The Federalist Society

Campaign Finance "Reform": A View from Capitol Hill

Free Speech & Election Law Practice Group Newsletter - Volume 1, Issue 1, Fall 1996

December 1, 1996

Mitch McConnell

The campaign finance "reform" movement is intellectually bankrupt. It has not had an original idea in three decades. Even its sound bites are stale. Nevertheless, the issue will limp along into the foreseeable future, thanks to a scandal-hungry media and self-serving politicians.

The professional reformers' shameful disregard of the First Amendment -- America's premier political reform -- should put them at odds with those for whom the freedom of speech is most lucrative: the media. Yet, the reformers are media darlings. Evidently, the only First Amendment freedom many in the media care about is their own. And consider this: if competing voices in the political process were muted through "reform," the media's power would be amplified. Perhaps their motivation is rather more self-interested than they let on. In any event, as long as this alliance with the media exists, campaign finance "reform" will be a vehicle for political opportunists and demagogues.

As the Supreme Court ruled in the Buckley v. Valeo case two decades ago and reaffirmed in this summer's Colorado Republican Federal Campaign Comm. v. Federal Election Commission decision, campaign finance is at the core of the First Amendment's protection of free speech.

This constitutional truth is maddening to the self-anointed "reformers," who see every First Amendment freedom in campaign financing as a terrible "loophole" which must be closed. This First Amendment inconvenience enrages the reformers and impedes their effort to have the government micro-manage virtually every aspect of Americanpolitics, from rationing speech in congressionally-calibrated amounts to regulating the content and format of political advertisements.

Freedom-loving Americans of all ideological persuasions should be horrified by the professional reformers' ambition to force a bureaucratic takeover of the American political process. However, the reformers' rhetoric is carefully designed to mislead and inflame the public with sure-fire applause lines.

They loudly decry "the money chase," even though the facts prove that it exists only in their fevered imaginations. They bemoan the average cost of a winning campaign, saying it forces Senators to raise $15,000 a week, every week, for their entire six-year terms. But those figures say as much about the state of campaigns as Census Bureau figures do about the makeup of the average family. In America, there is an average of 1.8 children per family, but there of course is no such thing as an American family with 1.8 children -- just as there is nosuch thing as a Senator who raises $15,000 a week, every week, for his or her entire six-year term.

The fact is that in the past five Senate elections, Senators running for reelection raised over 80 percent of their campaign funds in the last two years of their term. Some raise a big chunk of it from a single event in which the President swoops down in Air Force One for a million-dollar fundraiser. Some Senators have very successful small-donor direct-mail fundraising operations which require little of their time and no interaction with donors. Most Senators utilize a mixture of these and other means of raising funds, resulting in an average contribution amount that is far less than the legal maximum.

The "money chase" is rhetoric, not reality. But if there is any truth to it at all, it is because of the added difficulty imposed by the 1974 contribution limits. The individual contribution limits should be adjusted for inflation. Nevertheless, fundraising is not the all-consuming task reformers say it is. Senators still find time to cast hundreds of votes every year, attend dozens of hearings, sit through countless meetings, and spend most weekends in their home states with their constituents.

Let us deal with another one of the reformers' favorite fraudulent sound bites. "Legalized bribery" is an oxymoron utilized by Washington's reform industry that is useful to incite rather than enlighten. Bribery is illegal, period. And whether a favor is in exchange for cash wired to a Swiss account, dinner at a fancy restaurant, a favorable editorial, or a campaign contribution, an official so corrupted has run afoul of U.S. criminal law, and the House and Senate rules of official conduct. There is no "legalized bribery" allowed by federal law or the official codes of conduct, and the reformers have yet to find a single example to the contrary.

It is cowardice, not corruption, that is rampant in Washington. But where corruption exists, the laws already exist to deal with it.

All this irresponsible and baseless rhetoric by the reformers is intended to justify an unprecedented bureaucratic power grab with spending limits at the core. The spending limit formula contained in the McCain-Feingold bill (S. 1219) recently defeated in the Senate is itself nonsensical: 30 cents times the voting age population less than 4 million plus 25 cents times the voting age population greater than 4 million plus $400,000 equals the general election limit. And there are more qualifications: in the case of New Jersey, "80 cents" and "70 cents" are substituted for 30 and 25 in the spending limit formula. Moreover, the formula notwithstanding, the minimum general election limit is $950,000 and the maximum $5,500,000. The primary election limit equals 67 percent of the general election limit. The runoff election limit is 20 percent of the general election limit. And one must not forget the out-of-state contribution limit, which confines such funds to 60 percent of the overall spending limit.

If a non-complying candidate exceeds the "voluntary" spending limit, then the complying candidate's spending limit is increased in corresponding chunks. And independent expenditures over $10,000 trigger a dollar-for-dollar higher spending limit for whichever complying candidate Federal Election Commission bureaucrats perceive as harmed. This independent expenditure provision is constitutionally hideous and suggests a host of interesting scenarios. Clearly, the era of big government is not over.

There is no rationale for the figures used in the reformers' spending limit formula. It would require an army of bureaucrats to administer, enforce and audit. And the entire exercise would be sheer folly. Campaign spending limits such as we have in the current presidential system are like a rock on jello -- the money just oozes out the sides into undisclosed and unlimited channels.

Spending limits on candidates do have surface appeal for the public. However, the taxpayer-financing component (a carrot in return for compliance) which the courts have ruled is necessary in order to make a spending limit system truly voluntary (hence, constitutional) is as unpopular as congressional pay raises. Just a few years ago, Democrats were proposing taxpayer-funded "communication vouchers," but after Republicans characterized these vouchers as "food stamps for politicians" the scope of the giveaway quickly diminished. The truth stung.

To avoid direct taxpayer financing in congressional campaigns, the reformers have had to resort to all manner of complicated schemes, including unfunded mandates on the broadcast industry and postal service. In 1993, Senate Democrats went so far as to substitute taxation for taxpayer financing, requiring that candidates who did not comply with the "voluntary" spending limits would have to pay the corporate income tax rate on their campaign funds. That scheme was about as "voluntary" as a mugging victim's decision to hand over his wallet while looking down the barrel of a shotgun. In other words, in the name of "reform" the reformers would trash the Constitution. In a cynical debate where poll numbers are flung around as if they matter more than the First Amendment, I have been heartened by growing evidence that the Constitution still resonates with the American people. The Tarrance Group conducted an extensive survey of one thousand registered voters this past April, which found that 86 percent would be less likely to vote for a lawmaker who voted for campaign finance reforms found to be unconstitutional. This was the most powerful argument tested against campaign finance "reform."

In the 104th Congress, the old liberal Democratic bills were dusted off and reintroduced with new lead sponsors -- Republicans this time -- in the Senate and House. Once again, the bulk of the cosponsors were Democrats. The veneer of bipartisanship was given credence in the media, even though the Chairman of the Republican National Committee and the vast majority of Senate and House Republicans were vociferously opposed.

Six months after a democratic President declared that the "era of big government is over" and barely a month before passing legislation to "end welfare as we know it," the Senate debated -- under the guise of campaign finance "reform" -- whether to create a new entitlement for politicians. Like its predecessors, this latest effort ran up against an unbreakable filibuster. Nevertheless, it is disturbing that such a discredited proposal even saw the light of day. Such is the appeal of populist gloss.

The "reform" label is a powerful magnet for politicians running against "politics as usual." So long as the media persists in sensationalizing the campaign finance issue and turning a blind eye toward the constitutional implications, it will bubble up in some form every Congress.

Until this year, there has been little downside to supporting these unconstitutional bills. Fortunately, the political free ride is beginning to end. Private citizens and groups whose right to participate in politics would be severely diminished are starting to speak up against these proposals. Two-thirds of the campaign finance bill in the Senate this year was aimed not at candidate spending but at private citizens and organizations that participate in elections through independent expenditures and political action committees.

Groups ranging from the American Civil Liberties Union to the Christian Coalition to the National Education Association are getting serious about opposing "reform" efforts that would cutcitizens out of the democratic process. Their presence in the debate this year was keenly felt. I expect to be working with them again in the next Congress, to head off another assault on political freedom in America. And should such an unconstitutional scheme as we defeated this summer ever become law, I will work with them to kill it once and for all in the courts.

*Senator McConnell (R-KY) is Chairman of the Senate Ethics Committee.


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