                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                  February 8, 2005 Session

     JOHN JAY HOOKER v. SENATOR LAMAR ALEXANDER, ET. AL.

                    Appeal from the Chancery Court for Davidson County
                      No. 02-3754-I   Claudia Bonnyman, Chancellor




                     No. M2003-01141-COA-R3-CV - Filed May 20, 2005


Appellant was an independent candidate for election to the United States Senate in the November
5, 2002, election in which he was defeated by the present incumbent Lamar Alexander. He seeks
to have the election declared void on the basis that Alexander used his own money and accepted
campaign contribution in support of his candidacy. He alleges that such self financing arrangements
and campaign contributions financing violate the qualifications clauses and the equal protection and
due process clauses of both the Federal and State Constitutions. Named as defendants were Lamar
Alexander, Attorney General Paul Summers and the Lamar Alexander for Senate Committee. All
defendants filed Tennessee Rule of Civil Procedure 12.02(6) motions to dismiss, which motions
were granted by the trial judge. We affirm the actions of the trial court.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

WILLIAM B. CAIN , J., delivered the opinion of the court, in which PATRICIA J. COTTRELL, and FRANK
G. CLEMENT , JR., JJ., joined.

John Jay Hooker, Nashville, Tennessee, Pro Se.

Janet Kleinfelter and W. Scott Sims, Nashville, Tennessee, for the appellees, Lamar Alexander, Paul
Summers and the Lamar Alexander for Senate Committee.


                                            OPINION

        John Jay Hooker, for 40 years a prominent and colorful veteran of the political wars in
Tennessee, continues his crusade against what he considers to be a corrupt system for financing
elections in Tennessee. Having himself, at least in 1966 and 1970 when he was a serious and almost
successful candidate for governor of Tennessee, committed the same transgressions of which he now
complains, he now concludes that he was in error and that both collection of campaign contributions
and use of the candidate’s own money in furtherance of a campaign for public office in Tennessee
are constitutionally barred.

        Mr. Hooker qualified as an independent candidate for the United States Senate subject to the
election of November 5, 2002. His complaint is that his opponent, Senator Lamar Alexander, used
some $700,000 of his own money as a loan to his campaign and also accepted many thousands of
dollars in campaign contributions in furtherance of his campaign. By these actions, he asserts that
candidate Alexander violated the Tennessee Constitution and, in particular, Article 1, section 4 along
with Articles 1 and 2 of the United States Constitution as well as the Seventeenth Amendment to the
United States Constitution. The main thrust of his argument is that such contributions, and the
necessity therefore, constitute an additional property qualification, available only to those who have
money or can raise money and unavailable to candidates lacking such good fortune. Mr. Hooker
asserts that Article IV of the Tennessee Constitution provides that the only qualifications for those
seeking public office are citizenship, age and residency. By his reasoning, the need to raise money
constitutes an additional qualification in violation of the Tennessee Constitution.

       Mr. Hooker frankly states his position in his Complaint and acknowledges the practical
impossibility resulting if his position is sustained.

                8.     Furthermore, this lawsuit complains that Candidate Alexander, in
       seeking and accepting campaign contributions, violated the federal Constitution,
       Article I, § 2 and the Seventeenth Amendment. The federal Constitution likewise
       limits the qualifications for the elected to age, residency and citizenship for United
       States Senators (see above). When Senator-Elect Alexander solicited and accepted
       contributions to fund his campaign, he did so in violation of the qualifications clause
       because the giving and receiving of campaign contributions add a property
       qualifications to the electoral process which is prohibited under the Tennessee
       Constitution and under the federal Constitution, Article I, § 3[3] (qualifications
       clause). However, campaign contributions have become an absolute necessity as it
       is virtually impossible to be elected without them. Consequently, the dilemma is that
       campaign contributions are necessary in the election process as it presently exists but
       they are unconstitutional because they add an additional property qualification in
       violation of the Tennessee Constitution and in violation of the federal Constitution
       which requires that members of Congress be elected by “the people” of Tennessee
       who “elect the most numerous branch of the State Legislature”. Campaign
       contributions are therefore unconstitutional in all state and federal elections.

        The facts of the case are not in dispute, as indeed, Senator Alexander used his own money
and raised large sums of money by way of campaign contributions in his successful bid for election
to the U.S. Senate.

       The issues presented by Mr. Hooker for review are:



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              1. Are campaign contributions by a voter or non-voter constitutional under
       the Federal and State Constitutions?

               2. Is there a natural right to give a candidate campaign contributions under
       the First Amendment?

               3. Are campaign contributions permissible under the Federal Constitution
       or the Tennessee Constitution?

             4.    Is there any First Amendment Right for the candidate to receive
       campaign contributions, even if the giving of them is permissible under the First
       Amendment?

               5. Do the states have a Tenth Amendment right to control the election
       process for Congress, except as to time, place and manner provisions, under Article
       I, Section 4?

       As Mr. Hooker has to acknowledge, there is no provision of either the United States
Constitution or the Constitution of Tennessee that addresses (or even mentions) campaign
contributions.

        The first four of the issues on appeal asserted by Mr. Hooker can be addressed together.
They all assert constitutional complaints and will be addressed accordingly. Superimposed upon all
these issues is the necessity to determine where the ultimate power to act lies. The ideal place to
begin is with that monumental work on Constitutional Limitations by the great Judge Thomas
McIntyre Cooley, former Chief Justice of the Supreme Court of Michigan and one of the truly great
law writers of history. As he was quoted by the Supreme Court of Tennessee, Judge Cooley says:

               “[T]here was never a written republican constitution which delegated
               to functionaries all the latent powers which lie dormant in every
               nation, and are boundless in extent and incapable of definition.”
               Cooley, Const. Lim. p. 37, (175.) . . .

                        But, “in considering state constitutions, we must not commit
               the mistake of supposing that, because individual rights are guarded
               and protected by them, they must also be considered as owing their
               origin to them. These instruments measure the powers of the rulers,
               but they do not measure the rights of the governed. A constitution is
               not the beginning of a community nor the origin of private rights. It
               is not the foundation of law, nor the incipient state of government. It
               is not the cause, but the consequence, of personal and political
               freedom. It grants no rights to the people, but is the creature of their
               power, the instrument of their convenience, designed for their


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              protection in the enjoyment of the rights and powers which they
              possessed before the constitution was made. It is but the frame-work
              of the political government, and necessarily based upon the pre-
              existing condition of laws, rights, habits, and modes of thought.”
              Cooley, Const. Lim. p. 36, (37.)

Dibrell v. Morris, 15 S.W. 87, 90 (Tenn. 1891).

       The admonition by Judge Cooley that ultimate sovereignty rests with the people is well
expressed by Justice Clarence Thomas in his dissenting opinion (speaking for himself along with
Chief Justice Rehnquist and Justices O’Connor and Scalia) in U.S. Term Limits, Inc. v. Thornton,
514 U.S. 779 (1995).

              Our system of government rests on one overriding principle: All power stems
       from the consent of the people. To phrase the principle in this way, however, is to
       be imprecise about something important to the notion of “reserved” powers. The
       ultimate source of the Constitution’s authority is the consent of the people of each
       individual State, not the consent of the undifferentiated people of the Nation as a
       whole.

              The ratification procedure erected by Article VII makes this point clear. The
       Constitution took effect once it had been ratified by the people gathered in
       convention in nine different States. But the Constitution went into effect only
       “between the States so ratifying the same,” Art. VII; it did not bind the people of
       North Carolina until they had accepted it. In Madison’s words, the popular consent
       upon which the Constitution’s authority rests was “given by the people, not as
       individuals composing one entire nation, but as composing the distinct and
       independent States to which they respectively belong.” The Federalist No. 39, p. 243
       (C. Rossiter ed. 1961) (hereinafter The Federalist). Accord, 3 Debates in the Several
       State Conventions on the Adoption of the Federal Constitution 94 (J. Elliot 2d ed.
       1876) (hereinafter Elliot) (remarks of James Madison at the Virginia Convention).

               When they adopted the Federal Constitution, of course, the people of each
       State surrendered some of their authority to the United States (and hence to entities
       accountable to the people of other States as well as to themselves). They
       affirmatively deprived their States of certain powers, see e.g., Art. I, § 10, and they
       affirmatively conferred certain powers upon the Federal Government, see, e.g., Art.
       I, § 8. Because the people of the several States are the only true source of power,
       however, the Federal Government enjoys no authority beyond what the Constitution
       confers: The Federal Government’s powers are limited and enumerated. In the words
       of Justice Black: “The United States is entirely a creature of the Constitution. Its
       power and authority have no other source.” Reid v. Covert, 354 U.S. 1, 5-6 (1957)
       (plurality opinion) (footnote omitted).


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                In each State, the remainder of the people’s powers — “[t]he powers not
       delegated to the United States by the Constitution, nor prohibited by it to the States,”
       Amdt. 10 — are either delegated to the state government or retained by the people.
       The Federal Constitution does not specify which of these two possibilities obtains;
       it is up to the various state constitutions to declare which powers the people of each
       State have delegated to their state government. As far as the Federal Constitution is
       concerned, then, the States can exercise all powers that the Constitution does not
       withhold from them. The Federal Government and the States thus face different
       default rules: Where the Constitution is silent about the exercise of a particular power
       — that is, where the Constitution does not speak either expressly or by necessary
       implication — the Federal Government lacks that power and the States enjoy it.

                These basic principles are enshrined in the Tenth Amendment, which declares
       that all powers neither delegated to the Federal Government nor prohibited to the
       States “are reserved to the States respectively, or to the people.” With this careful
       last phrase, the Amendment avoids taking any position on the division of power
       between the state governments and the people of the States: It is up to the people of
       each State to determine which “reserved” powers their state government may
       exercise. But the Amendment does make clear that powers reside at the state level
       except where the Constitution removes them from that level. All powers that the
       Constitution neither delegates to the Federal Government nor prohibits to the States
       are controlled by the people of each State.

Thornton, 514 U.S. at 846-48 (Thomas, J., dissenting).

        While Thornton is fascinating, academic reading with Justice Stevens expressing the view
of the majority in a lucid and well-reasoned opinion and Justice Thomas, with equal fervor,
articulating the views of the minority, the relevancy of the case to the issues at bar is remote.
Thornton involved an amendment to the Arkansas Constitution, adopted at referendum by the
electorate of Arkansas, which sought to limit the terms of public officials in Arkansas including
members of the U.S. Senate and U.S. House of Representative. It sought to limit to three terms
members of the U.S. House of Representative and to two terms members of the U.S. Senate. The
Supreme Court divided on the scope of powers reserved to the states by the Tenth Amendment to
the Constitution of the United States. Although there was little disagreement between the members
of the court on the general meaning of the Tenth Amendment, the case turned on the finding of the
majority that the Tenth Amendment simply did not apply to the case and that the effort by Arkansas
to add qualifications to those enumerated in the United States Constitution would not pass
constitutional muster. The reasoning of the majority provided, in a nutshell:

          In short, as the Framers recognized, electing representatives to the National
       Legislature was a new right, arising from the Constitution itself. The Tenth
       Amendment thus provides no basis for concluding that the States possess reserved
       power to add qualifications to those that are fixed in the Constitution. Instead, any


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       state power to set the qualifications for membership in Congress must derive not
       from the reserved powers of state sovereignty, but rather from the delegated powers
       of national sovereignty. In the absence of any constitutional delegation to the States
       of power to add qualifications to those enumerated in the Constitution, such a power
       does not exist.

Thornton, 514 U.S. at 805.

        If, in fact, Tennessee was attempting to add qualifications to those enumerated in the
Constitution of the United States, such effort would doubtless suffer the same fate as happened to
Arkansas in Thornton. However, the problem for Mr. Hooker in this case is that nowhere in the
Constitution of the United States, the Constitution of Tennessee, or for that matter, any statute is
money or property made a condition to running for public office. For reasons stated by Mr. Hooker
in his Complaint, a lack of money makes it a practical impossibility for any candidate, particularly
one with limited name recognition, to win a statewide election. This self-evident fact of life does
not rise to constitutional proportions.

        In argument before this Court, Mr. Hooker made three assertions: (1.) Buckley v. Valeo, 424
U.S. 1 (1975), relative to campaign financing, should be revisited; (2.) Elections should be publically
financed; (3.) We should have a constitutional amendment barring campaign contributions.

         The Tennessee judiciary lacks the power, even if it were collectively of such a mind, to
accomplish any of these ends. This Court cannot revisit Buckley v. Valeo, never having visited it in
the first place. The best this Court can do is to provide a conduit under which Mr. Hooker may, if
a federal question is properly preserved, ultimately seek relief in the court which pronounced Buckley
v. Valeo.

        Public financing of elections addresses itself to the legislative and executive branches of the
Tennessee government. The judiciary cannot amend the Constitution. Whether Mr. Hooker’s
proposed cures are worse than the disease is a political question which does not address itself to the
judiciary.

       Judge Cooley cautions us:

       “Except when the constitution has imposed limits on the legislative power, it must
       be considered as practically absolute, whether it act according to natural justice or
       not, in any particular case. The courts are not the guardians of the rights of the
       people of the state except as those rights are secured by some constitutional provision
       which comes within the judicial cognizance. The protection against unwise or
       oppressive legislation within constitutional bounds is by an appeal to the justice and
       patriotism of the representatives of the people. If this fail, the people, in their
       sovereign capacity, can correct the evil, but courts cannot assume these rights. The
       judiciary can only arrest the execution of statute when it conflicts with the


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       constitution. It cannot run a race of opinions upon points of right, reason, and
       expediency with the lawmaking power. Any legislative act which does not encroach
       upon the powers apportioned to the other departments of the government, being
       prima facie valid, must be enforced, unless restrictions upon the legislative authority
       can be pointed out in the constitution, and the case shown to come within them. The
       moment a court ventures to substitute its own judgment for that of the legislature in
       any case where the constitution has vested the legislature with power over the
       subject, that moment it enters upon a field where it is impossible to set limits to its
       authority, and where its discretion alone will measure the extent of its interference.”
       Cooley, Const. Lim. (6th Ed.) 200, 201.

State v. Henley, 41 S.W. 352, 354-55 (Tenn.1897).

         No matter what the legislature might be able to do with the contribution side of the ledger,
as long as Buckley v. Valeo stands, the First Amendment to the U.S. Constitution is a bar to
restrictions on campaign expenditures.

       The First Amendment denies government the power to determine that spending to
       promote one’s political views is wasteful, excessive, or unwise. In the free society
       ordained by our Constitution it is not the government, but the people — individually
       as citizens and candidates and collectively as associations and political committees
       — who must retain control over the quantity and range of debate on public issues in
       a political campaign.

Buckley v. Valeo, 424 U.S. 1, 57 (1975).

        The zeal of Mr. Hooker’s crusade cannot vest the judiciary with powers that are essentially
legislative in character. He simply cannot get there from here.

        The judgment of the trial court is in all respects affirmed. Costs of appeal are assessed
against Appellant.


                                                      ___________________________________
                                                      WILLIAM B. CAIN, JUDGE




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