October 3, 2000
THE DEVIL’S IN THE DETAILS: The Lazio-Clinton Deal Gags Independent Voices The Important Difference between Soft Money and Hard Money
By Glenn Moramarco
Now that Rick Lazio and Hillary Clinton have shaken hands, deals to banish soft money are all the rave. Senators John McCain and Russell Feingold—the authors of the leading campaign reform bill bearing their name—shot out a letter to every federal candidate challenging each to strike the same deal. Al Gore seized upon the invitation immediately and issued the challenge to George W. Bush. It takes little prescience to predict that Gore, and scores of candidates in congressional races, will swagger up to their opponents Lazio-style and demand, “I’ve signed this soft-money pledge. Will you?”
Before we press candidates to jump on the Lazio-Clinton bandwagon, we ought to appreciate that, as valuable as the general concept of a soft money ban is, one little-publicized facet of the Lazio-Clinton deal is unwise. Independent groups with deeply held views about issues—such as the National Abortion and Reproductive Rights Action League, the AFL-CIO, and the Conservative Leadership PAC—have decried the pact as a violation of their First Amendment rights. Though their objection is overwrought in some respects—for instance, technically, no deal between two candidates could ever be a First Amendment violation, since it is not imposed by20government command—they do have a valid point. The deal heads in the right direction, by banning soft money, but takes it one step too far, by banning completely unobjectionable hard money spending by advocacy groups as well.
Hard money is the regulated and disclosed money that is legally permitted to flow toward elections. Whether raised by a candidate, a political party, or a group, hard money has three attributes. First, hard money is raised from human beings (or groups of human beings), not, for example, from corporations or labor unions, which are not permitted to participate in our elections. And for good reason: just as AT&T cannot vote, and the AFL-CIO cannot run for office, we prohibit them, and nonhuman entities like them, from using their vast resources to influence our votes. Second, it is raised in small amounts (with maximums of $1,000, $5,000 or $20,000 depending upon the nature of the donor and the recipient) to hinder any particular player from using money to exert undue influence on those in power. Third, the sources of hard dollars are disclosed, so that voters can assess the messenger while digesting the message and judge who is in who’s pocket.
Soft money is, of course, a complete end run around these legal limitations. Take, for example, the soft money that flows through political parties—which was the primary target of the Lazio-Clinton deal. Mrs. Clinton raised truckloads of money from corporations, unions, and wealthy individuals with vested interests in the legislation on which she will vote once in office, and then funneled it directly into political ads for her own benefit. Only, her contributors made out their checks to the Democratic Party, which in turn produced the ads (usually attack ads), and bought the air time, all under her watchful eye. According to a Brennan Center study, conducted with political scientist Kenneth Goldstein of the University of Wisconsin, the Democratic Party, using soft money, has spent almost as much on TV spots as the Clinton campaign itself—conservatively, $3.4 million from the party as against $4.7 million from the campaign.
So the deal to ban party-sponsored ads was an important step toward restoring some integrity to our election laws and to this particular race.
But the deal goes beyond the party soft money. As part of the deal, both Clinton and Lazio, have issued a plea to their supporters. A letter from Clinton to NARAL is illustrative: “Hillary is urging all groups supporting her candidacy to respect her wishes and refrain from running TV and radio issue ads.”
If this plea were limited to soft-money ads run by groups—campaign ads, paid for with unregulated money, thinly veiled as “issue ads”—it would be unobjectionable.There is something very problematic about a group running undisclosed, unregulated issue ads with soft money, as groups have done for Mrs. Clinton, in an amount our study puts at over $2.3 million.
A recent episode in the New York presidential primary illustrates the problem: A group that called itself “Republicans for Clean Air” saturated the air on election eve with negative ads vilifying presidential candidate John McCain for his environmental record. Who were “Republicans for Clean Air”? Who funded them? How much money did they dump to influence us New Yorkers? No one knew, because the group did not report any of the information to the Federal Election Commission. No one knew, that is, until after the primary was over, when a reporter lifted the mask of secrecy to reveal that it was not a group after all, and they weren’t even New Yorkers. Behind the ad campaign, bankrolled to the tune of $2.5 million, were a couple of Bush buddies, billionaire brothers from Texas aptly named Wyly.
While groups have a First Amendment right to educate the public about issues, they have no right to raise undisclosed sums of money from prohibited sources and funnel them into sham issue ads that waddle, quack, and smell like campaign ads. That is most certainly what some of the groups decrying the deal were planning on doing. The AFL-CIO’s campaign across the country has been largely a soft money operation. Similarly, the unaired ad that NARAL played to the press last week, focusing on Lazio’s anti-abortion record and dubbing him “not trustworthy on abortion rights,” is unmistakably electioneering in nature. Yet, it was to be paid for by NYS-NARAL Inc.—not the federally regulated NARAL/NY PAC—which means that NARAL, too, wascontemplating a soft money campaign. In which case, they have no leg to stand on.
The problem with the deal, though, is that it covers groups that want to spend hard money as well—which NARAL and others would undoubtedly be equipped to do—even though hard money spending raises none of the problems of corruption, corporate and union influence, or secrecy inherent in soft money. Lazio’s letter went to every Lazio supporter that reported to the Federal Election Commission, which necessarily means they were using hard money, and he explicitly directed them “to stop running ads or other activities designed to support my campaign or attack my opponent.” Clinton, for her part, pronounced that “just the two campaign committees should be on the air advertising their campaigns.”
That is not the goal of campaign finance reform, and it never has been. Reformers who care about our democracy understand that our elections are enriched whenpeople—by which we mean human beings, acting individually or as groups, and not as conduits for restricted sources—weigh in openly with views and issues of their own. Let’s not confuse gagging the voices of real people with campaign finance reform.
ABOUT THE AUTHOR
Glenn Moramarco is a Senior Attorney at the Brennan Center for Justice at New York University School of Law.