BY HOWARD WILKINSON
The Cincinnati Enquirer
A federal appeals-court panel has struck down Cincinnati's 1995 campaign-spending law, setting the stage for an appeal to the U.S. Supreme Court, if city council opts to pursue the case.
A three-judge panel of the U.S. Court of Appeals for the 6th Circuit in Cincinnati on Monday upheld a decision by U.S. District Court Judge Herman Weber that the Cincinnati law violates Buckley v. Valeo, a 22-year-old Supreme Court decision that determined limiting candidates' spending restricts their free-speech rights.
The city, the judges said, "failed to advance any governmental interest" served by spending limits that outweighed the free-speech rights set out in the Buckley case.
The city had asked the appeals court to send the local case back to the U.S. District Court for a trial, but the appeals court judges refused.
In 1995, Cincinnati City Council, on a 5-4 vote, adopted a spending-limits ordinance that set a limit for council candidates of three times a council member's salary, or about $140,000.
Republican council candidate John Kruse, who ran twice and lost, filed suit in U.S. District Court -- saying the law violated the Constitution. He cited the Buckley decision. The law has been held in abeyance since the appeal.
Judge Weber, without holding a trial, found in favor of Mr. Kruse in January 1997. The city appealed to the U.S Court of Appeals for the 6th Circuit. A three-judge panel of Cornelia Kennedy, Eugene Siler Jr. and Avern Cohn heard arguments in the case last month. Campaign finance reform advocates around the country have been following the Kruse case, hoping it would be the one that persuades the U.S. Supreme Court to overturn the Buckley decision.
Now it will be up to city council to decide whether to pursue the case.
"I have no reason to believe that a majority of council will not want to move ahead with this," said Councilman Todd Portune, author of the 1995 law. "When we embarked on this journey three years ago, we always assumed that we would have to take it to the U.S. Supreme Court."
The city's case has been argued by lawyer John Bonifaz of the Boston-based National Voting Rights Institute. Monday, Mr. Bonifaz said he would consult with city officials before deciding the next step.
The options, Mr. Bonifaz said, are three-fold: The city could petition for a rehearing of the case before the full panel of 6th Circuit judges; it could try to persuade the U.S. Supreme Court to hear the case; or council could decide not to appeal.
Early in the case, City Council budgeted about $200,000 to defend the spending-limits law. Critics now say it is time for the city to drop the case.
"The city has litigated this at the cost of hundreds of thousands of dollars on a case that was decided 22 years ago," said Kruse attorney Christopher Finney.
Mr. Kruse said Monday he was pleased with the decision, but said he feels "continuing outrage at the amount of money being spent by the city on this case."
Last year, Republican Councilman Charles Winburn tried to get council to withdraw the appeal, but lost on a 5-4 vote. Mr. Winburn said he would try again.
"The sooner this is over, the better," Mr. Winburn said Monday. In their 28-page opinion, the three judges rejected every point city lawyers had made in their argument that special circumstances factored into the Cincinnati case that didn't exist when the Buckley case was decided.
Mr. Bonifaz and other city lawyers argued that the costs of campaigning in Cincinnati are "out of control" and that the spending-limits law "levels the playing field" for candidates who do not have access to large amounts of money.
"It's unfortunate that the panel ignored the phenomenon of a handful of candidates buying up all the prime TV time early in the campaign," Mr. Bonifaz said.
