Clean Elections Victory in Albuquerque
November, 2005
by Jay Mandle
Clean elections gained another foothold on October 4. In a ballot initiative the people of Albuquerque NM voted to amend the city's election code, and provide full funding for qualifying candidates for mayor and the city council who voluntarily agree not to accept private donations.
That victory was not just a triumph for democracy in one city. It also illustrated how the democracy movement can achieve its goals despite obstacles created by a judicial system disinterested in political equality.
The Albuquerque victory was decisive: the initiative won by 69% to 31%. Further, its content is very strong. Because the election code in Albuquerque is part of the city charter, the public funding of campaigns is mandated. Its level is determined by an explicit formula, not subject to annual legislative appropriations. What this means is that Albuquerque will be spared the fiasco that occurred in Massachusetts. There, a clean elections system was adopted by the electorate, only to be subverted by legislators who refused to fund it.
But as important as Albuquerque's democratic advance is in its own right, the experience there demonstrates more generally that the fight for clean elections is the way to go for those looking for a strategy to deepen democracy. To make that case, it is necessary to review some recent history.
What triggered the Albuquerque initiative was a 2001 Tenth Circuit Court of Appeals decision that struck down the city's long-standing limits on campaign spending. That ruling was an application of the Buckley v. Valeo Supreme Court decision that has governed campaign reform efforts since its adoption in 1976.
In Buckley the Supreme Court ruled that it was permissible to restrict campaign contributions in order to "limit the actuality and appearance of corruption resulting from large individual financial contributions." The Court maintained that such a restriction was acceptable since it represented "only a marginal restriction" upon free speech.
In contrast, the Court banned spending limits altogether. The legislation it was considering, the Federal Elections Campaign Act as amended in 1974 (FECA), had limited expenditures undertaken in support of candidates by individuals, the candidates themselves, electoral campaigns, and political parties. This provision was rejected by the Supreme Court on the grounds that it violated the free speech provisions of the First Amendment.
Buckley has been the subject of a great deal of hostile commentary from within the campaign finance reform community. With that decision, the Court seemed to turn its back on the problem of political inequality. There is no doubting that money is used for political speech and that wealthy individuals get to "talk" more, and therefore have more influence, than non-wealthy people. What has seemed most objectionable about the Buckley decision is that the Court explicitly privileged free speech over political equality. In so doing it endorsed the power of wealth in the electoral system. According to the majority decision, "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."
Yet the fact is that the Court was on solid ground in its argument concerning the free speech implications of FECA. As it pointed out, limiting individual spending in support of candidates to $1,000 per year as FECA did would mean, for example that it would be "a federal criminal offense for a person or association to place a single one-quarter page advertisement...in a major metropolitan newspaper" in support of a candidate. It is hard not to see restrictions on spending such as this as a dangerous infringement on the rights of citizens to free speech.
Since 1976 the Court has rejected repeated calls to reconsider its Buckley decision. But recently it agreed to do so concerning a 1997 Vermont law that restricts party donations to candidates, donations from out of state contributors and candidate expenditures. Indeed, as Vermont's Secretary of State, Deborah L. Markowitz put it, that law was passed with the "express legislative goal of giving the Supreme Court an opportunity to reevaluate the decision in Buckley v. Valeo."
On its face, the expenditure limits adopted in Vermont seem less restrictive of free speech than FECA had been. The FECA restriction on individual expenditures is absent. For that reason the Vermont law might receive more favorable consideration. But on the other hand, by the time the Court considers the Vermont law, two new justices will have been appointed by the Bush Administration. There is no way to know for certain, but the chances are that both will view Vermont's effort to reign in the rule of money with suspicion.
If Vermont's expenditure limits are rejected, the voluntary clean elections solution, and the examples set by Maine, Arizona, Portland Oregon and now Albuquerque - will become even more than ever the strategy of choice among reformers. Voluntary clean elections systems raise no free speech issues and have already been accepted by the Court. Similarly the voters have shown that they are receptive to the argument that public funding is desirable because it widens the choices available to them. The promoters of reform in Albuquerque explicitly pitched their message in these terms and it worked. They found that the electorate was interested in an electoral system that did not confine candidacies to people who themselves are wealthy or to those who have access to wealth.
Albuquerque, like Portland before it, demonstrates that there is a way both to deepen democracy and respect free speech. Clean elections is the way to escape the dilemma that seems to be imposed by the Buckley decision - that a choice has to be made between freedom and equality.
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