Clean and Constitutional

The Boston Review
May 1, 1997

Clean and Constitutional
By E. Joshua Rosenkranz

Measures to reform the way we finance political campaigns are dropping like flies. Buckley v. Valeo, the landmark Supreme Court case that occupies the field of campaign finance reform, has been invoked by courts at all levels to frustrate popular reforms of every flavor. Buckley has almost come to stand for the proposition that if it’s effective, it must be unconstitutional. As Donnelly, Fine, and Miller indicate, voters seem willing to take decisive action if only the courts will let them do it. But that’s a big “if.”

Consider the record: Scores of promising reforms that have been enacted into law have fallen to a Buckley challenge. And every reform that voters passed by initiative on Election Day—Arkansas, California, Colorado, Montana, and even Maine—is currently besieged by litigation. Given this record, it is natural to be skeptical of a reform that has been heralded as enthusiastically as the Clean Money Option. But, from a constitutional perspective, there is good reason for optimism. Of all the models of reform, the Clean Money Option is the least susceptible to constitutional challenge—at least under current doctrine.

Buckley is most commonly understood as the case that equates money with speech. Buckley declared, in essence, that each dollar spent in support of speech is as protected as the spoken word that it buys. This principle, simple enough to state, has evolved into a treacherous tangle of rules that ensnare the unwary—and sometimes even the wary.

Buckley‘s central prop is a distinction between expenditures and contributions. Expenditures, the Court held, are fully protected. That means that a Perot or a Huffington has an absolute right to buy his way into office. It means a fat cat has an absolute right to saturate the air waves with a message advocating for or against a candidate. And a campaign has a right to spend unlimited amounts of money that it collects from others—so long as each contribution is in a permissible amount and from a legal source. Thus, in 1976, Buckley struck mandatory caps on expenditures in congressional campaigns, and, in Buckley‘s name, a federal court just last month struck a campaign expenditure cap imposed by the City of Cincinnati.

On the other hand, contribution caps are permitted—but only up to a point. No contribution cap has ever been sustained except on the rationale that it advances the battle against corruption or the appearance of corruption. On this rationale, only a contribution that is, or would appear to be, corrupting can be barred. Several courts have, therefore, struck $100 contribution caps, on the theory that no politician is corrupted by a $101 contribution. Also under attack are caps on aggregate contributions from a type of source (out-of-state donors or PACs, for example), on the theory that all is well as long as no single contribution is independently corrupting.

So what does all this mean for the Clean Money Option? The critical aspect of the Clean Money Option, from the perspective of constitutional doctrine, is that it essentially bribes candidates to do what they cannot be forced to do: forego all contributions upon qualifying (the ultimate contribution limit) and cap expenditures. Under Buckley, the carrot approach is permissible, so long as the candidate remains truly free to turn down the invitation. Applying this test, the Buckley Court upheld the presidential public financing system under which presidential receive a large pot of money (currently over $60 million each for major-party candidates) in return for foregoing all private funds and capping expenditures.

One would think, then, that almost any incentive would be upheld, right? Not so fast. Though the issue has scarcely been explored (because public financing systems are fairly uncommon), the courts have already begun to muddle the rules on at least two crucial points.

First, how enticing can the deal be? On the if-it-works-it-must-be-unconstitutional side of the ledger, is a case that struck an aspect of Kentucky’s matching contribution plan. In Kentucky, a candidate who accepted expenditure caps could raise campaign money in $500 chunks (which are matched with public funds), but a candidate who opted out was relegated to raising money in bite-sized $100 increments. A federal court, concluding that no candidate could afford to opt out under these terms, found this provision coercive. On the other side of the ledger are two recent federal appeals court decisions upholding Rhode Island’s and Minnesota’s partial financing schemes. The Rhode Island scheme contains a similar “cap gap” provision, with a two-to-one gap. And both the Rhode Island and the Minnesota schemes lift the expenditure caps entirely for a participating candidate once a nonparticipating opponent reaches a certain fundraising or spending level. Neither was struck as coercive, although both are quite enticing.

An aspect of the Minnesota scheme that was struck, however, raises the second set of issues, which could be critical to the success of the Clean Money Option. If past experience is any indication, the attempt to stanch the flow of money directly into political campaigns will simply lead influence-seekers to reroute their money by spending independently in support of candidates or by laundering large contributions through the party (“soft money”). The soft money loophole can easily be closed, but the difficult constitutional question is how far can a public financing scheme go to discourage independent expenditures? The Maine system offers candidates more money if they come under considerable attack from independent expenditures. One federal court has already struck Minnesota’s variant of this approach—a provision that freed a participating candidate to raise more money (with a government match of contributions) in response to a deluge of independent spending targeted against him. The better view is that under the First Amendment helping a target counter speech is not punishment. Rather, it is in the great First Amendment tradition that the best antidote to speech is more speech.

We must not allow the courts to make as much of a muddle out of the subsidy side of campaign finance regulation as they have of the restriction side. For now, from a constitutional perspective, the subsidy side of the field is the most promising of all, if only because the landmines have yet to be laid.

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ABOUT THE AUTHOR
E. Joshua Rosencranz is the Executive Director of the Brennan Center for Justice at NYU School of Law.