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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 a federal judge (Martha Vazquez) throttled the First Amendment.

A provision of the Albuquerque City Charter limits expenditures by mayoral candidates and 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 Court’s 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 campaign (New Mexicans for Bill Richardson v. Gonzales) — Judge Vazquez refused to enjoin enforcement of the Albuquerque expenditure cap.

Even though a federal district judge like Martha Vazquez 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 Judge Vazquez violated her oath.

Buckley, decided in 1976, was decades old, she noted. (One wonders how Judge Vazquez would react to the argument that Roe v. Wade, decided in 1973, has lost its vitality after nearly three decades.)

Then, there were some non-binding statements from lower courts, whose ideas apparently impressed Judge 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 Mr. 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, Judge Vazquez 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 Vazquez — 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 insure an equal playing field regardless of one’s financial resources, thus eliminating or at least reducing reliance on "special interests."

Mr. Homans immediately appealed to the United States Court of Appeals for the Tenth Circuit. That court promptly reversed Judge Vazquez, 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 Judge 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, Judge 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 of the United States of America.