|
|
Close Help | ||||||||||||||
31 U.C. Davis L. Rev. 1065
LENGTH: 7654 words
RESPONSE: Political Money and Freedom of Speech: Kathleen Sullivan's Seven
Deadly Sins -- an Antitoxin
Frank Askin *
* Professor of Law and Robert Knowlton Scholar, Rutgers, the State
University, School of Law, Newark, and the author of DEFENDING RIGHTS: A LIFE IN
LAW AND POLITICS (1997). The author is grateful to his colleagues James Pope,
Eric Neisser, and Penny Venetis for their editorial comments and suggestions and
to Sam Munger, research associate at Public Citizen's Congress Watch, for
providing valuable research assistance.
SUMMARY:
... In Political Money and Freedom of Speech, Professor Kathleen Sullivan makes
an elegant attack on what she refers to as the "mainstream orthodoxy" in regard
to regulation of election campaign financing. ... It is Professor Sullivan's
position that the real mistake in the Supreme Court's bifurcated Buckley
analysis was in upholding limits on contribution amounts. ... Putting aside an
irreconcilable ideological disagreement over whether spending money is in fact
pure speech within the meaning of the First Amendment, Professor Sullivan and I
have fundamental factual disagreements over the functioning of the political
process itself. ... Thus, even assuming spending money constitutes speech,
Professor Sullivan's argument still fails because of the fundamental flaws in
her factual assumptions. ... Moreover, speaking from my personal experience as
a political campaign manager, twice unsuccessful congressional candidate, and
occasional congressional staffer, I find terribly naive Professor Sullivan's
observations about the workings of the political process and the influence of
money. ... Meanwhile, the politician hears only indirectly from the less
comfortable members of society. ...
TEXT:
INTRODUCTION
In Political Money and Freedom of Speech, n1 Professor Kathleen Sullivan
makes an elegant attack on what she refers to as the "mainstream orthodoxy" in
regard to regulation of election campaign financing. n2 The academic orthodoxy
she challenges supports increased regulation of federal and, presumably, state
political campaign financing and urges the United States Supreme Court to
reconsider the part of its landmark ruling in Buckley v. Valeo, n3 which held
that any limits on the total amount of political spending violates the First
Amendment. n4 It is Professor Sullivan's position that the real mistake in the
PAGE 2
31 U.C. Davis L. Rev. 1065
Supreme Court's bifurcated Buckley analysis was in upholding limits on
contribution amounts. n5 Her essentially laissez faire position would allow
unlimited political contributions and expenditures, even where there is some
public financing of candidates, with full public disclosure of the sources of
candidate financial resources as the only restraint on the buying and selling of
political office. n6
To a great extent, Professor Sullivan's argument rests upon the view that any
proposal to reform the system of political campaign financing is either futile
or dangerous. She believes that because of the many informal methods of
influencing the outcome of elections, many of the reform proposals will be
ineffective. Effective reforms will either be struck down as unconstitutional or
will do substantial violence to our entire system of free expression. n7
I concur with Professor Sullivan on at least one point. I agree that many of
the significant reforms currently before Congress will be struck down under the
prevailing constitutional orthodoxy. n8 However, unlike Professor Sullivan, I
do not believe that such a result would be for the better. Nor do I believe that
the better solution would be to overrule the first wing of Buckley. If the
Supreme Court would agree to reconsider the second half of the Buckley duopoly
-- disallowing any limitations on expenditures except as a quid pro quo for
public financing -- I believe it might be possible to structure a system of
publicly financed elections with limited private fund raising. Such a system
would satisfy the public's yearning for an honest and equitable system of
political financing and preserve our basic notions of freedom of speech.
Putting aside an irreconcilable ideological disagreement over whether
spending money is in fact pure speech within the meaning of the First Amendment,
Professor Sullivan and I have fundamental factual disagreements over the
functioning of the political process itself. Her assumptions about the political
process go to the heart of her argument. Thus, even assuming spending money
constitutes speech, Professor Sullivan's argument still fails because of the
fundamental flaws in her factual assumptions. n9
Professor Sullivan's challenge to reform proposals focuses on what she calls
the reformers' "seven deadly sins of political money," which she insists skews
their view of the electoral process. n10 Based on my own experience --
including not only an academic interest but two campaigns for Congress as a
candidate and one as a campaign manager as well as several stints on Capitol
Hill as a special counsel -- I believe it is Professor Sullivan's views that are
skewed. So let me respond to her "seven deadly sins."
I. POLITICAL INEQUALITY IN VOTING: WHAT LEVEL PLAYING FIELD?
The first deadly sin of unregulated political money is that of unequal
influence. n11 Reformers argue that wealthy contributors are able to influence
the outcome of elections in ways that the average citizen is not, offending
notions of formal equality in the election process. n12 Thus, limits on
campaign spending would level the playing field.
Professor Sullivan challenges the reformers' objective of leveling the
political playing field as naive and unrealistic. Because of the constitutional
escape hatches that campaign regulation would be required to leave open, she
believes that inequality is "inevitable" "short of major revision of general
First Amendment understandings." n13 The problem, as she sees it, is that
PAGE 3
31 U.C. Davis L. Rev. 1065
"electoral speech can[not] be conceptually severed from informal political
discourse," and "formal campaign speech has so many informal political
substitutes" that limits on formal campaign expenditures will inevitably be
undermined. n14 Her arguments are almost persuasive. They are especially
appealing to a civil libertarian, such as myself, who is unwilling to restrict
the speech of independent advocacy groups that wish to participate in the
political process.
Professor Sullivan is certainly correct that limiting or prohibiting
contributions to candidates and political parties will divert some of those
funds to other advocacy entities interested in influencing the electoral
outcome. However, there is no reason to suppose that such diversion would
eliminate all the benefits derived from divorcing, or at least separating,
political contributors from the primary electoral participants. Difficult, yes;
but impossible, I think not.
First of all, many large-scale political contributions are motivated by the
contributors' desire for personal contact with those who wield political power.
n15 It is unlikely that big contributors would be willing to invest at anywhere
near the same levels for access to surrogates. While it might be possible for
such surrogate contributions to purchase access to the real objects of the
financial largesse, it would require such a degree of coordination that
prohibitive regulations and proper monitoring could substantially impede it.
Acknowledging that intrusive government monitoring of political campaigns
also invokes constitutional concern, society does seem to manage the
construction of so-called "Chinese walls" in a number of areas of social
intercourse without doing substantial damage to appropriate and protected
activities. n16 There is nothing seriously objectionable about prophylactic
rules. For example, Congress might prohibit political consultants and other
campaign specialists from working for both a candidate or party and an
independent entity that is either campaigning on the candidate's behalf or
consulting on campaign tactics. The recent experience of Ron Carey's campaign
for the presidency of the Teamsters Union is a vivid illustration of the
efficacy of prohibitions against money laundering in the political process and
provides significant deterrence to future abuses. n17 If such rules are
acceptable in union elections, and I have heard no strenuous objections from
civil libertarians over the Teamster matter, then they are equally acceptable in
the arena of governmental elections. While it is true that even uncoordinated
electioneering can be of significant benefit to the object of its support, the
Supreme Court was not totally off base in Buckley when it recognized that truly
independent political spending will often be of limited assistance to a
candidate's game-plan and, in some instances, even counterproductive. n18
If one of the "informal political substitutes" for candidate expenditures to
which Professor Sullivan refers is political party expenditures, the solution is
a limitation on "soft money" contributions. n19 Although there are some
Supreme Court Justices who would find such a restriction violative of the First
Amendment, those same Justices would overrule that part of Buckley that allows
limits on direct contributions to candidates. n20 Assuming there is still a
majority of the Court willing to reaffirm Buckley, the Court would probably also
allow limits on the amount of contributions to political parties. If Congress
found that such a prophylaxis was necessary to prevent evasion of the general
regulatory scheme, the Court could allow it on the basis of Buckley's corruption
rationale. Although a majority of the Court recently held that Congress could
PAGE 4
31 U.C. Davis L. Rev. 1065
not limit parties' independent expenditures, that decision did not appear to
cast fatal doubt on the Federal Election Campaign Act's ("FECA") limits on
contributions to parties. n21 So while some money could certainly be diverted
from candidate campaigns to party independent expenditures, confirming part of
Professor Sullivan's prediction, if the total amount of soft money available to
the parties was radically reduced, it would significantly impact the present
unequal distribution of money in the electoral arena.
Of course, Professor Sullivan's real objection is to any limitation on
political contributions to candidates, parties, or any other entity. She would
overrule the first half of Buckley. n22 But that is not the issue in the
present debate as she describes it. The immediate question is: given current
doctrine as set forth in Buckley, could any reform proposals have a significant
impact on electoral inequality without further inroads on the First Amendment.
On that count, her argument is unconvincing.
II. DISTORTION OF VOTER CHOICE: IS MONEY REALLY THE ISSUE?
Professor Sullivan challenges the reformers' notion that wealthy candidates
are able to overwhelm their opponents in the media, resulting in the election of
those who do not really reflect what would be the popular choice if campaigns
were waged on a truly level playing field. In her view, reformers exaggerate the
argument that "the ability to amass political funds in general does not
correlate closely with voter preferences." n23 Instead, she argues, (1) a
candidate's ability to attract funds is at least "to some extent" an indicator
of popularity; (2) candidates cannot successfully ignore the opinions and
desires of the mass electorate in order to appease large contributors; and (3)
the free press will "to some extent" correct misinformation provided in the
candidate's advertisements. n24 While Professor Sullivan's claims are accurate
to some extent, the real issue is to what extent. Her assumptions do not extend
nearly as far as she appears to believe.
It is critical to acknowledge that the majority of electoral districts are
one-party districts. In the absence of major scandal or national calamity, these
districts will almost always vote in a general election for the candidate of the
dominant party irrespective of the financial resources of the adversaries. n25
It is only in the minority of campaigns, where districts are not totally
onesided, that financial resources make a difference. Moreover, speaking from my
personal experience as a political campaign manager, twice unsuccessful
congressional candidate, and occasional congressional staffer, I find terribly
naive Professor Sullivan's observations about the workings of the political
process and the influence of money.
Given the current wave of personal narratives in legal scholarship, perhaps
the reader will permit me a personal anecdote. In 1986, I was the Democratic
nominee against a one-term Republican incumbent who had ousted a long-serving
Democrat after court-ordered reapportionment. I was clearly an underdog, but I
was running on the coattails of a popular local Democratic incumbent in an area
that encompassed about fifty percent of the voting population of the
congressional district. Polls I had commissioned revealed that my opponent's
support was quite soft and that less than half of the district's registered
voters recognized his name. The number one problem voters identified was
environmental degradation, an issue on which my opponent, a realtor by
profession, had a dismal record as a former member of the state legislature. My
highly-regarded consultant was of the opinion that I could be competitive if I
PAGE 5
31 U.C. Davis L. Rev. 1065
could raise enough money to blanket the district with my message.
That turned out to be an impossible task. I was not investing personal
resources, and I was not a political officeholder to whom anyone was personally
obligated or indebted. The potential money sources to whom I appealed n26 all
wanted to know where I was going to raise a minimum of half a million dollars. I
was told bluntly by even my most ardent ideological supporters that until I
could produce such a financial plan, they could provide no support. They wished
me well, but they had to put their limited resources into more competitive
races.
The bottom line was that I raised about $ 165,000 in small contributions. I
was outspent 4.5 to one by an opponent who had all the advantages of incumbency
and raised much of his money in $ 5000 chunks. I probably received contributions
from more individuals than my opponent because much of his financial support
came from the home-building and real-estate industry. If I had ever shown any
real chance of defeating him, he could have undoubtedly raised twice as much
money. By the time election day arrived, it is unlikely that more than thirty
percent of the voters had ever heard of me, let alone any idea of what I stood
for. My opponent's campaign literature had portrayed him as a great defender of
the environment. His pollsters had obviously arrived at the same conclusions as
mine. The reader and Professor Sullivan will just have to take my word that the
local press n27 made no effort to challenge his false representations.
If I had been able to at least make the race close, n28 I might have kept
my campaign organization together and given it another shot in two years, taking
advantage of whatever good will and name recognition I had attained as a
consequence of my initial effort. As it was, I had learned an invaluable lesson
and abandoned any electoral ambitions. When colleagues with the aspirations I
once had consult me for advice, I tell them either to win the lottery or marry a
wealthy spouse prepared to underwrite them. I am absolutely convinced that in
marginally competitive congressional districts like mine, the only way the
dominant party can be defeated is by wealthy opponents ready to finance their
own campaigns with minimum investments of a million dollars, taking into account
inflation since my own hapless effort. That, of course, is why our national
legislature is more and more a millionaires' club. n29 I cannot point to
empirical data, but I am certain that incumbents representing districts in which
their party is the dominant party are almost never beaten by an opponent who is
not independently wealthy.
Some might consider my views sour grapes. There can be little doubt, however,
that most political professionals would agree with my portrayal of the influence
of money in politics rather than Professor Sullivan's. The truth is, contrary to
her trilogy, that (1) candidates' ability to attract funds mainly reflects
contributors' desire to ingratiate themselves and curry favor, in addition to
their confidence in the candidates' chances of success; n30 (2) candidates do
not have to "deviate from positions acceptable to the mass of noncontributing
voters" n31 because it is easy to distort and recreate their own records,
especially against an under-funded opponent; and (3) except in a few very high
profile campaigns, the media just prints the candidates' own portrayals of
themselves and does little independent evaluation of the candidates and their
positions. In the rare event that a media source seriously analyzes a political
campaign, the message is lost in a cacophony of print and electronic voices.
Media correction is just not a particularly effective antidote to a financially
skewed electoral playing field. As the saying goes, in political campaigns
PAGE 6
31 U.C. Davis L. Rev. 1065
especially, "money talks," drowning out opposition voices. n32
III. CORRUPTION: DOES MONEY REALLY TALK AND, IF SO, SO WHAT?
The third deadly sin is direct corruption in the political process -- actual
quid pro quo selling of official acts for personal monetary gain. Professor
Sullivan appropriately minimizes this threat and focuses on the claim that
political contributions buy unequal access for contributors to lawmakers and
their staffs. n33 I must confess a bit of confusion, however, over Professor
Sullivan's answering pleading, which appears to include both a denial and a
demurrer.
The denial is founded on a redefinition of the charge from one of access to
one of equality in the "ability to affect legislative outcomes," which professor
Sullivan suggests is the real concern. n34 She then questions whether there is
any empirical evidence that contributors really get their way more often than
other constituents. n35 As evidence that political contributions are an
"unreliable investment," she claims that many corporate political action
committees are "political hermaphrodites," giving large sums to both parties.
n36 Why she believes that proves her point eludes me.
Some might cynically conclude that purchasing support on both sides of the
aisle is just good politics, making a favorable outcome even more likely. The
fact that Philip Morris diverted twenty-one percent of its $ 4.2 million in 1996
political contributions to the Democrats n37 is not particularly convincing
evidence that large-scale political giving is ineffective, especially when the
Republicans control both houses of Congress and the Democrats control the White
House. Nevertheless, Professor Sullivan comes to the remarkable conclusion that
"the case that contributions divert representative responsiveness is at best
empirically uncertain, and not a confident basis for limiting political
speech." n38
Professor Sullivan does not tarry long over the empirical issue, however,
since she really believes that trading money for political favoritism would be
all right even if true. She argues that moneyed constituencies should have as
much right to influence political outcomes as popular constituencies. n39
After all, "there is nothing wrong with private interest groups seeking to
advance their own ends through electoral mobilization and lobbying, and for
representatives to respond to these targeted efforts to win election and
reelection." n40 Therefore, she concludes, "It is at least open to question
why attempts to achieve the same ends through amassing campaign money are more
suspect, at least in the absence of personal inurement." n41 These are merely
two competing conceptions of democracy, she argues, and such democratic
disagreements cannot be a proper basis for limiting speech. n42
At least Professor Sullivan is breathtakingly consistent. She has taken the
money is speech argument to its logical end, but she is wrong. Can there really
be any serious doubt that our constitutional system favors popular government
over a plutocracy? If we did not favor popular government, why not allow the
rich to make direct payments to the poor in exchange for voting in a certain
way? n43 Indeed, why not allow individuals to actually sell their votes
through proxy certificates? Are not such restrictions limitations on speech?
The remarkable thing about Professor Sullivan's position is not that she
considers it sound democratic policy, but that she believes it is
PAGE 7
31 U.C. Davis L. Rev. 1065
constitutionally required. n44 She would apparently find that the First
Amendment forbids the majoritarian process from interfering with this
plutocratic design. She obviously believes that when the sovereign people of the
United States approved the First Amendment they were creating a society in which
Congress could make no laws abridging the freedom of the moneyed classes to use
their wealth for the political subjugation of society. Can anyone truly conceive
that the Founders intended such a plan or that the people endorsed it? Half a
century ago, the United States Supreme Court recognized that the Constitution
required the judiciary to subject legislative enactments that interfere with
rights of "discrete and insular minorities" to strict scrutiny. n45 There is
no reason to believe that the Court had in mind the moneyed classes when it
spoke of such minorities.
IV. CARPETBAGGING: OR KEEP YOUR MONEY AT HOME
On her deadly sin number four, I find myself in agreement with Professor
Sullivan. Reformers argue that because political money travels across state and
district lines, nonconstituent contributors divert representation from
legitimate constituents. n46 One proposed campaign finance reform addresses
carpetbagging by limiting candidate fund raising outside the boundaries of the
election district. n47 I would agree with Professor Sullivan that our
elections are not so localized that persons beyond the district boundaries
should have special prohibitions on making monetary contributions. n48
V. DIVERSION OF ENERGIES: IS HUSTLING FOR BUCKS GOOD GOVERNMENT?
Here Professor Sullivan tackles head on the argument that the constant need
to raise political funds diverts politicians' energies. Consequently, governance
has become a part-time job. n49 Her argument is that fund raising is merely a
part of the process of nurturing constituencies and "may well be continuous with
governing." n50 But that is only true if we accept Professor Sullivan's
previously described notion that it is acceptable for politicians to devote most
of their attentions to the care and feeding of their moneyed constituencies.
n51
The problem with this theory of governance is exposed by the observations of
former Labor Secretary Robert Reich about the "seductions" of the fund raising
process:
The seduction has been mutual. The access that the politician provides the
wealthy and the access that the politician thereby gains to the ever-expanding
network of money reinforce each other. Increasingly, the politician hears the
same kinds of suggestions, the same voicing of concerns and priorities. The
wealthy do not speak in one voice, to be sure, but they share a broad common
perspective in which such things as balancing the budget, opening trade routes,
and cutting taxes on capital gains are of central importance.
Meanwhile, the politician hears only indirectly from the less comfortable
members of society. n52
Anyone who has ever been intimately involved in the processes of politics and
governance knows how perceptive those observations are. Those of us who think
there should be a way to moderate that system and favor efforts to do so find it
hard to accept the argument that our Constitution prohibits it.
VI. QUALITY OF DEBATE: FREE TV OR NOT FREE TV?
PAGE 8
31 U.C. Davis L. Rev. 1065
I consider Professor Sullivan's sixth charge a straw sin. It has to do with
efforts of some reformers to regulate the types of messages that might be
broadcast on television. n53 If we had a level playing field, with
publicly-funded candidates having relatively equal amounts of financial
resources sufficient to communicate with their constituencies, I would be happy
to leave it to the candidates themselves to decide how to spend their campaign
money. The reason some reformers have focused on regulating television messages
is their conclusion that public funding is not politically feasible. Therefore,
they must devise less expensive means of bringing some minimum amount of
fairness and equity to the electoral arena.
VII. LACK OF COMPETITIVENESS: WILL ANYTHING WORK?
The advantages of incumbency are truly a complicating factor in any system of
campaign regulation. Incumbents enjoy a significant advantage over challengers
due to the many perquisites of holding office and their "considerable fund
raising leverage." n54 Professor Sullivan is correct when she challenges the
viewpoint of many reformers that a level financial playing field will
automatically aid challengers. n55 If a ceiling on political spending is set
too low, it will indeed further entrench incumbents. Challengers will need more
money to overcome incumbents' inherent advantages, such as name recognition,
political indebtedness, and the franking privilege. n56 These advantages
partly explain why under the current system the only challengers who can
successfully compete with officeholders are the independently wealthy.
I favor a system of publicly financed elections where the floor is set at the
optimum level for candidates to effectively communicate their messages to the
voters. At the current cost-of-living level, that would probably average about a
million dollars per congressional candidate; more in the high-rent districts and
less in others. There appears to be some reputable political science data that
indicates that once such a level of expenditure is met, the value of additional
money to a campaign is so marginal that it is not worth the diversion of the
resources necessary to raise it. n57
I recognize that my plan is certainly vulnerable to criticism on grounds of
feasibility in an era when voters resist adding to public budgets. Properly
funding federal elections could cost up to two billion in current dollars per
election cycle. n58 An extension of the public funding system to primaries
could double the amount, but if the alternative is plutocracy, even four billion
dollars would be a real bargain.
CONCLUSION
In place of regulating the raising and spending of political money, Professor
Sullivan would rely on a system of public disclosure to control the ability of
the moneyed interests to overwhelm the political process. n59 She would also
support public financing but only as a supplement to private fund raising -- as
a floor, not a ceiling. n60
As a matter of principle, I have no strong objection to allowing additional
private fund raising once an optimum level of public funding is supplied. As a
practical matter, however, it is totally unacceptable. The voting public might
be convinced that the price of publicly funded elections is worth the cost if it
would eliminate large private contributions. The public will never agree,
however, to supplementing an unregulated private system with taxpayer dollars.
PAGE 9
31 U.C. Davis L. Rev. 1065
Public disclosure of campaign giving and spending is fine. We currently have
a system of disclosure as part of the Buckley regime, but it is no substitute
for a reasonably level political playing field. Under Professor Sullivan's
no-regulations regime, the rich will only get richer. That may give the
under-funded candidate more to complain about. As a candidate, however, I would
trade that issue for a level financial playing field any day.
FOOTNOTES:
n1 30 U.C. DAVIS L. REV. 663 (1997).
n2 See id. at 664.
n3 424 U.S. 1 (1976) (per curiam).
n4 See id. at 54-59. Buckley also held that although the government may not
limit campaign expenditures outright, it may do so as a condition of receiving
public funds. See id. at 95-108.
n5 See id. at 23-29 (holding that limiting contributions is constitutional);
Sullivan, supra note 1, at 666-67, 687-90 (arguing that political contributions
should not be limited).
n6 See Sullivan, supra note 1, at 687-90.
n7 See id. at 669-70 (arguing that some pending campaign finance reform
proposals may be unconstitutional).
n8 See id. Professor Sullivan discusses restrictions on political party
independent expenditures, proposals to require candidates to limit expenditures
in exchange for reduced broadcast rates, and proposals to allow larger
contributions to candidates who adopt spending limits. See id.
n9 See id. at 671-87 (describing effects of campaign reforms on political
process). Presumably, it is Professor Sullivan's position that under the
constitutional facts, as she perceives them, there is no sufficient government
interest to justify restrictions on contributions and expenditures under the
First Amendment.
n10 See id. at 671-81.
n11 See id. at 671-75 (discussing political inequality in voting).
n12 See id. at 671-72 (discussing concept of one person, one vote, one
dollar).
n13 See id. at 675.
n14 See id.
n15 For one of the most compelling descriptions of this political mating
game, see the comments of former Secretary of Labor Robert Reich in the October
13, 1997 issue of The New Yorker.
PAGE 10
31 U.C. Davis L. Rev. 1065
Here's how it works. A wealthy individual receives an invitation to have
coffee with the President or, say, with the chairperson of a congressional
committee. The invitation may have come about without any effort on the part of
the wealthy individual, or the wealthy individual may have solicited it. In
either case, the real value of the event to the individual is that it confirms
the impression of others that he is capable of commanding the attention of a
President or another powerful person in Washington. The photograph memorializing
the coffee chat, complete with signature, hangs by no means discreetly on the
office wall. The personal thank-you note to the wealthy individual which arrived
from the politician is slyly shared with others. Word spreads of a subsequent
invitation to golf.
What this does for the wealthy individual is incalculable. Suddenly, he has
become someone with access to a Powerful Ear -- become a person, it is presumed,
of influence. Such a reputation is valuable to him, socially and financially and
in the dimly lit areas in between. It gives the people with whom he does
business the sense that he can deliver on whatever he proposes . . . .
In return, the politician may or may not get a campaign contribution directly
from the wealthy individual, and, in fact, may never get much of one at all. But
as far as the politician is concerned that donation is not the point of the
transaction. Through the wealthy individual the politician gains access to a
network of wealthy people . . . .
No policy has been altered, no bill or vote willfully changed. But,
inevitably, as the politician enters into the endless round of coffees, meals
and receptions among the networks of the wealthy, his view of the world is
reframed. The seduction has been mutual. The access that the politician provides
the wealthy and the access that the politician thereby gains to the
ever-expanding network of money reinforce each other. Increasingly, the
politician hears the same kinds of suggestions, the same voicing of concerns and
priorities. The wealthy do not speak in one voice, to be sure, but they share a
broad common perspective in which such things as balancing the budget, opening
trade routes, and cutting taxes on capital gains are of central importance.
Meanwhile, the politician hears only indirectly and abstractly from the less
comfortable members of society.
Robert B. Reich, Party Favors: In the Raising of Campaign Funds, the Currency Is
Power by Association, THE NEW YORKER, Oct. 13, 1997, at 11-12.
n16 See Kevin W. Brown, Annotation, Sufficiency of Screening Measures
(Chinese Wall) Designed to Prevent Disqualification of Law Firm, Member of Which
Is Disqualified for Conflict of Interest, 68 A.L.R. FED. 687 (1984) (describing
use of Chinese Wall by law firms to insulate attorneys disqualified for
conflicts of interest).
n17 See Teamsters Leader Barred from Election -- Carey Broke the Rules,
Court's Monitor Reports Hoffa Is Now the Front-Runner, ST. LOUIS POST-DISPATCH,
Nov. 18, 1997, at A1 (describing disqualification from election for illegal fund
raising and use of union money for campaign).
n18 See Buckley v. Valeo, 424 U.S. 1, 47 (1976) (per curiam) (stating that
independent expenditures may provide limited assistance and may be
counterproductive); Richard L. Berke, Outside "Help" on Issues Raises G.O.P.
Fears of Voter Backlash, N.Y. TIMES, Mar. 25, 1998, at A19 (discussing
PAGE 11
31 U.C. Davis L. Rev. 1065
Republican party concerns that massive independent spending by rightwing
organizations may have backfired and caused defeat of Republican candidate in
special congressional election in California in March 1998).
n19 "Soft money" generally refers to expenditures that impact on the
political process but are not spent for the express advocacy of the election or
defeat of candidates for federal office and are, thus, exempt from regulation
under the General Election Campaign Act. See ISSACHAROFF ET AL., THE LAW OF
DEMOCRACY: LEGAL STRUCTURE OF THE POLITICAL PROCESS 631-32 (1998).
n20 See Colorado Republican Campaign Comm. v. Federal Election Comm'n, 116 S.
Ct. 2309, 2323 (1996) (Thomas, J., concurring) (holding that Buckley framework
should be rejected since limits fail strict scrutiny).
n21 See id. at 2316 (noting that portions of FECA remain valid).
n22 See Sullivan, supra note 1, at 664 (arguing to eliminate campaign
contribution limits).
n23 See id. at 677.
n24 See id.
n25 See THE CENTER FOR VOTING AND DEMOCRACY, MONOPOLY POLITICS: WHY
DEMOGRAPHY IS DESTINY IN MOST CONGRESSIONAL ELECTIONS (1997). On the other hand,
public financing and a level playing field in primary elections might have a
significant impact in such districts.
n26 These sources included labor and liberal political action committees.
n27 The local press, covering various parts of the district, consisted of a
dozen daily newspapers and some 50 weeklies.
n28 I lost two to one.
n29 See generally Jamin Raskin & John Bonifaz, Equal Protection and the
Wealth Primary, 11 YALE L. & POL'Y REV. 273, 289 n.95 (1993) (citing study that
in 1992, at least 51% of United States Senators were millionaires, compared to
.4% of general population).
n30 Anyone who doubts the real purpose of large political contributions might
consider the following report on fund raising by New York Governor George
Pataki, who is up for re-election in 1998:
A small number of wealthy individuals and interest groups, many of them from
Wall Street or the real estate industry, dominated the past year's list of
contributors to the [Republican] party. Just 56 individuals, corporations or
associations accounted for more than $ 2.2 million, or one-third of all money
contributed in the last year to the party's campaign and housekeeping
committees, and nearly all of them are in businesses that are regulated by the
state, or whose interests can be directly affected by state legislation.
Many of the top contributors to the party were also major Pataki
contributors, some of whom had reached or were approaching the $ 28,000 limit on
contributions to a gubernatorial campaign. But because most of the money given
PAGE 12
31 U.C. Davis L. Rev. 1065
to the party eventually went to the Governor's coffers, his campaign was, in
effect, able to circumvent the limits legally, taking in far more in indirect
contributions from some donors than it could in direct contributions.
Richard Perez-Pena, State G.O.P. Gives Pataki Fund Cushion, N.Y. TIMES, Mar. 1,
1998, at 27.
n31 Sullivan, supra note 1, at 667.
n32 The latest figures on relative spending by congressional winners and
losers show that the candidate who spends the most money wins an overwhelming
percentage of the time. According to figures supplied by Public Citizen, in only
five of 34 United States Senate races in 1996 did the winner spend less than the
loser. See Popping the Campaign Spending Balloon: The Benefits of
McCain-Feingold Bill S. 25, CONGRESS WATCH 5-12 (1997). In the election for 435
seats in the House of Representatives, winners spent less than losers in only 36
instances, or a little more than eight percent of the time. See id. One-third of
those who spent less were incumbents. See id. In only 10 races did a challenger
unseat an incumbent while spending less. See id.
n33 See Sullivan, supra note 1, at 678 (describing unequal responsiveness of
legislators to constituent demands).
n34 See id.
n35 See id. at 679 (arguing that unequal outlays of political money do not
necessarily create inequality in political representation).
n36 See id.
n37 See Jill Abramson, 96 Campaign Costs Set Record at $ 2.2 Billion, N.Y.
TIMES, Nov. 25, 1996, at A18 (citing report by Center for Responsive Politics).
n38 Sullivan, supra note 1, at 680. Of course, the comment wholly rests on
the notion that money is speech, a notion not universally accepted.
n39 See id. at 680-82 (explaining that First Amendment protection for
symbolic and associative conduct traditionally has protected moneyed
constituencies).
n40 Id. at 680.
n41 Id.
n42 See id. at 680-81 (explaining that disagreement between relative merits
of private interest group political activities and campaign donations should not
be reason for limitations on political speech).
n43 See Brown v. Hartlage, 456 U.S. 45, 54-55 (1982) (holding that notion of
democracy is inconsistent with practice of buying votes).
n44 See Sullivan, supra note 1, at 687 (stating that campaign spending limits
conflict with First Amendment right to free speech).
n45 See United States v. Carolene Prods. Co., 304 U.S. 144, 152-53 & n.4
(1938) (holding that questions of prejudice against "discrete and insular
PAGE 13
31 U.C. Davis L. Rev. 1065
minorities" should entail analysis using strict scrutiny).
n46 See, e.g., Bipartisan Campaign Reform Act of 1997, S. 25, 105th Cong. @
502(e) (1997) (proposing that candidates not receive public election benefits
unless 60% of contributions come from candidate's home state).
n47 See id.
n48 See Sullivan, supra note 1, at 682-83 (discussing rationale for not
requiring minimum local contribution percentages).
n49 See id. at 683-84 (describing popular conception that fund raising takes
so much time away from politicians that they can only pursue their duties
part-time).
n50 See id.
n51 See id. (stating that pursuing fund raising activities is one way that
politicians explore policy proposals and maintain contact with politicians'
constituents).
n52 Reich, supra note 15, at 12.
n53 See Sullivan, supra note 1, at 684-85 (noting that certain proposals
would ban negative advertising and "sound bite" commercials).
n54 See id. at 686 (noting incumbents' participation in policy making creates
advantage).
n55 See id. (arguing that officeholders' nonfinancial advantages will aid
incumbents even with level financial playing field).
n56 See id. (finding that incumbents have substantial nonfinancial
advantages).
n57 See Gary C. Jacobson, The Effects of Campaign Spending in House
Elections: New Evidence for Old Arguments, 34 AM. J. POL. SCI. 334, 357 (1990).
n58 See Frank A. Aukofer, Petition May Boost Campaign Reform Bid: Leaders
Hope to Pressure Act on Financing Issue, MILWAUKEE J. SENTINEL, Feb. 13, 1997,
available in 1997 WL 4775460. According to the Washington-based Public Citizen,
total candidate and major-party disbursements for the 1996 federal election
campaign cycle surpassed two billion dollars based on reports to the Federal
Election Commission. See Press Release by Public Citizen, 1996 Federal Campaign
Spending up 33% from 1992: Total Candidate and Major Party Dispursements Top $ 2
Billion (Jan. 30, 1996) (visited June 5, 1998)
<http://www.citizen.org/congress/reform/archives/cfr.html>. Public Citizen broke
down the figures as follows: major-party spending equaled $ 866 million;
congressional candidates spent over $ 742 million; presidential campaigns spent
over $ 396 million. But those figures greatly underestimate what would happen if
we had publicly funded congressional elections in which at least two major-party
candidates were fully funded with an average campaign chest of a million dollars
for House of Representative candidates in 435 districts, and third-party
candidates were also entitled to partial public funding. Added to that would be
the cost of 33 U.S. Senate campaigns in each two-year election cycle.
PAGE 14
31 U.C. Davis L. Rev. 1065
n59 See Sullivan, supra note 1, at 688-90 (noting three reasons why public
disclosure of contributions would limit harm from unlimited political money).
n60 See id. at 690 (arguing that public subsidies might be required to
achieve adequate competition).
102H37
********** Print Completed **********
Time of Request: August 2, 2001 03:23 pm EST
Print Number: 59:0:32399737
Number of Lines: 611
Number of Pages: 14
