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Washington-With what is expected to be the most expensive election cycle in history now drawing to a close, the city of Albuquerque, N.M., is asking the U.S. Supreme Court to revisit a nearly three-decade-old decision striking down limits on campaign spending. Albuquerque voters have lived with spending limits for municipal elections for 30 years. The limits were never challenged seriously until recently, and that challenge succeeded in the 10th U.S. Circuit Court of Appeals last spring. The appeals panel relied on the Supreme Court’s much-criticized watershed ruling, Buckley v. Valeo, 424 U.S. 1 (1976). In Buckley, the justices drew a distinction between contribution limits and spending limits, finding only the former constitutional. The 10th Circuit panel held that Buckley precluded the Albuquerque spending limits. The chief defender of the spending limits in the Albuquerque case and in a Vermont case that may soon reach the high court is the National Voting Rights Institute, a nonpartisan legal center based in Boston. The center’s lawyers have spent a decade laying the litigation groundwork for a high court showdown on Buckley. They contend that the Albuquerque and Vermont cases present the best opportunity in a generation for the justices to reconsider the constitutionality of campaign spending limits. City of Albuquerque v. Homans & Rue, No. 04-A104; Landell v. Sorrell, No. 00-9159 (2d Cir. Aug. 18). “The Supreme Court has had the opportunity to look at the whole issue of contribution limits in some of its recent cases and the issue of independent expenditures,” said the center’s Brenda Wright, counsel to Albuquerque. “But the court has not had a case looking at candidate campaign spending limits since Buckley.” And that’s because Buckley‘s message is clear, said her opponent, James Bopp Jr. of Bopp, Coleson & Bostrom in Terre Haute, Ind., counsel to Sander Rue in the Albuquerque case and the Vermont Republican Party in the Vermont challenge. “There’s no evidence the court is interested in or has sympathy for spending limits,” said Bopp. Both sides in this legal battle insist they are acting to preserve political speech-at the core of First Amendment protections. “At this point, we’ve had 28 years of experience with a system of limited contributions and unlimited spending,” said Wright. “The effects of it have become pretty clear: relentless pressure on officeholders to spend their time raising funds, increasing dominance of special interests that raise the funds that candidates need and the decline of competitiveness in elections.” The institute, supported by a coalition of “good government” groups and elected officials, argues that spending statistics bolster its arguments against Buckley. In 1976, the cost of the average House race was $73,316; in 2000, it was $636,000. The average cost of a Senate seat in 1976 was $595,449, and in 2000, $5.6 million. In the 2000 congressional elections, 94% of House candidates who outspent their opponents won; 85% of the Senate candidates outspending opponents won. But Bopp takes a hard line, saying, “I see no room for any spending limits. That’s telling people they are prohibited from speaking.” Bopp noted that Vermont’s governor had already reached his $300,000 spending limit by late August. “He would have to cease all campaigning, all speaking, anything that cost money for 2 1/2 months,” he said. In Buckley, the court said that spending limits impose “significantly more severe restrictions on protected freedoms” than contribution limits, and require closer scrutiny. The government offered three “compelling” interests to justify the federal spending cap: to deter corruption and the appearance, to equalize candidates’ resources and to contain skyrocketing costs of campaigns. But the high court held that “no governmental interest that has been suggested is sufficient to justify the restriction.” The court also predicted that contribution limits alone would deter corruption or its appearance. The “has been suggested” language keeps the door open to spending limits, Wright and her supporters believe. And the experience of the last 28 years, they claim, proves that the court’s prediction about contribution limits was wrong. In Albuquerque’s petition, Wright argues that the 10th Circuit erred in holding that Buckley forecloses the possibility of constitutional spending limits. She notes that the 2d Circuit last month said in the Vermont case that Buckley is not a per se bar to spending limits-thus creating a circuit conflict requiring high court review. She also argues that the 10th Circuit wrongly rejected the city’s compelling interests in deterring the reality and appearance of corruption of elected officials and in preserving officeholders and candidates from the demands of fund raising. Buckley, she contends, does not foreclose examination of new facts and legal interests supporting Albuquerque’s spending limits, but if the justices find it does, Buckley should be overruled. Election law scholar Roy Schotland of Georgetown University Law Center said Albuquerque has a good claim. “ Buckley was decided on an almost empty slate in terms of facts,” he said. “We only had federal disclosure from 1971. We had very little hard information.” Schotland predicts the court will grant review, but he calls spending limits “the silliest damn things” because they are so “porous” with endless ways around them. “It’s very hard to endorse the particular system we have now as moving us in the right direction,” said Peter Shane, director of the Center for Law, Policy and Social Science at Ohio State University Moritz College of Law. Some justices have voiced unhappiness with Buckley‘s distinction between spending and contribution limits, he said. “It may be a majority of justices agree the distinction doesn’t withstand analysis, but they disagree on what direction this conflict should be reconciled. The question is whether you can get five votes on one side.”

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