81 F. Supp.2d 128 (2000) | Cited 0 times | D. Maine | January 7, 2000


The remaining issue in this lawsuit challenging the constitutionalityof Maine's campaign finance laws is whether the reduced contributionlimits can survive. In 1996, Maine voters lowered to $250 the amountanyone can contribute after January 1, 1999, to a State Senate or Housecandidate. See 21-A M.R.S.A. §§ 1015(1) & (2), 1056(1) (West.Supp.1999). The limits had been $1,000 ($5,000 for PACs, corporations andassociations) since 1976. See Pub.L. No. 1975 c. 759, codified as 21M.R.S.A. § 1395(1) & (2) (West Supp. 1977).

The United States Supreme Court is currently reviewing Missouri'scontribution limits of $1,075 for Governor, $525 forState Senator and $275 for State Representative. Nixon v. Shrink Mo.Gov't PAC ("Shrink PAC"), 1999 WL 813789 (No. 98-963) (oral argument heldOct. 5, 1999). I would prefer to await the Supreme Court's decision inthat case so that I could simply follow the Supreme Court's reasoning.But Maine contributors and candidates for the State House and Senate areentitled to a ruling now so that candidates may begin their campaignfundraising for the upcoming election with certainty about what the rulesare, if only temporarily. My decision, therefore, is based on the currentSupreme Court precedents, particularly the 1976 decision in Buckley v.Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam)(upholding $1,000 contribution limits for the Presidential, U.S. Senateand U.S. House races).1

I hold that Maine's new limits for State House and Senate campaigns areconstitutional. The election for governor, on the other hand, is threeyears away, and no plaintiff in this lawsuit purports to be a candidatefor governor. I DISMISS WITHOUT PREJUDICE any challenge to the newgubernatorial contribution limit ($500) as premature. See Daggett v.Devine, 973 F. Supp. 203 (D.Me. 1997) (dismissing a challenge to theMaine Clean Election Act in part because it was premature).

I have not made the traditional separate findings of fact underFed.R.Civ.P. 52. As the Court of Appeals recognized in an appeal of anearlier procedural ruling, the constitutional decision in a case likethis is premised largely on "legislative" facts, not the adjudicativefacts of Rule 52. See Daggett v. Commission on Governmental Ethics andElection Practices, 172 F.3d 104, 112 (1st Cir. 1999). Indeed, I havemade every effort to stay away from facts or opinions that might be hotlydisputed, such as the views of experts or local politicians. Instead, mydecision is based largely upon undisputed statistics from Maine campaignsand elections.2


In light of existing Supreme Court caselaw, there are several ways toapproach the contribution limits, none of them very satisfactory.Presumably that is why the Supreme Court is revisiting the issue inShrink PAC.

First, one might start with the observation that in Buckley the SupremeCourt upheld a uniform $1,000 contribution limit for nationwidePresidential campaigns, statewide U.S. Senate races, and district wideU.S. House of Representatives races. See 424 U.S. 1, 23-39, 143, 96S.Ct. 612, 46 L.Ed.2d 659. That $1,000 limit still is in effect. See 2U.S.C.A. § 441a(a)(1)(A) (West 1997). If that limit is constitutionalfor federal races nationwide — such as California's, New York's andTexas's statewide U.S. Senate races — then Maine's limit of $250for its much more restricted State Senate and House races easilyconformsby any proportional measure.3 Put another way, if Maine's new limithad been presented to a court the month after Buckley was decided, theplaintiffs would have been hard pressed to argue that it wasunconstitutional. Until the Supreme Court overturns Buckley andinvalidates the existing $1,000 limit for federal campaigns, a lowercourt must have great temerity to upset state limits like Maine's thatare in rough proportion to the Buckley amounts.

Alternatively, one might look at the purchasing power of the dollar.Buckley was decided in 1976. The $1,000 limit the Supreme Court upheldthen would be $2,870 in today's dollars. See T. Decl. of John R. Lott,Jr. ¶ 72. Viewed in that context, Maine's $250 limit is low. It maynot be justifiable even with Maine's more restricted geography,population and available media. Under this approach, the $1,000 limitapproved in Buckley is suspect; perhaps it still exists only because noone has previously taken a case to the Supreme Court to review it.4

A third way is to set aside the numbers and focus on the principlesthat Buckley canvassed in reaching its decision on contribution limits.That, I believe, is the proper approach, most faithful to Buckley'steachings and the role of a trial court. I follow it here.

Buckley identified three constitutional interests at stake:contributors' free speech, candidates' free speech, and freedom ofassociation.

1. Contributors' Free Speech

According to Buckley, "a limitation upon the amount that any one personor group may contribute to a candidate or political committee entailsonly a marginal restriction upon the contributor's ability to engage infree communication." 424 U.S. at 20, 96 S.Ct. 612.5 The Courtaccordingly gave almost no weight to this independent interest. I do thesame.

2. Candidates' Free Speech

As for candidates, Buckley held that "contribution restrictions couldhave a severe impact on political dialogue if the limitations preventedcandidates and political committees from amassing the resources necessaryfor effective advocacy."Id. at 21, 96 S.Ct. 612 (emphasis added). The Supreme Court found thatsuch an effect was unproven for the $1,000 limit on federal races atissue in Buckley. See id. at 21-22, 96 S.Ct. 612.

Here, the parties6 have devoted enormous effort to provide thenecessary proof — or to demonstrate that the effect cannot beproven — by trying to predict the consequences of Maine's reducedlimitations on state elections.

The plaintiffs have analyzed the amount by which they believecontributions would have decreased in recent elections if the limits hadbeen in effect. For example, they argue that in 1998 contributions to allcandidates for the State House would have declined 16 percent had thelimits been in effect; contributions to all candidates for the StateSenate would have declined by 33 percent. See Daggett Pls.' CorrectedPost — Hr'g Br. at 4. In addition to providing figures for theelection as a whole, they have analyzed contributions to incumbents andchallengers, contributions in "open seat" elections and contributions in"contested" elections (defined as one in which the winner received atleast 40 percent but no more than 60 percent of the votes).

The defendants have their own candidate testimony and their own set ofcalculations, including how many donors would have been affected: 757donors to House campaigns and 908 donors to Senate campaigns in 1998,which represents 3.7 percent of all contributors to House campaigns and7.1 percent of all contributors to Senate campaigns. See Defs.' TrialBr. at 38, 49 (citing Expert Report of Anthony Corrado at 20).

All parties have done mathematical analyses and tried to compare orcontrast the results with what Buckley upheld. Not surprisingly, theydiffer in their assessments of how the new limits will affect campaigncontribution and spending behavior. (After all, we are talking abouthuman behavior and how it may respond to changed circumstances, adifficult task at best.) In the end, these are all projections, and thesevere impact on political dialogue that Buckley said was possibleremains elusive.7

The one piece of concrete information in the record about the effect ofthe new limits is the experience of a special election held last year inLewiston. To the extent that numbers provide the measure, there is everyindication that in that election the new limits permitted the candidatesto amass sufficient funds for "effective advocacy" and "politicaldialogue," the only test Buckley left us. 424 U.S. at 21, 96 S.Ct. 612.In the abbreviated, seven-week campaign, the victor raised $10,892. Theloser, without party backing, raised $5,409. See Christie Decl. ¶48.8 Both sums are greater than the average 1998 House campaign costof $4,725, see 1997-98 Commission on Governmental Ethics and ElectionPractices Biennial Report at 16, and spectacularly more than the amountraised in the previous campaign for the seat, $1,190, see id. at 20, 96S.Ct. 612. In short, sufficient resources for effective advocacy in anelection remain available to candidates. If there is concrete evidence tothe contrary, it has yet to emerge.9

3. Freedom of Association

The Court's real focus in Buckley, so far as contribution limits wereconcerned, was on freedom of association: "the primary First Amendmentproblem raised by the [Federal Election Campaign] Act's contributionlimitations is their restriction of one aspect of the contributor'sfreedom of political association." 424 U.S. at 24-25, 96 S.Ct. 612. TheCourt declared that "[m]aking a contribution, like joining a politicalparty, serves to affiliate a person with a candidate. In addition, itenables like-minded persons to pool their resources in furtherance ofcommon political goals." Id. at 22, 96 S.Ct. 612. Earlier decisions hadestablished that "the right of association is a basic constitutionalfreedom that is closely allied to freedom of speech and a right which,like free speech, lies at the foundation of a free society." Id. at 25,96 S.Ct. 612 (citations and quotations omitted).

But the Supreme Court went on to say that "[e]ven a significantinterference" with this freedom of association could be permitted "if theState demonstrates a sufficiently important interest and employs meansclosely drawn to avoid unnecessary abridgment of associational freedoms."Id. at 25, 96 S.Ct. 612 (citations and quotations omitted).10 Threegovernmental interests had been identified in support of the federalcontribution limits in Buckley: (1) preventing corruption and theappearance of corruption; (2) equalizing the relative ability of allcitizens to affect election outcomes, independently of affluence; and (3)braking the skyrocketing cost of campaigns, thereby opening the systemmore widely to candidates without large sources of money. Id. at 25-26,96 S.Ct. 612. The Court considered and assessed only the first interest:preventing corruption and the appearance thereof.11

The Supreme Court counted avoidance of corruption and avoidance of theappearance of corruption each as "sufficiently important" interests underthis analysis. Of corruption, it said: "To the extent that largecontributions are given to secure a political quid pro quo from currentand potential office holders, the integrity of our system ofrepresentative democracy is undermined. Although the scope of suchpernicious practices can never be reliably ascertained, the deeplydisturbing examples surfacing after the 1972 election demonstrate thatthe problem is not an illusory one." Id. at 26-27, 96 S.Ct. 612 (emphasisadded).

Appearance of corruption also loomed large: "Of almost equal concern asthe danger of actual quid pro quo arrangements is the impact of theappearance of corruption stemming from public awareness of theopportunities for abuse inherent in a regime of large individual financialcontributions." Id. at 27, 96 S.Ct. 612 (emphasis added). The Court ruledthat a legislature could "legitimately conclude"that this concern about the appearance of corruption was a "critical"interest and required corrective measures to prevent erosion ofconfidence in the system of representative government. Id. (quotation andcitation omitted).

Having concluded that the governmental interests were weighty, theCourt went on to assess the chosen remedy to see whether there were lessrestrictive means of dealing with these governmental interests. Criminalbribery laws and disclosure requirements were insufficient alternativesaccording to the Court. See id. at 27-28, 96 S.Ct. 612. Because the$1,000 contribution limit under attack in Buckley focused precisely on"large" campaign contributions where the risk of corruption or itsappearance was manifest — while leaving open the ability "to engagein independent political expression, to associate actively throughvolunteering . . . and to assist to a limited but nonetheless substantialextent in supporting candidates and committees with financial resources,"id. at 28, 96 S.Ct. 612 — the Court upheld the measure: "theweighty interests served by restricting the size of financialcontributions to political candidates are sufficient to justify thelimited effect upon First Amendment freedoms caused by the $1,000contribution ceiling." Id. at 29, 96 S.Ct. 612.

The Court rejected two separate dollar-overbreadth challenges: first,that the remedy was too broad because most $1,000 — pluscontributors do not seek improper influence and, second, that the limitwas too low because it would take a lot more than $1,000 to actually buyimproper influence. Id. at 29-30, 96 S.Ct. 612. On the first, the Courtruled that even if most contributors of over $1,000 were properlymotivated, "the interest in safeguarding against the appearance ofimpropriety" supported the legislative decision to eliminate "theopportunity for abuse" that was "`inherent in the process of raising largemonetary contributions." Id. at 30, 96 S.Ct. 612. As for the height ofthe ceiling, the Court said that a legislative "failure to engage in . . .fine tuning" of the contribution limit does not invalidate thelegislation, and that courts should not probe the amount of the limit.Id.

The plaintiffs here maintain that neither corruption nor the appearanceof corruption, as recognized in Buckley, is a problem in Maine'spolitics. whey argue, therefore, that the "sufficiently important" stateinterest is lacking. They also maintain that Maine's $250 contributionlimit is overbroad and has gone well beyond the Supreme Court's supportof a ban on "large" contributions.

(a) Actual Corruption or the Appearance Thereof in Maine Politics

The parties disagree over whether corruption is a threat to Maine'sbody politic. They also disagree over what corruption is and how it isproven.

The plaintiffs would have me define corruption very narrowly. Theyquote the language in NCPAC, 470 U.S. at 497, 105 S.Ct. 1459, that"[c]orruption is a subversion of the political process" where politiciansare "influenced to act contrary to their obligations of office" inexchange for money.12 They appear to conclude that not much more thanan outright bribe would suffice as corruption. The defendants, on theother hand, have a very broad definition that seems to encompass everycitizen's suspicion that things are notas they should be in the State House. The debate is interesting inpolitical science terms, but unedifying in legal terms; much of it centersover the appropriate scope of "influence" in politics, an issue thatsurely is not for a judge to decide. In any event, I find it unnecessaryto endorse either end of the parties' definitional spectrum.13

So far as the standards for proving the threat of corruption areconcerned, a court must tread very carefully. On the one hand, a statemay not simply intone the word "corruption" and thereby overcome allFirst Amendment obstacles. See Turner Broad. Sys., Inc. v. FCC,512 U.S. 622, 664, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994) ("When theGovernment defends a regulation on speech as a means to redress pastharms or prevent anticipated harms, it must do more than simply `positthe existence of the disease sought to be cured.' It must demonstratethat the recited harms are real, not merely conjectural, and that theregulation will in fact alleviate these harms in a direct and materialway.") (citations omitted). On the other hand, I cannot realisticallyexpect chapter-and-verse proof of corruption — that people willcome forward and say, "Guess what, I was corrupt!" If that were the stateof the evidence, corruption would not be a mere threat. The Supreme Courthas been careful to point out that a state does not have to wait for theelection process to suffer actual indignities before it can take remedialsteps. See FEC v. National Right to Work Comm., 459 U.S. 197, 210, 103S.Ct. 552, 74 L.Ed.2d 364 (1982) ("[W]e accept Congress's judgmentthat it is the potential for such influence that demands regulation. Norwill we second guess a legislative determination as to the need forprophylactic measures where corruption is the evil feared.") (emphasisadded).

What does the record here present? About what one might expect: hearsayabout politicians attending events because of contributions, givingeasier access to contributions, being urged or pressured to change theirvotes because of contributors, and so forth — and, at the sametime, testimony that there is no evidence of votes actually being boughtin Maine, that Maine politicians are not in the Legislature for the moneyand are at least as honest as elsewhere14 and that constituents areunduly and unfairly suspicious.

Buckley was practical on the subject of proof; it recognized thatcorruption could "never be reliably ascertained." 424 U.S. at 27, 96S.Ct. 612. All that it required, therefore, was that the threat not be"illusory." Id. Under the previous Maine contribution limits, see 21-AM.R.S.A. § 1015(1) & (2) (West 1993) ($1,000 per primary and $1,000per general election for an individual, $5,000 per primary and $5,000 pergeneral election for PACs, corporations and associations), a single PACcontributing in the primary and general elections could bankroll entirelythe average house campaign ($4,725 in 1998, see 1997-98 Commission onGovernmentalEthics and Election Practices Biennial Report at 16) and over one-half ofthe average senate campaign ($18,445 in 1998, see id. at 11).15 Anindividual contributor could pay for 42.3 percent of the average Housecampaign and 10.8 percent of the average Senate campaign. Although nocontributions of that magnitude have been cited, that ability adequatelyprovided a foundation — not illusory — for public awareness ofthe "opportunity for abuse," enough under the appearance of corruptionstandard that Buckley endorsed.16

Under Buckley the appearance of corruption qualifies as a "sufficientlyimportant" — a "weighty" — interest, 424 U.S. at 25, 29, 96S.Ct. 612.17 As the Court said in another case, "[p]reserving theintegrity of the electoral process, preventing corruption, and`sustain[ing] the active, alert responsibility of the individual citizenin a democracy for the wise conduct of government' are interests of thehighest importance. Preservation of the individual citizen's confidencein government is equally important." First Nat'l Bank of Boston v.Bellotti, 435 U.S. 765, 788-89, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978)(citations and footnote omitted).18

(b) Is the Remedy Closely Drawn?

Maine's legislation also meets Buckley's requirement that the measurebe focused on where the risk is greatest — the large contribution.The previous permitted contributions of $1,000 by an individual and$5,000 by a corporation or PAC were indeed large. And the effect of theprohibition on freedom of association is limited. As in Buckley, thecontribution limit "leav[es] persons free to engage in independentpolitical expression, to associate actively through volunteering theirservices, and to assist to a limited but nonetheless substantial extentin supporting candidates and committees with financial resources." 424U.S. at 28, 96 S.Ct. 612. Moreover, the "contribution limitations inthemselves do not undermine to any material degree the potential forrobust and effective discussion of candidates and campaign issues byindividual citizens, associations, the institutional press, candidates,and political parties." Id. at 29, 96 S.Ct. 612.

(C) Overbreadth

The plaintiffs tell me, however, that the new dollar limit has been settoo low — that it is ludicrous to believe a Maine politician wouldsell his/her political soul for $251, or for any amount up to thepreexisting individual contribution limit of $1,000. Indeed, they would gobeyond that and offer -testimony from another case to suggest that$100,000 is the level at which the threat of corruption sets in. SeeStearns Pls' Br. in Lieu of Trial at 30 (citing Lott Dep. II, Ex. C at 86(Corrado Dep., FEC v. Colorado Republican Federal Campaign Comm., No.Civ. A. 89 N 1159, Nov. 14, 1997)). The defendants and amici, on theother hand, say that $250 is still a lot of money to give away in Maine,where the median household income in 1997 was $34,132. See Br. of MainePeople's Alliance at 7. Here, we are into what Buckley called theanalysis of "overbreadth." 424 U.S. at 29-30, 96 S.Ct. 612.

The value of money is relative. Those of the cost of campaigns andaccustomed to making political contributions might find amounts over $250to be still modest; personal income and assets also affect theperception. But someone who has never contributed to a politicalcampaign, or whose income and assets are limited, can easily perceiveamounts over $250 as, indeed, large, and therefore likely to suggest aquid pro quo. What counts as a large contribution might also be measuredby the size of other contributions. If a lot of people are contributingat a given level, that given level is no longer large in a relativesense, and the likelihood of corruption or its appearance may bereduced; special favors are more difficult for a multitude. But if thenumber of contributors at that dollar level is small, the risk iscorrespondingly greater that the contribution seems large and thatspecial favors — whether votes, access or something else —will result, or that the voters will apprehend that they do. (In Maineelections in 1998, 757 of the 20, 717 donors to House candidates gave inexcess of $250; in the Senate races, 908 of 12, 716 donors gave in excessof $250. See Expert Report of Anthony Corrado at 20. The figures aresimilar for the 1996 election. See id. at 21.)

But Buckley said expressly that courts are not to probe the amount ofthe contribution limits chosen in legislation. 424 U.S. at 30, 96 S.Ct.612.19 It then added a sentence that "distinctions in degree becomesignificant only when they can be said to amount to differences in kind."Id. Since then, courts and commentators have spilled enormous amounts ofink debating just when the size of a contribution dollar limit shiftsfrom a distinction in degree to a difference in kind. The debate has beenlargely conclusory and unproductive. I do not read Buckley's reference to"distinctions in degree" becoming "differences in kind," as giving lowercourts a license to measure and label as unconstitutional contributionlimits that permit contributions at more than nominal levels. That isprohibited "probing." As the Supreme Court said in Buckley, "[i]f it issatisfied that some limit on contributions is necessary, a court has noscalpel to probe, whether, say, a $2,000 ceiling might not serve as wellas $1,000." 424 U.S. at 30, 96 S.Ct. 612 (quoting approvingly from theCourt of Appeals decision). Unless and until the Supreme Court steps awayfrom its contribution limits jurisprudence, limits like Maine's $250limit are constitutionally permitted.

Will the new limits in fact resolve the corruption/appearance threat?Will popular distrust of the electoral process and politicians reallydecrease with a reduction in contribution limits? The answers to thosequestions are important, but they are more than the First Amendmentdemands. As a result of the new limits, an individual contribution can nolonger be more than a modest percentage of the costs of the average Houseor Senate campaign. That at least significantly reduces the potentialthreat for actual corruption from large contributions and, if anyonecares to look, of the appearance of corruption. That, I conclude, isenough for the First Amendment according to Buckley — whether ornot the measure reduces popular distrust of politicians.


The plaintiffs have also challenged the limit as it applies topolitical parties, political action committees and caucus PACs. Previouslythose limits were $5,000. See 21-A M.R.S.A. § 1015(1) & (2) (West.1993). Now, however, everyone — individual, party, PAC — issubject to the $250 limit. See 21-A M.R.S.A. § 1015(1)(individuals), § 1015(2) (committees, corporations, associations),§ 1056 (PACs) (West Supp. 1999).

So far as political parties are concerned, I decline to address theconstitutional issue. Federal courts are not to pass upon theconstitutionality of legislation unless there is an actual case orcontroversy. See Valley Forge Christian College v. Americans United forSeparation of Church and State, Inc., 454 U.S. 464, 471, 102 S.Ct. 752,70 L.Ed.2d 700 (1982). Longstanding and respectable reasoning undergirdsthis restriction on the power of federal courts in dealing withdemocratically enacted legislation. See id.

Here, neither of Maine's major political parties has challenged thecontribution limits. Some of the candidates who are plaintiffs say theywould like to receive contributions from their party over the newmaximum, but that mere desire is too weak to support the constitutionalchallenge without direct proof that their party is prepared to make suchcontributions. The Libertarian Party has challenged the new limit, buthas been unable to point to any instance where it has made a contributionor wanted to make a contribution in excess of $250. See Cenci Dep. at 51ll. 15-23, 54 ll. 14-18. Its chair predicts that maybe at some point inthe future the Libertarian Party will want to make such a contribution,see id. at 76 1. 14-77 1. 13, but that is too speculative to ground aconstitutional challenge.20

So far as contribution limits for PACs are concerned, the Supreme Courthas said little. In a short paragraph, Buckley upheld a $5,000 limit on"political committee" contributions to candidates. 424 U.S.at 35-6, 96 S.Ct. 612. The challenge there was that the provision'slimiting conditions "unconstitutionally discriminate against ad hocorganizations in favor of established interest groups and impermissiblyburden free association." Id. at 35, 96 S.Ct. 612. In a blunt response,the Supreme Court declared: "The argument is without merit." Id. Thelimiting conditions simply "serve the permissible purpose of preventingindividuals from evading the applicable contribution limitations bylabeling themselves committees." Id. at 35-36, 96 S.Ct. 612. The sameneed to avoid evasion of the limit holds true here. If the individuallimits are constitutional, then certainly Maine may limit PACsaccordingly.


Finally, the Libertarian Party plaintiffs separately challenge the perelection calculation of the contribution limit. They point out that amajor party candidate can receive maximum contributions twice, once forthe primary and again for the general election. Minor party candidateswho have no primary, on the other hand, can receive the maximumcontribution only once from any given contributor. They argue that majorparty primaries are sometimes not hotly contested and, in that event, thecalculation permits a major party candidate unfairly to amass moreresources for the general election campaign.

At the moment this appears to be a theoretical debate because therecord demonstrates that only seldomly have Libertarian party candidatesobtained contributions at the maximum level. See e.g.., Dep. of MarkCenci, Ex. 8 (1998 campaign finance report), Levasseur Campaign FinanceReports (Record File I.F.2), Weinstein Campaign Finance Reports (RecordFile I.H.2). Buckley rejected purely theoretical arguments that minorparties might unfairly be prejudiced by the FEC's contribution limit. See424 U.S. at 31, 33-34, 96 S.Ct. 612. It is sufficient under Buckley thatthe contribution limit does not invidiously discriminate against minorparties.21 Id. at 31, 96 S.Ct. 612. Here, the separate limits arerational and supportable because primary campaigns ordinarily can beexpected to require separate and additional expenditures.22 If actualprejudice ultimately is shown, the matter can then be revisited. See Brownv. Socialist Workers "74 Campaign Comm., 459 U.S. 87, 91-98, 103 S.Ct.416, 74 L.Ed.2d 250 (1982) (noting that in Buckley, the prejudice did notoutweigh the governmental interest in disclosure, but that in Brownstrong record evidence demonstrated prejudice and compelled overturningthe Ohio disclosure requirement).


I recognize that the vast majority of lower court decisions havereached conclusions contrary to those I reach here. I believe that indoing so they have not been entirely faithful to Buckley's reasoningpermitting contribution limits. There are many practical, political andeconomic problems with Buckley`s approach. Untilit is overruled or narrowed by the Supreme Court, however, its reasoningpermits voters or legislators to set contributions limits with moreflexibility than other lower courts have allowed.

In any event, this opinion will have a short shelf life and should bediscarded once the Supreme Court decides Shrink PAC. That is as it shouldbe. But as a trial judge who has had to grapple with these issues andread a host of campaign finance cases and commentary in the process, Ioffer the following observations about this important area ofconstitutional law.

First, the thrust of the Constitution as enunciated by judges shouldnot seem to depend, as it does now in the multitude of lower courtdecisions, upon the judiciary's evaluation of the particularities of agiven state's political experience. If contribution limits arepermissible,23 differences in their level from state to state shouldreflect democratic choices, not court decisions. Federal courts shouldnot be telling one state that the Constitution requires it to set itscontribution limit at a different level than that of another state. Theprinciples of the Constitution are not so narrow. First Amendmentjurisprudence that leads to this kind of lower court outcomes is flawed.Those should be legislative decisions.

Second, constitutional standards for governing the electoral processshould, of all things, be simple to understand. Elections are thefundamental underpinnings of a democracy. It will not do to say that theFirst Amendment is a very complicated area, and that difficult choicesmust be balanced. The First Amendment is on all sides of this question.The voters are entitled to be able to understand what changes they canand cannot make. If their legislators choose not to make the changes— whether by self interest or by an unbiased sense of what is rightfor the body politic — the voters should be able to do itthemselves without having to go through the process a second and thirdtime because the answers are so unclear. Let us hope that the SupremeCourt decision in Shrink PAC will bring a much needed clarity to thetopic.


The Clerk shall enter JUDGMENT for the defendants on Counts One and Twoof the Daggett, et al. Complaint, and the First and Second Claims forRelief for the Stearns, et al. Complaint, except as to the challenge ofthe $500 limit on contributions to gubernatorial candidates, which isDis. MISSED WITHOUT PREJUDICE, and the challenge to the $250 contributionlimit on contributions by political parties, which is DISMISSED for lackof standing. Fees and costs are DENIED.



The judicial fact-finding role in assessing the constitutionality ofelectoral legislation is highly problematic. The evidence a judge isasked to evaluate may never have been presented to the legislature or, inthis case, the voters. A judge may be asked to uphold or strike down alaw on evidence that did not even exist at the time of its passage.Here, for example, I have been given, and asked to draw inferences from,a poll of Maine citizens' views on campaign finance, corruption andinfluence, see Celinda Lake & David Mermin, Public Attitudes on CampaignFinancing in Maine (1997), but it was taken after this law was voted intoeffect. I have also been favored with the divergent opinions of some ofAmerica's brightest lights on campaign finance — perhaps expressedpreviously in other states, but focused on the Maine experience only forthis lawsuit. It has made for fascinating reading for a trial judgeaccustomed to sentencing guidelines — political scientists who havespent their professional lives studying the election process; journalistswho have done the same; Chicago School economists (or rational choicetheorists) who see it all as a market question (the commodity beinggovernmental largess); and local Maine politicians talking about how theyraise money, campaign for votes, and deal with contributors once they arein office. Not only do they vehemently and intelligently disagree witheach other, but, in addition, none of this was available to the voterswho enacted the law.24

Am I, as an unelected judge, to use this new and contestedinformation, then, to uphold or strike down the law?25 And if I am tomake findings about the behavior of Maine's body politic in assessing theconstitutionality of the legislation, is my focus to be now, as I makethis decision; or as of later in the year, as the campaigns becomeactive; or as of 1996, when Maine voters enacted the law; or as of thelast election in 1998; or some other date? The Brandeis brief, from whichthe practice of courts using data like this appears to derive, presentedevidence that would uphold the constitutionality of legislation if itwere believed. "Brandeis did not argue that the data were valid, onlythat they existed." McCleskey v. Kemp, 753 F.2d 877, 888 (11th Cir. 1985)(quoting Peter W. Sperlich, Social Science Evidence and the Courts:Reaching Beyond the Advisory Process, 63 Judicature 280, 285 n. 31(1980)). In other words, the Brandeis brief presented evidence that thelegislature or the voters could have accepted if it had been presented,and thus contributed to the presumed constitutionality of legislation.

In the First Amendment context, on the other hand, the Supreme Courthas said that the burden of proof to justify legislation is on thestate. A judge is therefore presented with data and analyses by anattacking party — data and analyses not available to the voters orthe legislature when the statute became law — which the judge isthen asked to believe and to use to strike down the legislation. Inassessing the evidence a judge is asked to make credibilitydeterminations, where those decisions on credibility might be completelydifferent from what the legislature (or the referendum voters) wouldmake. Here, for example, the parties devote great portions of theirbriefs to whether I should believe the analysis and conclusions of ColbyCollege Professor Anthony Corrado about the effect of the newcontribution limits on Maine campaigns. See, e.g., Proposed Findings ofFact at ¶¶ 174-200; Defs.' Trial Br. at 44-45; Daggett Pls.' Post— Hr'g Reply Br. at 10-15; Stearns Pls.' Reply Br. at 11-19. Thedispute is particularly bitter because the plaintiffs first announcedthat they were going to hire Professor Corrado and gave an earlydisclosure that he would oppose the reduced contribution limits, as hehad in other cases. See PL. Daggett's Designation of Expert Witness at4-6, National Right to Life PAC v. Webster, 1997 WL 703388, No.96-359-P-H. Ultimately, however, Professor Corrado determined that Mainewas different from his other assignments and that the reduced limits werejust fine. See Corrado Dep. at 243 ll. 6-15, 244 1. 21-245 1. 3. Heagreed ultimately to testify for the defendants. It is very troublingthat a statute's constitutionality could be so heavily dependent —at least as the parties understand how this area of First Amendment lawoperates — on how a particular judge might assess the credibility ofan

1. I am aware of the many trial and appellate court cases on thistopic in the 24 years since Buckley first addressed the issue. The limitsstruck down (the vast majority of cases) have ranged from $100 to$1,075. See, e.g., Carver v. Nixon, 72 F.3d 633 (8th Cir. 1995)(declaring unconstitutional a $100 contribution limit); Shrink Mo. Gov'tPAC v. Adams, 161 F.3d 519 (8th Cir. 1998) (declaring unconstitutional a$1,075 contribution limit), cert. granted sub nom Nixon v. Shrink Mo.Gov't PAC, 525 U.S. 1121, 119 S.Ct. 901, 142 L.Ed.2d 901 (1999). Thoseupheld have ranged from $500 to $1,000. See, e.g., Alaska v. Alaska CivilLiberties Union, 978 P.2d 597 (Alaska 1999) (up holding a $500contribution limit); Kentucky Right to Life, Inc. v. Terry, 108 F.3d 637(6th Cir. 1997) (upholding a $1,000 contribution limit). There are nopertinent First Circuit opinions. My analysis here does not deal with orattempt to harmonize this multitude of trial and appellate decisions fromother jurisdictions. Because the Supreme Court is on the verge of makinga new pronouncement in Shrink PAC, those lower court precedents seemparticularly fragile. Therefore, I limit myself to controlling SupremeCourt precedents.

2. I discuss the judicial factfinding role for this kind of case atgreater length in an Appendix.

3. By "more restricted," I mean that the population and geographicsize of a Maine House or Senate district is far smaller than many largerstates. Within Maine there are 151 House districts and 35 Senatedistricts.

4. This "indexing" approach is problematic; after all, "it is aConstitution we are expounding." M'Culloch v. State of Maryland, 17 U.S.(4 Wheat.) 316, 407, 4 L.Ed. 579 (1819). The document — and itsinterpretation — should not be tied to inflation, the cost ofliving or formulas for campaign costs. The $20 measure for the right to ajury trial in a civil case in federal court, see U.S. CONST. amend. VII,still governs us in 2000 even though the worth of that measure datingfrom 1791 is many times over today. The $100 reporting requirementthreshold approved by Buckley in 1976 had been in existence since 1910.See 424 U.S. at 60-84, 96 S.Ct. 612 (discussing2 U.S.C. § 434(b)).

5. The Court elaborated:

A contribution serves as a general expression of support for the candidate and his views, but does not communicate the underlying basis for the support. The quantity of communication by the contributor does not increase perceptibly with the size of his contribution, since the expression rests solely on the undifferentiated, symbolic act of contributing. At most, the size of the contribution provides a very rough index of the intensity of the contributor's support for the candidate. A limitation on the amount of money a person may give to a candidate or campaign organization thus involves little direct restraint on his political communication, for it permits the symbolic expression of support evidenced by a contribution but does not in any way infringe the contributor's freedom to discuss candidates and issues. While contributions may result in political expression if spent by a candidate or an association to present views to the voters, the transformation of contributions into political debate involves speech by someone other than the contributor.

424 U.S. at 21, 96 S.Ct. 612 (footnote omitted).

6. I use the term broadly to encompass the amici who were granted"amicus plus" status and actively participated in assembling the record,and briefing and arguing the case.

7. I do not rely on burden of proof to reach my conclusion on thispoint, but I observe that the burden of proof to demonstrate that thecontribution restrictions have a severe impact on candidates' speechlogically should rest with the challengers. If the impact is proven, thenthe burden would shift to the State to justify this incursion under FirstAmendment principles. (Buckley did not address this burden of proofissue.)

8. The plaintiffs argue, without reference to the record, that in aspecial election, "[i]t is far easier to raise money [because] there is nocompetition from other" campaigns. See Daggett Pls.' Post — Hr'gReply Br. at 15 n. 6. I have no way to evaluate the accuracy of thatassertion as it applies to the Lewiston election.

9. Because the constitutionality of Maine's public funding provisionfor election campaigns is still under attack by appeal of my recentdecision, see Daggett v. Webster, 74 F. Supp.2d 53 (D.Me. 1999) (findingconstitutional the Maine Clean Election Act public funding program),appealed sub nom. Daggett v. Commission on Governmental Ethics, No.99-2243, Nov. 17, 1999 (oral argument held Jan. 5, 1999), I do not relyupon the availability of public funding in reaching this conclusion. Amongother things, the size of the public funding has been attacked asinadequate. If Maine's public funding ultimately is upheld, however, itprovides one more basis for concluding that resources for effectiveadvocacy will be available, at least for candidates who avail themselvesof that option.

10. The Court has made clear that contribution limits require "lesscompelling justification" than spending restrictions. See, e.g., FEC v.Massachusetts Citizens for Life, Inc., 479 U.S. 238, 259-60, 107 S.Ct.616, 93 L.Ed.2d 539 (1986) (citing cases). I will not engage in thedebate whether the "closely drawn" standard is nevertheless the same as"strict scrutiny." Perhaps the Supreme Court will address that semanticconfusion in Shrink PAC.

11. To date, the Court has recognized only the first as a compellinggovernmental interest. See, e.g., FEC v. National Conservative PAC("NCPAC"), 470 U.S. 480, 496-97, 105 S.Ct. 1459, 84 L.Ed.2d 455(1985).

12. In NCPAC the FEC had tried to justify a limit on independent(noncandidate) spending for political advocacy by arguing thatpoliticians might change their position in response to that politicalspeech. That, the Court pointed out, is hardly corruption; it is how thesystem is supposed to work. See 470 U.S. at 498, 105 S.Ct. 1459. Thus, inelaborating upon the conditions of political "corruption" in NCPAC, theSupreme Court was dealing with expenditure limitations. (Theconstitutional constraints are more stringent for expenditure limitationsthan for contribution limits. See n. 9, supra.) Here, on the other hand,we are talking about direct contributions of cash to a candidate, a muchmore open invitation to abuse.

13. Here, the record certainly supports what common sense teaches:contributions bring at least access and influence, whether that processis called corrupt or not. And although I decline to take sides in thepolitical scientists' debate on what really is corruption and on theexpert disputes about influence and politics, I recognize that influencecannot be measured solely by what happens on high profile votes.Influence also counts in all the unseen political decisions — thedecision on what gets reported out of Committee, the timing oflegislation's being taken up on the floor, the creation of thelegislative history, are only some examples.

14. Unlike some of the other lower courts that have considered thistopic, I am skeptical of the argument that a state can justify its lawsbased only upon conditions within that state's borders. In thisinformation/media age, where citizens are as aware of what is happeningin Miami Beach, Florida, and Washington, D.C., as in Rumford, Maine, wecannot demand that either citizens or legislators ignore trends or eventselsewhere. National scandals naturally and understandably affectcitizens' attitudes toward their own politicians and thus the publicawareness of opportunities for abuse.

15. or 22.4 percent of 1998's most expensive House race and 14.7percent of 1998's most expensive Senate race. See 1997-98 Commission onGovernmental Ethics and Election Practices Biennial Report 16, 11.

16. That large contributions are rare underscores their risk; ifeveryone were making them, the risk of special favors would bereduced.

17. Buckley was hardly the beginning of the concern with thiscorrupting potential of large contributions. Justice Frankfurtersummarized the long history of this topic, starting with the post-CivilWar era, in United States v. UAW-CIO, 352 U.S. 567, 570-84, 77 S.Ct.529, 1 L.Ed.2d 563 (1957).

18. Only one thing has given me pause concerning the weight of theState's interest here. Specifically, the fourth note in the Statement ofFact accompanying the bill stated: "Election campaign spending is reducedby limiting the amount of money that [PACs], committees, corporations,associations and individuals may contribute to candidates notparticipating in the [public funding program] and by capping campaignexpenditures of certified [publicly funded] candidates." See Statement ofFact accompanying An Act to Reform Campaign Finance, L.D. 1823 (I.B.S),117th Me. Leg., 2d Reg. Sess., not enacted Mar. 30, 1996 (Sen.), Apr. 1,1996 (House). The statement appeared with the draft bill that theLegislature rejected, and presumably in the petition circulated by thebill's proponents. Arguably, it could be read to suggest that the purposeof the legislation was to limit campaign spending, an impermissiblepurpose under Buckley. See 424 U.S. at 39-51, 143, 96 S.Ct. 612 (strikingdown FECA's spending limits). I do not so construe it because theStatement of Fact is drafted by the Reviser of Statutes at the Secretaryof State's direction in accordance with 21-A M.R.S.A. § 901(5) (WestSupp. 1999). It appears to be only a description by that officer of whatthe consequence of the legislation will be. Buckley held thatcontributions could be limited: limiting contributions logically will inturn limit campaign spending.

The search for legislative purpose or motive is always dangerous; it iseven more difficult in the case of an initiative or referendum involvingall the voters, where it is impossible to know what the multitude read,heard or believed in deciding how to vote.

19. Indeed, this kind of argument was rejected expressly in Buckley.There, the challengers had argued that the $1,000 limit "isunrealistically low because much more than that amount would still not beenough to enable an unscrupulous contributor to exercise improperinfluence over a candidate or office holder. . . ." 424 U.S. at 30, 96S.Ct. 612. That argument prompted the Court's rejection of requiring thelegislation to engage in "fine tuning." Id.

20. The plaintiffs also call upon the principle that one whose FirstAmendment interests are not directly attacked may nevertheless challengelegislation that intrudes on someone else's First Amendment interestsbecause that other person may be deterred from challenging it herself.See Daggett Pls.' Post — Hr'g Reply Br. at 21 (citing Village ofSchaumburg v. Citizens for a Better Env't, 444 U.S. 620, 100 S.Ct. 826,63 L.Ed.2d 73 (1980)). The argument misses the mark. Overbreadtharguments are used in a First Amendment case where the statutoryprovision under attack constitutionally can apply to the person attackingit but might be unconstitutional as applied to someone else. See 444U.S. at 633-34, 100 S.Ct. 826. But the person attacking it still musthave standing. Here, the plaintiffs are trying to attack a provisionthat, except for the Libertarian Party, does not even apply to them, andthe Libertarian Party has made no showing that it is realisticallyaffected. As a result, they have no standing. Moreover, there is littlecall for an overbreadth analysis here. Major political parties have shownlittle hesitation in challenging campaign laws at both the state andnational levels. See, e.g., Missouri Republican Party v. Lamb,31 F. Supp.2d 1161 (E.D.Mo. 1999) (challenging state law limits onpolitical party contributions); RNC v. FEC, 487 F. Supp. 280 (S.D.N.Y.)(challenging public financing of presidential campaigns), aff'd,445 U.S. 955, 100 S.Ct. 1639. 64 L.Ed.2d 231 (1980) (Mern.).

21. On the same basis I reject the assertion that the new limitssomehow amount to invidious discrimination against the First Amendmentrights of challengers. The argument seems to be that a challenger needsto raise more than an incumbent so as to be able to unseat theincumbent. Assuming that can be proven, it seems equally likely that thecontribution limits might help the challenger because they limit theincumbent's access to large contributions that might otherwise be easierfor an incumbent to obtain. See 424 U.S. at 32-33, 96 S.Ct. 612. There isalso the impact of public funding to take into account. In any event, Iconclude that this is too speculative an argument upon which to base aconstitutional challenge.

22. "Many features of our political system — e.g., single-memberdistricts, `first past the post' elections, and the high costs ofcampaigning — make it difficult for third parties to succeed inAmerican politics." Timmons v. Twin Cities Area New Party, 520 U.S. 351,362, 117 S.Ct. 1364, 137 L.Ed.2d 589 (1997) (upholding a Minnesotastatute prohibiting a candidate from appearing on the ballot as thecandidate of more than one party).

23. I recognize the argument that limiting contributions has its ownset of pernicious consequences and seems to favor independently wealthycandidates, see, e.g., Colorado Republican Federal Campaign Comm. v.FEC, 518 U.S. 604, 635-40, 116 S.Ct. 2309, 135 L.Ed.2d 795 (Thomas, J.,concurring in the judgment and dissenting in part), but so long ascontribution limits are upheld by the Supreme Court, the amount of thelimits should not suffer intensive second guessing by thejudiciary.

24. I have also been given a file of press clippings.

25. The Edmonds amici have proposed some 367 findings of fact to me onthe contributions topic. See Proposed Findings of Fact.

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