A voice at the polls

When money dictates who can truly speak in an election, then a fundamental American value is lost

COMMENTARY

By Derek Cressman

Cynics say that you can't fight City Hall, but Albuquerque residents now have City Hall fighting for them.

The opponent is none other than the U.S. Supreme Court, and the future conduct and outcome of Albuquerque's elections hangs in the balance. At stake are the city's mandatory limits on how much candidates can spend to get elected to the Mayor's Office and City Council.

Albuquerque voters enacted spending limits back in 1974, passing a citizen initiative by a practically unheard of 90 percent margin. But lower courts recently suspended the limits, and only the Supreme Court can now reinstate them.

Sometimes the Supreme Court just plain gets things wrong. Prominent examples include the court's upholding of slavery in the Dred Scott decision, upholding the flawed concept of separate but equal education, upholding poll taxes and striking down even the most basic child labor laws at the turn of the last century.

The supreme mistake that now threatens Albuquerque came in the Supreme Court's 1976 ruling, Buckley v. Valeo. In Buckley, the court struck down mandatory spending limits that had been enacted by Congress, arguing that unlimited spending in elections was the same thing as free speech and that Congress had presented no compelling reasons for why that speech should be limited.

From 1976 to 1991, Albuquerque conducted its elections as if in a virtual time warp. While cities and states across the country repealed their mandatory spending limits to comply with the Buckley ruling, Albuquerque simply left them on the books. Impressively, candidates did not challenge them, agreeing instead to abide by the rules the voters had set.

The limits have served the city well. Incumbent mayors have been unable to amass war chests of special-interest cash to scare off or defeat challengers. In fact, incumbents have lost the mayor's race five times since 1974. That compares to the 98 percent re-election rate for Congress, where the lack of spending limits mean challengers are outspent seven-to-one by incumbents.

Some 71 percent of Albuquerque residents feel that the spending limits have improved fairness in city elections - perhaps one reason why voter turnout has been higher than most other localities without spending limits.

Time caught up with Albuquerque in 1997, when Joe Diaz ran for mayor and decided he wanted to outspend his opponents. He challenged the limits in court, and they were temporarily suspended. Diaz ultimately didn't pursue his lawsuit after losing the mayor's race, but he did set the stage for the limits to be challenged again. They were suspended by lower courts in 2001 and have not been in effect since then.

Albuquerque has stood up to the challenges and plans to appeal the lower-court rulings to the U.S. Supreme Court later this month. Albuquerque's citizens and local government deserve praise for not caving in to the wealthy interests and being willing to take the case all the way up to the Supreme Court.

While it's always an uphill battle to get the Supreme Court to amend or reverse a previous decision, there are some reasons to be hopeful. In a recent decision, Justice Stevens pointedly rejected the logic of Buckley, saying, "Money is property, it is not speech." Justices Ginsburg and Breyer have also suggested that they, too, might be wiling to revisit Buckley. Justices O'Connor and Souter have also joined majorities on the court in upholding significant campaign finance restrictions in the last four years.

The court has surprised both proponents and opponents of campaign reform in its last two major decisions dealing with the matter. In 2000, the Supreme Court reversed several lower courts and upheld state's rights to set low limits on contributions. In 2003, the court upheld nearly all provisions of the McCain-Feingold law and issued language that suggested Congress could have gone even further than it did in cracking down on the influence of big donors on the political process.

So it would seem that at least some justices are beginning to understand what Albuquerque residents have known for the past 30 years. When money is speech, then speech is no longer really free. Rather, the tiny percentage of people who give big money to campaigns can buy a lot of speech, and the rest of us are left to listen to the powerful interests while having little voice of our own.

Cressman directs TheRestofUs.org, a Sacramento, Calif., based group which describes itself as a "watchdog over the role of big money in politics." The group is part of a coalition including the National Voting Rights Institute, which is assisting Albuquerque in its appeal.

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