by Stuart M. Flashman, Ph.D.,
J.D.
It's hard these days to find
anyone who'll openly take the position that they oppose campaign reform. Just
as George Bush Sr. could declare himself an environmentalist during the 1992
Presidential campaign, most politicians, indeed, even representatives of
special interests, profess support for campaign reform. More of an acid test is
whether they support modifying the standards set by Buckley v. Valeo (1976) 421 U.S. 1. That case centered on provisions of the
Federal Election Campaign Act of 1971, one of the first federal laws trying to
seriously control campaign spending. Buckley held that the First
Amendment's free speech protections extended to the ability to spend as much
money as one wanted to on political speech in an election campaign.
Essentially, Buckley
added to the rule of "one person, one vote," that of "one
dollar, one vote." After Buckley, the only way government could
regulate campaign spending was by offering incentives to candidates to accept
"voluntary" expenditure limits. In many states (and in federal
elections) the incentive has involved public financing, so-called
"matching" funds for candidates who meet certain minimum criteria and
accept expenditure limits. Wealthy candidates, however, are free to spend as
much of their personal fortune as they care to. The inequity of this situation
need hardly be stated.
In
In 1996, perhaps in part
because of the blatant abuse of campaign spending under Prop. 73, the voters
passed Proposition 208. This measure,
supported primarily by Common Cause and the League of Women Voters, attempted
to use differential contribution limits as an incentive to support voluntary
expenditure limits. A number of Bay area cities and counties (e.g.,
Up to now, most of the
emphasis in reform efforts has been on regulating contributions, not
expenditures. As noted, Buckley
forbids placing limits on how much personal funds a candidate can spend on
their election campaign. Buckley, as applied to Federal elections, helps
explain why there are now so many millionaires in congress, as well as the
viability of candidates like Ross Perot and Steve Forbes (and why John Kerry’s
multi-millionaire wife is helpful not just for her attractive personality).
Short of overturning Buckley, there appears to be little that can be
done to ameliorate this situation.
A second problem is "independent expenditures". These are expenditures made to influence an election, but which are not made by the candidate or their committee. In 1985, the Reagan Supreme Court, led by Chief Justice Rehnquist, took Buckley one step further. In Federal Election Committee v. National Conservative Political Action Committee ("NCPAC") 470 U.S. 480 [1985], the Court held that limitations on "independent expenditures" by political committees violated First Amendment free speech rights. The stage had been set for this opinion by First National Bank of Boston v. Bellotti ("First National Bank") 435 U.S. 765 [1978], which gave corporations full free speech rights in the political arena. The end result of the sum of these decisions is that there is little way to control a corporation or political committee that wants to influence an election. California’s Prop. 208 attempted to limit the independent expenditure loophole in three ways: 1) It made independent expenditure committees subject to donor limitations, 2) It put an overall cap on how much an individual or major donor could contribute to all committees and races combined, and 3) It required literature put out by an independent expenditure committee to disclose the major donors funding the committee. All those provisions were enjoined by the federal lawsuit and repealed by Prop.34. As mentioned, the BCRA also limits independent expenditures. In a significant shift, the Supreme Court, in McConnell, upheld most of these provisions from a facial challenge. The 2004 Presidential election has seen the rise of a new kind of independent expenditure, the “527 Committee”[4]. Such committees, acting independently of the national political parties and candidate committees, have engaged in extensive “issue advocacy” that is obviously directed at influencing the Presidential election results.[5] The FEC has signaled its intent to issue regulations to restrict these groups’ activities. They won’t happen until after the 2004 election, however. They will undoubtedly be challenged in court.
The last point I wish to touch
on in this essay is negative campaigning. The "smear" has been around
for a long time in American politics, going back to truly monstrous accusations
made during the Hamilton-Burr fights of the early 1800s. However, the increased
power of mass media, and the increased prevalence of large-budget political
campaigns have made it a central focus of modern campaigning[6].
Professional political consultants have refined the "smear" to a
finely honed political razor that can quickly and decisively disembowel one's
political opponent. Among the fine points of the modern smear campaign are: the
liberal use of early political polling to identify which smears have the
greatest voter impact, the use of mass mailings, paid telephone solicitors, and
electronic media to allow rapid dissemination of the smear, and waiting until
almost literally the last minute to make the most venomous charges. The latter
makes it almost impossible for the opponent to rebut the charges before the
voters have acted upon them.
Negative campaigning has
traditionally invoked the protection of first amendment free speech rights. The
Supreme Court has traditionally given political speech its strongest
protection. The basic standard for challenge of political speech was set in New
York Times v. Sullivan (376 U.S. 254 [1964].
Under New York Times v. Sullivan, in order to prove libel or slander in
the context of a public election campaign, the plaintiff is required to show
not only the usual elements, but "legal malice"-- demonstration by
clear and convincing evidence that at the time of publication the defendant
either knew the published statement was false or proceeded in reckless
disregard of its probable falsity. That is an extremely difficult standard to
meet. Further, the financial cost of proving that kind of case, coupled to the
uncertainty of success and of recovering substantial damages, limits those who
would bring an action for a political smear to millionaires, fanatics and pro
per litigants.
There do appear to be some
steps that could be taken to address, if not fully remedy the current rash of
smear campaigning; this in spite of the strong free speech protection for
political campaigning. In particular, it
seems possible that a pre-notification requirement for campaign advertising
during the last two weeks before an election could reduce the sting (and
effectiveness) of smear campaigns.[7] If the advertiser were forced to provide the
opponent(s) with the text 48 hours before it were published, there would
generally be adequate time to prepare and publish a rebuttal in a timely
manner. This would be in keeping with
Justice Brandeis’ admonition that the remedy for fallacious speech is more
speech. (Whitney
v. California 274 U.S. 357 [1927] [concurring
opinion at 377].)
The difficulty in defending
against negative campaigning, and its evident success, have made it perhaps the
single biggest factor in modern election campaigns. It remains to be seen if
the voting public will eventually grow tired enough of the mountains of trash
(both figurative and literal) produced during election campaigns to create a
backlash against negative campaigning.
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