EVERYTHING YOU NEED TO KNOW ABOUT POLITICAL CAMPAIGN FINANCE AND WHY THE SYSTEM CANNOT BE FIXED President Clinton and Congressional leaders need not fear that public outrage will force them to abandon their sleaziest and most treasured fund-raising techniques. The truth is that they could enact everything an angry electorate thinks it wants without making a damned bit of difference. Big Money will maintain control over our political process until the Supreme Court reverses its 20-year old ruling in Buckley v. Valeo and the public abandons its aversion to public financing. Even if there were 218 members of the House and 51 members of the Senate who genuinely wanted change (a big IF), there are two major barriers to meaningful reform of the campaign-finance system: (1) a tax-conscious public unwilling to support publicly-financed elections and (2) the First Amendment to the United States Constitution (as presently interpreted by a majority of the United States Supreme Court). The biggest hurdle is the Supreme Court's questionable conclusion in the Buckley case that money is speech. The consequence of that determination is that Congress cannot impose limits on total expenditures by a candidate except as a condition of public financing. That's where taxpayer intransigence enters the picture. Even legislators who truly want to reform the system are understandably reluctant to appropriate tax dollars to do it. And even if somehow the votes could be dredged up to do it for general elections, what about primaries? Since close to three- quarters of the Congressional districts are, for all practical purposes, one-party districts, seventy-five per cent of the problem would remain untouched unless primary-financing was included. And I doubt you could find a Democrat or Republican in all of Washington who wants to help finance an opponent's primary campaign even if the public would tolerate it! And even an unlikely public-financing system is no panacea. First of all, the system -- under the Buckley decision -- would have to be voluntary. The Supreme Court's campaign finance rulings are already turning the U.S. Senate into a millionaire's club. While candidate's are limited as to the amount of contributions they can accept from others, they can spend unlimited amounts on their own campaigns. Will a candidate who must rely on a meager handout from a tax-conscious public ever be able to compete with a mega-millionaire willing to indulge his or her own political ambitions? And if the system provided for bonuses to a candidate running against a self-financed opponent, how much would niggardly taxpayers be willing to pony up? Some have argued that it would be politically disadvantageous for wealthy candidates to opt out of the system, but Ross Perot showed he could turn abstention into a virtue by trumpeting his refusal to accept tax dollars to finance his 1992 presidential race. Voters turned against Perot for many reasons, but there is no indication he lost votes because he rejected tax dollars and paid his own way. So far we have been discussing only direct expenditures by a candidate. There's a big political world out there which includes political parties and corporations and ideological interest groups which have a stake in who gets elected to public office. While such entities are limited in the amount of their direct contributions to candidates, the Supreme Court has sharply curtailed the possibility of restricting their own independent expenditures on elections and election-related matters. The deluge of so-called soft (i.e. unregulated) money into the 1996 elections was a direct consequence of judicial decisions holding that only "express advocacy" of the election or defeat of candidates can be legally regulated. As a consequence, we were barraged this past election cycle with an orgy of negative advertising Satan-izing candidates but never suggesting that they deserved to be defeated or their opponents elected. This is called "issue advocacy" protected by the First Amendment, as if viewers might not get the message that Satan deserved to be sent straight back to Hell and not to the Congress. (Republicans got suddenly exorcised about the $35 million allegedly spent by the trade unions on so-called issue advocacy in the 1996 Congressional elections, but labor was merely trying to get into a game that corporate interests had been playing on behalf of Republican candidates for some time.) Some have proposed that under a system of public financing, bonuses be allocated to candidates who are subjected to so-called independent expenditures, that is campaigning by opposition groups uncoordinated with an actual candidate. Aside from such a proposal's being another red-flag for leery taxpayers, it is probably totally impractical, and, according to at least one federal appeals court, unconstitutional. If some outside entity attacks candidate A, who is going to decide whether Candidate B is actually aided? Such a system might even be subject to manipulation. An organization, say the Ku Klux Klan, might secretly prefer Candidate A, and realizing how unpopular it is, publicly attack Candidate A. Candidate A might thereby both gain a sympathy vote from Klan-haters plus a financial bonus. This would obviously be unfair to Candidate B. As Stanley used to say, "This is a real mess, Ollie." It is conceivable that under intense public pressure the 105th Congress might actually pass campaign finance legislation that looks like reform. It might even have some minimal impact for one election cycle. But the odds are that by time the courts get through with it and the political consultants figure out all the legal loopholes, we will be right back where we are now. Real reform is going to take more than public will. It will require either a sea change in the thinking of a majority of the Supreme Court on these issues or a constitutional amendment. # (Printed in the New Jersey Law Journal, Dec. 9, 1996)