Setting Limits

Douglas Phelps

There is no one correct strategy to win campaign finance reform.

The publicly-financed clean elections strategy is one approach. A "low limits" strategy is another. This second route sets tough low limits on the size of contributions, on out-of-district contributions, and on spending, coupling these limits with tax credits for small contributions and liberal allowances for people PACs.

Proponents of these two strategies have much in common--a grassroots perspective, a shared focus on the wholesale corruption of the system, and antipathy for the flawed McCain-Feingold legislation, which would actually raise existing contribution limits.1 We must work supportively.

But we must also debate the relative advantages of different strategies as we proceed to test and refine them.

If proving our commitment to principled reform were the only goal, the flag of public financing provides glorious colors under which to soldier forth. But since winning the battle is paramount, it may be the wrong flag to hoist.

Why? Because the "low limits" strategy frames the problem more cogently, appeals to voters, and generates a popular outcry against the Supreme Court's twisted anti-reform logic.

Framing the Problem

Reformers' first challenge is to properly frame the campaign finance problem: the fact that moneyed special interests exercise absolute control over election outcomes, and over the politicians who get elected, via campaign contributions.2 And we need to name the enemy--the rich people and corporations who have bought government lock, stock, and barrel.3

There is a lot of noise out in the popular culture about what is wrong with campaign financing. Most of it misleads. The problem is not that there is too much money in politics. Were campaign spending devoted to informative dialogue on the issues facing America, rather than negative 30-second TV spots, would we not welcome more money in politics, rather than less? Newt Gingrich is right--it is a little pathetic that we spend less as a society on political debate than on yogurt or toothpaste. The public is offended by the amount of meaningless negative advertising, not the amount of spending per se.

Nor is the basic problem that politicians spend too much time raising campaign money. To be sure, fundraising reduces the time that elected officials spend on more important duties. But this problem is incidental--not the fundamental issue.

The problem is also not that citizens attempt to influence who gets elected using every means allowed, which today includes donations. This is what a democracy is all about; the more the citizenry is engaged in trying to influence the outcome of elections, the healthier the democracy.

Nor is the problem that citizens attempt to get access to politicians, or ask before voting or working for a candidate what they can expect from the candidate in return. Voters should be vigilant and organize to hold politicians accountable, and politicians should listen to voters. It is true that, when a politician casts a vote on an issue with a particular, economically self-interested donor agitating in the wings, any quid pro quo involved crosses an important line. But whether or not such behavior sinks to the level of actual "corruption" is mostly a matter of the timing of the vote, the manner of the contribution, and the explicitness of the bargain. The excesses at the margins of everyday political fundraising--the ones that make headlines--are little more than boneheaded pratfalls along a path which all candidates and big donors routinely travel in a more artful and "law-abiding" manner.

Imagine, for a moment, a new electoral system in which donors could not meet with candidates or lobby them, donations would have to be anonymously given through an FEC fund established for this purpose, but those donations would continue to be earmarked for the candidate of the donor's choice. The campaign finance "problems" listed above would be largely eliminated, but the same candidates would keep attracting the big money and getting elected. The process would be clean. But the bias in government toward the moneyed interests would remain.

So what is the real problem? Simply this: If electoral outcomes in a modern mass-communication society are largely determined by the amount of money spent on campaigning,4 and private money is the source of campaign funding, and the wealthy (and special interests) are allowed to give contributions of a size which are beyond the reach of average citizens, such that politicians raise virtually all of their money from these large contributors5 . . . then it inevitably follows that successful candidates will be those whose ideas and positions appeal to the wealthy and to moneyed special interests. Candidates with such appeal will raise the most money, and they will win. And because candidates do not run to lose, politicians and the political parties will look increasingly alike on all issues, at least those of importance to moneyed interests.

Welcome to the present.6 Since the advent of television in the early 1950s and the rise of a Madison Avenue approach to marketing political candidates, the value of big money to politicians has grown steadily, and the dominance of big money over politics is now virtually complete. This wholesale corruption of the democracy, characterized by the dependence of all candidates on wealthy donors to finance TV advertising, is what is new in American politics. The retail corruption--influence-peddling and the quid pro quo--is no more prevalent than it was in prior eras, and perhaps less so, given the watchful eye of the broadcast news media, bans on taking gifts, and the replacement of the smoke-filled room with the primary nominating system.

A merit of the public financing solution is that it addresses the real problem. From a policy perspective, it appeals. But from an organizing perspective--the need to frame the problem simply and name the enemy--it is not so attractive. As it most naturally translates in an average citizen's mind--"using my tax dollars to finance politicians' campaigns"--public financing does not intuitively imply the problem. It requires too much context and explanation.

In contrast, the contribution limits strategy makes more immediate sense: "Limit what rich people can donate to an amount ordinary people can contemplate." This strategy directly puts the problem on our terms, i.e., that rich people have an unfair advantage over the rest of us.

From an organizing point of view, the limits strategy frames the problem and names the enemy more clearly than does a public financing strategy.

Winning

What about the important question of popular appeal and winning?

The success of the 1996 Maine ballot initiative on public financing notwithstanding,7 today's voters hate taxes, distrust politicians, and deplore campaign spending in its current form. It is an uphill challenge to persuade them to give their tax dollars to politicians to finance more negative TV spots. "I don't want my taxes being raised, I don't want politicians on the dole, and I'm sick of these 30-second political ads. Why would I want public financing?"

Add to that the persuasive libertarian objection that politicians will abuse public financing to manipulate elections. According to this argument, we should not establish a system whereby those who govern have the power to tax the governed and use the money to finance their own campaigns, with rules established by themselves. Abuse of such power is inevitable, and happens routinely in other nations.

Indeed, it is already happening here. Public financing for Presidential campaigns is rigged to prevent anyone but billionaires from challenging the two dominant political parties. Were this system used in Russia, for example, with two parties getting over 150 million public dollars and all other parties and candidates required to obtain 5 percent of the vote first before qualifying for any money in future elections, it would be ridiculed as a throwback to the old totalitarian ways.

From a policy standpoint, fair public financing of elections would achieve laudable results and clean elections. But from an organizing standpoint, it is a strategy highly vulnerable to attack: "foodstamps for politicians!" In Maine, the public financing initiative passed with an unusually well-funded campaign behind it, and little opposition ever mounted. Voters presumably saw it as simply a referendum against "special money in politics." Even so, it received a much smaller percentage of the vote than winning "low limits" initiatives have gotten.8

And one must wonder if, once a public financing system is in place, demagogues will emerge to horrify voters by characterizing it as "your tax dollars being wasted on all this negative mudslinging on TV!" If public financing is the norm, and nothing is done simultaneously to curtail the negative TV ads which tax dollars will subsidize, the outcry could be enormous, and the search begun for "whoever came up with the idea for this incredible boondoggle?"

Clearly, the success in Maine should be followed up elsewhere. But perhaps a more publicly palatable form of the clean election model should be readied, using tax credits (as did ACORN's winning initiative in Arkansas) or vouchers for small contributions, or matching funds, and/or simply by providing free TV time, radio, and mail to candidates.

In the meantime, the low limits strategy, supported by huge voter majorities at the polls in Missouri, Montana, Oregon, Colorado, the District of Columbia, Arkansas, and California,9 should be pushed: limit contributions to a size within the reach of average citizens, such as a maximum of $100, so everyone is on a more 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 percent of total fundraising, thereby forcing reliance on support from constituents entitled to vote for a candidate; limit spending (including independent and personal expenditures) to low levels that allow candidates who do not depend on large contributions to nonetheless raise sufficient money to compete; and severely limit big-money PACs while empowering people PACs which take only very small donations of $25 or less.

Voters have repeatedly supported such ideas in recent years at the ballot box. Indeed, the campaign finance cause has been resuscitated largely because of these victories. Earlier strategies, which failed to get traction over 20 years starting in the late 1970s, emphasized public financing and Congressional action. Momentum behind campaign finance reform was generated by dropping public financing and taking the case to the people, at the state and local level, in ballot initiatives.

If we want to win, shouldn't we be cautious in hauling the old baggage back on board?

Challenging the Supreme Court

Obviously, the low limits strategy needs to place increased emphasis on the need for a constitutional amendment, unless public interest lawyers are able to engineer an overturning of Buckley v. Valeo. (Indeed, any successful reform, including public financing, requires either an Amendment or court reversal, to deal with the problems of independent expenditures and the wealthy self-financed candidate.)

In Buckley, the Supreme Court began by equating the act of spending money to promote speech with speech itself, and concluded that political spending and contributions are protected by the First Amendment. That view is wrong.

Everyone has one voice, and freeing all those voices from government imposition serves various social "goods." Moreover, the First Amendment protects each voice equally, and that is fundamentally democratic. But money is neither free nor equal. To provide paid-for speech the same protection as simple speech is insidiously undemocratic.

Grassroots reformers' fundamental argument must be that a correct reading of the First Amendment does not forbid any limits whatsoever which the sovereign people may wish to place on campaign spending or contributions, so long as they apply equally and fairly to everyone.10

A central aspiration of the Bill of Rights was to protect the powerless from the abuse of concentrated power. 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.

The whole idea of the First Amendment was to guarantee that everyone's voice would be heard. The Court's current reasoning in Buckley elevates the voice of the wealthy few and drowns out the the voice of the many--ordinary citizens. It should be reversed.

But if the Supreme Court does not reverse itself, then we need a constitutional amendment to allow any 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.11

Such an amendment should not be a cause of great worry among reformers. It is illogical to argue that the First Amendment does not apply to campaign spending and contributions, but that making this point explicit within the text of the Constitution is "amending the First Amemdent" and too scary to contemplate.

A new amendment would merely clarify the First Amendment for federal judges, spelling out clearly what is already evident and commonsensical to the voters of America. 12 Namely, that the control of big money over politics kills democracy and must be ended.

Get special interest money out of politics. Don't tread on us.

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1 McCain-Feingold invites candidates to accept its system of voluntary spending limits by, among other things, doubling current contribution limits from $1000 to $2000. Other laudable attributes of the legislation are undone by this institutionalization of fat cat influence.

2 Numerous recent studies document the very high correlation between success fundraising and success on election day, and also reveal that most campaign money comes in the form of large checks from a tiny, wealthy percentage of the population.

3 Corporate contributions to candidates have been banned in federal elections since 1907, but so-called soft money loopholes have been opened up in the last twenty years to render the prohibition meaningless. Worse yet, in many states, corporations can give directly to candidates. In California, corporations alone give more than eight times the total amount from all donors contributing less than $100. California Public Interest Research Group, Elections, Inc.: How Democracy Has Become Corporatocracy in California, September 10, 1996, p. 3.

4 In 1994 in California, for example, candidates for state office who raised the most money won 96% of the time. California Public Interest Research Group, Sacramento for Sale: A CalPIRG Study of Contributions to California Legislative and Statewide Candidates in the 1994 Election Cycle, September 19, 1996, p. 4.

5 In 1994 in California, for example, candidates for legislative and statewide offices raised a whopping 97% of campaign funds from contributors giving $100 or more. 84% came from contributors of $1000 or more. Ibid.

6 Observes Kevin Phillips, "Policy in Washington is now made by what we can justly call the `venal center.' This is where the people who gave the national Republican Party a record $549 million during the 1995-96 election cycle overlap with the contributors, many of them the same wealthy Americans, who gave the national Democratic Party $332 million in the same period . . . The influence of money is driving out the influence of voters . . . ." Kevin Phillips, "The Venal Center," Los Angeles Times, February 23, 1997, p. M1.

7 I view the Maine initiative as more indicative of its sponsors' laudable coalition-building skills than the underlying popularity of the idea. Donnelly, Fine, and Miller cite public opinion polls to suggest that voters support public financing. Yet in their narrative on the Maine experience, they seem to acknowledge considerable antipathy for the idea, and emphasize the tactical importance of characterizing it as merely a means to "get special interest money out of politics," with greater public emphasis placed on this latter goal. Perhaps another interpretation of available polling might be that voters seem increasingly willing to accept public financing if it is linked to getting big money out of politics, and if little mention is made of any cost to taxpayers. Some experts regard even that statement as generous.

8 Winning low limits initiatives received 77% in Missouri (1994), 72% in Oregon (1994), 66% in Colorado (1996) and in Arkansas (1996), 65% in Washington, D.C. (1992), 63% in Montana (1994), and 61% in California (even with support dividing between two competing low limits alternatives on the ballot).

9 The California initiative was sold to voters as a "low limits" strategy to limit the influence of big money in politics. It deserves noting, however, that it was actually drafted primarily to try and hold down spending by inducing candidates to accept voluntary spending limits with offers of big money incentives. By allowing fat cats and even corporations to double contributions to candidates who accept spending limits, and also allowing huge contributions to political parties (which can then pass this money on to candidates), while severely limiting small donor PACs, Proposition 208 will actually worsen the ratio of big money to small contributions. See California Public Interest Research Group, Proposition 208: A Sheep in Wolf's Clothing; A CALPIRG Analysis of Prop. 208's Flaws, Loopholes, Drafting Errors, and Omissions, October 17, 1996.

10 For an excellent recent discussion of campaign limits and the Constitution, see Ronald Dworkin, "The Curse of American Politics," The New York Review of Books, October 17, 1996, pp. 19-24.

11 Such an amendment has been introduced in Congress for years by Senator Hollings of South Carolina, though it unnecessarily hamstrings itself by placing the word "reasonable" before "limits." Congress is considered unlikely to pass such an amendment until there is serious momentum towards a Constitutional Convention, the alternative route to amending the Constitution which has historically been necessary to prompt Congressional action on amendments.

12 Judicial obtuseness on this point should be considered in light of the fact that judges are, after all, creatures of the system, appointed by politicians who are winners under the current campaign financing rules.