CAMPAIGN FINANCE (Update 2)

"Criticism of political-funding practices and calls for further reforms increased in the latter half of the 1980s as the cost of campaigns continued to escalate and repeated fundraising scandals were publicized." So began the "campaign finance" update for the first supplement to the Encyclopedia of the American Constitution. Change "1980s" to "1990s" and the same introduction will serve for this, the second update. Chances are a similar date change will suffice for the third.

The elaborate structure of constitutional doctrine established to govern campaign finance regulation in buckley v. valeo and subsequent cases has been based in large part on three dichotomies. First, the Supreme Court distinguishes between limits on campaign expenditures and limits on campaign contributions. The latter are much more likely to be upheld than the former, because the Court regards limits on contributions as more directly targeted at conflict of interest, while limits on expenditures more directly restrict speech.

Second, because the Court sees prevention of corruption as the main legitimate goal of campaign finance regulation, it is more likely to uphold restrictions in campaigns for elective office than in campaigns on ballot measures. Finally, the Court is more likely to uphold restrictions on campaign finance activities of business corporations than of individuals and other entities, primarily because the financial resources accumulated by corporations reflect their business success rather than any support for their political views.

Guided by these dichotomies, the Court has laid down rules for what sorts of campaign finance regulation are permissible under the first amendment, but no one claims there is a consistent pattern to these rules. The Court's logically fragile doctrinal structure has come under increasing pressure in the 1990s from outside critics, from political events, and from within the Court itself. Yet paradoxically, the pressure on the Buckley superstructure may assure its survival, as demands for change come from opposite directions.

In Congress, every session features serious debate on campaign finance regulation, but partisan differences, combined perhaps with a reluctance on the part of many members to tamper with a system that has served them well, have prevented any significant amendments to federal campaign law since 1979. On the other hand, new forms of campaign finance regulation have been enacted at the state level, especially but not exclusively in states with the initiative process. The new forms of regulation are already being challenged in the lower courts. By the early 2000s, the Court will have to decide the validity of restrictions that do not fit neatly within the Buckley doctrinal structure, such as contribution limits considerably lower than those upheld in Buckley, and inducements for candidates to agree to spending limits consisting not of money or other forms of campaign assistance, but of liberalized contribution limits.

Limits on campaign spending, declared unconstitutional in Buckley, have long been the most popular form of campaign regulation. In the 1990s, many reformers who previously supported public financing of campaigns began to demand spending limits, as they gave up on the political feasibility of public funding. Many prominent law professors and a few political scientists have called for overturning Buckley 's proscription of spending limits. Other scholars, perhaps fewer in number, argue for the extension of Buckley, to render invalid all or most forms of regulation other than disclosure.

Both the uneasiness with Buckley and the difficulty of replacing it were apparent in the only major campaign finance decision of the Court in the mid-1990s, Colorado Republican Federal Campaign Committee v. Federal Election Commission (1996). Federal law imposes limits on party contributions to candidates, limits considerably higher than those applicable to other contributors. At the same time, it has been generally understood that a party is so intrinsically united with its nominees that it is incapable of making independent expenditures, which under Buckley cannot be regulated at all. In Colorado Republican, Justice stephen g. breyer, speaking for a three-member plurality, ruled that if as a factual matter the party acts independently of the candidate, the party has the same right as any other speaker to engage in unlimited independent spending.

Though Breyer's logic may be sound, his result creates a perverse incentive for parties and their candidates to make sure that their campaign efforts are uncoordinated, a result that is hard to justify under any imaginable view of democratic politics. Perhaps for this reason, the remaining six Justices refused to be bound by the Buckley logic. Justice john paul stevens, writing for two Justices, would have permitted the government the right to ban independent spending by parties. In a more dramatic departure from Buckley, Stevens conceded the government "an important interest in leveling the electoral playing field by constraining the costs of federal campaigns."

Justices anthony m. kennedy and Clarence Thomas, each speaking for himself and the remaining two Justices, would have departed from Buckley in the opposite direction by protecting campaign expenditures by parties from regulation, even if the party's activities were coordinated with the candidate. Since Buckley, coordinated expenditures have been treated as contributions and thus subject to limitation. Thomas, speaking only for himself, would have overruled Buckley in one respect by declaring all limits on campaign contributions unconstitutional.

On and off the Court, the efforts of campaign finance regulators and deregulators continue to offset each other. However shaky, the Buckley regime appears to have plenty of life left in it.

Daniel H. Lowenstein
(2000)

Bibliography

Commentary on Campaign Finance Reform 1998 Connecticut Law Review 30:775–910.

Lowenstein, Daniel Hays 1995 Election Law: Cases and Materials. Durham, N.C.: Carolina Academic Press.

Sullivan, Kathleen M. 1997 Political Money and Freedom of Speech. UC Davis Law Review 30:663–690.

Symposium 1992 Comparative Political Expression and the First Amendment. Capital University Law Review 21:381–609.

——1994 Campaign Finance Reform. Columbia Law Review 94:1125–1414.