NVRI

Legal Library

No. 98-737

In The

Supreme Court of the United States

October Term, 1998

JONATHAN W. MARSHALL, et. al.
Petitioners,

v. RONALD SUSTER, et. al.
Respondents.
 

ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

BRIEF IN SUPPORT OF PETITION FOR CERTIORARI OF THE SECRETARIES OF STATE OF CONNECTICUT, GEORGIA, MAINE, MINNESOTA, MISSISSIPPI, MONTANA, NEVADA, NEW HAMPSHIRE, NEW MEXICO, OREGON, RHODE ISLAND, SOUTH CAROLINA, TENNESSEE, WEST VIRGINIA AND WISCONSIN; CALIFORNIA FAIR POLITICAL PRACTICES COMMISSION; CAMPAIGN SPENDING COMMISSION OF HAWAII; REGISTRY OF ELECTION FINANCE OF KENTUCKY; AND THE ETHICS COMMISSION OF OKLAHOMA

AS AMICUS CURIAE IN SUPPORT OF PETITIONERS

BRENDA WRIGHT
Counsel of Record
JOHN C. BONIFAZ
GREGORY LUKE
National Voting Rights Institute
294 Washington Street, Suite 713
Boston, Massachusetts 02108
(617) 368-9100
Counsel for Amici Curiae
Secretaries of State/Chief Elections Officers

INTEREST OF AMICI

Amici include the following Secretaries of State: Miles S. Rapoport of Connecticut, Lewis A. Massey of Georgia, Dan A. Gwadosky of Maine, William Galvin of Massachusetts, Joan A. Growe of Minnesota, Eric Clark of Mississippi, Rebecca Cook of Missouri, Mike Cooney of Montana, Dean Heller of Nevada, William Gardner of New Hampshire, Stephanie Gonzales of New Mexico, Phil Keisling of Oregon, James Langevin of Rhode Island, Jim Miles of South Carolina, Riley C. Darnell of Tennessee, Ken Hechler of West Virginia, and Douglas J. La Follette of Wisconsin.[1] Amici also include Steven G. Churchwell, General Counsel, California Fair Political Practices Commission, Robert Watada, Executive Director of Campaign Spending Commission of Hawaii, George Russell, Director of Registry of Election Finances of Kentucky, and Marilyn Hughes, Executive Director of Ethics Commission of Oklahoma. In these positions, amici serve as chief election officers or supervisors of campaign finance in their States. They thus have considerable experience with the issues raised in this case, and in particular have witnessed the serious threats that unlimited campaign spending poses to the integrity and health of the political process.

Amici seek review of the Sixth Circuit's decision in this case because that court's interpretation of Buckley v. Valeo, 424 U.S. 1 (1976), threatens to stifle campaign reforms at the state and local level that are badly needed to preserve the health of our democratic system of government. A number of states and localities have enacted campaign finance regulations similar to the one at issue here, based on their belief that such regulations are necessary to combat widespread public cynicism about elected officials' ability to govern in the public interest. That cynicism is fueled by the reality that, as campaign spending by candidates for office increases exponentially, the need for unlimited campaign funds leaves candidates vulnerable to both the reality and appearance of improper influence by wealthy interests. Many more states and localities would doubtless enact regulations similar to those at issue here if permitted to do so under a proper interpretation of the First Amendment. Buckley should not be read to foreclose states and localities from responding to new compelling interests and new factual circumstances — not addressed 22 years ago in Buckley itself — which may justify reasonable limits on campaign spending.

STATEMENT

This case involves a regulation adopted by the Ohio Supreme Court, following extensive deliberation, that places reasonable limits on total campaign expenditures in elections for judicial office in Ohio. The current limits, set forth in Canon VII(C)(6)(a) of the Code of Judicial Conduct of the Ohio Supreme Court, are graduated based on the level of judgeship sought and, with respect to trial court elections, the population of the court's territorial jurisdiction. The plaintiffs and plaintiff-intervenors below all were candidates seeking election or re-election as judges for various courts of common pleas (the trial courts of general jurisdiction in Ohio). For those judgeships, the expenditure limits range from $125,000 for jurisdictions whose population exceeds 750,000 down to $50,000 for jurisdictions whose population is 100,000 or less.[2]

The Ohio Supreme Court adopted these expenditure limits in response to the serious threat to public confidence in the judicial system caused by ever-increasing spending in judicial campaigns. This spending, and the resultant dominance of money in determining judicial election outcomes, has created an intolerable public perception of "justice for sale," as amply documented by survey research and other evidence before the Ohio Supreme Court. In adopting reasonable expenditure limits for judicial races, the Ohio Supreme Court sought to limit the danger of actual quid pro quo corruption and, equally importantly, to combat the appearance of corruption that is inimical to public confidence in the system of justice.

The Sixth Circuit held that any expenditure limits for judicial elections are unconstitutional under the First Amendment as a matter of law, based on this Court's decision striking down limits on spending in federal campaigns for political offices in Buckley v. Valeo, 424 U.S. 1 (1976). App. A-1 - A-26. The Sixth Circuit's decision did not address the reasonableness of the particular limits adopted by the Ohio Supreme Court, nor did it give any weight to the differences between judicial election campaigns and campaigns for legislative or executive offices. Instead, the court below ruled that "the language of Buckley and its progeny have necessarily determined, irrespective of the kind of position sought, that any spending restriction in any electoral campaign process is an infringement on a candidate's First Amendment rights. . . ." App. A-13 (emphasis added).

REASONS FOR GRANTING THE PETITION

This case presents an issue of the most pressing national importance: whether, consistent with this Court's 1976 decision in Buckley v. Valeo, states may ever enact reasonable limits on campaign spending to serve compelling state interests, including the state's vital interest in maintaining public confidence in an impartial judiciary. Further, if Buckley properly is read as a per se ban on all spending limits, no matter what the factual context for their adoption, no matter what the nature of the office to which the limits apply, and no matter how reasonable the limits, this case presents the critically important question of whether Buckley, to that extent, should be overruled.

The Ohio Supreme Court is not alone in determining that, 22 years after this Court's decision in Buckley, unlimited campaign spending has come to threaten the health of our democratic institutions in ways never contemplated at the time Buckley was decided. Last year, the State of Vermont enacted campaign spending limits for its state elections, to take effect in the 2000 election cycle.[3] The City of Cincinnati enacted spending limits for city council campaigns in 1995.[4] Since 1974, the City of Albuquerque has maintained limits on campaign expenditures for its local elections.[5] This year, a special commission appointed by the Supreme Court of Pennsylvania issued a report recommending the adoption of limits on campaign spending in Pennsylvania judicial elections.[6]

States and localities increasingly are adopting and defending reasonable campaign spending limits because they have concluded that the enormous amounts of money now expended to win election to public office foster the appearance and reality of corruption in a manner that undermines the integrity of our democratic processes.[7] The reading of Buckley adopted by the court below, which prevents any thoughtful consideration of the justifications for spending limits, regardless of the facts or context, would stifle reforms that are widely perceived as necessary by state and local governments across the nation. Review of the Sixth Circuit's decision by this Court is thus a matter of paramount national interest.

Amici wish to emphasize two related reasons why this Court should review and reverse the Sixth Circuit's decision striking down Ohio's expenditure limits for judicial elections. First, it is critically important for this Court to make clear that Buckley does not foreclose consideration of new facts and new interests supporting state and local regulation of campaign spending, particularly interests that were never considered or discussed in Buckley itself. One such interest presented in this case is the compelling state interest in assuring that the need to raise ever-increasing amounts of money for judicial election campaigns does not compromise judicial independence and public confidence in the integrity of the elected judiciary. The impact of unlimited campaign spending on judicial elections and the integrity of the judicial process was never considered by this Court in Buckley. Accordingly, the court below erred in assuming that Buckley creates a per se bar to states' adoption of reasonable spending limits for judicial campaigns.

Second, the Sixth Circuit's decision rests on the erroneous assumption that, as a matter of law, contribution limits alone are sufficient to assure public confidence in the integrity of the election process. That assumption is flatly contradicted by this nation's 22 years of experience with relying on contribution limits alone as a shield against corruption and the appearance of corruption in electoral politics at the federal level. Under the current regime of limited contributions but unlimited spending, monied interests nevertheless exert overwhelming influence over the electoral process through practices such as bundling — that is, the coordinated donation of campaign contributions from individuals representing the same corporation, industry or special interest — and other stratagems.[8] 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 contribution limits where they exist. The uncritical assumption that contribution limits alone are sufficient to preserve the integrity of the electoral process is no longer sufficient, if it ever was, to justify the wholesale invalidation of reasonable regulations on campaign spending.

I. BUCKLEY DID NOT FORECLOSE STATES' RELIANCE ON NEW AND COMPELLING GOVERNMENTAL INTERESTS SUPPORTING CAMPAIGN SPENDING LIMITS. The Sixth Circuit improperly read this Court's decision in Buckley as foreclosing the possibility that spending limits for judicial election campaigns could be justified by Ohio's compelling interest in limiting the reality and appearance of improper influences on judicial decisionmaking. Buckley, which addressed spending limits only in the context of political campaigns for Congress and federal executive office, cannot be read as foreclosing consideration of a state interest in preserving judicial independence that was never discussed or even mentioned in this Court's 1976 ruling. Rather, this Court stated: "No governmental interest that has been suggested is sufficient to justify [the congressional campaign spending limits]." Buckley, 424 U.S. at 55 (emphasis added). The implication is clear that the door remains open to consideration of compelling governmental interests that were not suggested to the Buckley Court.

The important differences between judges and holders of political offices, such as legislators and executive officials, plainly have First Amendment significance. In legislative campaigns, for example, candidates are expected to vie for public support by stating the positions they will take on important public policy issues, and the content of such campaign statements cannot ordinarily be regulated by the government. See generally Brown v. Hartlage, 456 U.S. 45 (1982). The opposite is true of campaigns for judicial office. Thus, Canon VII(B)(2) of the Ohio Code of Judicial Conduct, like provisions adopted in many states that elect their judges, directly restricts the very content of permissible speech in judicial election campaigns. It provides:

A judge or judicial candidate shall not * * * [m]ake speeches for a political organization[,] * * * [m]ake pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office[,] * * * [make] statements that commit or appear to commit the judge or judicial candidate with respect to cases or controversies that are likely to come before the court. Such limitations on judicial campaign speech, despite the content restrictions they contain, repeatedly have been upheld by the courts.[9]

The decisions upholding restrictions on judicial election campaigns against First Amendment challenge rests on the state's compelling interests in assuring an impartial judiciary and preserving public confidence in the courts. Indeed, commentators have noted that restrictions on judicial campaigns are justified by the due process interests of the litigants who will appear before the court — interests that properly outweigh the judicial candidate's personal interest in unfettered political expression during a campaign. Randall Shepard, Campaign Speech: Restraint and Liberty in Judicial Ethics, 9 Geo. J. Legal Ethics, 1059, 1060 (1996).

These same compelling interests — which were never considered by the Buckley Court in addressing restrictions on federal election campaigns — deserve at least equal weight in determining the scope of permissible regulation of campaign spending in judicial elections. Indeed, because campaign spending limits, unlike direct restrictions on judicial candidates' campaign speech, are content-neutral, the case for permitting reasonable state regulation of such spending is even stronger.

A recent report by the ABA Task Force on Lawyers' Political Contributions notes the problems inherent in a regime of ever-escalating expenditures on judicial election campaigns:

Of course the greater the sums raised, the greater are all the problems: the pressure on lawyers to contribute, the judges' time and attention that will likely be given to fund-raising, the judges' dependence — or appearance of dependence — on the fund-raisers and the contributors, and the erosion of public confidence.[10] The record before the Ohio Supreme Court amply demonstrated that these potential threats to public confidence in the judiciary have become a reality in Ohio. In 1980, $100,000 was expended on the election for Chief Justice of the Ohio Supreme Court; by 1986, the race for Chief Justice involved an expenditure of $2,700,000.[11] The escalating cost of competing for a judicial seat has fueled deep public cynicism about the integrity of Ohio's judicial system. In a survey commissioned by the Ohio Supreme Court and conducted by the University of Cincinnati Institute of Public Policy, 89% of respondents said they believed that "decisions made by judges in their courtrooms are influenced by contributions made to their election campaigns" at least some of the time, with 23% of these respondents saying that decisions were so influenced most of the time, and another 8% saying that judicial decisions were always influenced by campaign contributions. Affidavit of Professor Alfred Tuchfarber (reporting on survey research). Respondents also believed that campaign spending limits would be the most useful method of limiting the influence of contributions on judicial decisions, with 89% believing that such limits would be at least somewhat useful. Id. Such documentation of the loss of public confidence in the judiciary provides crucial support for the reforms adopted by Ohio. SeeCSC v. Letter Carriers, 413 U.S. 548, 565 (1973) (observing thatavoiding appearance of improper influence "is also critical . . . if confidence in the system of representative Government is not to be eroded to a disastrous extent.")

Ohio's concerns about the public's eroding confidence in the elected judiciary are echoed by findings in other states where spending in judicial elections has undergone dramatic increases. In March 1998, a special commission appointed by the Pennsylvania Supreme Court to investigate judicial campaign spending concluded that the public's growing distrust of the judiciary's impartiality necessitated the adoption of limits on campaign spending:

The Commission was . . . moved to urge the adoption of this reform [spending limits] because without it the "dash for cash" identified as a root cause for citizen distrust would not only continue but will increase dramatically. Such skyrocketing campaign expenditures and the apparent disastrous effect upon the perception of judicial integrity caused thereby, have prompted other jurisdictions to move ahead with this concept despite Buckley.[12] A survey conducted for the Commission to assess public attitudes toward judicial campaign expenditures demonstrated that "[v]oters in Pennsylvania strongly believe that the amount of money in judicial elections threatens both the integrity and fairness of those elections, as well as the rulings that judges make in their courtrooms."[13]

Other states as well, from Alabama to Wisconsin, have seen dramatically escalating spending on judicial elections,[14] turning judicial campaigns into an arms race in which greater and greater amounts of money must be raised by judicial candidates, often from the very lawyers and litigants who appear before the courts. As the ABA Task Force on Lawyers' Political Contributions has noted:

[F]or many litigants, one case is all that matters. We are told that it is not uncommon practice for a potential client to ask an attorney what, if any, relationship the attorney has with a particular judge; further, that many attorneys will include in their response that, e.g., they were on the judge's reelection committee or were a major contributor.[15] Ever-increasing campaign expenditures not only threaten the integrity of the judicial system by making campaign contributors ever more important to judicial candidates, but also by requiring judges to devote inordinate amounts of time to fundraising. States have a compelling interest in assuring that judges' time is not dominated by the need to amass campaign war chests. As noted by the ABA Task Force on Lawyers' Political Contributions, "[f]undraising and campaigning are often distracting and always take time: during at least most of a judge's years on the bench, she or he should judge, not campaign."[16] The state's compelling interest in freeing elected judges from fundraising burdens, like the state's overall interest in protecting judicial independence, provides a justification for spending limits that was never considered or discussed by this Court in Buckley.[17] II. CONTRIBUTION LIMITS ALONE ARE INSUFFICIENT TO PROTECT STATES' COMPELLING INTEREST IN PROTECTING THE INTEGRITY OF JUDICIAL ELECTIONS. The court below erroneously ruled that unlimited campaign spending poses no danger of corruption or the appearance of corruption in judicial elections so long as the amount that individual contributors may give to a candidate is subject to limits. App. A-19-20. This holding ignores reality.

When campaign spending is unlimited, a candidate's need for money is also unlimited, because the candidate can never be sure whether his or her opponent will raise greater funds and thereby obtain a campaign advantage. Limiting the amount that each individual or PAC may contribute does little to alleviate this problem, because such limits do not affect the candidate's need to maximize the overall amount of money obtained from donors generally. The need for unlimited amounts of money, in other words, makes each additional donation of tremendous value to a candidate, and thus increases the candidate's dependence on potential contributors. Contributors allied with industries or special interest groups that can funnel large numbers of donations to the candidate are especially valuable under a regime of unlimited spending, and candidates thus become increasingly dependent upon such interests despite the existence of contribution limits.

By contrast, if overall expenditures are subject to an outside limit, the value to the candidate of each additional contribution decreases. A donor whose assistance may appear compromising can be turned away without dramatically harming the candidate's competitiveness, because the candidate has a greater ability to find those funds elsewhere and still remain on an even footing with challengers.

These dynamics explain why a regime of contribution limits combined with unlimited campaign spending has been a such a dismal failure in curbing corruption and the appearance of corruption at the federal level in the 22 years since Buckley. States should not be compelled to extend this failure to judicial elections.

Texas' experience is illustrative. Texas has become notorious for the battle that has raged between the trial lawyers (widely perceived as controlling Texas Supreme Court elections during the 1980s) and the insurance industry (now widely perceived as having wrested control of the court from the trial lawyers as a result of massive spending on judicial election campaigns during the 1990s). Texas adopted contribution limits for judicial elections,[18] but such limits clearly have not been successful in curbing the influence of special interest spending on judicial campaigns,[19] as highlighted by a recent "60 Minutes" broadcast on the subject:

[60 MINUTES CORRESPONDENT MIKE] WALLACE: Back in 1987, when we did the first piece here, where were the justices at that time getting their contributions from?

Mr. WALT BORGES: They were getting a lot of their contributions from the lawyers, the consumers' lawyers.

WALLACE: Plaintiffs' lawyers.

Mr. BORGES: Plaintiffs' lawyers.

WALLACE: Who won most cases?

Mr. BORGES: The studies that we?we did show that about 67 percent of the time, two-thirds of the time, the plaintiffs won the cases in 1987.

WALLACE: And today?

Mr. BORGES: Today, the defendant wins 69 percent of the time.

WALLACE: (Voiceover) By "defendant," Borges means the business and insurance companies who are being sued.

How do insurance companies fare before this court?

Mr. BORGES: The insurance companies win roughly 90 percent of the time.

WALLACE: What you're saying is it went 180 degrees the other way.

Mr. BORGES: The philosophy of the court has shifted. If there is a bias in 1985, there is now a bias in the . . . opposite direction in 1998.

CBS 60 Minutes, Justice for Sale, November 1, 1998, Transcript at 2-3.

Public opinion polls at the national level confirm that citizens on all sides of the political spectrum perceive both actual and potential corruption in government under the current system of unlimited campaign spending, notwithstanding the existence of federal contribution limits. Notably, in a 1996 poll taken directly after the November elections, Americans ranked the "power of special interest groups in politics" second only to "international terrorists" when asked to identify "major threats" to the future of the country.[20] A 1997 poll determined that three-quarters of Americans believe that "public officials make or change policy decisions as a result of money they receive from major contributors."[21] Further, although polls often used to show that voters trusted their own congressional representatives while decrying corruption in general, even that has changed. An August 1998 poll of voters in eight states showed that between 65% and 75% of voters now believe that campaign contributions affect the votes of their own senators on issues of concern to special interests.[22] The lesson from 22 years of experience since Buckley is clear: relying upon contribution limits alone is insufficient to prevent a debilitating loss of faith by citizens in the honesty of government.

When this Court issued its Buckley decision in 1976, both contribution limits and spending limits were new at the federal level. The Court's ruling striking down FECA's low spending limits on federal election campaigns should be recognized for what it was: an assessment that, on the record then before the Court, the new contribution limits alone appeared sufficient to protect the important governmental interests of preventing corruption and the appearance of corruption. As the Buckley Court found:

There is 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. Buckley, 424 U.S. at 55-56. This pivotal passage reveals that a key empirical judgment — drawn from the record — ultimately determined the constitutionality of the congressional campaign spending limits. For what if the record in Buckley had established that the "substantial criminal penalties" and the "political repercussions" were not sufficient to "police the contribution provisions?" Clearly, Buckley did not foreclose the possibility that a different factual record would justify the need for campaign spending limits.

In the alternative, if Buckley must indeed be read to preclude any consideration of changed facts and circumstances that could justify reasonable limits on campaign spending, this Court should now revisit that ruling. A ruling forever closing the door to the lessons of governmental experience with unlimited campaign spending runs contrary to the constitutional responsibilities of this Court. As this Court stated in Planned Parenthood v. Casey, 505 U.S. 833, 864 (1992):

In constitutional adjudication as elsewhere in life, changed circumstances may impose new obligations, and the thoughtful part of the Nation could accept each decision to overrule a prior case as a response to the Court's constitutional duty. CONCLUSION

The petition for certiorari should be granted.

Respectfully submitted,
 
 

Brenda Wright
Counsel of Record
John C. Bonifaz
Gregory Luke
NATIONAL VOTING RIGHTS INSTITUTE
294 Washington Street
Suite 713
Boston, Massachusetts 02108
(617) 368-9106
Counsel for Amici Curiae

December 1998

FOOTNOTES

[1] Pursuant to Rule 37.6, amici state that no counsel for any party has authored this brief in whole or in part, and no person or entity other than amici made a financial contribution to the preparation or submission of this brief.

[2] The limits currently in effect reflect an amendment to Canon VII(C)(a)(6) that was adopted by the Ohio Supreme Court prior to the Sixth Circuit's consideration of the petitioners' appeal. Prior to that amendment, a uniform expenditure limit of $75,000 applied to all judicial candidates for any court of common pleas, municipal court, or county court.

[3] Vt. Stat. Ann. Tit. 17, § 2805a.

[4] City of Cincinnati Ordinance No. 240-1995. Cincinnati's spending limits also have been struck down by the Sixth Circuit. Kruse v. City of Cincinnati, 142 F.3d 907 (6th Cir. 1998), cert. denied, 67 U.S.L.W. 3336 (U.S. November 16, 1998).

[5] Albuquerque, New Mexico Charter, Election Code, art. XII, § 4.  See Robert Zausner, Campaign spending limit? In Albuquerque, it's old hat, Philadelphia Inquirer, October 23, 1998, A-1; Dana Milbank, Renewed Battle Brewing on Campaign-Spending Caps, The Wall Street Journal, March 24, 1998, A-23.

[6] Special Commission to Limit Campaign Expenditures, Report (1998).

[7] The United States Congress has also demonstrated interest in employing spending limits for federal elections.  Members of Congress have introduced campaign spending limit bills eleven times since this Court's ruling in Buckley.  S. 1684, 98th Cong. § 1 (1983); S. 1185, 98th Cong. § 1 (1983); S. 59, 99th Cong. § 1 (1985); H.R. 2473, 100th Cong. § 1 (1987); H.R. 1456, 101st Cong. § 1; H. Res. 168, 103rd Cong. § 1 (1993); H.R. 3571, 103rd Cong. § 1 (1993); H.R. 3651, 104th Cong. § 2 (1996); H.R. 3658, 104th Cong. § 2 (1996); S. 1057, 105th Cong. § 1 (1997); H.R. 77, 105th Cong. §1 (1997).

[8] See, e.g., Fred Wertheimer and Susan Weiss Manes, Campaign Finance Reform:  A Key to Restoring the Health of Our Democracy, 94 Colum. L. Rev. 1126, 1140-1142 (1994); Jamin Raskin & John Bonifaz, Equal Protection and the Wealth Primary, 11 Yale L. & Pol'y Rev. 273, 326-327 ( 1993) (citing Larry Makinson, Center for Responsive Politics, Open Secrets:  The Encyclopedia of Congressional Money & Politics (2d ed. 1992).

[9] See Stretton v. Disciplinary Board of Supreme Court of Pa., 944 F.2d 137, 142 (3rd Cir.1991) (upholding restrictions preventing judicial candidates from commenting on issues likely to come before them as judges and from personally soliciting campaign contributions); Berger v. Supreme Court of Ohio, 598 F. Supp. 69, 75 (S. D. Ohio 1984), aff'd, 861 F.2d 719 (6th Cir. 1988) (upholding ban on campaign pledges on disputed legal or political issues); Ackerson v. Kentucky Judicial Retirement & Removal Comm'n, 776 F. Supp. 309, 315 (W.D. Ky. 1991) (upholding restrictions on judicial candidates' discussion of legal issues likely to come before court while permitting discussion on issues of court administration); Deters v. Judicial Retirement & Removal Comm'n., 873 S.W.2d 200 (Ky 1994), cert. denied, 115 S. Ct. 194 (1994) (same); In re Code of Judicial Conduct, 603 So. 2d 494 (Fla. 1992) (upholding canon prohibiting judges from publicly endorsing other candidates for office).

[10] American Bar Association Task Force on Lawyers' Political Contributions, Report and Recommendations Regarding Contributions to Judges and Judicial Candidates, (1998) (hereafter, "ABA Task Force Report"), at 16.

[11] Id. at 16.

[12] Special Commission to Limit Campaign Expenditures, Report (1998) at 10.

[13] Id. at 5.

[14] ABA Task Force Report at 15 & Appendix 3.

[15] Id. at 27-28 n.47.

[16] Id. at 48 n. 83.

[17] See generally Vincent A. Blasi, Free Speech and the Widening Gyre of Fundraising:  Why Campaign Spending Limits May Not Violate the First Amendment After All, 94 Colum. L. Rev. 1281 (1994) (discussing state interest in reducing fundraising burden on candidates generally as basis for constitutionality of reasonable spending limits).

[18] Tex. Elec. Code Ann. §253.155(a) and .157(Supp. 1997).

[19] Bill Medaille and Andrew Wheat, Texans for Public Justice, Payola Justice:  How Texas Supreme Court Justices Raise Money From Court Litigants, Summary (1998) (finding, among other things, that "[p]arties and lawyers with official business on the court's 1994-1997 docket - or contributors closely linked to these docket parties - contributed 40 percent ($3.7) million of the $9.2 million that the seven justices raised); see id. at 6, 30 (noting failure of contribution limits to stem electoral influence of parties and lawyers with business before the court).

[20] Princeton Survey Research Associates/Pew Research Center, Public Opinion Survey (November 1996).

[21] See Francis X. Clines, Most Doubt a Resolve to Change Campaign Finance Reform, Poll Finds, N.Y. Times, Apr. 9, 1997, at A1.

[22] The Mellman Group, Inc./Public Campaign, Public Opinion Poll (August 1998) (available at http://www.publiccampaign.org/).