From the Washington Post, Nov. 14, 1995
[FROM THE WASHINGTON POST, NOV. 14,
1995]
Gingrich's Heresy
(BY DAVID S. BRODER)
Speaker Newt Gingrich (R-Ga.) knew he
was headed into a test of wills with the president that might force a shutdown
in the government and boost his already high negative ratings. The last thing he
needed was another fight--especially one in which his position would guarantee
denunciation from all respectable quarters.
Nonetheless, when Gingrich testified
the other day at a congressional hearing on campaign finance, he deliberately
committed heresy. He argued that too little money--not too much--is going into
campaigns.
The editorial pages and columnists
issued the predictable squawks. The speaker also took fire from the rear: The
freshman Republicans who have been his shock troops were in shock. They wanted
to hear him say, as everyone from Common Cause to Ross Perot regularly intones,
that American politics is `awash' in special-interest money.
That is the operative premise of all
the favorite `reforms': abolition of PACs (political-action committees);
allowing only people from the home state or home district to contribute to a
candidate; getting rid of `soft-money' corporate contributions, which pay for
political party facilities and grass-roots operations.
All of this Gingrich challenged in his
testimony on Nov. 2. The total amount spend on House and Senate races in 1994
was $724 million--a record sum and shocking to many. But the cost of 435 House
races and 33 Senate campaigns was, he pointed out, roughly double what the
makers of the three leading antacids budgeted for advertising last year. This is
a scandal?
Ah, but it said, the candidates and
office-holders were forced to spend an inordinate amount of time dialing for
dollars, going hat in hand to prospective contributors. True enough, but the
main reason is that contribution limits have not been adjusted for inflation in
21 years. In 1974 the limit on individual contributions was set at $1,000. That
is worth $325 today. If you really want politicians spending less time
fund-raising, Gingrich suggested, lift that limit to $5,000 and index it for
inflation.
If this were not heretical enough, the
speaker had one other idea. Instead of thinking of campaign finance as a
separate problem, screaming for solution, think about a way to pay for the cost
of politics that would actually serve the interests of voters and of governing.
Do that, he said, and you may find that
the best remedy is not to legislate limits on contributions or spending but to
enable greater activity by the political parties--Republicans, Democrats and any
third force that may emerge to challenge them.
The biggest problem in our campaign
finance system, he said, is the gross disparity between what House incumbents
can raise and what most challengers can muster. The PACs are a big part of this
problem for they use their contributions to ensure access to legislators
handling their issues. The PAC system, as Gingrich said, `has become an arm of
the Washington lobbyists' and needs to be reduced in significance.
But limiting PAC contributions is
likely to be an empty gesture. Increasingly, organized interest groups are
mounting independent expenditure campaigns, boosting their friends and targeting
their enemies, which they can do without limit.
Since we cannot effectively stifle
these special-interest voices, Gingrich said, let us submerge them in appeals
from the parties. Increase substantially the limits on what people can give to
political parties, he said. And allow those parties to contribute far more than
they do now to help challengers offset the many advantages incumbents enjoy--not
only greater leverage on the PACs but all the staff, office and communications
facilities that are provided at taxpayers' expense.
Barring such changes, Gingrich rightly
said, we are almost certain to see a continuation of the trend to millionaire
candidates. Because the wealthy are allowed (by Supreme Court decision) to spend
whatever they wish on their own campaigns, the Senate has become a millionaires'
club and the House is moving in the same direction.
All of this was a challenge to
conventional wisdom. But Gingrich is not, in fact, alone. In the same week that
he testified, the libertarian Cato Institute and the liberal Committee for the
Study of the American Electorate published essays arguing that the supply of
political money should be increased, not decreased. As Curtis Gans, the author
of the latter study, pointed out, `The overwhelming body of scholarly research .
. . indicates that low spending limits will undermine political competition by
enhancing the existing advantages of incumbency.'
Gingrich has been accused of
foot-dragging on the handshake agreement he struck with President Clinton last
June to form a bipartisan commission on campaign finance.* * *
--
--
From the Washington Post, Jan. 17, 1996
[FROM THE WASHINGTON POST, JAN. 17,
1996]
A Senate of Millionaires
(BY DAVID S. BRODER)
Want a perfectly safe bet on the
November election results? Bet that there will be even more millionaires in the
U.S. Senate. What once was called `The World's Most Exclusive Club' increasingly
requires personal wealth as a condition for membership. The combination of
rising campaign costs and foolishly frozen limits on individual contributions
has increased the advantage of self-financed candidates. The 1996 candidate
lists are full of them.
In Georgia, for example, all three
Republicans seeking nomination to the vacancy created by the retirement of
Democratic Sen. Sam Nunn are men of substantial means. In Minnesota, former
Republican senator Rudy Boschwitz, a wealthy retired businessman, is trying to
reclaim the seat he lost to populist professor Paul Wellstone six years ago. And
in a half-dozen other states, Republicans either have or are trying to recruit
challengers who can afford to pay their own way.
What is more striking is the extent to
which the Democrats--the self-styled party of the people--have begun to rely on
affluence as the criterion for picking their Senate candidates.
In Colorado, New Hampshire, South
Carolina and Virginia, the favored candidates for the Democratic nomination are
all men of independent means, and in many cases, without wealth would not be
considered to have Senate credentials. In Illinois, North Carolina, Oklahoma and
Oregon, men of similar backgrounds are given a chance of winning nomination
because of their bankrolls. It is not a new pattern. Among the Democratic
senators seeking reelection this year is John D. (Jay) Rockefeller IV of West
Virginia, who spent more than $10 million of his own money to be elected in
1984.
Retiring Sen. Bill Bradley (D-N.J.), a
banker's son who earned big money as a New York Knicks basketball star, writes
about the advantage wealth confers on a politician in his newly published
memoir, `Time Present, Time Past.' Bradley recounts how he decided he could
afford to give or lend a quarter-million dollars to his first Senate campaign in
1978--about one-fifth of his budget. `It assured me that I could compete even if
I didn't raise as much as I had hoped,' he says. `With the existence of that
self-generated cushion, I was able to raise more. When potential contributors
see a campaign with money, they assume it's well-run, and they are more likely
to make contributions. Everyone likes to be with a winner, whether in basketball
or politics.'
Bradley points out that he was a piker
compared with many of his colleagues. `Four years later in New Jersey, Frank
Lautenberg, a wealthy computer executive with no elective experience, would
spend over $3.5 million of his own money to win a U.S. Senate seat. . . . In
Wisconsin in 1988, Herb Kohl promised to spend primarily his own money in his
Senate campaign; $7.5 million later, he won.'
Financial disclosure statements show
that at least 28 of the 100 sitting senators have a net worth of $1 million or
more--many of them much more. Michael Huffington, a Texas oil man, spent $28
million of his own money in trying for a California Senate seat in 1994--but
still lost. The price is going up.
Wealth is not a determinant of votes in
the Senate. There are liberals like Rockefeller and Ted Kennedy along with
conservatives. But wealth confers an unfair advantage in the campaigns for the
Senate, and makes it much harder than it should be for people of talent, but no
wealth, to compete.
The main reason for this disadvantage
is the unrealistically low limit on individual contributions. The law, as
Bradley notes, provides that `whereas a candidate could contribute as much of
his own money as he chose, he could accept individual contributions of only
$2,000 from others--$1,000 of it for the primary and $1,000 for the general
election.'
The contribution limits were set 22
years ago and never have been adjusted; inflation has eroded their value by
two-thirds since then. Raising contribution limits is far down the list of
proposals of most campaign finance reformers; many want to freeze them or reduce
them.
But all the contribution limits are
accomplishing today is to create an ever-greater advantage for self-financed
millionaire candidates. Steve Forbes's rivals in the Republican presidential
race are complaining that his wealth is tilting the odds in the contest, where
he is the only one who is paying his own way and therefore spending as much as
he wants. But the Senate picture is not very different.
If we really want to be ruled by a
wealthy elite, fine; but it is a foolish populism that insists it despises the
influence of wealth, and then resists liberalizing campaign contribution limits.
Rich men understand that. It's too bad
the reformers can't figure it out.
-- --
From the Washington Post, Jan. 31, 1996
[FROM THE WASHINGTON POST, JAN. 31,
1996]
`Frontline's' Exercise in Exaggeration
(BY DAVID S. BRODER)
As if the cynicism about politics were
not deep enough already, PBS's `Frontline' last night presented a documentary
called `So YOU Want to Buy a President?' whose thesis seems to be that campaigns
are a charade, policy debates are a deceit and only money talks.
The narrow point, made by Sen. Arlen
Specter (R-Pa.), an early dropout from the 1996 presidential race, about
millionaire publisher Malcolm S. (Steve) Forbes Jr., is that `somebody is trying
to buy the White House, and apparently it is for sale.'
The broader indictment, made by
correspondent/narrator Robert Krulwich, is that Washington is gripped by a
`barter culture' in which politicians are for sale and public policy is
purchased by campaign contributions.
The program rested heavily on a newly
published paperback, `The Buying of the President.' Author Charles Lewis, the
head of the modestly titled Center for Public Integrity, was a principal
witness, and Kevin Phillips, the conservative populist author who wrote the
book's introduction, was also a major figure in the documentary.
It dramatized the view asserted by
Lewis in the conclusion of his book: `Simply stated, the wealthiest interests
bankroll and, in effect, help to preselect the specific major candidates months
and months before a single vote is cast anywhere. . . . We the people have
become a mere afterthought of those we put in office, a prop in our own play.'
Viewers say a number of corporate
executives--no labor leaders, no religious leaders, no activists of any kind,
for some reason--who have raised and contributed money for presidents and
presidential candidates and thereafter been given access at dinners, private
meetings or overseas trade missions.
It is implied--but never shown--that
policies changed because of these connections. As Krulwich said in the
transcript of a media interview distributed, along with an advance tape, with
the publicity kit for the broadcast, `We don't really know whether these are bad
guys or good guys. . . . I'm not really sure we've been able to prove, in too
many cases, that a dollar spend bought a particular favor. All we've been able
to show is that over and over again, people who do give a lot of money to
politicians get a chance to talk to those politicians face to face, at parties,
on planes, on missions, in private lunches, and you and I don't.'
If that is the substance of the charge,
the innuendo is much heavier. At one point, Krulwich asked Lewis, in his most
disingenuous manner, `Do you come out convinced that elections are in huge part
favors for sale, or in tiny part?'
And Lewis replied that while `there are
a lot of wealthy people that do want to express broad philosophical issues,' the
`vested interests that have very narrow agendas that they want pursued see these
candidates as their handmaidens or their puppets. The presidential campaign is
not a horse race or a beauty contest. It's a giant auction.'
That is an oversimplified distortion
that can do nothing but further alienate a cynical electorate. Of course, money
is an important ingredient in our elections and its use deserves scrutiny. But
ideas are important too, and grass-roots activism even more so. The Democratic
Leadership Council's Al From and the Heritage Foundation's Robert Rector have
had more influence in the last decade than any fund-raisers or contributors,
because candidates have turned to them for policy advice.
John Rother of the American Association
of Retired Persons and Ralph Reed of the Christian Coalition work for
organizations that are nominally nonpartisan and make no campaign contributions
at all. But their membership votes--so they have power.
The American political system is much
more complex--and more open to influence by any who choose to engage in it--than
the proponents of the `auction' theory of democracy understand, or choose to
admit.
By exaggerating the influence of money,
they send a clear message to citizens that the game is rigged, so there's no
point in playing. That is deceitful, and it's dangerously wrong to feed that
cynicism.
Especially when they have nothing to
suggest when it comes to changing the rules for the money game. At one point,
Phillips said that the post-Watergate reforms succeeded only in having `forced
them [the contributors and politicians] to be more devious.' That is untrue.
Those reforms, which mandated the disclosure of all the financial connections on
which the program was based, also created publicity which, even Krulwich and Co.
admitted, foiled the `plots' of some contributors.
And Krulwich, for his part, suggested
very helpfully that `every high-profile politician agrees that some things have
got to change. Change the limits. Change the rules. Change the primaries. Change
the ads. Change enforcement. You gotta change something.'
How about changing the kind of
journalism that tells people that politicians are bought-and-paid-for puppets
and you're a sucker if you think there's a damn thing you can do to make your
voice heard?
Mr. McCONNELL. Mr. President, over the
years working on this issue I have written several pieces which I ask unanimous
consent to have printed--one in the Washington Post and one in the USA Today--in
the Record.
There being no objection, the material
was ordered to be printed in the Record, as follows:
From the Washington Post, Feb. 21, 1996
[FROM THE WASHINGTON POST, FEB. 21,
1996]
Just What Is A Special Interest?
(BY MITCH MCCONNELL)
President Clinton, in his State of the
Union address, beseeched Congress to enact campaign finance reform to reduce
`special interest' influence. Campaign finance reforms that the president favors
would constrict fundamental democratic freedoms to participate in the political
process. In other words: speech would be limited and some citizens' freedom to
participate in elections beyond voting would be `reformed' out of existence
based on their alleged status as `special interests.' But if `special interest'
is not defined, how are we to know just whose influence should be curbed?
Judging from the fervent bipartisan
(and third party) scorn heaped on `special interests,' the casual observer would
logically assume that this scourge of democracy was readily identifiable. The
Congressional Record, newspaper editorials and campaign speeches are replete
with diatribes against the `special interests.' A recent search of newspapers on
the Nexis database found more than 60,000 articles and editorials containing the
phrase `special interest.'
`Special interest' is the most
pejorative phrase in the American political lexicon since `communist-pinko.'
Judging from the reformers' scathing rhetoric, rooting out these special
interests is a job for a new Senate Committee on Un-American Activities.
In fact, the special interest tag
depends on the viewer's vantage point rather than on any objective criteria.
So-called good government groups would have people believe that the antonym is
`public' interest--as defined by them. These groups usually construe good
government to mean big government and therefore deem big government to be in the
public interest. By this logic, opposition to any government regulation or tax
virtually guarantees a special interest charge.
Capitalism should not be a dirty word
in a free society, but having observed the enmity directed toward its
practitioners in many quarters, one could reasonably wonder. Some nonprofit
so-called `good government' groups readily pin the special interest label on
profit-seeking enterprises. Yet behind corporate balance sheets are employees,
families, shareholders and communities of which they are part.
Does the special interest connotation
extend to employees and their families? To the legions of Americans whose
retirement funds and investments are keyed to the stock market? By such
extrapolation does the `special interest' smear cut a wide swath.
What happens when a purported public
interest organization is funded by a group that is universally regarded as a
`special interest,' such as the plaintiffs' lawyers? Are we to conclude that the
special interest in this instance is subsumed in the nobler public interest? Or
is the public interest group simply laundering the special interest influence
money and acting as a front organization? Or is it merely coincidence when their
interests converge on, say, lawsuit reform?
Most people would probably conclude
that a special interest is contrary to the majority interest. Should special
interest be defined as being not immediately relevant to more than 49.9 percent
of American citizens? Must its membership comprise a majority of the country to
be legitimate? If so, such a qualification should be carefully pondered, as
`special interests' could be equated with any narrow or minority interest, thus
automatically tarnishing what could be a very worthy cause.
Being a senator from Kentucky, I
regularly go to bat for Kentucky industries (and their employees, suppliers and
subcontractors) threatened by onerous regulations and taxation. These industries
may, in the minds of some people, epitomize `special interest.' To me, they and
the Kentuckians whose livelihoods depend on them are constituents, and my
assistance to them is in the public's interest.
Is a Pacific Northwest lumber company
automatically a special interest? The company's employees? How about the
Washington-based environmentalists who would sacrifice jobs and disrupt human
lives for the sake of an owl? Are owls special interests?
The truth is that the special interest
label is a political weapon utilized, often reflexively and perhaps
thoughtlessly, by people throughout the ideological spectrum. It can be found in
statements I have made in the past. Using it is a hard habit to break.
Nevertheless, in the interest of more honest and civil public discourse, the
invocation of the `special interest' mantra to propel a reform agenda or wound
an opponent is a habit that should be broken.
All Americans have a constitutional
right to petition the government and participate in the political process,
however unpopular the cause or narrow its appeal may be. Americans do not
forfeit those rights because they have been tagged with the special interest
label.
The campaign finance reform debate, in
particular, is advanced on the premise that special interest influence is
pervasive, corrosive, and must be abated at all costs. But the cost of the
alleged reforms in terms of constitutional freedom for all Americans is high.
And the special interest premise is deeply flawed. So the next time you hear
someone hail campaign finance reform as the answer, ask them what is the
question. And when they say special interest influence is the problem, ask them:
What is a special interest?
-- --
From USA Today, June 11, 1996
[FROM USA TODAY, JUNE 11, 1996]
Disaster for Taxpayers, Candidates
By Mitch McConnell
[BY MITCH MCCONNELL]
The most talked-about campaign-finance
schemes are unconstitutional, undemocratic, bureaucratic boondoggles. Further,
their sponsors think taxpayers should foot the bill. And for good measure, these
`reform' schemes also would greatly increase the power of the media.
Perhaps that is simply a fortunate
happenstance for the liberal newspapers pushing them. In any event, the media
clearly have a `special interest' in campaign finance `reforms' which would
increase their power by limiting the speech of every other participant in the
political process.
Because political campaigns exist to
communicate with voters, the U.S. Supreme Court ruled two decades ago that
campaign spending must be accorded First Amendment protection. Ergo, campaign
spending limits are unconstitutional speech limits.
The simple fact is that communication
with America's nearly 200 million eligible voters is expensive. For instance,
one full-page color campaign ad in a Friday edition of USA TODAY would cost
$104,400. Television and mail are also essential means of communicating with
voters.
These are expensive venues, but they
are the only way to reach all the voters in large, modern electorates. Limiting
campaign spending would limit political discourse by candidates, thereby
enhancing the power of the media. That is bad public policy.
For all the whining, the fact is that
congressional campaign spending (less than $4 per eligible voter in 1994) is
paltry relative to what Americans spend on consumer items like bubble gum and
yogurt.
What we should do is adjust the
individual contribution limit for inflation. The contribution limits candidates
must abide by in 1996 were set over two decades ago (when a new Ford Mustang
cost $2,700). These inflation-eroded limits benefit the well-off (rich
candidates who can fund entire campaigns out of their own pockets) and the
well-known (principally incumbents) who have a large base from which to draw
contributions.
Enhanced public disclosure of all
campaign-related spending is also a worthy reform that would enable voters to
make informed decisions on Election Day.
By comparison, the so-called `good
government' groups' campaign-finance schemes would be disasters. Delay is
preferable to the enactment of such constitutional monstrosities.
Mr. McCONNELL. Mr. President, some
information about the cost to the Postal Service, estimated by this postal rate
subsidy, and I ask unanimous consent that be printed in the Record.
There being no objection, the material
was ordered to be printed in the Record, as follows:
U.S. Postal Service, Washington, DC,
June 24, 1996.
Hon. Mitch McConnell, U.S. Senate,
Washington, DC.
Dear Senator McConnell: I am writing to voice my concerns about
campaign finance reform legislation, S. 1219, which would place an unfair
financial burden on the Postal Service and its ratepayers.
Let me first say that the Postal
Service takes no position on the general merits of campaign finance reform. This
issue appropriately rests with the Congress. However, S. 1219, as well as
several other campaign finance reform bills in the House and Senate, provide for
reduced postage rates for eligible candidates. These bills do not contain a
funding mechanism through which the Postal Service would be reimbursed for the
difference between regular rate postage and the reduced rate used by the
candidates. In essence, the legislation creates an unfunded mandate, and the
costs would have to be absorbed by our customers, the postal ratepayers.
Testimony at campaign finance reform hearings estimated the reduced postage
costs for S. 1219 to be $50 million per election. Estimates for other campaign
finance bills with reduced postage provisions range from $50 to $150 million per
election.
I would also like to point out that it
is very unlikely that the Postal Service and its customers would be made whole
even if a funding mechanism were included in campaign finance reform
legislation. After years of underfunding our annual appropriation for
Congressionally mandated reduced rate mailings, Congress enacted the 1993
Revenue Forgone Reform Act. In eliminating future funding for reduced rate
mailings, this law mandates that the Postal Service receive a series of 42
annual appropriations of $29 million as partial reimbursement for past funding
shortfalls. Even this `partial' relief is now threatened as our House Treasury,
Postal Service, and General Government Appropriations Subcommittee proposed that
this appropriation be reduced by over $5 million during their markup of our FY
'97 appropriations bill.
I recognize the importance of the
campaign finance reform issue in Congress this year, and it is with reluctance
that I express these concerns to you. Nonetheless, S. 1219, as well as others,
would offer political candidates reduced postage costs at the expense of the
Postal Service and its customers. I urge you and your colleagues to identify
alternate provisions that would not require postal ratepayers to bear the burden
of campaign finance reform.
Best regards, Marvin Runyon.
--
--
Direct Marketing Association, Inc.,
Washington, DC, June 19, 1996.
Hon. Mitch McConnell, U.S. Senate,
Washington, DC.
Dear Senator McConnell: It now appears
that S. 1219, campaign finance legislation sponsored by Senators McCain and
Feingold, is scheduled for debate next week.
We strongly urge you to cast a no vote
on the cloture motion that will be offered during the debate. As I have written
to you before, DMA is opposed to S.1219, largely because of the provisions for
low cost mailings for Senatorial candidates, without compensation to the Postal
Service for lost revenues.
We estimate that, should the House pass
similar legislation, these provisions could cost the Postal Service as much as
$350 million dollars over a two-year election cycle. Every penny of this will
ultimately come out of the pocket of the businesses and consumers who use the
mails.
The Postal Service finds itself in an
increasingly competitive environment. In order to survive, the Postal Service
must be able to price its products competitively. It cannot do this if costs are
arbitrarily added to its rate base. Legislation such as this endangers the
financial base of the Postal Service and the service it can provide to American
businesses and consumers.
Again, we urge you to vote no on the
cloture motion.
Sincerely, Richard Barton.
--
--
National Association of Broadcasters,
Washington, DC., June 24, 1996.
Hon. Mitch McConnell, U.S. Senate,
Washington, DC.
Dear Senator McConnell: First, I would
like to thank you for the leadership role you have taken in opposing S. 1219,
the campaign finance reform legislation introduced by Senators John McCain and
Russ Feingold.
As originally introduced, this
legislation would require broadcasters to offer qualified Senate candidates an
additional 50% discount off the discounted television advertising rates
candidates currently receive. The legislation further requires broadcasters give
candidates free advertising time. We believe these provisions are
unconstitutional and impose significant financial burdens on local broadcasters
and we must oppose the legislation.
We understand Senators McCain and
Feingold have introduced a substitute to S. 1219. At your request we have
reviewed the broadcast provisions of the substitute. We have done so and have
determined that for the most part the broadcast provisions are the same as those
in S. 1219. There is, however, new language in the broadcast section which
causes us great concern.
The new provision would give to the
U.S. Court of Federal Claims exclusive jurisdiction over challenges to the
constitutionality of the broadcast rate and free time provisions. Further, by
its terms it precludes any injunctive relief, providing only for money damages.
It is unclear whether this is an attempt to somehow deny us the opportunity to
bring a First Amendment claim against these provisions. No other section of the
bill appears to have the same requirement and we do not understand why the
broadcast provisions are given a different avenue for judicial review.
We must oppose the substitute to S.
1219, and we continue to support your efforts in opposing this legislation. If I
can be of further assistance, please do not hesitate to phone.
Sincerely, Edward O. Fritts, President.
Mr. McCONNELL. Mr. President, calling
the McCain-Feingold voluntary does not make it so, its proponents protestations
to the contrary. Anyone who dared not to comply with its voluntary limits would
have to: pay twice as much as their opponent for TV ads and more for postage;
with half the contribution limit; and forgo 30 minutes of free time.
All this and their complying opponent's
spending limit would be increased up to 100 percent to counteract any excessive
spending. Moreover, the complying candidate could spend unlimited amounts to
counteract--dollar-for-dollar--independent expenditures.
So I say again, technically, mugging
victims had options, too. That does not mean that handing over their wallets to
muggers were voluntary acts. And I should stress here that the essential point
in regard to the voluntariness of the candidate spending limits is not--as the
Senator from Wisconsin stated yesterday--that candidates who did not comply with
spending limits would be giving up benefits they do not currently enjoy such as
the 50 percent discount and the free TV time. What makes the provision
unconstitutional is the severe handicapping candidates would experience if they
did not comply with the limits.
This is a crucial distinction from the
presidential system. Steve Forbes did not have to pay twice as much for TV ads
as the complying presidential candidates. He did not forego free time and Bob
Dole's spending limit did not increase when independent expenditures were made
against him. And his spending limit did not increase when Forbes spent over the
limit. Had the presidential system had the inducements of the McCain-Feingold
bill, Steve Forbes might very well have elected not to get into the race, at
all.
It simply would not make sense for a
candidate not to comply with the McCain-Feingold bill unless he or she were so
extraordinarily wealthy they could spend many times the spending limit for their
own wallet. So you could have two extreme types of campaigns under
McCain-Feingold--very low spending ones complying with the limits and extremely
expensive campaigns. What would disappear is the middle ground--not as cheap as
the McCain-Feingold model but not at the extreme high-end, either.
If you looked long and hard enough and
had common cause and public citizen helping, even a tiny needle in a giant
haystack could be found. And so it is that at long last--after a decade of
debate on this scheme--some people with law degrees have been located to say the
McCain-Feingold/common cause spending limit structure is constitutional. How
expert they are remains to be seen and their submittals on the subject will
certainly be scrutinized.
In any event objective liberals and
conservatives can agree that the American Civil Liberties Union is the
repository of expertise on first amendment issues. The ACLU led, and triumphed,
in the fight against mandatory spending limits 20 years ago in the Buckley
versus Valeo case. And the ACLU will be in front again--along side me--should
anything resembling the McCain-Feingold bill ever become law. The ACLU is
singularly focused on constitutional freedom and has probably aggravated just
about everybody at sometime with unpopular stands. But they have a remarkable
record of success in this area. At this point I will read excerpts from the
ACLU's testimony--given by professor and Buckley versus Valeo attorney Joel M.
Gora--before the Senate Rules Committee on February 1 of this year.
The provision for `voluntary' spending
limits in Senate campaigns violates the free speech principles of Buckley v.
Valeo. The outright ban and severe fall back limitations on PACs violate freedom
of speech and association, as do the limitations on `bundling.' The
unprecedented controls on raising and spending `soft money' by political parties
and even non-partisan groups intrude upon First Amendment rights in a manner
well beyond any compelling governmental interest. The revised provisions
governing the right to make independent expenditures both improperly obstruct
that core area of electoral speech and impermissibly invade the absolutely
protected area of issue advocacy. The reduced recordkeeping threshold for
contributions and disbursements, from $200 down to $50, invades associational
privacy. And the new powers given to the Federal Election Commission to go to
court in the midst of a campaign to enjoin `a violation of this Act' pose an
ominous and sweeping threat of prior restraint and political censorship.
S. 1219 suffers from many of the same
flaws as the original statute at issue in Buckley v. Valeo. There the ACLU
contended that the Federal Election Campaign Act of 1974 was bad constitutional
law because it cut to the heart of the First Amendment's protections of
political freedom. It limited the ability of groups and individuals to get their
message across to the voters. The very essence of the First Amendment is the
right of the people to speak, to discuss, to publish, to join together with
others on issues of political and public concern. This constitutional protection
of the right of the people to join together to form groups and organizations and
societies and associations and unions and corporations to articulate and
advocate their interests is the genius of American democracy. And this is
particularly vital in connection with political election campaigns when issues,
arguments, candidates and causes swirl together in the public arena. Yet, the
1974 Act imposed sweeping and Draconian restraints on the ability of citizens
and groups, candidates and committees, parties and partisans to use their
resources, to make political contributions and expenditures, to support and
embody their freedom of speech and association.
The ACLU also insisted the Act was
poorly crafted `political restructuring' rather than real `political reform'
because it exacerbates the inequality of political opportunity, enhances
dependence upon money and moneyed interests in politics and magnifies the power
of incumbency as the single most significant factor in politics. Limits on
giving and spending make it harder for those subject to the restraints to raise
funds and easier for those outside the restraints to bring their resources to
bear on politics. Limiting individual contributions to $1,000 per candidate,
while allowing PACs, made legitimate by the `reforms,' to contributes $5,000 per
candidate, would make it harder to raise money from individuals and make
candidates more dependent on PACs. And PACs, often representing entrenched
interests, would be more likely, though far from inevitably, to prefer
incumbents to challengers as beneficiaries of their largesse. The Act would
stifle not expand political opportunity. What you had, we warned, was an
unconstitutional law, enacted by Congress, approved by the President, enforced
by an agency, the Federal Election Commission, beholden to each, and designed to
restrain the speech and association of those who would criticize or challenge or
oppose the elected establishment. Talk about the powers of incumbency. That's
why we called the Act an `Incumbents Protection Act.'
In Buckley v. Valeo, the Supreme Court
held that any government regulation of political funding--of giving and
spending, of contributions and expenditures--is regulation of political speech
and subject to the strictest constitutional scrutiny. The Act's limitations on
political expenditures--by committees, campaigns and candidates, no matter how
wealthy--flatly violated the First Amendment. Nothing can justify the government
telling the people how much they could spend to promote their candidacies or
causes. Not in this country. Nothing. `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 v. Valeo, 424 U.S. 1,57 (1976).
Nor could the Congress try to help
`equalize' political speech and the ability to influence the outcome of
elections by imposing restraints on some speakers: `. . . 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.'
Buckley v. Valeo, 424 U.S. at 48-49.
Unfortunately, the decision in Buckley
upheld the Act's contribution limits of $1,000 for individuals and $5,000 for
political committees. The Court did this because of its stated concern that
unlimited gifts to candidates was a recipe for corruption, a ruling that ensured
the two decades of frustration and unfairness that have ensured. With no limits
on overall campaign spending or on wealthy candidates, and with independent
campaign committees, issues groups and the press free to use their resources to
comment on candidates and causes without limit; but with less well-funded
candidates hampered in their ability to raise money from family, friends and
supporters, the stage was set to make two factors dominant: the advantages of
incumbency and the dependency on PACs.
The advantages of incumbency meant that
public resources such as franking privileges, government funded newsletters and
free television coverage (C-Span) made it easier for Members of Congress to
communicate with the voters, while challengers have to spend restricted amounts
of money in order to achieve the same visibility.
The dependency on PACs resulted from
severe limitations on the amounts of money that individuals can contribute
directly to candidates, coupled with the markedly increased cost of campaigning,
which made PAC contributions a very important source of campaign funding. And
the individual contribution limit was kept at $1,000, which, adjusted for
inflation, is probably worth about $400 in real dollars today.
That is why for twenty years candidates
have had to look more to PACs order to raise funds and incumbents, in
particular, have had an easier ability to do so.
And for twenty years, the ACLU has
suggested the way to solve these various disparities and dilemmas is to expand
political participation, by providing public financing or support for all
legally qualified candidates, without conditions and restrictions, not to
restrict contributions and expenditures which enable groups and individuals to
communicate their message to the voters.
Unfortunately, in all of its critical
aspects, S. 1219, The Senate Campaign Finance Reform Act of 1995 fails to
facilitate broader political participation and it also unconstitutionally
abridges political expression.
Mr. President, the proponents of this bill are very mistaken if
they believe the spending limits are constitutional. The ACLU differs: