I read your article ____ Vazquez Oversteps Judicial Bounds By HENRY MARK HOLZER First Amendment Scholar Before a person or object can be unthrottled, there must first be a throttling. And that’s what happened in New Mexico last week, when U.S. District Judge Martha Vazquez throffled the First Amendment. A provision of the Albuquerque City Charter limits expenditures by mayoral candidates arid punishes violation with fines, reprimand and even removal from office. Candidate Rick Homans overspent. He sued, claiming that the charter provision violated his rights under the First Amendment to the Constitution. Homans relied on the Supreme Courts decision in Buckley v. Valeo that spending money for electoral purposes was a form of speech protected by the First Amendment. Although Buckley is quite clear on this point — and although some years ago, in a case of mine, a colleague of Judge Vazquez had declared unconstitutional a New Mexico statute providing that funds raised for a federal election (i.e., Congress) could not be used in a state election cam- paign (New Mexicans for Bill Richardson v. Gonzales) — Vazquez refused to enjoin enforcement of the Albuquerque expenditure cap. Even though a district judge like Vdaquez is bound by higher-court precedent, and even though it is the sworn constitutional duty of federal district judges to apply those precedents, in the Homans case Vazquez violated her oath. Buckley, decided in 1976, was decades old, she rioted. One wonders how Vazquez would react to he argument that Roe v. Wade, decided in 1973, rias lost its vitality after nearly three decades. Then, there were some non-binding statements from lower courts, whose ideas apparently impressed Vazquez. There is, she said, an “abundance of judicial commentary on compelling governmental interests which fall outside the ambit of Buckley”’ — on the basis of which she found that the Albuquerque expenditure cap fostered such interests. How? By preserving faith in democracy and reducing the appearance of corruption. In other words; because there is some non-binding language in some lower court cases, despite what the Supreme Court held in Buckley, it was constitutionally permissible for Albuquerque to punish Homans for spending more than the good citizens of that city thought he should spend — even if it was his own money — in aid of his mayoral aspirations. In addition, Vdaquez claimed that the Supreme Court was currently divided over the scope of Buckley. However, in making this claim she failed to note the distinction that case made between permissible restrictions on campaign contributions and impermissible restrictions on campaign expenditures, the latter being the only aspect of the Albuquerque cap being challenged by candidate Homans. Finally, Judge Vdaquez — confusing her role in our constitutional separation of powers system with that of the elected and politically accountable Legislature — observed that the public. favors spending limits because they supposedly improve the fairness of elections and ensure an equal playing field regardless of one’s financial resources, thus eliminating or at least reducing reliance on “special interests.” Homans immediately appealed to the 10th U.S. Circuit Court of Appeals. That court promptiy reversed Vaquez, ruling, in essence, that she had misread and failed to be bound by Buckley, and refuting every one of the “reasons" she had offered in support of her refusal to enjoin enforcement of the Albuquerque charter provision. The important point here, however, transcends Vazquez's refusal to enjoin a patently unconstitutional law. It transcends the Court of Appeals’ summary reversal of her lawless conduct. Why Judge Vazquez refused to enjoin enforcement of a patently unconstitutional law is the most important part of this story. She refused because, like many judges, Vazquez apparently believes that it is an appropriate function of courts to make policy decisions rather than to interpret and apply the Constitution and laws that judges are sworn, to uphold. As a federal judge with lifetime tenure, Martha Vazquez is not politically accountable. That lack of accountability too often spawns a judicial arrogance that can be checked in only two ways. One, as we have just seen, is through reversal by a higher court. The other is through the appointment process for federal judges. Those who revere and understand the irreplaceable value of the First Amendment must insist that, like the president of the United States, appointed federal judges take seriously their duty to “preserve, protect and defend” not only the First Amendment, but the entire Constitution. A member of the New York Bar and a First Amendment Fellow of the National Press Club, Henry Mark Holzer is professor emeritus at Brooklyn Law School and co-author of the soon to be published “Aid and Comfort: Jane Fonda in North Viet. Nam. He may be contacted at HankHolzer@aol.com. ______ in the abq journal on saturday september 16, 2001. We sued Vazquez some time ago. This lawsuit is active in both state and federal courts. But this is why we are suing again. http://www.geocities.com/CapitolHill/Congress/8327/ Our september 10 ultimatim was ignored. Keep up-wind http://www.geocities.com/CapitolHill/Congress/8327/buehlerpayne.html