NVRI

Legal Library

In The

United States Court of Appeals For the Sixth Circuit

Nos. 97-3194, 97-3193, 97-3210

JOHN R. KRUSE; KRUSE FOR COUNCIL COMMITTEE; THOMAS E. BRINKMAN, JR.; MARK W. MILLER

Plaintiffs-Appellees,

v.

CITY OF CINCINNATI; ROXANNE QUALLS, Councilmember and Mayor of the City of Cincinnati; DWIGHT TILLERY, Councilmember; TYRONE YATES, Councilmember; TODD PORTUNE, Councilmember; BOBBIE STERNE, Councilmember; PHILIP M. HEIMLICH, Councilmember; MINETTE J. COOPER, Councilmember; THOMAS A. LUKEN, Councilmember; NICHOLAS J. VEHR, Councilmember; CHARLES WINBURN, Councilmember, JOHN F. SHIRLEY, City Manager of the City of Cincinnati.

Defendants-Appellants (97-3194)

CHARTER COMMITTEE OF GREATER CINCINNATI; HAMILTON COUNTY DEMOCRATIC PARTY; A. MATTHEW ROSEN,  

Defendants Intervenors-Appellants (97-3193)

AFRICAN-AMERICAN SMALL BUSINESS COMMITTEE PAC; BARBARA MILON

  Defendants Intervenors-Appellants (97-3210)

BRIEF FOR DEFENDANTS-APPELLANTS

FAY D. DUPUIS
Ohio State Bar No. 002078232
City Solicitor 

KARL P. KADON, III
Ohio State Bar No. 0009324
Deputy City Solicitor 
THE CITY OF CINCINNATI
Room 214, City Hall
801 Plum Street
Cincinnati, OH 45202

JOHN C. BONIFAZ
ABIGAIL TURNER
NATIONAL VOTING RIGHTS INSTITUTE
401 Commonwealth Avenue, 2nd Floor
Boston, Massachusetts 02215

Of Counsel:
KENNETH J. LEVIT
BRAD CARSON
CROWE AND DUNLEVY
500 Kennedy Building
Tulsa, Oklahoma 74103-3313

 Attorneys for Defendants-Appellants 


TABLE OF CONTENTS 

TABLE OF AUTHORITIES

STATEMENT IN SUPPORT OF ORAL ARGUMENT

STATEMENT OF JURISDICTION

STATEMENT OF ISSUES

STANDARD OF REVIEW

STATEMENT OF THE CASE

 Nature of the Case

 Course of proceedings and disposition in court below

 Statement of Facts

 Campaign Financing in City Council Elections

 Public Perception of Corruption in City Council Elections

 The Cost of Running a Viable City Council Campaign in Cincinnati

SUMMARY OF ARGUMENT

ARGUMENT

 I. The Cincinnati Ordinance is Consistent with The Supreme Court's Decision in Buckley v. Valeo.

 A. Buckley v. Valeo Did Not Hold That Expenditure Limits Are Per Se Unconstitutional.

 B. In Cases Subsequent to Buckley, The Supreme Court Has Reiterated That The Constitutionality Of Campaign Finance Regulation is Factually Contingent.

 C. The Undisputed Evidence Proves That The City Ordinance is A Closely Drawn Measure Designed To Serve The Sufficiently Important State Interests of Preventing Corruption and the Appearance of Corruption.

 1. The City's ordinance is justified by the interest in preventing the appearance of corruption in the election process.

 2. The City's ordinance is justified by the interest in preventing actual corruption in the election process.

 3. The City's ordinance is closely drawn to serve the City's sufficiently important state interests of preventing corruption and the appearance of corruption.

 II. Although The City's Ordinance is Consistent With Buckley v. Valeo, New Facts and Circumstances Distinguish This Case From That Decision.

 A. The City's ordinance is justified by the interest in equalizing the ability of all citizens to participate in elections and affect the choices available to them and it is closely drawn to meet that interest.

 B. The City's ordinance is justified by the interest in opening the electoral process to candidates less able to meet the prohibitive costs of election campaigns and is closely drawn to meet that interest.

 III. The City's Ordinance is Justified by New Sufficiently Important State Interests and Is Closely Drawn to Meet Those Interests.

 A. The City's ordinance is justified by the interest in protecting the Equal Protection rights of all Cincinnati voters and candidates.

 B. The City's ordinance is justified by the interest in protecting the First Amendment rights of all Cincinnati voters to hear all candidates' views and qualifications and to be heard in the political process.

 C. The City's ordinance is closely drawn to address the City's interests in protecting the Equal Protection and First Amendment rights of all voters and candidates.

 IV. The City's ordinance is a reasonable regulation on the manner of speech in the city council election process.

 V. In the Alternative, the District Court Erred in Finding That There Were No Material Facts in Dispute.

 CONCLUSION


STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION

The Plaintiffs-Appellees filed their complaint in March 1996 alleging that the City of Cincinnati's campaign spending limits ordinance violated their First and Fourteenth Amendment rights under the United States Constitution. The district court had subject matter jurisdiction over this action under 28 U.S.C. §1331.

 The Defendants-Appellants bring this appeal to the district court's final judgment entered on January 31, 1997, granting summary judgment to the appellees. District Court Docket (hereinafter "DCD") No. 43. The Appellants filed a timely notice of appeal on February 28, 1997. DCD No. 50. This court has appellate jurisdiction under 28 U.S.C. §1291.

STATEMENT OF ISSUES

1. Whether the City of Cincinnati's ordinance setting mandatory campaign expenditure limits in its City Council elections is constitutionally justified by the City's sufficiently important state interests and is closely drawn to meet those interests.

 2. Whether the City of Cincinnati's ordinance is a reasonable regulation on the manner of speech in the political process.

 3. Whether the district court erred in finding that there were no material facts in dispute and in granting summary judgment for the plaintiffs.

 STANDARD OF REVIEW

"Review of a district court's grant of summary judgment is de novo." Miyazawa v. City of Cincinnati, 45 F.3d 126, 127 (6th Cir. 1995), citing Lavado v. Keohane, 992 F.2d 601, 605 (6th Cir. 1993). A Court of Appeals reviewing a summary judgment must adhere to Fed. R. Civ. Pro. Rule 56(c), according to which the affidavits and other evidence are to be strongly construed in the light most favorable to the non-moving party, in whose favor all reasonable inferences are to be drawn. Morris v. Crete Carrier Corp., 105 F.3d 279, 280 (6th Cir. 1997), citing Matsushita Electric Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986).

STATEMENT OF THE CASE

Nature of the Case 

In July 1995, in response to the dramatic rise in spending for city council campaigns, the City Council of Cincinnati enacted limits on campaign expenditures in city council elections. The Council set the limits at the level of three times the annual salary for a city councilmember, a level of approximately $140,000. See Addendum, Ordinance 240-1995. In passing this ordinance, the City Council recognized that twenty-one years ago the U.S. Supreme Court had struck down campaign expenditure limits in congressional elections on First Amendment grounds. Buckley v. Valeo, 424 U.S. 1 (1976). Following twenty months of deliberation and debate, however, the City Council determined that new facts and circumstances on the influence of money in the City's elections provided new constitutional justifications for its campaign spending limits.

 The City of Cincinnati brings this appeal from a final order of the U.S. District Court for the Southern District of Ohio granting summary judgment for the plaintiffs and invalidating its campaign spending limits ordinance on First Amendment grounds. DCD No. 43. The issues in this case go to the very core of our democracy. The question here is whether the City of Cincinnati, to protect its democratic process and the constitutional rights of all its citizens, may reasonably regulate the campaign spending of city council candidates in its local elections.

Course of proceedings and disposition in court below 

John R. Kruse, an unsuccessful city council candidate, his political committee, and two voters and financial contributors to Cincinnati city council campaigns filed a complaint in the U.S. District Court for the Southern District of Ohio on March 11, 1996. DCD No. 1. Plaintiffs named as defendants the City of Cincinnati, the Mayor, each of the nine Councilmembers, and the City Manager. Plaintiffs sued the Mayor and Councilmembers in both their official and individual capacities. Plaintiffs sued the City Manager in his official capacity.

The plaintiffs alleged that the City's campaign spending limits ordinance violated their First and Fourteenth Amendment rights. They further alleged that the members of the Cincinnati City Council who had voted in favor of the ordinance had acted "with willful and malicious intent to deprive Plaintiffs and others similarly situated of their constitutional rights." DCD No. 1, Complaint, 12. The plaintiffs sought a court judgment declaring the ordinance unconstitutional, enjoining the defendants from enforcing the ordinance, ordering compensatory damages against all defendants, and ordering punitive damages against defendants City of Cincinnati and the Councilmembers who had supported the Ordinance.

On March 28, 1996, the plaintiffs filed an amended complaint, removing all claims against the defendants in their individual capacities and removing their request for punitive damages. DCD No. 3. The defendants moved to dismiss the plaintiffs' complaint for lack of standing on May 8, 1996. DCD No. 10.

Plaintiffs argued in their motion for summary judgment, filed on July 5, 1996, that the City's spending limits were per se unconstitutional under Buckley v. Valeo. DCD No. 16. The City responded with a Rule 56(f) affidavit requesting additional discovery time to develop a full factual record. DCD No. 18. The district court's August 2, 1996 scheduling order set July 1, 1997 as the discovery cut-off date. DCD No. 19.

 Intervenors Charter Committee of Greater Cincinnati, et. al. filed a Motion to Intervene on May 6, 1997, and a subsequent answer on October 22, 1996. DCD Nos. 6, 25. Intervenors African-American Small Business PAC, et. al. filed a Motion to Intervene and answer on June 24, 1996. DCD No. 14.

After plaintiffs filed a motion asking the court to resolve their summary judgment request, the district court held a conference call with counsel on October 15, 1996. DCD No. 23. In the conference, the City withdrew the motion to dismiss and indicated its willingness to stipulate to a preliminary injunction which would enjoin enforcement of the ordinance during the litigation so as to allow for the necessary judicial deliberation on the constitutional issues. The district court accepted the City's withdrawal of its motion to dismiss, denied the plaintiffs' motion for resolution of the summary judgment motion, and set a new discovery cut-off date of February 28, 1996. The City filed its answer to the plaintiffs' amended complaint on November 20, 1996. DCD No. 30.

At a November 18, 1996 scheduling conference, all parties jointly stipulated to a preliminary injunction which enjoined enforcement of the ordinance during the litigation. DCD No. 35. In urging a decision on summary judgment, the plaintiffs agreed to stipulate that any and all facts set forth by the City in defense of its ordinance are true for the purpose of deciding the motion for summary judgment. DCD No. 35, Transcript of November 18, 1996 conference, 48. The district court ordered the defendants and intervenors to file opposition to summary judgment by January 3, 1997. DCD No.31.

 During oral argument on January 31, 1997, the plaintiffs withdrew their claim for compensatory damages against all the defendants. At the close of the hearing, the district court issued an oral opinion and final judgment granting the plaintiffs' motion for summary judgment and declaring the City's ordinance unconstitutional under Buckley v. Valeo. DCD No. 47, 48.

On February 28, 1997, the defendants-appellants filed a timely notice of appeal. DCD No. 50.

 Statement of Facts 

In granting summary judgment, the district court accepted as true the City's proposed facts to which the plaintiffs stipulated. The plaintiffs argued that all facts the City might raise in defending Ordinance 240 are immaterial because campaign spending limits are per se unconstitutional. See DCD No. 35, 48-49. DCD No. 40, plaintiffs' mark up of defendants' statement of facts; DCD No. 39, plaintiffs' reply brief; DCD No. 47, Transcript of January 31, 1997 hearing.

Campaign Financing in Cincinnati City Council Elections 

In the past several election cycles, the City of Cincinnati has witnessed a dramatic rise in the cost of Cincinnati city council campaigns. Winning candidates for the at-large council seats in 1989 spent from a low of $60,000 to a high of $75,000. In 1995, a new record was set with winning candidate expenditures ranging from $33,000 to $362,000. The highest amount spent by a winning candidate thus increased by 482% from 1989 to 1995. DCD No. 38, Defendants' Memorandum in Opposition to Plaintiffs' Motion for Summary Judgment, Exhibit 1, Fact (hereinafter "Fact") No. 1; Exhibit 3, Affidavit of Larry Makinson (hereinafter "Makinson Affidavit").

In 1987, 25 city council candidates spent a total of $958,000. In 1995, 18 candidates spent a record total of $2.33 million.

Plaintiff John Kruse spent $214,692 in his 1995 campaign, finishing twelfth out of a field of 18 candidates. Kruse spent more money than five winning candidates for the nine at-large seats, including one candidate, Tyrone Yates, whom Kruse outspent by a factor of six to one. Fact No. 3.

The vast majority of money in city council campaigns comes in amounts of $100 or more. In 1991, 86.7% of the itemized contributions came in amounts of $100 or more. By 1995, that proportion had increased to 94.4%. Indeed, by 1995, more than half the contributions to city council candidates came in amounts of $1,000 or more. This does not include party contributions, or contributions by candidates to their own campaigns, which would make the proportions even higher. Fact No. 4.

 The number of campaign contributors giving $10,000 or more to city council campaigns has also steadily increased. In 1991, 11 contributors provided $10,000 or more to city council candidates. By 1995, that number had risen to 25 such contributors. Fact No. 5.

 John Kruse raised the bulk of his money for the 1995 campaign in amounts of $1,000 or more. Of the $192,086 Kruse raised (not including his own campaign contributions), $109,635 or 59.7% came from contributors who gave $1,000 or more. Fact No. 7.

 These large contributors are a tiny percent of the people in Cincinnati. Of the 1.8 million people living in the Cincinnati metropolitan area, only 5,949 people contributed $100 or more to any city council campaign from 1991 to 1995. Together, those individuals -- who account for just one-third-of-one-percent of the metropolitan area's population -- provided more than $3.9 million in campaign contributions to city council candidates. That amounted to 68% of all the money raised by those candidates from 1991 to 1995. Fact No. 8.

 Of those 5,949 people, 756 people in the Cincinnati metropolitan area have made campaign contributions to Cincinnati city council campaigns in amounts of $1,000 or more. Those 756 contributors (0.04 percent of the area population) provided more than $2.6 million (45%) of all money raised from 1991 to 1995. Contributions from political action committees, corporations, unions, and other organizations accounted for $858,000 (15%) of all money raised from 1991 to 1995. Contributions from individuals giving under $100 accounted for only $480,200 (8.3%) of all money raised during those years. Other monies included candidate contributions or loans to their own campaigns, totaling $876,000 from 1991 to 1995. Fact No. 8.

 The stipulated facts include the following findings based on the above data:

• The rise in the cost of city council races has caused a corresponding increase in the influence of wealthy donors in the City's elections. Wealthy donors increasingly dominate the campaign financing process. Small donors who contribute under $100 are becoming marginal players in city council elections. Fact No. 9.
• Large campaign contributors wield undue influence on the political system in Cincinnati. This means that ordinary voters in Cincinnati do not have an equal opportunity to influence the political process because their votes are outweighed by large campaign contributions. Fact Nos. 10, 11.
• The high costs of city council campaigns discourage qualified people from running for city council and deny the voters a full choice of candidates who are otherwise qualified. Fact No. 13.
• In Cincinnati's system of unlimited campaign spending, some candidates with access to large sums of money have been able to drown out the voices of ordinary voters and of candidates lacking access to wealth. Fact No. 14.
• Unlimited campaign spending in Cincinnati City Council elections undermines the fairness and integrity of the political system. Fact No. 12.

 Public Perception of Corruption in Cincinnati City Council Elections 

 The parties also stipulated to the following findings on the public's perception of corruption in the political process in Cincinnati:

 • An overwhelming majority of the people in Cincinnati believe that large campaign contributors wield undue influence on the political system. This large majority also believes that ordinary voters do not have equal opportunity to influence the political process because their votes are outweighed by large campaign contributions. Fact Nos. 30, 31. See also DCD No. 38, Exhibit 4, Affidavit of John Deardourff (hereinafter "Deardourff Affidavit").

 • The overwhelming majority of Cincinnati voters believe that the cost of election campaigns has become so high as to deny them a full choice of candidates qualified for office. Fact No. 33.

 • The public perception in Cincinnati is that the absence of campaign spending limits creates an inequitable electoral system in which 1) potential candidates are discouraged from running for public office, thereby narrowing the range of choices available to voters; 2) among candidates who do run, the wide disparity in available campaign funds makes it impossible for some campaign messages to be heard, thus depriving voters of information relevant to their voting decisions; and 3) the belief that money plays an unduly large role in elections tends to discourage people from voting and participating in the political process. Fact No. 34.

 • The overwhelming majority of Cincinnati residents believe that money is corrupting, and that money unduly influences the range of viable candidates, the power of different voices to be heard in the electoral system, the policies that are enacted, and their overall faith in the representatives of our democratic system. Fact No. 35.

 • The public perception in Cincinnati is that the fairness and integrity of the political process is being undermined by the influence of money in politics. Fact No. 32.

 • The people of Cincinnati believe that campaign spending limits are desirable, and that such limits would make the political process more responsive to voters and more equitable to all voters and candidates. Fact No. 36.

 • The public perceives that the problem of money in Cincinnati politics is greater today than it was twenty years ago. Fact No. 37.

 The Cost of Running a Viable City Council Campaign in Cincinnati 

 Finally, the stipulated findings address the cost of running a viable city council campaign:

 • Candidates for Cincinnati City Council can run a viable campaign spending less than $140,000. Of the nine winning Cincinnati city council candidates in the 1995 elections, four won by spending less than $140,000, the limit set in Ordinance 240-1995. This included City Councilmember Tyrone Yates who spent only $33,000 and challenger Minette J. Cooper who spent $97,000. Direct voter contact and participation in candidate forums served as important means in these candidates' campaigns for communicating substantive messages to the electorate. Fact Nos. 38, 39.

 • A television advertising purchase of 1,000 gross ratings points during a thirty-day period is more than sufficient to assure that all households in the community will be sufficiently exposed to the advertising message. The cost of purchasing 1,000 gross ratings points in the local Cincinnati television media is no more than $80,000. Fact No. 40. See also DCD No. 37, Defendant-Intervenors Exhibit, Affidavit of Jerry Galvin (hereinafter "Galvin affidavit").

• Media campaigns which purchase 2,000 or more gross ratings are excessive and have the effect of preempting the right of other, less well-funded candidates, from purchasing the most valuable advertising spots. Candidates in recent Cincinnati city council campaigns have made excessive television advertising purchases in such a way as to drown out the campaigns of less well-funded candidates. Fact No. 42.

 • With the ordinance's campaign spending limit set at approximately $140,000, Cincinnati city council candidates who raise funds to that level will be able to purchase enough television time to broadcast their messages and still have an ability to spend approximately half of their campaign money on other expenses. Fact No. 43.

 These facts define the basis of the City's decision to enact a campaign spending limits ordinance in July 1995. The Cincinnati Ordinance sets an overall spending limit in Cincinnati city council campaigns at three times the annual salary for a member of the city council, approximately $140,000. Ordinance 240-1995 at addendum. During the same time period, the City Council passed the campaign spending limits ordinance, it also passed a separate ordinance setting contribution limits in city council elections at $1,000 per individual and $5,000 per political action committee and requiring greater disclosure of campaign contributions. In January 1997, the City Council made minor amendments to its contribution limits ordinance. Ordinance 9-1997 at addendum. The City Council's decision to enact spending limits followed twenty months of public debate and deliberation, including the voters' passage of a charter amendment, enabling the City Council to act. Fact Nos. 15-29, History of Ordinance 240-1995.

 SUMMARY OF ARGUMENT 

The Cincinnati Ordinance is consistent with Buckley v. Valeo, 424 U.S. 1 (1976). The ordinance is justified by the "sufficiently important state interest[s]" of preventing corruption and the appearance of corruption in Cincinnati City Council elections and the ordinance employs means which are "closely drawn to avoid unnecessary abridgement of associational freedoms." Id. at 25 (citations omitted).

Further, new facts and circumstances distinguish this case from Buckley. Based on these new facts and circumstances, the Cincinnati Ordinance is also justified by the City's interests 1) in equalizing the ability of all citizens to participate in elections and affect the choices available to them and 2) in opening the electoral process to candidates less able to meet the prohibitive costs of election campaigns.

 Finally, the Cincinnati Ordinance is justified by the City's new sufficiently important state interests 1) in protecting the Equal Protection rights of all Cincinnati voters to participate in the electoral process on an equal and meaningful basis and 2) in protecting the First Amendment rights of all Cincinnati voters to be heard in the electoral process and to hear information from all candidates. These interests were not presented to the Court in Buckley and the Court, therefore, did not decide whether such interests justify limits on campaign expenditures.

 In the alternative, the Cincinnati Ordinance is justified as a reasonable regulation on the manner of speech in the election process, in accordance with the long line of court rulings upholding reasonable time, manner, and place regulations. See Kovacs v. Cooper, 336 U.S. 77 (1949). The campaign spending limits do not prevent candidates from speaking. Rather, they regulate how loudly candidates may speak so as to ensure that some candidates do not drown out the voices of others in the election process. The new facts and circumstances about the influence of money in Cincinnati City Council elections demonstrate that this case is distinguishable from the Buckley Court's ruling on this point.

In the alternative, the district court erred in finding that there were no genuine issues of material fact which necessitated a denial of plaintiffs' summary judgment motion. With each of the City's interests, there are material facts in dispute proving that this case is not ripe for summary judgment.

ARGUMENT 

I. The Cincinnati Ordinance Is Consistent With The Supreme Court's Decision In Buckley v. Valeo. 
 
A. Buckley v. Valeo Did Not Hold That Expenditure Limits Are Per Se Unconstitutional. 
 
Although the Appellees swear fealty to the Supreme Court's decision in Buckley v. Valeo, 424 U.S. 1 (1976), they come to this Court not to praise that precedent, but to bury it under the weight of a specious and strained interpretation. In their submissions to the trial court, the Appellees asserted that expenditure limits are per se unconstitutional -- legally infirm no matter the justification or factual predicates. "[T]here is no set of facts," the Appellees averred, "that could be presented and no correct interpretation of the law that could be argued by [the City of Cincinnati] to allow the subject Ordinance to survive the constitutional challenges presented." DCD No. 39, Plaintiffs' Reply To Defendants' Memorandum In Opposition To Plaintiffs' Motion For Summary Judgment (hereinafter "Plaintiffs' Reply") at 2. "[T]he law could not be more clear," continued the Appellees, "that expenditure limits are always unconstitutional." Id. With a bravado informed by this reading of Buckley, the Appellees stipulated to all of the many facts submitted by the Appellants in support of the Ordinance -- facts which demonstrated Appellants' considered legislative judgment and their real fears of political corruption. DCD No. 40.

The district court erred in finding that the Cincinnati expenditure limits are inherently unconstitutional. The district court's reliance on Buckley -- while not misplaced -- loads that precedent with authoritative freight that it cannot carry. Buckley provides only the analytical framework in which to evaluate the constitutionality of expenditure limits; it does not unequivocally mandate a result.

 Precedents such as Buckley are not like the bullet in Von Weber's Der Freischutz, which always hit its mark even when pointed in the opposite direction. Rather, as the Supreme Court long ago recognized,

[e]very judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but are governed and qualified by the particular facts of the case in which such expressions are to be found."

Cohens v. Virginia, 19 U.S. 82, 97-98 (1821). See also Cage v. Acton, 88 Eng. Rep. 1327, 1331 (1699) (stating that the reason of a resolution is more to be considered than the resolution itself); Fisher v. Prince, 97 Eng.Rep. 876 (1762) (stating that the reason and spirit of cases make law; not the letter of particular precedents).

The unique facts of Buckley counsel against any reflexive condemnation of the Cincinnati Ordinance. When the Federal Election Campaign Act (FECA) was passed in 1971 -- and amended in 1974 -- campaign expenditure limits were only a small part of a comprehensive reform package; contribution limits were the primary innovation of the statute. See generally Vincent Blasi, "Free Speech And The Widening Gyre Of Fund-Raising," 94 Columbia Law Review 1281, 1284-85 (1994). Commensurate with their minor role in FECA, campaign expenditure limits merited only 4_ pages in the 144-page opinion in Buckley. And the Supreme Court's terse, if fatal, analysis of expenditure caps in Buckley did not go outside the abbreviated factual record created by the lower courts. Given this circumscribed approach, it is extremely significant that the Supreme Court itself clearly left open the possibility that different facts might compel a different ruling on the constitutionality of expenditure limits.

 The starting point for the Supreme Court's decision in Buckley was its novel recognition that contribution and expenditure limitations operate in an area of the most fundamental First Amendment activities. 424 U.S. at 14. While still a controversial notion among academic commentators, this basic understanding of campaign finance regulation has been reaffirmed by the Supreme Court in recent cases. See, e.g., Federal Election Comm n v. National Conservative Political Action Committee, 470 U.S. 480, 493 (1985); but see J. Skelly Wright, "Politics And The Constitution: Is Money Speech?," 85 Yale Law Journal 1001, 1011 (1976). In Buckley, the Supreme Court also noted that expenditure limits are a greater inhibition on protected liberties than are contribution limits. 424 U.S. at 23. But the Supreme Court held that this fact did not necessarily render expenditure limits unconstitutional, for

"neither the right to associate nor the right to participate in political activities is absolute [and] . . . even a significant interference with protected rights of political association may be sustained if the State demonstrates a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgment of associational freedoms." Buckley, 424 U.S. at 25 (citations omitted) (emphasis added).

This holding, too, has been reaffirmed in the Supreme Court's recent cases on campaign finance regulation. See, e.g., Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 655 (1990).

 The equation of campaign expenditures and more established First Amendment freedoms (with the logical consequence that any regulation of campaign expenditures has to be closely drawn to serve a sufficiently important state interest) is the real legacy of Buckley. The remainder of Buckley -- the actual judgment on the constitutionality of FECA -- was just an application of this legal principle. And in making this application, the Supreme Court in Buckley relied solely on the factual record before it. This factual record was notable for two reasons. First, the record in Buckley contained only three reasons in support of an expenditure limit:

(1) expenditure limits, it was argued, were necessary to alleviate the corrupting influence of large contributions; (2) expenditure limits were claimed to be necessary to equalize the financial resources of candidates; and, (3) expenditure limits were put forth as a cap on the skyrocketing cost of elections. 424 U.S. at 55-56. Second, the record contained no evidence suggesting that contribution limits were ineffective in controlling corruption absent expenditure limits. Id. at 56.

 In evaluating the three justifications offered in support of FECA, the Supreme Court first held as a matter of law that the exploding costs of federal elections were not a sufficiently important state interest to limit campaign expenditures. Id. at 57. Similarly, the Supreme Court found unpersuasive as a matter of law and fact the assertion that expenditure limits promoted a governmental interest in equalizing the financial resources of candidates. Id. The financial resources of a candidate, the Supreme Court reasoned, were the healthy reflection of the size and intensity of that candidate's support. Id. But, unlike these two other bases for expenditure limits, the assertion that spending caps were a necessary concomitant to contribution limits was rejected by the Supreme Court only as a matter of fact. Id. While the lower appellate court had found that "expenditure restrictions are necessary to reduce the incentive to circumvent direct contribution limits," the Supreme Court found that there was "no indication [in the record] that the substantial criminal penalties for violating the contribution ceilings combined with the political repercussion of such violations will be insufficient to police the contribution provisions." Id. at 55-56. The Supreme Court's invalidation of FECA's expenditure limits was factually contingent, not a categorical prohibition.

Identifying the factually contingent nature of Buckley immediately leads to several questions. What if the record in Buckley had established that the "substantial criminal penalties" and the "political repercussion" were not sufficient to "police the contribution provisions"? Clearly, the language of the per curiam opinion in Buckley suggests that expenditure limits might be justified in such an instance. And what if a legislature, in enacting spending caps, were to be motivated by interests other than the three identified in Buckley? Nothing in Buckley indicates that these interests would be a priori invalid.

These questions highlight the error of the district court's assertion that expenditure limits are per se unconstitutional. Far from being inherently infirm, expenditure limits are -- like all restrictions on First Amendment freedoms -- subject to a balancing test that weighs the intrusions on protected liberties against the interests of the State in regulating campaigns. With the unique facts of each case, this balancing test will lead to a unique result, sometimes favoring regulation and other times forbidding it. But Buckley always insists upon this balancing of interests, and the trial court, in choosing to "mouth the correct legal rules with ironic solemnity while avoiding those rules' logical consequences," erred in accepting Appellees' suggestion to the contrary. TXO Prod. Corp. v. Alliance Resource Corp., 509 U.S. 443, 499 (1993) (O'Connor, J., dissenting).

 B. In Cases Subsequent To Buckley, The Supreme Court Has Reiterated That The Constitutionality Of Campaign Finance Regulation Is Factually Contingent. 

Since Buckley, the Supreme Court has addressed campaign finance regulation on several occasions. Carefully balancing the proposed interests of the government with the intrusions on First Amendment liberties, the Supreme Court has upheld campaign finance regulation in several of these cases, while striking down regulation in others. Compare California Medical Ass'n v. Federal Election Comm'n, 453 U.S. 182 (1981) (upholding limitation on contributions to PACs) and Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990) (upholding limitation on corporate contributions to PACs) with First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978) (striking down limitation on contributions to ballot initiative campaigns); Citizens Against Rent Control v. Berkeley, 454 U.S. 290 (1981) (striking down limitation on contributions to PACs); Federal Election Comm'n v. National Conservative Political Action Committee, 470 U.S. 480 (1985) (striking down restrictions on independent expenditures of PACs); Meyer v. Grant, 486 U.S. 414 (1988) (striking down prohibition on paid circulators for initiative petition); and Colorado Federal Campaign Committee v. Federal Election Comm'n, 116 S.Ct. 2309 (1996) (striking down limitation on independent expenditures by political parties). Each of these decisions made clear the factually-intensive nature of the constitutional determination.

 In California Medical Ass'n v. Federal Election Comm'n, 453 U.S. 182 (1981), the Supreme Court, in upholding FECA's limitations on individual contributions to political action committees, stated that the factual record supported the conclusion that the challenged limitations were necessary "to prevent circumvention of the very limitations on contributions upheld in Buckley." Id. at 197-98. On the other hand, the Supreme Court closely parsed the record in Citizens Against Rent Control v. Berkeley, 454 U.S. 290, 302 (1981), and found that there was no finding that the controverted corporate advocacy threatened imminently to undermine the confidence of the citizenry in government. And, after scrutinizing the factual record, the Supreme Court reached a similar conclusion in First National Bank of Boston v. Bellotti, 435 U.S. 765, 788-89 (1978), holding that the State failed to show "by record or legislative finding" that the regulated activity undermined democratic processes.

Likewise emphasizing the need for evidence of a sufficiently important state interest, the Supreme Court held in Federal Election Comm'n v. National Conservative Political Action Committee, 470 U.S. 480, 497 (1985), that the government had not created a record sufficient to justify the campaign finance regulation. Underscoring the majority's reliance on the particular facts of the case, Justice White significantly noted in dissent that:

[T]he actual rationale of the Buckley Court was that independent advocacy . . . does not presently appear to pose dangers of real or apparent corruption comparable to those identified with large campaign contributions. The possibility was thus left open, and remains open, that unforeseen developments in the financing of campaigns might make the need for restrictions on independent expenditures more compelling. The exponential growth in PAC expenditures, accompanied by an equivalent growth in public and congressional concern, suggests that independent expenditures may well prove to be more serious threats than they appeared in 1976 . . . . The time may come when the government interests in restricting such expenditures will be sufficiently compelling to satisfy not only Congress but a majority of this Court as well.
 
Id. at 510 n.7 (emphasis in original). Like Buckley, these cases demonstrate that no form of campaign finance regulation is absolutely verboten, and a constitutional challenge to expenditure limits hinges on a careful reading of the salient facts.

 C. The Undisputed Evidence Proves That The Cincinnati Ordinance Is A Closely Drawn Measure Designed To Serve The Sufficiently Important State Interests of Preventing Corruption and the Appearance of Corruption. 

1. The Cincinnati Ordinance is justified by the interest in preventing the appearance of corruption in the election process. 

The City of Cincinnati's interest in preventing the appearance of corruption in the election process is a sufficiently important state interest which justifies its campaign spending limits ordinance. As the uncontested facts demonstrate, the City has witnessed a dramatic increase in campaign spending in its city council elections, with the highest candidate expenditure rising from $75,000 in 1989, to $362,000 in 1995, an increase of more than 480 percent. See Fact Nos. 1-14; Makinson Affidavit. The facts further demonstrate that this unlimited campaign spending has fueled an overwhelming public perception in Cincinnati that such money is corrupting the City's election and legislative processes, eroding the public's trust in the city government and in the democratic system. See Fact Nos. 30-37; Deardourff Affidavit. This public perception in Cincinnati of corruption in the local political process has reached crisis proportions. The district court erred in finding that the City's interest in preventing this public perception of corruption -- an interest grounded in the factual record -- did not justify its campaign spending limits ordinance.

 In holding that the congressional limits on campaign contributions were justified by Congress' interest in preventing corruption and the appearance of corruption, the Buckley Court specifically cited the dangers associated with public perception of corruption. 424 U.S. at 27. It held that "Congress could legitimately conclude that the avoidance of the appearance of improper influence 'is also critical...if confidence in the system of representative Government is not to be eroded to a disastrous extent.'" Id., citing CSC v. Letter Carriers, 413 U.S. 548, 565 (1973). As emphasized earlier, the Buckley Court found that Congress' interest in preventing the appearance of corruption was sufficiently served by the contribution limits and that expenditure limits were not necessary to address that interest. Id. at 55.

Two years after it issued the Buckley ruling, however, the Court indicated that it will review issues of campaign finance regulation upon a showing of new facts. In First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978), the Court addressed the constitutionality of a Massachusetts statute prohibiting corporations from making contributions or expenditures to influence the outcome of ballot initiatives which did not materially affect the property, business, or assets of the corporation. Though the Court struck down the statute on First Amendment grounds, it left the door open for another case which could demonstrate corporate influence over the initiative process. The Court stated:

According to appellee, corporations are wealthy and powerful and their views may drown out other points of view. If appellee's arguments were supported by record or legislative findings that corporate advocacy threatened imminently to undermine democratic processes, thereby denigrating rather than serving First Amendment interests, these arguments would merit our consideration. But there has been no showing that the relative voice of corporations has been overwhelming or even significant in influencing referenda in Massachusetts or that there has been any threat to the confidence of the citizenry in government. Id. at 789-90 (citation omitted).

More recently, the Court has further recognized the harmful effects of concentrated wealth on the political process. In Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), the Court upheld a Michigan criminal statute preventing corporations from spending general funds as independent expenditures in state elections. The Court found that Michigan had a compelling interest in combatting a "different type of corruption in the political arena: the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public's support for the corporation's political ideas." Id. at 660. As one constitutional scholar writes, the Austin Court "squarely acknowledged -- for the first time in constitutional discourse -- that inequalities of private economic power tend to reproduce themselves in the political sphere and displace legitimate democratic governance." Stephen Loffredo, "Poverty, Democracy and Constitutional Law," 141 Univ. Pa. L. Rev. 1277, 1285 (1993).

 The facts in this case demonstrate that the Cincinnati public's perception of corruption at the local and federal level has significantly worsened in the twenty-one years since the Court issued its Buckley ruling -- this despite the existence of contribution limits in federal elections during that time period. Seventy-six percent of Cincinnati residents believe the problem of money in politics is greater today than it was at the time of the Buckley decision. Fact No. 37. The Buckley Court did not have any concrete evidence before it on how unlimited campaign spending fuels the public perception of corruption in the political process. That evidence is present in this case.

The district court's finding that "the appearance of corruption can be eliminated by the contribution limitations" is simply wrong. DCD No. 47, Transcript at 61. The undisputed record here reveals that the dramatic increase in campaign spending in Cincinnati city council elections constitutes a "threat to the confidence of the citizenry in government." Bellotti, 435 U.S. at 789-90. Contribution limits, alone, have not sufficiently addressed the state interest of preventing the appearance of corruption, as the Buckley Court thought they would twenty-one years ago. The new facts presented in this case should now be applied to the reasoning set forth in Buckley and Bellotti. The Cincinnati Ordinance limiting campaign expenditures in city council elections is now necessary "'if confidence in the system of representative Government is not to be eroded to a disastrous extent.'" Buckley, 424 U.S. at 27 (citation omitted).

2. The City's ordinance is justified by the interest in preventing actual corruption in the election process. 

The City's interest in preventing actual corruption in the election process is a sufficiently important state interest which justifies its campaign spending limits ordinance. The facts of this case demonstrate that "the rise in the overall cost of city council races has caused a corresponding rise in the influence of wealthy donors in the City's elections, with such donors increasingly dominating the campaign financing process." See Fact No. 9; Makinson Affidavit. With this dominance of wealthy donors comes the danger of actual corruption as large campaign contributors gain special access to city councilmembers and increasingly expect something in return for their money.

 Contribution limits, alone will not address this danger of actual corruption. As has been demonstrated by the federal election experience over the past twenty-one years, large campaign donors, in a system of unlimited campaign spending, will often bundle their contributions, leading to undue influence on the electoral and legislative processes. Further, the fear that an opponent will spend vast sums of money in pursuit of a campaign victory has fueled a never-ending set of schemes to evade federal limits. During the most recent federal election, limits on contributions were rendered meaningless by the pressure of increasing levels of spending. The result was a campaign finance system characterized by monied interest contributions in the millions of dollars. Ruth Marcus & Charles Babcock, "The System Cracks under Weight of Cash; Candidates, Parties and Outside Interests Dropped a Record $2.7 Billion," The Washington Post, February 9, 1997, at A1. In a framework of unlimited campaign spending, the reliance on large donors becomes all the more desperate and the danger of actual corruption all the more apparent.

 The factual record in this case reveals an extreme concentration of influence among those able to contribute large sums of money to Cincinnati city council campaigns. Of the 1.8 million people living in the Cincinnati metropolitan area, 5,949 people or one-third of one percent of the area's population made contributions of $100 or more, accounting for more than $3.9 million (68%) of all money raised from 1991 to 1995 in Cincinnati city council elections. Of those 5,949 people making contributions of $100 or more, 756 people (0.04% of the Cincinnati metropolitan area's population) contributed in amounts of $1,000 or more, accounting for $2.6 million (45%) of all money raised from 1991 to 1995. See Fact No. 8; Makinson Affidavit. As one former city council candidate states:

I believe that most people who run for political office in Cincinnati are decent people. But, I have been around this process for a long time. With the rising costs of city council elections, candidates and elected officials are boxed in by financial interests. They know that if they want the support of such interests, they better pay attention to their issues.

DCD No. 38, Exhibit 10, Affidavit of Donald Driehaus (hereinafter "Driehaus Affidavit").

 At issue here is the basic integrity of the City's election process. The Buckley Court recognized that corruption and the appearance of corruption constituted a serious threat to that integrity. 424 U.S. at 26-27. The undisputed evidence presented in this case demonstrate that the escalating costs of Cincinnati city council elections fuels the danger of actual corruption. The Cincinnati Ordinance is designed to protect the integrity of the City's election process. The district court erred in finding that the City's interest in preventing actual corruption did not justify its campaign spending limits ordinance.

 3. The Cincinnati Ordinance Is Closely Drawn To Serve the City's Sufficiently Important State Interests of Preventing Corruption and the Appearance of Corruption. 

The determination of whether a law is closely drawn is an empirical judgment. Burson v. Freeman, 504 U.S. 191, 220 (1992). And, in making this determination, the judiciary should defer to well-informed legislative judgment; cities should "be allowed a reasonable opportunity to experiment with solutions to admittedly serious problems." Renton v. Playtime Theatres, Inc., 475 U.S. 41, 52 (1986).

 The Cincinnati Ordinance is closely drawn to address its sufficiently important state interests of preventing corruption and the appearance of corruption. The ordinance sets the overall campaign spending limit in Cincinnati city council elections at the reasonable level of $140,000. The facts of this case demonstrate that this level of expenditures for a city council campaign is more than sufficient for candidates to broadcast their messages and be heard while ensuring that the City's interests in protecting the integrity of the democratic process will be addressed.

 Television advertising is a key means of name recognition for Cincinnati city council candidates and accounts for the largest amount of a candidate's campaign expenditures. See Galvin Affidavit. Yet, Cincinnati city council candidates need not purchase unlimited amounts of media time in order to get name recognition in a sufficient manner. As the Defendant-Intervenors' expert Jerry Galvin describes, based on his 30 years of experience in the advertising business in Greater Cincinnati:

[A]n advertising purchase of 1,000 gross ratings points during a thirty-day period is more than sufficient to assure that all households in the community will be sufficiently exposed to the advertising message. In fact, a media buy of 1,000 gross ratings points will assure that many local viewers will see an advertisement several times, not just once. Based upon my familiarity with local media advertising pricing, it is my opinion that a local candidate for Cincinnati City Council could purchase 1,000 gross ratings points for no more than approximately $70,000 to $80,000.

Fact Nos. 40-41; Galvin Affidavit, 4.

 In recent years, some candidates, including plaintiff John Kruse, have purchased "unnecessarily excessive quantities of television advertisements." Galvin Affidavit, 4; Fact No. 42. These excessive purchases "have the effect of buying up more advertising spots than necessary to communicate with voters [and]...of preempting the right of other, less well-funded candidates, to purchase the most valuable advertising spots." Id. With the campaign spending limit set at approximately $140,000, city council candidates who raise funds to that level will be able to purchase enough television time to broadcast their messages and still have an ability to spend approximately half of their campaign money on other expenses. Fact No. 43.

 Further, the experience of the 1995 city council election in Cincinnati demonstrates that candidates can not only broadcast their messages in a sufficient manner but can also win on a budget of less than $140,000. Of the nine winning candidates in 1995, four spent less than $140,000, including City Councilmember Tyrone Yates who spent only $33,000. See Fact No. 39; see also DCD No. 38, Exhibits 6-8, Portune Affidavit; Sterne Affidavit; Yates Affidavit. This list includes challenger candidate Minette J. Cooper who spent far below the $140,000 level to win election in 1995, and who states in her affidavit that "an effective, winning campaign can be financed for well under" the ordinance's limit. See DCD No. 38, Exhibit 9, Cooper Affidavit, 3. Candidates winning on these reasonable campaign budgets testify to the importance of direct voter contact in Cincinnati elections and participation in candidate forums for communicating substantive messages to the electorate. See supra DCD No. 38, Cooper Affidavit; Sterne Affidavit; Yates Affidavit. See also DCD No. 38, Exhibit 14, Qualls Affidavit (describing how a system of unlimited spending can force candidates to spend even higher amounts and stating that the ordinance sets "a very reasonable limit.")

Finally, the Cincinnati Ordinance was based on a specific finding that expenditure limits would be necessary to enforce the City's contribution limits -- contribution limits which were explicitly accepted in Buckley and which are not under challenge in this case. DCD No. 38, Exhibit 7, Affidavit of Bobbie L. Sterne, 4-5. As recent events in this nation have shown, contribution limits, alone, will not protect the integrity of the electoral process. The Cincinnati City Council was right to observe that limits on individual contributions are easily evaded through the bundling of donations. The Cincinnati City Council was on equally solid ground in finding that unlimited campaign spending would only continue to fuel the the public perception of corruption and the appearance of corruption. In so doing, the Cincinnati City Council was not rejecting Buckley but relying on a record unavailable to the Supreme Court in that decision. The Cincinnati Ordinance is, in fact, in the grandest tradition of American law, part of the inexorable "development that has gone on for nearly a thousand years, like the development of a plant, each generation taking the inevitable next step [with a] mind, like matter, simply obeying a law of spontaneous growth." Learned Hand, "Sources of Tolerance," 79 University of Pennsylvania Law Review 1, 13 (1930).

II. Although The Cincinnati Ordinance Is Consistent With Buckley v. Valeo, New Facts and Circumstances Distinguish This Case from that Decision. 

Legal doctrines, as first enunciated, often prove to be inadequate under the impact of ensuing experience in their practical application. Perkins v. Endicott Johnson Corp., 128 F.2d 208, 217 (2nd Cir. 1942). The experience of unlimited campaign spending in Cincinnati city council elections is documented in the undisputed record of this case. That record is distinguishable from the record before the Supreme Court in Buckley. Based on the new facts and circumstances of this case, the Cincinnati Ordinance is further justified by other sufficiently important state interests.

 A. The City's ordinance is justified by the interest in equalizing the ability of all citizens to participate in elections and affect the choices available to them and it is closely drawn to meet that interest. 

The City's interest in equalizing the ability of all citizens to participate in elections and affect the choices available to them is a sufficiently important state interest which justifies its campaign spending limits ordinance. Our democracy is premised on the promise of political equality, of all citizens having an equal say in the election of their government. Yet, that promise is undermined in Cincinnati by the rising costs of city council elections and the corresponding influence of large campaign contributors. The district court erred in finding that this state interest did not justify the Cincinnati Ordinance.

 The facts in this case demonstrate that Cincinnati citizens do not have an equal say in the election of their city councilmembers. Most citizens do not have large sums of money to contribute to city council campaigns. They cannot afford to be heard at a level equal to the large campaign contributor. Their influence in the election process, in determining which candidates will be viable and which candidates will be heard, is dwarfed by the undue influence of wealthy donors. Plaintiffs cannot deny that the 756 individuals who provided more than $2.6 million to city council campaigns from 1991 to 1995 exercised enormously greater influence on the city council election process than did the vast majority of Cincinnati citizens. This state of political inequality endangers democracy in the City of Cincinnati. See Fact Nos. 1-14, 30-37; Makinson Affidavit.

 The Buckley Court held that "the concept that the 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. The new facts and circumstances presented here distinguish this case from that holding. In Buckley, the Court had virtually no factual record on which to base its conclusions. Among the few facts the Buckley Court did rely upon, however, was a statistical finding agreed to by the parties that only 5.1 percent of the $73 million raised by candidates for Congress in 1974 came in amounts in excess of $1,000. Id. at 21, n.23. This is in direct contrast to the record here where, "by 1995, more than half the contributions raised by city council candidates came in denominations of $1,000 or more." Fact No. 4.

Further, the Buckley Court did not describe any evidence of the sources of campaign money in congressional elections. The record here reveals that an extremely small percentage (0.04 percent) of the Cincinnati metropolitan area population provided more than $2.6 million (45 percent) of all money raised for Cincinnati city council candidates from 1991 to 1995. Fact No. 8.

 What is foreign to the First Amendment is the notion that concentrated wealthy interests have the right to undermine the promise of political equality and to threaten the very fabric of the democratic process. As the U.S. Court of Appeals for the District of Columbia stated in Buckley in its ruling upholding the contribution and expenditure limits:

It would be strange indeed if, by extrapolation outward from the basic rights of individuals, the wealthy few could claim a constitutional guarantee to a stronger political voice than the unwealthy many because they are able to give and spend more money, and because the amounts they give and spend cannot be limited. Buckley v. Valeo, 519 F. 2d 821, 841 (D.C. Cir. 1975).

As one First Amendment scholar recently wrote, "[Buckley] misunderstood not only what free speech really is but what it really means for free people to govern themselves." Ronald Dworkin, "The Curse of American Politics," The New York Review of Books, October 17, 1996, 24.

 The Cincinnati Ordinance is closely drawn to meet the City's interest in equalizing the ability of all citizens to participate in elections and affect the choices available to them. By setting reasonable limits on candidate expenditures in city council elections, the ordinance levels the playing field for all voters. It helps protect the promise of political equality while still enabling city council candidates to run viable campaigns.

B. The City's ordinance is justified by the interest in opening the electoral process to candidates less able to meet the prohibitive costs of election campaigns and is closely drawn to meet that interest. 

The City's interest in opening the electoral process to candidates less able to meet the prohibitive costs of election campaigns is a sufficiently important state interest which justifies its campaign spending limits ordinance. The rising costs of Cincinnati city council campaigns makes the process of running as a candidate increasingly an exclusive one. The facts presented here demonstrate that candidates who lack access to wealth face an unfair disadvantage in a system which allows for unlimited spending. See Fact Nos. 13-14; Makinson Affidavit. The district court erred in finding that the City's interest in addressing this unfair disadvantage did not justify the Cincinnati Ordinance.

 Donald Driehaus, for example, ran for Cincinnati City Council in 1995 as a challenger candidate. He raised and spent approximately $30,000 for his campaign, less than one-tenth of the expenditures of City Councilmember Phil Heimlich. Driehaus could not be heard as a candidate in the at-large election up against others spending hundreds of thousands of dollars to broadcast their messages. As Driehaus says, "[w]ith other candidates spending two to ten times more than me, my message as a candidate was drowned out." DCD No. 38, Driehaus Affidavit, 3.

 Many other citizens do not even attempt to run for city council. Rev. Kazava Smith describes in his affidavit how potential candidates are discouraged from the start by the increasing levels of campaign spending:

I know some good people who have thought about running for city council, but because they do not have any financial backing, they do not even enter the process...The city suffers when some good minds do not even run for city council because of the high costs.

DCD No. 38, Exhibit 11, Affidavit of Rev. Kazava Smith, 3 (hereinafter referred to as "Smith Affidavit").

 A candidate's ability to raise money from wealthy donors cannot be viewed as a measure of a candidate's popular support. One candidate might have 1,000 supporters, each of whom can only afford to contribute one dollar. Another candidate might have only 10 supporters, but each can afford to contribute $1,000. The former candidate has 100 times more supporters than the latter, but will be outspent by a factor of ten to one. The former candidate's message will be drowned out even though he or she has greater popular support.

Plaintiff Kruse admitted in his deposition that the amount of money a city council candidate can raise does not relate directly to the strength of that candidate's popular support. See DCD No. 38, Exhibit 12, Kruse deposition, 168. This admitted fact is in direct contrast to the Buckley Court's conclusion, without reliance on any facts, that "the financial resources available to a candidate's campaign...will normally vary with the size and intensity of the candidate's support." Buckley, 424 U.S. at 56.

 The Supreme Court has already recognized that a system which discriminates against candidates based on their economic status is unconstitutional. In Bullock v. Carter, 405 U.S. 134 (1972), the Court struck down on Equal Protection grounds a series of filing fees that the state of Texas required primary candidates to pay to their political parties. The filing fees ranged from $150 to $8,900 for local and state legislative candidates. The Court held that, with the high filing fees, "potential official 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 enthusiastic their popular support." Id. at 143.

 The new facts and circumstances presented here distinguish this case from the Buckley Court's holding. Unlike the minimal record in Buckley, the record here demonstrates that the system of unlimited spending in Cincinnati city council elections discriminates against candidates according to their economic status. Candidates without wealth or access to wealth are often denied the opportunity to compete on an equal basis and many are often discouraged from running at all.

The Cincinnati Ordinance is closely drawn to address this discriminatory impact on less affluent candidates. By setting reasonable limits on campaign spending in city council elections, the ordinance will open the electoral process to candidates of lesser means, enabling new voices to be heard. It will help level the playing field for all candidates. Candidates with access to wealthy donors may still speak and will still be heard. But, candidates without access to money will no longer have their voices drowned out nor be discouraged from entering the process.

III. The Cincinnati Ordinance is Justified by New Sufficiently Important State Interests And Is Closely Drawn to Meet Those Interests. 

A. The City's ordinance is justified by the interest in protecting the Equal Protection rights of all Cincinnati voters and candidates. 

The City's interest in protecting the Equal Protection rights of all Cincinnati voters and candidates is a sufficiently important state interest which justifies its campaign spending limits ordinance. This is a new interest which was neither presented to, nor addressed by, the Buckley Court. The facts of this case demonstrate that campaign spending limits in Cincinnati city council elections are now necessary to address this interest.

The Supreme Court has long recognized that a process which becomes "an integral part...of the elective process that determines who shall rule and govern..." must be open to all. Terry v. Adams, 345 U.S. 461, 469 (1953) (invalidating an all-white association's pre-primary candidate nominating process as an unconstitutional infringement on the right to vote of African-American citizens). The Court has held that the public election process "is an exclusively public function." Flagg Brothers v. Brooks, 436 U.S. 149, 158 (1978). As such, "any 'part of the machinery for choosing officials' becomes subject to the Constitution's restraints," even if that machinery is a private association taking "the form of 'voluntary association' of unofficial character." Terry, 345 U.S. at 481 (Justice Clark, concurring), quoting Smith v. Allwright, 321 U.S. 649, 664 (1944). As the Court again recognized last term, exclusion from "an integral part" of the election process, "does not merely curtail [citizens'] voting power, but abridges their right to vote itself." Morse v. Republican Party of Virginia, 116 S.Ct. 1186, 1200 (1996).

 The facts of this case demonstrate that the process of raising unlimited funds in Cincinnati city council campaigns has become "an integral part" of the City's election process. See Fact Nos. 1-14; Makinson Affidavit. Candidates and their voter-supporters who do not have access to wealth are effectively excluded from that process. Id. There is, in essence, a "wealth primary" in Cincinnati city council campaigns, a process which occurs long before election day. For most candidates, it has become "part of the machinery" of getting elected. If they win the wealth primary -- if they raise and spend the most money -- they will most likely win a seat on the Cincinnati City Council.

Cincinnati voters and candidates effectively excluded from the wealth primary in city council elections are denied their constitutional right to participate in the election process on an equal and meaningful basis. See Morse; Terry; Smith; Nixon v. Herndon, 273 U.S. 536 (1927); and Nixon v. Condon, 286 U.S. 73 (1932). See also Jamin Raskin & John Bonifaz, "Equal Protection and The Wealth Primary," Yale Law & Policy Review, Vol. 11, No. 2 (1993), 273-332. The wealth primary disadvantages such voters "in their opportunity to influence the political process effectively." Davis v. Bandemer, 478 U.S. 109, 133 (1986). It undermines and debases the constitutionally guaranteed value of their votes. See Baker v. Carr, 369 U.S. 186 (1962); Wesberry v. Sanders, 376 U.S. 1 (1963); Gray v. Sanders, 372 U.S. 368 (1963); Reynolds v. Sims, 377 U.S. 533 (1964) (finding that the dilution and debasement of the right to vote is as unconstitutional as the absolute prohibition of the franchise). It presents a "real and appreciable impact on the exercise of the franchise." Bullock v. Carter, 405 U.S. 134, 144 (1972) (striking down as unconstitutional under the Equal Protection Clause a system of high candidate filing fees: "[W]e would ignore reality were we not to find that this system falls with unequal weight on voters, as well as candidates, according to their economic status." Id.). See also Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966) (striking down as unconstitutional under the Equal Protection Clause a $1.50 poll tax in Virginia state elections.) Like the filing fee at issue in Morse, the wealth primary system in Cincinnati city council elections "undercuts [voters'] influence on the field of candidates whose names will appear on the ballot, and thus weakens the 'effectiveness' of their votes..." Morse, 116 S.Ct. at 1199. See also M.L.B. v. S.L.J., ___U.S.___, 117 S.Ct. 555, 568 (1996) (expressly reaffirming the principle of Bullock and Harper that the "basic right to participate in political processes as voters and candidates cannot be limited to those who can pay...").

 The City's interest in protecting the Equal Protection rights of all of its voters and candidates is a new sufficiently important state interest which justifies its campaign spending limits ordinance. The undisputed facts in this case demonstrate the exclusionary nature of the system of unlimited campaign spending in Cincinnati city council elections. The district court erred in not properly assessing the fundamental constitutional rights at stake with this new interest.

 B. The City's ordinance is justified by the interest in protecting the First Amendment rights of all Cincinnati voters to hear all candidates' views and qualifications and to be heard in the political process. 

This court must weigh the First Amendment rights of voters to hear the viewpoints and qualifications of all candidates against plaintiffs' claim that the First Amendment protects an alleged right to spend unlimited amounts of money. Evaluating competing First Amendment rights in the election context is a "particularly difficult reconciliation" and requires careful analysis of facts surrounding the enactment of the ordinance and its impact on voters' rights. Burson v. Freeman, 504 U.S. at 199.

The First Amendment rights of the voters have consistently been awarded paramount protection to the candidate's rights in election cases. Rosen v. Brown, 970 F.2d 169, 175 (6th Cir. 1992) citing Anderson v. Celebreeze, 460 U.S. 780, 786-88 (1983). Thus, the City's actions must protect and facilitate the voters' rights to participate in the electoral process.

 The City unquestionably has a sufficiently important state interest "in fostering an informed electorate." Eu v. San Francisco Democratic Comm., 489 U.S. 214, 228 (1989) citing Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 220 (1986); Anderson v. Celebreeze, 460 U.S. at 796. The First Amendment's protection of robust and open debate about campaign issues and candidate qualifications depends on the right to speak and on the right to receive information during the public debate. See New York Times v. Sullivan, 376 U.S. 254, 271 (1974): This nation has a "...profound national commitment to the principle that the debate on public issues should be uninhibited, robust and wide-open..."

 The Supreme Court, in First National Bank v. Bellotti, 435 U.S. 765 (1978), relied upon the voters' right to hear speech in its holding allowing corporations to present their opposition to a referendum enacting a graduated personal income tax. The Court focused on the fact that the "First Amendment protects interests broader than those of a party seeking their vindication" and includes the interests of society in learning the position of the bank on the issue. Id. at 776. See also, Eu v. San Francisco County Democratic Comm., 489 U.S. at 223 (California's ban on party endorsements in primaries "hamstrings voters seeking to inform themselves about the candidates and the campaign issues.")

In Buckley v. Valeo, the Court acknowledged that the government has a vital interest in "facilitat[ing] and enlarg[ing] public discussion and participation in the electoral process." 424 U.S. at 92. This important purpose of opening up the campaign debate to all voters and candidates was in the forefront of the Cincinnati City Council's action. The Council's law committee had heard citizens groups' warnings that the high spending candidates were drowning out the views and qualifications of more modest funded candidates.

Further, Cincinnati voters have not only a First Amendment right to hear campaign speech, but also a right to be heard both in the election and legislative processes. With the dramatic rise in campaign spending, voters without wealth are effectively denied their right to be heard. The increasing dominance of wealthy donors in city council elections serves to subjugate the voices of most Cincinnati voters.

The facts of this case demonstrate that voters without wealth cannot compete in the debate of ideas which is at the core of our elections process and which is protected by the First Amendment. Williams v. Rhodes, 393 U.S. 23, 32 (1968). See Fact Nos. 11-14; Makinson Affidavit, Driehaus Affidavit, Smith Affidavit.

The Supreme Court has opened up, not closed, the electoral process by striking down state created barriers to effective voter participation as violations of the First Amendment. In Williams v. Rhodes, 393 U.S. 23, the Supreme Court struck down Ohio's statutory regime which erected numerous barriers for George Wallace's supporters to get his name on the presidential primary ballot. The Court articulated the First Amendment's protection of voters' rights to include: "the right of qualified voters, regardless of their political persuasion, to cast their votes effectively." Id. at 31. See also, Anderson v. Celebreeze, 460 U.S. at 787-88 (First Amendment rights of voters to cast their votes effectively); Illinois Bd. Of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979) ( First Amendment protects voters' rights "to cast their ballots effectively.")

 The high costs of Cincinnati city council elections today discourage qualified potential candidates who are without wealth or access to wealth from running for the council, thereby limiting voters' choices. Candidates without wealth or access to wealth are unable to raise and spend hundreds of thousands of dollars to deliver their messages. This represents a serious threat to democracy. It conflicts with the City's interest in an informed electorate. Anderson v. Celebreeze, 460 U.S. at 796 ("There can be no question about the legitimacy of the state's interest in fostering informed and educated expressions of the popular will in a general election.")

 C. The Cincinnati Ordinance is closely drawn to address the City's interests in protecting the Equal Protection and First Amendment rights of all voters and candidates. 

The Cincinnati Ordinance helps ensure that the constitutional rights of all Cincinnati voters and candidates will be protected within the framework of campaign spending limits which allow candidates to run viable campaigns. The ordinance thus serves the City's new sufficiently important state interests.

With respect to the Equal Protection interest, the City's ordinance will help level the playing field for all voters and candidates, thereby ending the wealth primary process in Cincinnati city council elections. The ordinance ensures that the entire election process will be open to all, regardless of economic status. With an overall campaign spending limit set at the reasonable level of $140,000, the Cincinnati city council elections will no longer include an integral part of the process which effectively excludes voters and candidates who lack access to wealth. It will prevent wealthy donors from dominating city council elections through a system which "undercuts [voters'] influence on the field of candidates whose names will appear on the ballot, and thus weakens the 'effectiveness' of their votes..." Morse, 116 S.Ct. at 1199.

 The Cincinnati Ordinance will further protect the First Amendment rights of all Cincinnati voters. Unlike the first-past-the-post electoral system evaluated by the Supreme Court in Buckley, candidates for the Cincinnati City Council run in a field race, in which the top nine vote-getters are elected. This unusual electoral scheme places a premium on television advertising, which the undisputed record proves is a key means of establishing a candidate's name recognition. DCD No. 38, Fact Nos. 40-42.

 While it is understood that a purchase of television advertising time is expensive, the Cincinnati Ordinance is concerned with a more subtle -- and invidious -- problem. The Cincinnati Ordinance arises from the non-controversial recognition that television time is a finite resource, not unlike broadcast frequencies. See Red Lion Broadcasting Co. v. Federal Communications Comm'n, 395 U.S. 367, 388 (1969). And the stipulated record in this case reveals that a few, very well-funded candidates for the Cincinnati City Council monopolize this vital medium by purchasing all valuable advertising time months in advance of an election. The record also proves that these well-funded candidates do not purchase this television time to simply disseminate their own political messages; instead, the massive advertising buys are a heavy-handed attempt to deny other candidates access to the all-important television medium. That this domination of the airwaves by well-funded candidates is inimical to robust public debate cannot be doubted. That the First Amendment does not protect this form of electoral oppression is equally undeniable: "the right of free speech . . . does not embrace a right to snuff out the free speech of others." Red Lion, 395 U.S. at 387.

 By setting reasonable campaign spending limits, the Cincinnati Ordinance will help foster a more open and robust debate among city council candidates, will help enable voters to hear the campaign speech of all candidates, and will ensure that new voices are heard in the political process. In doing so, the ordinance will serve the core values of the First Amendment.

IV. The Cincinnati ordinance is a reasonable regulation on the manner of speech in the city council election process.

The City's ordinance is constitutionally justified by sufficiently important state interests which protect the integrity of the City's election process. In the alternative, the City's ordinance is constitutionally justified as a reasonable regulation on the manner of speech, in accordance with the long line of court rulings upholding reasonable time, manner, and place regulations.

 The Supreme Court has long held that the government may impose reasonable regulations on the manner of speech and that the First Amendment does not include a right to drown out the speech of others. In Kovacs v. Cooper, 336 U.S. 77 (1949), the Court reviewed a Trenton, New Jersey ordinance regulating the use of soundtrucks on public streets. The Court held that the ordinance was a reasonable regulation on the manner of speech: "Unrestrained use throughout a municipality of all sound amplifying devices would be intolerable." Id. at 81.

Central to the Court's ruling in Kovacs was its view that public streets were designed for use by the public and ought not to be obstructed by any specific individuals or groups of individuals. "Opportunity to gain the public's ears by objectionably amplified sound on the streets is no more assured by the right of free speech than is the unlimited opportunity to address gatherings on the streets." Id. at 87-88. As Justice Jackson wrote in his concurrence, "[f]reedom of speech for Kovacs does not, in my view, include freedom to use sound amplifiers to drown out the natural speech of others." Id. at 97. See also Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 805-806 (1984) (upholding municipal ordinance prohibiting posting of signs on public property and citing Kovacs).

 Just as the Trenton ordinance in Kovacs was a reasonable regulation on the manner of speech which protected the purpose of the public streets, the City's ordinance here is a reasonable regulation on the manner of speech which protects the purpose of public elections. By limiting campaign expenditures for all candidates, it ensures that some will not speak in such a manner so as to drown out the speech of others.

 The Buckley Court sought to create an irrational distinction between the Kovacs holding and its holding on campaign expenditure limits. "The decibel restriction upheld in Kovacs," the Court stated, "limited the manner of operating a sountruck, but not the extent of its proper use." 424 U.S. at 18-19, n.17. Yet, one's manner of speech necessarily involves how loudly one speaks. A person who is whispering is speaking in a different way, using a different manner of speech, than one who is shouting. A candidate who is flooding the television airwaves with excessive 30-second commercials is speaking in a different manner than a candidate who is engaged in direct voter contact throughout the city. As Judge J. Skelly Wright, the author of the D.C. Circuit Court of Appeals decision in Buckley, wrote following the Supreme Court's Buckley ruling: "[T]he distinction [between manner and extent of speech] simply does not bear up under analysis." Wright, 85 Yale Law Journal 1001, 1011, n.41.

 The new facts presented in this case demonstrate that candidates for Cincinnati City Council use different manners of speech in their campaigns and that some have been drowning out the speech of others with excessive campaign expenditures. See Fact No. 14; DCD No. 38, Cooper, Portune, Sterne, and Yates Affidavits; Makinson Affidavit; Galvin Affidavit. The City's ordinance follows a long line of reasonable regulations on the manner of speech, and, as such, protects the basic integrity of the City's election process.

 V. In the Alternative, the District Court Erred In Finding That There Were No Material Facts In Dispute. 

The district court erred in finding that the Cincinnati Ordinance was not justified by any of the City's interests. In the alternative, the district court erred in finding that this case was ripe for summary judgment and that there were no genuine issues of material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

 For the purposes of their summary judgment motion, the plaintiffs claimed that they were conceding all facts put forward by the Defendants and the Defendant-Intervenors as true. Yet, despite that stipulation, the plaintiffs did not meet their "burden of establishing that there is no material fact in dispute..." Adickes v. S.M.Kres and Co., 398 U.S. 144, 157 (1970). There are material facts in dispute. These disputes go directly to the determination of whether the stated legislative purposes for the Cincinnati Ordinance constitute sufficiently important state interests; whether the ordinance is closely drawn to address those interests; and whether the ordinance's spending limit is set at a level sufficient for city council candidates to run a reasonable and viable campaign.

 Inherent to the appellees' challenge to the Cincinnati Ordinance are genuine issues of material fact. These disputes can be found throughout the appellees' written and oral arguments:

• Appellees claim that the ordinance "deprives candidates of the ability to satisfy [the costs of Cincinnati city council campaigns] and otherwise conduct effective campaigns." DCD No. 39, Reply Brief. Appellants say that the ordinance brings more candidates into the political process and that the limits are set at a level which allows all candidates to run viable campaigns. DCD No. 38, Exhibits 6-14; Galvin Affidavit; Fact Nos. 38-43;
• Appellees claim that the ordinance "forc[es] the electorate to hear less political debate." DCD No. 39 (emphasis omitted). Appellants say the ordinance allows for a more open and robust political debate. DCD No. 38, Exhibits 6-14; Galvin Affidavit; Fact Nos. 38-43;
• Appellees claim that the ordinance "protect[s] the positions of those who enacted it." DCD No. 39. Appellants say that the ordinance opens up the electoral process and enables challenger candidates to compete for council seats. DCD No. 38, Exhibits 6-14; Galvin Affidavit; Fact Nos. 38-43;
• Appellees claim that the ordinance will prevent challenger candidates from being able to reach the "threshold" cost of conveying a message in city council elections. DCD 47 at 18. Appellants say the $140,000 limit is far more than enough for any candidate to communicate a message and that the system of unlimited campaign spending has allowed a few, well-funded candidates to monopolize the purchase of television time. DCD No. 38, Exhibits 6-14; Galvin Affidavit; Fact Nos. 38-43.
• Appellees claim that contribution limits address the City's interest in preventing corruption and the appearance of corruption. DCD No. 47 at 16. Appellants say that unlimited campaign spending has fueled the public perception of corruption and the danger of actual corruption. DCD 38, Exhibits 3-14; Galvin Affidavit; Fact Nos. 1-37.

The material facts in dispute in this litigation necessitated a denial of appellees' motion for summary judgment. The City of Cincinnati has the right to go to trial on the factually-based inquiry of whether it has sufficiently important state interests justifying its campaign spending limits ordinance and whether the limit is set at a reasonable level which allows Cincinnati city council candidates to run viable campaigns.

 CONCLUSION 

The Cincinnati Ordinance is justified by the City's sufficiently important state interests and is closely drawn to meet those interests. Further, the Cincinnati Ordinance is a reasonable regulation on the manner of speech in the city council election process. The district court's ruling granting summary judgment for the plaintiffs should be reversed.

 In the alternative, the district court erred in finding that there were no genuine issues of material fact and this case should be remanded to the district court for trial.

 May 19, 1997

 Respectfully submitted,

 

FAY D. DUPUIS (Ohio State Bar No. 0020782)
City Solicitor


KARL P. KADON, III (Ohio State Bar No. 0009324)
Deputy City Solicitor
Room 214, City Hall
801 Plum Street
Cincinnati, Ohio 45202
(513) 352-3334
(513) 352-1515 FAX


JOHN C. BONIFAZ
ABIGAIL TURNER
National Voting Rights Institute
401 Commonwealth Avenue, Second Floor
Boston, Massachusetts 02215
(617) 867-0740
(617) 867-0741 FAX

FOOTNOTES

 1 Each and every fact contained in Defendants' Statement of Facts (Exhibit 1 to Defendants' Memorandum in Opposition, DCD No. 38) was stipulated to as true by the Plaintiffs in their mark up of the facts. DCD No. 40.

 2 The Supreme Court in Buckley set forth this standard for analyzing the constitutionality of campaign contribution and expenditure limits passed by the United States Congress. While the Court referred to "'the closest scrutiny,'" Buckley v. Valeo, 424 U.S. 1, 25 (1976) (citing NAACP v. Alabama, 357 U.S. 449, 460-461 (1958)), it did not, at any time in the opinion, cite strict scrutiny as the standard nor did it employ the commonly understood language for strict scrutiny, requiring a "compelling state interest" and means which are "narrowly drawn" to meet that interest.

3 In a hearing on November 18, 1996, counsel for Appellees informed the trial court that "[w]e want you to presume that at trial [the City of Cincinnati] can prove x at trial and [the City of Cincinnati] can prove Y and at trial [the City of Cincinnati] can prove z. And [the City of Cincinnati] can make that list as long as [it] wants. [The City of Cincinnati] can say anything [it] wants if [it] thinks [it] can prove it at trial. For purposes of our motion for summary judgment, we want you to presume that every fact that [the City of Cincinnati] says that [it] can prove, that [it] in fact will prove at trial. And after looking at those facts, we believe you're going to say it doesn't matter, this is an unconstitutional ordinance. If you could prove every fact that you say you're going to prove at trial, you still lose. Because this is a facially unconstitutional ordinance." DCD No. 35, Transcript of Proceedings, November 18, 1996, 48-49.

 4 See also Planned Parenthood v. Casey, 505 U.S. 833, 861 (1992), for a reaffirmation of the principle that the Court will reexamine a prior holding based upon new facts and circumstances: "In constitutional adjudication as elsewhere in life, changed circumstances may impose new obligations, and the thoughtful part of the Nation would accept each decision to overrule a prior case a response to the Court's constitutional duty."

5 The threat to the integrity of the electoral process imposed today by unlimited campaign spending is recognized at all levels of government. As U.S. Senator Robert Byrd of West Virginia stated in a speech on the floor of the U.S. Senate in March 1997: "The incessant money chase that permeates every crevice of our political system is like an unending circular marathon. And it is a race that sends a clear message to the people: that it is money, money, money that reigns supreme in American politics." Dawn to dark/Chasing the Dollars: One Day on the fundraising trail, The Boston Globe, May 16, 1997, A1, A12.

 6 As one commentator has said, "[t]he striking thing about the Buckley decision is that it undertook to pronounce on questions that were not defined by any evidence." Roland S. Homet, Jr., Fact-Finding in First Amendment Litigation: The Case of Campaign Finance Reform, 21 Oklahoma City University Law Review 97 (1996).

7 In the related First Amendment area of television broadcasting, the Supreme Court recently reaffirmed the governmental interest of promoting the widespread dissemination of information from a multiplicity of sources. See Turner Broadcasting System, Inc. v. FCC, ___ U.S. ___ , 117 S.Ct. 1174, 1189 (1997) (upholding the "must-carry" provisions of the Cable Television Consumer Protection and Competition Act of 1992 which require cable television systems to dedicate some of their channels to local broadcast television stations): "Congress has an independent interest in preserving a multiplicity of broadcasters to ensure that all households have access to information and entertainment on an equal footing with those who subscribe to cable." In the First Amendment area of elections, Cincinnati surely has at least an equally important interest in ensuring that its voters hear the campaign speech of all candidates seeking to govern the city.