Jump to content

Campaign finance reform in the United States

From Wikipedia, the free encyclopedia

This is an old revision of this page, as edited by 208.67.34.90 (talk) at 17:31, 19 November 2010 (→See also). The present address (URL) is a permanent link to this revision, which may differ significantly from the current revision.

Part of the Politics series
Political campaigning
Finance
Management
Message
Negative campaigning
Key people
icon Politics portal

Campaign finance reform is the common term for the political effort in the United States to change the involvement of money in politics, primarily in political campaigns.

Although attempts to regulate campaign finance by legislation date back to 1867, the first successful attempts nationally to regulate and enforce campaign finance originated in the 1970s. The Federal Election Campaign Act (FECA) of 1972 required candidates to disclose sources of campaign contributions and campaign expenditures. It was amended in 1974 with the introduction of statutory limits on contributions, and creation of the Federal Election Commission Act (FECA). It attempted to restrict the influence of wealthy individuals by limiting individual donations to $1000 and donations by Political Action Committees (PACs) to $5000. These specific election donations are known as ‘Hard money.’ The Bipartisan Campaign Reform Act (BCRA) of 2002, also known as "McCain-Feingold," after its sponsors, is the most recent major federal law on campaign finance, which revised some of the legal limits on expenditures set in 1974, and prohibited unregulated contributions (commonly referred to as "soft money") to national political parties. ‘Soft money’ also refers to funds spent by independent organizations that do not specifically advocate the election or defeat of candidates, and funds which are not contributed directly to candidate campaigns.

In early 2010, the United States Supreme Court ruled in a related case before it, Citizens United v. Federal Election Commission that corporate funding of independent political broadcasts in candidate elections cannot be limited pursuant to the right of these entities to free speech.

History

First attempts

In order to gain votes from recently enfranchised, unpropertied voters, Andrew Jackson launched his campaign for the 1828 election through a network of partisan newspapers across the nation. After his election, Jackson began a political patronage system that rewarded political party operatives, which had a profound effect on future elections. Eventually, appointees were expected to contribute portions of their pay back to the political machine. During the Jacksonian era, some of the first attempts were made by corporations to influence politicians. Jackson claimed that his charter battle against the Second Bank of the United States was one of the great struggles between democracy and the money power. The Bank of the United States in turn spent over $40,000 from 1830 to 1832 in an effort to stop Jackson's re-election.[citation needed]

In the 1850s Pennsylvania Republican Simon Cameron began to develop what became known as the "Pennsylvania Idea" of applying the wealth of corporations to help maintain Republican control of the legislature. Political machines across the country used the threat of hostile legislation to force corporate interests into paying for the defeat of the measures. U.S. Senators of the time were elected not by popular vote, but by state legislatures, whose votes could sometimes be bought. Exposed bribery occurred in Colorado, Kansas, Montana and West Virginia.

Abraham Lincoln's attempt to finance his own 1858 Senate run bankrupted him, even though he had arranged a number of $500 expense accounts from wealthy donors. However, he was able to regain enough money in his law practice to purchase an Illinois newspaper to support him in the presidential election of 1860, for which he gained the financial support of businessmen in Philadelphia and New York City.

After the Civil War, parties increasingly relied on wealthy individuals for support, including Jay Cooke, the Vanderbilts and the Astors. In the absence of a civil service system, parties also continued to rely heavily on financial support from government employees, including assessments of a portion of their federal pay. The first federal campaign finance law, passed in 1867, was a Naval Appropriations Bill which prohibited government employees from soliciting contributions from Navy yard workers. Later, the Pendleton Civil Service Reform Act of 1883 established the civil service and ended the practice of assessments at the Federal level. However, this loss of a major funding source increased pressure on parties to solicit funding from corporate and individual wealth.

In the campaign of 1872 a group of wealthy New York Democrats pledged $10,000 each to pay for the costs of promoting the election. On the Republican side, one Ulysses S. Grant supporter alone contributed one fourth of the total finances. One historian said that never before was a candidate under such a great obligation to men of wealth. Vote buying and voter coercion were common in this era. After more standardized ballots were introduced, these practices continued, applying methods such as carbon paper under ballots for proof of payment.

Boise Penrose mastered post-Pendleton Act corporate funding through extortionist tactics, such as squeeze bills (legislation threatening to tax or regulate business unless funds were contributed.) During his successful 1896 U.S. Senate campaign he raised a quarter million dollars within 48 hours. He allegedly told supporters that they send him to Congress to enable them to make more money.

In 1896, a wealthy Ohio industrialist, shipping magnate and political operative, Mark Hanna became Chairman of the Republican National Committee. Hanna directly contributed $100,000 to the nomination campaign of fellow Ohioan William McKinley, but recognized that more would be needed to fund the general election campaign. Hanna systemized fund-raising from the business community. He assessed banks 0.25% of their capital, and corporations were assessed in relation to their profitability and perceived stake in the prosperity of the country. McKinley's run became the prototype of the modern commercial advertising campaign, putting the President-to-be's image on buttons, billboards, posters, etc. Business supporters, determined to defeat the Democratic-populist William Jennings Bryan, were more than happy to give, and Hanna actually refunded or turned down what he considered to be "excessive" contributions that exceeded a business's "assessment.[citation needed]

Twentieth century Progressive advocates, muckraker journalists and political satirists argued to the general public that the policies of vote buying and excessive corporate and moneyed influence were abandoning the interests of millions of taxpayers. They advocated strong antitrust laws, restricting corporate lobbying and campaign contributions, and greater citizen participation and control, including standardized secret ballots, strict voter registration and women's suffrage.

In his first term, President Theodore Roosevelt, following President McKinley's assassination of 1901, began trust-busting and anti corporate influence activities, but fearing defeat, turned to bankers and industrialists for support in what turned out to be his 1904 landslide campaign. Roosevelt was embarrassed by his corporate financing and was unable to clear a suspicion of a quid pro quo exchange with E.H. Harriman for what was an eventually unfulfilled ambassador nomination. There was a resulting national call for reform, but Roosevelt claimed that it was legitimate to accept large contributions if there were no implied obligation. However, in his 1905 message to Congress following the election, he proposed that "contributions by corporations to any political committee or for any political purpose should be forbidden by law." The proposal, however, included no restrictions on campaign contributions from the private individuals who owned and ran corporations. Roosevelt also called for public financing of federal candidates via their political parties. The movement for a national law to require disclosure of campaign expenditures, begun by the National Publicity Law Association, was supported by Roosevelt but delayed by Congress for a decade.

This first effort at wide-ranging reform resulted in the Tillman Act of 1907. Named for its sponsor, South Carolina Senator Ben Tillman, the Tillman Act prohibited corporations and nationally chartered (interstate) banks from making direct financial contributions to federal candidates. However, weak enforcement mechanisms made the Act ineffective. Disclosure requirements and spending limits for House and Senate candidates followed in 1910 and 1911. General contribution limits were enacted in the Federal Corrupt Practices Act (1925). An amendment to the Hatch Act of 1939 set an annual ceiling of $3 million for political parties' campaign expenditures and $5,000 for individual campaign contributions. The Smith-Connally Act (1943) and Taft-Hartley Act (1947) extended the corporate ban to labor unions.

FECA and the Watergate amendments

All of these efforts were largely ineffective, easily circumvented and rarely enforced. In 1971, however, Congress passed the Federal Election Campaign Act, requiring broad disclosure of campaign finance. In 1974, fueled by public reaction to the Watergate Scandal, Congress passed amendments to the Act establishing a comprehensive system of regulation and enforcement, including public financing of presidential campaigns and creation of a central enforcement agency, the Federal Election Commission. Other provisions included strict limits on contributions to campaigns and expenditures by campaigns, individuals, corporations and other political groups.

The new law was immediately challenged on First Amendment grounds in Federal Court, resulting in a landmark Supreme Court decision, Buckley v. Valeo. The Buckley decision recognized that regulation burdened the rights of free speech and assembly, but held that the compelling government interest in preventing corruption or its appearance justified some restrictions on free speech. It was not referring to free speech of individuals but free speech of corporations. Previously, no law existed to suggest that corporations were entitled to free speech[citation needed]. This case overturned 200 years of law that states that only people have the right to free speech[citation needed]. The resulting decision upheld contribution limits by corporations, so long as they were not so low as to prevent campaigns from amassing the resources necessary to communicate effectively with the public, disclosure requirements, and voluntary public financing. It found limits on expenditures to be unconstitutional infringements on free speech of corporations. It also restricted the reach of the law to speech by candidates and parties, that is, groups established for the purpose of electing candidates, and to communications that expressly advocated the election or defeat of a candidate, using phrases such as "vote for," "vote against," "support," or "defeat."

Bipartisan Campaign Reform Act of 2001

The Congress passed the Bipartisan Campaign Reform Act (BCRA), also called the McCain-Feingold bill after its chief sponsors, John McCain and Russ Feingold. The bill was passed by the House of Representatives on February 14, 2002 with 240 yeas and 189 nays including 6 members who did not vote. Final passage in the Senate came after supporters mustered the bare minimum of 60 votes needed to shut off debate. The bill passed the Senate, 60-40 on March 20, 2002, and was signed into law by President Bush on March 27, 2002. In signing the law, Bush expressed concerns about the constitutionality of parts of the legislation but concluded, "I believe that this legislation, although far from perfect, will improve the current financing system for Federal campaigns … Taken as a whole, this bill improves the current system of financing for Federal campaigns, and therefore I have signed it into law." The bill was the first significant overhaul of federal campaign finance laws since the post-Watergate scandal era. Academic research has used game theory to explain Congress's incentives to pass the Act.[1]

The BCRA was a mixed bag for those who wanted to remove the money from politics. It eliminated all soft money donations to the national party committees, but it also doubled the contribution limit of hard money, from $1,000 to $2,000 per election cycle, with a built-in increase for inflation. In addition, the bill aimed to curtail ads by non-party organizations by banning the use of corporate or union money to pay for "electioneering communications," a term defined as broadcast advertising that identifies a federal candidate within 30 days of a primary or nominating convention, or 60 days of a general election. This provision of McCain-Feingold, sponsored by Maine Republican Olympia Snowe and Vermont Independent James Jeffords, as introduced applied only to for-profit corporations, but was extended to incorporate non-profit issue organizations, such as the Environmental Defense Fund or the National Rifle Association, as part of the "Wellstone Amendment," sponsored by Senator Paul Wellstone.

The law was challenged as unconstitutional by groups and individuals including the California State Democratic Party, the National Rifle Association, and Republican Senator Mitch McConnell (Kentucky), the Senate Majority Whip. After moving through lower courts, in September 2003, the U.S. Supreme Court heard oral arguments in the case, McConnell v. FEC. On Wednesday, December 10, 2003, the Supreme Court issued a ruling that upheld the key provisions of McCain-Feingold; the vote on the court was 5 to 4. Justices John Paul Stevens and Sandra Day O'Connor wrote the majority opinion; they were joined by David Souter, Ruth Bader Ginsburg, and Stephen Breyer, and opposed by Chief Justice William Rehnquist, Anthony Kennedy, Clarence Thomas, and Antonin Scalia.

Since then, campaign finance limitations continue to be regulated in the Courts. In an interesting case, in 2005 in Washington State, Thurston County Judge Christopher Wickham ruled that media articles and segments were considered in-kind contributions under state law. The heart of the matter focused on the I-912 campaign to repeal a fuel tax, and specifically two broadcasters for Seattle conservative talker KVI. Judge Wickham's ruling was eventually overturned on appeal in April 2007, with the Washington Supreme Court holding that on-air commentary was not covered by the State's campaign finance laws. (No New Gas Tax v. San Juan County).

In 2006, the United States Supreme Court issued two decisions on campaign finance. In Wisconsin Right to Life v. Federal Election Commission, it held that certain advertisements might be constitutionally entitled to an exception from the 'electioneering communications' provisions of McCain-Feingold limiting broadcast ads that merely mention a federal candidate within 60 days of an election. On remand, a lower court then held that certain ads aired by Wisconsin Right to Life in fact merited such an exception. The Federal Election Commission appealed that decision, and in June 2007, the Supreme Court held in favor of Wisconsin Right to Life. In an opinion by Chief Justice John Roberts, the Court declined to overturn the electioneering communications limits in their entirety, but established a broad exemption for any ad that could have a reasonable interpretation as an ad about legislative issues.

Also in 2006, the Supreme Court held that a Vermont law imposing mandatory limits on spending was unconstitutional, under the precedent of Buckley v. Valeo. In that case, Randall v. Sorrell, the Court also struck down Vermont's contribution limits as unconstitutionally low, the first time that the Court had ever struck down a contribution limit.

In March 2009, the U.S. Supreme Court heard arguments about whether or not the law could be used to censor a documentary about Hillary Clinton.[2] Citizens United v. Federal Election Commission was decided in January 2010, the Supreme Court finding that §441b’s restrictions on expenditures were invalid and could not be applied to Hillary: The Movie.

Current proposals for reform

Voting with Dollars

The Voting with Dollars plan would establish a system of modified public financing coupled with an anonymous campaign contribution process. It has two parts: patriot dollars and the secret donation booth. It was originally described in detail by Yale Law School professors Bruce Ackerman and Ian Ayres in their 2004 book Voting with Dollars: A new paradigm for campaign finance[1]. All voters would be given a $50 publicly funded voucher (Patriot dollars) to donate to federal political campaigns. All donations including both the $50 voucher and additional private contributions, must be made anonymously through the FEC. Ackerman and Ayres include model legislation in their book in addition to detailed discussion as to how such a system could be achieved and its legal basis.

Of the Patriot dollars (e.g. $50 per voter) given to voters to allocate, they propose $25 going to presidential campaigns, $15 to Senate campaigns, and $10 to House campaigns. Within those restrictions the voucher can be split among any number of candidates for any federal race and between the primary and general elections. At the end of the current election cycle any unspent portions of this voucher would expire and could not be rolled over to subsequent elections for that voter. In the context of the 2004 election cycle $50 multiplied by the approximately 120 million people who voted would have yielded about $6 billion in “public financing” compared to the approximate $4 billion spent in 2004 for all federal elections (House, Senate and Presidential races) combined [2]. Ackerman and Ayers argue that this system would pool voter money and force candidates to address issues of importance to a broad spectrum of voters. Additionally they argue this public finance scheme would address taxpayers' concerns that they have "no say" in where public financing monies are spent, whereas in the Voting with Dollars system each taxpayer who votes has discretion over their contribution.

The second aspect of the system increases some private donation limits, but all contributions must be made anonymously through the FEC. In this system, when a contributor make a donation to a campaign they send their money to the FEC indicating which campaign they want it to go to. The FEC masks the money and distributes it directly to the campaigns in randomized chunks over a number of days. Ackerman and Ayres compare this system to the reforms adopted in the late 19th century aimed to prevent vote buying, which led to our current secret ballot process. Prior to that time voting was conducted openly, allowing campaigns to confirm that voters cast ballots for the candidates they had been paid to support. Ackerman and Ayres contend that if candidates do not know for sure who is contributing to their campaigns they are unlikely to take unpopular stances to court large donors which could jeopardize donations flowing from voter vouchers. Conversely, large potential donors will not be able to gain political access or favorable legislation in return for their contributions since they cannot prove to candidates the supposed extent of their financial support.

Matching Funds

Another method allows the candidates to raise funds from private donors, but provides matching funds for the first chunk of donations. For instance, the government might "match" the first $250 of every donation. A system like this is currently in place in the U.S. presidential primaries. As of February 2008, there are fears that this system has become a safety net for losers in these races. Evidence for this includes a loan taken out by John McCain's campaign that used the promise of matching funds as collateral [3].

Clean Elections

Another method, which supporters call Clean Money, Clean Elections, gives each candidate who chooses to participate a certain, set amount of money. In order to qualify for this money, the candidates must collect a specified number of signatures and small (usually $5) contributions. The candidates are not allowed to accept outside donations or to use their own personal money if they receive this public funding. Candidates receive matching funds, up to a limit, when they are outspent by privately-funded candidates, attacked by independent expenditures, or their opponent benefits from independent expenditures. This is the primary difference between Clean Money public financing systems and the presidential campaign system, which many have called "broken" because it provides no extra funds when candidates are attacked by 527s or other independent expenditure groups. Supporters claim that Clean Elections matching funds are so effective at leveling the playing field in Arizona that during the first full year of its implementation, disproportionate funding between candidates was a factor in only 2% of the races ([4]). The U.S. Supreme Court's decision in Davis v. Federal Election Commission, however, cast considerable doubt on the constitutionality of these provisions.

This procedure has been in place in races for all statewide and legislative offices in Arizona and Maine since 2000. Connecticut passed a Clean Elections law in 2005, along with the cities of Portland, Oregon and Albuquerque, New Mexico. 69% of the voters in Albuquerque voted Yes to Clean Elections. A 2006 poll showed that 85% of Arizonans familiar with their Clean Elections system thought it was important to Arizona voters. However, a clean elections initiative in California was defeated by a wide margin at the November, 2006 election, with just 25.7% in favor, 74.3% opposed (results), and in 2008 Alaska voters defeated a clean elections proposal by a two to one margin. Many other states (such as New Jersey) have some form of limited financial assistance for candidates, but New Jersey's experiment with Clean Elections was ended in 2008, in part due to a sense that the program failed to accomplish its goals.[5] Wisconsin and Minnesota have had partial public funding since the 1970s, but the systems have largely fallen into desuetude.

A clause in the Bipartisan Campaign Reform Act of 2002 ("McCain-Feingold") required the nonpartisan General Accounting Office to conduct a study of Clean Elections programs in Arizona and Maine. Although the ensuing report, issued in May 2003, cautioned that "it is too early to precisely draw causal linkages to resulting changes, if any, involving voter choice, electoral competition, interest group influence, campaign spending, and voter participation," in none of these categories did the study GAO find positive results from Clean Elections systems. ([6]). A more recent study by the Center for Governmental Studies found that Clean Elections programs resulted in more candidates, more competition, more voter participation, and less influence-peddling ([7]). However, a series of studies conducted in 2008 by the Center for Competitive Politics found that the programs in Maine, Arizona, and New Jersey had failed to accomplish their stated goals, including electing more women ([8]), reducing government spending ([9]), reducing special interest influence on elections ([10]), bringing more diverse backgrounds into the legislature ([11]), or meeting most other stated objectives, including increasing competition or voter participation. ([12]) These reports confirmed the results of an earlier study by the Goldwater Institute on Arizona's program. ([13])

2010 Supreme Court Ruling

In Citizens United v. Federal Election Commission, on Jan, 2010, the US Supreme court ruled that the McCain-Feingold Act of 2002, the US federal law that regulates the financing of political campaigns, was in violation of corporations' and unions' First Amendment rights. Under the January 2010 ruling, corporations and unions are no longer barred from promoting the election of one candidate over another candidate.[3]

Arguments for

Mitch McConnell said "Our democracy depends upon free speech, not just for some but for all." [14]

Justice Kennedy delivered the opinion of the Court pp8 . "Federal law prohibits corporations and unions from using their general treasury funds to make independent expenditures for speech defined as an “electioneering communication” or for speech expressly advocating the election or defeat of a candidate. 2 U. S. C. §441b. Limits on electioneering communications were upheld in McConnell v. Federal Election Comm’n, 540 U. S. 93, 203–209(2003). The holding of McConnell rested to a large extent on an earlier case, Austin v. Michigan Chamber of Commerce, 494 U. S. 652 (1990). Austin had held that political speech may be banned based on the speaker’s corporate identity.[4]

Arguments against

Justice Stevens, J. wrote, in partial dissent:

The basic premise underlying the Court’s ruling is its iteration, and constant reiteration, of the proposition that the First Amendment bars regulatory distinctions based on a speaker’s identity, including its “identity” as a corporation. While that glittering generality has rhetorical appeal, it is not a correct statement of the law. Nor does it tell us when a corporation may engage in electioneering that some of its shareholders oppose. It does not even resolve the specific question whether Citizens United may be required to finance some of its messages with the money in its PAC. The conceit that corporations must be treated identically to natural persons in the political sphere is not only inaccurate but also inadequate to justify the Court’s disposition of this case.
In the context of election to public office, the distinction between corporate and human speakers is significant. Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters. The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.[3]

Justice Stevens also wrote: "The Court’s ruling threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution. Before turning to the question whether to overrule Austin and part of McConnell, it is important to explain why the Court should not be deciding that question."[5]

Public response

Senator McCain, one of the two original sponsors of campaign finance reform, noted after the decisions that "campaign finance reform is dead" - but predicted a voter backlash once it became obvious how much money corporations and unions now could and would pour into campaigns.[6]

In a Washington Post-ABC News poll in early February 2010 it was found that roughly 80% of Americans were opposed to the January 2010 Supreme court's ruling. The poll reveals relatively little difference of opinion on the issue among Democrats (85 percent opposed to the ruling), Republicans (76 percent) and independents (81 percent).[7]

SMFD==See also==

Notes

  1. ^ Gill, David & Lipsmeyer, Christine (2005). Soft Money and Hard Choices: Why Political Parties Might Legislate Against Soft Money Donations. Public Choice. {{cite book}}: External link in |title= (help)CS1 maint: multiple names: authors list (link)
  2. ^ Justices Seem Skeptical of Scope of Campaign Law, The New York Times, March 24, 2009
  3. ^ a b Citizens United v. Federal Election Comm'n
  4. ^ Citizens United v. Federal Election Comm'n" page 8
  5. ^ Citizens United v. Federal Election Comm'n, page 88
  6. ^ McCain says campaign finance reform is dead Associated Press via ABC News. 24 January 2010
  7. ^ Poll: Large majority opposes Supreme Court's decision on campaign financing Associated Press via Yahoo News. 17 February 2010

References

  • References opposed to campaign finance reform
  • Chapter 9, Cato Handbook for Policymakers, 7th Edition (2009). [15]
  • Hoersting, Stephen M. "Free Speech and the 527 Prohibition." April 3, 2006. [16]
  • Basham, Patrick and Dennis Polhill. "Uncompetitive Elections and the American Political System." June 30, 2005. [17]
Retrieved from "https://en.wikipedia.org/enwiki/w/index.php?title=Campaign_finance_reform_in_the_United_States&oldid=397709472"