SPEAKERS CONTENTS INSERTS
Page 1 TOP OF DOCFREE SPEECH AND CAMPAIGN FINANCE REFORM
THURSDAY, FEBRUARY 27, 1997
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
The subcommittee met, pursuant to notice, at 9:07 a.m., in room 2141, Rayburn House Office Building, Hon. Charles T. Canady (chairman of the subcommittee) presiding.
Present: Representatives Charles T. Canady, Henry J. Hyde, Ed Bryant, William L. Jenkins, Bob Goodlatte, Bob Barr, Asa Hutchinson, Robert C. Scott, Maxine Waters, John Conyers, Jr., and Melvin L. Watt.
Also present: Representative Martin T. Meehan.
Staff present: Kathryn Hazeem Lehman, chief counsel; John H. Ladd, counsel; Brett Shogren, staff assistant; and Robert Raben, minority counsel.
OPENING STATEMENT OF CHAIRMAN CANADY
Mr. CANADY. The subcommittee will be in order.
Page 2 PREV PAGE TOP OF DOC The subject of campaign finance reform has assumed a prominent position in public discussion. Recently, there have been few days in which matters relating to campaign finance have not been the subject of stories on the evening news and on the front pages of major newspapers.
Today's hearing on free speech and campaign finance reform is designed to place the broader debate concerning campaign finance in the specific context of the first amendment of the U.S. Constitution as interpreted by the Supreme Court.
In the case of Buckley v. Valeo, the Supreme Court established a broad framework for applying the protections of the first amendment to legislative restrictions affecting campaign finance. In Buckley the Court stated: ''In the free society ordained by our Constitution, it is not the Government, but the people, individually as citizens and candidates, and collectively as associations and political committees who must maintain control over the quantity and range of debate on public issues in a political campaign.''
The purpose of today's hearing is not to exhaustively examine the details of specific campaign finance reform proposals, but to present testimony regarding the relevant framework of constitutional law which is now in place. Indeed, the Judiciary Committee does not have jurisdiction over the campaign finance proposals.
There are those, however, who believe that the existing framework is fundamentally flawed and that our Constitution should be amended to correct the flaw. And, of course, we would have jurisdiction over any proposal to amend the Constitution. Although I do not support such a constitutional amendment, I believe that a discussion of the course of action of amending the Constitution can help illuminate the critical issues at the heart of the debate over campaign finance reform.
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I look forward to hearing the testimony of the witnesses who are with us here today. I would inform the members of the subcommittee that it's our intention to hear from the first panel of witnesses here today and then break for the joint session of Congress, which will begin at 10 o'clock. We will then resume the hearing after the completion of the joint session of the Congress.
I'm very pleased that on our first panel today we have two of our colleagues with us.
Mr. FRANK. Did you forget our names?
Mr. CANADY. We have two distinguished Members of the Congress who will testify. Testifying first will be Senator Mitch McConnell. Senator McConnell serves the State of Kentucky and is currently chairman of both the Foreign Operations Subcommittee and the Nutrition Subcommittee, as well as serving on the Agriculture, Appropriations, Labor, Rules, and the Committee on Joint Printing. He also is the chairman of the National Republican Senatorial Committee.
Also on our congressional panel is a member of the Judiciary Committee, Congressman Barney Frank. Congressman Frank represents Massachusetts' Fourth District. He currently serves on the Subcommittee on Courts and Intellectual Property, where he is the ranking Democratic member. Most recently, Representative Frank served as the ranking Democratic member on this subcommittee, but he has departed from that responsibility; we're glad to have you back with us here today.
Senator McConnell, we'll recognize you first.
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Representative Scott, would you like to make an opening statement?
Mr. SCOTT. Mr. Chairman, I'll defer an opening statement until the next panel, if that's all right. We can go ahead. Thank you very much.
Mr. CANADY. Are there any other members wishing to make an opening statement?
Mr. HYDE. If I may, very briefly, Mr. Chairman.
Mr. CANADY. Mr. Hyde.
Mr. HYDE. I want to congratulate you for holding these hearings. We wish they could be more comprehensive, but we do have lots of limitations, time not being the least. And I'm told 27 Members have legislation in on this issue, and so there had to be an arbitrary limitation.
But I just want to say I don't know a more important subject that we'll be dealing with. We're talking about the heart and soul of democracy, namely the people's right to elect their representatives. And no one can be happy with the present situation, but I think we have to be extremely careful that we don't reform ourselves into a worse situation.
The first amendment is terribly important. I do believe money is a substitute for political advocacy. Everybody can't stuff envelopes or ring doorbells or operate a phone bank, but they can participate by supporting the candidates of their choice. And we should be careful not to inhibit that. We should be careful to understand in the real world that organized labor has a very important stake in the outcome of elections and has an absolute right to participate in these elections, in the process. But it's very hard to quantify in-kind contributions which almost invariably go to the Democratic Party.
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Now, yes, the business community is supposed to be allied with the Republican Party, but truth be told, the business community plays both sides of the street, and I don't blame them for that. But there is a real problem about this so-called level playing field when you exclude in-kind contributions, which are very important and are, after all, what you purchase in a campaign with the money--namely bodies and people to help you.
So, I think we have to be careful. We have to restore the public's confidence, if ever we can, in this institution and in the election process, but always erring on the side of freedom and free speech. And so that's why I think this is a terribly important and interesting issue, and we all ought to involve ourselves. And I thank you, Mr. Chairman.
Mr. CANADY. Thank you, Mr. Chairman. Any other members wishing to make a statement?
Mr. CANADY. We will then proceed to the first panel. I'd like to ask that each of you try to confine your remarks to 5 minutes each. We'll try to stay within that guideline, if possible. Of course, without objection, your complete remarks will be made a part of the record.
Mr. FRANK. We'll, of course, comply, Mr. Chairman, but you've got 50 minutes to kill without another panel, so I assume we might want to use some of that.
Mr. CANADY. Senator McConnell.
Page 6 PREV PAGE TOP OF DOCSTATEMENT OF HON. MITCH McCONNELL, A SENATOR IN CONGRESS FROM THE STATE OF KENTUCKY
Mr. MCCONNELL. Thank you, Chairman Canady and Chairman Hyde. It's good to see you again, and I want to commend you for holding these hearings, because these hearings are about the real issue. The issue is the first amendment.
There are a bunch of bills bouncing around; there are Shays-Meehan in the House and McCain-Feingold in the Senate. I know the ACLU is going to be testifying before you later, I'm told. I received a letter from them a week ago today pointing out--and by the way, they were cocounsel in the Buckley case in the mid-1970's--that that bill is unconstitutional in at least 12 different ways. In short, it's dead-on-arrival in the courts.
My view is when something is blatantly and obviously unconstitutional, we ought not to pass it. So I think--and I'd like to ask that that be made a part of the record.
Mr. CANADY. Without objection.
[The letter follows:]
INSERT OFFSET RING FOLIOS 1 TO 7 HERE
Mr. MCCONNELL. So this is a hearing, an honest hearing about the real issue. And I commend my friend on the left, Barney Frank, for recognizing the obvious, which is that if you're going to do what most members of his party would like to do, which is to put the Government in charge of the political speech of individuals, groups, candidates, and parties and have the Federal election grow to the size of the Department of Veterans Affairs, with an army of auditors and accountants crawling all over everyone in this country who tries to get involved in the political process. In order to do that, you've got to amend the Constitution.
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Dick Gephardt has said that; Tom Daschle has said that. I don't know what the plans are in the House, but it's my understanding that our leader in the Senate would like to have that debate fairly soon because that's an honest and straightforward debate about whether or not we ought to, for the first time in history, amend the first amendment to the U.S. Constitution to give the Government the power to control political discourse in this country.
As we all know, this is driven by the notion that somehow we're spending too much money; put another way, speaking too much in the American political process. You all have heard some of the figures. Last cycle we spent roughly what the cosmetics industry did promoting its product, a little more than the public consumed on yogurt, and about twice as much as the public consumed on bubble gum.
Looking at it another way, of all the commercials run in the country last year, 1 percent were political commercials. And so people say that we're speaking too much. That is the discourse; that is the political discussion unimpeded by the media of individuals, groups, candidates, and parties in our country, and it is at the core of the first amendment.
''The first amendment denies Government the power to determine that spending to promote one's political views is wasteful, excessive, or unwise. In the free society ordained by our Constitution, it is not the Government, but the people--individually as citizens and candidates and collectively as associations and political committees--who must retain control over the quantity and range of debate on public issues in a political campaign.'' I'd love to take credit for that, but that's straight out of the Buckley case, and that's what this whole debate is really about.
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The U.S. Supreme Court has been clear and consistent--consistent--on campaign finance, stating further in Buckley: ''A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.''
And let me just pause right there. I like to say to my friends in the press, ''How would you like it if we were trying to pass legislation that limited the circulation of the Washington Post?'' Or said to the broadcast world, ''You can only broadcast so many hours a day.'' The same first amendment, same free speech, same issue, and yet our friends in the press are enamored with this issue.
They would love to put the Government in charge of our little portion of the speech going on in this country, that 1 percent of commercials last year--the big Government solution to shut us all up.
The courts aren't going to allow it, and that's why I want to commend the subcommittee chairman and the full committee chairman for having this hearing on the first amendment, because that is the issue. That's what is really before us. And in the Senate I'm told, and I hope, that we will soon debate the appropriateness of amending the first amendment for the first time in 200 years to give the Government the power to restrict all of this speech. I think it will be a healthy and vigorous debate.
Mr. Chairman, I'd also like to ask that a column by the Washington Post opposing a constitutional amendment in this field appear in the record at this point, and also a column by George Will a couple of weeks ago in the Post, also referring to the possibility of amending the first amendment. If we could include those in the record I would appreciate it, and also my full statement.
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Mr. CANADY. Without objection.
Mr. MCCONNELL. Thank you very much.
[The prepared statement of Mr. McConnell follows:]
PREPARED STATEMENT OF HON. MITCH MCCONNELL, A SENATOR IN CONGRESS FROM THE STATE OF KENTUCKY
INSERT OFFSET RING FOLIOS 8 TO 13 HERE
Mr. CANADY. Thank you, Senator. We appreciate your being here today.
STATEMENT OF HON. BARNEY FRANK, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MASSACHUSETTS
Mr. FRANK. Thank you, Mr. Chairman. I share Senator McConnell's view that this is a very important debate to have, because it is quite fundamental, as the chairman of the full committee pointed out.
I should say--and he's come over from the Senate and may be a little unfamiliar with his venue here--this is not the best committee to argue the point that we should not amend the Constitution. This committee has sent more constitutional amendments to the floor than any Congress since the First Congress, when they did the Bill of Rights.
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So, you'll impress no one by talking about not amending the Constitution. We as a committee do that rather frequently.
Mr. MCCONNELL. This amendment I don't like.
Mr. FRANK. Well, I understand that, but let's not talk about amending it in general. Oh, you may; I mean you and I would agree on a lot of these things, but you are here in the home of the great amenders.
So, as to the philosophy--and I think Senator McConnell has made one point with which I completely agree--advocates of campaign finance reform, advocates of putting some restrictions on the role of money in campaigns have, on the whole, underestimated an unpleasant reality--the Constitution as interpreted by the Supreme Court.
The Washington Post, for instance, had a series a week or two ago documenting all the horribles. And on the Wednesday of that series, which was its concluding article, they had their seven recommendations.
To their credit, although they did not pay a lot of attention to this in the substance of the articles, of their seven recommendations they had to acknowledge in their summary chart that four of them were probably unconstitutional as the Court currently interprets the Constitution, or at least had very serious constitutional problems. And those are the most significant in terms of regulating the current system, and I think that is something people have to deal with.
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I am a supporter of the bill sponsored by my colleague, Mr. Farr. I'm for it, but I do believe this: while we can make some gains with current statutory rules, what the Supreme Court leaves unregulatable will soon undermine that, and it is certainly the case. And people have not looked into this with sufficient and actual integrity.
Much of what people want to do--and certainly any comprehensive scheme would have to require a change in the way the Supreme Court looks at the first amendment. Now some of my liberal friends who don't want to amend the Constitution, in part because they're afraid of how the other side will amend the Constitution, say, ''Well, we'll get the Supreme Court to change its mind.''
That is, of course, something you can wish for, but people who have read the opinions in this--because they begin with Buckley, but they culminate most recently in the Colorado case, and what the Supreme Court has done has moved further in the direction of protecting campaign activity. It is not the case that the Buckley decision, which set forward the notion that expenditures are free speech and cannot be limited--that has not been narrowed; that has been broadened.
And you cannot read the Colorado Republican case, which was decided seven to two--although a three-judge court was the plurality in terms of result, although not, obviously, numerically--but seven of the nine Justices said the Colorado Republican Party was free in 1986 to spend money against the Democratic nominee for the Senate in Colorado without being subjected to FEC regulations and statutes because they weren't coordinated with the Colorado Republicans that were running.
Page 12 PREV PAGE TOP OF DOC I mean there simply is that major fact that people have to take into account, and wishing that the Supreme Court would change it--one other statistic: I think 16 Justices have sat since Buckley that I counted up, and I believe three have indicated any serious disagreement with that.
So that leads to the fundamental philosophical issue: Are money and speech the same thing? And that's what I want to deal with, because there appears to be a somewhat partisan, liberal-conservative, Republican-Democratic difference here. And I think the answer is no. Clearly, speech and money are different. I would say this by the way: If you believe that money is speech, then Buckley is inconsistent internally, because it does not make sense then even to restrict contributions.
But just to set this out now, if I may, in my remaining minute. We have a political system which says, ''one-person, one-vote.'' Money is unevenly distributed in our society, as it has to be, because that's the driving mechanism of the capitalist system which serves us so well. The harder you work and the abler you are, the more money you're going to get on the whole, and we need that to give people the incentive to work to their fullest.
The free market system will, inevitably, as it maximizes wealth, produce some inequity; in fact, it's fueled by inequity. The political system is one in which people are supposed to be formally equal. People will have different levels of talent and energy, et cetera, but those are more likely to be randomly distributed in terms of political skills and interest than money.
To the extent that you collapse the distinction between money and speech, which Senator McConnell does and others do, to the extent you say that the ability to spend money, the ability to buy ads, et cetera, that that's simply a form of speech, what you do is you undercut the formal political equality that's the basis of our system.
Page 13 PREV PAGE TOP OF DOC You take the inequalities that are a necessary and, indeed, beneficial result of the capitalist economic system and you import them into the political system. And, of course, what happens then is the people who have a particular set of interests economically are better able than other citizens to defend themselves. I stress that because I don't think the problem in our campaign system is the kind of narrow bribery that is often imposed.
If I could have 30 seconds, Mr. Chairman, I want to comment on a study I saw which said, ''Isn't this condemning?'' It turns out that people who voted in the way that the timber industry liked and the sugar industry liked and a couple of other industries liked, got more money from those industries than others. And they said, ''Ah, ha.'' ''Ah, ha,'' my foot. What? Are people supposed to be stupid? Are people supposed to give to people who oppose them?
I mean, this notion that because people who vote a certain way get campaign contributions through the people who agree with them is simply a sign that human beings have some rationality. There is absolutely nothing in that to support the notion that they bought the votes. I mean, I don't know. Why don't they do--they could do a very good analysis of my campaign contributions, and they could show that people who believed in gay rights and gun control and were pro-choice gave me a lot more money than they gave Mr. Hyde.
I don't think that would be proof, frankly, that they bought me or that people on the other side had bought Mr. Hyde. I mean, this notion--it is the most simplistic form of nonlogic. Yes, in a system with any rationality there will be a correlation between the way you vote and the people who give to you. But it will be a correlation based, I believe, overwhelmingly on the fact that people support in politics the people who support them. So it is not the narrow kind of bribery which I think the press inaccurately focuses on. There's a broader, systemic problem.
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Let me just say in closing, if you equate money and speech, you then have the political system become a reinforcer of the gross inequalities that are a good thing in the economic system, but ought not to be dominant in the political system.
Mr. CANADY. Thank you, Representative Frank.
Representative Scott, I'll recognize you for questions first.
Mr. SCOTT. Could I give my opening statement now?
Mr. CANADY. Sure.
Mr. SCOTT. OK. Mr. Chairman, I'd like to make my opening statement at this point, if I could, before the questioning starts, and would like to follow up on what Mr. Frank said about amending the Constitution in this committee.
When we were sworn into office, Mr. Chairman, some of us swore to support and defend the Constitution. Others apparently thought they were being sworn in to support and amend the Constitution. I would think that amending the Constitution ought to be a last resort on any problem that we have. Even then, if we decide that we can't cure a problem without a constitutional amendment, I think in much of our history we ought to just live with the inconvenience.
Someone's religious beliefs or practices might be an affront to our own, but I, frankly, believe we're better off just living with it rather than amending the Constitution in order to eliminate that inconvenience.
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If we do consider amending the Constitution, we have to first determine what problem we're seeking to fix and whether it is grave enough to warrant a constitutional amendment. Assuming we can reach agreement on what the problem is, we should consider what, short of a constitutional amendment, might be able to fix the problem.
Now, my view is that anything short of public financing will not solve any of the problems that people have suggested, because even if you do a constitutional amendment and you allow any of the bills, you still have a situation where people are going to have to seek contributions from those who presumably have a special vested interest in the outcome of legislation.
So even if we amend the Constitution, we may not be able to fix the problems people see. And if we agree that a constitutional amendment can fix the problem, we have to make sure that the cure is not worse than the disease. We frequently consider amending legislation to fix its unintended consequences, and I would hope that we wouldn't have to do that with a constitutional amendment, going back after the fact and trying to fix it.
On the issue of campaign finance reform, I'm not sure that we've made the case for even considering a constitutional amendment, and I appreciate the testimony of the two witnesses here in helping us and enlightening us on many of the problems.
Mr. Chairman, if I could begin my questioning, or if you want to start the questioning.
Page 16 PREV PAGE TOP OF DOC Mr. CANADY. We'll come back to you, if you'd like, for the questioning.
Mr. SCOTT. OK.
Mr. CANADY. Mr. Hyde.
Mr. HYDE. Well, amending the Constitution, Mr. Frank talked about our propensity for doing that, and I must agree it is somewhat dismaying at the proliferation of constitutional amendments, but we can take consolation in the fact that very few of them ever get out.
But they're worth discussing because there's a tremendous imbalance in the efficacy of the Constitution. We have a 1st amendment which is sacrosanct, and we have a 10th amendment which is literally ignored, atrophied. The commerce clause has an infinite elasticity; another factor.
There are a lot of things we ought to look at as to how the Constitution is interpreted because, after all, ''the Constitution is what we say it is,'' said a famous Justice.
Mr. Frank doesn't think money is political speech. I dare say he thinks burning a flag is political speech. And so we sometimes have interesting interpretations of what free speech is, but as long as campaign funds are confined for campaign purposes and can't be skimmed off by the candidates or their minions, I don't know what you do with money but buy signs, buy television, buy mail, pay for postage, hire people to talk on your behalf. And that's political speech, so I think we ought to be very careful.
Page 17 PREV PAGE TOP OF DOC Full disclosure and revived parties--the parties ought to be--I hope before I pass on that I see the parties supporting candidates rather than candidates supporting the parties, but that will be a long wait.
Mitch, Senator McConnell.
Mr. MCCONNELL. Mr. Chairman, could I just make an observation?
It seems to me at the heart of Congressman Frank's argument is that somehow we need to seek a level playing field; you hear that argument all the time. I think it's important to note that the Buckley case specifically rejected that argument. This is the way they put it: ''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.''
In looking at politics, it seems to me that a lot of things go into making a level playing field. In my State, if I got about 700,000 people to change their registration from Democrat to Republican, I might have closer to a level playing field. And if I could get the two major newspapers to leave the State, maybe I'd have close to a level playing field.
And then what about a race in which the sort of unknown citizen is running against a famous basketball player or a war hero or a movie star? Or what about something as simple as one candidate being better-looking than the other one? Or being a better speaker than the other one? It is impossible to level the playing field. Not only is it impossible, the Supreme Court has said it's impermissible. And I think this search for the level playing field is a quixotic venture with no chance of success, nor is it desirable.
Page 18 PREV PAGE TOP OF DOC Mr. FRANK. May I respond? What we have here is not a search for a level playing field, but on the part of my good friend, Mitch, a search for someone who will be dumb enough to say that's what he wants, a level playing field. I never do.
Mr. MCCONNELL. But they say it all the time.
Mr. FRANK. No, but I never do, Mitch, and I know you keep sort of interpreting me this way. This is the second time we've been here, and the Senator has expressed some frustration that I haven't called for a level playing field. I haven't because I don't think that's the appropriate concept, but I do believe that we are talking about fundamental philosophical questions here. Obviously, money is a form of speech.
I will say if you take what you have said, by the way, the Buckley case was obviously some kind of compromise, because I don't understand under your theory, either the chairman's or yours, of how you have a right to limit people's contributions. I mean, if money is, in fact, totally the same--it's just a form of speech--then by what right do you limit the contributions that people make?
You certainly could not constitutionally limit my right to have someone speak on my behalf. I could ask someone to make speeches on my behalf. Someone could contribute their speeches to my campaign, and that's not limitable. So, I think there's a fundamental flaw there.
Mr. CANADY. The gentleman's time has expired. Without objection, the gentleman will have 1 additional minute.
Page 19 PREV PAGE TOP OF DOC Mr. FRANK. Thank you, Mr. Chairman.
But then on the fundamental philosophical question, no, I don't think there should be a totally level playing field; I never said there should be. I do think this; we have a political system and an economic system. I think inequality plays a central role in driving our economic system to greater wealth. I think we also, however, believe consciously that the political system is to have a different basis. In the economic system the more money you have, the more you're supposed to have. That's the way it works. That's to give you the incentive to accumulate more.
But in the political system, it is supposed to be one person, one vote. And the notion that it is somehow illegitimate to restrict expenditures at all obliterates that difference. But let's--and people can hold that position--but I think we should be very clear because we've now had two leading intellectual voices in the Republican Party, and I think this is a difference between the parties that ought to be clear.
What we're hearing now is an argument that says there should be no restrictions on spending, whatsoever--wealthy individuals who want to spend millions of dollars; people should be able to give large amounts of money. Let's understand--because this is going to play out in part legislatively--let's understand what we're talking about. This is an argument that says money should have unrestricted sway in the political system. There should be no regulation, only disclosure, and I think what that does is to invite wealth to distort democracy in an unfortunate way.
Mr. CANADY. The gentleman's additional time has expired.
Page 20 PREV PAGE TOP OF DOC Mr. HYDE. Mr. Chairman, I ask unanimous consent that Senator McConnell have 2 additional minutes and any more time that Mr. Frank wants, too.
Mr. FRANK. Thank you, Mr. Chairman.
Mr. HYDE. I would just like to say----
Mr. CANADY. Without objection, the gentleman will have 2 additional minutes.
Mr. FRANK. That's your time, Mr. Chairman, not ours.
Mr. HYDE. I understand, and I am very generous with a level playing field.
Mr. FRANK. Yes, you are. [Laughter.]
Mr. HYDE. I think you can have reasonable restrictions on any constitutional rights. We have that on free speech. We have that on guns. And I don't think that obliterates or denigrates the right if you have some reasonable restriction. Free speech, as you know, has plenty of restrictions, but the right of free speech ought to be inviolate, and I think in this situation reasonable regulations do not impair----
Mr. FRANK. Mr. Chairman, could I just ask you a question?
Mr. HYDE. Sure.
Page 21 PREV PAGE TOP OF DOC Mr. FRANK. Because while you could make that argument, the Supreme Court has, in fact, explicitly, with regard to the expenditure of campaign funds, rejected that notion. The current Supreme Court decisions do not accommodate what you have just said. They say, and I believe the Senator would agree----
Mr. MCCONNELL. I have my time.
Mr. FRANK [continuing]. Because of expenditure, they have no restrictions allowed.
Mr. HYDE. People spending their own money.
Mr. FRANK. Right.
Mr. MCCONNELL. And campaigns.
Mr. FRANK. Expenditures; that's what expenditures are.
Mr. MCCONNELL. And campaigns as well. One of the frustrations of Congressman Frank--he doesn't like any of the Buckley case, I don't think--but one of his particular frustrations is the Court drew a distinction between contributions and spending, and it's an important distinction. The Court said that limits on contributions were appropriate because that had a corrupting potential, but that limitations on spending were totally inappropriate, that the spending of money had no corrupting potential at all.
Congressman Frank would like to argue that it's inconsistent to support limitations on individual contributions, but not limitations on spending. I don't think it's inconsistent at all. That's the Buckley case; I agree with the Buckley case on that point. We've had limitations on individual contributions for 20 years, and it seems to me democracy and free speech and campaigns have survived quite well. The Buckley case drew that distinction. You don't like that distinction. Many of us support that distinction, and I think that's served us quite well.
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Mr. FRANK. Let me respond by saying, yes, you invoke the Buckley case, but you don't give any reasoning, Senator, because I think, frankly, people can't. I think that was an example of a Court compromising, because on your own terms there is no logical basis for that distinction. It's true; the Court said contributions are corrupting.
Just an aside, one of the things--the Senator would agree----
Mr. CANADY. I'm sorry; the gentleman's time has expired. Other members have questions, and we're going to----
Mr. FRANK. Could I just finish this answer?
Mr. CANADY. Mr. Frank, you've been finishing up for a long time now. Our time is running out. Other members have questions. We'll get back to you.
Mr. Scott. Mr. Scott can recognize you if he likes.
Mr. SCOTT. Thank you. The gentleman will have an opportunity to respond. I had two quick questions, then I'll yield time.
Do either of you have any problem--we're talking about constitutionality in this subcommittee--do either of you have problems with a Presidential public financing scheme for congressional races? Is there any constitutional impediment to public financing of congressional races using that idea?
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Mr. FRANK. Well, I think there are constitutional obstacles to it being fully effective. I support it, but here's the problem. In the first place, under the Constitution, as you know, you cannot compel anybody to participate and, indeed, under the doctrine that you can't have unconstitutional conditions on gifts. If the inducements are too sweet and the penalty for not participating is too harsh, you could be in a constitutional situation there. That is, you can offer it purely voluntarily, but to the extent that you begin effectively to induce participation and penalize non-participation, you would have a constitutional problem.
Secondly, those of us who might agree have this problem. Under Supreme Court doctrines, while I could agree to be publicly financed and my opponent could or couldn't agree, the Republican Party in Massachusetts could then spend as much as it wanted under the Colorado case. In other words, other people not party to the two campaigns are then free to spend fairly freely on their own, and that could include the Massachusetts Republican and Democratic Parties.
Mr. SCOTT. You still have that problem on the Presidential level, too.
Mr. MCCONNELL. The answer to your question is, the reason the Presidential system is constitutional is because you're not penalized if you don't agree to accept the spending limit and the public subsidy. The reason even the most conservative Republicans have accepted public funding in running for President is because the contribution limit is so low in Presidential races that you can't raise enough money privately. So, they make you a pretty good deal. It's kind of a buyout of your speech.
Page 24 PREV PAGE TOP OF DOC You could probably craft a taxpayer-funded system that would pass constitutional muster. With a $5 trillion debt, I don't know many people who think we--I don't know many people who are even advocating anymore that we have taxpayer-funded elections. But you could probably craft something that would pass constitutional muster.
Let me finally say, Congressman Scott, the Presidential system has been a complete and utter failure because it has not stemmed the rate of increase in spending. Spending limits are like putting a rock on jello, and we've seen that in the Presidential system as there's been an explosion of other kinds of spending at the same time. Witness the DNC fundraising last year, all of which was designed to influence the Presidential campaign which was also under spending limits and taxpayer-funding.
Mr. SCOTT. I would yield the remainder of my time to the gentleman from Massachusetts who is the chief patron of one of the bills and is not a member of the subcommittee, but a member of the full committee.
Mr. MEEHAN. I thank my colleague, Mr. Scott, for that opportunity.
Mr. McConnell, there's been a lot of discussion of the Buckley decision, and I want to point out that the Buckley decision also emphasized that avoiding the appearance of corruption in American politics was one of importance to the Court. And if money was speech, I don't think there would be a Buckley decision, because among other things, because of that appearance, the Court upheld the contribution limits that were in the 1974 act.
In fact, the Court said: ''Of almost equal concern to the danger of actual quid pro quo arrangements is the impact of the appearance of corruption stemming from public awareness of the opportunities for abuse inherent in a regime of large financial contributions.''
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I want to ask your opinion of when the following two situations arise, whether there is at least the appearance of corruption. Situation one would be, the chairman of the Democratic National Committee offers donors a night in the Lincoln bedroom, to someone who had contributed large, soft money contributions. Situation two is that the chairman of the the Republican National Committee tells corporate contributors that if they want access to Republican Congressmen and Republican leadership, they should give generously to the RNC.
These situations may sound familiar to you because they have dominated the headlines, but what is your interpretation of those two situations in terms of the Buckley decision and the appearance of corruption?
Mr. MCCONNELL. Yes, well you got the Buckley decision wrong. The appearance of corruption standard only applies to contribution limits; it does not apply to spending limits. The Court was quite clear that spending had no corrupting potential, no corrupting potential whatsoever, and that's why----
Mr. MEEHAN. I'm talking about two situations here.
Mr. CANADY. Without objection, the gentleman will have 1 additional minute.
Mr. MCCONNELL. May I answer? And so the appearance issue only applies to individual contributions, and as you know contributions to candidates are limited and fully disclosed consistent with the Buckley case.
Page 26 PREV PAGE TOP OF DOC Now you raise the issue of non-Federal money, soft money contributions to political parties. I think that the appearance of what's been going on down at the White House--renting out the Lincoln bedroom, treating the White House as if it were Motel 1600--is outrageous. Whether it's illegal or not, I'm not certain; that's why I think we ought to have an independent counsel. And certainly the appearance of it is quite improper.
There's no evidence that I'm aware of that Republicans have been renting out the Capitol Rotunda or using public property to try to influence the process. And so I would argue that there's no evidence here that that kind of activity was conducted on a bipartisan basis.
Mr. MEEHAN. Senator McConnell, I think there's clear evidence that the Republican National Committee has, in contribution letters to corporate contributors, said that if they want access to Republican Members of Congress, they better give generously to the RNC. That has been widely published in the New York Times, the Washington Post, and newspapers all across America. Frankly, I don't see a distinction.
Mr. CANADY. The gentleman's time has expired. I'm going to recognize myself now for 5 minutes.
Mr. Frank, you have cosponsored an amendment on this subject with Mr. Gephardt. In your amendment you provide that: ''To promote the fair and effective function of the democratic process, Congress, with respect to elections of Federal office, and States for all other elections, including initiatives and referendums, may adopt reasonable regulations of funds expended, including contributions, to influence the outcome of elections, provided that such regulations do not impair the right of the public to a full and free discussion of all issues and do not prevent any candidate for elected office from amassing the resources necessary for effective advocacy.''
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Under this amendment, would restrictions on the press be contemplated or be permissible in your view?
Mr. FRANK. No.
Mr. CANADY. Why is that?
Mr. FRANK. Because the amendment seeks to do what Mr. Hyde asked us to do, which is to--the amendment seeks to carry out, and I put it forward--we put it forward--looking to have it the subject of debate and amended, and I would err it's a longer amendment than most. If people thought there was any ambiguity there with the press, if people wanted a specific exemption, I'd be glad to add it.
Mr. CANADY. Let me----
Mr. FRANK. May I finish my answer? You cut me off before. Are we here to have a discussion or what? I'm trying to finish my answer about that.
Mr. CANADY. Finish your answer. Try not to filibuster.
Mr. FRANK. Mr. Hyde said before that we should have reasonable regulation, even of a right of free speech, and I think he's----
Mr. HYDE. No, just contributions.
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Mr. FRANK. No, Mr. Hyde. You said before, or maybe I misunderstood you, but I thought you were saying before that even free speech--forgetting about contributions--that even free speech was subject to reasonable restrictions.
Mr. HYDE. Well, it is.
Mr. CANADY. Let me refocus my question. Why is it that you think that there should be different rules for individuals and groups of individuals who are wishing to express opinions that might influence an election and for the press? Apparently you're saying that this would not and should not affect the press.
Why is it that the press should have an unlimited license to do anything that can affect elections and influence the outcome of elections, when they have massive power to influence public opinion, when other little groups of people who gather together to express their opinions are going to be subjected to control by the Congress? Why should there be two sets of rules?
Mr. FRANK. Well, to continue the point----
Mr. CANADY. But please answer the question.
Mr. FRANK. You have no idea what I'm going to say, so what are you getting all excited about? I am going to answer the question.
Mr. CANADY. Well, thank you.
Page 29 PREV PAGE TOP OF DOC Mr. FRANK. But I think, frankly, you don't want me to.
Mr. CANADY. Oh, I very much want you to.
Mr. FRANK. Well, I would like to respond. You know, a series of things have come up. I really don't understand your kind of approach to this. I thought we were having a general, important discussion on fundamental issues, and when we try to address them, if you don't like the way they're going, you cut me off.
The point is that Mr. Hyde made a point that's directly relevant to the issue that I am trying to talk about, which is, do you have, when you say something is a right, reasonable restrictions on that right? And the press answer is part of that. Yes, you can have reasonable restrictions. I believe that's what the amendment seeks to do. That is not what the Court now does. To accomplish the basic rule that you talked about, we need to do this.
But then the question is, Well, are you going to invite people to start restricting the press? And the reason I think there should be separate rules for the press is the same reason that we had in the original first amendment a separate role for the press. If the people who did the first amendment originally--I think they got this one right--followed your approach, then it would have said, ''Congress shall make no law restricting freedom of speech.''
They singled-out the press for a separate role--and many of us find the press in specific instances annoying--but the general rule that there should be, to serve democracy well, an independently-funded group of people whose job it is to report on the process separate from those who are trying to run for office, I think that's a very important distinction. I think it's why the press was singled-out for separate mention in the First Amendment and that's what we're talking about----
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Mr. CANADY. Let me----
Mr. FRANK. I'm sorry; you don't like the answer.
Mr. CANADY. No, no. I think I understand your answer.
Mr. FRANK. I'm being directly relevant to your question.
Mr. CANADY. Well, I don't dispute that.
Without objection, I'll take 2 additional minutes.
I still don't understand why it is that the press should be, in the context of elections and in actions to affect elections--the press editorializes. They say, ''We're going to endorse a particular candidate. Vote for this candidate.'' Why should they play by different rules under your constitutional amendment, which is based on this idea that somehow we should reduce the level of political speech? Why is it that they should be treated differently?
I'd like to ask Senator McConnell.
Mr. FRANK. Am I not going to be able to--I can't answer that?
Mr. CANADY. Well, Senator McConnell has been sitting here very patiently.
Page 31 PREV PAGE TOP OF DOC Mr. FRANK. You're getting very silly with this whole way you're running this hearing.
Mr. CANADY. I'm recognizing Senator McConnell; we'll come back to you.
Mr. MCCONNELL. It's not a silly point at all. The same first amendment, same----
Mr. FRANK. No, excuse me. The silliness was in not letting me answer the questions.
Mr. CANADY. Mr. Frank, you have spoken more than anybody else here today.
Mr. MCCONNELL. Mr. Chairman, you raise a very important point. It's the same first amendment; it's the same free speech. And yet those who want to amend the first amendment for the first time in 200 years want to carve a niche out of it and say that the Government--that's who would be in charge of the political speech of individuals, groups, candidates, and parties--the Government would police our speech.
That little, bitty portion, that 1 percent of the overall paid ads that were out there last year, that little 1 percent that is our speech with our constituents and group's speech, that would be policed, controlled, and regulated by the Federal Government. This is a truly draconian proposal that ought to receive very, very few votes.
Mr. CANADY. Mr. Frank.
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Mr. FRANK. It didn't seem to me relevant to your question. The question is, Why would you treat the press differently? And the answer is--and I think your question assumes a fundamental misunderstanding of the role of the press in a free society. There is a distinction that has been drawn, since the first amendment separately mentioned the press, between people who are in the political process advocating for views, and we have decided that we are well-served as a democratic society by having an independently, self-financed press that comments on these things.
And the point I would make is this: If you are correct, and there should be no distinction between the press and everybody else, then the contribution limits should apply to the press. And I guess you are then believing that under Buckley, since we can limit what people contribute to another candidate, you can limit what individuals invest in newspapers.
In fact, the courts have consistently held that rules that apply to other people don't apply to the independent press. And your argument would say, since we can constitutionally limit a contribution from one person to another, if they were not to make a distinction for the press, we could say, ''Well, you cannot invest in this newspaper because that's considered to be a contribution to the advancement of the political views of that newspaper.''
Mr. CANADY. My time has expired. Mr. Watt.
Mr. WATT. Thank you, Mr. Chairman. I have enjoyed this exchange, and I think I'll yield my time to Mr. Meehan and stay out of it. It sounds to me like you've got enough views going on here without me putting mine in the hopper, which, coincidentally, doesn't agree with any of what you all are saying. [Laughter.]
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But that's a point for a different day. I'll yield my time to Mr. Meehan.
Mr. MEEHAN. Senator McConnell, I just want to get this straight. So you're equating elections in America and how much money is spent influencing political elections with selling Coca-Cola or selling automobiles or anything else. Wouldn't you say that in a democracy, there has to be some distinction between an election to try to determine who best should serve in Federal office and the selling of automobiles or the selling of Coca-Cola?
I disagree with the analogy that elections in this country ought to be financed in the same way that we finance advertising for all the products in America.
Mr. MCCONNELL. Well, I understand your problem; you don't like the Buckley case. And you ought to be supporting this constitutional amendment because the Buckley case made it quite clear that, if you limit spending, you limit speech in this country, and that we're not engaged in an excessive amount of political discourse in this country. There was a lot of it last cycle, but that makes sense. There was a huge election in 1994 that changed the direction of the country and the forces of the status quo were fighting back in 1996. We had a war out there, a war of political discussion. I think that's a sign of a healthy democracy, not a sick democracy, and so I disagree with you entirely, Congressman Meehan.
Mr. MEEHAN. Congressman Frank.
Mr. FRANK. Thank you, because I want to comment. Senator McConnell kind of invokes the Buckley case as holy writ without subjecting it to any serious analysis, and there is a fundamental inconsistency at the core of the Buckley case. This notion--I mean, if spending money is part of speech, then there is no rational argument whatsoever for restricting contributions.
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Senator McConnell quotes him as saying, ''Well, a contribution can be corrupting.'' But so can a lot of other things. Remember, your argument is that spending money is no different than making speeches and stuffing envelopes, than doing a whole lot of things that are relevant in a campaign. It's a way of making them happen. Well, the fact is, if I can limit the contributions, then presumably you can limit the speeches I make on behalf of somebody else. If I make very effective speeches on behalf of somebody else, that could be corrupting.
In other words, the rational for limiting corruption that you accept, that if person ''A'' does things for person ''B'' that advance person ''B's'' election, that could have a corrupting effect on person ''B.'' You can't limit that by any logical method only to contributions. That applies to all political activity. The only way you can limit to contributions and not other political activity is if you differentiate the pure spending of money from other of the activities on the grounds that in a democracy we don't want one-man, one-vote to be overcome by one-dollar, one-vote, that there ought to be that difference.
When we talk about noncontributions--and here's my argument--when we're talking about nonfinancial contribution ways of helping a campaign, on the whole people are more equally endowed with those gifts. You can make the same number of phone calls, et cetera. Yes, some people will speak better than others, but that's more likely to be randomly distributed then if you're just doing it with money. And the only way you can accept the Buckley case is to assume that the expenditure of money is somewhat different than other events.
Mr. WATT. Barney, can I interrupt you before Senator McConnell leaves, just for a second, and reclaim my time just for a second?
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There are some of us who may dislike the Supreme Court's decision in the Buckley case. There are a lot of decisions that are coming out of the Supreme Court that I dislike. Very few of them drive me to the point where I think that leads to a constitutional amendment.
Mr. MCCONNELL. I agree with you.
Mr. WATT. And so this notion that you have, that just because I disagree with the Buckley opinion I should therefore be supportive of a constitutional amendment is a radical notion for a conservative to be asserting. And I have kept saying that and keep saying that to my colleagues on this committee. Every time they disagree with something that the Supreme Court says, it is not an appropriate occasion to amend the Constitution of the United States.
Mr. CANADY. Mr. Bryant.
Mr. BRYANT. Thank you, Mr. Chairman. I've enjoyed the debate and I thank the distinguished speakers that addressed us today.
My concern, one concern I have, in this area of election campaign reform is, perhaps, an overreaction to abuses in the most recent election that are now highly publicized and certainly seem to be at that point where they're being addressed.
But I think we have to be careful as we talk about changing the campaign process so as not to overreact to what appears to be, or certainly is alleged to be in some cases, violations of the existing laws. So, let's not get too reactive to this, because I have concerns that people who will violate existing laws will likewise violate any future laws that we might pass. So, let's not get the two confused.
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Congressman Frank, I have a question, and I agree with you on a point on which I would like to expand in terms of free speech being equated to spending money. I have some concern about personally limiting myself, and you and anyone else that runs for office, to limiting ourselves in raising money when we potentially face people who are very wealthy, who can personally contribute millions of dollars to their own campaign, people who have built-in advantages as Senator McConnell said, who may be famous for whatever reason; outside groups who have on both sides been able to spend huge sums of money in independent expenditures.
In following your logic, which I tend to agree with, that if free speech is money, then any limitation on that might be a violation. I agree with Chairman Hyde that in some cases we have had reasonable restraints on first amendment rights. But what would--my question is, what's the downside to removing limitations altogether and going forward and letting the free market----
Mr. FRANK. I appreciate the question because I think you've framed it appropriately philosophically. Let me say I have one problem, and I think I neglected--I know I neglected--to express some disagreement, however, with Mr. Hyde on one point. Where we are talking about speech, not money in a campaign, but the actual content of the expression, I don't want even what some people think are reasonable restrictions. I'm for pretty unrestricted free speech.
In fact, it seems to me very clearly, if you have not on several occasions defended the right of very obnoxious people to say very offensive things, you're not really a believer in free speech because that's when free speech gets tested, when people do things that most sensible people wish they wouldn't say.
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But, to answer your question, the downside, I think, is this--and I think that's an entirely appropriate question. I really believe we have two different systems, an economic system and a political system. I think it is in our interest, and I think there's become an increasing national consensus on this. Inequality drives our economy, literally. I mean, your ability to get unequal rewards based on your success in the workplace means that overall we'll have more, a bigger product. That's the capitalist system; that's the incentive system. I do believe that the problem is this.
It means, however, that on a lot of public policy questions which obviously affect this system, the people who are most successful on the whole are going to have much more influence than other people because the more money you have, the more influence you have, if we don't allow some restrictions.
The absolutely unlimited approach that Senator McConnell favors, that others favor, means the more money you have, the more influence you're likely to have. I think that means that you swamp democracy. I think that the one-man, one-vote principle ought to govern, and that as nearly as possible we ought to have rules that say you enter the political process equal to everybody else.
Now, there will be people who will work harder; they will have more talents. I do believe that those are more likely in a society--the propensity to be engaged in politics, the amiability, the other things that can help you; those are more likely to be randomly distributed; celebrity. Although, to give the public credit, the public does not vote for pure celebrity nearly as much as people think they will. But celebrity, again, celebrity in sports and entertainment, those are also more likely to be randomly distributed.
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Money will not be randomly distributed. The accumulations of money will tend to be on one side of the political process, and I think that's the downside, that it has a philosophical distortion. And I appreciate your asking that because I think the key is it is not so much a specific corrupting thing as it is that philosophical imbalancing of the democratic system.
Mr. BRYANT. Thank you.
Mr. CANADY. The gentleman's time has expired. I want to thank Representative Frank for being with us, as well as Senator McConnell. We appreciate your testimony.
The subcommittee will stand in recess until the hour of 11 o'clock, or as soon thereafter as the joint session is concluded.
Mr. CANADY. The subcommittee will be in order.
We're very pleased to have with us Representative Richard Gephardt, the Democratic leader of the House. Representative Gephardt was unable to be present for the earlier Members' panel. So we will recognize Representative Gephardt now.
We'd appreciate it if you could summarize your comments in as close to 5 minutes as possible. Your full statement will, without objection, be made a part of the record.
Page 39 PREV PAGE TOP OF DOC Representative Gephardt.
STATEMENT OF HON. RICHARD A. GEPHARDT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MISSOURI
Mr. GEPHARDT. Thank you, Mr. Chairman, and I thank the members of the committee for holding this very important hearing.
Let me briefly summarize by saying that I think this issue is of extreme importance to the public and to the Congress and to our country. I think political fundraising has turned into a very big business, and it's not the proper business of the American political system.
We have thousands and thousands of dollars being spent on political TV ads in some districts. An ad in prime time for 30 seconds is a $20,000 proposition, and whether or not we want to believe that money has undue influence on decisionmaking--and I think it has less than some say--there's no doubt that when there is unlimited fundraising and the amounts of money that are needed to be spent in campaigns today that public servants and people running for office have to spend far too much time raising the money to run for campaigns.
In some Senate campaigns today, kind of in the average campaign for the U.S. Senate, people running for those offices are often required to raise $6,000, $7,000 a day in order to amass the amount of money that's needed to get the message across with the rating points that are needed.
I further believe that the dominance of money in politics debases the currency of democracy and destroys public confidence, and I believe that the only way to reduce the time spent on raising money and the dominance of special interests is to limit the amount of money that campaigns can spend. This is not a new idea. We've had many bills through the years that we have even passed in the House, three times in the last 7 years, that have brought about voluntary spending limits, but they have been vetoed by President Bush or filibustered in the Senate, and these bills have not been able to come into law.
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So I really think it's time that we challenge one another, Democrats and Republicans alike, to work in a bipartisan manner to pass tough campaign reform legislation that puts voluntary spending limits on campaigns, limits the amount that PAC's can contribute to campaigns and wealthy contributors can give to each candidate, and outlaws so-called soft money.
I would conclude by saying that 21 years ago the Supreme Court of the United States dramatically altered our elections by ruling that limits on campaign spending are unconstitutional under the first amendment. The Buckley-Valeo decision struck down parts of the 1974 Campaign Act with these words. They said, ''The first amendment affords the broadest protection to such political expression in order 'to assure the unfettered interchange of ideas for the bringing about of political and social changes desired by the people.' '' Although section 4 of article I of the Constitution provides authority for regulating elections to Congress, along with the States, the Court has conferred on the act of campaigning the same treatment as it accords to free speech under the first amendment.
In essence, the court has said that when it comes to elections: money equals speech. As a result of their decisions, only by allowing unlimited spending on campaigns can we protect the cherished right of free speech. So now, we have two important values in direct conflict: free speech promoted through billions of dollars in 30-second ads and our desire for healthy campaigns in a healthy democracy. As the Court has framed it, in my view, we cannot have both.
A group of prominent scholars have criticized the Court, pointing out that Buckley ''misunderstood not only what free speech is, but what it really means for free people to govern themselves.'' In fact, one of them, Burt Neuborne, the former legal director of the ACLU, said, ''the Supreme Court, by treating money as speech, has virtually doomed campaign finance reform.''
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To go to our proposal on the Constitution, Barney Frank and I have proposed to change the excessive spending campaign system that the Buckley decision has put in place by proposing an amendment to the Constitution to give Congress significant and explicit authority to regulate campaigns and campaign spending.
I contend that the decision of Buckley-Valeo and other decisions help create an atmosphere where the quality of discussion, the number of issues discussed, and the depth of their exploration has been subverted in order to preserve widely-transmitted messages. I believe the very foundation of our electoral process is in jeopardy unless we act.
Let me be very clear. I am for a campaign bill of this Congress as early as we can get it along the lines of a bill presented by Sam Farr or the bill by Mr. Shays and Mr. Meehan. I have some minor problems with the Shays-Meehan bill, but I think its thrust is correct.
I think the discussion of a constitutional amendment can come later. Obviously, this is a very large question that has to be clearly thought through, and I have no illusions about how quickly we can get to it, but I also believe that, even if we were to pass a bill like McCain-Feingold or Shays-Meehan or Farr, that the voluntary limits would not be particularly effective, given the trend in campaigns of third party groups coming into campaigns and running TV ads for and against candidates. It seems to me that in that circumstance the voluntary limits would be breached and we would be back to the kind of excessive, unending campaign spending that we've seen in the last few cycles. So I believe that sooner or later, even if we get something done in a statutory way in the next year or two, that it's undoubtedly going to be necessary to entertain this question of amending the Constitution to overcome Buckley v. Valeo.
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With that, I thank the chairman and the members for hearing me out this morning.
[The prepared statement of Mr. Gephardt follows:]
PREPARED STATEMENT OF HON. RICHARD A. GEPHARDT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MISSOURI
Thank you, Mr. Chairman for holding this very important hearing. I cannot think of a more important topic to be discussing at this time--when campaigns seem to be more about money than they are about voters. As we seek to improve the ways our campaigns are financed, important issues about free speech and the current state of our democracy loom large.
For more than two hundred years, the citizens of this Republic have lived out the experiment of free and representative government that our Founders created for us. The key to this experiment in self-government boils down to one great idea: the people rule. The great equalizer in the process is the vote. Each of us is equally empowered to determine the outcome of elections, and determine who will speak and decide for us.
Unfortunately, as I speak to you today, this vision for our democracy is at risk. Over the past couple of decades a new world has brought new and different politics. Campaigns have become increasingly wholesale, not retail. And that fundamental change has brought an escalation and then an explosion of campaign costs. The resulting rush of cash can become all-consuming.
Political fund-raising has turned into big business--and it is not the proper business of America. Campaigns have degenerated into a poisonous spectacle of 30-second TV ads filled with negativity and half truths--and outright falsehoods. The cost of running just one spot in a major market today can run as high as 20,000 dollars. To buy television time and public attention, candidates spend much of their time fundraising. In fact, a Senator in a competitive race today has to raise $6,000 a day, seven days a week, for six years. By the time the votes in the 1996 elections were tallied, an estimated record-breaking $2.7 billion was spent on TV and radio advertising, polling, mailings and other campaign tools.
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Money is now the source and center of power in our politics. It can decisively determine the outcome. In the 1996 elections, candidates in House and Senate races who outspent their opponent won in 92% of the cases.
Not only do candidates and public officials spend an inordinate amount of time and energy raising enough money, but the prospect discourages many others from thinking of running at all. Those with personal wealth who are willing to spend their own money are able to run--and win. What does this say about our country, when more and more only the rich can afford to be independent public servants? Will our national legislature in the 21st century be a truly representative body that looks like the face of the American people?
The dominance of money in politics debases the currency of democracy, and destroys public confidence. As such, the electorate is steadily more alienated--voter turn out is at an all-time low, and voter apathy at an all-time high. If this government for the people, by the people and of the people is to remain that in fact as well as in name, it has to be open to everyone. To that end, I believe that what we need is more voters--not more money in politics. I believe that the only way to reduce the dominance of special interests is to limit the amount of money that campaigns can spend.
This is not a new idea. The House has considered and passed strong campaign finance reform proposals with voluntary spending limits in the 101st, 102nd and 103rd Congress.
Unfortunately, the drive for voluntary spending limits has been met with Republican opposition. President Bush vetoed campaign reform in 1992. Senators Dole and McConnell filibustered it two years later. Newt Gingrich made commitment with the President to form a commission to reform the system in 1995, only to see that lapse. Last year, the majority in the House failed to pass any campaign reform bill, while the Senate Republicans filibustered a spending limits bill. The Republican leadership did offer a proposal, but it was denounced as a ''sham'' by the reform community because it would have allowed wealthy individuals to contribute as much as $3 million per year to candidates, PACs, and parties.
Page 44 PREV PAGE TOP OF DOC How does this history of the debate on reform and voluntary spending limits portend for action in the 105th Congress? Thus far, the House and the Senate Republican leaders have not yet placed put campaign reform among their top priorities for the 105th Congress. Democratic calls to have campaign finance reform considered in the first 100 days have been defeated. Last week in a bipartisan meeting with the President, Republican Leaders did not agree to create a bipartisan task force on fixing the campaign finance system. That is why yesterday, Senator Tom Daschle and I sent a letter to Speaker Gingrich and Senator Lott urging timely consideration of campaign finance reform.
Currently, we see a focus on investigative hearings. While these need to occur, they should not become a substitute for swift action on campaign finance reform.
I challenge my colleagues, Republicans and Democrats alike, to work together in a bipartisan way to pass tough campaign reform legislation that puts voluntary spending limits on campaigns, limits the amount that PACs and wealthy contributors can give to each candidate; and outlaws so-called soft money. Such legislation has been introduced in the House by Representative Sam Starr of California. I will work with him to enact it this year. Like the bi-partisan McCain-Feingold and Shays-Meehan bills, the Farr bill's central purpose is to limit spending in politics. This is the right approach. I believe there is an opportunity to build on the growing commitment to this common goal and pass meaningful campaign reform in the near term.
However, opponents of spending limits may once again have their way, with meaningful campaign reform eluding our grasp. I respectfully disagree with statements made by Speaker Gingrich when testified before the House Oversight Committee in the 104th Congress: ''One of the greatest myths of modern politics is that campaigns are too expensive. The political process, in fact, is under funded; it is not over funded--I would emphasize far more money in the political system.'' Senator Mitch McConnell has also been an outspoken opponent of reducing the amount of money in politics--arguing that limiting campaign spending is ''bad public policy.'' Senator Mitch McConnell (RKY) has said, ''We're not spending too much on politics in America.... This whole notion that we're spending too much [on politics] is nonsense.'' Further, Majority Leader Lott has said ''I think that for ... [contributors] to have the opportunity to ... [give even more money] ... is the American way.''
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So this debate is now over ''fundamental'' principles: are you for less money in the system, or are you for more? On the one side, you have the majority of Democrats and the bipartisan coalition trying limit the influence of money and restrict spending--and on the other, the Republican leaders are attempting to make the money chase more of a factor in campaigning. How anyone can argue that it is good for the American political system to be more dependent on money, is beyond me, as well as beyond working families.
Until everyone comes to an agreement that we now have to impose spending limits, it will be a miracle if we can make it happen--and yet it's still not enough. We now confront a judicial barrier which prevents us from addressing some of the greatest threats to truly democratic campaigns.
Twenty-one years ago, the Supreme Court of the United States dramatically altered our elections by ruling that limits on campaign spending are unconstitutional under the First Amendment. The Buckley v. Valeo decision struck down parts of the 1974 Federal Election Campaign Act with these words: ''The First Amendment affords the broadest protection to such political expression in order 'to assure the unfettered interchange of ideas for the bringing about of political and social changes desired by the people.' '' Although Section 4 of Article 1 of the Constitution provides authority for regulating elections to Congress, along with the individual states, the Court has conferred on the act of campaigning the same treatment as it accords to free speech under the First Amendment.
In essence, the court has said that when it comes to elections: money equals speech. As a result of their decisions, only by allowing unlimited spending in campaigns can we protect the cherished right of free speech. So now, we have two important values in direct conflict: free speech promoted through billions of dollars in 30 second negative ads and our desires for healthy campaigns in a healthy democracy. As the court has framed it, you cannot have both.
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A group of prominent scholars have criticized the Court, pointing out that the Buckley decision ''misunderstood not only what free speech really is, but what it really means for free people to govern themselves.'' In fact, one of them Burt Neuborne the former legal director of the ACLU said ''the Supreme Court, by treating money as speech, has virtually doomed campaign finance reform.''
The strength of our system is, of course, its capacity to adapt to new and changing circumstances. But not in this area. Legislation which restricts campaign spending is unconstitutional in the eyes of the Court; we are limited to using voluntary spending limits in order to avoid a reform from being overturned. And still, we cannot deal with the reality of modern campaigns and the emerging problems we have seen as recently as this last election cycle.
Still unknown, and probably not fully knowable, since total disclosure is not required, is the influence that third-party spending had in the 1996 elections. As such, the media has been confounded in being able to track down the amount being spent; so far the Washington Post has demonstrated that this spending was a minimum of $70 million, but we all know that this is just the tip of the iceberg. Even if we try to limit such activities through legislation such as the Farr bill, there is no binding restraint on these outside interests.
We need to recognize that we face a new reality in modern campaigns where unlimited money is having unanticipated influence over the outcome of elections. I believe the only effective way of reforming the system once and for all is to (1 ) curb the influence of such advocacy efforts, (2) limit overall campaign spending and (3) eliminate the presence of party soft money, as the Farr bill does. Unless all three of these components are present, meaningful reform will elude our grasp and we will forever chase the false efforts of reform to no good outcome. While the Farr bill is an important and constitutionally-sound change for our immediate future, even that will likely not be sufficient over the long-term as growing third party spending will mean that voluntary spending limits will never take effect.
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That is why Barney Frank and I have proposed to change the excessive spending campaign system that the Buckley decision has put in place by proposing that an amendment to the Constitution to give Congress significant and explicit authority to regulate campaigns and campaign spending. I know that it is a serious step to amend the Constitution. But I intend to fight for and make the case for this because I believe the future of our democracy demands such a change. This is not in any way an effort to diminish free speech, it is not meant to undermine our most cherished freedom. It is meant to reconcile the box we have been placed in by the courts, who have facilitated the creation of this untenable, unregulated campaign process by classifying all-campaign activity, including excessive spending, as speech.
The court holds that limiting the amount of money that a person or group can spend on a campaign--''reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.'' I would contend, that their decision has helped create an atmosphere where the quality of discussion, the number of issues discussed and the depth of their exploration have all been subverted in order to preserve widely transmitted messages. I believe the very foundation of our electoral process is in jeopardy unless we act.
If the Founders were witness to today's campaigns, I am convinced that they would join us in this endeavor. In fact, Alexander Hamilton pointed to his own fallibility when he wrote: ''It will not be alleged that an election law could have been framed and inserted in the Constitution which would have been applicable to every probable change in the situation of the country; and it will not therefore not be denied that a discretionary power over elections ought to exist somewhere.''
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I would not suggest restricting anyone's right to free speech. But we are far beyond any rational notion of ''free'' speech when speaking has a price tag of several million dollars. Our democratic system is based on one-person one-vote--not on dollars for votes.
To those who truly share our desire to reform the system and reduce the influence of money, I would ask of you not to be quick to criticize, I would ask you to resist personal accusations, which will have a negative impact on all of us coming together to accomplish this goal. Some may use First Amendment concerns as an excuse for endorsing the status quo on campaign financing, but this debate should not be about questioning motivations. We need to legislate. And we need a constructive debate.
I believe that candidates for public office have a responsibility to the voter to present their views, and to debate their differences with their opponents. These debates should be fair and balanced, and they should allow for public participation. When I go back to my district in the south side of St. Louis on the weekends, I go door-to-door to talk to my constituents about the real problems facing them. I don't want to hear about it on the news, or read about it in the newspaper, or be told by my staff. I want to have the opportunity and the privilege of talking to each of them myself.
Why can't we run our campaigns this way? I believe we have to.
So let's all begin this debate anew with the sincere desire to change the system--and where necessary, to change our ways. Let's shock the people. Let's pass real and meaningful campaign reform in this Congress to encourage political participation for future generations. Let's amend the Constitution to honor the spirit of the Founders and safeguard the great, continuing experiment of American democracy.
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Mr. CANADY. Thank you, Mr. Gephardt. Just a few brief questions: Now, as I understand it, you're supporting the Farr bill and supporting the Shays-Meehan bill with some reservations. Are there any aspects of those two bills that you think are unconstitutional under the framework established in the Buckley case and the succeeding cases that have been decided by the Supreme Court?
Mr. GEPHARDT. I do not. I may be wrong. I'm not a Justice on the Supreme Court, and you have no way of knowing that, but we have tried in writing these bills and working on them to write them in a way that we thought they would be constitutional.
Mr. CANADY. OK. So you believe that those bills are constitutional, but your overall view here is also that those bills will ultimately not be effective in controlling the problem of excessive spending on campaigns, and, therefore, a constitutional amendment is necessary? That's a fair----
Mr. GEPHARDT. That's basic--my worry is that what we're seeing now is third-party groups, without collaboration with campaigns, coming into campaigns, running ads, which would undoubtedly drive the campaigns to break out of the limits, the voluntary limits, and begin spending to a greater degree to offset the ads being run by all kinds of groups that are now entering in an independent way into these campaigns. In fact, in the last election we saw probably some campaigns where outside groups spent more than the candidates did, and I think that trend is undoubtedly going to continue.
Mr. CANADY. Let me turn specifically to the language of the amendment to the Constitution that you have introduced, and I think the operative language there is that it would authorize the adoption of ''reasonable regulations of funds expended, including contributions, to influence the outcome of elections.'' And it goes on, ''provided that such regulations do not impair the right of the public to a full and free discussion of all issues and do not prevent any candidate for elected office from amassing the resources necessary for effective advocacy.''
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I want to ask you a question that I posed to Mr. Frank when he was here earlier concerning whether, under this language of the amendment, restrictions on the press would be permissible since certainly in the case of editorials endorsing candidates it would be a very good argument that that would involve the expenditure of funds to influence the outcome of elections.
Mr. GEPHARDT. I don't believe so. That is obviously not our intent. The press, in my view, in the amendment has a special position and would not be affected by this.
Mr. CANADY. Where is that in the amendment?
Mr. GEPHARDT. I just think that the Court has always said that the press, the fourth estate, if you will, has a special privileged position, and I would not believe that we were trying to affect the ability of the press to have opinions and to express those opinions.
Mr. CANADY. But, of course, what this amendment would do is change what the Court has always said. It would specifically amend the Constitution and displace the decisions of the Supreme Court insofar as those decisions affect any future regulations that affect the expenditure of funds to influence the outcome of elections. Now it seems very clear to me that when a newspaper is printed funds are expended, and if there's an editorial in there quite clearly endorsing a candidate, that quite clearly could influence the outcome of elections. And I just don't see the exception for the press.
And let me go beyond that. Obviously, that's the sort of issue that could be specifically addressed by changing the amendment, and Mr. Frank indicated that he would be amenable to such a change in the proposed amendment. But why is it that the press should be treated differently? Why is it that the press should have the unfettered right to criticize public officials at any time connected with an election or not connected with an election, but individuals who join together as part of groups or individually wish to express their opinions are going to be subjected to a bureaucracy, or the control of a bureaucracy, established by the Congress that will restrict their ability to express their criticisms of public officials.
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Without objection, I'll give myself 3 additional minutes.
Mr. GEPHARDT. I think we've always wanted and believed to have a strong democracy we had to have an objective, outside observer called the press that had, obviously, unfettered right to free speech.
Mr. CANADY. But what about----
Mr. GEPHARDT. I think----
Mr. CANADY. No wait. No one has ever suggested that the press has to be objective, and I think anyone who suggested that the press is objective maybe isn't reading various newspapers today. That's never been part of our understanding of the role of the press. As a matter of fact, if you go back to the 19th century, the press was particularly, was most especially a partisan instrument. The newspapers were typically of one party or another and advanced a partisan view, and there was very vigorous debate that took place in the press on a partisan basis. So the idea that the press somehow has the status of objectivity which raises it above the rest of the flow of discussion in this country I don't think is historically accurate or in the spirit of the Constitution.
But I'm sorry, proceed.
Mr. GEPHARDT. I understand the point. I guess we've got to figure out how to define what we mean by the ''press,'' but my concern is if you don't deal with this issue, I think you're consigning the political system to unending spending of money, because the way that we communicate with the public today is extremely expensive. It's called television ads, and they cost lots of money. And if we are not willing to regulate who and how much can be spent in campaigns, then we really have decided that public servants and people running for office are going to spend virtually all of their time raising money for campaigns, and I don't think that's good in a healthy democracy.
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Mr. CANADY. Well, again, going back to the point about the press, if you really believe--and I certainly don't question your sincerity--but if you really believe that this is the problem as you're stating it, it seems to me that that has implications for the press as well, because, quite frankly, a lot of politicians have to go out and raise money to wage more vigorous campaigns because of negative things that are said about them in the press. The press plays an integral role in this, and to somehow except them from the problem, it seems to me, from the restrictions that you're talking about, it seems to me would give them disproportionate influence in the process.
Now I don't support imposing restrictions on the press. I don't think that's right. I think having a vigorous discussion through the press is an important part of our democracy. I also think it's important in our democracy to allow others to engage in that discussion in a way that is unrestricted, and that's why I have serious qualms about turning over to the politicians the ability to determine how much is going to be said. And one of the things that I have seen about this particular proposal, and these sorts of proposals are supported by people on both sides of the aisle who don't like what particular groups are saying about them. They don't like the criticism. They don't like the amount of criticism. They don't like the volume with which the criticism is broadcast. They just don't like the criticism. Criticism goes with being in public office, and I think that that is something we have to put in perspective.
Mr. GEPHARDT. I noticed, and anyone in this business who doesn't like criticism is in the wrong business. That's most of what goes on, and that's quite legitimate, but I think we have a serious question about the role of money in politics that we have to answer. You've raised very serious concerns, and I'm willing to try to figure out how to deal with those concerns. But you and others who share your view, have to deal with the concern that many people in our society have about the amount of money in politics.
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Mr. CANADY. OK, Mr. Scott.
Mr. SCOTT. Thank you, Mr. Chairman.
Mr. Gephardt, we've been grappling with these problems in this subcommittee, and I guess I'd like to start off with a question whether you can state succinctly what the problem is that we're trying to solve.
Mr. GEPHARDT. I think the problem is the cost of campaigns and the amount of time and effort that people running for office have to put into raising the amount of money that one has to raise to be successful in today's political world.
Mr. SCOTT. Now----
Mr. GEPHARDT. And it's not just what the campaigns are spending, although that's escalated dramatically; it is what all kinds of groups and individuals are expending on their own behalf in campaigns as well, which, as I said, in the last round in some cases was greater in amount than what the candidates spent.
Mr. SCOTT. Now one of the problems we have is trying to solve that problem without creating others. Some groups, a lot of groups, had advertisements in the last cycle. Some I liked; some I didn't like, but that's just the way it works. Some were, I think, got on the edge of what I think is called expressed advocacy, where they really took a shot at a specific candidate; others were issue advocacy. Do you see a difference in that kind of spending, where the ad--you had, for example, ads highlighting the issue of partial-birth abortion; didn't mention any candidates, just that issue. It could have been a big issue in some campaigns, so it could have affected the campaign, but it didn't mention any names, just talked to the issue. Can we regulate that? Should that be regulated?
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Mr. GEPHARDT. I don't pretend to have for you today a definition of what is advocacy and trying to draw those lines. Maybe there's a way within the present Constitution to write regulations that would affect that and would change some of what was done in the last election. That's probably a worthy question to pursue.
Mr. SCOTT. Now, you know, you mentioned the voluntary spending limits as not having a constitutional problem. That's because they're voluntary. If you sign up for them, you get certain benefits, and because you can opt out, we don't have the constitutional problems. I guess without the definition of what these third parties are, how can you get the third-party money out of helping a candidate who's limited?
Mr. GEPHARDT. I think there's got to be a way that is constitutional, either with or without the amendment, to prescribe what expressed advocacy for a candidate or against a candidate is, and to be able to say that can't be done.
Mr. SCOTT. That's the problem we're addressing. I don't see how it can be done, and that's one of the frustrations I have.
Do you have any other comments you want to make, because I think we just have a problem, and I'm not sure how to address it? We've got others who are going to specifically speak to some of these points. Do you have any other comments, anything you wanted to add?
Mr. GEPHARDT. I don't believe. I think it is a serious problem that we're dealing with, and these are not easy questions to decide, but I think it is indefensible to say that what is happening and what is required in campaigns today is healthy and good for the democracy.
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Mr. SCOTT. Well, I would certainly agree with you on that. It's just that every time we come up with a solution--we had on a previous panel someone suggest this is like a rock on jello: as you push down on one, it comes out somewhere else. And every solution we've seen has unintended consequences that you can get around, and we're going to be addressing this, I think, on the other panels. I appreciate your comments.
Mr. GEPHARDT. Thank you.
Mr. CANADY. I'd like to recognize the gentleman from Virginia, Mr. Goodlatte.
Mr. GOODLATTE. Thank you, Mr. Chairman, and thank you for holding these hearings.
And, Mr. Leader, we very much welcome you. I, for one, am very interested in what you are attempting to accomplish. I have some very strong reservations, expressed by Mr. Scott and the chairman, but I also think that this debate is exceedingly important. And we've had some debates about other constitutional amendments, and as you know, it's very, very difficult to pass a constitutional amendment; it should be, but I think the debates that have come from some of these things have really helped to define the issues, focus on it, and even if there is not a resulting amendment to the Constitution from this, this work is good and I commend you for that.
There is no question that the general public wants to see something done in the problem of campaign finance reform and that there are very, very serious problems in doing anything comprehensive because of two Supreme Court decisions: the Buckley v. Valeo decision, dealing with individual expenditures, and the recent decision, which I think is the No. 1 reason why there was an explosion by both parties in terms of the amount of funds raised by the national committees, two-and-a-half, three times what was raised in the last cycle, because of the change in the laws regarding what they could use that money for. No longer was it just party-building activity, but they could go right in with direct television advertising advocating the election or defeat of a candidate. That is a complete bypass of everything we've intended to do with our Presidential--the complaints until this cycle, I think, were mainly with, well, we don't have some of the things in the congressional races that we have in Presidential races. Now the restraints we had in the public funding of Presidential campaigns, all of that has been rendered almost meaningless, in my opinion, by the most recent Supreme Court decision.
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So trying to address this, the frustration that many of us Republicans feel with some of the other constitutional amendments that we like that you don't support, the only recourse you sometimes come down to is, if you really think there's something wrong and the public thinks there's something wrong, is to look at what can be done in the Constitution. We are, on the other hand, talking about the first amendment, and that is the most precious part of the Constitution and it concerns me.
And I wonder if you might address--you may already have done this, and I apologize if you have--address this concern that I have where you say in the amendment, ''provided that such regulations do not impair the right of the public to a full and free discussion of all issues.'' Is it possible to do that? Is it possible to have an amendment that--to have regulations, statutes, that would come, if this amendment were put in place, that would----
Mr. GEPHARDT. Well, I think you can.
Mr. GOODLATTE [continuing]. Not have that effect?
Mr. GEPHARDT. I think you can. I guess one of the real troubling aspects here is that we've all come to the conclusion the way you can communicate is in 30-second spots, which, of course, is the great money loss here, money requirement. You know, I think you could have all kinds of speech gone on in more traditional ways in a campaign, all kinds of discussions and meetings, townhall meetings, and debates, and other methods of having a full and free debate, but cutting down on the amount of money, and, therefore, cutting down on the amount of 30-second spots. I really think that's the culprit here and what is bedeviling us, that and modern technology, use of telephones, use of mail.
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Mr. GOODLATTE. I agree with that. The concern I have is that, as you know, there are other nonmonetary advantages that different people bring to different contests. One of the most obvious is the advantage that incumbents have over challengers. If you put that clause into your amendment, are you going to set up a situation where a court is going to automatically say, well, you had that effect; you have prohibited a right of the public to a full and free discussion because that challenger can't spend more money from whatever source they get in order to make up for the advantages that incumbent might have that are not----
Mr. GEPHARDT. I've heard the argument the other way. I've heard people say that if you put limits on how much can be spent in campaigns with today's bias against incumbents, that incumbents would be hurt by limits and it would help challengers. So I guess I think you can argue that either way.
Mr. GOODLATTE. It depends on who the incumbent is and who the challenger is, I guess.
Mr. GEPHARDT. Right.
Mr. GOODLATTE. But I agree with you, and I encourage you to work in this direction because I don't think that all the proposals that we have out there for campaign finance reform can truly be comprehensive, and I don't think the public understands this aspect of it. Unless you address the issue of how much money an individual can spend on their own campaign and how much money anybody can spend outside of what we try to regulate, which the campaigns spend, if there really is essentially no difference between what these outside organizations or political parties spend on the campaign, their ads to the average viewer looks just like the ad the candidate is running, and I think it has just the same impact, and there's no limit on how much money they can come up with and spend or how much any individual can contribute to support that, like there is, that we all live with in terms of what they can contribute directly to congressional campaigns.
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So I applaud your effort to address this issue. I have a lot of concerns about what we do with the Constitution, but it's important for the public to understand that to be truly comprehensive in campaign finance reform, we have got to address those two very unfair situations that have developed because of, I think, perhaps not correct Supreme Court decisions, but decisions that have put us in a very difficult situation trying to address this problem with those decisions facing us.
Mr. GEPHARDT. I appreciate your comment. I want to reiterate something I said earlier, and that is I hope we can pass legislation now that limits voluntarily what can be spent. I never had any illusion about the ease of passing the constitutional amendment, and I agree with you entirely that one of the reasons to bring it up is to start a discussion like this, to have it be criticized, to get all the views out there, and to educate the public about what's going on here and what's involved, which I hope will come out of this discussion.
Mr. CANADY. The gentleman's time has expired.
The gentlelady from California, Ms. Waters, is recognized.
Ms. WATERS. Thank you very much, Mr. Chairman.
Let me thank Minority Leader Gephardt for the time and attention that he's given to this issue. I suppose that we are in a time when a lot of attention is focused on all of the discussions about how money is being raised, not only here, but at the White House, and as a leader, you have a responsibility to address the public concerns and to make sure that there is confidence in elected officials and the way that we do business.
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However, it's going to be a strange coming together of the left and right on this issue as it relates to freedom of speech. I take first amendment rights very seriously, and I do not support the compromise of first amendment rights for the crisis of the moment. I think that we would find that on both the left and the right, those of us who hold dear first amendment rights and who find that's what our lives' work is all about.
So while there are abuses perhaps, or perceived abuses, we must do everything that we can to ensure that we do not infringe on the first amendment rights and the ability to have freedom of speech. So I've been watching some of this discussion this past weekend, and I thought to myself that it's going to be very strange when you see someone who's considered very liberal and someone who's considered very conservative all coming together to talk about--and after everything else is said and done, we are not going to rush to any attempt to undermine the Constitution.
Having said all of that, I am a little bit taken back by the media as we explore or discuss campaign finance reform. It appears that fundraising is almost new to the media and they, for the first time, are understanding that we go out and raise money. Well, but I've seen them at a lot of the fundraising parties. I've seen their discussion about who's going to win or lose based on their ability to raise money, and I've seen them belittle almost those who don't raise money very well and talk about them not being real players in this process.
So even though in the past I have signed on, particularly when I was a State legislator, to all of campaign reform initiatives, I'm backing up, Mr. Minority Leader, and I'm inclined to do nothing at this point. I think your responsibility is a little bit more difficult than what I'm describing I want to do at this point, because a lot of people look to you to provide leadership when there is a problem, but I am inclined at this moment not to rush to any proposals that will, for example, limit the ability to raise money in your own district. Unfortunately, or fortunately, some of us are involved in issues that reach far beyond our districts, and first amendment issues happens to be one of those areas. So I don't see any legislation at this point in time that I'm willing to participate in, but I'm certainly not going to participate in anything that would move in the direction of constitutional amendment.
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And I guess I could tell you this anytime; I don't know why I'm taking so much time to do it publicly here today, but we've got you captive. So I thought I'd just do that.
Thank you very much.
Mr. GEPHARDT. Well, as the gentlelady knows, I deeply respect your views and I appreciate very much what you've said. I feel a lot of the same angst about this issue that you do. But I think we gain, all of us, by discussing it in a serious way, discussing serious proposals, even though we may disagree on what to do. I think it's helpful to the public's understanding of what this is about. I appreciate your views.
Mr. CANADY. The gentleman from Michigan, Mr. Conyers.
Mr. CONYERS. Thank you, Chairman Canady, and good morning, Mr. Leader.
Mr. GEPHARDT. Good morning.
Mr. CONYERS. The initial question for me is whether or not we have to pursue constitutional remedy, and the reason I say that is that one of the larger parts of my job is fighting off--well, I think under the new and temporary leadership, I've fought off about 50 constitutional amendments so far. I mean, every time there's a problem, somebody says, ''Let's change the Constitution.'' So I approach all constitutional changes with some caution. Sometimes we move in a constitutional path just to chasten people, to make them understand that this may be where we may have to go, if statutory relief is not there. What do you think about my approach?
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Mr. GEPHARDT. Well, I think it's very reasonable. I want to say, again, that I am for trying to pass a bill now. I have no illusions about passing a constitutional amendment in this timeframe, especially one that affects, as was said, the first amendment, which is the most precious part of our Constitution.
I presented this amendment, along with the Farr bill, because I think we have a chance to pass the Farr bill, or something like it, in the next year or two. I have far less belief that we can pass a constitutional amendment, but I thought it was important to bring it up, to start a public discussion, to get people to look at what's actually happening in campaigns, and to understand the difficulties and the inadequacies of even a bill like the Farr bill, given what's happening in modern campaigns. But I would be thrilled if we could, in a bipartisan way, figure out some kind of campaign reform to pass this year.
Mr. CONYERS. Thank you. I apologize, I missed your testimony, and I also really regretted hearing from the one Member of the other body who's for raising campaign limits. I haven't met anybody like that recently, but I heard he was here and testified.
Let me ask you about one other thing that has also disturbed me that I have never talked about in public before, and that is the question of the right of wealthy people to do with their money what they want in the political process. Recently, we remember that we passed a law that a person could renounce his citizenship, leave his tax obligations, and then come back as an Ambassador to the island he bought as a country because he missed America. I say that as a prelude to--is there any limit on the right of rich people to undemocratize the democratic process? I mean, is there anybody besides me in the Congress that wonders whether these multibillionaires can just buy up the political process, which I think can be demonstrated is going on increasingly?
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Mr. GEPHARDT. Well, obviously, if we had voluntary limits, that would possibly have an effect. They may decide not to break the limits because it would look bad among the public who are voting for them. I don't think that's probably a sensible judgment on their part. I think the 30-second spots probably work better.
But, without a constitutional amendment, nothing we're talking about will have any impact on wealthy people being able to spend whatever they want, and that's one of the questions I think we have to consider as we look at campaign reform.
Mr. CONYERS. Well, thank you very much, Mr. Leader. I appreciate your coming here today.
Mr. GEPHARDT. Thank you.
Mr. CANADY. Mr. Jenkins.
Mr. JENKINS. Mr. Gephardt, you have made a statement here that you don't really expect your constitutional amendment to be enacted. So this might be a moot question, but I'm sorry I didn't hear all of your testimony, but I now have a copy of the amendment. It says that Congress may adopt reasonable regulations of funds expended, including contributions. Now, under that language, isn't it entirely possible that the Congress could enact, and cases could go to the Supreme Court, and you could still come out under that language with an identical result to Buckley or any of the other cases?
Page 63 PREV PAGE TOP OF DOC Mr. GEPHARDT. It is possible.
Mr. JENKINS. So is it really going to be worthwhile to pursue that kind of language in an amendment?
Mr. GEPHARDT. Life in a democracy is filled with uncertainties, and I don't think anybody can tell when they write something that's an amendment to the Constitution how it will be interpreted, but, again, I think this is a serious issue for the life of our democracy and the way our Government works. I think it's something we've got to consider. I realize this is a huge decision for this society to make. I don't take it lightly. I didn't put out an amendment as a frivolous matter. I believe we have to enter into this discussion, and I think at some point--it's probably not now, as I've said, but at some point--we've got to seriously consider whether or not the way the Court has interpreted the Constitution is consistent with the way we want campaigns to run in a healthy democracy.
Mr. JENKINS. Well, if the Constitution has language that's absolutely clear, though, and you amend, why don't you opt for some language that the Court could not change?
Mr. GEPHARDT. Well, this is the best we could come up with at this time. I'm happy to have other suggestions for how to do it.
Mr. JENKINS. Thank you.
Mr. CANADY. Mr. Leader, we appreciate your taking the time to be with us today. Your testimony was helpful.
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Mr. GEPHARDT. Thank you very much.
Mr. CANADY. Thank you.
I'd like to now ask that the members of our second panel, which has now become the third panel, come forward and take your seats. While you're being seated, I will announce that we are anticipating that there will be a vote on the floor of the House any time now. Obviously, when that takes place, we will have to suspend the proceedings here and go to the floor and vote, but we will come back from that vote immediately and continue with the hearing.
On our second panel today, we will hear first from the executive director of the American Civil Liberties Union, Ira Glasser. Mr. Glasser is a widely-published author on issues related to civil liberties.
Second, we will hear from Lloyd Cutler. Mr. Cutler is a partner in the law firm of Wilmer, Cutler & Pickering. In 1994, he served as Counsel to the President of the United States and has served as a consultant to and member of several Presidential Commissions.
Next will be James Bopp. Mr. Bopp is an attorney with the firm of Bopp, Coleson & Bostrom. He is also currently vice chairman of the Federalist Society's Free Speech and Election Law Practice Group, and has previously testified before the Senate Committee on Rules and Administration regarding campaign finance reform.
The final witness on this panel will be Prof. Burt Neuborne. Professor Neuborne is the legal director for the Brennan Center for Justice at the NYU School of Law, where he is also the John Norton Pomeroy Professor of Law. Professor Neuborne has written several books dealing with freedom of speech.
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Without objection, your full testimony will be made a part of the permanent record. I would ask that each of you summarize your testimony in as close to 5 minutes as possible. We thank you, and I apologize in advance for the impending interruption.
STATEMENT OF IRA GLASSER, EXECUTIVE DIRECTOR, AMERICAN CIVIL LIBERTIES UNION
Mr. GLASSER. Thank you, and thanks for inviting me to testify today, and thanks for having----
Mr. CANADY. Mr. Glasser, your microphone is off; if you'd push the button----
Mr. GLASSER. It's on now, yes.
Thank you for inviting me, and thank you for having these hearings. I venture to say, if these sorts of careful hearings exploring fundamental issues had been held in the early seventies before the statute was passed, we might not find ourselves in the mess that I think we all believe we're in now.
The framework that we are talking about did not begin with Buckley, and in some sense the Buckley decision has been a little bit demonized as the cause of these problems. The framework we're discussing--that is, the whole idea of using limits on contributions and expenditures as the basic vehicle for addressing the problem that Mr. Gephardt described--is a framework that began with the Federal Election Campaign Act. It then had a variety of unintended effects affecting core free speech activities, and those effects became the reason why the challenge was brought in Buckley. I don't know if this helps or hurts, but I was the one who authorized the ACLU involvement in the Buckley case, and in several other cases that preceded Buckley, that created the basic constitutional framework----
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Mr. CONYERS. For or against Buckley?
Mr. GLASSER. I'm sorry?
Mr. CONYERS. For or against Buckley?
Mr. GLASSER. No, we were for the plaintiffs.
Mr. CONYERS. OK.
Mr. GLASSER. We represented the plaintiffs.
Mr. CONYERS. All right.
Mr. GLASSER. My view--let me start with the conclusion first and then give you a couple of examples--my view is that we really have to, if we mean to seriously address this problem, we have to abandon the idea of limits as the major vehicle for addressing this problem, and we have to instead embark upon a serious and expansive exploration of public financing as a way of undercutting and competing with the escalating cost which everyone seems to agree is the root of the problem. Depending on limits is a little bit like alcohol prohibition: it didn't solve the underlying problem and it created a whole host of other constitutional problems that no one intended.
We have to deal with this problem in a different way. Limits don't work. They create constitutional landmines that I believe are inevitable, and the answer to the fact that they didn't work should not be let's do more of them.
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My introduction to this problem began in 1972 when three elderly people walked into my office. One of them was wealthy. They had no connection to any candidate. They didn't have a lot of connection to reality, either. They had--there was no basis on which anyone could consider them a threat to the democracy or the electoral process. Their problem was they had run a two-page ad in the New York Times condemning the secret bombing of Cambodia, calling for the impeachment of President Nixon because of that--this was way before Watergate--and praising those Senators, including someone named George McGovern, who had voted against the bombing.
The very first act of the Government in implementing the Federal Election Campaign Act at the time was to go into Federal court and seek to enjoin those three from publishing such material. They also sent a letter to the Times threatening them with criminal prosecution if they ever published such an ad again.
I thought this was such a clear case of precisely the sort of core citizen activity, criticizing the Government, praising some officials, condemning others, that the first amendment was designed to protect. We represented them, and that portion of the statute was struck down.
But sometime later, the ACLU itself sought to publish as a full-page ad in the Times an open letter to the President criticizing him for his stand on school busing. We also were barred from doing so and brought another similar case.
Now these sorts of independent expenditures are precisely what everyone agrees have to be reached, because they were in an election year; they didn't expressly advocate the election or defeat of any candidate, but they certainly could have, and probably did, affect how people voted. Because they were in an election year, the Government thought that they should be barred. Everyone who wants to expand the use of limits on expenditures understands that, in order to have teeth, you have to reach those sorts of independent expenditures. If you don't, then you're fooling yourself; you're stopping something here, and it's popping out there. And because it inevitably reaches that kind of core activity, I cannot imagine an activity that was more designed to be protected by the first amendment than that.
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Second example: Rupert Murdoch owns the New York Post. He decides to basically turn it into an engine for the reelection of Mayor Rudolph Giuliani in New York next fall. This is all hypothetical, but not beyond imagination, I assure you.
Now he gets to do that without his contribution to the campaign being counted because it isn't cash. Now someone else who is very wealthy--say George Soros--he decides he wants to provide an equivalent amount of money to Giuliani's opponent to run billboards all over New York City. He commits a crime. I don't get it. It's bad first amendment law. It's totally unfair.
The question that the chairman was asking of Representative Frank is exactly on point: why billboards are any less protected by the first amendment than newspapers. I don't think there's any principled basis to support that. I don't think there's any constitutional basis to support it, and I don't think there's any jurisprudential basis to support it.
So limits, I think, cannot work. They have unintended effects that affect core first amendment rights, and they are unfair because they apply to some contributions and not others, inevitably. And if we're serious about addressing this problem--and I, frankly, tell you, I don't think Congress has been serious about addressing this problem--I think you have to start having hearings on what might constitute a serious and equitable form of public financing that would be adequate enough to undermine the effects of escalating costs that everybody understands is the root of the problem.
Page 69 PREV PAGE TOP OF DOC [The prepared statement of Mr. Glasser follows:]
PREPARED STATEMENT OF IRA GLASSER, EXECUTIVE DIRECTOR, AMERICAN CIVIL LIBERTIES UNION
Thank you for inviting me to testify at today's hearing I appreciate the opportunity to set forth my views and the views of the American Civil Liberties Union on the constitutional issues involved in campaign finance laws. I have been involved with this issue for over 25 years and personally authorized the ACLU's participation in Buckley v. Valeo and also in two important campaign finance cases that immediately preceded Buckley--National Committee on Impeachment v. United States and ACLU v. Jennings. These three cases created the constitutional framework that has constrained all campaign finance legislation during the past two decades.
Let me briefly describe the facts that led to these early cases, because they put a human face on the often abstract arguments that dominate this issue and because they illustrate how the most fundamental rights of free speech have been unintentionally violated by well-meaning campaign finance reforms.
In early 1972, three elderly citizens with no connection to any candidate or political party published an advertisement in The New York Times that condemned the secret bombings of Cambodia by the U.S., called for the impeachment of President Nixon and printed an honor roll of those members of Congress who had opposed the bombings. The honor roll included Senator George McGovern.
Although the ad was a classic example of speech protected by the First Amendment, it violated a federal campaign finance law, which effectively barred such expenditures on the ground that they could influence the upcoming presidential election by criticizing President Nixon and applauding one of his possible opponents. Senator McGovern.
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On the basis of this law, the U.S. government sued the three in federal court, seeking to enjoin them from publishing such ads, and wrote a letter to The Times threatening them with criminal prosecution if they published such an ad again. The ACLU represented the three and asked the Court to strike down the campaign finance law because it violated the First Amendment rights of citizens to speak their minds on public policy issues and to criticize or praise elected officials. Soon after, the ACLU itself sought to purchase space in The Times in order to publish an open letter to President Nixon, criticizing him for his position on school desegregation. The letter made no mention of the election and indeed the ACLU has never supported or opposed any candidate for elective office and is strictly nonpartisan. Fearful of government reprisal based on the government's threatening letter from the previous case, the Times refused to publish the ad. The ACLU sued to challenge the law and The Times filed an amicus brief supporting us. In both these cases the government argued that barring such ads was necessary to achieve fair elections even though the rights of citizens to criticize their government would be curbed.
The ACLU won both cases--National Committee on Impeachment v. U.S. and ACLU v. Jennings on First Amendment grounds. These cases were early examples of the way in which well intentioned campaign finance reforms led to government restrictions on precisely the sort of speech the First Amendment was designed to protect, and they sensitized us to the unintended effects of campaign finance reforms.
In 1974, in the aftermath of the Watergate scandal, Congress enacted a new and even more elaborate statutory scheme, in the form of amendments to the Federal Elections Campaign Act (FECA), designed to reform the rules governing the financing of federal election campaigns. Once again, little attention was paid to the unintended ways in which such reforms would provide the government with unprecedented powers to curb citizens speech. At the core of this reform was the imposition of limits on campaign contributions and expenditures. FECA did not just limit the expenditures of candidates and political parties, it applied to individual citizens as well, even if their advocacy was independent and unconnected to particular candidates or political parties.
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Once again, the new law swept far too broadly and necessarily limited speech clearly protected by the First Amendment. As written, for example, the law barred the ACLU from publicly criticizing an elected official during an election year, because such criticism could be construed as affecting the election; therefore the ACLU's expenditures to pay for an ad or to publish a brochure critical of the government could be limited.
Although the Supreme Court ultimately and properly struck down that aspect of the law in Buckley v. Valeo, the Federal Election Commission, which was created in 1974 by FECA, tried to cite the ACLU for violating the law during the 1980s because of our criticisms of President Reagan in direct mail fundraising solicitations to our own members! Many other organizations, including the National Organization for Women, anti-tax groups, anti-abortion groups and others have been similarly cited--some for doing nothing more than publishing the voting records of members of Congress on the issues that concerned them. Many of these groups targeted by the Federal Election Commission were hardly the sort of powerful, wealthy contributors that the public has in mind when it thinks of campaign finance reform. To the contrary, many were small bands of citizens expressing their views--like a tax reform group in New York or the Maine Right to Life organization. Their right to express themselves on political issues has over the years been relentlessly interfered with by the FEC, which has, as a result of campaign reform, gained unprecedented power to regulate free speech and harass protected political activities.
FECA also limited expenditures by candidates in a way that made little sense. For example, the major stated purpose of campaign finance reform was to avoid corruption by limiting big contributions to candidates. But when Ramsey Clark ran for the U.S. Senate, he voluntarily decided to limit individual contributions to his campaign to $100, and in fact, the average contribution he received was not much more than $20. Thus the money he raised was directly proportional to the number of people who supported him. And his ability to speak to the electorate--to publish leaflets, to mail to constituents, to buy radio and TV time, to buy ads in newspapers, etc.--was directly proportional to his capacity to spend the money his supporters contributed.
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Even though there were no large contributions to his campaign and therefore no plausible possibility of bribery or corrupt influence, the new law said that after a point, he could speak no more: once the law's expenditure limit was reached, he could not spend another dime on leaflets or letters or radio ads, even if thousands of his supporters contributed $5 each to allow him to do so. The ACLU thought this sort of expenditure limitation was a clear violation of the First Amendment, and had no relationship to the legitimate purpose of reducing corruption. Some supporters of expenditure limits believed that the purpose of campaign finance reform was not only to reduce corruption, but to enhance fair elections by giving all candidates equal access to the voters. But FECA failed that test as well. For example, most newspapers and broadcast stations were supporting Ramsey Clark's opponents and their speech was unlimited by the new law while his ability to respond by buying ads was curbed. Newspaper publishers could support Clark's opponent without limit, but Clark was prohibited from spending money to buy an ad in order to respond.
For these kinds of reasons, the ACLU challenged FECA in Buckley v. Valeo, and in 1976 the U.S. Supreme Court ruled partially in our favor. It struck down limits on independent expenditures, ruling that any individual or group unconnected to a candidate could advocate the election or defeat of that candidate without limit. It also struck down limits on expenditures by candidates, ruling that any limit on spending money to publish ads or brochures would necessarily bar speech. But the court upheld the law's limits on the size of direct contributions to candidates on the ground that, although a contribution was a form of political expression, the size of a contribution was less so and that the government's interest in reducing corruption was a justifiable reason for limiting the size of direct contributions of money to candidates.
Page 73 PREV PAGE TOP OF DOC The Court's split decision created several anomalies. Because it ruled that a candidate could not corrupt himself, it permitted a wealthy candidate, like Ross Perot, for example, to spend an unlimited amount on his own candidacy. But if an equally wealthy individual wanted to support Perot's opponent, the law made it unlawful to do so. This worsened the inequality of campaign financing. Thus, under current law, Perot is able to spend whatever he wants to run for office but if an equally wealthy donor wants to enable Colin Powell to run against Perot, he commits a crime. This cannot be a result anyone would support.
This kind of inequality is an unavoidable consequence of the current approach to campaign financing. For example, even under Buckley, limits on contributions are permitted. But such limits only apply to cash contributions. Thus, the owner of a newspaper could openly campaign for one candidate in the pages of his publication, but a wealthy citizen could not provide equivalent support to the other candidate to allow him to respond.
Consider this hypothetical. Rupert Murdoch owns the New York Post and decides to use his newspaper to campaign for the reselection of Mayor Giuliani. He has the First Amendment right to do so, which no one can dispute, and which federal election laws recognize. Suppose Mayor Giuliani's eventual opponent has no similar support from any of New York's major newspapers. Suppose, however, that he does have a very wealthy individual supporter who is willing to give him the money to run a full-page ad in behalf of his candidacy. If he does so, he violates the law, because current campaign finance laws place strict limits on the size of contributions, and the cost of even a single full-page ad exceeds those limits. The result? One candidate gets an entire newspaper's support every day, while the other is denied even one page once during the campaign. This is bad First Amendment law, and it is the opposite of true campaign finance reform.
Page 74 PREV PAGE TOP OF DOC Or consider this. An incumbent Senator mails to his constituency for free, using the franking privilege. This is not counted as a campaign expenditure or as a contribution by the taxpayers. But if a challenger secures a large contribution to pay for similar mailings to the same constituents, a violation of the law occurs.
Similarly, incumbents can make news. They can create events, announce legislative initiatives and call news conferences. They have the ability to get themselves covered on television and in newspapers. But if a prospective challenger wants to buy space to respond, he cannot secure a contribution to pay for it.
Such inequalities were built into the 1974 amendments to the Federal Election Campaign Act, and they are inherent in any legislative scheme that utilizes limits on contributions because no set of limits can possibly limit everything. Inequalities are thus created in the name of equality; unfair advantages are institutionalized in the name of fairness; and some forms of political speech are protected while other forms are criminalized.
Reformers have been willing to tolerate these inequalities and the gross violations of free speech resulting from campaign finance laws because they thought it was important to lower the cost of election campaigns, reduce the influence of special interests and make the electoral system more accessible to challengers. Even if these goals had been achieved by campaign finance laws, they could not possibly justify the First Amendment violations I have described. But in fact, campaign finance laws have not achieved their goals. Between 1977 and 1992, congressional campaign spending increased by 347 percent. Contributions by PACs increased from $20.5 million in 1976 to $189 million in 1994. The number of federal PACs have increased from 608 in 1974 to over 4500 today. And while incumbents in the House of Representatives outspent challengers by 1.5 to 1 in 1976, they outspent challengers by 4 to 1 in 1992.
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THE SOURCE OF THE PROBLEM--AND ITS REMEDY
The major cost of election campaigns is the cost of communicating with voters--a core First Amendment activity. The primary reason why this cost has escalated so dramatically in recent years is the dominant use of television and the high cost of television advertising. It is this demand that is driving the need for the supply of money. Public financing is a possible solution, but it must be sufficient and fair to all candidates: it must be structured to avoid providing advantages to incumbents and it must avoid discriminating against third party candidates.
TOWARD A FAIR SYSTEM OF PUBLIC FINANCING
Limits have proven to be a bogus reform. They have not--and cannot--prevent corruption and they necessarily enhance inequality and therefore make elections more unfair. Moreover, they inevitably lead to curbs on speech that everyone agrees should be protected by the First Amendment. For these reasons, the ACLU opposes limits on contributions and expenditures. However, we support public financing that would establish a floor of support for candidates to communicate with voters.
Studies show that if the floor of support is adequate, there is no need to impose a ceiling Thus providing a floor of support through public financing for all qualified candidates is a better and more likely constitutional route to reform than the failed attempt to establish ceilings by imposing legal limits on contributions and expenditures.
Page 76 PREV PAGE TOP OF DOC Public financing should be equally available in equal amounts to all legally qualified candidates. The amount of financing should be adequate to insure public debate of campaign issues. Any funds candidates raise from other sources should not be limited. If the floor is adequate, such additional funds will have only a marginal effect, and any attempt to bar them will create First Amendment problems.
Campaign finance reform based on limits is what we've had for more than 25 years, and it has not worked very well. The public has grown even more dissatisfied with the appearance of impropriety. Moreover, there has been an increase, rather than a decrease, in inequality. Indeed, inequalities that unfairly benefit incumbents over challengers are built into laws that impose contribution limits. An incumbent has enormous visibility by virtue of the very office he or she holds. More often than not, a challenger's disadvantage can be overcome only by outspending the incumbent. But contribution limits make that difficult, if not impossible. Incumbents also have the franking privilege--they enjoy a large number of free mailings to their constituents. Direct mail expenses by challengers, on the other hand, are charged against their campaign limits.
Limits designed to forestall corruption also give wealthy candidates an unfair advantage. Since the court ruled in Buckley v. Valeo that candidates cannot corrupt themselves, a wealthy candidate, like Perot, can spend $2 million on his own campaign. But a candidate of more modest means is prohibited from accepting more than $1000 from a wealthy supporter. This does not advance the goal of equality.
Contrary to what they were intended to do, contribution limits actually invite corruption and abuse. The incredibly high cost of television ads, which can consume more than half of a candidate's budget, creates an insatiable demand for money. This demand will be met, if not openly, through more devious means, including finding loopholes in the election laws. The rich, who can hire teams of lawyers and accountants, will always find a way around such laws, and they have. Limits have been in place for more than 25 years, but the problems limits were designed to solve remain. It is time for a new approach.
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A public financing system could minimize corruption, equalize access to voters, and promote free speech by establishing a real floor. This could be done in three ways. First, give all qualified candidates including minor party candidates, an adequate franking privilege during the campaign. Second, give them adequate time on television. Third, give them travel vouchers. These steps would reform the system by reducing its major costs, thereby drying up the need to raise large amounts of money. This approach would also eliminate the need for a government agency like the FEC to regulate citizens speech.
In addition to establishing an unbiased system of public financing, there is another area in which Congress can improve the existing system of campaign regulation: public disclosure of large gifts.
The ACLU has always believed that public disclosure of large campaign contributions, with the exceptions noted in Buckley, is the best check on corruption or the appearance of corruption in this area. It allows the voters to make up their own minds about what is inappropriate, and it gives them the tools to make that judgment. But public disclosure must be timely in order to be useful. Modern computer technology has given us the ability to collect and disseminate large collections of data almost instantaneously, and we should insist that required campaign finance reports be filed in a uniform format on tape or disk so that they can be posted on the Internet and available to all interested citizens at once.
The ACLU believes that limitations on contributions or expenditures made by individuals or organizations for the purpose of advocating causes or candidates necessarily impinges directly on freedom of speech and association. The appropriate response to the disparities in the ability of different groups and individuals to communicate their political views to voters during an election campaign is to expand, not limit, the resources available for political advocacy. The ACLU therefore supports public financing to provide a floor for campaign expenditures in an amount sufficient to insure a fair public debate, rather than caps on contributions and expenditures, which only enhance inequality and curb speech. Such financing should be available in equal amounts to all legally qualified candidates for office. An objection to this sort of public financing is that it will be too expensive. But in 1994, all congressional general-election candidates combined spent approximately $590 million--roughly $3 per eligible voter. That does not seem to be an amount that is prohibitive for a democracy to spend in order to assure fair access to the voters.
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Constructing such a system of public financing will be a complicated task. But it is the right road for Congress to travel. The road we have been traveling--the road of limits on contributions and expenditures--is full of constitutional landmines and is inherently unfair. We need to get off that road now.
Thank you for the opportunity to present these views.
Mr. CANADY. Thank you, Mr. Glasser. We appreciate your testimony.
The vote is proceeding on the floor of the House. The committee will stand in recess, and will reconvene immediately after the vote. Thank you.
Mr. CANADY. The subcommittee will be in order.
I regret the interruption, and we will now proceed. Mr. Cutler.
STATEMENT OF LLOYD N. CUTLER, ESQ., WILMER, CUTLER & PICKERING
Mr. CUTLER. Mr. Chairman, I argued the public financing portion of Buckley v. Valeo for a coalition of groups that supported the constitutionality of those provisions, and the Supreme Court upheld them, including the limitations they placed on expenditures by candidates who had accepted public financing. A constitutional amendment might be needed, or probably is needed, to reverse Buckley on two other issues: the regulation of independent expenditures on behalf of candidates and candidate expenditures for personal and family funds. But, in my view, these issues are not the heart of the problem that confronts the public and the Congress today.
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I think the heart of the problem is really twofold: First, capping the amount of soft money raised by party and election committees and spent in coordination with the specific candidates, and, second, capping contributions to PAC's and expenditures by PAC's that are also coordinated with specific candidates.
And under Buckley and the Supreme Court's 1996 decision in the Colorado case, which I think, as Professor Neuborne will point out, is rather widely misunderstood, no amendment may be necessary for these two purposes. What is needed, in my view, is congressional willingness to enact the necessary legislation.
I used to favor a constitutional amendment authorizing Congress to impose reasonable limits on expenditures, and I testified before the Senate Judiciary Committee about 10 years ago on that subject. I now have doubts about the amendment option for the following reasons:
First, as I indicated, I believe an amendment may well be unnecessary to accomplish what I think are the two most important campaign financing reforms. First, as to soft money contributions, the act that was construed in Buckley, the 1974 act, capped those contributions made to parties and election committees and used to benefit specific candidates, and the Supreme Court actually upheld that cap in Buckley under the fifth amendment challenge, the discrimination and due process challenge, that was raised in Buckley. You can find that in footnote 66 of the Buckley opinion.
And the plaintiffs in that case, including the ACLU, did not challenge those caps under the first amendment. In my view at least, Buckley's reasoning on contributions would reject a first amendment challenge to such a cap. And it's worth nothing that five of the Justices in the 1996 Colorado case did not question the constitutionality of regulating party expenditures that are coordinated with candidates. At the very least, one would have to say that at the Supreme Court level that question is still open, and the same principles I think could well apply to caps on contributions to PAC's for expenditures by PAC's that are coordinated with candidates.
Page 80 PREV PAGE TOP OF DOC Second, and even more important, an amendment would just take too long to adopt. It would probably be someplace between 4 and 10 years to get it through both Congress and three-fourths of the States, and meanwhile, while everybody says we could pass statutory reforms, I don't think they would pass if an amendment were pending and under consideration. Amendments like this have been kicking around for at least 10 years, probably more, with no action, and I share the view that's been expressed by many committee members that an amendment would be very unlikely to pass even the Congress here.
Moreover, there's a camel's nose under the tent aspect to any amendment that affects the first amendment. You would have to overcome the Senate filibuster rule, and you would have to get a two-thirds vote in both Houses. And in order to accomplish that, you might have to include other proposals to amend the first amendment that are kicking around today and are pending, such as flag burning, school prayer, et cetera. And we also should take heed of the European experience where the constitutional rights of free speech and assembly are qualified. In almost all the European constitutions you find there's an exception for measures necessary in a democratic society to uphold public order, and most of Europe has laws regulating hate speech, like laws against blasphemy and demonstrations like the Skokie Nazi Party Parade, in ways that would not pass constitutional muster in the United States.
And, lastly, as many members of the committee who were here earlier noted, even an amendment such as Gephardt-Frank or the Hollings amendment in the Senate are essentially based on a rule of the reasonableness of the regulation measured, in essence, by first amendment standards, and that would have to be decided by the Supreme Court anyway. Only the Supreme Court could tell you in the last analysis whether specific legislation adopted after an amendment would or would not be a reasonable limit on free speech.
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And since Buckley and Colorado don't shut the door on what I consider to be the most important reforms now, Congress ought to enact those reforms now, so that we can litigate these issues under Buckley and Colorado as soon as we can. Thank you.
[The prepared statement of Mr. Cutler follows:] PREPARED STATEMENT OF LLOYD N. CUTLER, ESQ., WILMER, CUTLER & Pickering
1. I argued the public portion of Buckley v. Valeo for a coalition of groups supporting constitutionality. The Supreme Court upheld these provisions.
2. The only need for constitutional amendment is to reverse Buckley as to regulation of independent expenditures on behalf of candidates and candidate expenditures from personal and family funds. But in my view these issues are not at the heart of the problem.
3. The heart of the problem is twofold: (a) capping the amount of soft money used by party and election committees for benefit of or coordinated with specific candidates, and (b) capping contributions to PAC's and expenditures by PAC's on behalf of or coordinated with candidates. Under Buckley and the Supreme Court's 1996 decision in the Colorado case, no amendment may be needed for these purposes. What is needed is Congressional willingness to enact the necessary legislation.
4. Both of these goals can also be achieved by public financing of congressional elections, based on existing laws for public financing of presidential elections. Under Buckley this is constitutional, including limits on expenditures by or coordinated with candidates who accept public funds.
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5. The same principle would apply to legislation requiring broadcast licensees to provide free or cut rate radio and television time to candidates. If free or cut rate time would work an unreasonable hardship on broadcast licensees, Congress could authorize an income tax deduction equal to the value of the time they provide.
6. I used to favor a constitutional amendment authorizing Congress to impose reasonable limits on expenditures. I testified before the Senate Judiciary Committee on this subject in 1988. I now have doubts about the amendment option for the following reasons:
a. An amendment may be unnecessary for the two most important reforms.
i. The 1974 Act capped soft money contributions made to parties and election committees and used to benefit specific candidates.
(A) The Supreme Court upheld the cap in Buckley as to Fifth Amendment challenge. (FN66)
(B) The Plaintiffs did not challenge the cap under First Amendment. (FN67)
(C) Buckley's reasoning on contributions would reject a First Amendment challenge to such a cap. Five Justices in the 1996 Colorado case did not question the constitutionality of regulating party expenditures that are coordinated with candidates. At the very least the question is still open.
ii. The same principles may well apply to caps on contributions to PAC's or expenditures by PAC's on behalf of or coordinated with specific candidates.
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b. An amendment would take too long to adopt (4 to 10 years) and would be very difficult to get through Congress. Meanwhile, no statutory reforms would pass. Various proposed amendments have been pending for the last 10 years.
c. There is a camel's-nose-under-the-tent aspect to any amendment affecting the First Amendment. To overcome the Senate filibuster rule and the two-thirds requirement for passage, the amendment resolution might have to include other current proposals to modify the First Amendment, such as school prayer and flagburning. We should also take heed of the European experience with qualified free speech and assembly rights. Most of Europe has laws regulating hate speech, blasphemy and demonstrations in ways that would not pass constitutional muster in the United States.
d. Even if an amendment such as Gephardt-Frank were passed by Congress and ratified by the states, any laws enacted after its adoption would still give rise to constitutional issues which the Supreme Court would then have to resolve. Both Gephardt-Frank and the Senate authorize expenditures. Only the line between reasonable and speech and assembly.
e. Since Buckley and Colorado do not shut the door on the important reforms we need, Congress ought to enact these reforms promptly so that we can litigate these issues right now.
Mr. CANADY. Thank you, Mr. Cutler.
Page 84 PREV PAGE TOP OF DOCSTATEMENT OF JAMES BOPP, JR., ESQ., BOPP, COLESON & BOSTROM
Mr. BOPP. Thank you, Mr. Chairman and members of the committee. I'm pleased to testify here today before you. One of the major areas of practice of my firm involves Federal and State election law, and we are counsel in over two dozen cases currently pending against both State election laws and the Federal Election Commission, challenging these laws or Federal Election Commission regulations on first amendment grounds.
Mr. Chairman, I think you are correct to begin this discussion of campaign finance reform this session with the question of a constitutional amendment because I think it is quite clear from the cases being handed down by the U.S. Supreme Court and the lower courts that the only way that measures such as the Shays-Meehan measure could ever muster constitutional support would be by being preceded by a substantial amendment to the first amendment to the U.S. Constitution, because the first amendment protections of free speech, according to the Court, protecting ''indispensable democratic freedoms'' that are ''at the heart of our electoral process'' and of the first amendment freedoms, and that is political speech, whether it is expressly advocating the election or defeat of a clearly identified candidate or constitutes issue advocacy, which of course occurs when people discuss issues of public concern, when they lobby Congress or do grassroots lobbying on issues that are pending before Congress, when they engage in generic educational activities concerning issues or proposed legislation that may occur at some point in time, even including the discussions of positions of candidates on issues--are all issue advocacy that have been given, under the Buckley decision, the highest level of constitutional protection. It is only when those communications contain explicit words or express terms that expressly advocate the election or defeat of a clearly identified candidate may they in any respect then be subject to minor regulation.
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But let me address I think the misunderstanding of the proponents of ''reform'' in this area, and that is the persistent claim that Buckley said that money is speech and that that was the wrong decision of the Court which we now have to address. In fact, the Court did not say money is speech. What the Court said was that limits on money limit speech, which is a very commonsensical and practical observation. And let me give you an example.
We have a constitutional right to travel. What would happen if the bus companies got together and said, over the last 20 years we have spent, oh, way too much money on travel, particularly airline travel; it's so expensive--just like TV commercials now are so expensive. So what we need is we're not going to regulate the right to travel--you can certainly do it--but if you want to travel across country, you can only spend $75 to do so. Well, for 75 bucks you can get a ticket on Greyhound and go across country. Well, this is exactly what the Court was talking about: limits on money would then be a limit on the right to travel.
We could say, under the freedom of speech, we're not going to regulate--let's say, the freedom of the press--we're not going to regulate freedom of the press; it's a right. However, because magazines cost so much and we're spending so much more on magazines, the newspaper people are going to get together and get Congress to pass a law that you can't spend more than 50 cents on a magazine. Well, what would that be about? Would that be about money or would that be about freedom of the press?
Money is an instrumentality. It simply enables us to exercise rights which we possess, and to limit the spending of money on those rights is to limit the exercise of those rights. And that's why the Buckley Court said, not that money is speech, but that limits on money limit speech, as it would do in any of these other areas.
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Secondly, limiting money will not level the playing field; it will simply advantage certain people over others. Those that need to raise the money the most to participate in issue advocacy in our society are citizens' groups and individuals. It is not the press. It is not the movie stars and athletes. It's not the Washington consultants. It's not the political insiders. It's not incumbent Members of Congress. It's not the wealthy. It is those that are of modest means that want to join their money together to multiply their voice. So if you take money out of the process, what you are taking out of the process is the voice of everyday citizens to participate in the political process, advantaging those that have these other assets that can command public attention.
And, finally, if you really want to address the problem of money in politics, you have to address the size of government. After all, why is it that people are so concerned about what you are doing? Why are they so concerned about who is going to make the decisions that Government makes? Well, the reason is their vital interests are at stake. Government collectively spends 40 percent of the money in income every year in the United States. Within the last couple of years, whole industries were under assault by this Government. The nationalization of all the entire health care industry was a serious proposal before this Congress; tort reform that impacts hundreds of thousands of lawyers and litigants; the tobacco industry to be outlawed, and the list goes on and on and on. The bigger the Government, the more people are going to be interested in what the Government does.
And by your 1974 bill, you have limited their ability to get involved directly. You say, to get involved directly, you can only give a thousand bucks, but, by gosh, we may just simply abolish your whole industry. Well, what do you think these people are going to do--go like lambs to the slaughter? Or are they going to say, ''Well, we need to participate somehow''? And they'll look for means to participate.
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So we have untoward consequences of what has happened. The growth of Government means more people are interested and involved, and you have limited their direct ability to become involved. I urge you to consider as your first order of business the constitutional amendment because, simply put, these proposals are unconstitutional under current law, and then that amendment should be rejected.
[The prepared statement of Mr. Bopp follows:]
PREPARED STATEMENT OF JAMES BOPP, JR., ESQ., BOPP, COLESON & Bostrom
INSERT OFFSET RING FOLIOS 14 TO 46 HERE
Mr. CANADY. Thank you, Mr. Bopp.
STATEMENT OF BURT NEUBORNE, LEGAL DIRECTOR, BRENNAN CENTER FOR JUSTICE, NEW YORK UNIVERSITY SCHOOL OF LAW
Mr. NEUBORNE. Thank you, Mr. Chairman, and thank you very much for holding these hearings, which I've been here all morning and heard some very interesting things. I am grateful for the opportunity to participate.
I'm not a first amendment moderate. I'm not a first amendment softie. For 11 years, I was a lawyer with the American Civil Liberties Union. I served as the ACLU's legal director during the Reagan years. For the last 10 years, I have been counsel to the Association of National Advertisers and pressed very strongly for a muscular conception of commercial speech. I don't speak here with a record of a person who has compromised on first amendment issues during my career, but I do speak against the background of a crisis, and that is that democracy in this country, at the very time when we should be feeling wonderful about it, at the very time when democracy has triumphed worldwide, there is a malaise in this country about the democracy that, unless we fix it, we are going to be responsible for handing down to our children a weakened democracy.
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The signs of the malaise are everywhere. In the last Presidential election, 48 percent of the population voted. Forty-eight percent of the eligible population voted in the 1996 election. In the 1994 elections--it may have been one of the most important elections in the 20th century--38 percent of the population voted. That means that Speaker Gingrich became Speaker because 19 percent of the electorate voted for him. That's how close it was. President Clinton is President today because 25 percent of the people voted for him. You can't run a viable democracy for an extended period of time on those numbers.
And the reason people aren't voting is that they look at the system and they think it leaves them out. The reason people, millions of people, say to themselves, ''It's better for me to go get a bargain at the local store than it is to vote in my democracy,'' is that they think that money controls everything in the system. They may be right and they may be wrong. I think people overestimate the degree to which money actually has an effect on what people do in the system, but the appearance of corruption is everywhere. You cannot take a poll of an American voter without hearing a heartsick wale about what happened to their democracy, who hijacked their democracy. And the hijacking of a democracy is directly related to the fact that people with money have disproportionate influence on who gets elected and who has access for government.
You don't--we didn't have to be told that the Lincoln bedroom was being rented out. We didn't have to be told that a limousine would meet a high Republican donor at the airport and take him for a special guided tour of the House and Senate leadership, so that they would have special access. We knew that before. We know that what lobbyists buy, and what contributors buy with their big contributions, is special access, and that special access distorts the democratic process, just as it would distort the judicial process. If we sold access to arguing before a judge, can you imagine what people would think about the outcomes in judicial cases? Well, that's the cancer that's eating at the faith in the democratic process now. We are losing faith in the outcome of the process because we know that we have sold access to rich people to come and talk to candidates and have special pleading for their needs.
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Now how can we fix it? The crisis is really among us. You can ignore it and you can pretend that the first amendment forbids you from acting. You can pretend that it's the Constitution's fault or it's the Supreme Court's fault, but we are presiding over the erosion of the world's greatest democracy, and you only have to look at the voting totals to tell you that. So what can we do about it?
Rather than debate abstractly a constitutional amendment which has no chance of passage or to talk about reversing Buckley v. Valeo, which is not going to take place in my lifetime, it seems to me what we have to do is focus on what we can do under Buckley to make things better. And the first thing is to listen to Ira Glasser, when he says from the ACLU's perspective the best thing to do is public financing. It's clearly constitutional under Buckley. It will restore faith and confidence in the democratic process. It will eliminate the disproportionate influence of wealth, and it will allow the system to function adequately again. And that is something that must be on our agenda, but that's a long way away politically. Realistically, I understand that that's a long way away politically. We can't wait for public financing.
So what can we do with the existing system? And I suggest there are two very important things that can be done that are consistent with existing law and that would help restore the faith, the faith in democracy that's eroding.
The first is to do something about capping the demand for money in the system. We're not going to be able to fix it all. All of you have quite correctly pointed out that there is going to always be problems popping out, but we can in some sense cap the demand for money by taking the page out of the Supreme Court's book in Buckley and saying, look, we don't want to give you money, but we will give you something, if in return you promise to cap your demand, and that something can be free television time; it can be franking privileges; it can be--you choose what it is you want the inducement to be.
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But under existing law, you can bargain with the political candidates and say, look, we'll give you something in return for your promising to put a cap on your spending. If you put a cap on your spending, just as in an arms situation, an arms race, if you can induce both sides to cap the spending, then you can at least prevent the creation of these desperate searches for money which have been on the front pages.
And the second thing you can do--and you can do it tomorrow, if only you will do it--you can close the soft money loophole. It is not constitutionally required. It is not constitutionally required under the Colorado case. It is not constitutionally required under Buckley. You can impose the same restrictions on contributions to political parties that you do on contributions to candidates, so that you can close off corporate money; you can close off labor money, and you can close off contributions from wealthy people flowing directly to the political parties, because everybody admits that's what destroyed the Presidential public funding system. It's the soft money flowing to the parties. That's what's made a mockery of the system, and you can cut that off tomorrow. And if you don't cut it off, please don't blame it on the first amendment. Don't blame it on the Supreme Court. If you don't cut soft money off, it's because you don't want to cut soft money off.
[The prepared statement of Mr. Neuborne follows:]
PREPARED STATEMENT OF BURT NEUBORNE, LEGAL DIRECTOR, BRENNAN CENTER FOR JUSTICE, NEW YORK UNIVERSITY SCHOOL OF LAW
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Discussion about reform of the campaign finance process begins, and often ends, with the Supreme Court's landmark decision in Buckley v. Valeo, 424 U.S. 1 (1976). Since, reasoned the Buckley Court, most campaign speech requires the spending of money, any attempt to limit campaign spending must be analyzed, for constitutional purposes, as if it were an effort to limit political speech itself.
Applying the traditional First Amendment test for limiting political speech, the Buckley Court ruled that congressional efforts to regulate campaign spending must advance a ''compelling'' governmental interest. While the Court agreed that the government has a compelling interest in avoiding the reality or appearance of ''corruption'', the Justices rejected the argument that the government has an interest in fostering equal political participation by rich and poor alike.
The Buckley Court did two things: It upheld contribution restrictions, reasoning that limits help control corruption. And it struck campaign spending restrictions, reasoning that spending money does not involve a transaction between a donor and a candidate, thus there is no possibility of corruption.
Buckley has governed for over twenty years. Given Americans' virtual uniform abhorrence of the campaign finance system, and Buckley's role as its principal architect, it's no surprise Buckley remains an intensely controversial precedent.
Page 92 PREV PAGE TOP OF DOCA. Buckley: Procedural History and Issues Examined
In 1974, following President Nixon's resignation, public demand for campaign finance reform led Congress to enact the Federal Election Campaign Act of 1974 (FECA). This comprehensive set of campaign regulations built on reforms initially adopted in 1971. In an effort to assure that the constitutional issues raised by FECA would be settled before the 1976 presidential election, Congress created an expedited judicial review process that forced consideration of all of FECA in a single case, before it went into effect.
Buckley was heard at breakneck speed. The lower courts attempted to develop a detailed record, but there wasn't time for a careful fact-sifting process. Ordinarily, an important constitutional case involves adversarial factual hearings, whose products help guide the judicial decision making process. In place of such hearings, the district court encouraged the parties to submit so-called ''offers of proof''--which consisted of assertions about the facts. The court then required the parties to negotiate over these offers-of-proof, and some were adopted as ''findings.'' This process created a product that left the Supreme Court frustrated. Throughout the Buckley opinion the Court notes the insufficiency of the factual record, warning that its review was purely a ''facial'' testing of the statute as an abstract matter. Repeatedly, the Buckley Court reserves the possibility of a subsequent Has applied. review on a fuller factual record.
In an effort to meet the deadline of the impending presidential election, on November 10, 1975 the Buckley Court heard oral argument on all four of FECA's components: (1) contribution ceilings; (2) expenditure ceilings; (3) disclosure rules; and (4) public financing of presidential elections, as well as a challenge to the procedure for appointing the members of the Federal Election Commission (FEC), and an assault on the expedited judicial review procedures themselves.
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1. Contribution Ceilings
FECA introduced four restrictions for campaign contributions--payments directly to a candidates campaign--which Buckley ultimately upheld and which remain in place today.
First, FECA imposed a ceiling of $1,000 on the amount that an individual could contribute to a candidate for federal office in connection with a given ''election.'' Since primary elections and general elections were treated separately, the de facto contribution limit was 52,000 per person for any candidate.
Second, while FECA continued the long-standing ban on corporations and labor unions directly contributing to candidates, Congress explicitly authorized the creation of political action committees (PACs). The creation of PACs allowed corporations, labor unions, and political organizations (e.g., the National Rifle Association, the Chamber of Commerce, and the Sierra Club) to collect voluntary contributions from interested individuals and pass them on to one or more candidates. PACs could give candidates $5,000 per election, thus $10,000 each political cycle.
Third, FECA imposed annual limits for contributions to the national committees of political parties. Each year individuals were limited to giving up to $20,000, PACs could donate up to $15,000.
Finally, Congress imposed an annual ceiling of $25,000 on an individual's combined contributions to all federal candidates, PACs, and national parties. No aggregate contribution limit applied to PACs.
Page 94 PREV PAGE TOP OF DOC2. Expenditure Ceilings
In addition to its contribution limitations, FECA carefully regulated political expenditures with a series of caps, all of which the Court ultimately struck down.
Campaigns were subject to stringent expenditure limits. Presidential campaigns were capped at $10 million for the primaries, and $20 million for the general election. Senate campaigns were limited to 8 cents a voter for the primaries, and 12 cents a voter for the general election. House campaigns were limited to $70,000 for the primaries and $70,000 for the general elections. These spending limits were indexed annually for inflation.
Finally, the independent spending of individuals was limited to $1,000 in support of a federal candidate. For example, Voter Jones could take out a newspaper ad supporting Candidate Smith, if Jones' costs were $1000 or less. Candidates were permitted to spend up to 650,000 of their own money on a presidential campaign; $35,000 on a Senate campaign; and $25,000 on a House campaign.
3. Disclosure Requirements
The limits on campaign contributions and expenditures were reinforced with stringent reporting and disclosure requirements. Congress required campaigns, PACs, and political parties to record all contributions of more than $10, and to report to the FEC the name and business address of all persons contributing more than $100. The FEC would make the latter category of information available for public scrutiny. In addition, independent expenditures of more than $100 on behalf of any candidate were to be reported to the FEC which would make this information accessible to the public.
4. Public Financing of Presidential Elections
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Finally, Congress provided for optional public funding of presidential elections, which was ultimately upheld and remains in force.
Candidates for party nomination (regardless of a party's size) received matching funds for contributions of $250 and less, up to a candidate total of $5 million. Two conditions applied: Candidates had to demonstrate widespread public support by gathering small checks from a substantial number of donors in at least 20 states; and candidates needed to abide by the $10 million expenditure ceiling. No provision existed for subsidizing a presidential candidate not affiliated with a party.
The major political party nominating conventions (a major party was defined as a party that received 25% of the vote in the last election) received subsidies of $2 million. Major party candidates also received a $20 million campaign subsidy for the general election, if they promised to spend no more than this subsidy. In other words, a candidate who accepted public funding would use only public money in the general election campaign.
A minor party candidate (a minor party was defined as a party that received between 5%25% of the vote in the last election) received a lower subsidy, keyed to the party's vote in the last election. A candidate from a new party (defined as any party that failed to gain 5% of the vote in the last election) received no pre-election subsidy, but was eligible for a postelection payment if she received more than 5% of the vote. No provision was made for funding independent candidates.
All subsidies were to be adjusted annually for inflation.
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B. The Argument on Both Sides
1. The Challengers
The challengers in Buckley were an amalgam of political conservatives, civil libertarians, minor parties, and liberal reformers. Plaintiffs included James Buckley, then a Senator from New York who had been elected as a third-party candidate of the Conservative Party; Eugene McCarthy, a reformer who had run a spirited anti-Vietnam war campaign for the Presidency; the Socialist Labor and Socialist Workers Parties, the perennial standard-bearers of the radical left in national campaigns; the American Conservative Union; and the American Civil Liberties Union (ACLU).
What united the various challengers was a belief that Congress' comprehensive regulations would make it more difficult for challengers to defeat incumbents, and for minor parties and independents to challenge the hegemony of the two major parties. (The ACLU, the sole non-partisan challenger, shared this concern but was most interested in the First Amendment implications of disclosure rules, and contribution and spending limits.) In short, the challengers argued that the version of campaign reform before the Buckley Court would have had the effect of protecting the ''ins'' from serious challenge by the ''outs.''
For example, plaintiffs argued that individual contribution limits ($1,000 per candidate election, and $25,000 annually) unconstitutionally interfered with freedom of speech and association. This interference, they argued, would make it more difficult for a challenger to raise the money needed to wage a credible threat to an incumbent. These contribution limits particularly upset minor parties, which argued that since they were unlikely to win an election, their acceptance of large contributions posed no real threat of corruption. Finally, in a prescient criticism, reformers argued that severely limiting contributions from individuals would enhance the power of special interest groups organized as PACs.
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The spending limits were challenged as direct restrictions on political speech. Also, limiting campaign expenditures, plaintiffs argued, gave incumbents an unfair advantage, since they entered most races with name recognition, a staff, and the advantage of the franking privilege. Moreover, the $1,000 independent expenditure limit for individuals, was argued to be set so low that it prevented supporters from engaging in acts of political consequence, e.g., buying newspaper advertisements. The plaintiffs believed that the real problem with elections was too little political speech, not too much. Severe expenditure limits, they feared, would put an artificial cap on political discussion.
The reporting and disclosure requirements were challenged as undue intrusions into private political activity, especially in the context of contributions to minor parties, and independent expenditures on behalf of candidates. While no one challenged the concept of disclosing large contributions, plaintiffs argued that keeping records of $10 contributions to a minor party unlikely to win an election seemed excessive, and public disclosure of contributions in excess of $100 seemed an unnecessary interference with the right to political anonymity, especially for gifts to controversial minor parties.
Finally, the presidential election public funding provisions were challenged as fundamentally unfair to third parties and independent candidates. The bulk of the subsidy was reserved for the two major parties, critics noted. Minor parties were locked into a subordinate status, and new parties were denied subsidies until after the election, when it was too late for many. Independent candidates were completely cut out of the subsidy process, both during the general election and at the nomination stage. Critics charged that the subsidies merely took existing two-party orthodoxy and locked it into place for the foreseeable future.
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2. The Government
The government defended FECA on three levels. First, the government argued that regulating the spending of money was not the same thing as directly regulating speech. While regulating the conduct of spending campaign money incidentally impacted on speech, the government claimed that because it was regulating conduct leading up to speech (e.g., the spending of money) and not speech itself (e.g., a candidate's statements) FECA deserved less demanding First Amendment scrutiny. The Court had accepted a similar speech/conduct argument in O'Brien v. United States, when it upheld the constitutionality of a ban on draft-card burning during the Vietnam War. The lower court in O'Brien upheld Congress' ban by distinguishing between regulating speech (e.g., verbal protests) and regulating conduct (e.g., burning draft cards).
Second, the government argued that since the campaign spending caps applied to everyone, the regulations should be tested by the permissive ''time, place or manner'' constitutional standard, which is used for regulations which limit speech without regard to its content. Earlier Supreme Court cases had used the Time, place or manner. rationale to uphold regulations on sound trucks, and reasonable limits on the areas where parades and demonstrations could take place.
Finally, the government argued that the regulations were valid even under the most stringent standard of review--where for rules which censor political speech, the Court demands the showing of a compelling interest. To meet this review level, the government put forth two compelling interests: The interest in deterring the reality or appearance of corruption caused by suspicious campaign financing, and the interest in fostering equal political participation by assuring that financially weak voices are not drowned out by strong ones.
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The government responded to the charges that the program unfairly benefited incumbents and the existing two-party structure by arguing that FECA leveled the playing field by removing money as a block to political discourse. In the long run, the government argued, a campaign process free from the distorting influence of unfair concentrations of wealth would prove more receptive to the arguments of reformers of every political stripe.
Finally, the severity of the restrictions and the low threshold for reporting and disclosure were defended as necessary to prevent the growth of loopholes and to provide the public with access to campaign finance data.
C. The Court's Opinion
1. The Importance of the Court's Per Curiam
The Buckley Court issued its opinion on January 30, 1976. Confronted with at least six major issues, and working under severe time constraints, the Court produced a 294 page opinion. The opinion is divided into a 143 page opinion for the Court, adorned with 178 footnotes (some of which are more important than the text), 92 pages of statutory appendices, and an additional 59 pages of separate opinions by individual justices concurring with, or dissenting from specific points.
The large number of legal issues and the short period of time available to the Court, forced the Justices to issue an unsigned per curiam opinion, widely believed to have been authored by Justice Brennan. The Court uses the per curiam device in settings, like the Pentagon Papers case, where time does not permit a single Justice to circulate a signed opinion for concurrence by colleagues, and where the issues are too complex to resolve by unanimous vote.
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Justice Stevens did not participate in Buckley, thus eight, not nine, Justices reviewed FECA. Only three Justices agreed with the per curiam in its entirety, but clear majorities emerged on every issue.
Justice Brennan, Justice Stewart, and Justice Powell agreed with the per curium. Justice White would have upheld all of FECA. Chief Justice Burger would have invalidated the entire plan, except for disclosure of large contributions. Justice Blackmun would have invalidated the limits on contributions and expenditures, but approved the disclosure and public financing provisions. Justice Marshall would have upheld the limits on contributions and a candidate's personal expenditures, but invalidated spending caps for individuals and campaigns. Justice Rehnquist would have upheld contribution ceilings and invalidated expenditure ceilings, but struck the public financing rules as unfair to minor parties.
Contribution limits were approved by six Justices, with only Chief Justice Burger and Justice Blackmun dissenting. Expenditure ceilings were invalidated by seven Justices, with only Justice White dissenting, joined by Justice Marshall on the narrow issue of a candidate's personal expenditures. Disclosure rules were upheld by seven Justices, with only Chief Justice Burger dissenting on the question of small contributions. And public funding rules were upheld by six Justices, with only Chief Justice Burger and Justice Rehnquist dissenting.
But the clear majorities obscure the opinion's central analytical rift--the radically different First Amendment treatment of contributions and expenditures. On that critical issue, which has played an enormously important role in the evolution of modern election law, the Justices were closely divided. Justices Brennan, Stewart, Powell, and, Rehnquist argued that a bright-line First Amendment distinction could be drawn between contributions and expenditures. Justice White, Chief Justice Burger and Justice Blackmun rejected the effort to treat the contributions and expenditures differently. Justice Marshall accepted differential treatment, but disagreed with the majority's treatment of a candidate's personal expenditures, which he viewed as self-directed contributions.
Page 101 PREV PAGE TOP OF DOC Even though only a bare majority was comfortable with the contribution/expenditure distinction, its analytic framework continues to dominate constitutional analysis of campaign finance reform.
2. The Standard of Review: Speech Equals Money
The Buckley per curiam opinion opens by rejecting the government's effort to secure a more permissive standard of judicial review by characterizing the regulation of campaign finance as a regulation of conduct, not speech. Regulation of campaign spending exercises such an inevitable impact on political speech, noted the Court, that spending limitations should be analyzed as though they were limits on speech itself.
Over the years, no aspect of Buckley has been more criticized than its equation of money and speech. But the Court's rejection of the government's effort to characterize FECA's regulations as mere regulations of conduct, with only an incidental impact on speech, was based on more than a crude confusion between speech and money. It was based on an assumption that, in the campaign context, money is the fuel that powers the political speech process.
As the Court noted, severely limiting the amount of money a political campaign can raise or spend affects political speech in much the same way as limiting the amount of gas in an automobile affects mileage. Given the extremely low expenditure ceilings set by FECA, the Buckley Court seemed correct to insist that campaign finance regulation be treated, for analytical purposes, as a direct regulation of speech. All eight participating Justices accepted the need to apply classic free speech analysis, and no member of the Court has ever suggested applying a lesser standard of review.
Two possible responses exist to the Court's equation of political speech and money. First, the Court's assumption that expenditure limits bite deeply into the quantity of political speech may be a function of the severity of the ceiling. In Buckley, a very low ceiling may well have justified such an assumption. For example, FECA was passed in 1974, and limited House campaigns to $70,000--but in 1972, 20 House candidates, 14 of whom were non-incumbents, spent more than $70,000. It remains to be seen whether the same assumption--that all limits gravely injure the quantity of political speech--would be justified in the context of more generous spending ceilings.
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The government's effort to invoke the ''time, place or manner'' standard was equally unavailing. The Court noted that FECA, unlike the regulations at issue in the ''time, place or manner'' cases had the effect of eliminating speech entirely, not merely shifting it to a different time or place. For example, courts have allowed protesters to be moved from the entrance of an event to an adjacent parking lot, reasoning that the protesters' speech opportunities remain. But capping campaign spending entirely removes speech from the political process.
Thus, the Buckley Court requires that campaign finance regulations satisfy the stringent constitutional test designed to govern efforts that censor political speech--a test that requires the government to prove that the regulation is the least drastic means of advancing a compelling governmental interest.
3. The Difference Between Contributions and Expenditures
With the question of the governing standard settled, the Buckley Court proceeded to canvass potential compelling interests that might justify regulation. Two interests were identified: Preventing the appearance or reality of ''corruption'' caused by suspicious forms of campaign financing, and promoting effective participation in the electoral process by all, regardless of wealth.
Next, the Court explored the First Amendment values at stake in campaign contributions and expenditures. Campaign contributions, it was decided, were important acts of political association, but not direct acts of expression. Campaign expenditures, on the other hand, were found to be pure acts of expression entitled to the highest level of protection.
Page 103 PREV PAGE TOP OF DOC The Court then proceeded to balance the potential compelling interests in regulation--preventing corruption and equal political participation--against the First Amendment values. Large campaign contributions, found the Court, risk the appearance or reality of corruption, which the Court equated with a quid pro quo arrangement between the contributor and the candidate. On the other hand, limiting large contributions would not materially diminish communication, the Court reasoned, since 94% of campaign contributions were lower than the $1,000 ceiling, and the remaining 6% could simply be raised in smaller amounts. Balancing the compelling interest of preventing corruption against the Court's view of the mild interference with speech caused by limiting contributions, the per curiam opinion firmly upheld the $1,000 limit on contributions to candidates.
The Buckley Court came out the other way on spending limits. For independent expenditures--Voter Jones' advertisement for Candidate Smith--there is little danger of quid pro quo corruption because the spender has no contact with the candidate. For a candidate's personal expenditures--Candidate Smith spends $100,000 of his own money on his campaign--the Court found no danger of quid pro quo corruption because there is no one to make a deal with. Finally, for campaign expenditures--the Smith campaign's advertising costs--the Court concluded that because no deals are made in the process of spending money, there is no risk of quid pro quo corruption.
On the other side of the balance, the Court noted the direct effect expenditure ceilings have on the ability to speak. The extremely low $1,000 limit on individual independent expenditures would bar a supporter even from taking out an advertisement in a newspaper. And the candidate and campaign expenditure limits would directly impact on the quantity of political discourse. Balancing the lack of serious threat of corruption in the expenditure context, against the significant limit on political speech created by spending ceilings, the Buckley Court firmly invalidated all expenditure caps.
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As to the government's argument that spending caps were allowable because they advanced a compelling interest in fostering equal political participation, the Court acknowledged this interest as legitimate--relying on it later in the opinion to uphold public financing--but rejected using the equality rationale as a justification for preventing political speech, as opposed to subsidizing it. Strong voices, said the Court, may never be censored in an effort to aid weak voices. Thus, under Buckley, if a government wants to equalize political participation, its sole option is subsidizing, not limiting, candidates.
The Buckley Court's separate treatment of expenditures and contributions has been criticized on at least three levels. First, critics have argued that the per curiam opinion erred in ascribing less First Amendment value to campaign contributions than to expenditures. When Voter Jones writes a check to Candidate Smith, one would think he has made the quintessential expression of political association. Moreover, if the Court was right in treating the spending of money as indispensable fuel for political speech, it should not matter whether the money is in the form of an expenditure, or in the form of a contribution that makes an expenditure possible. In both settings, the money is the sine qua non of political speech. As Justice Marshall noted in his separate opinion in Buckley, the distinction between expenditures and contributions becomes even more artificial when spending by candidates from their personal fortunes is considered. Conversely, if, as the per curiam argued, campaign contributions can be regulated because they are only indirectly linked to political speech, so are many campaign expenditures. Costs for polling, salaries and travel are all non-speech expenditures--each certainly seems less connected to speech than the campaign check Voter Jones writes to help Candidate Smith pay for his advertisements.
Page 105 PREV PAGE TOP OF DOC Second, critics have questioned the Buckley Court's assumption that if Voter Jones made the relatively modest campaign contribution of $1,001, it would risk the appearance or reality of corrupting Candidate Smith; while if Jones made a $1 million on an independent expenditure in support of Smith, there would be no risk of corruption. In measuring the potential for corruption, critics ask, is there a real difference between contributing to a candidate, and spending on his behalf?
Buckley, of course, answers this question affirmatively. Independent expenditures, the Court noted, involve no communication between the independent spender and the campaign, thus there is no opportunity for corruption. Critics respond by pointing to communications not related to the expenditure. Congressman Smith has legislative business that will affect Voter Jones, who independently spends $1 million on Smith's behalf. The two individuals never expressly talk about this expenditure--but Smith surely knows Jones made it. After the election, Smith and Jones speak about the legislative matter affecting Jones. It's this communication--the conversation after the independent expenditure--that critics assert the Buckley Court ignored.
This issue is where the Buckley Court suffers most from having been without a factual record. Enormous independent expenditures weren't part of the fictional record the Court considered, mostly because they weren't yet part of America's political process. Several scholars, reflecting on the millions of dollars independently spent in the 1996 elections, have called for a factually based study of independent expenditures' potential for corruption.
Finally, critics have attacked Buckley's conclusion that spending can never be regulated in the name of equality. FECA's spending limits were set at an unreasonably low level. The Court was correct to note that the $1,000 ceiling on independent expenditures was a de facto ban on political participation, and FECA's $70,000 limit for House races was also unreasonably low. Thus, while the Buckley Court was correct in concluding that FECA's extremely low expenditure limits significantly restrained political speech, it is not clear this reasoning should apply to higher spending caps.
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At some point, critics argue, unlimited campaign spending reaches a point of diminishing returns. Instead of bringing new ideas to the political dialogue, run-away campaign expenditures simply distort the political process. The seemingly absolute language of Buckley, critics argue, should not apply to efforts to limit extremely high-end campaign spending in the name of equality.
4. Reporting and Disclosure
After analyzing contributions and expenditures, the Buckley Court turned to the closely related reporting and disclosure requirements. No one challenged the concept of public disclosure of large contributions to major party candidates. The requirement of record-keeping for $10 contributions was challenged, as was public disclosure of $100 contributions. Moreover, the plaintiffs argued that disclosure was unnecessary for contributions to minor parties, especially if the minor parties were controversial. Finally, it was argued that once the expenditure ceilings were invalidated, no basis existed for forced disclosure of independent expenditures.
The Buckley Court had little difficulty upholding the disclosure and reporting requirements. First, the Court observed that no reason existed to disclose publicly contributions under $100. Thus, the $10 contributions were sealed off from public view. Second, the Court rejected the argument that contributions to minor parties should be exempt, noting that minor parties could affect the outcome of elections, even if they did not win. In an effort to protect the supporters of unpopular political parties, however, the Court provided a blanket exemption from the disclosure rules for any controversial third party able to demonstrate a genuine risk of reprisal.
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Most importantly, the Court argued that prevention of corruption was not the only justification for disclosure and reporting. The source of a candidate's financial support, noted the Court, was important information about the candidate's political positions. The Court even found that the importance to voters of such information justified compelled disclosure of independent expenditures, even though earlier the Court had found that independent expenditures pose no threat of corruption.
5. Public Financing of the Presidential Election
Finally, the Buckley per curiam upheld the public financing aspects of FECA, despite the argument that they discriminated in favor of the two major parties. Minor parties had no basis for complaint since they were no worse off than before the subsidies. In both settings, the Court held, minor parties were forced to rely on contributions from the public.
Of course, this analysis overlooked two important things. First, by limiting the size of contributions, and by requiring public disclosure in the absence of formal proof of a likelihood of reprisal, the Court actually made it harder for minor parties to raise money from the public. The demise of expenditure limits further burdened minor parties, as it was certain that they would be badly outspent in most settings.
Second, FECA altered the relative positions of minor and major parties by guaranteeing major parties a great deal of money, and permitting supporters to spend unlimited amounts, while minor parties were required to continue raising money from the general public in small doses.
Page 108 PREV PAGE TOP OF DOC In defense of the Court's result, any public funding plan must distinguish between serious candidates and those that do not deserve taxpayer support. While Congress' plan could have been more generous to serious independents and to minor parties generally, FECA's supporters have argued that it is a fundamentally fair way of subsidizing serious presidential candidates.
By far the most important aspect of the Buckley Courts public funding discussion was a casual footnote observing that Congress could condition optional public funding on a candidate's promise to respect campaign expenditure ceilings. The large remaining question is whether public funding can come with other strings, such as restrictions on the size and source of campaign contributions. For in recent years, in other contexts, the Court has been increasingly skeptical of conditioning government assistance behavior.
D. The Unfortunate Practical Consequences of Buckley
By upholding FECA's contribution limits, while striking down its expenditure ceilings, the Buckley Court created a campaign financing system very different from the one Congress intended. Congress had established an integrated series of regulations, with the contribution and expenditure limits reinforcing each other, and the entire package was designed to minimize the impact of money on elections. But without expenditure ceilings, FECA was radically altered. Further, contribution limits and disclosure requirements made raising money harder, but the lack of spending caps maintained the system's voracious need for money. In simple economic terms, the Buckley Court limited supply (contributions), while leaving demand (expenditures) free to grow without limit. The predictable effect has been to increase the pressures on candidates to satisfy the ever-increasing demand for campaign cash. Inadvertently, the Buckley opinion took a congressional program designed to minimize the impact of wealth on campaigns and turned it into an engine for the glorification of money.
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Specifically, Buckley dramatically increased the political power of rich candidates, who now could pour limitless wealth into their own campaigns, while opponents were left to raise contributions in small donations from the general public, or from special interest PACs. Before FECA, a candidate's personal wealth could be offset by large donations from wealthy supporters of an opponent. FECA, without the Buckley decision, provided a system that had contribution limits (which removed the potential corrupting impact of large donations), and spending limits (which removed the potential corrupting effect of wealthy candidates). But the post-Buckley scheme, where contribution ceilings remain in place, but the limits on candidate expenditures have been removed, makes it impossible to offset the power of individual candidate wealth. In a real sense, Buckley gave us Ross Perot, Steve Forbes, and Michael Huffington.
Similarly, Buckley increased the relative political power of special interests. Before FECA, a candidate was able to raise money from a large array of sources, including wealthy individuals. FECA cut off these sources by imposing contribution caps. Under the mutation produced by Buckley, however, candidates are under pressure to feed the money machine created by the removal of all expenditure ceilings. But raising money in $1,000 increments from individuals is not efficient enough. Special interests, organized as PACs, help relieve this pressure by handing candidates $5,000 contributions. Additionally, albeit without coordination with the campaign, PACs can support candidates through independent expenditures.
Thus, inadvertently, the Court inverted FECA's intent. Instead of freeing the political process from the effects of wealth disparities and the reality and appearance of corruption, Buckley places more pressure on public officials to raise money (having made the process more difficult), and increases the amount of special interest money in the system. This inversion created precisely what the Buckley Court identified as a threat to the Democratic process: a system corrupt in appearance and reality. In short, the Buckley Court inadvertently gave the nation a campaign funding system that, in the words of the principal challenger in Buckley--James Buckley--no Congress would ever have enacted.
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The Buckley Court also upended Congress' intention with respect to the public funding of presidential elections. Instead of placing limits on the role of wealth in presidential elections, the public funding rules were subverted by the elimination of independent expenditure ceilings. Without these caps, candidates are permitted to accept public subsidies, while receiving the support of unlimited independent expenditures from wealthy supporters and organized special interests.
E. The Evolution of the Law Since Buckley
In the 20 years since it decided Buckley, the Supreme Court has rigorously maintained its distinction between contributions and expenditures. Restrictions on campaign expenditures have been universally invalidated, with the surprising exception, in 1990, of a Michigan ban on corporate expenditures in state and local elections, which the Court narrowly upheld. Restrictions on contributions have been sustained, unless the ceiling was unreasonably low.
1. The Expenditure Cases
In First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978), the Court invalidated a ban on independent corporate expenditures in connection with a referendum on taxes. Following the reasoning in Buckley, the Bellotti Court held that the corporate expenditure ban directly impacted on the flow of political information of potential interest to the electorate. In FEC v. National Conservative Political Action Committee, 470 U.S. 480 (1985), the Court invalidated a federal ceiling on independent expenditures by PACs in support of federal candidates. It is the NCPAC decision that dealt the serious blow to public funding of presidential elections, since it destroyed the government's ability to place a real cap on candidate spending. After NCPAC, presidential candidates were free to accept the federal subsidy, knowing that they would also benefit from friendly PACs which would launch expensive independent expenditures to help their candidacies. The next year, in FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986), the Court expanded NCPAC, invalidating a ceiling on independent expenditures on behalf of federal candidates by non-profit corporations organized to advance a political position.
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In Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), however, the Court surprised observers by narrowly upholding a Michigan ban on independent corporate expenditures in connection with state and local elections. Surprisingly, Justices Brennan and Marshall, both critical players in Buckley's invalidation of FECA, provided the crucial votes to sustain the Michigan ban. The Court reasoned that corporations accumulate great wealth in transactions having nothing to do with politics, and then are in a position to distort electoral outcomes by pouring wealth into a campaign with no guarantee that the wealth reflects the general views of the public.
Critics of Austin argued that the Court had ignored its precedents, and that if the corporate position truly lacked support in the community, the voters would reject it. Supporters of Austin saw it as a ray of hope that the Court was open to reconsidering a flat ban on all spending caps. Under existing precedent, therefore, corporations have a First Amendment right to spend money on referenda (Belotti), but may be forbidden from spending money in support of candidates (Austin). Supporters argue there's logic in this distinction--referenda can't be corrupted, unlike politicians, so they deserve less regulation.
Whether such a fine distinction can survive is debatable. Similarly, disputes have arisen over whether the Court's rationale in Austin can be limited to corporate expenditures. After all, virtually all concentrations of wealth come from economic transactions having nothing to do with politics. After Austin, can all ''wealth'' expenditures be regulated to prevent distortion of the political process?
Page 112 PREV PAGE TOP OF DOC Colorado Republican Federal Campaign Committee v. Federal Election Commission, 116 S.Ct. 2309 (1996), is the most recent expenditure decision. In this case, the Court reasoned that a political party could engage in independent expenditures, as long as this activity was not coordinated with the candidate benefiting from the spending. Critics were astounded by this decision, arguing that the law always treated parties and campaigns as if they were inseparable. That is, it had always been thought that the spending of money by a political party would count against the amount of money a party could give its nominee. Critics fear that allowing parties to use independent expenditures will further escalate campaign spending, as candidates will be able to benefit from the limitless financial support, albeit ''uncoordinated,'' of political parties.
2. The Contribution Cases
In California Medical Ass'n v. FEC, 453 U.S. 182 (1981), the Court upheld the $5,000 ceiling on contributions to PACs. The challenger, an unincorporated association, argued that since it had a First Amendment right to spend an unlimited amount in support of a candidate, it should have a similar right to contribute unlimited amounts to PACs, as PACs could not give more than $5,000 to any given candidate. The funds were not being given directly to a candidate, the challenger argued, so a quid pro quo arrangement was not possible.
The Court rejected this argument, holding that the ceiling was necessary to prevent individuals from avoiding contribution limits by funneling large contributions through associations to numerous PACs for re-transmission to a candidate.
In FEC v. National Light to Work Committee, 459 U.S. 197 (1982), the Court upheld a ban on solicitation of the general public by corporate PACs. The Court reasoned that corporate PACs were not designed to be organs of general political influence, but rather to provide a convenient method for persons closely associated with the corporation to coordinate their individual political contributions.
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Ironically, National Right to Work forces PACs to operate as narrow engines for the self-interest of corporate executives, rather than general vehicles for the expression of political ideals. On the other hand, since corporate executives generally determine which federal candidates receive PAC funding, the Court was obviously concerned about providing corporate executives with too much political influence by opening the PAC to the general public.
In Citizens Against Rent Control v. Berkeley, 454 U.S. 290 (1981), however, the Court invalidated a $250 ceiling on contributions to committees formed to support and oppose a ballot initiative. The Court stressed the extremely low ceiling, and the lack of a serious risk of quid pro quo corruption.
3. The Soft Money Amendments
Just as Buckley reviewed Congress' 1974 Amendments to FECA--the first generation of FECA was passed in 1971--our election laws have gone through several subsequent add-one. While most of these amendments have had scant policy impact, a tiny item in Congress' 1979 FECA Amendments drastically altered money's role in politics.
According to 2 U.S.C. 431 (8)(B)(viii)-(xii), funds which state and local parties use for ''party building'' activities can be raised without regard to FECA's contribution limits.
This exception for state and local party money, called the ''soft money'' loophole, allowed corporations, labor unions' and wealthy donors--each supposedly barred from contributing large sums to candidates for federal office--to make unlimited campaign contributions.
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Not surprisingly, because soft money could only pay for ''party building'' activities, political professionals eventually began to push the envelope on what constituted party buildings At first political parties only used this loophole for voter registration and get-out-the-vote drives. In 1988, however, the definition of party building. went through a vast expansion, as ''issue advertisements''--political commercials that promote a party's message (often featuring the party's nominee) without expressly advocating for a specific candidate--were paid for with soft money funds.
In 1996, corporations, labor unions, and wealthy individuals used soft money contributions to pump over $250 million into the political process. Critics assert that soft money illustrates the phenomenon of an exception being allowed to swallow its rule.
F. Some Lessons From the Buckley Experience
Buckley is hardly a model for the formulation of public policy. The per curiam opinion resulted in the distortion of Congress' intent, imposed a regime on the nation that no Congress would ever have enacted, and most importantly, has created a campaign finance system abhorred by virtually all political participants. Its many failings provide a cautionary road-map to future efforts of campaign finance.
First, do not look to courts as the primary forum to solve campaign financing. The limited fact-finding capability of courts, coupled with the inherent limitations on judicial power, make courts the wrong place to find a viable solution for campaign funding issues. If courts are to participate in the process, Buckley warns, judicial participation should be confined to the usual narrow ''case or controversy'' approach, which requires challengers to develop a factual record challenging a specific application of the law as it is applied to them, and counsels a court to decide only the actual case before it, unlike the Court's breakneck, record-less review of FECA.
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Second, facts matter. At no time in the process leading up to Buckley did any institution conduct a searching inquiry into how the proposed law would actually affect the campaign process. There were arguments and opinions abound about the factual reality of the campaign process, and FECA's impact on future campaigns. But no one--not Congress, not the parties, not the courts--conducted an in-depth study into the role of money in federal elections. This lack of a serious factual underpinning made it easier for the Court to brush aside Congress' judgments.
The success of any future effort to reform-the campaign process is likely to turn on the persuasiveness of the factual record (not the factual assertions) developed to justify it.
Third, over-regulation is fatal. The 1974 Act's effort to limit expenditures was doomed by its unreasonably low ceilings. Independent expenditures were capped at $1,000, House campaigns at $70,000. The Court was correct to decide that these limits bit deeply into the quality and quantity of political discussion. In a real sense, FECA's unreasonably low expenditure ceilings precipitated the Buckley Court's controversial link between speech and money. When the money ceiling is set so low that it constitutes a de facto prohibition on reasonable forms of political activity, it is natural for a reviewing court to equate expenditure ceilings with censorship.
Apart from strategic considerations, moreover, overregulating the political process is a mistake. Unduly low expenditure ceilings dampen legitimate political discussion. Unduly low contribution ceilings harm third parties and independents, and unfairly enhance the relative power of rich candidates. Unduly burdensome reporting and disclosure requirements discourage perfectly legitimate political contributions, especially to controversial candidates.
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Fourth, regulations may have unintended effects. Limiting spending may help incumbents. Limiting contributions may help rich candidates. Disclosure rules may hamstring controversial parties. Public financing may enshrine the two major parties. Any serious effort at reform must work through potential unintended effects, and should provide a mechanism for periodic reconsideration as experience reveals its practical impact.
Fifth, a reform effort need not be constitutional in every potential application to survive initial facial scrutiny. During the early years of any campaign reform program, the plan may operate unfairly in particular settings, justifying judicial intervention to protect First Amendment rights. But merely because a particular aspect of a law may be invalid, the entire legislative plan need not be struck down. Moreover, in the early years of any plan, there will undoubtedly be conflicting assertions about its practical effects. The fate of the entire program should not turn on such conflicting predictions. Some mechanism allowing the plan to be tested against its predicted effects should be included.
G. Reform Initiatives Consistent With Buckley
The Buckley per curiam leaves open at least five important opportunities for campaign finance reform. First, and most importantly, the Buckley opinion explicitly permits expenditure ceilings to be introduced as the quid pro quo for public funding. Public funding, according to the Buckley Court, is appropriate, both to remove the risk of corruption created by private contributions, and to equalize access to the political process. As the price of a subsidy, the government can demand a pledge to limit campaign expenditures.
Page 117 PREV PAGE TOP OF DOC Several versions of this pledge are possible. Under one version, exemplified by the presidential funding plan, 100% of the campaign is funded, in return for a promise to cap spending at the subsidized ceiling. Under another version, a portion of the campaign is subsidized, and candidates are free to raise and spend a specified additional amount. A variant, exemplified by the presidential primary funding plan, or the recently enacted Kentucky and Maine plans, provides a subsidy in the form of matching funds keyed to private contributions. Under any of these versions, the effort to cap spending is complicated--and perhaps doomed--by the First Amendment right of supporters to make unlimited independent expenditures in support of a candidate. Whether public subsidies can be keyed to an effort to limit independent expenditures, or the geographical source of campaign contributions remain unanswered questions.
Finally, public subsidies need not be in the form of cash. For example, free or subsidized access to television has been urged as a means of lowering the demand for money. One form of subsidized access to television relies on vouchers. Another compels the networks to provide free, or under-market, access to candidates. The constitutionality of such compelled access remains an open question, as the networks will undoubtedly argue that the government's acquisition of network air time is an unconstitutional ''taking.''
Second, the meaning of the term corruption in the Buckley opinion can be expanded. The Court used the term to describe a quid pro quo arrangement under which a candidate's action was influenced by the receipt of money. But the corrosive impact of money is not confined to bribery, or some lesser form of financially induced behavior. The political process can be corrupted when a candidate loses (or appears to lose) the ability to think independently, and must constantly appeal for money from individuals and PACs. When voters watch this they increasingly believe that their interests can only be advanced by the payment of money. The deeply corrosive impact of such a cynical view of politics should qualify as a corruption of democracy. Nothing in Buckley forecloses a broad reading of the concept.
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Third, the Buckley Court's refusal to uphold expenditure limits may well have been precipitated by the unreasonably low limits set in the 1974 statute. It is unclear whether the seemingly absolute refusal in Buckley to permit expenditure limits would apply if the spending caps were far greater than those permitted by FECA. At some point, the argument goes, unlimited expenditures stop acting as the source of new ideas, and become a form of repetitive propaganda, making it impossible for poorer candidates to get a fair hearing.
Fourth, existing loopholes can be plugged. The most glaring loophole, the soft money exception, involves no constitutional issues and can be closed by Congress tomorrow.
Finally, Buckley considered only two potential compelling interests--avoiding corruption, and equalizing political participation. Several other possible compelling interests exist, including, to name a few: Improving the quality of campaign discourse, preserving confidence in the democratic process, increasing voter turnout, and equalizing access to the ballot.
H. The Possibility of Modifying the Buckley Ground Rules
Buckley can be modified in two ways. First, the factual assumptions of the opinion can be shown to be inaccurate. For example, the assumption that unlimited personal campaign expenditures and independent expenditures would not create actual corruption, or its appearance, is ripe for attack 20 years after Buckley.
Second, the controversial distinction between contributions and expenditures can be attacked as arbitrary, especially in areas like a candidate's personal spending.
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Attacking this distinction is risky, as two results are possible. Imagine Buckley's contribution/expenditure distinction as a rotten tree. The Court could push the tree upon reformers by eviscerating the distinction between contributions and expenditures and then deciding that neither may be constitutionally regulated. Alternatively, the Court could push Buckley's logic the other way by eliminating this same distinction and allowing the regulation of contributions and expenditures.
Colorado Republican can be read for clues as to where each Justice stands on challenges to this distinction. There appear to be three camps. Justice Thomas--who observers think will be joined by Chief Justice Rehnquist, and Justices Scalia and Kennedy--wants the tree to fall upon reformers. That is, in Colorado Republican Justice Thomas argued that it's time to erase the contribution/expenditure distinction and cease regulating campaign contributions. Justices Stevens and Ginsberg agree that Buckley rests upon a faulty fiction--but they welcome regulating both sides of the campaign ledger.
Justices O'Connor, Souter and Breyer are undecided. In Colorado Republican this camp argued that the case's facts did not make it necessary to decide the merits of Buckley's contribution/expenditure distinction. In response to Justice Thomas' call for the Court to revisit this distinction, Justice Breyer wrote that the Court should proceed cautiously, noting that neither party briefed this issue.
Observers differ on which way, if any, these undecideds will drift. This environment has split reformers--some worry challenging Buckley is not worth its risks, and other think a gamble is justified, since, they argue, even a system with unregulated campaign contributions would be better than the Buckley status quo.
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As originally written, the Buckley per curiam was probably intended to steer the nation to public financing of elections as the only constitutional way to control expenditures and enhance equality. And Justice Brennan's perception that weak voices should be protected by making them stronger, rather than by censoring strong voices, remains wise counsel. But the movement for public funding has stalled, at least at the federal level, forcing reformers to consider whether other avenues for reform survive Buckley.
Twenty years of experience with the campaign finance system that Buckley created reveals serious deficiencies in the per curiam opinion's factual assumptions, legal conclusions, and practical consequences. It is past time to revisit Buckley.
INSERT OFFSET RING FOLIOS 47 TO 50 HERE
Mr. CANADY. Thank you, Professor Neuborne.
Mr. SCOTT. Thank you, Mr. Chairman, and I want to thank the panel for their testimony. I think we had a lot of good ideas.
One of the issues that we're trying to address is the coordinated and uncoordinated expenditures. Is there any desire of any of the panelists to limit the ability of groups to spend money that might influence a campaign in an uncoordinated fashion, uncoordinated from the--not coordinated with a campaign?
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Mr. NEUBORNE. Not if it is truly uncoordinated. I mean----
Mr. SCOTT. That's another--that's----
Mr. NEUBORNE. We have to deal with a proof problem, but if it truly uncoordinated and truly intended to discuss issues and not designed to influence the outcome of a specific election, I don't know of anybody who wants to stop that.
Mr. SCOTT. Designed to influence an election, but not coordinated with a campaign?
Mr. NEUBORNE. That's right.
Mr. SCOTT. OK. Mr. Glasser.
Mr. GLASSER. I have a couple of concerns. I think it is fair to say that nobody on this panel would want to curb uncoordinated independent expenditures, but I think it also must be pointed out that, unless that is defined very, very carefully, that is precisely what the Federal Election Commission has tried to do relentlessly. They came after the ACLU because in 1984 we were writing fundraising letters to our own members criticizing President Reagan, and it happened to be an election year. Now we've never supported or opposed a candidate for public office for an election in our lives, and never will, but it also would be disingenuous to say----
Mr. SCOTT. Did you say a Republican or public?
Page 122 PREV PAGE TOP OF DOC Mr. GLASSER. No, public.
Mr. SCOTT. Oh, OK. [Laughter.]
Mr. GLASSER. It's a--but, you know, it would be disingenuous to think that if you sent out a million letters attacking a particular official, even if you subsequently sent out letters attacking his opponent for something else that they did, that it's not going to have an effect. So the issue cannot be that it doesn't have an effect; the issue has to be that it is not coordinated.
And then the concern that I have, which is not resolved under current law and would need to be in any legislation that would be written, is that, What kind of political surveillance would you need to distinguish between what was coordinated and what was not, given the fact that the Federal Election Commission has come after the ACLU, the National Organization for Women, the Maine Right-to-Life group, the Massachusetts Citizens for Life, various tax reform groups, and a whole range of people that are not ostensibly the targets of the problem we're talking about? But those cases all turned on a court saying, we do not believe that the facts demonstrate that these organizations' activities were coordinated, and if the Federal Election Commission, or some other commission, has the authority to subpoena records and to do the kinds of political investigation that would be required, problems could arise, and those problems need to be addressed at the front end, if that's a route down which you want to go.
Mr. SCOTT. Before somebody else comments, let me throw in another little twist to this, as you comment. That is, the press; you can have some owners of newspapers, true newspapers as opposed to kind of startup newspapers that just start up every year around campaign time, that could be coordinated. Is there any effort to diminish the newspaper's ability to coordinate its press coverage with a local campaign?
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Mr. BOPP. Well, the Federal Election Commission, with regards to that point--and then I have a point on the other question--the Federal Election Commission has attempted to narrowly define what is considered to be a newspaper in order to benefit from the newspaper exemption under the Federal Election Campaign Act. So the very same entity that has been so vigorous, as Ira Glasser has pointed out, attacking issue-oriented----
Mr. CANADY. Without objection, the gentleman will have 2 additional minutes.
Mr. BOPP [continuing]. So vigorous in attacking the free speech rights of issue-oriented groups has also been attempting to impinge on the press by narrowly defining who the press is that would benefit from the freedom of the press. So these questions that were asked before are very pertinent to this area.
Now, regarding coordinated expenditures, there's two points. One, coordination under the Colorado Republican Party case is not some presumption of coordination because of your relationship or you used a common vendor or you have contact with the candidate. Under the Courts decision, it is that the specific expenditure in question was actually, in fact, coordinated. So it's a very limited concept.
The second is the nature of the expenditure. While no court has yet addressed this point, I think that the same rationale in Buckley protecting issue advocacy would protect issue advocacy even if coordinated. So that you would necessarily have to limit any restrictions on coordinated expenditures to only those expenditures for communications that expressly advocate the election or defeat of a candidate. I mean, in lobbying, organizations do contact legislators to talk about their position on the issue. If you go out and publicize that, is that coordinated? And what does that do to your lobbying activity? I think that those are areas that the Court just simply wouldn't allow you into.
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Mr. CUTLER. Let me just add that you can dance all over the head of this pin of the difficulties of regulating coordinated expenditures, but the Supreme Court has left that option open to you. It has closed the option of banning truly independent expenditures, but the mere fact that you cannot touch truly independent expenditures doesn't really affect your ability to touch coordinated expenditures, and you shouldn't refrain from tackling that problem just because it's a difficult problem.
Mr. NEUBORNE. The key question, I think, is, as Mr. Cutler points out, is really one of proof. Is it a coordinated expenditure or is it an independent expenditure? That's not any different than difficult questions of proof that come up every time we pass a regulatory statute.
And these are not some sort of magic issues that are impossible to determine. If you hire the same political consultant, the chances are it's a coordinated expenditure.
Mr. BOPP. See, that's presumed.
Mr. NEUBORNE. But you----
Mr. BOPP. That's not complying with the Colorado Republican Party case. That's presumed coordination.
Mr. CANADY. Without objection, the gentleman will have 1 additional minute.
Page 125 PREV PAGE TOP OF DOC Mr. SCOTT. I won't belabor the point, but I think we're at a point now where you're in a magic word situation, where you can run an ad which trashes a candidate unmercifully, and then rather than say vote against him, you say, ''Call him and tell him he did the wrong thing.'' It has the same effect.
Mr. BOPP. That's right, and the Supreme Court expressly said that, as long as you avoid explicit words of advocacy--in other words, you're not talking about magic words--any words that would say ''vote for,'' ''defeat,'' et cetera--as long as you avoid that, they said expressly you are free to spend as much as you want to promote the candidate and his ideas. And the whole idea was to protect lobbying, education, and the discussion of public issues.
Mr. GLASSER. May I make one additional comment? I think that the point that you raised, Representative Scott, in your question first cannot be glossed over here. Apart from the question of proof, which has certain kinds of investigatory problems I pointed out, the issue----
Mr. CANADY. Without objection, the gentleman will have 1 additional minute.
Mr. GLASSER [continuing]. The issue of whether or not Rupert Murdoch, to use the example I used earlier, that Rupert Murdoch can have news coverage and editorials every day for 3 months on behalf of a candidate with whom he coordinates, because that's what he wants to use his newspaper for, that he has the right to do that which cannot be constitutionally reached, but if a wealthy citizen wants to do the same thing with billboards and leaflets and posters in behalf of Mr. Giuliani's opponent, he can be reached if he coordinates--that I think is an unavoidable problem of equity and fairness in the area of speech. And unless you are prepared to suggest that you can reach the newspaper, I don't see how you can reach the billboard.
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Mr. SCOTT. Thank you, Mr. Chairman.
Mr. CANADY. Mr. Goodlatte.
Mr. GOODLATTE. Thank you, Mr. Chairman.
It's been suggested by some that almost anything you do in this area--and I agree things need to be done; I agree with Professor Neuborne about that--but almost anything you do is going to game this system to somebody's advantage and somebody else's disadvantage. And there are those who suggest that the only thing we ought to do is to tighten up and have complete and full disclosure of anybody spending any money about anything that deals with advocating the election or defeat of candidates.
Mr. Glasser, I agree with your perspective that the news media has tremendous advantages that cannot be regulated here. What does the candidate do, leave aside the wealthy individual, the candidate who's restricted in how much funds they can raise and spend, who in response to that or in response to a labor union or a political party, or whatever, wants to go out and respond to that--under our current laws, cannot raise the kind of dollars that are necessary to match it, and can't even go out and attempt to recruit and organize and coordinate somebody to do the same thing for them because that violates these restrictions regarding coordinated activities. All they can do is hope that a white knight is going to come charging over the hill on the other side that has equally unlimited resources to take them out.
Mr. Bopp, I address that to you, too, because you made a very valid point, that the people who would be hurt by a severe restriction or elimination of independent expenditures would be little folks who ban together, but little folks who ban together can become very, very powerful big folks by doing so. And the other side, whether that's the political candidate or the other side of a point of view, is left in a very difficult situation to resolve.
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Mr. BOPP. Well, we should think then not about limiting speech; we should think about promoting speech. We should think about reforms that encourage participation in the political process.
Mr. GOODLATTE. Would you then advocate what I talked about, unlimited contributions to campaigns and to take off the limits, or would you----
Mr. BOPP. That is the direction I believe you need to go. In other words----
Mr. GOODLATTE. Do you favor full disclosure or are we violating somebody's rights by disclosing who is getting----
Mr. BOPP. As long as disclosure does not encompass issue advocacy, as long as we're talking about expenditures that expressly advocate the election or defeat of a candidate, we have full disclosure and we should. But we should be thinking about reforms. The natural impulse, if somebody criticizes you, let's shut them up. Now this is happening on both sides of the aisle right now. Republicans don't like the labor unions; let's shut them up. People on this side don't like the Christian Coalition or National Right to Life; well, let's shut them up. Why don't we think about redressing the imbalance not by shutting people up, but by encouraging people to participate? The $1,000 contribution limit in 1974 is now $2,500, by inflation. You spend all your time trying to raise money. Well, if you raised the contribution limit----
Mr. GOODLATTE. You mean it's $400 by inflation; right?
Page 128 PREV PAGE TOP OF DOC Mr. BOPP. OK.
Mr. GOODLATTE. If it was $1,000 then, it's worth a lot less now.
Mr. BOPP. OK. And then another thing, if you think there's too many big contributors, why don't you encourage small contributors? Up to 1990, we had a tax credit----
Mr. GOODLATTE. I do. [Laughter.]
Mr. BOPP [continuing]. A tax--you're right, but it's expensive. We had a tax credit up until 1990, it was for 50 percent of your first $100 in political contributions. Now that would dramatically--dramatically--increase the willingness of small contributors to participate. So let's think about things like that to balance the system rather than shutting people up.
Mr. GOODLATTE. Mr. Cutler has been very patient.
Mr. CUTLER. We've had full disclosure now for something 24----
Mr. GOODLATTE. Not for independent expenditures and----
Mr. CUTLER. Well, we've had it on almost everything else, but certainly on expenditures on behalf of candidates, of contributions to candidates. We've had full disclosure. Over the 24 years, with increases in the amount of money that goes into campaigning, public cynicism about elected public officials, including every one of you sitting up there today, is mounting. You have to do more than full disclosure to eliminate that cynicism.
Page 129 PREV PAGE TOP OF DOC Mr. NEUBORNE. And if I just might for a second, the cynicism would be justified under a complete lifting of the contribution limits because all that will do is people would see large numbers of wealthy people pouring money into system. It would be more accurate, I think, to change it from campaign contributions under those circumstances to campaign investments, and maybe do that, and----
Mr. GOODLATTE. Let me interrupt for a second and say I'm not advocating that, but let me say that I have more faith in the ability of folks to----
Mr. CANADY. Without objection, the gentleman will have 2 additional minutes.
Mr. GOODLATTE. Thank you, Mr. Chairman.
If you have full disclosure and much more prompt disclosure than we have today, with electronic filing, it would be greatly enhanced over what it is today, and could work much more effectively than it does. You would have the ability of people to judge for themselves. What you've got with other things--I want to come to your point, Mr. Neuborne, because your proposed ultimate solution of public financing, and your interim solution of partial public financing, troubles me greatly. And I agree with you that it has a long way to go politically. The average voter out there views that as food stamps for politicians.
Mr. NEUBORNE. Except it was adopted in Maine by an overwhelming vote in a large referendum.
Mr. GOODLATTE. Well, let me discuss some of the problems that come from that. First of all, we've had public financing of presidential campaigns in this country for years, and as a result of a Supreme Court decision--and you can say action or inaction on the part of the Congress, because I agree we can do some things we haven't done--there's been an explosion of outside expenditures that has made public expenditures in presidential campaigns meaningless. We have that right now, and it is not working.
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Secondly, if you go to a system where you're going to give television--I notice you're a professor at NYU. How many congressional districts are there in the New York viewing area? I'd say at least 35 in New York and Connecticut and New Jersey. Who are you going to give this television time to? Are you going to give it to just Republicans and Democrats or are you going to give it to the libertarians and conservatives and right-to-life, and so on, that exist now? And then are you going to give it to the 200 or 300 other individuals that are going to pop up, because all of a sudden now they can get a half an hour or an hour, or whatever, of free television time during a campaign? And then, if you do all that, what are they going to watch in New York City if every single television station has got to provide that service to every single one of those candidates?
Mr. NEUBORNE. We'll watch the Knicks. [Laughter.]
Mr. GLASSER. I was going to say, it will----
Mr. GOODLATTE. Yes, and what have we accomplished in terms of educating the voters about----
Mr. GLASSER. It will solve the problem of violence on television. [Laughter.]
Let me suggest that that is what we should be talking about, the questions you raise.
Mr. NEUBORNE. Let me respond. You raised an interesting and a very important issue. I should note that Mr. Bopp----
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Mr. CANADY. Without objection, the gentleman will have 1 additional minute.
Mr. NEUBORNE. Thank you. Thank you, sir.
Mr. Bopp is also talking about subsidies as well. He's talking about tax credits. He's talking--whenever you talk about helping smaller people participate in the system, you're talking about subsidies, and the subsidy approach, of course, has the very difficult question of how you allocate it, because if you just allocate it to the two major parties, it becomes a subsidy for a cartel, and that would be dreadful. So, of course, you've got to let third parties and genuine independent voices participate in the subsidy.
We've got a very good formula that's worked quite well in the Presidential financing, that has done quite well in allocating the subsidy in the Presidential financing to third parties in quite an excellent way. And the reason the Presidential campaign subsidy system has collapsed is because of soft money. If you close the soft money loophole and close down that----
Mr. GOODLATTE. Right, but you can't stop Ross Perot----
Mr. NEUBORNE. No.
Mr. GOODLATTE [continuing]. Or plenty of other folks who like him from doing exactly the same thing you're talking about with their soft money.
Mr. BOPP. It's collapsed because government is so big, is so intrusive, is regulating the heck out of everybody, that unless they're involved to protect their interest--I mean as soon as the Republican Congress started seriously talking about tort reform, there were hundreds of thousands of lawyers----
Page 132 PREV PAGE TOP OF DOC Mr. CANADY. Without objection, the gentleman will have 1 additional minute.
Mr. BOPP [continuing]. There were hundreds of thousands of lawyers who were not paying any attention to who their Congressman was or who their President was that suddenly became really interested. I mean, look at the list of the people that have gone to the Lincoln bedroom. These are people that have interests that are being affected by this Congress.
Yes, I think it is chasing a rainbow to think that you are going to stop people from trying to protect their interests by----
Mr. GOODLATTE. If you were to successfully cut off all the money, there would be other advantages, wouldn't there? People know people. People help people in different ways, and it isn't just money----
Mr. BOPP. The political organizers----
Mr. GOODLATTE [continuing]. That people are interested in in attempting to influence public policy. There are lots of other ways to do it. And if you try to game it that way, you're going to wind up benefiting, advantaging other people in other ways, including all the incumbents here.
Mr. GLASSER. But look at what you've done. Take one narrow issue here and look at the sum total of the impact of what Congress has done over the years. You allowed the franking privilege to incumbents, obviously. So I get a lot of mail from Al D'Amato and Jerry----
Page 133 PREV PAGE TOP OF DOC Mr. GOODLATTE. We've cut that back substantially.
Mr. GLASSER. No, I know you've cut it back, but, nonetheless, I get a lot of mail from them that does not count against whatever limits you proposed.
Mr. GOODLATTE. I agree.
Mr. GLASSER. When somebody wants to challenge them and they want to do direct mail----
Mr. GOODLATTE. Mr. Chairman, one last question, if I might, of Mr. Glasser? I hate to cut you off, but he's been very----
Mr. CANADY. One additional minute.
Mr. GOODLATTE. The question is, Do you agree with Mr. Bopp's point of view on this, that the focus on trying to limit funding is a difficult one to do fairly? I mean----
Mr. GLASSER. Absolutely. I thought that's what I said. I think it's an impossible one to do. I think you have to really have a serious discussion and debate about the sorts of public financing proposals that are alone, I think, capable of remedying the problem that everybody is talking about with a much lower risk of tripping up on constitutional landmines.
I don't mean to suggest that those are simple issues, but I do think that there has never been a serious discussion about that of the kind that there has been about limits, and I think that the discussion on limits is fruitless and ought to stop.
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Mr. GOODLATTE. Mr. Chairman, I just want to comment that I think this panel has been absolutely outstanding, every one of them, in helping to point out to the American people, who I hope are listening in large, large numbers over our free television system, finding out the difficulties in doing this in a fair way, for either political party or for anybody who wants to participate in the process.
Thank you, Mr. Chairman.
Mr. CANADY. Thank you, Mr. Goodlatte.
Mr. CONYERS. Thank you, Mr. Chairman. I yield to Mel Watt.
Mr. WATT. I thank the gentleman from Michigan for yielding, and I asked him to yield so that I could, first, apologize for not being here for the presentations, and, second, apologize for having to leave again, because I have another subcommittee that I'm involved with immigration issues, and while those issues are not nearly as interesting as what you're talking about here, I'd be remiss to say that they are not important. And since I'm the ranking member over there, they told me I'd better go. [Laughter.]
I want to second the motion that Mr. Goodlatte ended with. It's not often that I have an opportunity to agree with him on something. [Laughter.]
Page 135 PREV PAGE TOP OF DOC So I'm sure he's listening intently.
This is exactly the kind of debate that I came to Congress hoping to find over and over and over again, only to find that quite often it got stifled with 5-minute rules or 1-minute rules or people that really didn't know much more about the issue than anybody else. You all have done a wonderful job of talking about how difficult an issue this is. The unfortunate thing is that when you hear many citizens talk about it, it's in some kind of terms that make it sound so easy and so simplistic, and we can accomplish this just by doing this or just by doing that. This is an inordinately difficult issue, and I hope you all will keep wrestling with it.
I don't even want to express any opinions on it, as I didn't in the first panel we had, but I hope that we will have the full-blown discussion of all the whole range of problems and challenges that we face in this area, not only on this issue, but on a number of very difficult issues, before we just go rushing in and amending the Constitution or doing this or doing that, just because somebody thought it was politically popular to do it.
And I thank the gentleman for yielding. I know I took more than a minute of your time, and I hope you'll forgive me for that.
Mr. CONYERS. I wasn't surprised that that might happen. [Laughter.]
First of all, I want to--I think I can get it.
Mr. CANADY. Well, what we can do is just have Mr. Watt recognized--I understood that you were deferring to him to be recognized--and then we can come back to you in the ordinary course.
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Mr. WATT. I might start speaking again. [Laughter.]
Mr. CANADY. Well, that's--so you'll get your full 5 minutes. All right.
Mr. HUTCHINSON. Thank you, Mr. Chairman, and panelists. As a former State party chairman in Arkansas, I'm vitally interested in this issue, and I compliment the Chair for setting up this hearing. As a freshman Member of Congress, I believe that campaign finance reform is important. I might be in the minority on my side of the aisle, but we formed a freshman task force to work together with Democrats and Republicans to see what could be done.
I wanted to ask a couple of questions of Mr. Neuborne.
Mr. NEUBORNE. Yes, sir.
Mr. HUTCHINSON. First of all, I believe that soft money is a problem, and I would like to see it regulated or prohibited. You indicated that we could do that constitutionally under the Colorado decision. I read the Colorado decision, and I'm not sure that's right. I mean, it looks to me like it leaves it open, but there could still be some constitutional questions concerning that: just whether you can prohibit it, and, secondly, whether we can regulate it.
The second part of the question--I'm going to go ahead and ask it here--is I believe in the incremental approach to campaign financing. I don't think we can get it all done during this session of Congress, and I think we need to look at what we can agree upon. Is there an area of campaign finance that both Democrats and Republicans can agree upon that might be acceptable to both sides? It might not be the best thing, but it's a start. Can you address that?
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Mr. NEUBORNE. Two terrific questions. The first question on Colorado, people forget that the Colorado case dealt with an expenditure limitation. It was an attempt to limit the expenditure by the parties, and it was the expenditure of money raised, hard money. It was raised--it was not a soft money case. It dealt only with the independent expenditure by the Colorado Republican Party of money raised in accordance with hard money rules and before their candidate was even chosen. That's----
Mr. HUTCHINSON. The Supreme Court has not addressed regulating soft money yet?
Mr. NEUBORNE. Well, it has in the sense that it has consistently upheld the fact that you can restrict the source of contributions. You can prevent corporations from contributing money to candidates. And my simple point is, if you can prevent them from contributing to candidates, surely you could prevent them from contributing to the parties.
Mr. HUTCHINSON. And bypassing the present system?
Mr. NEUBORNE. That's right. And so it seems to me that that is a door that Congress opened back in 1979, and with real good reason, as a good experiment. It's an experiment that has failed, and you should close that door. It does not create constitutional questions, and it's the very first thing you should do.
The second thing, you said, Is there something that can be done that----
Mr. HUTCHINSON. What can we agree upon?
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Mr. NEUBORNE [continuing]. We all agree upon? I think it's something maybe that this whole panel could agree upon. Fifty-three cents of every campaign dollar is spent on television. That's an average, of course. In some races it's higher; in some races it's lower. But the single most expensive aspect of the modern campaign is television. If you were to try to provide either free or subsidized access to television--I'm not saying who should pay for it. It may be the television stations shouldn't have to pay for it all. Maybe it ought to be some sort of a public situation, but if you could take the heat off of the need of candidates to raise enormous amounts of money to buy television time, and make the access to television cheaper, it would turn the heat down tremendously.
If you did those two things in this session--if you closed the soft money loophole and if you found a way to make it cheaper for candidates to get on television--I think you would solve 75 percent of the problem, just those two simple things, neither of which raise serious constitutional questions.
Mr. HUTCHINSON. Thank you.
Let me address another question to you, Mr. Bopp. I'm concerned, and I believe in issue advocacy, and I'm grateful for the National Right to Life for what they have done in that area. I think it's critically important. I would not want to do anything that would foreclose that or limit that. But it appears to me that disclosure is not a limitation. In other words, if there is issue advocacy within, say, 30 days or 45 days of the election, and you simply say that that has to be disclosed, similar to independent expenditure law, I don't see how that is a chilling effect on your free speech. And could you elaborate on your----
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Mr. CANADY. Without objection, the gentleman will have 2 additional minutes.
Mr. HUTCHINSON. Thank you, Mr. Chairman.
Mr. BOPP. Thank you, Mr. Chairman, and thank you for that question. It's an important one.
In Buckley v. Valeo, there was a disclosure provision that it was urged by the proponents of campaign finance reform would apply to issue advocacy, and the Supreme Court held--and that was a provision that said that, if you make an expenditure relative to a candidate for Federal office, then you had to put a disclaimer on it and you had to disclose it. The U.S. Supreme Court said that that would unconstitutionally impinge upon issue advocacy. Simply put, when is the National Right to Life Committee going to know that what they are saying is something that has to be reported because it influences an election? You're right back into the conundrum of trying to breach the bright line and say this is the kind of speech that you have to report and disclaim or otherwise you commit a crime.
Secondly, do we want to now classify lobbying, educational activity, to be political? And what is the effect of that?
Mr. HUTCHINSON. I like what you do, but you clearly influence elections.
Mr. BOPP. There's no question about that.
Page 140 PREV PAGE TOP OF DOC Mr. HUTCHINSON. Issue advocacy can be defined that way. It could be defined as an independent expenditure. When it's that close to the election, it simply requires public disclosure. The independent expenditure law has been held constitutional, has it not?
Mr. BOPP. Let's think this through, though. Let's think this through. You have a 60-day zone in Shays-Meehan before the general election. And what you're saying is that we should be defining issue advocacy that might influence an election to now be political that has to be reported to the Federal Government or it's a crime.
Mr. CANADY. Without objection, the gentleman will have 1 additional minute.
Mr. BOPP. Within that 60 days, there's a veto override for the partial-birth abortion bill. That classifies, by that device, all the lobbying that is done by National Right to Life on that issue because, after all, we are telling the general public that a candidate for office vetoed the partial-birth abortion bill, President Clinton. The Catholic church spent a lot of money regarding the veto override. All of their expenditures are now classified as political. I mean, is it realistic to think that religious groups would then lobby----
Mr. HUTCHINSON. Sure.
Mr. BOPP [continuing]. Because they're lobbying would be classified as political by this Congress?
Mr. HUTCHINSON. I don't know about the Meehan bill, but the only thing it would require, in my mind, would be that it be disclosed. The public would know how much money you're spending to influence a particular election. That is it.
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Mr. BOPP. What--the problem that you have to face from a constitutional standpoint is: What interest does this Congress have in requiring, in the name of campaigning or campaign finance reform, the disclosure of lobbying because lobbying influences an election?
Mr. HUTCHINSON. I'm very grateful for your answers and the input there.
Thank you, Mr. Chairman, for giving me additional time.
Mr. CANADY. Thank you, Mr. Hutchinson.
Mr. CONYERS. Thank you, Mr. Chairman.
Attorney Bopp, I want to especially welcome you here to this committee. I've never met someone that represents the Christian Coalition, the National Right to Life Committee, and let's us know about it upfront. You're also a Republican State party committee chairman, aren't you?
Mr. BOPP. My county, yes.
Mr. CONYERS. Yes. Well, that's a good three-in-one--you know, we kind of get the picture, and I just wanted to just say ''hi'' to you, OK? [Laughter.]
Now we made a----
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Mr. BOPP. I've never had you say ''hi'' to me before. [Laughter.]
Mr. CONYERS. I know it, and you may not--I may not say it again. [Laughter.]
Mr. BOPP. And I'm grateful to you. Thank you.
Mr. CONYERS. I'm sure you are.
Now let's look at our work product on this panel because it's, I think, a little bit more than might meet the eye or the ear. First of all, we've had two of the panelists talking straight-out about the framework of public financing, and essentially what we may have to do in between the time that public financing arrives. So, Mr. Cutler, that leaves you and I to consume a few minutes, and let's try to probe and see where you come out on the public financing situation.
Mr. CUTLER. Well, I happen to favor public financing in exchange for the acceptance by the candidate who receives it of limits on his expenditures and contributions from other people, but I recognize the difficulties with enacting a public financing statute, particularly at the congressional level, even though the public financing of the presidential campaign works very well, and would continue to work very well, were it not for the loophole that you have left for soft money going to the parties.
Page 143 PREV PAGE TOP OF DOC What I think you can do, and the public would applaud you for doing, is to put caps on soft money, both the contributions of soft money to the parties and the expenditure of that soft money in coordination with the actual candidate. That would be a big step forward. It doesn't cover everything, but it would be a great step forward.
I think you could do the same thing--and I'm including my reading at least of the Colorado case, which is the same, I think, as Professor Neuborne's--you could do the same thing with respect to PAC's. And we shouldn't forget the contribution side of the Buckley opinion. The Buckley opinion upheld limits on contributions to candidates, directly or indirectly. Now there are some limits on that. They must be reasonable limits, and so forth, but they upheld it.
Most of the money, the soft money, which goes to the political parties and the campaign committees is contributed, and it's contributed for the benefit of candidates. As all of you know very well, the present soft money practices are you can contribute soft money to the DNC or the RNC for the benefit of John Conyers, for the benefit of the chairman, whoever it may be. They will allocate it the way you want it. It's a catalog with something in it for every person. Those things you can do.
And just because there are a lot of other things you can't do, you shouldn't step back from doing those things. There are complications to it; I recognize that. But public opinion about you fellows is going down every single day, and you need to do something about it. It's not your fault, but it's what the public thinks today.
Mr. CONYERS. Thank you very much.
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Mr. Glasser, what would you add to this dialog?
Mr. GLASSER. Well, you know, you could limit in the interim, but the problem with conditioning public financing on the voluntary agreement to abide by spending limits runs afoul, I think, in practice of a number of things. I mean, it sounds good and it sounds like a reasonable trade. But, first of all, you have to ask the question about whether or not the public financing is adequate. You have to answer the question about who it applies to. Does it apply to everyone who satisfies ballot requirements? And if not, why is it that the Government is funding major party candidates and not funding minor party candidates, which means that the only minor party candidates you'll have are people like Ross Perot who can finance it himself? If you had the current law in place in 1968, Gene McCarthy could not have run his insurgency campaign because his campaign, which was not broadly based to start, depended on a handful of large contributions which are now prohibited.
Mr. CANADY. Without objection, the gentleman will have two additional minutes.
Mr. CONYERS. Thank you, Mr. Chairman.
So you think, Mr. Glasser, that these obstacles cannot be overcome?
Mr. GLASSER. I do think they can be overcome, but I think that they have to be overcome in the following way: I think that if we engaged in a serious discussion over time about public financing, one of the things I think would emerge is that, either through discounted or free use of television time, franking privileges for a period of time for people who satisfy the ballot requirements, maybe travel vouchers, things like that--you could basically undercut the primary things----
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Mr. CONYERS. OK, that's good.
Mr. GLASSER [continuing]. And if you did it at a high enough level----
Mr. CONYERS. I get the idea.
Mr. GLASSER [continuing]. You wouldn't need----
Mr. CONYERS. I'm sorry, I have to rush like this.
Mr. GLASSER [continuing]. To have limits----
Mr. CONYERS. Forgive me, but I wanted to get Professor Neuborne----
Mr. NEUBORNE. I've been working with Mr. Glasser for----
Mr. CONYERS. I know----
Mr. NEUBORNE [continuing]. Twenty-five years, and I've never gotten a word in edgewise with him. [Laughter.]
So this is very good of you, and I appreciate it.
Mr. CONYERS. You're not saying you never contradict him, though?
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Mr. NEUBORNE. Well, this is the first time we've ever really disagreed on a major issue in all the years we've worked----
Mr. CONYERS. OK. Could you, with the little time I have left, weigh-in on this discussion as you see it?
Mr. NEUBORNE. Well, public financing I think could certainly work, but I think the point that I would make, and the point that a number of you made in questioning, I think is very important. Whatever scheme we impose or we pass, or comes up from the bottom, whatever we do, the most important thing is to make sure enough money is running through the democratic process to assure robust discussion. The last thing we would want to do, any of us, is to starve the system.
And I believe that Buckley v. Valeo was correct----
Mr. CANADY. Without objection, the gentleman will have 1 additional minute.
Mr. CONYERS. Thank you.
Mr. NEUBORNE. Thank you, sir.
Buckley v. Valeo was correct in striking down the independent expenditures because they were too low. They were set at $1,000, and that's an absurdly low amount. If only we were to rethink the reform process realistically and say the independent expenditure should be $10,000, that would go a long way toward countering the concern about the press having special power, because you could spend $10,000 and fight back. But the fact that $1,000 is too low doesn't mean that there isn't some ceiling somewhere that's too high, and that's the box that we've gotten ourselves into.
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And I want to thank you, Mr. Chairman, for the disciplined way the hearing has been run, and the fact that you--how carefully you maintained the ground rules that allowed real free speech to come out here. And I'm really saying that that same idea has to be thought about in the electoral process. Ground rules don't necessarily suppress speech. Sometimes ground rules allow speech to go forward. In a courtroom speech is controlled. In this room speech is controlled, and the net result is good speech. But if you let all of us shout at each other, and the one with the loudest mike controlled what was said to you, you would have a microcosm of what's wrong with the democratic process today. We have got to find ways--money talks and the problem is it talks too loud.
Mr. CANADY. The gentleman's time has expired.
Mr. CONYERS. I thank you very much. I thank all of the panelists.
Mr. CANADY. Thank you.
I'll now finally recognize myself for 5 minutes, or maybe a little more.
I want to go back to the issue of soft money. I think I know Professor Neuborne's view on that and Mr. Cutler's view concerning the receipt of soft money and whether it's constitutional to place restrictions or even to prohibit the receipt of soft money by the parties.
Mr. Glasser and Mr. Bopp, do you have any--do you see any constitutional problem with either limiting or prohibiting the receipt of soft money by the parties?
Page 148 PREV PAGE TOP OF DOC Mr. GLASSER. Well, the nexus in Buckley is a nexus of quid pro quo corruption. So when Mr. Cutler says that the party or the PAC to be regulated or restricted has to be coordinated with the candidate in order to have the regulation or restriction, I think that that brings it within the law under Buckley. If it's not, if it's not coordinated, if there's a PAC out there that is not coordinated with the candidate, then I don't see where the nexus is that justifies the restriction, and I don't think it is within Buckley.
Mr. CANADY. OK. What about--OK, I'm sorry, maybe I'm missing something here. What about--I'm just talking about the receipt of soft money by the parties.
Mr. GLASSER. Well, it depends on what the parties are doing with it, and I understand that's a little disingenuous to----
Mr. CANADY. OK. Well, that's not--that doesn't address the receipt. That addresses the expenditure.
Mr. GLASSER. Right.
Mr. CANADY. And I understand on the expenditure side they're separate issues, but I'm just talking about on the receipt. Now I think I'm representing Mr. Cutler and Mr. Neuborne correctly in saying that they--and speak up if I'm misrepresenting you--but they believe that there's no constitutional problem with prohibiting the receipt of soft money by the parties, that that is something we can do within the existing constitutional framework. Is that correct, Professor Neuborne?
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Mr. NEUBORNE. That's correct, sir. That's what I----
Mr. CANADY. Mr. Cutler, OK?
Mr. CUTLER. If there are reasonable limits, yes.
Mr. CANADY. OK, so you would--I'm sorry, I can't hear you.
Mr. CUTLER. There's always the reasonableness test.
Mr. CANADY. So we could--so it would be your view that we could not impose an absolute prohibition on the receipt of soft money, but that we could restrict it in a reasonable way?
Mr. CUTLER. I think you could restrict it in a reasonable way and make it in some way conditional on how it's used. It's a combination of the receipt and expenditure.
Mr. CANADY. OK.
Mr. NEUBORNE. Mr. Chairman, and also the source because, when you say ''soft money,'' that means three things. It's money from corporations, money from labor unions, and money from wealthy individuals in excess of the contribution limits. I don't think there's any serious question that they can ban contributions from corporations and labor unions. I mean, that's--I just don't see----
Page 150 PREV PAGE TOP OF DOC Mr. CANADY. Does anybody disagree with that?
Mr. BOPP. I completely disagree with that.
Mr. CANADY. OK. Well, we'll come to you in a minute, and I want to try to find what there is common ground on, as much as exists, and then we'll explore the divergence from that.
Mr. Glasser, do you agree with that?
Mr. GLASSER. I think under current constitutional law that is correct; you could limit corporations and labor unions.
Mr. CANADY. Prohibit them?
Mr. GLASSER. Yes. I think the question about individuals, I think I agree with Mr. Cutler. I think it depends not only the size of the contribution, but also how it's used.
Mr. CANADY. What would be a--let me ask you, Mr. Cutler, what would be a reasonable limit?
Mr. CUTLER. Well, for example, to just use some of the modern numbers, if Congress set a limit on soft money contributions by an individual or a company in excess of, let us say, $50,000 in an election cycle for the benefit of a particular candidate, I think that would clearly be reasonable. The present limits are much lower than that.
Page 151 PREV PAGE TOP OF DOC Mr. CANADY. What if it's not for the benefit of a particular candidate?
Mr. CUTLER. There I think there is some question. To the extent that the party is taking a position on an issue or get out the vote, or one of those things----
Mr. CANADY. Party-building?
Mr. CUTLER [continuing]. The original supposed purpose of soft money, I would think there that conceivably there could very well be some limits, but I think that there the limits would have to be much higher. Party committees are like other committees, and they have a right to express themselves on issues.
Mr. CANADY. Without objection, I'll give myself 2 additional minutes, and I'd like to ask Professor Neuborne and Professor Glasser to address that very quickly, if you could respond to it.
Mr. NEUBORNE. I'll do it very quickly. The risk of corruption that sustains the Buckley limitations on contributions applies to any contribution to a political party, because, as we've seen in recent years, just the recent events in the newspapers, the political parties have the ability to deliver special access to the candidate after he is elected. Therefore, the risk of corruption is exactly what the Court said that could be blocked. You cannot buy special access with money going into the political process. Therefore, money coming from a corporation or a labor union or a wealthy individual to the party, even for party-building activities, even for something completely unrelated to the candidate, if that earns that person a free trip to the candidate after he is elected, that's exactly the corruption that the Supreme Court said that we could ban, and you can ban.
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Mr. CANADY. OK. Mr. Glasser, do you have anything to add on that--briefly?
Mr. GLASSER. I think that that is overbroad, and I think that parties could set up defined programs which, as Mr. Cutler suggests, could be used to do general kind of issue advertising, party-building mechanisms, and you would have to--to make the inference that every contribution to a political party for every purpose was necessarily going to lead to an evening in the Lincoln bedroom I think would end up violating a lot of core first amendment activity.
Mr. CANADY. All right. Mr. Bopp, you've waited patiently.
Mr. BOPP. Sure, and thank you, Mr. Chairman.
Mr. CANADY. You get the final word.
Mr. BOPP. I think there are two problems here. First is that the only interest that the Court has recognized that supports--being a compelled interest--supports limiting contributions is the corruption from a quid pro quo, the giving of a large contribution to a candidate, and then that candidate, as in public office, then gives a favor back to the giver. If the money is going to the party, there is no quid pro quo relationship.
Mr. CANADY. Well, there seemed to have been a suggestion in certain circumstances that there might be a quid pro quo.
Mr. BOPP. Well, if you can----
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Mr. CANADY. I mean, I would suggest that current experience might undermine that.
Mr. BOPP. If you can prove that----
Mr. CANADY. If you can prove that there's a quid pro quo, I understand----
Mr. BOPP. Then you have bribery.
Mr. CANADY [continuing]. There's another problem, but that, the aroma of that, seems to be floating over a lot of the party activities, and I think it's that aroma which the Court was concerned about, if I understand the Buckley decision.
Mr. BOPP. I think they're more rigorous than aromas. I don't think that we can limit first amendment rights because of unproven and undemonstrated perceptions. I think that the courts have been very rigorous in saying that in the first amendment area you have to prove it.
Mr. CANADY. I give myself more time.
The Court certainly wasn't saying you could only limit contributions if a bribe was given--I mean, the fact that there was a potential for a quid pro quo in the context of a contribution to a candidate.
Mr. BOPP. But what you have here is indirect. What you have here, though, is indirect. And that's what changes the analysis. It's not a contribution directly to the person, to the candidate; it's indirect. It's going to a third party.
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Now the second problem is, as Ira pointed out, What is being spent? In other words, what is the party going to use this for? Parties do a lot more than elect Federal candidates. They support State parties. They're involved in State elections. They do generic associational activity that just involves themselves, and I don't see any interests that would justify prohibiting them from raising however much money they want to do that.
Mr. CANADY. OK, let me thank you for that, and I appreciate that. This is, obviously, the issue of soft money is in itself quite a complex issue, and I would ask that any of you who are willing submit any additional comments you have on the soft money issue. I think that is something where there is likely to be a major focus and a potential for action, and I would appreciate the benefit of your specific analysis of what would be permissible, what would be constitutional, what would be good policy in that context, and I think that would be of benefit as this overall debate goes forward.
Mr. NEUBORNE. Thank you, Mr. Chairman.
Mr. CANADY. OK, we again thank each of you for being here. I think your testimony has been very helpful to us, and we appreciate it very much. Thank you.
Mr. GLASSER. Thank you, Mr. Chairman.
Mr. BOPP. Thank you.
Mr. CUTLER. Thank you.
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Mr. CANADY. Now I'd like to ask the long-suffering members of the third panel to prepare to come forward. And I want to welcome all of you to our hearing today. I appreciate your waiting patiently.
On our third panel of witnesses, we will begin with Brent Thompson, the executive director of the Fair Government Foundation. This D.C.-based foundation examines political campaign and electoral reform issues.
Next to testify will be Bradley Smith. Mr. Smith comes to us on behalf of the CATO Institute, where he is an adjunct scholar. He has appeared on several radio and television programs discussing election reform. He is also currently an associate professor of law at the Capital University School of Law in Columbus, OH.
Testimony will follow from Gene Karpinski. Mr. Karpinski is the executive director of the United States Public Interest Research Group. The United States Public Interest Research Group backs strict limits on State and Federal political contributions and spending.
Closing out today's testimony will be Dave Mason, a senior fellow of congressional studies at the Heritage Foundation. Mr. Mason has done extensive research and commentary on Congress and national politics and has testified before Congress on campaign finance.
As with our earlier panels, we are very grateful that you are here. Without objection, your full statements will be made a part of the permanent record, and I would ask that you do your best to confine your comments to no more than five minutes.
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STATEMENT OF BRENT THOMPSON, EXECUTIVE DIRECTOR, FAIR GOVERNMENT FOUNDATION
Mr. THOMPSON. Well, allow me to also congratulate you for having this hearing. One of the problems in this area that we suffer so much from is that there is a whole lot of emotion in it; there's a lot of misinformation. It's a complicated subject, and there are very strong political interests at stake as well. And so it's, without question, one of the more difficult public policy areas to deal with, and certainly one of the most important. This kind of free-ranging hearing with, in fact, free speech headlining it is an outstanding addition to the process. So let me congratulate you and the subcommittee.
I would like to make a few comments about the matter of the first amendment, stepping back a little bit from some of the details that the subcommittee has pursued, and would be happy to discuss those as well after. But I'm here, in part, to ring the alarm bells, and I think the hearing, at least in part, has assuaged some of my concerns that we are about ready to take a jump off a cliff into the abyss of doing away with really the founding principle of the American experience. And so it's gratifying to hear that Congressman Gephardt and perhaps others are dubious about the likelihood of really pursuing amending, in fact repealing, the essence of the first amendment. So there is some reason to be sanguine that we will not go down that course.
But I think that it is a regrettable observation that at no time in our Nation's history has free speech, the principle of free speech, come under greater attack. There really is a growing segment of the intelligentsia and the news media and public policymakers, as we've seen here today, who have concluded the first amendment speech guarantee should be all but repealed. There is no more virulent threat to liberty than this misguided effort, and I do not say that lightly. I believe it is really the essence of liberty. It is the handmaiden of liberty, that if we cannot speak freely, liberty shall not last.
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Better than 30 years ago, the Supreme Court wrote of our ''profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.'' It could scarcely be more appropriate to ask: Where has that profound national commitment gone? I don't think it's in evidence in the debate over campaign finance.
Lovers of freedom should condemn in the strongest terms possible the push to repeal the most meaningful aspect--indeed, the essence--of the first amendment speech guarantees, which is the right to participate unhindered in the political process. My fear is that, if it's not strangled in infancy, it will live in infamy.
The first amendment, of course, has particular consequence for the political process, and, indeed, there is ample historical and jurisprudential evidence that, in fact, free speech is the essence--or speech with regard to politics and policy is the essence of the first amendment, and I want to quote some of the passages from various cases that I think illustrate this particularly well.
First amendment speech guarantees have an acutely practical application to self-government. Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. There should be no debate that the primary purpose of the first amendment for the free speech guarantees is to protect the free discussion of governmental affairs, including discussions of the candidates. Speech concerning public affairs is more than self-expression; it is the essence of self-government. And self-government suffers when those in power suppress competing views on public issues. Let me read that again: self-government suffers when those in power suppress competing views on public issues.
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The first amendment was designed to secure the widest possible dissemination of information from diverse and antagonistic sources. It can hardly be doubted that the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office, and as Justice Breyer wrote so cogently, ''Free speech guarantees are indispensable to the democratic task, the task of creating a government that voters can instruct and hold responsible for subsequent success or failure.''
''Freedom of expression has particular significance with respect to government because '[it] is here that the state has a special incentive to repress opposition and often wields a more effective power of suppression.' ''
The great experiment in self-governance has largely succeeded because there has been a universal acceptance of the indispensability of freedom of speech, and if it is lost, it may never be recovered. Human nature is such, as history amply illustrates, that commitment to, and preservation of, free speech is an exceptional human condition. Indeed, it is what makes America special--our commitment to free speech. Without vigilance, we shall surely revert to the norm, where the powerful suppress the voices of the weak and where unpopular speech is attacked and punished. When tyranny is visited upon America because the opponents of tyranny were silenced, we shall rue the day that freedom of speech fell casualty to popular whim.
I'd be happy to assist the subcommittee in questions following the rest of the panelists.
[The prepared statement of Mr. Thompson follows:]
Page 159 PREV PAGE TOP OF DOCPREPARED STATEMENT OF BRENT THOMPSON, EXECUTIVE DIRECTOR, FAIR GOVERNMENT FOUNDATION
Mr. Chairman and Members of the Subcommittee, thank you for inviting me to testify on behalf of the Fair Government Foundation. The Subcommittee's focus on the importance of protecting freedom of speech and association in the face of campaign finance regulation couldn't be more timely or more worthy of examination.
It is a regrettable observation that at no time in our nation's history has the principle of free speech come under greater attack or been the subject of more public hostility. There is a growing segment of the intelligentsia, the news media and even public-policy makers who have concluded that the First Amendment's free speech guarantees should be all but repealed. There is no more virulent threat to liberty than this misguided and grotesque effort to abandon the founding principle of the American experience.
Better than thirty years ago, the Supreme Court wrote of our ''profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wideopen.'' New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). It could scarcely be more appropriate to ask: Where has that ''profound national commitment'' gone?
Lovers of freedom must condemn in the strongest terms possible the push to repeal the most meaningful aspect--indeed the essence--of the First Amendment's speech guarantees--the right to participate unhindered in the political process. My fear is that if it's not strangled in infancy, it will live in infamy.
The First Amendment's speech guarantees have an acutely practical application to selfgovernment. ''Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution.'' Roth v. United States, 354 U.S. 476, 484 (1957). There should thus be no debate that the primary purpose of the free speech guarantee ''[is] to protect the free discussion of governmental affairs.... includ[ing] discussions of candidates....'' Mills v. Alabama, 384 U.S. 214, 218 (1966). ''[S]peech concerning public affairs is more than self-expression, it is the essence of selfgovernment,'' Garrison v. Louisiana, 379 U.S. 64, 7475 (1964), and ''self-government suffers when those in power suppress competing views on public issues....'' First National Bank of Boston v. Bellotti, 435 U.S. 765,777, n.12.(1978)
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The First Amendment was designedl ''to secure 'the widest possible dissemination of information from diverse and antagonistic sources' '' and ''to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.'' Buckley at 49, quoting New York Times Co. v. Sullivan, 376 U.S. at 266, 269, quoting Associated Press v. United States, 326 U.S. 1, 20 (1945), and Roth v. United States, 354 U.S. at 484. ''It can hardly be doubted that the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office.'' Buckley at 1415. And as Justice Breyer wrote so cogently, free speech guarantees are indispensable to the ''democratic task, the task of creating a government that voters can instruct and hold responsible for subsequent success or failure.'' Colorado Republican Federal Campaign Committee v. FEC, 1996 U.S. Lexis 4258, 4280 (1996).
''Freedom of expression has particular significance with respect to government because '[it] is here that the state has a special incentive to repress opposition and often wields a more effective power of suppression.' '' Bellotti at 776, n. 11, quoting T. Emerson, Toward a General Theory of the First Amendment 9 (1966).
Given the gravity and centrality of First Amendment guarantees, it can only be considered a crisis of the first order that our ''profound national commitment'' to free political discourse is eroding before our eyes. This is not a matter involving the proverbial slippery slope like pornography and flag burning. The fact is, we have slipped and we are at the bottom of the slope. Leaders of one of the major parties have declared the obsolescence of free speech and are leading the vanguard seeking its demise.
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The great experiment in self-governance has succeeded largely because there has been a universal acceptance of the indispensability of the freedom of speech. If it is lost, it may never be
recovered. Human nature is such, as history amply illustrates, that commitment to and preservation of free speech is an exceptional human condition.
Indeed, it is what has made America special. Without vigilance, we shall surely revert to the norm where the powerful suppress the voices of the weak, and where unpopular speech is attacked and punished. When tyranny is visited upon America because the opponents of tyranny were silenced, we shall rue the day that freedom of speech fell casualty to popular whim.
In an effort to assist the Subcommittee in identifying the scope of First Amendment protection of political discourse, we have laid out below in summary form many of the major, established constitutional principles that bear on the regulation of the political process.
1. THE ONLY CONSTITUTIONAL BASIS FOR ABRIDGING FREE SPEECH RIGHTS IN THE POLITICAL CONTEXT IS FOR THE PURPOSE OF AVOIDING THE FACT OR APPEARANCE OF QUID PRO QUO ARRANGEMENTS
Various reasons are proffered by proponents of greater regulation of the political process to justify the need for legislation. All except one, without fail, are constitutionally deficient to justify further abridgment of free speech.
The Court ''held in Buckley and reaffirmed in Citizens Against Rent Control that preventing corruption or the appearance of corruption are the only legitimate and compelling government interests thus far identified for restricting campaign finances.'' FEC v. NCPAC, 470 U.S.480, 496497 (1985). ''In the context of campaign finance reform, the only governmental interest that we have accepted as compelling is the prevention of corruption or the appearance of corruption, see Federal Election Comm'n v. NCPAC, 470 U.S. at 496497, and we have narrowly defined 'corruption' as a 'financial quid pro quo: dollars for political favors,' id., at 497.'' Colorado at 4327 (Thomas, J., concurring).
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In Buckley, the Court rejected as insufficient justifications 1) the equalization of the ''relative ability of all citizens to affect the outcome of elections'' and 2) slowing the rising cost of political campaigns. Buckley at 25. As to the first, the Court stated that ''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....'' Id. at 48. Likewise,
The mere growth in the cost of federal election campaigns in and of itself provides no basis for governmental restrictions on the quantity of campaign spending and the resulting limitation on the scope of federal campaigns.
* * * * *
In the free society ordained by our Constitution it is not the government, but the people--individually as citizens and candidates and collectively as associations and political committees--who must retain control over the quantity and range of debate on public issues in a political campaign.
Buckley at 57 (emphasis added).
2. THE FIRST AMENDMENT DENIES GOVERNMENT THE AUTHORITY TO ESTABLISH LIMITATIONS ON CAMPAIGN SPENDING
The Supreme Court in Buckley struck down campaign spending limits as contrary to the First Amendment. The Court was unpersuaded that the alleged ''skyrocketing costs of political campaigns'' was a sufficiently compelling governmental interest to justify restrictions on political expression. Buckley at 57. In contrast, the Court found ''nothing invidious, improper, or unhealthy in permitting such funds to be spent to carry the candidate's message to the electorate.'' Id. at 56. The Court's rationale is clear and compelling:
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A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached. This is because virtually every means of communicating ideas in today's mass society requires the expenditure of money.
* * * * *
The electorate's increasing dependence on television, radio, and other mass media for news and information has made these expensive modes of communication indispensable instruments of effective political speech.
Id. at 18.
3. THE FIRST AMENDMENT PROTECTS THE RIGHTS OF INDIVIDUALS TO ASSOCIATE FOR THE PURPOSE OF ENGAGING IN POLITICAL ACTION
It is beyond peradventure that Congress may not ban political association simply because it takes the form of political action committees, as is proposed in various bills. The ''First and Fourteenth Amendments guarantee 'freedom to associate with others for the common advancement of political beliefs and ideas.' '' Buckley at 15 (quoting Kusper v. Pontikes, 414 U.S. 51, 56 (1973)). ''The constitutional right of association ... stem[s] from the Court's recognition that '[e]ffective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association.' '' Id. at 15 (quoting NAACP v. Alabama,1 357 U.S. 440, 460 (1958)). ''[B]y collective effort individuals can make their views known, when individually their voices would be faint or lost.'' Citizens Against Rent Control v. Berkeley, 454 U. S. 290, 294 (1981). ''To say that collective action ... is not entitled to First Amendment protection would subordinate the voices of modest means as opposed to those sufficiently wealthy to be able to buy expensive media ads with their own resources.'' NCPAC at 495.
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The right to join together in pursuit of a political cause also includes the right to take measures. ''[F]reedom of association is 'diluted if it does not include the right to pool money through contributions, for funds are often essential if 'advocacy' is to be truly or optimally 'effective.' '' Citizens Against Rent Control at 296 (quoting Buckley at 6566). ''The First Amendment protects [the] right not only to advocate [a] cause but also to select ... the most effective means for doing so.'' Meyer v. Grant, 486 U.S. 414,424 (1988). The right of association, finally, operates in indispensable conjunction with the right of expression. ''The two rights overlap and blend, to limit the right of association places an impermissible restraint on the right of expression.'' Citizens Against Rent Control at 300.
4. THE FIRST AMENDMENT PROTECTS ''ISSUE ADVOCACY'' FROM GOVERNMENT REGULATION
In Buckley, the Court drew a bright line between ''issue advocacy'' and ''electoral advocacy,'' declaring the former beyond the scope of governmental regulation. In so doing, the Court announced the ''express advocacy'' doctrine, holding that only those ''communications that in express terms advocate the election or defeat of a clearly identified candidate for public office'' may be subject to regulation. Buckley at 44. Thus communications must ''contain express words of advocacy of election or defeat, such as ''vote for,'' ''elect,'' ''support,'' ''cast your ballot for,'' ''Smith for Congress,'' ''vote against,'' ''defeat,'' ''reject'' to be subject to government regulation. Buckley at 45 n. 52.
In 1986, the Supreme Court again weighed in on the express advocacy standard. In FEC v. Massachusetts Citizens for Life, 479 U.S. 238 (1986), the high court reaffirmed its decision in Buckley and extended its holding to the FECA provision that prohibits corporations and labor unions from making contributions and expenditures out of treasury funds.
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The express advocacy doctrine thus holds that ''[s]o long as persons or groups eschew expenditures that in express terms advocate the election or defeat of a clearly identified candidate, they are free to spend as much as they want to promote the candidate and his views.'' Buckley at 45.
5. THE FIRST AMENDMENT PROTECTS THE RIGHTS OF INDIVIDUALS AND GROUPS TO MAKE UNLIMITED INDEPENDENT EXPENDITURES
In Buckley, one of the first provisions to fall under the Court's First Amendment analysis was the $1,000 limit on independent expenditures. The Court found that the provision ''fail[ed] to serve any substantial governmental interest in stemming the reality or appearance of corruption in the electoral process, [yet] it heavily burden[ed] core First Amendment expression.'' Buckley at 4748. ''Independent expenditures constitute'' 'expression at the core of our electoral process and of the First Amendment freedoms.' '' MCFL at 251 (quoting Buckley at 39, quoting Williams v. Rhodes, 393 U.S. 23,32 (1968)). ''Advocacy of the election or defeat of candidates for public office,'' the Court continued, ''is no less entitled to protection than the discussion of public policy generally....'' Buckley at 48. ''[L]imits on expenditures operate as a direct restraint on freedom of expression of a group or committee....'' Citizens Against Rent Control at 296.
''To place a Spartan limit--or indeed any limit--on individuals wishing to band together to advance their views ..., while placing none on individuals, is clearly a restraint on the right of association.'' Id. ''There are, of course, some activities, legal if engaged in by one, yet illegal if performed in concert with others, but political expression is not one of them.'' Id. Judgments of Congress ''cannot be allowed to hobble the collective expression of a group.'' Id. Expenditure limitations thus ''represent substantial rather than merely theoretical restraints'' on First Amendment liberties. Buckley at 19.
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6. THE FIRST AMENDMENT PROTECTS THE RIGHTS OF INDIVIDUALS TO MAKE UNLIMITED EXPENDITURES ON THEIR OWN BEHALF
Also put to rest by Buckley was the right of individuals to be free to spend on their own behalf without limitation. Because avoiding the appearance or fact of corruption is the only currently identified governmental interest sufficient to justify abridgment of speech, the Court reasoned that that interest could not be furthered by a ceiling on personal expenditures. An individual, after all, cannot corrupt himself. ''Indeed, the use of personal funds reduces the candidate's dependence on outside contributions and thereby counteracts the coercive pressures and attendant risks of abuse....'' Buckley at 53.
The ''interest in equalizing the relative financial resources of candidates competing for elective office,'' therefore, ''is clearly not sufficient to justify ... restriction on candidate's personal expenditures....'' Id.
7. THE FIRST AMENDMENT PROTECTS THE RIGHTS OF POLITICAL PARTIES TO MAKE INDEPENDENT EXPENDITURES ON BEHALF OF THEIR CANDIDATES
This principle was articulated by the Supreme Court in Colorado Republican Federal Campaign Committee v. FEC, its most recent decision enlarging political freedom. The Court in Colorado extended its earlier rulings on independent expenditures to political parties, holding that expenditures that were not made in ''cooperation, consultation or concert with'' a candidate may not, consistent with the Constitution, be limited by the government. The plurality found that ''[t]he independent expression of a political party's views is 'core' First Amendment activity no less than is the independent expression of individuals, candidates, or other political committees.'' Colorado at 4280. The Supreme Court rejected the suggestion that there exists ''special dangers of corruption associated with political parties that tip the constitutional balance in a different direction.'' Id. The Court concluded by questioning how ''a Constitution that grants individuals, candidates, and ordinary political committees the right to make unlimited independent expenditures could deny the same right to political parties.'' Id.
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8. THE FIRST AMENDMENT PROTECTS THE RIGHTS OF INDIVIDUALS TO ENGAGE IN ANONYMOUS PAMPHLETEERING
The Supreme Court's decision in McIntyre v. Ohio Elections Commission, 131 L. Ed. 2d 426 (1995), held that ''anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and dissent.'' Id. at 446. In McIntyre, the Court found an Ohio statute that prohibited distribution of unsigned political campaign literature was contrary to the Constitution. Comparing the right to engage in anonymous pamphleteering to the secret ballot--''the hard-won right to vote one's conscience without fear of retaliation'' McIntyre at 437--the Court concluded that a signature requirement burdened core political speech. Because Ohio failed to cite a compelling governmental interest to justify the requirement, the provision could not withstand exacting scrutiny.
The McIntyre case is instructive to the debate over ''full disclosure'' of political expenditures. There is a body of opinion--and, indeed, legislative proposals--that seeks to include ''issue advocacy'' in the FECA's disclosure requirements. McIntyre addressed the broader limitations on disclosure requirements, embracing the ''respected tradition of anonymity in the advocacy of political causes.'' McIntyre at 437. The Court was careful to distinguish its holding from the FECA's disclosure requirements involving contributions to candidates and independent expenditures, which were held in Buckley not to offend the Constitution. It did, however, reaffirm that issue advocacy--communications that do not contain express advocacy--may not be subjected to mandatory disclosure requirements. Although McIntyre is not directly on point with the express advocacy doctrine, it nevertheless is an extension of the Court's precedents concerning the protection of issue advocacy from regulation of any kind. See McIntyre at 445.
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9. THE FIRST AMENDMENT PROTECTS THE RIGHTS OF ORGANIZATIONS NOT TO DISCLOSE THEIR MEMBERSHIP LISTS
The now landmark case NAACP v. Alabama, 357 U.S. 440 (1958), establishes that government is limited in its power to coerce disclosure. At issue in NAACP was disclosure of the organization's membership list to a judicial tribunal under threat of a contempt citation. The Court held that forced disclosure violated the rights of association of the organization's members, particularly when ''it is likely to affect adversely the ability of [an organization] and its members to pursue their collective efforts to foster belief....'' NAACP at 462463. The Court noted that in the instant case, disclosure resulted in ''economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility.'' Id. at 462.
Thus ''it is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute a[n] effective restraint on freedom of association.'' Id. ''Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.'' Id.
When the NAACP case is read in conjunction with the Supreme Court's McIntyre decision, it is suggestive of a broad zone of protection for those political activities that fall short of express political advocacy, calling into question how much more ''full disclosure'' Congress is empowered to compel.
That concludes my testimony. I would be happy to answer questions.
Page 169 PREV PAGE TOP OF DOC Mr. CANADY. Thank you, Mr. Thompson.
STATEMENT OF BRADLEY A. SMITH, ASSOCIATE PROFESSOR OF LAW, CAPITAL UNIVERSITY LAW SCHOOL
Mr. BRADLEY SMITH. Thank you, Mr. Chairman. It's a pleasure to be here, and I appreciate the committee holding these hearings.
A number of loose comments have been thrown around lately about amending the Constitution, or derogating constitutional arguments against proposed reform. For example, a named sponsor of one of the bills pending in the Senate recently suggested that when his chief adversary ''starts relying on those constitutional issues, I know he doesn't have much in his arsenal.'' [Laughter.]
It always struck me that that should probably be the first thing that is considered. So I think it's good to have this hearing.
I had the opportunity shortly before the elections last fall to appear on the Lehrer news hour, and Ann McBride of Common Cause was there, a group which has lobbied for restrictions on first amendment speech in the form of campaign contributions, and she made what I thought was a stunning comment--stunning in part because few people even seemed to catch it. She said, and I don't have the quote here, but she said, basically: these parties that are giving money are the very parties that are being regulated and that have a stake in this election. And what is remarkable about that is the view of government that it shows. We've gone, in her view, from a system of no taxation without representation to a view that you should not have representation if you might be a possible target of taxation.
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It is precisely because the Government regulates and taxes and engages in a variety of affairs, some of which most all of us would agree are necessary and others we disagree on how necessary they are, but it's because the Government does these things that people want to participate in politics and want to get involved in campaigns, and, indeed, have a first amendment right to do so.
Nevertheless, there have long been assaults on the first amendment and on the rights to participate in political activity. We've been through this before. This debate is not new. It's new in some of its particulars, and it's new in the boldness of an idea that we amend the first amendment, but we've been through this before. We went through this in the 1830's when people were shocked that a Kentucky Governor's race cost $15,000; and we went through this in the 1870's when we found cartoonist Thomas Nast drawing cartoons of politicians with a money bag in place of a head, and a big fat torso, you know. We went through this in the 1890's and in the early part of the 20th century, when we banned direct corporate contributions. We went through this in the 1940's when we banned direct labor union contributions on the grounds that excess labor influence would undercut the war effort. And, of course, we went through this in the early seventies when we passed the Federal Election Campaign Act, and that act has created or exacerbated virtually every problem that we have talked about here today.
The issues are not new; the arguments are the same, the same thing over and over: The people have lost confidence in democracy; we face a crisis of democracy; all the people in Congress are corrupt; the little guy doesn't have a voice. And, yet, we've managed to make it through a couple hundred years without having to amend the first amendment.
Page 171 PREV PAGE TOP OF DOC I have argued--and I won't go into the details today--but I have argued that the assumptions behind campaign finance reform are generally wrong, that we do not spend too much. Other countries--for example, Germany, Canada, Ireland--spend more. I've argued that spending does not dictate the results of elections. I have noted that spending does not drive voting records, and I have noted that frequently the campaigns which rely most heavily on small contributions, rather than being most representative of the general populace, tend to be the campaigns that represent the most extreme candidates in the American political system. I have also noted in my writings that efforts to reform campaign finance have tended to entrench incumbents, increase influence-seeking, hurt grassroots politics, and require members to spend more time raising money.
Now we're told we have to amend the Constitution in order to allow still more regulation because this added regulation is finally going to solve all these problems that past regulation has only exacerbated or created. I think it's entirely the wrong way to go, and like Mr. Thompson, I'll be happy to elaborate in questions. Thank you.
[The prepared statement of Mr. Bradley Smith follows:]
PREPARED STATEMENT OF BRADLEY A. SMITH, ASSOCIATE PROFESSOR OF LAW, CAPITAL UNIVERSITY LAW SCHOOL
Thank you Mr. Chairman and Members of the Committee for inviting me to testify before you today. By way of introduction, I am an Associate Professor of Law at Capital University Law School in Columbus, Ohio, where I teach, among other subjects, Election Law. Though I appear today on my own behalf, I am also an Adjunct Scholar of the Cato Institute. I have researched and written extensively, in both academic and popular journals, on the subject of campaign finance.
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First, let me say that I appreciate the decision of this Committee to hold hearings on campaign finance reform. Before Congress now are bills to reform campaign finance by placing new limits on speech--the so called ''McCain-Feingold'' bill in the Senate (S25) and ''Shays-Meehan'' bill in the House (H493). Numerous lending constitutional scholars and campaign finance experts have called these bills unconstitutional. Yet one of the name sponsors of the bill on the Senate side just this month derided these concerns on national radio, saying ''When [my opponent] starts relying on those Constitutional arguments, I know he doesn't have much else in his arsenal.'' On another occasion, on national television, this senator stated cavalierly that his opponents ''may be right that that particular provision [of the bill] is unconstitutional. And that's why we have a back-up provision.''
Meanwhile, the minority leader here in the House was quoted in a national news magazine earlier this month, saying that ''freedom of speech'' and ''a healthy democracy'' are ''in direct conflict.''
When a member of Congress so casually treats his oath to uphold the constitution; and when the House minority leader suggests that the First Amendment must itself be amended because free speech ''is in direct conflict'' with democracy, it is both timely and appropriate for this committee to hold hearings.
Before congress attempts to solve the problems of campaign finance with more regulations burdening free speech rights, we should take stock of the fact that the current regulatory system is responsible for many of the evils we see in campaign finance. We do not need to plug ''loopholes'' in the system. Rather, we should scrap most all of the present system of campaign finance regulation, remembering the admonition of the First Amendment to the Constitution, that Congress shall make no law abridging the rights of free speech.
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Before discussing the details of campaign finance, I think it is important to briefly remind ourselves that, for most of this country's history, the funding of political campaigns has been totally or largely unregulated. During our nation's first century, the era which produced as presidents Abraham Lincoln, George Washington, Thomas Jefferson, Grover Cleveland, James Knox Polk, and Andrew Jackson, and which saw giants such as Daniel Webster, Henry Clay, John Quincy Adams, and John C. Calhoun serve in Congress, there were literally no laws regulating campaign finance. And today, we often look back on that century as a golden age of politics--one in which memorable debates over such monumental issues as slavery and western expansion were discussed in serious campaigns, one in which people talked and debated these issues, one in which politics was marked by mass rallies and torchlight parades, and one in which voter turnout was considerably higher than it is today.
The federal government did not become involved in campaign finance until this century. If we look back, we find that the arguments made in favor of regulation a century ago were the same that we hear today: that the American people believed Congress to be made up of the ''instrumentalities and agents of corporations;'' that ''corruption'' was the norm; that new advertising techniques and technologies-in those days mass newspapers, recordings, train travel had created an insatiable demand for political spending that could only be curbed by spending limits; and that we faced a ''crisis'' of democracy. In response to such complaints, the federal government passed its first campaign finance law in 1907, banning direct corporate contributions to candidates. In 1943, this ban was extended to labor unions. Additionally, congress passed greater disclosure requirements in 1925. However, these disclosure measures were so toothless as to be meaningless. For example, from its enactment in 1925 until its repeal in 1971, there was not a single prosecution under the Federal Corrupt Practices Act. Yet democracy survived, and this period of minimal regulation gave us Presidents Theodore and Franklin Roosevelt, Calvin Coolidge, Harry Truman, and Dwight Eisenhower, Congressional leaders such as Robert Taft, Hubert Humphrey, and Everett Dirksen, and serious debates over such issues as civil rights. For nearly two centuries, our democracy flourished despite, or perhaps even because of, the absence of any meaningful campaign finance regulation.
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Not until the 1974 Amendments to the Federal Elections Campaign Act (FECA) did the federal government pass a campaign finance law with any serious enforcement mechanism. And it was also this law which, for the first time, gave us both contribution limits and, as a necessary accessory to those limits, the strange doctrines of independent expenditures and express advocacy. The 1974 Amendments threw of web of regulation, with an accompanying enforcement bureaucracy, the FEC, over American politics.
The stated goals of the 1974 FECA Amendments were to lower the cost of campaigning, reduce the influence of so-called ''special interests,'' open up the political system to change, and ''restore confidence in government.'' So what has actually happened in the twenty years since the 1974 Amendments took effect? Well, campaign spending has increased by more than 350 percent; PAC contributions have increased by more than 800 percent; House incumbents, who had previously outspent challengers by approximately 1.5 to 1, now outspend challengers by nearly 4 to 1; incumbent reelection rates have risen to record high levels, spurring the demand for term limits; and public confidence in government has fallen to record lows. Clearly, the 1974 FECA Amendments have been a dismal failure. Yet the response of the reformers--notably Common Cause, the interest group most responsible for the 1974 Amendments, and today the number one cheerleader behind the Shays-Meehan bill--is to argue that we need more regulation, more limits, and more bureaucracy. Indeed, some now claim that because earlier regulation has failed, we not only need still more regulation, but we need to amend the First Amendment to allow government to regulate political speech and activity in ways the Founders never dreamed of. I would suggest, however, that when an approach has failed so clearly, so dismally, with such negative consequences, over a period of twenty years, it is time to consider a whole new approach. It is time not for more regulation, nor for more efforts at ''loophole'' plugging, which is the approach taken by Shays-Meehan. Rather, it is time to deregulate American politics.
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In my opinion large parts of Shays-Meehan and its Senate counterpart, McCain-Feingold, are unconstitutional. The so-called ''voluntary'' spending limits of the bills are in fact punitive and coercive, and amount to an unconstitutional condition leveled on the Constitutional right to free speech. That portion of McCain-Feingold abolishing PACs is unconstitutional, as even its supporters seem to recognize. If one person can spend $1000 on bumper stickers, it is inconceivable that two people cannot join together to spend $1,000 on bumper stickers.
The Senate bill's limitations on out-of-district contributions are probably unconstitutional. There is no reason why an out-of-district contribution is more ''corrupting'' than an in-district contribution. Thus, there is no compelling government interest to justify the ban on speech.
Overall, Shays-Meehan and McCain-Feingold mark the most serious legislative assault on free speech in over two decades--since the 1974 Amendments to FECA. Many of those 1974 reforms were eventually held unconstitutional. The others have stifled free speech and contributed to the current problems. We should not go down that road again.
But where Shays-Meehan and McCain-Feingold are most at odds with the Constitution and sound policy is in their efforts to silence political groups engaged in issue advocacy. Indeed, this question of ''tissue advocacy'' versus ''express advocacy,'' which has aroused the ire of those who would regulate political speech, is a prime example of the danger of the FECA's attempt to regulate politics to produce a desired result. Congressional Quarterly has noted that in recent years, litigation has become a major campaign tactic. Thus we have Republicans filing complaints against the AFLCIO, and the Democrats filing complaints against the Christian Coalition, U.S. Term Limits, Americans for Tax Reform, and the Christian Action Network, to name just a few recent complaints. In each case, the complaints amount to a blatant effort to silence political advocacy by these groups. In each of these incidents, the groups involved were not engaged in any nefarious activities such as vote fraud or bribery. Rather, their alleged infractions amounted to what might be called the crime of ''committing politics.'' That is to say, the groups involved were trying to persuade the American people that either their positions were right, or someone else's were wrong. It is true that incumbent officeholders do not like being attacked for their stands on issues; particularly when they view those attacks as shameless demogogery. However, the robust discussion of issues is wholly in line with both the First Amendment and the American tradition of political participation. That opposing political interests can invoke the powers of a government bureaucracy in an effort to silence these voices is, I suggest, a much more serious blight on our system than the alleged effects of campaign contributions.
Page 176 PREV PAGE TOP OF DOC The reasons that these complaints are even treated seriously is because of the doctrine of ''express advocacy.'' This doctrine itself a bizarre outgrowth of efforts by supporters of campaign finance ''reform'' to limit campaign contributions. These ''reformers'' seek to prevent individuals and groups from participating in politics through contributions of money. However, under the Supreme Court's ruling in Buckley v. Valeo, Congress may not, constitutionally, restrict individual or group expenditures that do not ''include explicit words of advocacy of election or defeat of a candidate....'' Thus, political speech is free from FEC regulation if it does not expressly advocate the defeat or election of a clearly identified candidate, but is subject to FEC regulation if it crosses that line.
The response of Shays-Meehan to this type of political activity, is to define ''express advocacy'' more broadly, by looking at such factors as timing and context. In fact, however, it is hard to see how these factors make any serious difference. For example, would last year's AFLCIO ads have been any more or any less ''express advocacy'' if aired three months or fifteen months before an election? Would it really matter if the group sponsoring the ads had public positions on some of the issues addressed? Clearly not. The ads would be no more nor less aimed at shaping public opinion, regardless of the added factors that Shays-Meehan seeks to consider. Thus, the long and short of an expanded definition of ''express advocacy'' would be a sharp reduction in political speech, which is precisely what the Supreme Court's decision in Buckley, protecting issue advocacy, is intended to guard against.
Of course, the FEC's concern over ''express advocacy'' and independent expenditures is all part of a larger effort to plug ''loopholes'' in the disastrous system of contribution and.spending limits enacted in 1974. The only reason anyone cares about ''express advocacy'' is the fear that, absent such a regulation, groups will spend money to try to affect federal elections, and in doing so will exceed the contribution limits of the FECA. I have written and commented at length on the undemocratic and deleterious effects that these limits have had on American politics. See e.g. Bradley A. Smith, Faulty Assumptions and Undemocratic Consequences of Campaign Finance Reform, 105 Yale Law Journal 1049 (1996); Bradley A. Smith, Testimony before Committee on Rules and Administration, United States Senate, February 1, 1996; Bradley A. Smith, Campaign Finance--Deformed, Wall Street Journal, Oct. 6, 1995 (copy attached). In short, these limits have entrenched incumbents; burdened grassroots political activity; limited the number and type of candidates; had the perverse effect of increasing the incentives both for campaign contributors to seek influence, rather than electoral success, and for office holders to reward financial patrons; and increased the power of unelected elites, most notably the media. The efforts to drive money from politics have grotesquely distorted our political system. The reason is simple and obvious: efforts to limit political participation not only run afoul of the Constitution, but they are like efforts to stop the flow of a river--one way or another, the water will pass, diverting course as necessary to do so. So long as the federal government spends over $1 trillion each year and regulates virtually every phase of the economy, not to mention many non-economic activities, the American people will seek to persuade Americans to elect their favored candidates. In modern society, this political communication and participation requires the expenditure of money.
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Fortunately, past efforts to limit political discourse have consistently been struck down by the courts as unconstitutional. Nevertheless, these attempts to stop this legitimate political advocacy by placing a heavy bureaucracy over political campaigns have had, as I mentioned, a variety of negative consequences. Not the least of these is the way in which such regulation stifles true grassroots democracy.
For example, a 1991 study by the Los Angeles Times found that among the most common violators of FECA were ''elderly persons ... with little grasp of the federal campaign laws.'' Even well-funded and well-organized groups can find their efforts at grassroots advocacy smothered. In one ill-founded effort to prevent political advocacy in violation of campaign finance laws, the FEC passed a rule that would have prevented the United States Chamber of Commerce from communicating political endorsements to more than 220,000 of its dues paying members, mainly small businesses whose owners and managers have little time to follow politics and rely on the Chamber of Commerce precisely for such information. Similarly, the regulation in question would have made more than two-thirds of the National Rifle Association's members ineligible to receive the group's endorsements, as well as over 44,000 dues paying members of the American Medical Association. This regulation was, fortunately, found unconstitutional by the U.S. Court of Appeals for the D.C. Circuit, but only after these groups had had their speech chilled in the 1994 election. Chamber of Commerce v. FEC, 1995 U.S. App. 1995 U.S. App. LEXIS 31925 (D.C. Cir. Nov. 14, 1995).
Another recent FEC rule attempted to prevent corporations and other groups from actively engaging in issue-oriented advertising during a campaign, on the theory that such advertising would implicate federal elections. Again, this effort to limit the flow of political information had to be struck down by a federal court. Maine Right to Life Committee, Inc. v. FEC (D. Me., Feb. 13, 1996). Simply putting similar measures into a statute will not make them constitutional.
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Limitations on ''express advocacy'' call for precisely the type of judgments that benefit large organizations with the ability to hire a battery of lawyers to advise them through the regulatory process. Efforts to broaden the concept to include advocacy beyond such express words as ''elect'' or ''defeat'' would truly burden free speech, especially for smaller, local groups. Political participation, by definition, seeks to influence voter preferences on both issues and candidacies. Any broadening of the term would lead to a murky standard that would significantly burden most all political speech.
Nevertheless, in addition to the unconstitutional provisions of Shays-Meehan, we now find offered up a Constitutional Amendment which would authorize Congress to adopt ''treasonable regulations,'' so long as they do not ''interfere with the right of the people to fully debate issues.'' This is classic double speak. Our Founding Fathers recognized that government could not be trusted to make such distinctions: The incentives to crush the opposition would be too great. Thus they wisely passed the First Amendment.
Historically, debates on the First Amendment have concerned the extent to which it covers pornography, or hate speech, or commercial speech, or ''fighting words,'' or treasonous speech. What has always been accepted, across the political spectrum, is that it covers political speech. So let's be honest about it: what the Amenders really seek is a clause reading ''the First Amendment to this Constitution is hereby repealed.''
Efforts to limit ''express advocacy,'' like, indeed, the rest of the FECA regulatory scheme, are based on the belief that Americans ought not participate in politics. However, it is not a bad thing for Americans to participate in politics--it is a good thing. It is constitutionally protected. And the fact of the matter is that, more than ever in American society, communicating in the political realm requires the expenditure of money. Money is not an evil in politics--it is a source of information to voters. Efforts to regulate the flow of money in politics over the past 20 years have done much more than money ever did to distort the political system and create a public distrust of government. It is now time to try a new approach--that is, it is time to deregulate politics. There is simply no a priori method to say what is fair or not fair--how much groups should be able to spend, or what kind of advocacy they can spend it on. The bureaucracy that has been established to regulate politics is stifling grassroots advocacy and political communication.
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After twenty years of campaign finance regulation, it should by now be clear that independent electoral advocacy by citizen groups lies at the core of the First Amendment, and that such advocacy ought to be beyond the permissible scope of government regulation. Political battles should be fought out in forums of public persuasion. It is poor policy to divert such debates to federal courtrooms, with each side attempting to silence its opponents through such arcane concepts as ''express advocacy'' and ''coordinated'' or ''uncoordinated'' expenditures.
Deregulation of campaign finance, not added regulation, is the proper course of action. The FECA $1000 limit on individual campaign contributions should be abolished entirely, or at least raised to a realistic figure, in order to reduce the need for candidates to rely on independent expenditures. (The $1000 limit, in existence since 1974, has never been adjusted for inflation. Had it been, it.would be approximately $3500 today. This is the minimum to which the contribution limit should be raised: $5000, $10,000, or complete removal of the cap would be preferable.) All caps on political party giving should be removed. Donations from a party to its own candidates are not ''corrupting.'' Moreover, since last year's Supreme Court decision in Colorado Republican Federal Campaign Committee v. Federal Election Commission, 1996 WL 345766 (U.S. 1996), parties may spend unlimited amounts in support of their candidates, but only independently of the candidate's campaign. Driving a wedge between parties and candidates is poor public policy. Disclosure of political expenditures meets any public need to know the source of financing. However, even here I must counsel caution. Disclosure rules can have a chilling effect on speech and may be constitutionally limited. McIntyre v. Ohio Board of Elections, 1995 WL 227810 (U.S.)(1995). Disclosure rules governing independent expenditures should be limited, therefore, to groups which engage in substantial activity, spending over $50,000 in an election cycle. Electronic filing and mandatory FEC posting of reports on the Internet would help to insure an informed public. These are the type of sensible, constitutional reforms congress should consider not the unconstitutional Shays-Meehan bill or the foolish drive to repeal the First Amendment.
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In recent years, it has become increasingly difficult to discuss meaningful campaign finance reform. This is because both public and congressional opinion has become trapped in a box. This box is the conscious creation of groups such as Common Cause, which for 25 years have worked tirelessly to convince the American public that the members of this Committee, and indeed all of Congress, are corrupt bribe-takers, and that the public itself consists of innocent dupes incapable of making intelligent voting decisions based on the information presented to them. By constantly drawing simplistic correlations to financial support and voting records, and through the conflation of the issue of campaign finance reform with other issues of voter concern, such as lobby reform, negative campaigning, and legislative gridlock, these groups have purposely attempted to create a climate of public opinion in which certain core assumptions are not to be challenged. These core assumptions are that political advocacy must be heavily regulated; political contributions and, ultimately, political spending limited; and all possible ''loopholes'' plugged. However, the heavy regulatory regime which these ''reformers'' have placed over campaign activity is, in fact, a major contributing factor to the very problems that have created such public disgust with the campaign finance system and, indeed, Congress in general.
Now is the time to get out of the box. We must not plunge ahead, sacrificing our First Amendment Freedoms. Congress must realize that Shays-Meehan style ''reforms,'' based, as they are, on the erroneous assumption that Americans should not spend money on political affairs, cut off grassroots involvement and decrease the flow of information to voters. The regulatory approach enacted in 3974 has had unintended, negative consequences that have only increased voter cynicism. The House should reject simplistic proposals such as Shays-Meehan, or efforts to amend the Constitution to destroy the right to free political speech, and move generally to deregulate political speech. It ought not be a crime to decommit politics'' in America.
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INSERT OFFSET RING FOLIOS 51 TO 55 HERE
Mr. CANADY. Thank you, Professor Smith.
STATEMENT OF GENE KARPINSKI, EXECUTIVE DIRECTOR, UNITED STATES PUBLIC INTEREST RESEARCH GROUP
Mr. KARPINSKI. Thank you, Mr. Chairman.
U.S. PIRG is a national advocacy office for State PIRG's across the country. PIRG's are nonprofit, nonpartisan citizen watchdog organizations that get involved in issues like consumer protection, environmental protection, and democratic reform. We're pleased to be before this committee today to talk about this important issue. We've testified before hundreds of committees in the last 25 years. Quite frankly, never before have we proposed before a committee an amendment to the Constitution; that's what we do before you today.
I want to talk briefly about three things. One, what is the problem with big money in politics? Two, what do we believe the solution should be? And, three, do we need a constitutional amendment to get there?
Page 182 PREV PAGE TOP OF DOC Quite frankly, we believe the courts have created a situation where citizens cannot pursue fundamental campaign finance reform without a constitutional amendment. Now we are not talking about proposing to amend the first amendment. What we are talking about is overturning a flawed decision, the Buckley decision of 1976.
First, what is the problem? The problem, from our perspective, quite clearly, is big money in politics threatens our democracy. The problem is that the entire system is predisposed toward interests of big money rather than the average voters.
But the problem is not fundamentally that politicians spend too much time raising money, nor is the problem that citizens use various means to attempt to influence who gets elected. In fact, the problem is not that citizens attempt to get access to and influence politicians. That's appropriate. That's what democracy is about. Citizens should hold politicians accountable.
No, we believe that the real problem in politics is more fundamental and corrosive of our democracy. Put simply, right now if election outcomes are determined by the amount of money spent, which they clearly are, and if private money is the source of campaign funding, which it clearly is, and the wealthy and special interests are allowed to give contributions of a size which are beyond the reach of average citizens, which they clearly are, then candidates who succeed, for the most part and in most cases, will be those whose ideas and positions appeal to the wealthy and to the moneyed special interests. They will raise the most money, and they will win. The moneyed and special interests determine who runs for office, who wins, and who has power afterwards. That's the way the current system works.
We have a solution to that problem, and our solution is to get big money out of politics. There are many ways to do it. We particularly support four key reforms.
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No. 1, let's reduce contribution limits to an amount that the average citizen can afford, no more than $100.
No. 2, let's make sure that the vast majority of contributions to a candidate come from their own constituents; no more than 25 percent of the money comes from outside the constituent's district.
No. 3, let's limit spending in elections.
And, No. 4, as others have proposed, let's allow free TV, free mail, and free radio to let candidates get their messages out.
These are fundamental reforms that we think will help the system. We supported in the past tax credits, as several have mentioned, to help encourage those small donations as well.
While key parts of that platform are being discussed on a regular basis around the country--citizens are outraged and they are angry--at the ballot box, quite frankly, those reforms are beginning to win. The public knows that unlimited money from big donors undermines our democracy, even if the courts do not.
In the last two election cycles, voters in five of those laboratories of democracy--Montana, Missouri, Oregon, Arkansas, and Colorado--passed initiatives, backed by the PIRG's, backed by large coalitions of other groups, that basically began to address that problem: get big money out of politics. All those initiatives set $100 contribution limits for most offices.
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In the little experience we've had since those elections, they've begun to work. There's been less spending, and yet more people are contributing to those candidates and more people are getting involved in elections. The problem is in almost every instance those laws are now being thrown out because of court challenges. Buckley stands in the way. Therefore, the third question, do we need a constitutional amendment, the answer is, quite clearly, we do because the courts aren't going to do it.
The whole idea of the first amendment was to guarantee that everyone's voice would be heard. The Court's reasoning elevates the voice of the wealthy and few and drowns out the voice of the many. The voices of ordinary citizens are being drowned out. Citizens in those States have said we want to change the system; we don't like the system; here's some proposals; we support them. And the courts have thrown them out. Therefore, we need a constitutional amendment to protect the will of the people, not to amend the first amendment.
We need to control big special interest money over politics, which is corrosive of the very fabric of our democratic way of life. The integrity of the democratic process is being threatened. Therefore, yes, we do support an amendment to the Constitution that gives Congress and the States the power to set limits on contributions and expenditures made to influence the outcome of any Federal election.
In closing, I'd like to point out that the essence of politics is to shape the law to serve the people. Many great social changes in American history were originally damned by the courts: abolition of slavery, women's suffrage, civil rights, and many more. Victory was only won by ordinary citizens coming back again and again at the ballot box and in the streets, and into the courts, if necessary, demanding to be heard.
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Our democracy is in grave danger because of big money in politics. The public is clamoring for reform. Wealthy special interests are the gatekeepers to the electoral process, and they decide who runs for office, who wins, and who has power. We have to change this, but the anti-democratic Buckley decision stands in the way. It's time to overturn Buckley, and a Constitutional Amendment is necessary to do so.
[The prepared statement of Mr. Karpinski follows:]
PREPARED STATEMENT OF GENE KARPINSKI, EXECUTIVE DIRECTOR, UNITED STATES PUBLIC INTEREST RESEARCH GROUP
BIG MONEY STRANGLES DEMOCRATIC PARTICIPATION
Good morning and thank you for inviting me to testify today. My name is Gene Karpinski, and I am the Executive Director of the U.S. Public Interest Research Group, U.S. PIRG, which is the national advocacy office for state PIRGs across the country. The PIRGs are nonprofit, nonpartisan grassroots citizen watchdog organizations which focus on environmental and consumer protection and democratic reform.
Both the PIRGs and I personally have worked on the issue of campaign finance reform for over twenty years. We see campaign finance as belonging to the core of the issues on which we work, and among the most important, if not the most important, issue determining our future as a democratic country.
Page 186 PREV PAGE TOP OF DOC I'm here to address three things: What is fundamentally the problem with the role of big money in politics? What is the solution? And do we need a constitutional amendment to achieve this solution? The last question particularly revolves. as you know. around the Supreme Court's flawed decision in the Buckley case. We believe that the courts have created a situation where citizens cannot pursue fundamental campaign finance reform without a constitutional amendment. We are not proposing to amend the First Amendment. hut simply to overturn the flawed Buckley ruling.
Unlike the distinguished other panelists here today, I am not a legal scholar. I am an activist, and I work with and represent thousands of other activists working full-time across the country on campaign finance and other public interest issues. These activists have collected hundreds of thousands of signatures to put campaign finance reform initiatives on state ballots, lobbied reforms through state legislatures, produced hundreds of reports documenting the problem of big money in politics, and spent countless hours organizing millions of citizens around this issue.
I. The Problem: Big Money in Politics Threatens Our Democracy
First, what is the problem? Our democracy is decaying and severely threatened by the dominance of wealthy interests in the political process. This past election saw at least 52.7 billion spent on elections, yet less than half of eligible voters chose to cast a ballot(see end note 1) the lowest number in more than 72 years.(see end note 2) The problem is that the entire system is predisposed toward the interests of big money, rather than average voters. The problem is not any number of things that some say it is. Let me further elaborate what the problem is not, because this is key to pursuing real campaign finance reform.
Page 187 PREV PAGE TOP OF DOC The problem is not, fundamentally, that politicians spend too much time raising campaign money. This is a problem, to be sure, reducing the time that elected officials spend on more important duties, but it is incidental--it is not the fundamental problem.
The problem is also not that citizens use various means, including donations, to attempt to influence who gets elected.(see end note 3) In fact, this is what a democracy is all about. The more the citizenry is engaged and involved in trying to influence the outcome of elections, the healthier the democracy.
Nor is the problem that citizens attempt to get access to and influence with politicians, meet the candidates at barbecues and spaghetti dinners, ask the candidates before they vote for or work for them what they can expect from them in return, etc.--this again is natural and desirable in a democracy. Voters should not only actively engage in electing politicians; they should also actively hold politicians accountable.
It is true that, when a politician slants a vote on an issue with a particular, economically self-interested donor in mind, the quid pro quo feel of such behavior offends our sensibilities. But the core problem is even more fundamental than that.
The real problem with the role of money in politics is more fundamental and corrosive of our democracy than any of these stated misformulations of the problem. It is simply this: If (a) election outcomes in a modern mass-communication society are largely determined by the amount of money spent on campaigning, and (b) private money is the source of campaign funding, and (c) the wealthy and special interests are allowed to give contributions of a size which are beyond the reach of average citizens, then it necessarily and inevitably follows that those candidates who will be successful are those whose ideas and positions appeal to the wealthy and to moneyed special interests. They are the candidates who will raise the most money. In the 1994 election, the last for which we have complete figures, approximately 80% of the money contributed to candidates came in amounts over $2003--significantly beyond the reach of average Americans. In fact, only one-quarter of one percent (0.25%) of all Americans currently contribute the majority of money raised by political candidates.(see end note 4)
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And, the candidates who raise the most money are the candidates who will win. In the 1996 House elections, the candidate who spent more money won in 96% of all races.(see end note 5) In addition to needing to spend more to win, candidates raise huge amounts of their contributions from people they don't represent in office. In one large state alone. California. candidates for the state legislature received 80% of their contributions from outside their districts in 1994.(see end note 6)
With this kind of influence accorded to big money in our political system. the candidates and the political parties will increasingly look alike on all issues of importance to moneyed interests. The rich and the moneyed special interests. The rich and the moneyed special interests will get their way in politics, and participate actively for that reason. And far too many average citizens will not participate, except perhaps on election day, and even then only out of habit and an admirable sense of civic duty.
If this picture sounds familiar. it is, because it is exactly what has been happening to American politics since the advent of television put an ever-increasing. premium on campaign spending. After 40 years of this trend, the dominance of big money is thorough. and our democratic system is in crisis.
I would add as well that in terms of the threat to our democracy, it is irrelevant how the total amount of money in the campaign finance system compares to some other facet of our economy, such as how much Americans spend each year on bubble gum or some other item. Everyone can afford bubble gum, but very few can afford to give thousands of dollars to candidates and parties to make sure their interests are represented by elected officials sympathetic to their concerns. The threat to democracy occurs because average Americans are pushed off the playing field of the politics that shape our lives.
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II. The Solution: Get Big Money Out of Politics, Through Concrete Reforms
The immediate solutions we propose, supported by huge majorities of the public, are fourfold:
Limit contributions to a size within the reach of average citizens, say a maximum of $100. With these limits, everyone is on a level playing field when it comes to participating in politics.
Limit the amount of money a candidate can accept from outside his or her district. to say no more than 25% of total fundraising. This limits the distorting power of money to only those who can at least vote for a candidate, and, in that sense, are appropriately entitled to seek to influence the election outcome.
(Had a 25% limit on out-of-district fundraising been applied to the 1996 candidates for federal office in California, their fundraising would have been cut in half.(see end note 7)
Limit spending. This indirectly has a leveling effect if limits are sufficiently low so as to allow candidates who do not depend on large contributions to nonetheless raise sufficient money to compete.
Finally, provide free TV, radio and mail to candidates.
Key elements of this platform have been supported overwhelmingly in recent years at the real polls that matter--at the ballot box. The public knows that unlimited money from trig donors dangerously undermines democratic politics, even if the courts do not. And, during the 1996 campaign, over 300 candidates for Congress signed onto a pledge sponsored by the PIRGs in support of this platform. As might be expected, the majority of those signing on were challengers, because they do not benefit from the current system.
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In the last two election cycles, voters in five ''laboratories of democracy''--MT, MO, OR, AR, and CO--have passed PIRG-backed initiatives that set $100 contribution limits for most state elections, by large margins--often two to one or greater. In 1992 voters in the District of Columbia voted into a law a similar measure. Over this time, either voters or state legislatures in CA, MA, ME, and AK have also passed contribution limits significantly lower than the current federal limits.
With few exceptions, though, these laws are not in force, because they have either been overturned in the courts or are currently being challenged in court. Courts have ruled that limiting big money in politics limits free speech, following the Supreme Court's wrongheaded Buckley decision.
In Oregon, after nearly three-quarters of voters (72%) passed Measure 9 on the ballot in 1994, individual contributors could give only up to $100 for state legislative candidates. and up to $500 for statewide candidates, and corporations were banned from making campaign contributions. The limits were in effect through the 1996 elections, and they worked quite well. Under these contribution limits, average spending on state races in 1996 fell to less than half the 1994 expenditures.
Some candidates disliked the new limits, while others enthusiastically took advantage of the fact that the new system required more citizen-based campaigns. With these limits, candidates had to spend more time at soccer matches and spaghetti dinners. meeting their constituents and raising contributions in amounts within the reach of average voters, in order to get their message out. This reinvigorates democracy.
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Prior to the passage of Oregon's Measure 9, campaign expenditures had been on a steadily and steeply climbing trajectory for years. After this success at reining in big money in politics, though, the Oregon Supreme Court ruled just a few weeks ago that the law's contribution limits violated free speech protections in the state (not the federal) constitution. As the state's major paper noted in reporting the decision, it ''returns the state's campaign finance system to a no-holds-barred past in which contributions of any. size are allowed as long as they are reported publicly.''(see end note 8)
Also in the 1994 elections, about three-quarters (74%) of Missouri voters passed Proposition A, which set contribution limits of $100 for most state races. Unfortunately, the federal court in Missouri overturned this voter initiative before it could take effect for fundraising for the 1996 elections. We believe, however, that its elects would have mirrored the dramatic change in Oregon politics.
In the Washington, D.C. example, low contribution limits led to more open and democratic elections. The 1994 City Council elections featured a 66% increase in the number of major candidates from the 1990, pre-limit elections (of candidates raising more than $1,000, from 24 in 1990 to 40 in 1994). And, although more candidates felt they could enter the arena, total contributions to candidates declined 23%.(see end note 9) With lower contribution limits, more citizens feel they can play on the electoral field. They aren't closed out by the chase for big money, which they know they couldn't win.
On this past fall's ballot, voters in Arkansas and Colorado passed $100 contribution limits by two to one margins. This margin mirrors that in other states where voters have expressed their opinion on getting big money out of politics at the ballot. These voter initiatives, too, though, have been challenged in court by opponents of real campaign finance reform.
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Voter support at the election polls mirrors recent public opinion polls on what the public wants to change with regards to the way campaigns are financed. In a Washington Post poll conducted last month, over four-fifths of those surveyed favored requiring House and Senate candidates to raise three-fourths of their money from their district or state, respectively. A similar number favored placing a limit on how much a candidate for the House or Senate could spend (79%).(see end note 10) Although there has been to date very little debate in the public at large about the flawed Buckley decision, many Americans already realize that something is deeply wrong with the lack of control on big money in politics. In the same poll, for example, 59% of the public supports a constitutional amendment to allow limits on contributions.
III. Do we need a Constitutional Amendment to achieve this solution?
Now I move to my third point--do we need a constitutional amendment to achieve this solution'? That depends on the courts, obviously. As this Committee is well aware, the Supreme Court, by equating spending money on the promotion of speech with speech itself, has ruled in Buckley and related decisions that limits on campaign spending and contributions are subject to First Amendment considerations. We believe that view is wrong.
We applaud the fact that others like Mr. Neuborne are trying to reverse that decision through the court process, and we wish them well. But I've been a professional vote counter for the last twenty years, and I'm not optimistic that such a route will meet with success any time soon.
In the case of contributions, the courts have gone on to hold that limits must be reasonable and weighed against one specific state interest--that of limiting quid pro quo corruption. Even if First Amendment considerations applied (and we believe they don't), we regard that narrow test to be insufficient. Other Constitutional considerations--of equal protection of the laws, of the integrity of the election process, and of the preservation of a democratic form of government--have been entirely ignored by these Court rulings. We believe the current system of campaign financing does far more violence to the Constitution in these regards than would spending and contribution limits supported by a majority of the body politic, and equally and fairly applied to all citizens and candidates.
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In fact, another legal approach being pursued in the courts to overturn the current dominance of big money in our campaign finance system focuses on the current ''wealth primary.'' To quote the legal organization attacking the current system with this argument, ''those who do not raise enough money--that is, those who lose the wealth primary--almost always do not win office.''(see end note 11) Just as the courts have struck down previous obstacles thought earlier to be constitutional, like the all-white primary and the poll tax, the wealth primary should be struck down as well.
In the case of spending limits, the Supreme Court has found them to be forbidden entirely. This is also unsupported by the Constitution, in our view, and is even inconsistent with the Court's own reasoning on contribution limits. (In a further exercise of the judicial imagination, spending limits have been allowed where they are technically voluntary, even if the conditions placed upon not accepting such limits, for example the denial of millions of dollars of public money, are so onerous as to doom a candidate who fails to make the ''right choice.'' The distinction between ''mandatory'' and ''voluntary'' is rendered a fine one indeed.)
In any case, our fundamental view is that a correct interpretation of the First Amendment does not forbid any limits whatsoever which the sovereign may wish to place on Campaign spending or contributions, so long as they apply equally and fairly to everyone.
The chief aspiration of the Bill of Rights was to protect the powerless from the abuse of concentrated power. Were the Constitution's framers alive today, they would surely regard the corruption of our democratic system by moneyed interests as the prime such abuse of power in our time. The Bill of Rights, properly understood, is not a bar to reform, it is a clarion call for reform. ''Get special interest money out of politics!'' is, today, the moral equivalent of ''Don't tread on me!'' some 200 years ago.
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The whole idea of the First Amendment was to guarantee that everyone's voice would be heard. Today, as always. everyone has one voice, but not everyone has the same amount of money. The Court's current reasoning elevates the voice of the wealthy few and drowns out the voice of the many--ordinary citizens. It should be reversed.
We and many others believe the Buckley decision is severely flawed, because it is deeply anti-democratic. The anti-democratic Buckley decision confuses money with speech. Neither the public at large nor many prominent constitutional experts find this to be the case. We believe emphatically that the anti-democratic Buckley decision must be overturned. for the sake of our democracy, by whatever means necessary. And, as you know, we are hardly alone in this belief.
For a number of years, Senators Hollings and Specter have introduced a bipartisan proposed constitutional amendment, with the express purpose of overturning the antidemocratic Buckley decision. In introducing the joint resolution for their amendment just last month, Senator Specter noted that fundamental campaign finance reform remains impossible without overturning the Buckley decision. He said, ''I believe that running for office should remain a matter of issues, tenacity, integrity and old-fashioned campaigning. Running for office should not become a simple function of money.''(see end note 12)
Senator Specter also noted in his remarks on the floor of the Senate that a growing group of prominent legal scholars have called for the reversal of Buckley. Led by Professor Ronald Dworkin of New York University School of Law, so far over 40 legal scholars have signed a statement that reads in part
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We believe that the Buckley decision is wrong and should be overturned. The decision did not declare a valuable principle that we should hesitate to challenge. On the contrary, it misunderstood not only what free speech really is but what it really means for free people to govern themselves.
We the undersigned call for the reconsideration and reversal of the Buckley decision.
The statement is signed by, among others, one of my fellow panelists today, Burt Neuborne, former President of the ACLU and currently professor of law at NYU; John Rawls, University Professor emeritus at Harvard; Bruce Ackerman of Yale Law School; Robert Aronson of the University of Washington Law School; and many others.
As one of your other panelists today, Lloyd Cutler, noted when he co-chaired the Committee on the Constitutional System with Senator Nancy Kassebaum and Douglas Dillon in 1988:
Even the Congress has found that unlimited speech can destroy the power to govern; that is why the House of Representatives has imposed time limits on Members' speeches for decades
... On three past occasions we the people have amended the Constitution to correct weaknesses in that rightly revered document as interpreted by the Supreme Court. On at least two of those occasions--striking down the Dred Scott decision and the decision striking down federal income taxes, history has subsequently confirmed that the amendments were essential to our development as a healthy, just and powerful society
... Accordingly, the Committee on the Constitutional System has come to the conclusion that the only effective way to limit the explosive growth of campaign financing is to adopt a constitutional amendment.(see end note 13)
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One month ago a bipartisan group of 24 state attorneys general called for the reversal of Buckley. The AGs, quoting the rationale in the Buckley decision to argue that the Supreme Court in fact reached the wrong decision, wrote that:
As state attorneys general--many of us elected--we believe the experience of campaigns teaches the lesson that unlimited campaign spending threatens the integrity of the election process. As the chief legal officers of our respective states, we believe that the force of better reasoning compels the conclusion that it is the absence of limits on campaign expenditures--not the restrictions--which strike ''at the core of our electoral process and of the First Amendment freedoms.''(see end note 14)
Former Senator Bill Bradley, as you likely are aware, has called repeatedly for a constitutional amendment to pave the way for real campaign finance reform. In an Appeal piece in The New York Times just after the most recent election, he noted the corrosive effect of equating big money with speech:
... the Supreme Court decision that prevents limits on campaign spending must be directly confronted, by amending the Constitution to make it clear that money does not equal free speech ...
... the spurious argument in the Court's 1976 decision in Buckley v. Valeo ... equated the right to spend unlimited amounts of money when running for public office with the right of free speech. In that case, the Court in effect said that a rich man's wallet deserved the same constitutional protection as a poor person's soapbox, and that limits on total spending hampered free expression.
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I disagree. Money is not speech. The right to speak freely is our nation's highest value, but democracy also requires protecting alternative voices from being drowned out by a flood of cash. Unless we set limits on total campaign spending, the powerful can continue to broadcast their voices, while the less powerful are barely heard. It is no infringement on anyone's right of expression to insure that citizens have an opportunity to hear a range of messages about America's future.(see end note 15)
Bradley challenges head on the absurd proposition that unlimited big money in politics is an expression of free speech. He highlights the point that while we must always respect the protection accorded by the First Amendment, there is more needed to ensure a healthy democracy than free speech alone.
He has also noted that ''Under the current system, Congress will inevitably listen to the 900,000 Americans who give $200 or more to their campaigns ahead of the 259 million who don't.''(see end note 16) In taking note of the widespread support for major reform like $100 contribution limits, he has noted that ''The worst consequence would be a resurgence of door-to-door campaigning, of politicians listening instead of polling, and of campaigns led by candidates and their ideas rather than consultants and their focus-group-tested messages.''(see end note 17)
In Buckley, the Court declared that a spending restriction ''necessarily reduces the quantity of expression by reducing the number of issues discussed. the depth of their exploration, and the size of the audience reached.''(see end note 18) The amount of money spent in modern campaigns bears almost no relation to the number of issues discussed or the depth of their exploration. Money buys chiefly repetition. And distortion. This is why the late constitutional law scholar Paul Freund wrote that spending limits are consistent with free speech ''We are dealing not so much with the right of personal expression or even with association, but with dollars and decibels. And just as the volume of sound may be limited by law, so the volume of dollars may be limited, without violating the First Amendment.''
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I would like to refer the Members of the Subcommittee to a recent article that highlights the danger to our democracy posed by big money in our political system. Professor Ronald Dworkin, writing in The New York Review of Books last October, details this danger in his article entitled, ''The Curse of American Politics.'' He focuses specifically on the problems posed by the Buckley decision, and the danger of not regulating campaign expenditures because of supposed infringements on the First Amendment.(see end note 19)
Dworkin points out that in a democratic system, meaning self-government by the people, citizens have two critical roles. The first, in their capacity as voters, is as final arbiters, referees, judges of the government that acts in their name. In this capacity, the free speech protection embodied in the First Amendment is critically important, to ensure that citizens have adequate information to make decisions about public questions and elected officials as they affect their interests.
Citizens have a second, equally important role in a democratic system. This is as active participants in the democracy, as candidates, activists, small contributors to citizen organizations and to candidates, and through other proactive participation in the process that shapes their community and nation. The Buckley decision, argues Dworkin, fails to address the need for a healthy democracy to protect the conditions necessary for this active role of the citizenry. You cannot have equal participation, which is necessary for democratic self-governance, when you have the unlimited influence of money in the political process, which is not equally distributed. Buckley is flawed, because it does not recognize this.
Page 199 PREV PAGE TOP OF DOC Thus, we and many others, for the various reasons outlined above, believe the Court was wrong, and that it should reverse its reasoning in Buckley. But if the Court's reasoning is not reversed, then a Constitutional Amendment is appropriate and necessary to allow limits which the people or their representatives may wish to place on campaign spending and contributions, including so-called independent expenditures, soft money, and/or a candidate's spending from personal wealth.
Such an Amendment would not ''amend the First Amendment.'' Such action is merely clarifying the First Amendment for federal judges (who were appointed, after all, by politicians elected under the current system of campaign financing), and spelling out in black and white what is already evident and commonsensical to the voters of America. Namely, that the control of big special interest money over politics is corrosive of the very fabric of our democratic way of life and must be ended.
We thus advocate an amendment that gives Congress ''the power to set limits on contributions and expenditures made to influence the outcome the outcome of any Federal election.'' and that gives the states the same unqualified power to set limits on big money in politics in their state elections. A copy of our proposed amendment language is attached to my testimony. We do not support weaker versions of a constitutional amendment that would only, we believe, continue to leave decisions about fundamental campaign finance reform to the courts rather than to the people and their elected representatives.
In closing, I would like to point out that the function of politics, indeed the essence of politics, is to shape the law to serve the people. Many if not most great social changes in American history were originally damned by the courts--abolition of slavery, women's suffrage, the 40-hour work week, anti-trust laws, civil rights, and many more. Victory was only not by lawyers figuring out how to do the good deed while appearing not to do in while hoping the courts wouldn't notice. Victory was only won by ordinary citizens coming back again and again, at the ballot box and in the streets, and then to the courts if necessary, demanding to be heard.
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Our democracy is in grave danger because of big money in politics. The public is clamoring for reform. The anti-democratic Buckley decision stands in the way of this. It is time to overturn Buckley, and a constitutional amendment is necessary to do so.
Statement from over 40 legal scholars in support of overturning Buckley v. Valeo.
24 State Attorneys General Issue Call for the Reversal of Buckley v. Valeo.
Draft Joint Resolution for a Campaign Finance Reform Constitutional Amendment
Essay by legal scholar Ronald Dworkin, ''The Curse of American Politics,''
Fact sheet with quotes: ''What They're Saying About a Campaign Finance Reform Amendment and the Need to Overturn Buckley v. Valeo.''
INSERT OFFSET RING FOLIOS 56 TO 69 HERE
Mr. CANADY. Thank you, Mr. Karpinski.
Page 201 PREV PAGE TOP OF DOC Mr. Mason.
STATEMENT OF DAVID M. MASON, SENIOR FELLOW, THE HERITAGE FOUNDATION
Mr. MASON. Thank you, Mr. Chairman.
I want to talk not so much about the judicial trends, but about why I think the Supreme Court was right in Buckley in the first place. But I want to start off with one observation about the facts here, and that is that the argument is that big money controls election. That basically is the argument for why we need campaign finance legislation, and I think that's a factual assertion that's simply wrong. However, it is a factual assertion that can be examined. I think we ought to be very careful about using social science to make laws, but this is one area where, if you take research political scientists and you ask them, ''What's the effect of money in elections,'' they will tell you almost invariably the iron law is that more money helps challengers. So the more money in general that's spent, the more money that goes to challengers, the more competitive elections are going to be, and that's why spending limits, no matter how designed and no matter how hard you try to make them equal, are a bad idea. You have the Government standing there putting their fingers on the scale and saying, ''Oh, we've got to count this and we've got to count that. We've got to count this other thing over here.'' But the effect of money is a factual question and you can look into that.
Now on the first amendment itself, I want to pose a question to you. The Committees of Correspondence that started the Revolutionary War, if those had had to register with the Government in London and report their spending, the outcome might have been a little bit different. Or, to take a more recent example, there were efforts in many Southern States to require the NAACP and civil rights organization to register and to disclose their contributions and spending, and the Supreme Court rightly said, no, we're not going to let you do that.
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And so I think we make a too casual assumption when we assume that the Government might not abuse the power to control who's going to speak, even through schemes like disclosure and registration. And so when we start talking about, well, disclosure of these issue ads, and so on, as the solution, we need to be very careful.
I'd also like to make an observation about campaigns, that sometimes politicians--I've run for office myself--have the feeling that the campaign is between you and your opponent, and that these other people on the outside shouldn't be allowed to interfere. But that's not the case. Citizens are not mere spectators in elections, and interest groups who have something at stake should be allowed to speak. And so the idea that we can only make spending limits work if we clamp down on everybody else's speech--which I agree, if you're going to make it fair, you've got to do that--becomes unworkable, and that is the enterprise that you have been embarked upon for the last 20 years. You started putting some limits. People started trying to get around them.
So I want to suggest that--I know you're all lawyers and examining the legal precedents is what you do, but we need to open our imaginations a little bit differently and apply some fundamental economics to elections analysis. People sort of recoil when I say, and Brad Smith says, if you deregulate, you're going to solve a lot of these problems. But, in fact, the history of regulation, the history of price controls, the history of spending controls, is that they become more and more complex, and they end up being counterproductive.
And just as when we deregulated the energy industry and transportation and other industries, costs came down, the same would happen in politics. It's counterintuitive. It takes a little work to go through the reasoning, but you can sit down and do a simple economic analysis of what's going to happen if you put spending controls on an industry, and the answer is that members of the industry are going to focus more on spending than they are on other things, like coming up with better ways to communicate. In other words, you've put all the focus on campaign regulation on money, and so rather than trying to figure out how to come up with better ideas or better ways to organize or better ways to get their message across, politicians and political parties focus on who can game the system to achieve a decisive advantage based on the amount of money that you raise.
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And so I don't think there's any way to back yourselves out of this problem by figuring out, well, can we solve it by putting limits on soft money or anything like that. That just gets you further entangled. You're going to have to find a way to back out through deregulation.
Finally, I'd like to go back to the Constitution and point out, when you're talking about the First Amendment, it is one of the most strikingly absolute things in the Constitution. It says, ''Congress shall make no law ....'' If you go through the other 10 amendments in the Bill of Rights, there's usually a condition or a cause or a reason: a well-regulated militia being necessary, you can't limit the right to keep and bear arms. The fourth, fifth, and sixth amendments are all procedural guarantees. The first amendment is absolute. So I don't think we need to be dancing around and saying, well, you know, if we could do it just this way, if we could adjust it just a particular way, we might be able to somehow get around Buckley. That's an enterprise I would urge you to reject.
Thank you very much.
[The prepared statement of Mr. Mason follows:]
PREPARED STATEMENT OF DAVID M. MASON, SENIOR FELLOW, THE HERITAGE FOUNDATION
Proposals to restrict advertising and other political activities have constitutional implications far beyond than the question of whether a limit on spending is, effectively, a limit on speech. Indeed, the Supreme Court has spoken definitively on this point already. The trend in Supreme court rulings since Buckley v. Valeo has clearly been toward narrowing the government's authority to regulate campaigns and campaign-related speech.
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Rather than discussing that trend in detail, for indeed, even judicial trends can be reversed, I want to comment on the fundamental, I would argue incontestable, correctness of the extremely high level of scrutiny courts have applied to campaign regulations. I would also like to suggest that the constitutional implications of campaign finance reform are beyond and, if possible, even more fundamental than the First Amendment, striking at the very root of our Constitution and our democratic political order.
Substantial new regulations on political activities are a direct attack on the very purpose of the First Amendment: the protection of unfettered political debate. Free speech and elections are the means by which citizens control the government. To have the government exercise ever more detailed, bureaucratic control over citizens' political activities is obnoxious to our very form of government. It is striking in reading the bills of particulars justifying the American revolution that not even the King tried in a sustained manner to suppress speech per se. I wonder, however, what the King might have done with a law, for instance, requiring the committees of correspondence to register with the government in London, or regulating the distribution of political pamphlets.
Article One, Section Four establishes the general principle that states control Congressional elections. The power of Congress to make exceptions to this general rule was hotly debated at state conventions called for ratifying the Constitution. We now see why: having established a comprehensive election code, Congress is urged to use it to restrict participation in elections. In fact, protecting against these very types of restrictions was the reason cited for giving Congress to power to override state election laws. States, it was argued by the Federalists, might abuse the power of setting election rules so as to control the composition of the Congress. The ''exception'' power of Congress was to provide self-defense for Congress. It is provident that we have had the courts to protect us when Congress exceeds the legitimate limits of its powers.
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The argument for government regulation is that politics has been hijacked by nefarious interests, and foreigners, overwhelming average citizens. But if citizens are unable, through voluntary and collective action, to address such problems, then the pretense of self-government has been abandoned: we are declaring citizens incompetent to make political choices, or to distinguish among competing arguments, without intervention by the government, which those very debates are supposed to control.
We would declare any general limitation on issue advertising or activity to be completely outrageous. Applied to the current campaign for the balanced budget amendment, the Harry and Louise ads, or any class of ads and grassroots efforts aimed at legislation in Congress, heavy regulation would be rejected out of hand. By what logic can the same sort of activity during election periods be subject to greater regulation? Free speech should be more, not less protected in election periods, yet most campaign finance proposals would concentrate speech regulation in election periods.
Posing a choice between government without newspapers and newspapers without government, Jefferson sided with newspapers: free speech being more important than any particular governing structure. Minority Leader Gephardt recently posed the same question, divining a ''fundamental conflict'' between free speech and healthy democracy, concluding that ''you can't have both.'' Representative Gephardt urges us to abandon free speech. This is reminiscent of those who would split the Declaration's proclamations of equality and liberty, trampling one in a misguided effort to achieve the other, and ending up damaging both. You cannot have a healthy democracy without free speech; limiting speech will assuredly lessen democracy.
Page 206 PREV PAGE TOP OF DOC America had this debate before. The Alien and Sedition Acts of 1798 were such a threat to democracy that Jefferson and Madison, authors of the Declaration and Constitution, flirted with Nullification in the Virginia and Kentucky Resolutions. Then as now, the government's effort to curb speech was linked to allegations about foreign influence. The Acts were passed in response to publication of the ''X Y Z correspondence,'' allegedly revealing a French plot against America. French immigrants were targeted for deportation and editors of anti-Federalist Party publications were targeted for prosecution. It is worth noting that the X Y Z letters were later determined to be fraudulent: a fact which might urge caution in the present circumstance before legislating based on reports of foreign intrigue.
In some senses the Sedition Act was milder than pending campaign finance schemes. That Act was targeted against anti-government writings, while current proposals target criticism of individual officeholders.. The Sedition Act provided a ''truthfulness'' defense, while current proposals treat some truths as unspeakable without prior notice to the government. And the authors of the Sedition Act, quite wisely given that they lost the next election, scheduled the act to expire prior to the inauguration of the next President and Congress. They knew full well how dangerous the power they were attempting to wield against their political opponents could be if used against themselves.
It is difficult to overstate the alarm with which our founders, Jefferson and Madison, viewed attempts by Congress to regulate speech. The Virginia Resolutions declare (with emphasis in the original) that regulation of speech is:
a power not delegated by the Constitution, but, on the contrary, expressly and positively forbidden by one of the amendments thereto,--a power which, more than any other, ought to produce universal alarm, because it is leveled against the right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed the only effectual guardian of every other right.
Page 207 PREV PAGE TOP OF DOC Virginia legislators recalled that their state, and others, would not have ratified the constitution without assurances regarding an amendment protecting freedom of speech, so fundamental was it to the union. They declared that it would be ''criminal degeneracy'' to fail to object to violations of the right to free speech. So absolute was the First Amendment prohibition on regulation of speech considered that the Kentucky Resolutions federal laws against libel to be impermissible. Legislators of the founding generation understood exactly how dangerous such powers could be.
It must be noted that the language of the First Amendment is strikingly absolute ''Congress shall make no law ... abridging the freedom of speech.'' The Second Amendment refers to the necessity of a militia; the third prohibits quartering of soldiers, except as ''prescribed by law''; the fourth protects against search and seizure, but permits warrants for that purpose; the fifth, sixth, seventh provide procedural guarantees; the eighth prohibits ''excessive'' fines and ''cruel'' punishments; the ninth and tenth reserve rights and powers, except as enumerated in the constitution.
Surely the ''time, place, and manner'' clause cannot be read against the First Amendment to permit restrictions on speech about elections. If states cannot keep certain candidates off the ballot under that clause, then how can Congress use it to justify laws prohibiting citizens from talking about such candidates?
Against this background, and given a long line a cases prior to Buckley protecting the intertwined rights of free speech and political organization, if anything, the Supreme Court erred in Buckley on the side of permitting too much government regulation, as subsequent cases expanding on Buckley implicitly acknowledge.
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I know that advocates of campaign finance regulation perceive a crisis threatening the foundations of self government. They thus seek to restrict and limit certain kinds of speech. In so doing, they would assuredly undo themselves and their own professed goals. But here to the founders show us another way. Madison and Jefferson originally proposed that states ''interpose'' their authority to nullify the objectionable federal laws. Perhaps realizing that the ''interposition'' schemes would mean the end of the union, Jefferson and Madison adopted instead a political response, forming the first American political party, making their case during a campaign, taking control of the government through elections, allowing the obnoxious Acts to die.
If American voters can no longer throw the bums out in response to scandals, then laws regulating campaigns and restricting speech are unlikely to help. Such laws have ever been the bane of outsiders and reformers, and are likely to make things worse. If the American political system has become corrupt, then citizens need to purge it. The corrupt government cannot, by definition, do so itself. Self-styled reformers who urge Congress to pass laws designed to achieve this political objective are attempting a short cut around the democratic process. Regulating democracy necessarily weakens it. Laws designed to ''clean-up'' the political process appear to be the easy road, but they lead to perdition. Our founders understood this, and we can be thankful that the Supreme Court largely has continued that understanding.
Mr. CANADY. Thank you.
Mr. CONYERS. Thank you, Mr. Chairman.
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I welcome especially Brent Thompson, formerly with Senator D'Amato, which means you didn't know anything about what he was doing when he was funneling Senate Republican money into the State Republicans. Remember that? OK, you don't remember that. OK.
Mr. Karpinski, my dear friend, let's talk about the constitutional amendment because other people here have said that it's going to be extremely difficult, and then let's talk about the Buckley decision which some parts of it were right and some parts of it were not right. Do you agree?
Mr. KARPINSKI. That's correct.
Mr. CONYERS. OK.
Mr. KARPINSKI. It's primarily wrongly decided, in our view.
Mr. CONYERS. Well, you didn't have any objection to limiting contributions?
Mr. KARPINSKI. That's correct.
Mr. CONYERS. Right. And you didn't have any objections to the upholding of the public funding principle?
Mr. KARPINSKI. That's correct. In fact, we've supported public financing, certainly.
Mr. CONYERS. OK. So it's part of Buckley that creates the problem. Now would you have any objection, since a majority of the panel before you, as you heard, support public financing, and have stated that the difficulty is, What do we do until we get a majority sufficient to actually put it in place--so what would we have to do to get you on that side of the issue?
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Mr. KARPINSKI. That's a fair question. By the way, let me point out, before I do that, just to thank you. We worked for years on motor voter registration, and, in fact, a classic example of our problem with our democracy. With your hard work over the last dozen years, we now have much more people registered to vote. The law doesn't work perfectly, but it works great, and we attribute it to you. And, yet, in this last election cycle less than 50 percent voted, the lowest turnout in a Presidential election in 72 years. So the system is damaged greatly, and it's severely threatened by big money.
Mr. CONYERS. That's why I asked you the question.
Mr. KARPINSKI. Just to say thank you for your great work----
Mr. CONYERS. That's why I'm asking you this question. All right, the question was, What do we have to do to----
Mr. KARPINSKI. Specific on the question of public financing----
Mr. CONYERS [continuing]. Get you on the side of those who want to do things interim that are constructive until we get to public financing?
Mr. KARPINSKI. In terms of supporting public financing or other interim steps? I'm not sure which question you're asking.
Mr. CONYERS. Both.
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Mr. KARPINSKI. Well, quite frankly, as the PIRG's have supported public financing and a whole range of measures in the last 25 years, I've been an advocate for them and supported it for the last dozen years. We have not seen this Congress pass any campaign finance reform of any size or shape since 1974. Our strategy--and it's working in many ways--is to go back to the laboratories of democracy, let the citizens use the power that they have in the States to write their own laws, put them on the ballot, and get them passed. Quite frankly, we'd support a national initiative process to have that process for the Congress as well, and that has that bipartisan support around the country as well.
So, in the meantime, we say let's go to the laboratories; let's pass laws that really make a difference: $100 campaign limits, in-district restrictions, spending limits that can be mandatory, free radio, air, mail. In Maine they had full public finance. All those are great ideas. We've been pushing the $100 in district spending limits----
Mr. CONYERS. That's good.
Mr. KARPINSKI [continuing]. And they've passed in every State they've been on the books.
Mr. CONYERS. I'm glad to hear that. Now let me ask you this: does our friend Ralph Nader--are you speaking in his behalf or do I have to have a special discussion with him about all we've said here?
Mr. KARPINSKI. Well, let me take a special case and say ''happy birthday'' to Ralph Nader. It's his birthday today.
Page 212 PREV PAGE TOP OF DOC Mr. CONYERS. Happy birthday, Ralph Nader.
Mr. KARPINSKI. I do not speak on behalf of Ralph Nader. The PIRG's were founded by Ralph Nader 25 years ago. We do not--whatever I say here is unrelated to what Mr.--we may agree on instances and not on others.
Mr. CONYERS. Sure.
Mr. KARPINSKI. We certainly don't agree on everything. So, no. No, if you want to get Mr. Nader's views, you should definitely get him before this committee, and I would never presume to speak for him. But we do think there are reforms that have been happening; they make sense, but they're being thrown out by the courts, and that's why we come and say we need a constitutional amendment. The laboratories----
Mr. CANADY. Without objection, the gentleman will have 2 additional minutes.
Mr. CONYERS. Thank you, sir.
OK, well, let me just see if I've summed this up right because you speak rather rapidly. Then we're not far off then? We both agree that public financing is a good thing if it could happen. You have your doubts, and so do I, about how soon it could occur. You believe in the $100 limit. You're in pretty good shape. You could sit in a room with the ACLU and our New York law professor, and I believe you guys could shape up something that we could all agree on. Is that fair?
Mr. KARPINSKI. Well, I'd like to think that's true, but the reforms that have passed in the States by overwhelming margins, supported by the PIRG's, are $100 contribution limits, which really change the system and say no more those large, wealthy interests that dominate the process. I do not believe the ACLU supports that. In fact, I know they don't support that. And, most importantly, the public clearly supports it; they voted for it every time it's gone to ballot. The problem is the courts in each instance are beginning to overturn those citizen-passed laws because of Buckley. That's why we come and say we need a constitutional amendment to overturn Buckley. So while I think that is a critical difference between us and what the ACLU might say, we think it's critically important to have lower contribution limits; they disagree with that, as far as I know.
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Mr. CONYERS. Thank you. Thank you for making those distinctions.
And thank you, Mr. Chairman.
Mr. CANADY. Thank you, Mr. Conyers.
Mr. HUTCHINSON. Thank you, Mr. Chairman, and I appreciate the panelists. I missed part of the testimony, but I did read your testimony that was submitted.
And, Mr. Thompson, I enjoyed your testimony that you provided in written form. You addressed the quid pro quo argument that was set forth in Buckley. I want to talk about to that in relation to soft money.
If I understand it correctly, the original Federal Election Commission Act prohibited corporate contribution to Federal candidates. This was upheld as being a constitutional and permissible restriction. Since then, you have unlimited and unregulated corporate dollars and labor dollars going to political parties, on which there's not any limit.
As a result of the Colorado decision and other decisions, the parties can spend unlimited money out of their soft money accounts, in essence, to aid candidates or to help defeat candidates. Now my question is----
Mr. THOMPSON. I don't think that's correct.
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Mr. HUTCHINSON. Pardon?
Mr. THOMPSON. I don't think that's correct. The Colorado decision dealt with independent expenditures which, so long as they're being undertaken properly, would be limited to Federal dollars.
Mr. HUTCHINSON. All right, I am correct, though, that there's not any limitation on political parties? I mean, that's been applied to political parties in this spending of soft money to influence candidates, campaigns?
Mr. THOMPSON. Well, that's partially the question with respect to banning soft money, is that, of course, soft money is not permitted to be spent on Federal elections under current law.
Mr. HUTCHINSON. Correct.
Mr. THOMPSON. So I would presume, then, that the spending that has occurred has been legal and that it has not gone to explicitly involve itself in Federal----
Mr. HUTCHINSON. It's being spent on issue advocacy.
Mr. THOMPSON. Well, among other things; I know there are a lot of transfers to State parties. There's a whole range, I think as Mr. Mason indicated, a whole range of activities that parties engage in, and without taking a look at where those expenditures went--I think we could certainly find out, it's all disclosed, and make a judgment on that.
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Mr. HUTCHINSON. Well, we all know what happened in the last election. I mean, the labor unions got involved in the campaigns. The political parties got involved in the campaigns. In many instances, the candidate is sitting there and watching the back and forth, the literally millions of dollars in money being spent on their race in which their pictures are being blasted all over the television sets, and they have no control over it, although it directly affects their election. And, you know, the point is there's not a quid pro quo argument that the corporations, the labor unions, are able to do that which was originally prohibited in the original Federal Election Act that the Supreme Court upheld, and that is to influence candidates' election with corporate and labor dollars.
Mr. THOMPSON. Well, the issue isn't whether a particular expenditure might influence a race. In fact, the Supreme Court in Buckley conceded as much, that, indeed, issue advocacy expenditures may well--in fact, can legitimately--influence them. The decision in Buckley, and upheld in Massachusetts Citizens for Life and subsequent lower court decisions, stated that so long as expenditures did not contain express advocacy, they were beyond the limits of Federal regulation.
Mr. HUTCHINSON. Do you believe there's any constitutional problem with limiting soft money?
Mr. THOMPSON. I think, as one panelist on the former panel indicated, the question in part is settled by what those expenditures would go for. I think that to the extent that the expenditures would be for issue advocacy, I think there's a real question there.
Page 216 PREV PAGE TOP OF DOC Mr. HUTCHINSON. Thank you.
Mr. Mason, you sort of started off our freshman task force, or at least encouraged it certainly, at the Heritage Foundation, which I think we've had success by the fact that we've actually met twice and we haven't abandoned the hope yet of doing something in campaign finance, and I'm grateful for your encouragement on that.
Let me ask you: is there any area of agreement that you see that the parties can reach that might be used in a incremental approach toward campaign finance reform?
Mr. MASON. Well, I'm delighted with your success thus far, and I would observe that I think incrementalism is really the answer. Leaving aside big reforms, there are some things you might be able to do. Certainly there are some ways in which you could limit soft money, and we've talked about that some, and whether you could ban it altogether I think is highly questionable, but that's the thing that changed the most in the last election cycle and that has gotten people most upset. And so I think that would be a productive way to look, if you want to sort of put a bandaid on the worst aspect of the system. But I don't want you to think that that's really going to take care of the fundamental problem. I think you need to look at----
Mr. CANADY. Without objection, the gentleman will have two additional minutes.
Mr. HUTCHINSON. What is the fundamental problem?
Mr. MASON. In my view, the fundamental problem right now is that we have too much Government regulation of the political process. Elections are the way citizens are supposed to control the Government, and we've got the Government with its hands, arms, up to its elbows, in telling you how you're running your campaign and telling other people how they can do things, and you inevitably get these regulatory distortions, this unfairness that you're talking about. The problem is the unfairness is the citizens' free speech right and the fact that you're limiting one person and not limiting another. So I don't think there's any way that we can come up with Government regulations that come out with a completely fair system. It's like our experience with having the Government regulate almost anything else; it's going to be unfair. And so if you're going to have regulations, they'd better be the bare minimum because you're never going to fix the system by adding one more regulation here and one more regulation there.
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Mr. HUTCHINSON. Well, you know, I just look at it that the public is really demanding, within the limits of constitutional requirements, that we do some reform, and I think that demand is justified. And I think we need to listen to them. I appreciate----
Mr. MASON. I'd say look at soft money.
Mr. HUTCHINSON. Pardon?
Mr. MASON. I'd say look at soft money.
Mr. HUTCHINSON. Very good. Thank you, Mr. Chairman.
Mr. CANADY. Mr. Scott.
Mr. SCOTT. Thank you, Mr. Chairman. I want to congratulate you for this hearing. This is a very complex area, and I think the witnesses we've had on the various panels have certainly talked to those complications. This panel, I think we have some that suggest that it's a very big problem, and others not a problem at all. I think most would agree that there's a problem; the question is whether or not we can solve it.
And assuming there's a problem, Mr. Karpinski, you indicated that there's a $100 limit in some of these States?
Mr. KARPINSKI. That's correct, in those five States citizens put initiatives on the ballot for $100 contribution limits for most races; they passed overwhelmingly, including in the State of Arkansas just in 1996.
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Mr. SCOTT. Now what is it a limit to?
Mr. KARPINSKI. Contributions to candidates----
Mr. SCOTT. OK.
Mr. KARPINSKI [continuing]. Or to the committees.
Mr. SCOTT. And is there any limit to coordinated expenditures or uncoordinated expenditures?
Mr. KARPINSKI. It would vary from State to State, depending on how they were written. Many had voluntary spending limits attached in terms of part of the proposal, but they weren't all exactly the same. The core, fundamental thing that united them all was small contribution limits that would then begin to----
Mr. SCOTT. The problem we run into is this--I think it was earlier described as the rock-in-jello situation, where if you put a limit of $100 to the campaign, then the big money that threatens democracy will just find another way to influence the campaign without going through the candidate's campaign coffers. It would go into issue advocacy or uncoordinated advocacy; it would still get there.
Without a limit on--certainly coordinated expenditures, a $100 limit would not be particularly effective.
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Mr. KARPINSKI. Well, we would certainly support other kinds of limits as well. I'm just reflecting the main, core provision of those pieces. Quite frankly, if you want to get at the problem that you're talking about, I don't see a way to do it without a constitutional amendment. I think that drives the discussion. If you really want to say big money in elections is the problem, and you want to address it head-on--and certainly we disagree with some of the panelists who suggest there's no problem; we agree with the public there's a big problem out there.
Mr. SCOTT. Well, there's a problem, but if you've got coordinated and uncoordinated expenditures, you've got an exemption for people that own a newspaper or a TV station; you've got party activities that kind of float around all of the campaign activities; you've got issue advocacy, where you can spend unlimited amounts of money blasting somebody for a vote, having an effect on the campaign, totally unlimited expenditures, and here you've got a candidate with a tiny, weeney, little campaign coffer who's trying to respond to this barrage of unlimited expenditure.
If you had a constitutional amendment and you did not address uncoordinated expenditures or issue advocacy, could you really get to where you're trying to get?
Mr. KARPINSKI. Well, the constitutional amendment simply allows the legislatures and the citizens in those States that can write their own laws to decide, then, what to do. The citizens--we have faith in the public, that they will make some right decisions to make sure that we preserve free speech rights and yet begin to regain the integrity of the democratic process. Certainly I think there are some things that Congress can do without any constitutional amendment as to independent versus not independent and whether they're coordinated, but I think having a constitutional amendment gives Congress here, State legislatures, and the citizens themselves, most importantly, where we believe the ultimate power to reside, to make those decisions. Right now you can't do some of those things.
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Mr. SCOTT. Well, I think most of the panelists have agreed that we can do something about soft money, which is the real big loophole that people seem to be getting through, and possibly voluntary public financing or limitations with some incentive is helping get us to where we want to go, but the other loopholes seem to be rock-in-jello problems.
Professor Smith, did you want to comment on----
Mr. BRADLEY SMITH. I'll make a couple of comments, if I may. One, on the question of soft money, it's been described several times today by several people as a loophole, and I suppose it is a loophole in the law in much the same way that a crosswalk is a loophole in the law against jaywalking.
Mr. CANADY. Without objection, the gentleman will have 2 additional minutes.
Mr. BRADLEY SMITH. It's a legal provision by which people can do certain things. And soft money, I'm not sure we really want to cut out all soft money. What is soft money used for? The Shays-Meehan bill, to take an example, would cut out the soft money for voter registration drives. That will help make sure we get good voter turnout. They want to cut out the use of soft money for voter phone banks, voter get-out-the-vote drives. That will make sure we get a good turnout. I know Mr. Karpinski's worried about that. They want to cut out soft money for slate card advertising, for example, a card that says ''our candidate for President is Clinton,'' and then goes down through the list to county commissioner, or whatever. And it strikes me that that's a rather absurd thing to do, that those are good things that parties ought to be doing, that they will help foster turnout, that they help foster discussion of public issues, that they help build strong parties.
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So there's been a lot of talk about soft money today, and I guess I would disagree with those who say that it might be something which can be addressed in a constitutional manner. But I would suggest that there might be a need for a little more caution than is shown, at least in the Shays-Meehan and similar type bills.
Mr. SCOTT. Do you see any problem with soft money where some individuals are giving $100,000 contributions?
Mr. BRADLEY SMITH. Well, I mean, if you're asking me, I----
Mr. SCOTT. In a Federal election where everybody else seems to be limited to a $1,000 contribution?
Mr. BRADLEY SMITH. I tend to agree--well, I mean, I would suggest that it would be nice to take those other limits off or at least raise them, at least to keep pace with inflation at a minimum. I tend to agree with Mr. Karpinski that I have faith in the public. The difference is he has faith in the public when they argue for campaign finance reform. And, by the way, there's polls showing, for example, that the majority of people in Maine would have voted against the PIRG ballot issue there, had they realized it called for public financing, and they didn't understand that from the language that appears on the ballot, a very simplistic language.
But I have faith in the public at the voting booth. I think when they go in, they can make a reasonable decision as to whom they want to vote for. And what's never been explained to me is who it is that is not--which of you are not representing your districts consistently, yet managing to get reelected? My question is always: ''Which views are we not hearing in American politics?'' We hear all views all the time, and nowadays with a minimum of capital you can get on the Internet, you can download a bill, put your comments on it, and ship it off to thousands of people.
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I would use an analogy to describe some of what I hear from PIRG and groups like that. I would use an analogy that my law professor and former Solicitor General, and now Massachusetts Supreme Court Justice Charles Freed uses. He says these people really are like small children who whine, ''You're not listening to me,'' when what they really mean is, ''No matter how much I carry on, you won't agree with me.''
Mr. KARPINSKI. Mr. Scott, if I might for one second--we agree with you that soft money is a problem, and we actually think Congress in this year could deal with the soft money problem. Our point, though, is that's only a small part of the bigger problem. That does virtually nothing about the big money in congressional campaigns right now. It's about the presidential system primarily. It doesn't do the things we support in low contribution limits, in-district limits, and spending limits. So we support soft money limits. We think you should have the same kind of contribution as you have on hard money, and you can do that today. I don't think the Constitution is a barrier to that. All we're saying is that's not nearly enough to solve the problem.
The citizens in those States have passed initiatives that really get at the core problem, but they're being thrown out by the courts. That's why we need a constitutional amendment.
Mr. CANADY. Thank you. The gentleman's time has expired.
Let me conclude by continuing the discussion of soft money, which has been going on for some time now. Let me go back to Professor Smith, and let me ask you, Professor Smith, what constitutional constraints, aside from the policy concerns you might have, what constitutional constraints do you believe currently exist that would limit the ability of the Congress to restrict the receipt of soft money by the parties?
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Mr. BRADLEY SMITH. Well, again, I think the real question goes to the fact that soft money is used for issue advocacy, and so to restrict the spending is a problem, but you asked about----
Mr. CANADY. I'm asking about the receipt----
Mr. BRADLEY SMITH. You're asking about the receipt of soft money. I suspect that you can make an argument that it can be restricted. I would point out that the reason the Court has allowed for restricting contributions is the appearance or the reality of quid pro quo corruption. Amounts that are given to a political party which exists for the purpose of helping its candidates, and which is a broader sort of organization, and which does not itself vote as the party per se but relies on its members and candidates to vote, I think the argument for corruption is not nearly so strong. I think soft money contributions, to the extent you're worried about corruption, are better than direct contributions.
Mr. CANADY. Well, the only thing I'll say, I seem to have seen a little information lately about candidates being involved very directly in raising soft money and taking--at the highest levels. I don't want to step on any toes, but I think anyone reading the papers would see that.
Mr. BRADLEY SMITH. My response--I mean, my response should be twofold. First, that's a relatively small number of people. In other words, you're----
Mr. CANADY. Relatively important people.
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Mr. BRADLEY SMITH. Yes, it is relatively important people, but, again, it is not the position that the typical Representative is in, and we don't want to--I know that we--you know, we might try to craft something that limits only certain people.
But the other thing is----
Mr. CANADY. Well, it's not a limitation--again, it's a limitation on what the parties can receive. But do you--let me--you said you thought an argument might be constructed to justify it. If we said parties can receive--are limited to--or an individual contributing soft money to a party or a corporation contributing soft money to a party can contribute no more than $10,000 to the party, do you think that there would be a serious constitutional challenge to that?
Mr. BRADLEY SMITH. I think you could probably do that.
Mr. CANADY. OK. But you'd disagree with that, Mr. Thompson? I'm not asking--again, I'm interested in the policy as well, but I'm primarily interested in the constitutional aspect of it.
Mr. THOMPSON. Well, I think we know from the Austin case, 1990, that States may ban corporate independent expenditures. We know also, however, from the 1978 Bellotti case that a ban on corporate contributions and expenditures to influence votes on ballot measures is unconstitutional. We do know that corporations have the right to engage in issue advocacy, and we do have a developing reanalysis of the limitations, permissible limitations, on parties that we'll probably see within the year, if Colorado goes back up, with the question of whether the coordinated expenditures violate the party's free speech rights.
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Mr. CANADY. Again----
Mr. THOMPSON. So it is clearly in flux, I believe.
Mr. CANADY. Again, but I think all of those things you're talking about focus on the expenditure side as opposed to the contribution side, and----
Mr. THOMPSON. Well----
Mr. CANADY. I'm looking for--if there's--I want to find the best argument there is that there might be a problem. I just want to have a good understanding of whether the focus on soft money has constitutional problems with it.
Mr. BRADLEY SMITH. Let me suggest this: you can spend unlimited amounts on issue advocacy, and so to the extent that soft money is used for issue advocacy, it may be very difficult to suggest that you can limit contributions to parties to use as issue advocacy, just as it's very difficult--I think it would be difficult to limit contributions to the Sierra Club or to the NRA, or whoever you want, for them to go around telling the public to vote against gun control or to vote in favor of these environmental controls.
Mr. CANADY. Well, thank you. I appreciate that. If any of you have additional thoughts on the subject of soft money and the constitutional implications that you wish to submit in written form, we would certainly be interested in that.
Page 226 PREV PAGE TOP OF DOC Again, I want to thank each of you for taking the time to be here. Your testimony has been very helpful to the subcommittee. We, hopefully, will see some of you at a hearing in the future.
And I appreciate the members of the subcommittee who were able to be here.
The subcommittee is adjourned.
[Whereupon, at 2:14 p.m., the subcommittee adjourned.]
A P P E N D I X
Material Submitted for the Hearing
INSERT OFFSET RING FOLIOS 70 TO 76 HERE
FREE SPEECH AND CAMPAIGN FINANCE REFORM
Page 227 PREV PAGE TOP OF DOCSUBCOMMITTEE ON THE CONSTITUTION
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTH CONGRESS
FEBRUARY 27, 1997
Serial No. 15
Printed for the use of the Committee on the Judiciary
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr., Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
Page 228 PREV PAGE TOP OF DOCHOWARD COBLE, North Carolina
LAMAR SMITH, Texas
STEVEN SCHIFF, New Mexico
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB INGLIS, South Carolina
BOB GOODLATTE, Virginia
STEPHEN E. BUYER, Indiana
SONNY BONO, California
ED BRYANT, Tennessee
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRISTOPHER B. CANNON, Utah
JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
CHARLES E. SCHUMER, New York
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
Page 229 PREV PAGE TOP OF DOCZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
STEVEN R. ROTHMAN, New Jersey
THOMAS E. MOONEY, Chief of Staff-General Counsel
JULIAN EPSTEIN, Minority Staff Director
Subcommittee on the Constitution
CHARLES T. CANADY, Florida, Chairman
HENRY J. HYDE, Illinois
BOB INGLIS, South Carolina
ED BRYANT, Tennessee
WILLIAM L. JENKINS, Tennessee
BOB GOODLATTE, Virginia
BOB BARR, Georgia
ASA HUTCHINSON, Arkansas
MELVIN L. WATT, North Carolina
MAXINE WATERS, California
JOHN CONYERS, Jr., Michigan
JERROLD NADLER, New York
Page 230 PREV PAGE TOP OF DOC
KATHRYN HAZEEM LEHMAN, Chief Counsel
KERI D. HARRISON, Counsel
JOHN H. LADD, Counsel
ROBERT CORRY, Counsel
C O N T E N T S
February 27, 1997
Canady, Hon. Charles T., a Representative in Congress from the State of Florida, and chairman, Subcommittee on the Constitution
Bopp, James, Jr., Esq., Bopp, Coleson & Bostrom
Cutler, Lloyd N., Esq., Wilmer, Cutler & Pickering
Frank, Hon. Barney, a Representative in Congress from the State of Massachusetts
Gephardt, Hon. Richard A., a Representative in Congress from the State of Missouri
Glasser, Ira, executive director, American Civil Liberties Union
Karpinski, Gene, executive director, United States Public Interest Research Group
Mason, David M., senior fellow, the Heritage Foundation
McConnell, Hon. Mitch, a Senator in Congress from the State of Kentucky
Neuborne, Burt, legal director, Brennan Center for Justice, New York University School of Law
Page 231 PREV PAGE TOP OF DOC Smith, Bradley A., associate professor of law, Capital University Law School
Thompson, Brent, executive director, Fair Government Foundation
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Bopp, James, Jr., Esq., Bopp, Coleson & Bostrom: Prepared statement
Cutler, Lloyd N., Esq., Wilmer, Cutler & Pickering: Prepared statement
Gephardt, Hon. Richard A., a Representative in Congress from the State of Missouri: Prepared statement
Glasser, Ira, executive director, American Civil Liberties Union: Prepared statement
Karpinski, Gene, executive director, United States Public Interest Research Group: Prepared statement
Mason, David M., senior fellow, the Heritage Foundation: Prepared statement
McConnell, Hon. Mitch, a Senator in Congress from the State of Kentucky:
Letter dated February 20, 1997, from Joel M. Gora, professor of law, Brooklyn Law School, and counsel, American Civil Liberties Union
Neuborne, Burt, legal director, Brennan Center for Justice, New York University School of Law: Prepared statement
Smith, Bradley A., associate professor of law, Capital University Law School: Prepared statement
Thompson, Brent, executive director, Fair Government Foundation: Prepared statement
Material submitted for the hearing
end note 1 return
1. ''The System Cracks Under the Weight of Cash,'' Ruth Marcus and Charles R. Babcock, The Washington Post, February 9, 1997.
end note 2 return
2. This is down 5% from 1992. Boston Globe, December 2, 1996, and Washington Post, November 15, 1996.
end note 3 return
3. ''The Price of Admission.'' Center for Responsive Politics.
end note 4 return
4. Center for Responsive Politics Analysis, 1996.
end note 5 return
5. PIRG analysis of FEC data.
end note 6 return
6. ''Mr. Smith Goes to Washington_For Cash: Out-of-District Contributions to California Congressional Candidates_19951996,'' CALPIRG, October 23, 1996.
end note 7 return
end note 8 return
8. ''Court tosses campaign limits.'' Steve Suo, The Oregonian, February 7, 1997.
end note 9 return
9. ''Study Shows Initiative 41 Has Positive Impact on City Elections_Analysis of Council Elections Rebuts Claims of Contribution Limits' Critics,'' press release, February 14, 1996, Center for a New Democracy.
end note 10 return
10. Washington Post poll, based on random telephone interviews with 807 adults between January 1419, 1997, conducted by Mario Brossard.
end note 11 return
11. ''Challenging the Wealth Primary: Continuing the Struggle for the Right to Vote,'' National Voting Rights Institute, Boston, MA, April, 1995.
end note 12 return
12. ''Sen. Specter Joins Sen. Hollings in Introducing Constitutional Amendment on Campaign Finance Reform,'' press release from Senator Arlen Specter, January 21, 1997.
end note 13 return
13. Statement of Lloyd Cutler before the Senate Judiciary Committee, Subcommittee on the Constitution, March 17, 1988; cited in the Congressional Record_Senate, February 14, 1995, p. S. 2638.
end note 14 return
14. ''24 State Attorneys General Issue Call for the Reversal of Buckley vs. Valeo,'' press release, State of Iowa, Department of Justice, January 28, 1997.
end note 15 return
15. ''Congress Won't Act. Will You?'' Op-Ed, By Bill Bradley, The New Fork Times, November 11, 1996.
end note 16 return
16. ''The politics of money,'' Bill Bradley, Houston Chronicle, July 14, 1996.
end note 17 return
17. ''Testimony before Senate Committee on Rules Re: S. 1528, The Senate Campaign Finance Reform Act of 1996,'' Senator Bill Bradley, February 1, 1996.
end note 18 return
18.424 US 19.
end note 19 return
19. ''The Curse of American Politics,'' Ronald Dworkin, The New York Review of Books, October 17, 1996.