May 5, 1997
Campaign Reform: The Hidden Killers
By E. Joshua Rosenkranz
Prominent members of Congress recently executed a brilliant three-step strategy for killing campaign finance reform, all the while disguising themselves as reformers. Step One: Avowed proponents of reform declared reform impossible without a constitutional amendment. They opined, as Senator Ernest Hollings put it, that “it’s quite obvious that Congress is more or less powerless to excise this cancer.” Majority leader Trent Lott, an ardent foe of reform, virtually licked his chops as he reacted, “We think they raise some good points.”
Step Two: Reformers conducted a half-hearted, ill-conceived and ill-fated campaign to amend the Constitution. Prime movers of the amendment set it up for target practice with statements like House Minority Leader Richard Gephardt’s: “What we have is two important values in direct conflict: freedom of speech and our desire for healthy campaigns in a healthy democracy. We can’t have both.” The truth is that you can’t have one without the other, and no proponent of reform says otherwise.
Step Three: Upon the inevitable, resounding defeat of the amendment—it went down by a lopsided 61-to-38 vote, twenty-nine votes shy of the two-thirds majority needed to clear the Senate—its backers stood idly by while opponents of declared that Step One’s reasoning was right: May as well pack it in, since congress can’t overcome the blight on its own.
The constitutional amendment was directed at overturning Buckley v. Valeo, the Supreme Court’s 1976 opinion ithat upheld limits on what individuals and PACs can give to candidates but invalidated caps on campaign spending, judging them an infringement of free speech [See Burt Neuborne, “One Dollar, One Vote?” December 2, 1996]. The supporters of the constitutional amendment—most notably Bill Bradley, Dick Gephardt, Fritz Hollings, Arlen Specter, and Barney Frank—were undoubtedly on to something. The Buckley Court was wrong to conclude that every dollar spent in connection with an election—whether it is an unknown challenger’s first dollar or Michael Huffington’s 28-millionth—is as worthy of First Amendment protection as the spoken word itself. It was wrong to treat contributions and spending differently. It was wrong to conclude that the government has no legitimate interest in diminishing the volume of very powerful speakers to insure that fainter voices get heard.
To make matters worse, over the past twenty-one years Buckley has mutated, like The Thing that Ate Manhattan, into a doctrinal blob that consumes virtually every innovative reform in its path and belches it out in pieces. Buckley has been cited to strike not just mandatory spending caps, but contribution caps that are “too low,” voluntary spending caps that are “too enticing,” and fundraising time limits that are “too restrictive.”
So, yes, Buckley got a lot wrong and continues to wreak much havoc. But a constitutional amendment to topple it? That approach is like trying to shape an intricate garden by relying on a bulldozer without gas. It would never get anywhere, and if by some miracle it did, it would leave behind nothing but gashed-up terrain.
First, the empty gas tank: It never made sense to suppose that two-thirds of congress and thirty-eight state legislatures would vote for such an amendment anytime soon. That, of course, explains why thirty-eight senators voted for it, rather than, say, twenty. Backers of the constitutional amendment could pretend they were doing something bold, with the bold certainty that it was going nowhere.
Next, the bulldozer: It took the Supreme Court almost 300 pages, speckled with 178 footnotes, to create the Buckley mess. A quarter-page constitutional amendment could not begin to clean it up. The one lesson we have learned from the past two decades is that the regulation of the flow of money in politics requires a careful and highly nuanced balancing of interests worked out in the context of real life situations.
If we want to correct the Supreme Court’s mistake, the path of least resistance and greatest precision is the Supreme Court itself. All it takes is five votes—hardly beyond imagination for an opinion whose logic is openly challenged by Justices on both the left (Ginsburg and Stevens) and the right (Thomas), by attorneys general of twenty-two states, by the chief elections officers of eighteen states, by the overwhelming majority of legal scholars, and, increasingly, by the public at large. The Supreme Court has corrected many of its historic follies with less of a head start.
Reformers can force the Supreme Court’s hand by pushing for legislation or initiatives that boldly challenge Buckley by capping campaign spending, preferably at a generous level. In the meantime, activists must ready the environment for a challenge. They must foment moral outrage over Buckley loud enough that the Court will take heed. They must persuade the lower courts to signal their discomfort with Buckley by slowly narrowing the case. And the scholarly community must offer the Justices an alternate, post-Buckley universe to assure them that they could overrule Buckley without substituting a disaster for a debacle.
We should not be duped into thinking that nothing can be done unless and until Buckley is overturnes, though. Senator Mitch McConnell, whom reformers have dubbed the Darth Vader of campaign finance reform, would like us to think that. And he has cobbled up a motley crew of
supporters ranging from the American Civil Liberties Union to the Right to Life Party, and from business PACs to unions, to reinforce that view. But they are wrong. While overturning Buckley could enhance almost any model of reform and expand the battery of available options, Congress has numerous other recourses.
At the most modest level, Congress could take great strides forward simply by closing the soft money loophole, which allows candidates to pump corporations, unions, and wealthy individuals for six-figure contributions to the political parties, which in turn funnel the money into television spots that end up promoting the candidates themselves. Closing this loophole is the closest thing there is to a constitutional no-brainer. Corporations and unions had been barred from contributing a cent to the parties since 1907 and 1947, respectively. It was only in the late 1970s that a seemingly modest loophole opened to allow corporations, unions and wealthy contributors to support generic “party-building” activities. As recently as 1990, the Supreme Court reiterated that corporate entities could be barred from spending money to influence elections, and Buckley itself held that it is permissible to limit the size of contributions that wealthy individuals give to parties and to candidates.
Second, there is no constitutional impediment to providing full public financing for candidates who voluntarily agree not to raise private funds, or to providing partial financing for candidates who agree to limit their fundraising. There may be some limits to the number and types of strings that Congress could attach to such funding, but most of the proposals that are on the table do not come close to testing those limits.
Congress could take both steps – shut off soft money and provide public financing—tomorrow. If it does not, it is not because the Constitution prohibits it. It’s because Congress does not want reform after all.
ABOUT THE AUTHOR
E. Joshua Rosenkranz is Executive Director of the Brennan Center for Justice at New York University School of Law.