Campaign Finance: The ACLU vs. Public Citizen
"We refuse to sacrifice the First Amendment in a desperate attempt to adopt reform legislation."By Laura W. MurphyIn early October, as the Senate demonstrated that it was deadlocked on campaign-finance reform, many politicians openly expressed their glee. The response of the American Civil Liberties Union, however, was much more measured. While we welcomed the apparent defeat of the much-touted McCain-Feingold legislation because it so flagrantly violates the First Amendment, we called upon Congress to begin considering campaign-finance reform that -- unlike McCain-Feingold -- would be effective and constitutional.The solution we advocate is the establishment of a system of public financing that would include vouchers for political advertising, mailing privileges for qualified candidates, and tax credits for political contributions. This approach, which the ACLU has advocated for more than a decade, would establish an adequate floor of campaign resources, rather than attempting to impose an artificial and unconstitutional ceiling on campaign contributions and spending -- the McCain- Feingold approach.Recent experience has shown that if an adequate floor of support is provided, there is no need to impose a ceiling. Consider, for example, the California Senate campaign in 1996, when the enormously wealthy Michael Huffington challenged Dianne Feinstein. Even though Huffington far outspent his opponent, Feinstein won election because, as an incumbent, she was able to raise enough money to ensure that her message was heard by the voters. Her burden came in raising so much money from private sources. Our proposals would help relieve that burden, thus increasing the viability of all ballot-qualified candidates without reducing the level of political discourse in this country. They would also guarantee that both incumbents and challengers would have the means to communicate their message to the American public. The American people should not be forced to forfeit our First Amendment rights to contribute to political causes and to criticize candidates as a condition of meaningful reform.We refuse to sacrifice the First Amendment in a desperate attempt to adopt reform legislation that we believe will be ineffective and unconstitutional. That is why we joined an unusual coalition against McCain-Feingold that included Senator Mitch McConnell, Republican of Kentucky, and organizations like the National Right to Life Committee, which we fiercely oppose on most issues. It made for strange bedfellows, but we're used to that. We participated in a similar coalition to combat the Clinton Administration's counterterrorism proposals that were such an affront to civil liberties.We're not naive. We recognize that many pundits and observers are openly skeptical of the passionate First Amendment arguments made by Senator McConnell and his colleagues on campaign finance. And it is true: Senator McConnell's First Amendment record is mixed. Although he opposed a constitutional amendment to ban flag desecration, he supported the Communications Decency Act, the Internet censorship measure later struck down by the Supreme Court in Reno v. ACLU.But we fully intend to hold McConnell and other Republicans -- and Democrats -- accountable for their selective view of constitutional law. It is interesting to note that before we began working with Senator McConnell on campaign finance, he actually supported efforts to amend the Constitution to ban flag burning. Sometimes our "unusual coalitions" can help educate members of all political persuasions about the principles underlying our arguments.The ACLU takes its nonpartisanship very seriously. We do not oppose candidates or nominees, but instead choose to work with individuals and organizations on an issue-by-issue basis. Earlier this year, for example, we applauded Senator McConnell in the morning for a statement he made on campaign finance. Later that same day, we criticized him harshly for introducing legislation that would ban federal affirmative-action programs for women and minorities.When it comes to campaign finance, Senator McConnell and the ACLU agree that McCain-Feingold has myriad First Amendment problems. We believe that key provisions of the legislation would effectively ban issue advocacy or speech relating to issues and the policy positions taken by candidates and elected officials. Issue advocacy can be as simple as a statement like "Senator Doe's position on school vouchers is grievously misguided." Or it can be as involved as a multimillion-dollar campaign of broadcast and print advertisements that spread the same message. Any group or individual can engage in issue advocacy. Under current law, a message stops being considered "issue advocacy" if it is accompanied by "express advocacy" or actual statements advocating the election or defeat of a clearly identified candidate for office. An example of express advocacy: "Senator Doe's position on school vouchers is grievously misguided, and anyone who cares about the separation of church and state should vote against him in November."While issue advocacy can leave the impression that a listener should support or oppose a particular candidate, such messages cannot -- under current law -- be treated (and therefore regulated) as express advocacy by the Federal Elections Commission. The question of what constitutes issue advocacy -- as distinct from express advocacy -- became more heated during the 1996 elections, when groups across the political spectrum engaged in intense issue-advocacy campaigns. Many members of Congress felt they lost control of their campaigns because of the unregulated and undisclosed advertising from issue groups. Their concern that elections are "out of control" seems to be the driving force in current efforts to regulate issue advocacy. Because of this loss of control, some federal lawmakers believe that a candidate's interest in controlling his or her election should trump the rights of citizens to speak out during campaigns. Many members of Congress believe that issue advocacy became far too political and powerful during the last election cycle. They assert that these issue ads are really a subterfuge for express advocacy.Some believe that all communications that could influence the outcome of elections should be regulated by statute. We couldn't disagree more. Following are some of the provisions of the McCain-Feingold bill that would unconstitutionally limit robust citizen speech. These include:* A permanent, year-round restriction on issue advocacy. The bill would achieve this by redefining express advocacy in an unconstitutionally vague and watered-down manner. The key to the existing definition of express advocacy is the inclusion of an explicit directive to vote for or against a candidate. Minus the explicit directive -- or so-called bright-line test -- what constitutes express advocacy would be in the eye of the beholder (in this case, the Federal Election Commission).* A two-month blackout on all television and radio issue advertising before primary and general elections. The only individuals and groups that would be able to characterize a candidate's record on radio and television during this sixty-day period would be the candidates, PACs, and the media.* A misleading "exception" for candidate voting records. The voting records that would be permitted under this new statute would be stripped of any advocacy-like commentary. For example, depending on its wording, the ACLU (as a 501(c)(4) corporation) might be banned from distributing a voting guide that highlighted members of Congress who have a 100 percent ACLU voting record as members of an "ACLU Honor Roll." Unless the ACLU chose to create a PAC to publish such guides, we would be barred by McCain-Feingold even though we do not expressly advocate the election or defeat of a candidate.* Redefining "expenditure," "contribution," and "coordination with a candidate" so that legal and constitutionally protected activities of issue-advocacy groups would become illegal. If the ACLU decided to take out an advertisement lauding -- by name -- certain Senators for their effective advocacy of constitutional campaign-finance reform, this ad would be counted as express advocacy on behalf of the named Senators and therefore prohibited.Congress is threatening to erect a Byzantine set of laws that would pose a formidable barrier to citizen speech. This barrier would be like a barbed-wire fence: Individuals or groups would not try to scale it unless they were willing to become ensnared in a complicated set of laws whose penalties would inflict serious pain.All of those barbs violate the First Amendment. Attempts to regulate and require disclosure of issue advocacy through statute and through FEC regulation have repeatedly been declared unconstitutional by the Supreme Court and lower federal courts. The Court has always viewed issue advocacy as a form of speech that deserves the highest degree of protection under the First Amendment. Not only has the Court been supportive of issue advocacy, the justices have stated that they are untroubled by the fact that issue advertisements may influence the outcome of an election.In Buckley v. Valeo, the justices stated: "The distinction between discussion of issues and candidates and advocacy of the election or defeat of candidates may often dissolve in practical application. Candidates, especially incumbents, are often intimately tied to public issues involving legislative proposals and governmental actions. Not only do candidates campaign on the basis of their positions on various public issues, but campaigns themselves generate issues of public interest."Although questions and debate about political speech date back to the beginnings of our nation, the issue came to a head for the ACLU when, in 1972, three senior citizens spent thousands of dollars to purchase an advertisement in The New York Times that condemned the secret bombings of Cambodia by the United States. The advertisement also called for the impeachment of President Nixon and printed an honor roll of those members of Congress who had opposed the bombings. Those mentioned included Senator George McGovern.The ad was a classic example of speech protected by the First Amendment, but 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. On the basis of this law, the federal government sued the three, seeking to stop them from publishing such ads, and wrote a letter to the Times threatening the paper with criminal prosecution if it published such an ad again.Later in 1972, the government sought to stop the ACLU from publishing an ad criticizing President Nixon on the issue of school desegregation. We had to go to court to defend our right to purchase an advertisement criticizing the President. The court swiftly struck down the law as unconstitutional. The Court has done this before and it will do so again. In September, the justices let stand a lower-court ruling allowing issue ads in Maine. All of this is to underscore what everyone on Capitol Hill knows: McCain-Feingold and similar proposals are doomed to fail in the courts.We recognize that our proposals have no chance of winning passage in this Congress. But we see hopeful portents of change: A tremendous variety of legislation is now being written and introduced, including more public-financing proposals. Our proposed public-financing system would effectively undercut the influence of private money. And it would pass constitutional muster. While testifying last spring before a House subcommittee, ACLU executive director Ira Glasser made a pitch for public financing. His testimony met with silence from the members of the Committee.There is little interest in Congress in generating a serious public debate about public financing of elections. Instead, we get a lot of public posturing about reform, and proposals, like McCain-Feingold, that are likely to be both ineffective and struck down as unconstitutional by the United States Supreme Court. Individuals who continue to support measures like McCain-Feingold do a disservice to genuine campaign reform. So long as bills like McCain-Feingold are allowed to masquerade as reform, neither Congress nor the President will get serious about public financing. McCain-Feingold is, in this sense, not a step toward reform, but an obstacle to it.nLaura W. Murphy is the director of the ACLU's Washington National Office.***"The First Amendment is not a top sign against reform."By Bob SchiffCampaign-finance scandals dominate the headlines. Public sentiment for reform is at its highest level since the Watergate era. Yet it seems like the opposition to reform this year is bolder, and the odds are getting longer. Even the McCain-Feingold bill, which many reformers characterize as only a weak first step, faces heated and determined opposition. Free marketeers aligned with the ACLU and the Christian Right denounce attempts to reform the loophole-ridden, corruption-breeding system we now live with as attacks on the sacred right of free speech.It is no longer laughable in Congress to talk about getting rid of all limits on campaign contributions. "The reforms enacted after Watergate failed," critics say. "Let's just get rid of all restrictions, disclose everything, and let the public decide." That such a proposal gets a respectful hearing in Congress and on the editorial pages of major dailies shows how far the debate has moved.Now, more than ever, progressives need to make federal campaign-finance reform a priority. And while it is important to keep long-term goals in mind, incremental solutions may offer our best chance to make progress toward more sweeping change. Giving up altogether is simply not an option, unless we don't care that the public thinks Congress is up for auction, that voter turnout is at an all-time low, and that corporate money drowns out the voices of average people both in the legislature and on the campaign trail.The simple reason why we need campaign-finance reform is that money influences policy.The players are different, the legislative issues come and go. But the one constant in our political system is the need for money. Lots of it. Candidate and party spending in the 1996 elections topped $2 billion. Hundreds of millions more were spent in unreported "issue ads." The constant search for funding to run campaigns costs us dearly. Candidates and elected officials spend inordinate amounts of time raising money, and the pressure to cross the line into improper or even illegal activity can test the resolve of even the most ethical politicians.It would be one thing if the people with big money to spend on elections were merely civic-minded or disinterested rich people, or even just wealthy ideologues from across the political spectrum, but they're not. Nor does a broad cross-section of the public make political contributions. Less than one-third of 1 percent of the population gave contributions totaling more than $200 in the 1996 election. A huge proportion of the campaign cash that politicians raise comes from business interests, giving them special access to and influence over the legislative process.Take two major policy debates of the last two Congresses: health care and the new telecommunications law.Remember the Clinton plan? Thirty-seven million Americans with no insurance? Harry and Louise? The Democrats squabbled, the Republicans obstructed, and the legislation imploded.During the ill-fated health-care debate, campaign money flowed freely from those with an economic interest in shaping the legislation. According to the Center for Responsive Politics, individuals and PACs associated with the health industry (including doctors, hospitals, nursing homes, HMOs, and drug companies) made more than $37 million in contributions to candidates, split evenly between Democrats and Republicans. The American Medical Association alone contributed more than $2.5 million. At least sixty members of Congress who sat on one of the five committees with jurisdiction over the health-care legislation received more than $50,000 in contributions from these health-industry PACs and individuals.In the end, opponents of reform won. Today, the number of uninsured Americans is more than forty million, and the corporatization of our health-care system continues unabated.Fast-forward to the next Congress. The Republicans are in control and undertaking a massive rewrite of the telecommunications laws. A titanic struggle ensues among the Baby Bells, the long-distance phone companies, and the cable TV companies that want to compete for each other's business. The money flows again: According to the Center for Responsive Politics, in the 1996 election cycle the cable companies contributed more than $2 million to candidates and parties, the long-distance companies gave nearly $4 million, and the Baby Bells coughed up an astonishing $6.2 million.As a result of that fight, consumers found themselves out in the cold. Cable rates went up, and the networks got an enormous government giveaway: The whole digital television spectrum is now theirs for free.It is not just the colossal struggles of big-money interests on major legislative issues that show the need for reform. Tax loopholes and corporate-welfare giveaways manage to find their way into legislation with little or no public discussion.We're all now familiar with the $50 billion tax break that Senate Majority Leader Trent Lott, Republican of Mississippi, and House Speaker Newt Gingrich, Republican of Georgia, engineered for the tobacco companies. When that deal was exposed, the public outcry forced Congress to repeal it. Tobacco companies' soft-money contributions of $5.7 million to the Republican Party in 1996 and another $1.6 million in the first six months of this year surely greased the wheels for that effort to slip one by us.And how about the $280 million special tax break for Amway Corporation? Amway Chairman Richard DeVos and his wife have already contributed $1 million in soft money to the Republican party this year. That follows on the heels of the $315,000 that Amway gave to the Republicans in the 1996 cycle, and the $2.5 million -- the biggest single contribution ever -- the company contributed in 1994.Maybe Amway would have gotten its tax break, and all major legislative fights would turn out exactly the same if the interested parties didn't make campaign contributions. Maybe. But I doubt it. One poll showed 86 percent of Americans believing that campaign contributions influence policy decisions -- and that poll was taken before the current scandals. Public perception is important. It affects whether people trust the Congress to do the right thing. And it affects whether people feel it is worth participating in the political system on election day.Opponents of campaign-finance reform, like Senator Mitch McConnell, Republican of Kentucky, love to wrap themselves in the Constitution. The ACLU is a willing accomplice. The 1976 Supreme Court decision in Buckley v. Valeo, which threw out limits on campaign expenditures by candidates, is their battle cry. They argue that every reform proposal aimed at reducing the domination of the political system by big money violates the First Amendment. "Money equals speech," they proclaim. "The First Amendment is not a loophole."It isn't. But it's not an impenetrable roadblock to reform, either. There is nuance in this area of the law that the ACLU and Senator McConnell prefer to ignore.The most important thing to remember when the First Amendment is held up like a stop sign against reform is that the Buckley decision upheld limits on campaign contributions. Candidates can spend as much as they want on their own campaigns, the Court held, but contributions from citizens should be limited. The Court reasoned that candidates have a right, as a matter of free expression, to spend their own money on their own campaigns. But campaign contributions can create corruption, or the appearance of corruption. So, in the interest of democratic government, they can be curbed. The Court therefore upheld limits on individual contributors of $1,000 per candidate per election. It also upheld a limit of $25,000 on the total annual contributions that individuals may make to candidates, parties, and PACs.The Buckley decision also upheld the system by which we have funded Presidential elections in this country since 1976 with taxpayer money. Simply put, it is constitutional to offer candidates a very tempting inducement -- about $60 million in public funds for Presidential candidates in the last election -- to limit their spending. The limits in the Presidential system are voluntary. Ross Perot and Steve Forbes decided not to abide by them.These important components of the Buckley decision, which the ACLU argued against at the time and with which it still disagrees, mean that central provisions of the reform bill introduced by Senators John McCain, Republican of Arizona, and Russ Feingold, Democrat of Wisconsin, would be upheld by the Court. Those provisions -- a ban on the unlimited corporate, labor union, and individual contributions to the political parties known as "soft money," and voluntary spending limits for Congressional campaigns, made more attractive by the offer of free and reduced-rate TV time for those who limit their spending -- are worthy and constitutional goals. More far-reaching inducements to candidates to voluntarily limit their spending, like providing clean public money for all Congressional elections, would also pass constitutional muster.Another difficult but not insurmountable problem is the growing use of phony issue ads to make an end-run around contribution limits and the prohibition on corporate contributions to federal elections. Most of the money the political parties raise goes to pay for TV ads. Television is the single greatest expense for most candidates. Candidates are often happy when their contributors channel money into "issue ads."Thus we've seen the rise of ads that claim to be about important issues, but actually are thinly veiled campaign advertisements. In 1996, one ad accused a candidate of beating his wife. The ad didn't urge viewers to vote against the candidate, just to call him and "tell him we don't approve of his wrongful behavior." Citizens For Reform, the tax-exempt group founded by conservative activist Peter Flaherty that paid for the ad, spent $2 million in the two months before the election to air ads in fifteen Congressional districts. Triad Management, a Washington, D.C.-based political consulting firm run by a former fundraiser for Oliver North, helped steer wealthy donors to the group. At least one made a $100,000 contribution.Candidates pay for such ads out of funds that are subject to the election laws; outside groups should, too. Buckley itself permits the regulation of ads that expressly advocate the election or defeat of candidates. And in a 1990 decision, Austin v. Chamber of Commerce, the Supreme Court recognized the power of the legislature to address "the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public's support for the corporation's political ideas."Congress should try to fine-tune the definition of "express advocacy," based on the real-life experience of the 1996 elections. Phony issue ads paid for by corporate funds should not dominate and distort the electoral debate.Court decisions and FEC rulings, combined with the ingenuity of candidates and outside groups, have shredded the campaign-finance system passed by Congress in the wake of the Watergate scandal. By 1996, we had unlimited campaign spending and unlimited contributions again -- only this time through the soft-money and phony issue-ad loophole. And we had more scandals.How do conservatives respond? By promoting a bill that would make the problem of money in politics even worse. Aptly named for its chief House sponsor, Representative John Doolittle, Republican of California, the bill would wipe out all limits on individual campaign contributions to candidates, PACs, and parties, while requiring all contributions to be disclosed on the Internet within twenty-four hours. The Cato Institute loves this idea: Adam Smith meets the FEC.A system of unlimited contributions to candidates is frightening to contemplate. Major legislative battles already are cash cows for members of Congress. Under the Doolittle bill, they will be gold mines. Just get on the right committee, open your bank account, and watch the money stream in. The incentive for corporations to launder contributions through employees will be hard to resist and even harder to police. Why raise eyebrows by having twenty-five employees, including some secretaries and clerks, send in $1,000 checks? Just funnel the $25,000 or even $100,000 to your favorite Senator through a wealthy executive.But won't disclosure solve all these problems? Here's the theory:ÊJust give the public all the information, and if it thinks candidates are for sale to the wrong people, it won't elect them. Sounds good, but it won't work. We actually have a pretty good system of disclosure now. It's not instantaneous, but the information is available fairly quickly, especially in the final month of the campaign. The problem is not disclosure but public access, public understanding, and timing. Not everyone has a computer. Not everyone with a computer has access to the Internet, or the technical capability to obtain campaign-finance information and make sense of it.Once very rich people can give unlimited amounts directly to candidates or PACs, voters will have an incredible burden added to their decision-making process. And not much information to go on. Even if a vigilant press does its best to help, it won't be enough. The information may also come too late. Political contributions flow throughout the election cycle, as legislation is being considered in Congress. For example, AT&T's PAC distributed $166,000 to federal candidates on a single day in late 1995, the day after a compromise on the telecommunications legislation was reached.Imagine this scenario: The Doolittle bill is law. Early next year, an electric-utility executive gives $100,000 to the chairman of the Senate Energy Committee, which is marking up the electricity deregulation bill the next week. The Senator, who was reelected in 1996, drops a provision from the bill that would have prohibited utilities from passing on to consumers all of the costs from their failed nuclear plants. A year later, reeling from your swollen electricity bill, you get on your computer and trace the money, figure out the timing of the contribution and the legislation, and decide to act. Congratulations! You can vote against your Senator in 2002.Bob Schiff is a staff attorney with Public Citizen's Congress Watch.