of the public financing provisions for presidential elections enacted by Congress as part of the Federal Election Campaign Act of 1974. See 424 U.S. at 90-96. To be sure, Buckley also contains a passage, sometimes quoted by opponents of public financing, which states that "the 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". 424 U.S. at 48-49. This passage, however, is wholly inapplicable to the analysis of a voluntary public financing system. Instead, the quoted passage describes the Court’s reasoning in striking down a different provision of the FECA: its mandatory limits on independent political expenditures. A voluntary public financing system such as Maine’s, by contrast, clearly does not "restrict the speech" of anyone, because candidates may opt out of the public financing plan and thus remain free to spend unlimited amounts if they so choose. The overall effect of a public financing plan, as the Supreme Court explained in Buckley, is "not to abridge, restrict or censor speech, but rather to use public money to facilitate and enlarge public discussion and participation in the electoral process, goals vital to a self-governing people. Thus [the public funding provision] furthers, not abridges, pertinent First Amendment values." Id. at 93. See also Vote Choice v. DiStefano, 4 F.3d 26, 39-40 (1st Cir. 1993) (upholding Rhode Island public financing scheme).
 
If, as Buckley states, public funding will "facilitate and enlarge public discussion and participation in the electoral process", that can be true only to the extent it assists candidates who otherwise would be unable to participate because of their lack of funds. Accordingly, it is fully compatible with Buckley and the First Amendment for Maine to take steps to protect the rights of nonwealthy citizens to participate equally in the political process, as Maine has done by adopting public financing.
 
Finally, appellants’ theory that the MCEA unconstitutionally limits independent expenditures is wide of the mark. The public financing scheme does not limit or punish independent expenditures, as appellants would have it, but merely takes them into account in determining how much funding a participating candidate will receive. Appellants’ myopic preoccupation with the matching funds for independent expenditures simply ignores the overall goals of the public financing scheme and the state’s vital interests in enhancing political debate and opening the political process to fuller participation by all Maine citizens.[fn 13] A public financing scheme cannot adequately serve these interests if it does not take into account the practical reality that campaign spending takes different forms, and that publicly financed candidates may need to match these different forms of spending in order to run competitive campaigns. As this Court has explained:
 
When, as now, the legislature has adopted a public funding alternative, the state possesses a valid interest in having candidates accept public financing because such programs "facilitate communication by candidates with the electorate," Buckley, 424 U.S. at 91, free candidates from the pressures of fundraising, see id., and relatedly, tend to combat corruption, see id.
 
Vote Choice v. DiStefano, 4 F.3d at 39. Providing matching funds for independent expenditures is simply one part of an overall statutory scheme that seeks to provide reasonable assurance that a participating candidate will not face severe disadvantages compared to a privately financed and supported candidate. As such, it is fully constitutional.
CONCLUSION
 
For the foregoing reasons, amicus Maine People’s Alliance respectfully requests that the Court uphold the constitutionality of the Maine Clean Election Act adopted by the voters of Maine on November 5, 1996, and affirm the judgment below.
 
Respectfully submitted,
 
/s/Brenda Wright 
John Bonifaz
National Voting Rights Institute 
294 Washington Street 
Suite 713 
Boston, MA 02108 
(617) 368-9100
 
Counsel for Amicus Curiae 
Maine People’s Alliance
 
FOOTNOTES
 
 
[1] Maine Commission on Governmental Ethics and Election Practices Biennial Report, 1997-1998, at 10, 15.
 
This brief references documents that were part of the Stipulated Record presented to the District Court (Docket Entry # 44, July 15, 1999, and #46, August 3, 1999), including: official biennial reports of the Maine Commission on Governmental Ethics and Election Practices; the Expert Report of Professor Anthony Corrado, May 30, 1999 ("Corrado Report"); and affidavits of witnesses. This brief also references a limited number of articles and secondary sources that are appropriate for the Court's consideration as "legislative facts." See Daggett v. Comm'n on Governmental Ethics and Election Practices, 172 F.3d 104, 112 (1st Cir. 1999); see generally Thornburg v. Gingles, 478 U.S. 30, 46 n.11 (1986) (citing political science articles explaining impact of election system on minority voters); Florida Bar Assoc. v. Went for It, Inc., 515 U.S. 618, 628 (1995) (approving litigants' use of polling data, studies and anecdotes in defending constitutionality of speech regulations).
 
[2] Compare Maine Commission on Governmental Ethics and Election Practices Biennial Report, 1994-1995, at 10 with Maine Commission on Governmental Ethics and Election Practices Biennial Report, 1997-1998, at 9.
 
[3] Compare Maine Commission on Governmental Ethics and Election Practices Biennial Report, 1994-1995, at 20 with Maine Commission on Governmental Ethics and Election Practices Biennial Report, 1997-1998, at 14.
 
[4] Compare Maine Commission on Governmental Ethics and Election Practices Biennial Report, 1994-1995, at 10, 15, with Maine Commission on Governmental Ethics and Election Practices Biennial Report, 1997-1998, at 9, 14.
 
[5] William E. Cassie and David A. Breaux, Expenditures and Election Results, at 107, in Joel A. Thompson and Gary F. Moncrief, eds., CAMPAIGN FINANCE IN STATE LEGISLATIVE ELECTIONS (1998) ("Cassie & Breaux").
 
[6] These states, in addition to Maine, were Idaho, Montana, Utah and Wyoming.
 
[7] Gary F. Moncrief, Candidate Spending in State Legislative Races, at 54, Table 3-5, in Joel A. Thompson and Gary F. Moncrief, eds., CAMPAIGN FINANCE IN STATE LEGISLATIVE ELECTIONS (1998).
 
[8] Cassie & Breaux, supra n. 6, at 103, Table 6-1 (figures from 1992). Again, in this study, Maine had the highest rate of incumbency retention of any of the states that were comparable to Maine in terms of the non-professional nature of the legislature.
 
[9] Cf. Morse v. Republican Party of Virginia, 517 U.S. 186, 207 (1996) (reiterating principle that exclusion from an integral part of the election process, "does not merely curtail [voters'] voting power, but abridges their right to vote itself").
 
[10] Maine Commission on Governmental Ethics and Election Practices Biennial Report, 1997-1998, at 10, 15.
 
[11] U.S. Census Bureau, Percent of People in Poverty, by State: 1996, 1997 and 1998, 3-year average 1996-1998, at http://www.census.gov/hhes/poverty/poverty98/pv98state.html (visited December 21, 1999).
 
[12] Todd S. Purdum, Trying a Constitutional Tack to Curb Campaign Spending, THE NEW YORK TIMES, October 21, 1994, at A13 (quoting Daniel Patrick Moynihan's account of the 1942 debate).
 
[13] Because the MCEA leaves untouched the right to make independent expenditures, appellants are left to complain of the infringement not of the right to speak, but of a different and non-existent right: the "right" to speak without being answered. This Court should reject appellants' bid to create such a right, which would hinder, not advance, First Amendment values.