Handcuffing Campaign Reform

The New York Times
April 17, 1996

Handcuffing Campaign Reform
By E. Joshua Rosencranz

As irate voters lash out at politicians unwilling to end the corrupting influence of money on politics, they should realize that another obstacle blocks genuine reform: Buckley v. Valeo, a 20-year-old Supreme Court decision that prohibits campaign spending caps and other measures necessary to reform campaign financing.

On Monday, the Court heard Colorado Republican Federal Campaign Committee v. Federal Election Commission, which presents its first opportunity in many years to revisit the Buckley decision.

The Colorado Republican Party is challenging a 1974 Federal law that limits the amount a national or state party can spend on Congressional races. In 1986, the F.E.C. charged that the Colorado party exceeded the spending limit during a Senate race, which was eventually won by Tim Wirth, a Democrat. But the party argued, in essence, that the Buckley ruling allowed it to spend unlimited funds to elect a candidate.

Buckley arose out of Congress’s comprehensive reforms, in the wake of Watergate, that imposed contribution limits and expenditure caps. The Court’s decision (unsigned, but thought to be written by Justice William Brennan) teeters on the tenuous distinction between contributions and expenditures. The Court concluded that the expenditures—the spending of money by a candidate or in support of a candidate—is speech and thus entitled to virtually unqualified First Amendment protection.

That means the Government cannot limit how much a Ross Perot or a Michael Huffington can sink into his own campaign. It means there are no limits on how much a candidate can raise, so long as each contribution falls within legal limits. And it means no lid on the funds an “independent” player, like the National Rifle Association or a wealthy benefactor, may spend promoting a candidate.

On the other hand, the Court held, contributions made directly to a candidate may be limited – but only if they are large enough to appear corrupt.

Buckley has spawned bizarre rules. In its name, Courts have killed scores of innovative campaign reform laws, including $100 limits on donations to a state race, bans on political action committees and bans on war chests – leftover campaign funds that politicians roll over to the next election.

In the years since Buckley was decided, the distinction between expenditures and contributions has blurred. A politician can be beholden to a fat cat who “independently” spends hundreds of thousands of dollars in support of his or her candidacy, without contributing a cent to the campaign. And a legislator will certainly be attentive to a benefactor who donates money to the state party, which helps get candidates get elected.

If, in the Colorado case, the Supreme Court decides in the state party’s favor, it will create yet another loophole in campaign financing laws. For instance, corporations could get around the laws forbidding them to contribute to a candidate by donating millions to a state party, which could then spend unlimited amounts of money to elect that candidate.

During Monday’s arguments, several Justices asked Buckley’s tired question: Is a political party’s campaign spending a contribution (which may be limited under Buckley) or an expenditure (which may not be)?

That is a meaningless question. Instead, the Court should ask, “Will this law enhance the public’s perception that elected officials cast votes based on their principles, not their purses?” If so, the Federal law limiting state party contributions should be upheld and Buckley reconsidered.

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ABOUT THE AUTHOR
E. Joshua Rosenkranz is Executive Director of the Brennan Center for Justice at New York University School of Law, which filed a brief urging the Supreme Court to reconsider Buckley v. Valeo.