By Tena Jamison Lee
Campaign finance reform is undoubtedly one of the hottest legislative issues of the 105th
Congress--and probably one of the most challenging. Democrats and Republicans alike agree
that something must be done to prevent a repeat of the spending excesses of the infamous 1996
election season. However, just how to achieve that has caused widespread debate, dividing those
almost equally along party lines. Democrats want more public financing, and more limits on
individual contributions while Republicans favor almost no public funding and no limits on
contributions. A compromise between the two camps is no small feat.
With its roots squarely embedded in one of the cornerstones of our democracy, the First
Amendment, the issue of campaign finance reform has been raised time and again, both
legislatively and judicially, with each vote or decision adding fuel to one side or another's fire.
The latest legislative vehicle for reform is that proposed by Arizona Republican Sen. John
McCain and Wisconsin Democratic Sen. Russell Feingold. A previous version of the
McCain-Feingold bill was filibustered by Senate Republicans during the 104th Congress. House
Speaker Newt Gingrich promised recently that the House would join the Senate in voting on the
bill this spring.
Some of the major provisions of the latest bill include: a ban on soft money contributions
(money set aside for party-building activities, such as 'issue' ads. It is illegal to spend soft money
contributions in support of one particular candidate running for federal office. However, a thin
line often exists between party building and the endorsement of one particular candidate); PAC
contribution caps would be lowered from $5,000 per candidate per election to $2,500; spending
by groups determined to be in direct support (or "express advocacy") of a federal candidate
would come under federal regulation and would require full disclosure; free television time as
well as breaks on advertising would be granted to those candidates who raise 60 percent of their
funds from in-state sources and who agree to limit their own spending; and no contributions
would be allowed from those ineligible to vote in this country (specifically, no overseas
contributions).
While there is bipartisan support for this measure, many Republicans do object to
McCain-Feingold for several reasons. First, many believe a ban on soft money unconstitutionally
restricts free speech. They also believe that by placing greater limits on campaign spending,
McCain-Feingold would increase the influence of the media, whom many Republicans believe is
biased in favor of Democrats. Republicans also believe the bill would benefit Democrats who
they say benefited from labor unions' $35 million advertising campaign in the 1996
congressional races. Republicans would like to see a ban on labor spending compulsory union
dues on political activities.
Pro:
"I don't believe there is a magic solution that would end once and for all the problems in
money and politics," said Thomas E. Mann, Director of Governmental Studies at the Brookings
Institution. "The current regulatory system has largely collapsed, and it is important to deal with
these problems," he added. Mann noted that citizens have lived with the chronic problems of
campaign financing for many years involving what he calls the money chase and the inequities
that result from the unrestrained use of private wealth. Another problem inherent with elections,
according to Mann, is the disadvantage the competitor inevitably has, and the inadequate
resources available to challengers.
The abuse of campaign financing exploded in 1996, said Mann, when a combination of
soft money and issue advocacy worked to undermine the regulatory laws in place. This then
produced a decline in accountability in our system, he added.
Mann believes the original McCain-Feingold bill included many undesirable or
unconstitutional elements, but said the current proposal is very responsive.
Perhaps the most controversial of the McCain-Feingold provisions is that which bans soft
money contributions. According to Mann, this is Congress' attempt to redefine express and issue
advocacy as stated in the Supreme Court case, Buckley v. Valeo, (424 U.S. 1 [1976]; document
3.1). While Mann believes Congress is simply trying to elaborate on the definition set forth by
the Court, many opponents counter that the Court has defined the terms once and for all and it is
not necessary or even constitutional for Congress to expand on the Supreme Court decision.
In Buckley v. Valeo, a lawsuit filed by Sen. James L. Buckley and Eugene McCarthy (a
former Democratic Senator from Minnesota) against the Secretary of the Senate, Francis R.
Valeo, the court upheld contribution limits, but overturned expenditure limits.
Citing the First Amendment, the Court stated, "It is clear that a primary effect of these
expenditure limitations is to restrict the quantity of campaign speech by individuals, groups and
candidates. The restrictions...limit political expression at the core of our electoral process and of
First Amendment freedoms." The Court upheld contribution limits, however, because they
served the government's interest in safeguarding the integrity of elections by preventing even the
appearance of corruption of public officials. In the Court's view, contributions conveyed only
that a donor supports a candidate, not why he or she supports a candidate. Therefore, Congress
could broadly limit these contributions. In upholding individual contribution limitations, the
Court said that Congress could somewhat burden political expression in the name of preventing
"corruption and the appearance of corruption spawned by the real or imagined coercive influence
of large financial contributions on candidates' positions and on their actions if elected to office."
However, since according to the Court, expenditures convey why a donor supports or
opposes a candidate, serious First Amendment concerns were at issue. Limiting expenditures
would restrict the quantity and quality of political discourse, the Court said, and found no
governmental interest sufficient to justify them. The Court defined political ads as those that
explicitly advocate the election or defeat of a candidate. This very narrow definition has allowed
groups to employ television and radio ads that were political ads in every sense except that they
avoided any explicit candidate advocacy. The 1996 election season saw many ads thinly
disguised as issue ads praising or attacking specific candidates, but ending with the tag line,
"support welfare reform" or "stop raising taxes." The Court stated that issue advocacy is
protected under the First Amendment, along with independent expenditure campaigns. However,
funding for independent expenditure campaigns can be regulated as are candidate and party
funding for elections. Mann believes that there is room for Congress to define with more clarity
what is meant by issue advocacy and political campaigning without running afoul of the Court's
real intent.
As another alternative to legislating reform, the Senate voted on a constitutional
amendment that would have in effect reversed the Buckley decision. The amendment fell well
short of receiving the necessary votes, which suits Mann just fine. He doesn't see a constitutional
amendment to direct reform as a viable alternative, noting that giving current office holders the
power to limit spending would not solve the problems in the system.
Another provision of McCain-Feingold that has caused some debate among those
invoking the First Amendment involves free air-time for candidates. According to one provision,
candidates who raise 60 percent of their funds from in-state sources, and who agree to limit their
own spending ($25,000 per election in small states, $50,000 per election in large states) would be
granted 30 minutes of free TV time; reduced costs for advertising; and breaks on direct mail
costs.
Mann, who views the broadcast spectrum as a public good, not a private one, believes
that it is not unreasonable to require broadcasting companies to provide a modest amount of free
air time for candidates. He has even gone so far as to endorse the idea of a "broadcast bank"
consisting of minutes of television and radio time on all broadcast outlets. In order to establish
the bank, every television and radio station in the country would have to contribute at least two
hours of prime spot time at the beginning of each two-year election cycle. Since broadcasting
companies are allowed to use the spectrum, in return they are obligated to provide air time to
candidates, said Mann.
Con:
Kenneth Gross, former head of enforcement for the Federal Election Commission, likens
Campaign finance reform to welfare reform in that everyone says that he/she favors it, but
everybody has a different view of what they think reform is.
"It's not that I am against campaign finance reform," noted Gross, "I am just pessimistic
about it coming to pass. If it does, constitutional problems arise." Gross said there is room for
regulating the issue, specifically in three key areas: 1. soft money - money that is outside of
federal regulation not limited, but subject to disclosure. 2. issue advocacy which is money spent
by non-profit groups not subject to limits or disclosure. (Gross, who advocates disclosure,
believes this is the widest open area.) and 3. independent expenditures where political groups
make expenditures on behalf of a candidate or party. This has to be regulated under the current
system, noted Gross.
Gross also noted that McCain-Feingold "has a tough row to hoe" in the courts because it
does in fact restrict spending (soft money). "By definition if you are limiting campaign spending,
you are violating freedom of speech," said Gross, referring to the Buckley decision. "If you are
going to regulate this constitutionally, you have to draw some bright line. As soon as you do this,
everyone has to have the same blueprint."
Gross noted that if campaign finance reform can't be done legislatively, the alternative
would be to persuade the Supreme Court to reverse its decisions. This is unlikely, he added,
noting that the High Court has furthered the effect of Buckley recently rather than cut back.
In Colorado Republican Federal Campaign Committee v. Federal Election Commission
(116 S. Ct. 2309 [1996]; document 3.4), the Court considered the extent to which the First
Amendment allows Congress to regulate political party spending on behalf of or against
candidates. Gross noted that four out of seven justices said that even if they are not independent
expenditures, there should not be a limit. Gross believes the High Court is moving in a direction
that may lead to opening it up even more, citing specifically Justice Clarence Thomas' opinion in
the Colorado case.
First, Thomas found that regulating party expenditures on behalf of or against candidates
failed to prevent corruption--the single goal that Buckley had held permissible. Justice Thomas
also argued that the Court should discard Buckley's central distinction between contributions and
expenditures. In Justice Thomas' provocative decision, he stated he believed that expenditures
and contributions promote the same kinds of political expression and that Congress has no better
reason for regulating one than the other. Thomas would prohibit limitations on both.
The Colorado case left unsettled the larger issue of whether Congress could regulate
political party expenditures actually coordinated with the party's candidates.
Gross agreed with Mann on the question of creating a constitutional amendment to deal
with reform. "It never got off the ground because you are talking about amending the First
Amendment. If you start monkeying with the most precious right, the most important by far, it's
not going to happen," he said.
Gross also agreed that the incumbent has an inherent benefit when it comes to campaign
fundraising. However, he said, "no matter what you do, that will be the case. I don't know if we
would want to try and prescribe a law to equalize that," he said.
The former head of enforcement for the FEC said he goes back and forth on the idea of
broadcasting companies being required to provide free air time. "I'm not really totally sure where
I come out on that issue, said Gross. "I do see problems with it." He is in favor of debates, but is
not sure that granting blocks of time for more campaign ads would solve anything.
Many will be watching in earnest as Congress sits down, rolls up its collective sleeve and
gets down to the business of campaign finance reform. For many citizens, the attention to the
issue is long overdue, and many don't envy the arduous task Congress has before them.
Tena Jamison Lee is a frequent contributor to Human Rights. She is a writer in Little Rock,
Arkansas.
