The Day for CIean Money

The Progressive magazine, March 2000


The good news behind the early success of John McCain-other than wiping the smirk off George W.'s face, as cartoonist Jules Feiffer noted in his "op art" in The New York Times-is that many citizens are responding to McCain's call for campaign finance reform. While he himself has dipped his hand in the cookie jar, McCain nevertheless recognizes the pernicious effect of money on politics. Along with Senator Russ Feingold, Democrat of Wisconsin, McCain has pioneered legislation in Congress that would ban "soft money"-the hundreds of millions of dollars in unlimited contributions to the two main political parties.

This may be the day, finally, for reform. If even Bush is forced to call himself a reformer, you know the winds have changed in our direction.

For years, the Mandarins in Washington have said that reform is a dead letter. But the people-and the courts-are proving them wrong.

More than 60 percent of Americans are in favor of public financing if candidates refuse to take private money and agree to limit their expenditures, says Nick Nyhart, deputy director of Public Campaign, a national organization based in Washington, D.C., that supports full public financing of elections.

Proponents of campaign finance reform got a big boost from the Supreme Court in January when it upheld Missouri's limits on contributions. In 1994, the Missouri legislature enacted a bill that set ceilings on contributions, ranging from $250 for local offices to $1,000 for statewide offices, and added an adjustment for inflation. A political action committee named Shrink Missouri Government PAC sued because it said its rights were violated when it could not contribute more than $1,025 in 1997 to Zev David Fredman, who was running for the Republican nomination for Missouri state auditor. Fredman also joined the suit.

They both argued that the $1,000 limit the U.S. Supreme Court placed on individual contributions in its landmark ruling Buckley v. Valeo in 1976 was now too low because of the inflation that has taken place in the ensuing twenty-three years. And they said that the state of Missouri had not cited empirical evidence of corrupt practices or of a perception among Missouri citizens that large contributions exercise a corrosive influence.

A 6 to 3 majority of the Supreme Court, including Chief Justice William Rehnquist, ruled against the plaintiffs on all grounds. Regarding the evidence needed to demonstrate corruption or the appearance of corruption, Justice David Souter wrote for the majority, "This case does not present a close call." He said states do not have to go to great lengths to demonstrate the need for a clean process. "The dangers of large, corrupt contributions and the suspicion that large contributions are corrupt are neither novel nor implausible," he wrote.

Souter also punctured the inflation argument, which George Will, among others, is so fond of. "In Buckley, we specifically rejected the contention that $1,000, or any other amount, was a constitutional minimum below which legislatures could not regulate.... We asked, in other words, whether the contribution limitation was so radical in effect as to render political association ineffective, drive the sound of a candidate's voice below the level of notice, and render contributions pointless." The Missouri law did none of these, the Court ruled.

The Court's decision supports the efforts by states around the country to set their own limits on campaign contributions. And the various opinions of the Justices in the majority suggest that the Court may be willing to correct some of the flaws of Buckley-not least the equation of money and speech.

Justice John Paul Stevens, in a curt concurring opinion, wrote: "I make one simple point. Money is property; it is not speech." He added that property rights "are not entitled to the same protection as the right to say what one pleases."

Justice Stephen Breyer (with Justice Ruth Bader Ginsburg concurring) agreed with Stevens that money and speech are not identical, but weighed the competing interests. "On the one hand, a decision to contribute money to a campaign is a matter of First Amendment concern-not because money is speech (it is not); but because it enables speech," Breyer wrote, as he tried to balance competing constitutional concerns. "On the other hand, restrictions upon the amount any one individual can contribute to a particular candidate seek to protect the integrity of the electoral process.... Moreover, by limiting the size of the largest contributions, such restrictions aim to democratize the influence that money itself may bring to bear upon the electoral process."

The arguments of Souter, Stevens, Breyer, and Ginsburg can easily be marshaled to head off those of Antonin Scalia, Clarence Thomas, and Anthony Kennedy, as well as the George Wills of this world, who want no limits at all on the amount of money people may contribute. They claim that any restrictions are unreasonable limits on free speech and association. But the logic of their position would lead them to invalidate the 1907 Tillman Act, which prohibited direct corporate contributions to candidates and the 1947 expansion of that act, which banned direct union contributions. After all, such contributions could be construed as speech and association, as well. Limits on campaign contributions are founded on the principle that money should not be allowed to corrupt elections. That should be a bedrock democratic principle.

The Court decision in the Missouri case can now be applied to soft money contributions, which corrode the electoral process and raise the appearance of corruption. As Breyer noted, "Buckley's holding seems to leave the political branches broad authority to enact laws regulating contributions that take the form of 'soft money.' "

Given the Court decision in the Missouri case, McCain-Feingold should pass constitutional muster, despite what Senator Mitch McConnell, Republican of Kentucky, says. And the way is open for states to come up with their own, more radical solutions. Many are already doing so.

In the last four years, Arizona, Maine, Massachusetts, and Vermont have passed initiatives or laws mandating clean money solutions: public financing for candidates who forego (or accept only a small amount of) private money and agree to limit their expenditures. Arizona and Maine have an ingenious kicker: a provision whereby clean money candidates can get more public funds if they are being outspent by their opponents or by so-called independent issue advertisers. This keeps the playing field level, and it doesn't butt up against a constitutional wall.

(Banning issue ads, as the original McCain-Feingold bill would have done, raises a serious First Amendment problem, we believe, and we were pleased to see it removed in last year's incarnation. To tell NARAL or the National Right to Life Committee that they can't run ads about abortion within sixty days of an election if those ads mention a candidate's name is to cut a hole in the First Amendment. As long as these groups don't act in concert with candidates, they should be able to say what they want. But so as not to let these issue ads predominate, candidates should be able to get matching funds from the public pot.)

The Maine law, the first on the books, recently was upheld by Chief Judge D. Brock Hornby of the U.S. District Court.

Challenging the Maine law were the National Right to Life PAC and a group of candidates represented by the ACLU. They said the law coerced candidates to take public money.

The judge didn't see it that way, though. In November, he ruled, "Maine's program presents a real choice," not a coerced one for candidates. And he cut to the chase: "The plaintiffs," he said, "want to preserve the ability to 'outspend' their publicly financed opponents. Their view of free speech is that there is no point in speaking if your opponent gets to be heard as well."

That's it, isn't it? Republican opponents of campaign finance reform, like Bush and McConnell, are worried that their longtime advantage-the ability to outspend and thereby drown out their opponents-is about to be taken away.

The court victory in Maine "is perhaps the most extraordinary development campaign finance reformers have seen in the past two decades," says Public Campaign.

As goes Maine, so go many other states. Connecticut, Missouri, Oregon, New Mexico, and North Carolina all have good prospects of passing clean money initiatives or legislation this year, says Nyhart.

On the national level, we need full public financing, too. Paul Wellstone, Democrat of Minnesota, and John Kerry, Democrat of Massachusetts, are leading that effort in the Senate, and John Tierney, another Massachusetts Democrat, is promoting it in the House.

Abolishing soft money may be the only doable national reform at this time, as Feingold maintains. But let's keep our eyes on the prize.

We will not have true democracy in America as long as the wealthy and the corporate interests can rig the system.

We need full public financing on the state and federal level, with matching funds for candidates to keep pace with issue advertisers or immensely wealthy opponents. Such a system, along with the abolition of soft money, would be the best way to take the stench of corruption out of the air.

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