Reform Campaign Finance Reform
“Politics is supposed to be the second oldest profession. I have come to realize that it bears a very close resemblance to the first.”Ronald Reagan - 1977
The free choice of private individuals and organizations to support candidates for public office is intrinsic to the very nature of representative democracy. Any private entity must be permitted to donate its time, labor and capital to the candidate of its choice. While no one who believes in democracy would advocate limiting the amount of time or effort private individuals or organizations may contribute to political candidates or their parties, well intentioned but erroneous reformers have made strenuous efforts to severely limit their monetary contributions.
These attempts have proven to be extremely problematic for two reasons. First, they have been largely ineffectual. In the spirit of the post-Watergate reforms, Congress amended the Federal Election Campaign Act in 1974 by limiting the amount of money individuals and organizations could donate to candidates for federal office. By employing unregulated "soft money" and bundled campaign contributions, however, candidates, their parties, and a myriad of special interest groups have circumvented these and subsequent restrictions. As a result, the Congress passed the McCain-Feingold/Shays-Meehan Campaign Finance Reform Bill and President Bush signed it into law on March 27, 2002. Although this law limits the amount of soft money individuals and organizations may contribute and increases the transparency of issue advertising, it actually doubles the amount of "hard money" contributions that may be bundled into purchasing influence.
Second, restrictions on political donations raise important constitutional issues by inhibiting the freedom of political expression within the public arena. Although most of the provisions of the Campaign Reform Act were upheld by the Supreme Court by a majority vote of five to four, as Justice Scalia wrote succinctly in his dissent in McConnell vs. FEC,
". . . an attack upon the funding of speech is an attack upon speech itself."
Thus, both practice and theory compel opposition to recent congressional efforts to promulgate these futile and unconstitutional limitations upon the ability of individuals and organizations to express their political opinions by contributing their time, effort, or property to candidates for public office.
Because it plays a vital role in campaigns for public office, private capital has been, is and will be an essential element of the democratic process. Nevertheless, massive political contributions may be accompanied by an actual or tacit quid pro quo. In so doing they transmute from the expression of political opinion, which is protected by the First Amendment, to bribery, which is not.
The Supreme Court recognized the difference between protected speech and bribery in its 1976 decision, Buckley v. Valeo. In this decision, it held that although portions of the Federal Election Campaign Act of 1974 were unconstitutional, Congress could place restrictions upon most political donations because doing so is one of the:
". . . primary weapons against the reality or appearance of improper influence stemming from the dependence of candidates on large campaign contributions."
Simply put, in attempting to differentiate between a donation and a bribe, the Court distinguished between political contributions that do not purchase influence and those that do. It then maintained that that former is protected speech, and that the latter is not. Thus, the Court permitted reformers of campaign financing to reduce the corrupting influence of large campaign contributions by limiting their size. Conversely, their opponents contend that these limitations place unreasonable and unconstitutional restrictions upon the freedom of donors to express their political opinions financially. Unfortunately, both sides in this dispute have missed the crux of the issue: they are arguing about the money when the real problem is not the money but the influence it purchases.
The proper resolution of this issue can be found in the famous standard espoused by Supreme Court Justice Oliver Wendell Holmes, Jr. in his opinion in Schenck v. United States in 1919. This standard permits a prior restraint against free speech, such as political contributions, when they exhibit a "clear and present danger" to bring about "substantive evils that Congress has a right to prevent". Bribery and improper influence clearly meet this standard. As Justice Holmes observed crucially, however,
"It is always a case of proximity and degree."
Thus, when the proximity of the private donor to the public candidate is high and the degree of the donation is large, corrupting influence is likely to ensue: political favors will be bought and sold. When either the proximity or the degree is reduced so that improper influence is eliminated, political donations become a benign form of free speech.
Campaign finance reformers have focused their efforts upon reducing the degree of political contributions by limiting their size. Rather than restricting improper political influence by limiting the degree of the donation, Congress must reduce the proximity of the donor to the recipient instead. By doing so the size of political contributions may be increased significantly without incurring the de facto bribery of corrupting influence. To appropriate Justice Holmes's famous example of pernicious speech, campaign finance reformers have sought to silence the man shouting "Fire!" in a crowed theatre. Instead, they should remove him from the theatre so that he can shout "Fire!" to his heart's content.
Nevertheless, this fire-shouting man, even if he was standing outside the theatre, could amplify his voice loud enough to panic the patrons within, and in so doing speak in a manner that causes a substantive evil that Congress has a right to prevent. Hence, Congress must determine that point at which the degree of this incendiary speech itself is sufficiently loud so as to necessitate a prior restraint against its expression, notwithstanding its reduced proximity. As this theory pertains to private political donations, if the proximity of the donor to an individual candidate is diminished significantly or eliminated completely, at what point, if any, does the mere amount of the contribution itself transform it from the financial expression of political opinion, which must be protected, into an inherently corrupting bribe, which must be proscribed? It is at this point that a prior restraint against this form of political expression becomes both desirable and permissible because the size of the contribution does not simply corrupt any individual candidate for public office; it corrupts the democratic process itself.
Therefore, in restricting the size of political donations, Congress must adopt the following seven regulations:
1) A maximum amount of $100,000 per election cycle, either given or received, must be established regardless of the public or private nature of either the recipient or the donor.
2) Candidates for federal office and advocacy organizations must be prohibited from soliciting or accepting contributions of any kind directly or indirectly with a value in excess of $100 from any individual or organization within any thirty-day period.
3) Offering, accepting, soliciting or disclosing political contributions in excess of $100 per month must constitute the felony of bribery, pursuant to Title 18 of the United States Code.
4) Individuals and organizations that wish to contribute between $101 and $100,000 to any candidate for federal office or any political advocacy organization must do so through an independent third party, the Federal Election Commission (FEC), which shall guarantee their anonymity.
5) Donors must be permitted to direct the FEC to disburse their contributions to the specific individuals or organizations of their choice, and the FEC must deposit these donations into a general advocacy account that distributes these assets weekly.
6) The FEC must create and maintain a comprehensive database of donors and recipients, thereby ensuring that the $100,000 maximum limit for political contributions is not exceeded.
7) As the legal advocate for the electorate at large, the FEC must be prevented from releasing any information about the identity of a donor or a recipient or the amount donated for at least twenty years after the death of the individual or dissolution of the organizational recipients or donors. Notwithstanding a specific warrant from a court of appropriate jurisdiction, violating the public's right of attorney/client privilege must constitute a felony commensurate with the disclosure of information that has been classified as secret for national security purposes.
Charitable political donations are a form of protected speech, but the use of private financial assets to purchase actual or tacit political obligations is a form of bribery, regardless of whether it is an individual candidate or the public at large that is being influenced monetarily. Treating political influence as a commodity to be bought and sold in an open market is antithetical to the principles of democracy and cannot be allowed to continue unabated for three reasons. First, it inhibits the free flow of information into the political marketplace of ideas, thereby creating a self-perpetuating status quo. Second, it induces our public officials to act as little more than articulate and telegenic prostitutes. Finally, it exacerbates the cynicism of a disaffected electorate.
As Sophocles wrote in Antigone, Americans must embrace the sentiments of Creon when he said,
"For me, whoe'er is called to guide a state and . . . as worthier than his country counts his friend, I utterly despise him."
Using money to purchase the "friendship" of public servants is reprehensible. Private money cannot and should not be excluded from politics, but the private influence it purchases can and must be.
Posted by Chuck Hanrahan at July 27, 2005 3:59 PM