The First Amendment

excerpted from the book

The Corruption of American Politics

by Elizabeth Drew

The Overlook Press, 1999


The Federal Election Campaign Act signed into law by the new President, Gerald Ford, in October 1974 (Nixon had announced his resignation on August 8 and departed Washington the next day), was the most sweeping campaign finance reform law ever enacted. It placed the toughest-ever limits on spending and contributions to federal campaigns and strengthened the requirements for reporting contributions and expenditures.

The 1974 act provided for a voluntary system of public financing for presidential elections, to be paid for by a checkoff on income-tax returns. A presidential candidate who accepted the public money had to agree, by law, to spend only $50,000 of his own funds in the primary and general election. If a presidential candidate wanted to exceed the limits on the amounts his campaign could spend, he had to turn down the public financing. Limits were placed on what could be spent on campaigns for the Senate and House, but public financing wasn't provided for these campaigns, because House members were loath to make funds available to potential challengers.

Limits were placed on what individuals and PACs could contribute to federal candidates and to the political parties-$1,000 for individuals, and $5,000 for PACs, per candidate in any primary, general, or run-off election. And limits were supposedly placed on the amounts that the parties could spend on federal candidates. Independent expenditures-moneys spent on ads to help a candidate, independently of that candidate's campaign-were limited to $ 1,000. Individuals could give no more than an aggregate 'of $25,000 to all federal candidates and political parties and PACs. Cash contributions of over $ 100 were prohibited. This largely overlooked provision eliminated the brown bags-or black satchels-of cash that had been passed around to the candidates of both parties during recent federal elections. The Federal Election Commission was established to enforce the law, but Congress made sure it would be toothless by stocking it with three members from each of the two major political parties, giving Members of Congress a large say over the appointments, and providing it with an inadequate budget for the job.

Virtually all of the meaning behind the 1974 law has been obliterated over time.

The first blow to this law came in the Buckley decision. The suit to overturn key parts of the 1974 act-the public financing of presidential campaigns, because it put limits on both spending and contributions; the limits on what candidates for the Senate and House could spend; the limits on individual contributions to campaigns, as well as the limits on independent expenditures-was brought on January 2, 1975, by a coalition of people on the left and the right who had objections to the new law. They included James Buckley (brother of William), then a Conservative Party senator from New York; former senator and presidential candidate Eugene McCarthy, who opposed the entire law on First Amendment grounds; the liberal activist financier Stewart Mott; the conservative periodical Human Events; the ACLU, the New York Conservative Party, and the American Conservative Union. The coalition was put together by David Keene, then an assistant to James Buckley, who realized that these various people and groups shared the same objections to the law and could pool their resources to bring the suit.

The Court decision, handed down January 30, 1976, a per curiam decision (in the name of the Court, rather than signed by any particular justice), reflected a Court divided all over the place, and was very odd. It indicated little understanding of the real world of politics. It failed to foresee the actual impact of its decisions. It was reviewing the 1974 law on its face, because there had been no actual experience under it. The Court's frame of reference was Watergate.

The Court did not say that the right to exercise free speech through spending on campaigns was absolute. It said that there were two competing values: the right of free speech in donating or spending money for elections, and preventing corruption in elections. It said that in some instances the interest in preventing corruption justified restrictions on the donation of money.

In weighing the two values of free speech and clean elections, the Court said that expenditures made independently of campaigns are a highly protected form of speech and that contributions to a campaign are less protected, because they are an indirect form of speech and because they can lead to corruption or "the appearance" of corruption. With the 1972 Nixon campaign in mind, the Court offered that "the primary purpose" of the 1974 act was "to limit the actuality and appearance of corruption [italics the author's], resulting from large individual financial contributions'" That, it said, was "a sufficient justification for the intrusion on freedom of political association" posed by the limits on contributions.

But the Court's tortured distinction between expenditures and contributions didn't reflect the real world. Making a contribution is as much a political statement as making an independent expenditure. Someone who gives $1,000 to a candidate is likely to feel that that is as much an expression of his view as if he spent $1,000 helping to finance an ad on behalf of a candidate. And there's as great a potential for corruption through "independent" expenditures as through making a contribution. Moreover, it's shortsighted to say that preventing corruption is the only legitimate reason for restricting campaign contributions and expenditures. Putting the candidates on an even, or a relatively even, playing field would be another (the Court rejected that concept). Under the current system, incumbents have a tremendous advantage over challengers-unless the challenger happens to be very wealthy.

The Court also struck down limits in the 1974 act on what candidates could contribute to their own campaigns. They can't corrupt themselves, after all. One result is that an estimated 39 percent of the one hundred current senators are millionaires-sixteen of them millionaires several times over.

Fred Wertheimer, of Democracy 21, which agitates for campaign finance reform, and a former president of Common Cause says, of Buckley, "It undermines the concept of one-person, one-vote, in that it gives much greater influence to people who have money in the process once the politician is elected than it does to the average voter." Another reason for limiting contributions and expenditures could be to spare candidates from having to spend a large percentage of their time raising money. To run a successful Senate race, candidates must now raise an average of $16,000 a week, every week, for six years. A House candidate has to raise $7,100 a week for two years.

The Court's thinking led to a hodgepodge ruling in which the spending limits of the presidential public financing system were upheld, because the system was voluntary, but spending limits for congressional races were rejected because they weren't paired with public funds and therefore weren't voluntary. But at the same time, the limits on contributions to congressional campaigns were upheld (as preventing corruption). This led to the current situation wherein Members of Congress can spend unlimited amounts on their campaigns, but the money has to be raised in limited amounts.

In affirming the concept of "independent expenditures"- expenditures on behalf of a candidate made independently of the campaign (or ostensibly so)-the Court approved a whole new way of spending money on behalf of a candidate without regard to the contribution limits. It said that spending by individuals and PACs could be unlimited so long as there was no coordination with the candidate's campaign. The theory was that in the case of independent spenders there was no danger of a quid pro quo and therefore no danger of corruption.

When the Court made this finding, over twenty years ago, there was no problem of expenditures by independent groups because there were virtually no independent groups spending money to help campaigns. The independent expenditure decision opened the way for advocacy groups-from the National Rifle Association to the Sierra Club-to spend money to help campaigns "independently," outside the limits.

The Court indecision created the rationale for what has become a major circumvention of the law, the running of "issue ads" to help or hurt a candidate. It did this through a strange interpretation of what constituted advocacy on behalf of or against a certain candidate-"express advocacy"-as opposed to simply a discussion of issues. The Court spelled out the definition of "express" advocacy in one of the most shortsighted, and most exploited, footnotes in the history of such addenda.

Footnote 52, which was to deal a major blow to the 1974 campaign law, set forth a list of words that, if used in an ad, would constitute "express advocacy" of the election or defeat of a candidate. They were, said the footnote, words "such as": "vote for." "elect," "support," "cast your ballot for," "Smith for Congress"," vote against"," defeat", "reject." This list left a lot of possibilities.

The footnote led to a long-running debate, and conflicting lower court decisions, over its intent. People who wanted the widest possible leeway to run "issue ads" that were actually-and obviously- for the purpose of electing or defeating a candidate argued that anything went that didn't use the specifically forbidden words in the footnote. This interpretation allowed corporations and unions to use treasury money or union dues otherwise barred from being spent to influence a federal election to air "issue ads" that didn't use those words but were clearly intended to help or hurt a candidate.

People who wanted to rein in this new way of spending money on behalf of a candidate argued that the "such as" in the footnote meant that the words listed therein were simply for illustrative purposes and that the Court left room for Congress to define-or redefine-what constituted "express advocacy."

The dean of the first school was McConnell. He argued that the decision, and the footnote, were sacred text and that they left no room for any other interpretation. In a Senate debate on reform in 1998, McConnell said, misleadingly, "Issue advocacy is criticism of us....The Court has said it is impermissible for us to decide how much political speech is enough."

And right along with McConnell, and bolstering his cause as he was bolstering theirs, were advocacy groups that, for their various purposes, shared this position and met in his office. The ACLU argued that there could be no further infringements of "free speech," and, like other groups-the Christian Coalition, the NRA-contended that nothing should stand in the way of their "communicating with our members." This was a bogus argument, because communicating with members, through faxes, newsletters, mailings, etc., which weren't affected, and taking an ad to affect the wider electorate's opinion are very different things.

The Court actually recognized that "it would naively underestimate the ingenuity and resourcefulness of persons and groups desiring to buy influence to believe that they would have much difficulty devising expenditures that skirted the restriction on express advocacy of election or defeat, but nevertheless benefited the candidate's campaign." Having recognized this danger, the Court unleashed it anyway.

McConnell was crafty in his use of the Buckley decision to buttress his arguments against reform. For example, in a September 1997 debate on campaign finance reform, he said: "The Supreme Court said it was constitutionally impermissible for the government to try to level the playing field." In fact, the Court said, "The concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment."

McConnell went on, sonorously, "[E]ven if it were possible somehow for the government to figure out how to micromanage and level the playing field, it is truly, constitutionally impermissible for the government to try to do that."

But this definitive-sounding argument was based on taking what the Court said about one specific provision of the 1974 act, the part of the decision that struck down mandatory spending limits for congressional campaigns, and applying it to totally different kinds of provisions in the pending legislation.

At another point in that debate, McConnell told the Senate: "The Court has made it perfectly clear that the ability to speak and to influence the course of events in any way that is constitutionally permissible is going to be protected."

But this, of course is a tautology-a perfectly circular statement.

IN 1996, a group called Citizens for Reform ran an "issue ad" against Rep. Cal Dooley, Democrat of California, that said: "Congressman Cal Dooley makes choices for you and your family. Cal Dooley said no to increased money for federal prisons. Instead, Dooley gave the money to lawyers. Lawyers that used taxpayer's money to sue on behalf of prison inmates and illegal aliens. Cal Dooley said no to increased money for drug enforcement. Instead, Dooley gave your money to radical lawyers who represented drug dealers. Is Cal Dooley making the right choices for you?" (Dooley won reelection.)

Only after the election was it learned that Citizens for Reform was funded by Triad Management Services, Inc., an organization that steered conservative money into contributions and ads. According to the Wall Street Journal, Triad was backed by the highly conservative Koch brothers, owners of Koch Industries, a company specializing in chemical, oil, and energy services, and one of the country's largest privately held firms. Triad was believed to have taken ads in at least twenty-six congressional races in 1996. Many of these and other mysteriously sponsored ads came into the campaigns in the closing days.

Also in 1996, the League of Conservation Voters ran an "issue ad" against Rep. Greg Ganske, a moderate Republican from Iowa. It said: "It's our land; our water. America's environment must be protected. But in just eighteen months, Congressman Ganske has voted twelve out of twelve times to weaken environmental protections. Congressman Ganske even voted to let corporations continue releasing cancer-causing pollutants into our air. Congressman Ganske voted for the big corporations who lobbied these bills and gave him thousands of dollars in contributions. Call Congressman Ganske. Tell him to protect America's environment. For our families. For our future." (Ganske won.)

These sorts of ads proliferated like crazy in 1996, as more groups, including ad hoc groups, sponsorship and membership unknown, and the political parties, found new ways of getting around what limits there were on spending in campaigns.

The other death blow to the reforms of 1974 was the opening of the soft money loophole. Written by the Federal Election Commission in 1978, at the behest of the two parties, the regulation said that some party activities- could be paid for by funds outside limits established by the act. That opened the way for corporate and union funds as well as unlimited amounts from individuals to be used for certain federal election activities. (The FEC, though largely ineffective, can be responsive when the two parties ask for the same thing.) The rationale for such soft money was that it would go to nice, benign, "party-building" activities, such as get-out-the-vote drives and paying for banners and balloons. But it has been used for purposes well beyond that-for hundreds of millions of dollars in "issue ads" by the parties and by interest groups. That a political party could run an ad to help their candidates and still call it an "issue ad" is absurd, absurdity was the legacy of the Buckley decision.

Political Corruption

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