Faulty assumptions and undemocratic consequences of campaign finance reform

Yale Law Journal

Volumn 105, Issue 4, 1996, Pages 1049-1091

  Smith, Bradley A ^a  

^a CAPITAL UNIVERSITY   (United States)

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EID: 0002495482     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/797246     Document Type: Article

References (314)

1. FRANK J. SORAUF, INSIDE CAMPAIGN FINANCE 26 (1992).
2. For examples of reform advocacy outside legal circles, see ELIZABETH DREW, POLITICS AND MONEY: THE NEW ROAD TO CORRUPTION (1983);
3. PHILIP M. STERN, THE BEST CONGRESS MONEY CAN BUY (1988).
4. Over 400 newspapers editorialized in favor of campaign finance reform in 1988. HERBERT E. ALEXANDER & MONICA BAUER, FINANCING THE 1988 ELECTION 113 (1991).
5. In the 1994 elections, Missouri, Montana, and Oregon passed referenda limiting contributions in support of state legislative candidates to just $100. A similar measure passed in Washington, D.C., in 1992. See Alversie Mitchell & Doug Funderburk, We Must Finish Campaign Finance Overhaul, KANSAS CITY STAR, Apr. 14, 1995, at C7. However, voters in Colorado defeated a similar proposal. See id.
6. See, e.g., Daniel H. Lowenstein, On Campaign Finance Reform: The Root of All Evil Is Deeply Rooted, 18 HOFSTRA L. REV. 301, 348-60 (1989);
7. Marlene A. Nicholson, Continuing the Dialogue on Campaign Finance Reform: A Response to Roy Schotland, 21 CAP. U. L. REV. 463, 471-82 (1992);
8. Fred Wertheimer & Randy Huwa, Campaign Finance Reforms: Past Accomplishments. Future Challenges, 10 N.Y.U. REV. L. & SOC. CHANGE 43 (1980-81);
9. Fred Wertheimer & Susan W. Manes, Campaign Finance Reform: A Key to Restoring the Health of Our Democracy, 94 COLUM. L. REV. 1126, 1149-57 (1994). This is but the tip of an enormous iceberg of legal literature urging restrictions on campaign spending, contributions, or both.
10. 424 U.S. 1 (1976) (per curiam). For examples of this instrumentalist view, see, e.g., J. Skelly Wright, Money and the Pollution of Politics: Is the First Amendment an Obstacle to Political Equality?, 82 COLUM. L. REV. 609, 625-42 (1982).
11. For an example of a broader instrumentalist view, see Owen M. Fiss, Free Speech and Social Structure, 71 IOWA L. REV. 1405 (1986).
12. Frank J. Sorauf, Politics, Experience, and the First Amendment: The Case of American Campaign Finance. 94 COLUM. L. REV. 1348, 1357 (1994); Wertheimer & Huwa, supra note 3, at 45.
13. Wertheimer & Huwa, supra note 3, at 45.
14. Many of FECA's provisions, however, were quickly declared unconstitutional by the Supreme Court in Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam). See infra notes 45-46 and accompanying text. Reform advocates have, with some justification, argued that Buckley's elimination of some of FECA's most important provisions explains the apparent failure of reform efforts. I will attempt to show that, even apart from the Buckley Court's holding, FECA was inherently flawed.
15. Spending Explodes Since Reform, CAMPAIGNS & ELECTIONS, June-July 1993, at 1, 1.
16. However, spending did level off, and even declined in terms of inflation-adjusted dollars, in the late 1980s. See David S. Broder, Campaign Finance Farce, WASH. POST, May 3, 1992, at C7.
17. Frank J. Sorauf, Political Parties and Political Action Committees: Two Life Cycles, 22 ARIZ. L. REV. 445, 451 (1980).
18. Final Tabulations: PACs Contributed $189.4 Million to Congressional Candidates During 1993-94 Election Cycle, POL. FIN. & LOBBY REP., Apr. 12, 1995, at 1, 1.
19. Wertheimer & Huwa, supra note 3, at 48.
20. A. Martin Willis, Penniless PACs: Why Do They Bother to Exist?, POL. FIN. & LOBBY REP., Nov. 9, 1994, at 1, 3 (indicating number of PACs filing Federal Election Commission (FEC) reports in first 18 months of election cycle).
21. Wertheimer & Manes, supra note 3, at 1133.
22. Cass R. Sunstein, Political Equality and Unintended Consequences, 94 COLUM. L. REV. 1390, 1402 tbl. 2 (1994).
23. See, e.g., Lillian R. BeVier, Money and Politics: A Perspective on the First Amendment and Campaign Finance Reform, 73 CAL. L. REV. 1045 (1985). Professor BeVier finds reformists' legal arguments lacking under traditional First Amendment analysis. However, BeVier admits that she "has deliberately not addressed what is of course the most profound issue: whether political freedom as we have known it can in principle be reconciled with active legislative pursuit of equality of political influence." Id. at 1090.
24. See, e.g., BeVier, supra note 15; Richard A. Epstein, Property, Speech, and the Politics of Distrust, in THE BILL OF RIGHTS IN THE MODERN STATE 41 (Geoffrey R. Stone et al. eds., 1992) (invoking concepts of natural rights and property rights as well as speech rights in opposition to regulation of campaign finance);
25. Daniel D. Polsby, Buckley v. Valeo: The Special Nature of Political Speech, 1976 SUP. CT. REV. 1 (arguing that campaign contributions should be considered speech entitled to full First Amendment protection).
26. See, e.g., Michael J. Malbin, Looking Back at the Future of Campaign Finance Reform: Interest Groups and American Elections, in MONEY AND POLITICS IN THE UNITED STATES: FINANCING ELECTIONS IN THE 1980s 232, 232 (Michael J. Malbin ed., 1984);
27. Roy A. Schotland, Proposals for Campaign Finance Reform: An Article Dedicated to Being Less Dull Than Its Title, 21 CAP. U. L. REV. 429, 436-37 (1992);
28. Sunstein, supra note 14, at 1390. Schotland and Sunstein generally support reform efforts, but argue that reformers have not been sensitive enough to manipulation of reform by incumbents, see Schotland, supra, at 443; Sunstein, supra note 14, at 1400, and the possibility that campaign finance laws might be circumvented, see id. at 1403-11. Stephen Gottlieb, whose critique comes closest to my own, expresses broad concern that reformers have promoted major changes in our democratic processes without a solid understanding of the empirical results of proposed reforms. See Stephen E. Gottlieb, The Dilemma of Election Campaign Finance Reform, 18 HOFSTRA L. REV. 213, 213-14 (1989). He suggests that there is simply no way to define in advance the resources that any group deserves, and that all proposals to limit spending and contributions will therefore produce unintended consequences that are often detrimental, "both to the goals of the reformers and the values traditionally cherished in first amendment jurisprudence." Id. at 214-16.
29. This Essay will focus primarily on the regulation of federal campaigns, recognizing that many states have adopted similar regulatory schemes with similar negative effects. These state laws share the assumptions and basic structure of the federal regime. For a brief summary of state regulation, see FRANK SORAUF, MONEY IN AMERICAN ELECTIONS 285-90 (1988).
30. For example, one can peruse four recent symposia on campaign finance reform and find no reference at all to how political campaigns were funded prior to World War II. See Symposium on Campaign Finance Reform, 94 COLUM. L. REV. 1126 (1994);
31. Symposium on Political Expression, 21 CAP. U. L. REV. 381 (1992);
32. Frameworks of Analysis and Proposals for Reform: A Symposium on Campaign Finance, 18 HOFSTRA L. REV. 213 (1989);
33. Symposium, Money in Politics: Political Campaign Finance Reform, 10 HASTINGS CONST. L.Q. 463 (1983).
34. Professor Roy Schotland relates an amusing story about Eugene McCarthy, in which McCarthy imagines Common Cause founder John Gardner sitting with Thomas Jefferson at the writing of the Declaration of Independence. Jefferson turns to Gardner and says, "Well, John, how's this: 'We pledge our lives, our fortunes, and our sacred honor'. . . Quite fine, is it not?" "Yes Tom . . . but I believe it would be finer if it read 'We pledge our lives, our sacred honor, and our fortunes up to $1,000 per annum.'" Schotland, supra note 17, at 438 n.18.
35. See, e.g., the title of Fred Wertheimer's most recent piece, Campaign Finance Reform: A Key to Restoring the Health of Our Democracy. See Wertheimer & Manes, supra note 3. Wertheimer argues that dependency on special interest money is "central to the crisis in public confidence that faces our government" and is a "fundamental problem of our political system." Id. at 1127.
36. GEORGE THAYER, WHO SHAKES THE MONEY TREE? 25 (1973).
37. ROBERT E. MUTCH, CAMPAIGNS, CONGRESS, AND COURTS: THE MAKING OF FEDERAL CAMPAIGN FINANCE LAW at xv (1988).
38. See DONALD B. COLE, THE PRESIDENCY OF ANDREW JACKSON 17-21 (1993);
39. NATHAN MILLER, STEALING FROM AMERICA: A HISTORY OF CORRUPTION FROM JAMESTOWN TO REAGAN 116-17 (1992).
40. See MUTCH, supra note 23, at xvi; THAYER, supra note 22, at 38.
41. See SORAUF, supra note 1, at 2-3.
42. Id.
43. Id.; see also JAMES K. POLLOCK, JR., PARTY CAMPAIGN FUNDS 113-25 (1926) (providing detailed description of methods used to collect such assessments and of slow decline in assessments' importance after introduction of civil service reform).
44. Lloyd J. Mercer, Railroad Land Grants, in ENCYCLOPEDIA OF AMERICAN BUSINESS HISTORY AND BIOGRAPHY: RAILROADS IN THE AGE OF REGULATION, 1900-1980, at 353 (Keith L. Bryant, Jr. ed., 1988).
45. Daniel K. Tarullo, Law and Politics in Twentieth Century Tariff History, 34 UCLA L. REV. 285, 286 (1986).
46. See, e.g., STUART CHASE, GOVERNMENT IN BUSINESS 25 (1935).
47. THAYER, supra note 22, at 30-31.
48. See, e.g., STEPHEN A. SALMORE & BARBARA G. SALMORE, CANDIDATES, PARTIES AND CAMPAIGNS: ELECTORAL POLITICS IN AMERICA 29 (1985) (noting willingness of business to spend large sums in 1896 to protect itself from "the populist threat"); THAYER, supra note 22, at 49 ("[B]usinessmen flocked enthusiastically to McKinley because he was one of them.").
49. MUTCH, supra note 23, at xvii.
50. Id. at 3. Ryan and Belmont were good for another $80,000 and $250,000, respectively, in 1908. THAYER, supra note 22, at 54. Candidates such as Davis were often expected to finance a portion of their own campaign as a cost of gaining the party's nomination. SORAUF, supra note 1, at 2-3.
51. SORAUF, supra note 1, at 3 (citing LOUISE OVERACKER, MONEY IN ELECTIONS 133 (1932)). In 1928, $1000 was enough to pay cash for two new automobiles. Id.
52. MUTCH, supra note 23, at xvii.
53. Id. at 1-8.
54. SORAUF, supra note I, at 5-6. Sorauf notes that there was not a single prosecution under the 1925 federal disclosure law, ultimately repealed in 1971. Id. at 6. For a detailed account of the evolution of federal law prior to 1971, see MUTCH, supra note 23, at 1-42.
55. SORAUF, supra note 1, at 3-4.
56. Id. at 4.
57. Id. at 4-9.
58. Federal Election Campaign Act Amendments of 1974, Pub. L. No. 93-443, 88 Stat. 1263.
59. Id.
60. 424 U.S. 1 (1976) (per curiam).
61. See id. at 3-5.
62. See, e.g., Vincent Blasi, Free Speech and the Widening Gyre of Fund-Raising: Why Campaign Spending Limits May Not Violate the First Amendment After All, 94 COLUM. L. REV. 1281, 1324 (1994); Sunstein, supra note 14, at 1400; Wright, supra note 4, at 644-45.
63. See, e.g., Lowenstein, supra note 3, at 351-60.
64. See CASS R. SUNSTEIN, THE PARTIAL CONSTITUTION 84 (1993)
65. ("Many people think that the present system of campaign financing distorts the system of free expression . . . ."); Paul G. Chevigny, The Paradox of Campaign Finance, 56 N.Y.U. L. REV. 206, 226 (1981) (book review) ("[T]o continue the present system of campaign financing . . . is to perpetuate a system by which money skews the democratic process.").
66. BeVier, supra note 15, at 1073-74.
67. See Schotland, supra note 17, at 435 (alluding to GUNNAR MYRDAL, AN AMERICAN DILEMMA: THE NEGRO PROBLEM AND MODERN DEMOCRACY (1944)).
68. I do not propose to address in this Essay various arguments that the United States is a repressive society in which a small ruling class has controlled the masses through a corrupt political and economic system. See, e.g., DERRICK BELL, CONFRONTING AUTHORITY (1994).
69. Nor do I attempt, in this Essay, to rebut the recently argued proposition that the Constitution actually requires public funding of the electoral process. See Jamin Raskin & John Bonifaz, The Constitutional Imperative and Practical Superiority of Democratically Financed Elections, 94 COLUM. L. REV. 1160, 1164-74 (1994). The former critique represents a fundamental challenge to our society that goes far beyond campaign finance. The latter is an interesting proposition that cannot be fairly addressed in this Essay, other than to point out that if my criticisms of public financing and limits on private spending are correct, Raskin and Bonifaz's argument must fall, based as it is on the premise that the Constitution requires a "democratic" method of elections that cannot be attained absent public financing. See id.
70. See, e.g., OVERACKER, supra note 36, at 376 ("Unless we can find substitute sources for financing campaigns, popular control is threatened.").
71. See Ronald Brownstein, Clinton's Job One: Reversing the Anti-Government Tide, PUB. PERSP., May/June 1994, at 3, 3-4.
72. Quibblers on this point are directed to PHILIP K. HOWARD, THE DEATH OF COMMON SENSE: HOW LAW IS SUFFOCATING AMERICA (1994). I assume that the other items in this list need no citation.
73. Reformers argue, correctly, that Buckley v. Valeo prevented a comprehensive reform system from ever taking shape by striking down spending limits and limits on independent expenditures. However, given that the Court has shown no sign of retreating from Buckley, reformers must consider their proposals, and the likely consequences thereof, within the Buckley framework. Furthermore, while we cannot be certain what the empirical data might show had Buckley left the entire FECA scheme intact, it should be apparent to the reader on a theoretical level that most of the negative consequences of campaign finance reform efforts would apply regardless of Buckley. A few, obviously, would not, such as the tendency of contribution limits, coupled with no limits on candidate personal spending, to favor wealthy candidates. But most would apply, often more strongly, given that the 1974 FECA reforms were based on the flawed assumptions identified in this Essay. See Sorauf, supra note 5, at 1356. For an example of the misguided literature in the debate leading up to the passage of the 1974 legislation, see JOHN W. GARDNER, IN COMMON CAUSE 33-40, 55-57 (1972).
74. See Lowenstein, supra note 3, at 303-04.
75. See GARDNER, supra note 56, at 38, 56.
76. See id. at 55.
77. Cf. id. at 38-39 (arguing that candidates must appeal to monied interests).
78. See id. at 41-42.
79. See DREW, supra note 2, at 5; Sunstein, supra note 14, at 1392-93; Wertheimer & Manes, supra note 3, at 1126-27.
80. See, e.g., Schotland, supra note 17, at 443. This view is certainly popular among the general public. One recent poll found that 90% of respondents agreed with the proposition that "'there's way too much money in politics.'" Terry Ganey, To Campaign Finance Reform Advocates, the Webster Scandal Was Proof Positive Proposition A Would Limit Donations, Aiming to Cut Big Money's Political Role, ST. LOUIS POST DISPATCH, Oct. 23, 1994, at 1B.
81. poll my students on the first day of my election law class, and have found that approximately 75% will "agree" or "strongly agree" with the statement, "Too much money is spent on political campaigns." Nevertheless, Professor Nicholson agrees that spending on campaigns is not excessive and suggests that such an argument is a "non-battle . . . . No thoughtful student of campaign finance will dispute . . . this point, despite the fact that demagogues may occasionally still argue to the contrary." Nicholson, supra note 3, at 473; see also Lowenstein, supra note 3, at 350 (arguing that restricting PAC contributions would require replacement source of revenue). However, as Professor Nicholson also notes, "reform proposals designed by Democrats in Congress routinely include overall expenditure limitations." Nicholson, supra note 3, at 473. While Nicholson may be convinced that we do not spend too much on campaigns, many reformers' are not. See, e.g., Debra Burke, Twenty Years After the Federal Election Campaign Act Amendments of 1974: Look Who's Running Now, 99 DICK. L. REV. 357, 375-76 (1995);
82. Wertheimer & Manes, supra note 3, at 1132-33; Kenneth J. Levit, Note, Campaign Finance Reform and the Return of Buckley v. Valeo, 103 YALE L.J. 469, 473 (1993)
83. ("[Buckley] ignored the role excessive campaign spending plays in compromising the electorate's confidence in the democratic process."); see also Sorauf, supra note 5, at 1357 ("[A] consensus agenda for mainstream reform . . . includes . . . a reduction in the total sums being raised and spent on contemporary campaigns . . . ."). Furthermore, even reformers such as Nicholson tend to favor contribution limits. As Professor Lowenstein has discussed, such limits, set low enough, will have the effect of restricting overall spending. See Daniel H. Lowenstein, A Patternless Mosaic: Campaign Finance and the First Amendment After Austin, 21 CAP. U. L. REV. 381, 399-401 (1992). Most reform proposals include contribution limits. And Professor Nicholson herself is ready to accept overall spending limits as part of a reform package. See Nicholson, supra note 3, at 475. Thus, less careful reformers and much of the public believe that too much is spent; more thoughtful reformers may not believe that too much is spent, but they see little harm in further restricting spending. Either way, the assumption is incorrect.
84. See, e.g., SORAUF, supra note 1, at 26; Wertheimer & Manes, supra note 3, at 1132-33.
85. See George F. Will, So We Talk Too Much, NEWSWEEK, June 28, 1993, at 68, 68 (observing that total cost of 1992 congressional races equaled 40% of what Americans spent on yogurt that year).
86. Clare Ansberry, The Best Beef Jerky Has Characteristics Few Can Appreciate, WALL ST. J., Apr. 4, 1995, at A1, A12 (noting annual spending on potato chips in excess of $4.5 billion).
87. Post-election Reports Point to New Records, POL. FIN. & LOBBY REP., Dec. 28, 1994, at 1, 1 [hereinafter Post-election Reports]. This only includes total spending by victorious primary candidates. An additional $76 million was spent by losing primary election candidates. Id. at 5.
88. Herbert Alexander and Anthony Corrado estimate total direct spending on all local, state, and federal campaigns for the 1991-92 cycle (not including ballot issues and the presidential campaign) at $1.543 billion. DANIEL H. LOWENSTEIN, ELECTION LAW: CASES AND MATERIALS 478 (1995)
89. (citing HERBERT E. ALEXANDER & ANTHONY CORRADO, FINANCING THE 1992 ELECTION (1995)).
90. Approximately $950 million is spent on party organization and administration and political action committee overhead. Id. at 477-78. Spending on congressional races increased by roughly 17% from the 1991-92 to the 1993-94 cycle. Post-election Reports, supra note 67, at 1, 5.
91. Applying a similar rate of increase to Alexander and Corrado's figures for state and local races in 1991-92, total direct campaign spending at all levels in 1993-94 would have been approximately $1.8 billion. In recent years, the reform literature has expressed growing concern about "soft money" in campaigns. See, e.g., Wertheimer & Manes, supra note 3, at 1144-48 (arguing that "soft money" threatens integrity of presidential and congressional campaigns). In fact, "soft money" is a small part of total spending, approximately $83 million in 1991-92, or about 4.5% of the amount of direct spending. Marty Jezer & Ellen Miller, Money Politics: Campaign Finance and the Subversion of American Democracy, 8 NOTRE DAME J.L. ETHICS & PUB. POL'Y 467, 489-90 (1994)
92. (citing JOSHUA GOLDSTEIN, SOFT MONEY, REAL DOLLARS: SOFT MONEY IN THE 1992 ELECTIONS 3-4 (1993)).
93. The arguments against soft money are the same as those against direct contributions (though one additional criticism applicable to soft money and not to other types of contributions is the absence of reporting requirements for soft money, see Wertheimer & Manes, supra note 3, at 1144-45), and therefore do not change the terms of the debate. In fact, soft money actually has several advantages over direct contributions. To the extent reformers are concerned about the potential corrupting effects of campaign contributions, soft money, which is given to the parties, should ameliorate that perceived problem. It allows parties to channel their funds into competitive races and do generic party advertising, which may be beneficial for electoral competition, cf. Lowenstein, supra note 3, at 354-55 (arguing that generic party advertising has potential to move political system toward responsible party government), and it may increase party discipline by making candidates more reliant on their parties, which many political scientists view as a good thing, see, e.g., LEON D. EPSTEIN, POLITICAL PARTIES IN THE AMERICAN MOLD 3 (1986) (noting that most observers view parties as "organizationally desirable and probably essential in a democratic nation").
94. Schotland, supra note 17, at 444 (using 1987-88 data).
95. Also, one can have a lot of fun with such numbers. For example, Sony Music International will spend some $30 million, or about the cost of Michael Huffington's 1994 U.S. Senate campaign, to promote a Michael Jackson CD with the lyrics, "'Jew me, sue me, everybody do me, kick me, Kike me, don't you black or white me.'" See Sony's Statesmanship, WALL ST. J., June 20, 1995, at A18.
96. Or one can cite the $100 million, more than the cost of a presidential campaign, being spent in 1995 to promote reruns of the situation comedy, "Seinfeld." See Roxanne Roberts, The Remote Controllers; Meet the Folks Who Keep You Tuned to Their Show, WASH. POST, June 10, 1995, at B1.
97. GARY C. JACOBSON, MONEY IN CONGRESSIONAL ELECTIONS 31 (1980).
98. Gottlieb, supra note 17, at 266; see also Wertheimer & Huwa, supra note 3, at 58 (noting that greater use of television advertising increases electorate's knowledge about candidates and issues and stimulates interest in campaign) (citing Charles Atkin & Gary Heald, Effects of Political Advertising, 40 PUB. OPINION Q. 216, 228 (1976)).
99. Kentucky officials reported a sharp decline in voter turnout and interest in the 1995 gubernatorial primaries, the first state election after the state passed legislation that reduced campaign spending in 1994. John Harwood, Kentucky's New Campaign-Finance Law Limits Donations as Well as Interest in Governor's Race, WALL ST. J., Oct. 5, 1995, at A16.
100. However, turnout in the November 1995 general election was approximately 44%, about the same as in 1991. Al Cross, Final Tally Trims Patton's Edge, COURIER-JOURNAL (Louisville), Nov. 28, 1995, at 3B.
101. See, e.g., Wertheimer & Manes, supra note 3, at 1130-31 (quoting former Senate Majority Leader George Mitchell on campaign finance reform: "'[Americans] see a campaign finance system that places tremendous money demands on those who run . . . and a system dominated by negative campaigns.'"); Peter F. May, Note, State Regulation of Political Broadcast Advertising: Stemming the Tide of Deceptive Negative Attacks, 72 B.U. L. REV. 179, 187-89 (1992).
102. This perception may itself be influenced by press reporting and editorials critical of campaign advertising. See, e.g., John Balzar & Doug Conner, With Foley, Noble Era Will End, L.A. TIMES, Nov. 10, 1994, at A1, A17 (asserting that negative ads, along with special interest intrusion, constitute "the dark streak of American campaign politics");
103. Stuart Elliott, Ketchum Protests Political Ads, N.Y. TIMES, Nov. 10, 1994, at D23 (quoting advertising executive as saying negative ads are "'political filth that is not advertising and shouldn't be dignified by being called advertising'");
104. Charles Krauthammer, Political Suicide, WASH. POST, Oct. 28, 1994, at A27 (characterizing political advertising as "virulent, scurrilous, wall-to-wall character assassination");
105. Robin Toner, Bitter Tone of the '94 Campaign Elicits Worry on Public Debate, N.Y. TIMES, Nov. 13, 1994, at Al (discussing negative tone of 1994 campaign). But whether modern, televised campaign advertising is overly negative may simply be a matter of individual voter preference. Negative advertising is popular for a simple reason: It works. Indeed, as Bruce Felknor, former Executive Director of the Fair Campaign Practices Committee, has stated, "without attention-grabbing, cogent, memorable, negative campaigning, almost no challenger can hope to win unless the incumbent has just been found guilty of a heinous crime."
106. BRUCE L. FELKNOR, POLITICAL MISCHIEF: SMEAR, SABOTAGE, AND REFORM IN U.S. ELECTIONS 29 (1992).
107. FELKNOR, supra note 73, at 29.
108. Id. at 30.
109. Id. at 29.
110. See Sorauf, supra note 5, at 1356.
111. Id.
112. SORAUF, supra note 1, at 29 (citing data from University of Michigan National Election Study of 1988 election). PACs are widely assailed as the ultimate villains in the reformers' frame of reality. See, e.g., Wertheimer & Huwa, supra note 3, at 48-53; Wertheimer & Manes, supra note 3, at 1136-40. In fact, PACs are nothing more than an agglomeration of small contributors, many of whom might not contribute to politics absent PAC solicitation. To the extent that reformers truly believe that campaigns should be funded by small contributions, therefore, PACs ought to be viewed as a positive force. Cf. LARRY J. SABATO, PAYING FOR ELECTIONS 19-22 (1989) (arguing against limits on PAC donations).
113. SORAUF, supra note 1, at 30.
114. Id. at 29 (citing data from University of Michigan National Election Study of 1988 election). This figure has been quite stable for three decades. See generally Ruth S. Jones, Contributing as Participation, in MONEY, ELECTIONS, AND DEMOCRACY 27 (Margaret L. Nugent & John R. Johannes eds., 1990) (observing that typically 10-12% percent of electorate donates to campaigns).
115. See Lowenstein, supra note 3, at 348 (citing Gary Jacobson, Party Organization and Distribution of Congressional Resources: Republicans and Democrats in 1982, 100 AM. POL. Sci. Q. 603, 610 (1985-86)).
116. Cf. Wertheimer & Manes, supra note 3, at 1129-30 (citing polling data indicating public distrust of politicians).
117. SORAUF, supra note 1, at 4.
118. Id. Segregationist George Wallace was another prominent figure who raised large sums in small amounts: $5.8 million in contributions under $100 in his 1968 presidential run. Id.
119. It is interesting to note that despite his reliance on small donations from a large donor base. North was roundly castigated by many campaign finance reformers for the high cost of his campaign. See, e.g., High-cost Campaigns, ST. PETERSBURG TIMES, Nov. 14, 1994, at 8A;
120. Richard Roeper, Hofeld War Chest Filled With Lost Opportunity, CHICAGO SUN-TIMES, Nov. 9, 1994, at 9.
121. See Michael J. Malbin, Most GOP Winners Spent Enough Money to Reach Voters, POL. FIN. & LOBBY REP., Jan. 11, 1995, at 8, 9.
122. See Gottlieb, supra note 17, at 220-21; see also infra notes 144-46 and accompanying text. Thayer notes how such progressive turn-of-the-century candidates as Woodrow Wilson, Robert LaFollette, William Jennings Bryan, and Hiram Johnson (who was elected on the slogan "Kick the corporations out of politics") were financed by a small number of wealthy supporters. THAYER, supra note 22, at 54-57. Ross Perot has recently announced his intention to create a new mass party, which will presumably rely on his millions to get started.
123. Cf. Lillian R. BeVier, Campaign Finance Reform: Specious Arguments, Intractable Dilemmas, 94 COLUM. L. REV. 1258, 1274 (1994) (noting that "pervasive collective action problems" discourage Americans from following politics closely).
124. See Lowenstein, supra note 3, at 350.
125. BeVier, supra note 89, at 1274-75.
126. Within the reformist literature, there is some disagreement over the importance of this issue. Professor Lowenstein, for one, seems relatively comfortable with large monetary contributions made as part of an "electoral" strategy - that is, with the hope of electing sympathizers to office. See Lowenstein, supra note 3, at 308-13. His primary concern is with contributors pursuing a "legislative" strategy, i.e., seeking to influence, rather than to elect, a legislator. See id.; see also Daniel H. Lowenstein, Political Bribery and the Intermediate Theory of Politics, 32 UCLA L. REV. 784, 791-95 (1985).
127. Others seem equally or more concerned with the idea of "buying elections" and with the importance of voter equality. See, e.g., David A. Strauss, Corruption, Equality, and Campaign Finance Reform, 94 COLUM. L. REV. 1369, 1371-82 (1994); Sunstein, supra note 14, at 1392. Reformers whose primary goal is to reduce the allegedly improper influence of contributions on legislative decisionmaking will be less worried about efforts to elect a candidate who agrees, in principle, with the donor. By contrast, reformers who see equality as the fundamental goal of campaign finance reform will be concerned with efforts to "buy" elections. As Professor Lowenstein notes, equality is an issue that appeals to most political liberals but has little appeal to many conservatives, whereas the potentially corrupting influence of money is generally frowned upon by observers of all political stripes. See Lowenstein, supra note 3, at 346.
128. See HERBERT E. ALEXANDER, FINANCING POLITICS: MONEY, ELECTIONS, AND POLITICAL REFORM 20 (3d ed. 1984).
129. See STEPHANIE D. MOUSSALLI, CAMPAIGN FINANCE REFORM: THE CASE FOR DEREGULATION 4 (1990);
130. Gary C. Jacobson, Money in the 1980 and 1982 Congressional Elections, in MONEY AND POLITICS IN THE UNITED STATES: FINANCING ELECTIONS IN THE 1980s, supra note 17, at 38, 57.
131. MOUSSALLI, supra note 94, at 4.
132. See Gary C. Jacobson, The Effects of Campaign Spending in House Elections: New Evidence for Old Arguments, 34 AM. J. POL. Sci. 334, 342-43 (1990).
133. SORAUF, supra note 18, at 161-64.
134. Malbin, supra note 87, at 9.
135. See Late Money in Key House Races, POL. FIN. & LOBBY REP., Jan. 11, 1995, at 3, 5-6.
136. Malbin, supra note 87, at 9.
137. Money in House Seat Turnovers, POL. FIN. & LOBBY REP., Nov. 23, 1994, at 3, 4.
138. See, e.g., Blasi, supra note 47, at 1284-89.
139. See Philip L. Hersch & Gerald S. McDougall, Campaign War Chests as a Barrier to Entry in Congressional Races, 32 ECON. INQUIRY 630, 630-37, 640 (1994) (examining U.S. House races during 1988 election cycle). Hersch and McDougall define a war chest as the amount of cash on hand 11 months before the election, a time when challengers must usually decide whether to pursue a campaign. See id. at 635.
140. See id. at 632.
141. Hersch and McDougall suggest that by discouraging monetary expenditures on futile campaigns against popular incumbents, war chests may actually increase efficiency in the use of campaign resources. See id. at 634. Of course, this overlooks other benefits that may materialize from even a long-shot challenge, such as public awareness of issues and a voting outlet for the minority of voters dissatisfied with the incumbent. For present purposes, the key fact is that the correlation between larger war chests and less competition does not directly support the thesis that money buys elections, but rather underscores the point that otherwise strong candidates can usually raise large sums of money as well.
142. Id. at 635.
143. See Gary C. Jacobson, Enough is Too Much: Money and Competition in House Elections, in ELECTIONS IN AMERICA 173, 179 (Kay Lehman Schlozman ed., 1987) (estimating that $500,000 is needed for challenger to have realistic chance of success in U.S. House campaign in 1986);
144. Larry Sabato, Real and Imagined Corruption in Campaign Financing, in ELECTIONS AMERICAN STYLE 155, 169 (A. James Reichley ed., 1987) (suggesting $150,000 was "minimum financial base needed to conduct a modern campaign").
145. See GARY C. JACOBSON, THE POLITICS OF CONGRESSIONAL ELECTIONS 132 (3d ed. 1992); Jacobson, supra note 96, at 349; Jacobson, supra note 94, at 61.
146. See SORAUF, supra note 1, at 178.
147. Id. at 175-76, 178.
148. See id. at 178-79; see also Sabato, supra note 107, at 169. For a further discussion of this point, see infra notes 148-58 and accompanying text.
149. See, e.g., Lowenstein, supra note 3, at 306-35; Wertheimer & Manes, supra note 3, at 1126; Wright, supra note 4, at 609-10.
150. See Wertheimer & Manes, supra note 3, at 1129-30 (citing polling data). In Buckley, the Supreme Court held that the mere "appearance of corruption" is a constitutionally sufficient justification for infringing on First Amendment rights through campaign finance regulation. Buckley v. Valeo, 424 U.S. 1, 26 (1976) (per curiam). This argument is not particularly persuasive for several reasons. First, although the importance of appearances is discussed by Wertheimer & Manes, supra note 3, at 1130-31, among others, it is not a major argument in the campaign finance reform literature. Second, the "appearance of corruption" rationale is both unnecessary and dangerous. If the campaign finance system leads to actual corruption, then that may be a constitutionally sufficient justification for the state to infringe on free speech rights, in which case the "appearance of corruption" basis is superfluous. If the campaign system does not lead to actual corruption, then it seems very dangerous to suggest that the mistaken view of some could justify restricting the First Amendment liberties of others. For example, if complete campaign finance reform were insufficient to change the public's erroneous view, would the state then be justified, under a least restrictive means test, in censoring political reporting that wrongly focuses excess attention on money and thus itself creates the "appearance of corruption"? The justification of such restrictions by a belief known to be erroneous is a sharp departure from traditional First Amendment doctrine. Even in the midst of World War H, the Court did not uphold a law requiring a salute of the U.S. flag, see West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943), even though a refusal to salute the flag might have created an appearance of disunity damaging to the U.S. war effort - surely an important government interest. See id. at 640-41. Allowing the "appearance of corruption" to justify government intrusion on First Amendment liberties essentially allows the majority to justify the suppression of minority rights through its own propaganda. Third, one of the themes of this Essay is that money has not "corrupted" the system. I know of no way to challenge the "appearance of corruption" - others' subjective perceptions that corruption does exist-other than to make the case that their perceptions are wrong. Cf. Gary C. Jacobson, Campaign Finance and Democratic Control: Comments on Gottlieb and Lowenstein's Papers, 18 HOFSTRA L. REV. 369, 377 (1989) ("To the extent that the argument verges on '[corruption is] there even if we can't see it,' it is not . . . open to disconfirmation . . . ."). A person swayed by the arguments in this Essay should not much care about the "appearance of corruption."
151. See, e.g., Wertheimer & Manes, supra note 3, at 1128-40.
152. See MOUSSALLI, supra note 94, at 6; SORAUF, supra note 18, at 316; Janet Grenzke, PACs and the Congressional Supermarket: The Currency is Complex, 33 AM. J. POL. SCI. 1, 1 (1989);
153. Sabato, supra note 107, at 159-62; cf. W.P. Welch, Campaign Contributions and Legislative Voting: Milk Money and Dairy Price Supports, 35 W. POL. Q. 478, 479 (1982) ("[T]he influence of contributions is 'small,' at least relative to the influences of constituency, party, and ideology."). But see Lowenstein, supra note 3, at 313-22 (arguing that such studies are seriously flawed).
154. Sabato, supra note 107, at 160.
155. MOUSSALLI, supra note 94, at 5-6.
156. Nicholson, supra note 3, at 464.
157. This simple observation is often missed by campaign reformers, even those with an otherwise skeptical eye. For example, Sanford Levinson found it "scandalous" that 64 Democrats in the House of Representatives voted for a capital gains tax cut in 1989, writing, "I cannot believe [they] would have voted for this bill . . . if they were not so dependent on campaign contributions from that sector of the population which is most likely to benefit from the bill." Sanford Levinson, Electoral Regulation: Some Comments. 18 HOFSTRA L. REV. 411, 412 n.5 (1989).
158. Though hotly debated, considerable literature suggests that a reduction in capital gains tax rates would actually increase government revenue. See, e.g., George R. Zodrow, Economic Analyses of Capital Gains Taxation: Realizations, Revenues, Efficiency and Equity, 48 TAX L. REV. 419, 429-30 (1993). Perhaps these Democrats believed such arguments, and merely wanted to cut the deficit or raise revenue to fund social programs. An unwillingness to accept the possibility of legislative defeat (or in this case victory - the capital gains tax cut was defeated) on the merits tends to permeate reformist writing. See, e.g., Wright, supra note 4, at 618-19.
159. See David Adamany, Political Finance and the American Political Parties, 10 HASTINGS CONST. L.Q. 497, 539-41 (1983).
160. See, e.g., Norman J. Ornstein, The Rising Republican Centrists: Congress's New Power Brokers, WASH. POST, Nov. 20, 1995, at C3 (noting that in order to achieve even limited goals, pressure for party unity grows as party's legislative strength declines).
161. See, e.g., Richard Reeves, A Matter of Conscience, BUFF. NEWS, Mar. 17, 1995, at B3 (discussing Republican pressure on Senator Mark Hatfield to give up his seat as Appropriations Committee chairman after voting against balanced budget amendment to U.S. Constitution).
162. See, e.g., Alan McConagha, Inside Politics, WASH. TIMES, Dec. 9, 1993, at A5 (noting that Representative Marjorie Margolies-Mezvinsky cast deciding vote for President Clinton's 1994 budget because President promised to hold conference on entitlements in her district).
163. See SORAUF, supra note 1, at 165.
164. The Top PACs of the 1993-94 Election Cycle, POL. FIN. & LOBBY REP., Apr. 26, 1995, at 3.
165. SORAUF, supra note 1, at 166.
166. Id.
167. When confronted with a liberal Congress and President in 1993-94, money did not gain the NRA victory over the Brady Bill or the assault weapons ban. However, the election of a new congressional majority in 1994 may result in repeal of both of the aforementioned pieces of legislation. Of course, the NRA is not a typical group, and is perhaps an unfair example. Professor Lowenstein suggests that many groups lacking the NRA's level of voter support manage to obtain legislative success, suggesting used car dealers, sugar beet growers, and members of the tobacco industry as examples. See DANIEL H. LOWENSTEIN, ELECTION LAW: CASES AND MATERIALS, TEACHER'S MANUAL 116 (1995).
168. Yet these examples are not so persuasive for the reformers' cause as it might seem. Certainly the tobacco industry can call on large numbers of voters throughout the Upper South, and even in parts of southern Ohio, Indiana, and Maryland, which are home to tobacco growers, processors, pickers, packagers, marketers and more. Behind them stand millions of Americans who enjoy smoking. Over 80,000 used car dealers dot the American landscape, employing tens of thousands of workers. Max Gates, FTC Targets Buyer's Guide Violations, AUTOMOTIVE NEWS, Mar. 27, 1995, at 46.
169. Sugar beet growers can be found from Ohio to California and likewise draw on a vast network of employees and suppliers for support. Combined with the domestic corn syrup industry, beet growers provide over 420,000 jobs. David Hendee, Defending the Sugar Program, OMAHA WORLD-HERALD, July 17, 1995, at 1. For an excellent discussion of the complex yet limited relationship between contributors and legislative voting, see SORAUF, supra note 18, at 307-17.
170. SORAUF, supra note 1, at 166-67; Sabato, supra note 107, at 160. Lowenstein argues that the emphasis on floor votes misses the point; the action may take place elsewhere in the legislative process, such as in committee. See Lowenstein, supra note 3, at 313-29; see also Wertheimer & Manes, supra note 3, at 1140 ("'[The payback] may not come in a vote.'" (quoting former Senator Proxmire)). This would seem to be true at some level. But as Gary Jacobson points out, this argument suffers from the weakness of not being open to disconfirmation. See Jacobson, supra note 113, at 377. To the extent we have empirical data, however, it appears that the reformers consistently overstate the influence of money on the legislative process.
171. See Strauss, supra note 92, at 1372-73.
172. See Sabato, supra note 107, at 160.
173. See id. at 160-61.
174. See Strauss, supra note 92, at 1378-79.
175. See Sabato, supra note 107, at 160. Just how many votes are affected is uncertain. Welch's study of dairy price supports, a relatively specialized issue not usually subject to intense public scrutiny, found that the influence of money was dwarfed by party, ideology, and constituent concerns. See Welch, supra note 115, at 479.
176. See Lowenstein, supra note 3, at 346-47; see also Wright, supra note 4, at 618-19 (citing congressional resistance to numerous "liberal" causes, including a windfall tax on oil companies, government cost controls on hospitals, environmental legislation, regulation of auto dealers, investment credits, and "any other legislation that affects powerful, organized interests," as evidence of need for campaign finance restrictions). Of course, campaign finance reform, like most issues, does not always divide along traditional liberal/conservative lines. Many prominent conservatives, such as Barry Goldwater, have supported reform efforts, see Wertheimer & Manes, supra note 3, at 1127, while liberals such as Professor Martin Shapiro have often remained skeptical, see Martin Shapiro, Corruption, Freedom and Equality in Campaign Financing, 18 HOFSTRA L. REV. 385 (1989). This does not change the basic point that many reformers see the issue in terms of silencing the forces that have defeated cherished legislation. Goldwater, incidentally, would have benefited from limits on contributions, since he, more than most candidates, relied on a large base of small donors. See supra text accompanying note 84.
177. See Gottlieb, supra note 17, at 274-76. For a sampling of work by public choice economists, see, e.g., JAMES M. BUCHANAN & GORDON TULLOCK, THE CALCULUS OF CONSENT (1962);
178. RANDALL G. HOLCOMBE, AN ECONOMIC ANALYSIS OF DEMOCRACY (1985);
179. DWIGHT R. LEE & RICHARD B. MCKENZIE, FAILURE AND PROGRESS (1993);
180. Geoffrey Brennan & James Buchanan, The Normative Purpose of Economic 'Science': Rediscovery of an Eighteenth Century Method, 1 INT'L REV. L. & ECON. 155 (1981).
181. The basic insight of public choice theory as applied to government is that government officials, like private individuals, will attempt to maximize personal worth, whether through power, wealth, or some other benefit. Thus, they must be checked by outside interests. See, e.g., RANDALL G. HOLCOMBE, PUBLIC POLICY AND THE QUALITY OF LIFE 5-6, 18-20 (1995);
182. DWIGHT R. LEE & RICHARD B. MCKENZIE, REGULATING GOVERNMENT 10-13 (1987).
183. BeVier, supra note 15, at 1061.
184. Sanford Levinson, Regulating Campaign Activity: The New Road to Contradiction?, 83 MICH. L. REV. 939, 945 (1985).
185. See, e.g., Lowenstein, supra note 3, at 351-60; Wertheimer & Manes, supra note 3, at 1131. A fourth legislative tactic, public disclosure of campaign finance information, was included in FECA and most state legislation regulating campaign finance, and may have even broader support. See Sabato, supra note 107, at 171. Even many ardent opponents of campaign finance reform accept the benefits of disclosure laws. See, e.g., MOUSSALLI, supra note 94, at 20-21. My own view is that disclosure laws raise serious First Amendment questions, and thus are not free from difficulties. See Bradley A. Smith, Congress Shall Make No Law . . . , WASH. TIMES, Dec. 29, 1994, at A19. Because disclosure laws do not have the same type of broadly "undemocratic" consequences as the other major tactical goals of the reform movement, this Essay does not address them.
186. Supporters of heavy campaign finance regulation argue that the failure of the 1974 FECA Amendments, and specifically FECA's contribution and expenditure limits, to solve the alleged evils of the current system is due to the unwarranted constitutional restrictions placed on their efforts by Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam). See, e.g., Kirk J. Nahra, Political Parties and the Campaign Finance Laws: Dilemmas, Concerns and Opportunities, 56 FORDHAM L. REV. 53, 55 (1991);
187. see also John S. Shockley, Money in Politics: Judicial Roadblocks to Campaign Finance Reform, 10 HASTINGS CONST. L.Q. 679, 714-15 (1983). This Essay demonstrates, however, that regardless of Buckley, the fundamental assumptions of the reform effort are incorrect. The criticisms that follow do not depend on the current constitutional regime: They would apply to FECA as originally enacted, and, to varying degrees, to the various reformist schemes proposed in the post-Buckley world. A public policy based on flawed assumptions is unlikely to be successful no matter how enacted. Furthermore, the Court has not retreated from Buckley's basic holdings, and thus reformist efforts must take the constraints of Buckley into account.
188. Limits on campaign contributions are allowed under the Buckley framework, have been enacted into federal law, and are included in virtually every reformist-scholar proposal. See, e.g., Lowenstein, supra note 3, at 357 (recommending limiting contributions to just $100); Nicholson, supra note 3, at 471; Raskin & Bonifaz, supra note 52, at 1191; Wertheimer & Manes, supra note 3, at 1155. Though mandatory limits on overall spending levels are not allowed under Buckley, voluntary limits linked to the disbursement of public funds are permitted, see Buckley, 424 U.S. at 85-108. For an excellent discussion of the Court's decision on this point, see Marlene A. Nicholson, Political Campaign Expenditure Limitations and the Unconstitutional Condition Doctrine, 10 HASTINGS CONST. L.Q. 601 (1983).
189. Malbin, supra note 87, at 9.
190. See Colloquia, Constitutional implications of Campaign Finance Reform, 8 ADMIN. L.J. AM. U. 161, 169 (1994) (comments of Robert Peck).
191. See THAYER, supra note 22, at 55.
192. See Deposition of Eugene McCarthy, Ex. C at 50, Buckley v. Valeo, 519 F.2d 821 (D.C. Cir. 1975) (No. 75-1061), aff'd in part and rev'd in part, 424 U.S. 1 (1976) (per curiam); Deposition of Stewart R. Mott, Ex. D at ¶ 11, Buckley, 519 F.2d 821 (No. 75-1061) [hereinafter Statement of Stewart R. Mott].
193. See generally Stewart R. Mott, Independent Fundraising for an Independent Candidate, 10 N.Y.U. REV. L. & SOC. CHANGE 135, 138-41 (1981).
194. More recently, millionaire Malcolm S. Forbes, Jr., a political neophyte, declared his intention to seek the Republican presidential nomination in 1996. Forbes indicated that he would not have sought the nomination had former Congressman and Secretary of Housing and Urban Development Jack Kemp decided to run. Martha T. Moore, Main Goal: Carry Banner of Supply Side Economics, USA TODAY, Sept. 6, 1995, at 4B.
195. Kemp chose not to run in part because he did not want to engage in fund-raising. Alan Elsner, Running for the White House Will Take Megabucks This Time, S.F. CHRON., Feb. 1, 1995, at A9. Were Forbes able to donate to Kemp the $25 million he planned to spend on his own campaign, Kemp might have run and would quite likely have been a front-runner for the Republican nomination.
196. Lowenstein, supra note 63, at 399-401. This is because a candidate's spending is limited to available funds. By making it harder to raise money, contribution limits will indirectly lower overall spending levels. Id.
197. Gottlieb, supra note 17, at 224.
198. Id.
199. Id.
200. See JACOBSON, supra note 108, at 54.
201. Id. at 50, 53; Jacobson, supra note 94, at 62-63 (finding that challengers gained approximately 3.5 percentage points for each $ 100,000 spent, while incumbent vote totals actually went down with higher spending). This would appear to be because the incumbents are better known to the constituency at the start of the campaign. The advantages they gain from holding office can be viewed as money already spent in a campaign, and indeed often reflect past campaign spending. See John R. Lott, Jr., Explaining Challengers' Campaign Expenditures: The Importance of Sunk Nontransferable Brand Name, 17 PUB. FIN. Q. 108 (1989).
202. As such, incumbents will reach a point of diminishing marginal returns sooner than challengers, with better-known and longer-serving incumbents reaching that point sooner than lesser-known and short-term incumbents. Anecdotal evidence from the 1994 elections would seem to support this last point. The three incumbents who lost despite spending at least $1 million more than their challengers were three of the best-known, longest-serving incumbents in Congress: Dan Rostenkowski, Thomas Foley, and Jack Brooks. See Money in House Seat Turnovers, POL. FIN. & LOBBY REP., Nov. 23, 1994, at 3, 4.
203. JACOBSON, supra note 108, at 53.
204. Mandatory spending ceilings are not allowed under Buckley, but voluntary ceilings created by offering public subsidies to candidates who agree to abide by the ceiling are a common feature of many reform proposals. See Nicholson, supra note 3, at 473-75; Wertheimer & Manes, supra note 3. at 1149-54. Many of these "voluntary" proposals would be prime candidates to be struck down by the Supreme Court as violating the "unconstitutional conditions" doctrine. Typically, they are so punitive toward candidates who do not opt into the system that voluntary limits are, in effect, mandatory. See, e.g., U.S. CONGRESS ASSESSMENT PROJECT, THE HERITAGE FOUNDATION, ADVANTAGE INCUMBENTS: CLINTON'S CAMPAIGN FINANCE PROPOSAL 11 (1993) [hereinafter ADVANTAGE INCUMBENTS] (discussing reform bill proposed by President Clinton in 1993).
205. Incumbent lawmakers will always have powerful personal incentives to set spending caps at a level that disadvantages their challengers. See, e.g., ADVANTAGE INCUMBENTS, supra note 155, at 9-10; Lowenstein, supra note 3, at 335.
206. See discussion supra Section III.C.
207. Sabato, supra note 107, at 169. Incumbency is already the single best predictor of electoral success. Limits on campaign financing, by handicapping challengers still further, tend to add to political ossification. Though rates of success of incumbents seeking reelection have been consistently above 75% since the turn of the century, these rates have risen to record heights in this era of extensive campaign finance regulation. See JOHN H. FUND, TERM LIMITATION: AN IDEA WHOSE TIME HAS COME 5 tbl. 2 (1990).
208. Even in the 1994 elections, which resulted in significant political realignment, 91.4% of congressional incumbents seeking reelection were victorious. See Edward Zuckerman, Money Didn't Matter for Most Challengers Who Won, POL. FIN. & LOBBY REP., Nov. 23, 1994, at I, 1.
209. The Republican gains came primarily from the GOP's near sweep of "open" seats, i.e., seats in which the incumbent did not seek reelection. While money can help to "buy" votes, it "buys" far more votes for challengers than for incumbents. This being the case, money is an equalizer in the system, helping challengers to overcome the tremendous advantages of incumbency. Ruy A. Teixeira, Campaign Reform, Political Competition, and Citizen Participation, in RETHINKING POLITICAL REFORM: BEYOND SPENDING AND TERM LIMITS 5, 10-11 (Ruy A. Teixeira et al. eds., 1994).
210. See discussion supra Section III.D.
211. See supra note 92.
212. This is the maximum contribution for a PAC making a donation in both the primary and general election under FECA. See 2 U.S.C. § 441(a) (1988).
213. See Lowenstein, supra note 3, at 308-13, for a general discussion of the strategy considerations facing donors.
214. It may be worthwhile to consider the proposition that PACs have less of a corrupting influence on incumbent legislators than those legislators have on PACs. See Strauss, supra note 92, at 1380-82 (arguing that incumbent lawmakers may use threat of adverse legislative action to "extort" contributions from political contributors).
215. This does not mean that large contributors, even PACs, never give to challengers. They may gamble that a challenger can be the exception who wins, or they may be motivated purely by ideology. But to the extent they hope to see a difference as a result of their contributions, a legislative strategy will almost always make more sense.
216. See Lowenstein, supra note 3, at 357. At a maximum contribution of just $100, it is hard to see a legislator being swayed by any single contribution. Note, however, that this would make bundling of contributions and independent spending, two other villains in the reformist literature, more valuable.
217. See Jacobson, supra note 82, at 610-11. It is worth noting that private funding has many advantages: It is easy to administer; it supports traditional American values of volunteerism; it avoids First Amendment problems; and it actively involves millions of Americans in the political process far more than does a government check-off. See Sorauf, supra note 5, at 1361.
218. See Lowenstein, supra note 3, at 350.
219. See Jacobson, supra note 113, at 370.
220. BeVier, supra note 89, at 1273-76.
221. Professor Nicholson is right when she argues that the cost of illegal bribery is so high that most influence seekers and peddlers will not attempt it. See Nicholson, supra note 3, at 466-68. Nevertheless, influence seekers denied a lawful means to press their case will be more prone to consider unlawful means, and there will always be takers at the right price.
222. BeVier, supra note 89, at 1276.
223. Sorauf, supra note 5, at 1356.
224. See, e.g., Celebrity Hearings: Much Show, Little Go, SAN ANTONIO EXPRESS-NEWS, July 11, 1994, available at 1994 WL 3558496 (noting that Meryl Streep and Steven Spielberg both admitted their lack of relevant knowledge during their testimony before congressional committees).
225. See Nina Easton, Star Trek: Hollywood on the Stump, L.A. TIMES, Oct. 11, 1988, at 1.
226. As may most others on this list, especially celebrities.
227. BeVier, supra note 89, at 1268.
228. Id.
229. DAVID W. ADAMANY & GEORGE E. AGREE, POLITICAL MONEY 3 (1975).
230. See BeVier, supra note 89, at 1268.
231. As of October 1995, Senator Phil Gramm appeared to be able to convert his fund-raising skills into a substantial campaign fund, but having gone that far, he seemed unable to use those campaign funds to acquire other assets needed in his campaign for President. See Paul West, Pryor's Retirement Heartens '96 GOP Hopefuls, CHI. SUN-TIMES, Apr. 23, 1995, at 24.
232. Conversely, there are numerous examples of candidates beginning with little money who are able to capitalize on other attributes to raise campaign cash. One example is President Bill Clinton, who began his 1992 presidential campaign with little cash. See Jack W. Germond & Jules Witcover, Money is Tight for the Democratic Six, 23 NAT'L J. 2984, 2984 (1991).
233. Austin v. Michigan State Chamber of Commerce, 494 U.S. 652 (1990). For further discussion of media influence, see Levinson, supra note 119, at 412-13.
234. Surveys have indicated that the views of journalists often differ sharply from those of the public at large. See Stanley Meisler, Public Found to be More Cynical Than Press, L.A. TIMES, May 22, 1995, at All (noting that only 5% of journalists, versus 39% of the public, describe themselves as politically "conservative").
235. For an ex-journalist's view of this power, see Jonathan Rowe, The View of You from the Hill, COLUM. JOURNALISM REV., July 1994, at 47.
236. "Bundling" is a practice in which a PAC solicits its supporters for contributions not only to the PAC itself, but directly to the candidates. The PAC collects those campaign donations, "bundles" them together, and delivers them to the candidate on behalf of the individual donors.
237. See, e.g., Money in Politics, 10 HASTINGS CONST. L.Q. 466, 486 (1983) (providing comments of Herbert Alexander).
238. Several proposals to limit in-kind contributions have been made. See, e.g., Carville B. Collins, Maryland Campaign Finance Law: A Proposal for Reform, 47 MD. L. REV. 524, 544-46 (1988);
239. Wertheimer & Manes, supra note 3, at 1557-58. For a more theoretical discussion of the administrative problems involved with limiting in-kind contributions, see Edward B. Foley, Equal-Dollars-Per-Voter: A Constitutional Principle of Campaign Finance, 94 COLUM. L. REV. 1204, 1246-49 (1994). Reformist scholars, however, choose almost exclusively to target the influence of money.
240. Looked at from the campaign's point of view, one might argue that the law student's real contribution is only what it would cost the campaign to hire someone else to do the same job. The hypothetical remains the same, of course, if the body shop owner's contribution is merely reduced to this amount.
241. A full discussion of the relationship between money and political equality is beyond the scope of this Essay. For a detailed discussion of the issue, see Bradley A. Smith, Money Talks: Speech, Money, and Political Equality (unpublished manuscript in progress, on file with author).
242. LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 12-3, at 798 (2d ed. 1988).
243. See, e.g., Levinson, supra note 138, at 943 (describing views of John Rawls).
244. See supra note 135 and accompanying text.
245. BeVier, supra note 89, at 1268-69.
246. See generally Gottlieb, supra note 17, at 271-72 (arguing that presence of fewer power bases fosters tendency towards "oligarchy," which can be offset by "multiple sources of power"). At the risk of being accused of gratuitously hauling out the heavy artillery of political discourse, see also THE FEDERALIST No. 10 (James Madison) (discussing control of faction by interplay).
247. See Gottlieb, supra note 17, at 271 (citing POWER, INEQUALITY AND DEMOCRATIC POLITICS 7 (Ian Shapiro & Grant Reeher eds., 1988)).
248. See Id. at 272.
249. Burke, supra note 63, at 357 (noting that over half of U.S. Senators are millionaires). 196. In 1994, Huffington spent approximately $24 million of his own fortune to run for the U.S. Senate. High-cost Campaigns, supra note 86, at 8A. By September 30, 1994, Kohl had contributed almost $4 million to his 1994 reelection effort. Edward Kennedy and Mitt Romney each loaned or contributed $2 million to their campaigns for U.S. Senate in Massachusetts. Senate Candidates Add $31.5 Million to Their Own Election Campaigns, POL. FIN. & LOBBY REP., Oct. 26, 1994, at 1, 3.
250. Physician Bill Frist of Tennessee ($3.75 million) was another big spender. See Edward Roeder, Big Money Won the Day Last November, PLAIN DEALER, Dec. 25, 1994, at 1-C.
251. On the House side. Republican Gene Fontenot ($2 million) and Democrat Robert Schuster ($1.1 million) provided much of their own campaign financing. Edward Zuckerman, Money Didn't Matter for Most Challengers Who Won, POL. FIN. & LOBBY REP., Nov. 23, 1994, at 1, 4.
252. Gottlieb, supra note 17, at 220-21.
253. Id. at 221 (footnote omitted). It is worth noting that this dynamic would exist, albeit to a lesser extent, even at Lowenstein's suggested $100 contribution limit.
254. See id. at 225 n.61, and sources cited therein. Of course, one person's "special interest" is another's "grassroots lobby," and vice versa. By "special interest," I mean a person or group seeking to influence legislation and government policy, usually in pursuit of a narrowly defined economic interest, typically employing professional staff, and usually having a strong, top-down leadership structure. Such a group is usually more concerned with influencing legislative than public opinion. By a "grassroots lobby," I mean a group that tends to operate outside of traditional centers of political leadership, that typically relies more heavily on volunteer help and a decentralized structure, and that is more likely to be ideologically motivated, even if focused on a narrow issue. Such a group would be somewhat more populist and would usually aim not to influence legislative opinion directly so much as to influence public opinion and awareness and make public opinion known to legislators. I recognize that these definitions are far from precise. The point is that campaign finance regulation leads to a professionalization of politics that may alienate more typical voters and hinder local, volunteer, and unorganized or less organized activity. In discussing "grassroots activity" in this section, I refer to political activity other than the giving of money.
255. See Mott, supra note 146, at 135. Although the necessary legal expertise can be bought, the cost will often be higher for candidates and groups with no prior experience. In local races, funds may not be available to counter the expertise gained by incumbents through experience. And, of course, it would seem to cut against the grain of the entire reformist effort to increase the importance of specialized legal skills, not to mention the availability of funds to pay for those skills, in determining who wins a campaign.
256. MOUSSALLI, supra note 94, at 9.
257. See, e.g., Amicus Brief of American Civil Liberties Union of Ohio Foundation, Inc. at 12-14, Pestrak v. Ohio Elections Comm'n, 926 F.2d 573 (6th Cir.) (Nos. 88-3131 & 88-3132), cert. dismissed, 502 U.S. 1022 (1991) (noting that Ohio Election Code has been enforced almost exclusively against challengers).
258. See Sara Fritz & Dwight Morris, Federal Election Panel Not Enforcing Limit on Campaign Donations, L.A. TIMES, Sept. 15, 1991, at A1, A8-A9.
259. Id. at A1, A8-A9.
260. Id. at A9. In McIntyre v. Ohio Elections Commission, 115 S. Ct. 1511 (1995), Margaret McIntyre, an Ohio housewife, was fined by the Ohio Elections Commission for the peaceful distribution of truthful campaign literature outside a public meeting. Ms. McIntyre was distributing flyers in opposition to a school tax levy and had signed her brochures simply, "Concerned Parents and Tax Payers." An assistant school superintendent first threatened McIntyre and later brought charges against her for violating an Ohio law prohibiting the distribution of anonymous campaign literature. Only after seven years of litigation was McIntyre exonerated by the Supreme Court. Before the Supreme Court, the State had argued that the Court's failure to uphold such regulation would make Buckley unenforceable. See Respondent's Brief at 20, McIntyre, 115 S. Ct. 1511 (No. 93-986).
261. Edward Zuckerman, Speechless in D.C., POL. FIN. & LOBBY REP., Nov. 9, 1994, at 1, 2. The regulation in question was struck down by the D.C. Circuit approximately one year after the 1994 elections. See Chamber of Commerce v. FEC, No. 94-5339, 1995U.S. App. LEXIS 31925 (D.C. Cir. Nov. 14, 1995).
262. See supra Part III.
263. See, e.g., Raskin & Bonifaz, supra note 52, at 1174-89 (arguing that Constitution requires public financing of campaigns).
264. The public generally opposes public financing. A December, 1990 NBC News/Wall Street Journal poll found public funding opposed by 55% to 38%. SORAUF, supra note 1, at 145. A January, 1990 ABC News/Washington Post poll found 31% opposed, 20% in favor, and 49% undecided. Id. at 146. Some polls have shown more favorable responses to public financing. For example, a 1990 Greenberg-Lake/The Analysis Group poll found 58% in favor and 33% opposed. Id. at 145. However, that survey also showed that 60% of voters were against public financing when told that it would result in taxpayers paying for negative advertising. Id.; see also Russ Hemphill, Public Rejects Paying for Campaigns: Poll Finds Little Support for Higher Taxes, PHOENIX GAZETTE, Sept. 22, 1993, at B3 (providing results of poll in which more than 75% of Phoenix voters opposed public financing of city council campaigns). The public has also refused to support public financing at the ballot box or through tax returns.
265. Voters have overwhelmingly defeated public-financing referenda in California, Elmer Enstrom Jr., Subsidizing Candidates: Californians Could Pay Despite Voter Opposition, SAN DIEGO UNION-TRIB., Nov. 4, 1993, available at 1993 WL 11764091, and Phoenix, Arizona,
266. Phoenix Election Post-Mortem: An Anti-Crime Mandate. ARIZ. REPUBLIC, Oct. 7, 1993, at B8.
267. Only 14.2% of Americans voluntarily contributed to the presidential campaign fund through check-offs on their 1994 tax returns. Tom Herman, Tax Report, WALL ST. J., June 21, 1995, at A1. Minnesota's state check-off system also has participation rates below 20%. SORAUF, supra note I, at 143. Of course, the lack of public support is not an insurmountable barrier: Presumably a well-organized campaign (perhaps financed by large private contributions) could convince a majority of the public that election financing is a good use of tax dollars. There are also numerous administrative problems related to public-financing schemes, including: the allocation of funds to third parties and independents, Buckley v. Valeo, 424 U.S. 1, 293 (1976) (Rehnquist, J., dissenting); whether to allocate funds on a matching formula, Schotland, supra note 17, at 458-59; setting workable spending levels for races in vastly differing districts, id. at 456; enforcement, id. at 460; and cost. Although these difficulties should not be dismissed quickly, they can probably be addressed in a reasonable, if not wholly satisfactory, manner (at least if implementing public funding is the primary goal). My focus here is on more normative difficulties.
268. See, e.g., Lowenstein, supra note 3, at 354-59; Nicholson, supra note 3, at 475-78; Wertheimer & Manes, supra note 3, at 1149-54.
269. Buckley, 424 U.S. at 54-59.
270. Id. at 85-109. However, the penalties for failing to accept "voluntary" limits may not be so steep as to amount to de facto compulsion under the Court's "unconstitutional conditions" doctrine. See, e.g., Kathleen M. Sullivan, Unconstitutional Conditions, 102 HARV. L. REV. 1413, 1415 (1989) ("The doctrine of unconstitutional conditions holds that government may not grant a benefit on the condition that the beneficiary surrender a constitutional right, even if the government may withhold that benefit altogether.").
271. President Clinton's 1993 campaign finance proposal may have crossed the line into unconstitutional conditions by including significant penalties for candidates who did not accept the voluntary limits, coupled with substantial added subsidies to their competitors. See ADVANTAGE INCUMBENTS, supra note 155, at II.
272. See supra Section IV.A.
273. Professor Nicholson, at least, is willing to live with this result. See Nicholson, supra note 3, at 475.
274. See Sunstein, supra note 14, at 1402-03; see also Lowenstein, supra note 3, at 335 (noting that President Bush's 1989 campaign finance proposals would have favored Republicans and that those proposing reform in Congress generally design plans benefiting their own party).
275. See Joel L. Fleishman & Pope McCorkle, Level-Up Rather Than Level-Down: Towards a New Theory of Campaign Finance Reform, 1 J.L. & POL. 211, 230-34 (1984); Sabato, supra note 107, at 169.
276. See supra notes 168-69 and accompanying text.
277. See supra Section IV.C.
278. See supra notes 170-71 and accompanying text.
279. See Schotland, supra note 17, at 435.
280. See, e.g., Edwin B. Firmage & Kay Christensen, Speech and Campaign Reform: Congress, the Courts and Community, 14 GA. L. REV. 195, 218 (1980); Shockley, supra note 140, at 691-99; Strauss, supra note 92, at 1383-85; Sunstein, supra note 14, at 1413.
281. See, e.g., Shapiro, supra note 135, at 393-94.
282. DAVID N. MAYER, THE CONSTITUTIONAL THOUGHT OF THOMAS JEFFERSON 159 (1994).
283. G. Edward White, Justice Holmes and the Modernization of Free Speech Jurisprudence: The Human Dimension, 80 CAL. L. REV. 391, 398 (1992).
284. MAYER, supra note 223, at 171.
285. White, supra note 224, at 398.
286. Id. Jefferson's views, which are typical of radical Whig thought at the time, may have shifted to a more absolutist position after passage of the Alien and Sedition Acts. MAYER, supra note 223, at 173-74.
287. White, supra note 224, at 403-06.
288. Id. at 406.
289. Id. at 407.
290. Zechariah Chafee, Jr., Freedom of Speech in War Time, 32 HARV. L. REV. 932, 957 (1919).
291. Id. at 956.
292. See Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).
293. MAYER, supra note 223, at 155 (quoting Jefferson).
294. ALEXANDER MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO SELF-GOVERNMENT 27, 91 (19-48).
295. Meiklejohn did seem to leave open the question, however, as to whether or not the First Amendment protected lobbyists. See id. at 99. Meiklejohn's absolutist position went beyond anything that Chafee had envisioned. See Zechariah Chafee, Jr., Book Review, 62 HARV. L. REV. 891, 898 (1949).
296. See Chafee, supra note 235, at 898-901.
297. Alexander Meiklejohn, The First Amendment is an Absolute, 1961 SUP. CT. REV. 245, 257.
298. CBS, Inc. v. Democratic Nat'l Comm., 412 U.S. 94, 122 (1973).
299. Buckley v. Valeo, 519 F.2d 821 (D.C. Cir. 1975), aff'd in part and rev'd in part, 424 U.S. 1 (1976) (per curiam).
300. Id. at 897.
301. Buckley, 424 U.S. 1.
302. Id. at 15-17, 19-22, 25-26.
303. See Harold Leventhal, Courts and Political Thickets, 77 COLUM. L. REV. 345, 360 (1977); Polsby, supra note 16, at 17.
304. For examples of authors arguing that First Amendment values may require limits on the speech of some individuals, see, e.g., SUNSTEIN, supra note 49; Fiss, supra note 4, at 1405. The opposing, libertarian view is well represented by, among others, RALPH K. WINTER, JR. & JOHN R. BOLTON, CAMPAIGN FINANCING AND POLITICAL FREEDOM (1973); BeVier, supra note 15; Polsby, supra note 16.
305. See, e.g., BeVier, supra note 89, at 1258.
306. See, e.g., Fiss, supra note 4, at 1425 ("[U]nless the Court allows, and sometimes even requires, the state to [restrict the speech of some elements of society], we as a people will never truly be free."); Leventhal, supra note 243, at 387 (arguing that because "[n]ew political structures and processes are needed for our dynamic society," courts should proceed cautiously in striking down reform measures); Shockley, supra note 140, at 697 (arguing that Supreme Court's Buckley decision "certainly goes against some of the basic ideas of the meaning of the First Amendment"); Strauss, supra note 92, at 1385 (arguing that if equality in voting is required, it "is difficult to see why" contributions cannot be limited to assure equality); Wright, supra note 4, at 609 ("Campaign spending reform is imperative to serve the purposes of freedom of expression.").
307. See, e.g., Foley, supra note 185 (arguing that Constitution requires that financial participation in politics be equalized through a system of subsidies and taxes); Raskin & Bonifaz, supra note 52 (arguing that Constitution requires public funding of campaigns).
308. See, e.g., Buckley, 424 U.S. at 235-55 (Burger, C.J., concurring in part & dissenting in part); Polsby, supra note 16; Ralph K. Winter, Political Financing and the Constitution, 486 ANNALS AM. ACAD. POL. & SOC. SCI. 34 (1986).
309. Shapiro, supra note 135, at 393.
310. See id. at 394 (noting that such regulation raises "a very particular danger").
311. See Fiss, supra note 4, at 1425.
312. Burke, supra note 63, at 391 (discussing federal laws).
313. See Fiss, supra note 4, at 1408-13; Shockley, supra note 140, at 691-99; Sunstein, supra note 14, at 1413; Wright, supra note 4, at 626-31.
314. U.S. CONST. amend. I.