Political Money, by David W. Adamany and George E. Agree; ABA Symposium on Campaign Financing Regulation
Political Money: A Strategy for Campaign Financing in America.
by David W. Adamany and George E. Agree.
Johns Hopkins. 242 pp. $11.95.
Symposium on Campaign Financing Regulation.
American Bar Association. 148 pp. $5.00.
The campaign-finance law signed by President Ford a year ago deals on its surface with the way people spend money on politics. Its effects, however, are likely to reverberate through all the elements making up the basic structure of elections. The law already is changing the shape of presidential politics: the style of campaigning, the structure of campaign organizations, the types of candidates most likely to succeed, and the relative importance of different interest groups—all are affected by the rules telling people how to spend their political money.
The law’s impact will be felt beyond presidential campaigning as well. Public financing for candidates, contribution limits, and spending limits will have a direct bearing on the future role of the political parties, and may also affect the relationship between the President and Congress. Differences between federal and state law already are transforming the relationship between state parties and candidates for federal office, and the possibility exists of future impact on the relations between the two levels of government as a whole.
Unfortunately, none of these issues seems to have been discussed during the two-year-long congressional debate over campaign financing; the forum where some of them are now being raised is the U.S. Supreme Court, which is expected to rule on the law’s constitutionality before January 1. Although the two books under review do not answer every relevant question, they do have the merit of considering the long-range impact of campaign-finance regulation, and as a result they should do more to stimulate thought on the important issues than all the congressional debates combined.
Political Money, a study sponsored by the Twentieth Century Fund, is primarily an argument for a system of public campaign financing different from the method embodied either in the federal law or in the ten states that already have public campaign-financing schemes. The authors maintain that the key goals of campaign regulation should be: to reduce the political effect of the unequal national distribution of wealth; to provide enough money to insure well-financed opposition to incumbents, most of whom are becoming increasingly safe bets for reelection; to free candidates from the pressure that comes from being excessively beholden to a few large givers; to help prevent corruption and reduce the level of public cynicism about corruption; finally, to do all this in a way that will not upset the existing relationships between parties and candidates, or among the different levels of government.
Adamany and Agree say that the present law, with its contribution limits, goes part way toward satisfying the need to equalize the influence of citizens on politics. They would go further, however, by reducing the $1000 contribution limit to $100. They do not advocate limits on campaign spending; the present law, in its constitutionally least defensible sections, does require such limits.
The public-financing plan Adamany and Agree propose is intended to enhance equality in a general election. All citizens would have vouchers that could be given to the candidate of their choice. During the nomination period, instead of vouchers there would be a system of matching grants (the authors think too few people would turn in vouchers during this period to help the candidates). By using an index of present support to determine how much each candidate should get, both methods would avoid discriminating against independents and new minor parties, as the federal law now does. To help counter the possibility that public financing of candidates will weaken the parties, Adamany and Agree would give direct proportional grants to parties as well as to candidates. In addition, to prevent any upset of the delicate system of checks and balances, they say that any federal financing system should include both presidential and congressional candidates.
The basic approach Political Money takes toward campaign financing has much to recommend it, particularly in its concern for checks and balances and for preserving the parties. Its most serious weakness is the $100 lid on contributions, which only exacerbates the problem the present law created for little-known candidates who need seed money to get started. The authors seem to have let their concern for equality get the better of them, to the detriment of another of their goals—fostering competitiveness. In conversation after the book was published, Agree has said he would favor omitting the contribution limits until a candidate reached a reasonable threshold amount. With this modification, the ideas in Political Money merit serious consideration, if Congress ever gets a second crack at the subject.
The American Bar Association’s symposium is an even more impressive reminder than Political Money of what the level of debate should be on public issues. The ABA’s Special Committee on Election Reform called together a distinguished panel of political experts to discuss the implications of the new law, and the transcripts of their discussions contain some of the most stimulating observations about the problems of campaign-finance regulation in print anywhere. It is unfortunately impossible to summarize all of the interesting exchanges, but the ABA would be doing a real service if it prefaced the book with an introduction explaining the law to the general reader and then circulated it through bookstores—it is currently available only by direct order.
It remains to be seen whether the Supreme Court will look at some of the broader issues raised by these books, or whether it will let the pressure of time rush it into accepting Congress’s judgment uncritically. If the justices take the time to study the legislative record, and then compare it to such books as Political Money and the ABA symposium transcript, they will soon discover that many of the key issues were never addressed by Congress.
Thus, everyone agrees that the spending limit imposed by the 1974 law cuts into a candidate’s ability to speak. The law’s defenders say that the limit is needed to reduce the candidate’s desire to solicit high contributions, but this seems to be, at best, a roundabout reason, and possibly insufficient to justify the indirect limitation on speech involved. Here a constitutional issue, one of free speech, intersects with a political one, as a law intended to prevent discrimination may be seen to have a chilling effect in practice. The Court should not lightly go into such political questions, but this is an area where it has no real choice.
As for limits on contributions to election campaigns, it is clear that what Congress is trying to stop is the undue influence large contributors sometimes have on officeholders. But how widespread is the problem of undue influence? If we are talking about no more than a few thousand large contributors, as has been suggested, would it not be possible to handle the situation in a less elaborate manner—for example, effective public disclosure combined with vigorous law enforcement either by the Attorney General or by an independent prosecutor?
The initial evidence, moreover, seems to indicate that candidates who are not widely known, who are trying to present an unpopular or newly emerging point of view, or who represent a poor constituency, are hurt far more seriously by the contribution limits than are incumbents or mainstream candidates. Campaigns cannot begin in a serious way without “seed money,” and even a candidate who intends to rely primarily on small contributions must either be an incumbent, or begin with a few large gifts to cover the cost of initial solicitations, or be sufficiently well-known to raise money with one newspaper advertisement. The rich can get around this problem, since under the law a person can contribute enough to his own campaign to get it past the critical point.
Under the old system, someone like Julian Bond in his abortive 1975 presidential bid would have been allowed to borrow enough for at least one attempt to raise money by mail. If the mailing did not work, the loan would have given him a chance to find out. Under the 1974 law it is illegal to begin with a large loan. Here a constitutional issue arises. Do the First and Fifth Amendments permit a law that so clearly favors rich people, media stars, and incumbents?
Finally, one provision in the law makes it illegal for people acting on their own to spend more than $1000 on behalf of or against a candidate. These “independent expenditures” are distinguished from “contributions” which are gifts to a candidate’s political committee and used as the candidate sees fit. Independent expenditures include such things as buying a billboard without consulting anybody. The justification for this remarkable limitation on independent activity is that without it, the law would contain a massive loophole that would make spending and contribution limits meaningless. That may be true. But is it really constitutional, in the name of closing a loophole, to prohibit a citizen from spending the more-than-$1000 it would take to sponsor a book or buy a newspaper advertisement that would tell why he opposes the President’s re-election?
These issues are all fundamental. In each case, the Court must ask whether a particular item in the law is the least intrusive way to achieve a legitimate goal, when achieving it affects political speech. In each case, the means Congress has already selected toward its end seem questionable. Unfortunately, if past history is any guide, the Court may indeed end up accepting the dubious judgment of Congress. The post-World War II Court is often regarded as one that has stood foursquare against the legislature in defense of civil liberties, but the fact is that almost all the laws declared unconstitutional by the Court since 1937 have been state laws; only the law lowering the voting age in 1970, and before that the 1964 ruling allowing Communists to hold passports, come to mind as cases in which the Court overturned acts of Congress, and neither decision was one likely to provoke a confrontation between the two branches. One may hope that the present case will prove an exception to this post-1937 record; it offers the Court a particularly welcome opportunity to correct the irresponsibility of reformers who may have wanted to do good but who failed to think through the full consequences of their actions.