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 California, the situation is, if anything, even worse. Proposition 73, written by Ross Johnson and Quentin Kopp and passed by the voters in June 1988, prohibited any expenditure of public funds on election campaigns. (Government Code Sect.85300.) What most voters probably didn’t know when they voted for this “Campaign Finance Reform” measure (but its authors undoubtedly did!) was that they were lifting all limits on campaign spending! Prop. 73 eliminated the option of using public financing via matching funds as an incentive to encourage candidates to accept expenditure limitations. It also invalidated local laws based on such matching funds. Essentially, this left campaign contributions and expenditures totally unfettered.
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., San Francisco, Oakland, Contra Costa County, East Bay MUD) had already adopted similar laws. Perhaps needless to say, Federal litigation ensued, initiated primarily by the California Republican and Democratic Parties. A federal judge issued a preliminary injunction blocking implementation of most parts of the measure, and the 9th Circuit Court of Appeals upheld the injunction. (California Prolife Council PAC v. Scully, 164 F.3d 1189 [9th Cir. 1999].)
While things then looked bleak for California campaign finance reform advocates, a ray of hope appeared with the U.S. Supreme Court’s decision in Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 [2000]. In that case, the Court upheld Missouri’s strict campaign contribution limits. These limits were comparable to those set by Proposition 208, giving its supporters hope that the measure would, in the end, be found constitutional.
In the meantime, however, California politicians were still working in the background. The legislature, led by State Senator John Burton (D – San Francisco), placed Proposition 34 on the November 2000 ballot. Prop. 34 overrode the provisions of Proposition 208. In their place, it put a set of much milder campaign contribution limits. Significantly, Prop. 34 left unlimited the amount of contributions a political party could make to a candidates’ campaign (so-called “soft money”). With strong support from the political establishment, Proposition 34 was passed by the voters. (For more on Prop. 34, click here.)
On the national scene, campaign finance reform gained significant publicity when Senator John McCain, as the dark horse candidate in the 2000 Republican presidential primaries, made campaign finance reform a central theme in his platform. The short-lived presidential primary campaign of Democrat and former senator Bill Bradley further enhanced the visibility of campaign finance reform.
Once the primaries were over, campaign finance reform lost its top billing as a campaign issue. Both Al Gore and George W. Bush professed support, but their rhetoric rang somewhat hollow, given the enormous sums raised and spent in their campaigns. After Bush’s narrow victory (some would say, by one vote), campaign finance reform disappeared from the spotlight. It reappeared, however, with the emergence of the McCain-Feingold Bill to tighten federal campaign regulations. After a bitter battle, Congress passed and Bush signed the first major federal campaign finance measure since the 1970s [1]. While the most widely publicized provision is the elimination of soft money in federal elections, the most radical provision is the ban on so-called independent expenditures during the final weeks before an election.
Reform opponents, led by Kentucky Senator Mitch McConnell, promptly filed suit to challenge the new law [2]. The Supreme Court, in a highly significant decision (McConnell v. Federal Election Commission, 540 U.S. 93 [2003]) held most, but not all, of the BCRA’s provisions constitutional. Perhaps equally significantly, the Court majority, for the first time, recognized the farcical nature of some of the Supreme Court’s distinctions in Buckley. In particular, the majority opinion of Justices Stevens and O’Connor (concurred in by Justices Souter, Ginsberg, and Breyer) called into question the Buckley Court’s distinction between candidate advocacy and issue advocacy. It also noted that “soft money”, a loophole in campaign finance law created by Buckley, had expanded exponentially and clearly circumvented the intent of campaign finance laws. Further, “soft money” was often, if not commonly, less contributed from an interest in expression of free speech than in influencing (at least to the point of improving access to) a future office-holder [3]. The latter was undoubtedly a proper subject of Congressional action to avoid corruption and its appearance. For more current information on the BCRA, see the FEC’s webpage on the subject.
More recently, the new conservative majority on the Supreme Court (with the addition of Justice Alito and Chief Justice Roberts) has shifted direction on the BCRA. In Federal Election Commission v. Wisconsin Right to Life, Inc. 551 U.S. [2007] the court, by a narrow majority, upheld an “as applied” challenge the the BCRA’s blanket prohibition on political advertising supporting or opposing a political candidate within thirty days of the election. Relying extensively on Buckley, the court majority propounded a new (and difficult to enforce) rule that independent expenditures could not be regulated if they were oriented towards a political issue, rather than a political candidate. This is, of course, a proverbial “slippery slope”. How far does the balance need to tip between candidate and issue before such corporate political speech becomes exempt from government regulation? If you tell voters to vote against incumbent politician X because he voted against (or for) legislation Y, is that candidate advocacy or issue advocacy?
In my view, this is just another reason to reject Buckley’s false dichotomy between candidates and issues. Either political expenditures can be regulated, or they can’t. The long history of the corrosive effects of unregulated political expenditures says to me that they can and must be subject to regulation. Going back to Buckley, I’d argue that the question of money and free speech is not what you can say, but how loudly you can say it. Prohibiting the regulation of campaign expenditures is every bit as silly as prohibiting limits on the volume of the loudspeakers trumpeting political slogans in a campaign. These are only regulations on the time, place, and manner of speech. As such, they need only be reasonable. Unfortunately, it will take a shift in the balance of political power on the Supreme Court, something we’re unlikely to see for quite a while, before the court might be willing to re-examine the reasoning in Buckley.
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. The 2008 presidential campaign highlighted another shortcoming of the BCRA. Its contribution limits only apply if the candidate accepts matching funds. Senator Obama rejected public financing and proceeded to raise (and spend) far more than Senator McCain could after accepting public financing.
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. (But see discussion above for the slippery slope now established for “as applied” challenges.) The 2004 Presidential election saw 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. With the court’s decision in FEC v. WRTL, however, it seems unlikley such regulations can be effective.
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 some very nasty slurs made during the presidential election campaign between John Adams and Thomas Jefferson. 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.
[1] The Bipartisan Campaign Reform Act of 2002, or “BCRA”.
[2] If you want to get a sense about who has something to lose if effective campaign finance reform gets implemented, the plaintiff list is a good starting point. Along with McConnell, other plaintiffs included: The U.S. Chamber of Commerce, the AFL-CIO, the Republican National Committee, the California Democratic Party, the National Right to Life Committee and the National Rifle Association.
[3] A telling piece of evidence was that most of the major “soft money” donors donated to both major parties.
[4] So-called after the section of the Internal Revenue Code (26 U.S.C. §527) that established them.
[5] E.g., Moveon.org and Swift Boat Veterans for Truth.
[6] Another significant factor is the influence of advertising and PR. Campaign consultants (“Spin doctors”) now use focus groups and psychological profiling to focus their message on specific subgroups among potential voters.
[7] However, a recent federal court of appeal decision indicated that this kind of provision might be held to violate the First Amendment.