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