A Constitutional Campaign Finance Plan

Free Speech & Election Law Practice Group Newsletter - Volume 2, Issue 1, Spring 1998

May 1, 1998

Michael W. McConnell

Reprinted with permission of The Wall Street Journal © 1997 Dow Jones & Company, Inc. All rights reserved.

We take the unusual step in this issue of reprinting an article that appeared earlier in a different publication, but we think Professor McConnell’s ideas merit further attention. We say that, not necessarily because we agree with all that he says, but rather because his proposal on how to address the vexing issue of campaign finance reform is two things such proposals rarely are - provocative, and respectful of the First Amendment. And because it is provocative, we invite readers to submit for publication in our next issue reactions to Professor McConnell’s proposal. Professor McConnell, in turn, has agreed to address your responses. So please let us know your thoughts - send them by email, fax, or regular mail to either of the editors, William McGrath and Allison Hayward, or to the Federalist Society headquarters.

Janet Reno’s refusal to seek an independent counsel to investigate Clinton fundraising is likely to refocus debate on systemic campaign finance reform. Senate Majority Leader Trent Lott yanked the McCain-Feingold campaign finance reform bill off the agenda for this year. But thanks to Democratic filibustering, the bill will be back before Congress next spring. The result will be the same. Republicans will refuse to support legislation unless it prevents labor unions from using coerced dues from workers; Democrats will refuse to support it if it does. Stalemate.

The disagreement over union money is only the public face of a deeper and more intractable problem. Everyone can agree that the present system needs to be changed, but most proposals for "reform," including McCain-Feingold, would probably make matters worse.

And such efforts to control political speech inevitably founder on the shoals of the First Amendment. It may be constitutional to restrict contributions to candidates or political parties (though most First Amendment purists doubt even this). But restricting direct contributions simply forces would-be contributors to find indirect means of supporting candidates. To be effective, therefore, the restrictions have to extend far beyond limits on contributions.

The Very Core

McCain-Feingold, for example, would make it a crime to run an advertisement stating your views on the candidate within 60 days of the election. Under no coherent reading of the Constitution could it be permissible to prohibit citizens and voluntary associations from attempting to persuade their fellow citizens how to vote. That is the very core of the First Amendment.

What’s more, these proposals would make it even more difficult for challengers to mount effective campaigns against incumbents, who enjoy built-in advantages of media access, taxpayer-funded mailings, name recognition and constituent service. Nor would public financing solve the problem. There is no neutral formula for allocating funds, and most proposals would favor the candidates of the two major parties at the expense of all others.

We need to be clear about the problems with the current system and about the purpose of reform. The problem is not too much campaign speech. Nor is the problem that "special interests" are using their resources to influence public opinion. That’s what freedom of speech is all about. Pro-lifers, environmentalists, and free-traders have a right to make their opinions known to the public. All of us are "special interests."

The problem is that elected officials use the powers of office to extract contributions and hence to perpetrate themselves in office. (That is why the prohibition on the use of publicly funded telephones, offices, and computers for partisan fundraising is more than just a technicality.) The flip side of this is that contributors seek to influence public policy not by persuasion but by currying favor with officeholders. Roger Tamraz contributed hundreds of thousands of dollars to the Democratic Party not because he believes in its philosophy of government. He did it in hopes that the Clinton administration would return the favor.

As the Supreme Court held in Buckley v. Valeo, there is no constitutional barrier to laws designed to combat this kind of corruption. Americans have a First Amendment right to do what we can to sway public opinion, but not to buy privileged access to our leaders by giving money to their campaigns.

I have not seen any plausibly comprehensive solution to this problems, and I suspect that no such solution exists. But there are reforms that would reduce the opportunities for official corruption without infringing free speech rights or further entrenching incumbents. Instead of repeating the McCain-Feingold standoff, I suggest that Congress consider more productive proposals.

First, Congress should enact tax credits for modest political contributions (refundable, so that the poor have equal opportunity). Limits of perhaps $250 per candidate, with a $1,000 annual cap per tax-payer, would be about right. This would make it easier for candidates to raise money from ordinary people, and easier for ordinary people to participate in politics through contributions. It would be the equivalent of partial public financing, but without government control over how the funds are divided. The cost would be small change in today’s budget.

Second, Congress should abolish political action committees and raise limits on individual contributions. The wrong-headed campaign reforms of the 1970s placed strict limits on individual contributions - but allowed PACs to aggregate contributions and donate them to candidates in $5,000 units. This "reform" magnified the power of interest groups and lobbyists and restricted the influence of individuals.

Individuals have many different opinions and interests, and unless their contributions are large enough to warrant invitation to a White House coffee or its equivalent, the candidate does not necessarily know what those interests are. The interests of a PAC lobbyist, by contrast, are all too clear. It also bears mention that PACs give almost 13 times as much money to incumbents as to challengers - a sure sign that the purpose of the contribution is to buy influence rather than to persuade voters.

A more radical proposal is to create a mechanism for anonymous contributions above the ordinary legal limit. If a candidate does not know who made the contribution, then there is no possibility of improper influence. This would also bolster the argument that contribution limits are constitutional. If everyone is free (within certain generous limits) to contribute to the candidate of his choice, then the only question is whether there is a constitutional right to make one’s generosity known to the candidate. That is not freedom of speech. The constitutional right is to persuade one’s fellow citizens - not to make an officeholder grateful. To be sure, there may be practical problems in ensuring anonymity. Contributors are extraordinarily clever about evading the laws in this area. But I think campaign nondisclosure merits serious consideration.

Fourth, Congress should ban campaign contributions for a certain period - perhaps six months - after Election Day. The postelection fundraiser, where lobbyists scurry to placate the winner, may be the most undisguised form of influence peddling in our entire system. It is particularly disgusting to see lobbyists who supported the loser suddenly switch sides. This abuse can be banned without injury to freedom of speech. Postelection contributions cannot possibly serve the function of persuading our fellow citizens how to vote. It is simply a way for the holder of public office to use his position for personal political advantage - and for lobbyists to curry favor without any danger that the other side might win.

Specified Period

An extension of this idea would be to require all political campaign contributions to be used by the recipient within a specified period (no longer than six months). This would prevent incumbents from amassing "war chests" to scare off potential challengers. It is hard to believe that contributions made years before the election, and before the contributor even knows who the opposing candidate might be, is a good-faith attempt to persuade. It is almost certainly an attempt to buy influence.

Another possibility is to prohibit contributors from giving money to both sides in the same election. Someone who gives money to both the Republican and the Democrat is not expressing his political opinions, but purchasing access to the future officeholder.

The common element in all of these proposals is that they prohibit forms of campaign fund-raising that have little or no relation to legitimate persuasion, and seek to increase the role of ordinary citizens in our political process. They would not solve the whole problem. But they are a big improvement over McCain-Feingold, which cannot possibly pass Congress and would likely (and rightly) be struck down by the Supreme Court if it did pass. This is a test to see whether those members of Congress who say they want to reform the system are really serious.

*Michael W. McConnell is a professor of constitutional law at the University of Utah.