Campaign Finance Confusion

The First Amendment protects everybody's political speech

If you’re looking for a poster child for big money candidates, skip George W. Bush and go straight to Eugene McCarthy and his 1968 presidential campaign. “I couldn’t have run for president if it hadn’t had been for big money contributors,” says the former Democratic senator from Minnesota who brought down Lyndon Johnson.

At 83, McCarthy maintains his urbane, soft-spoken, I-go-my-own-way manner while reminiscing last Friday about the campaign and munching on a tuna fish sandwich in the Senate Office Building. Later, in a blunt speech to the conservative Federalist Society, he ridicules current campaign finance laws and proposals for public financing of elections.

McCarthy wants contribution restrictions rescinded because they impinge on First Amendment rights. “Freedom of speech is under attack by federal election law,” he says, which tries to “put limitations on who people can vote for.” Major newspapers supporting finance restrictions think that “the only institutions that should have freedom of speech are the press itself and television networks.” Government funding of elections is “worse than anything.” Political parties and Congress “have been undermined by the work of Common Cause” and like groups who support contribution restrictions. He says there’s no proof that “big money corrupts politics.”

But there’s plenty of evidence that the present campaign election laws work for incumbents and against challengers.

Adjusted for inflation, the 1968 McCarthy campaign raised more money from private donors than George W. Bush has to date. His effort was kick-started by a small group of wealthy financial angels who ignored conventional political wisdom that decreed McCarthy didn’t have a prayer. The New Hampshire primary ended the Johnson presidency. McCarthy eventually lost the party nomination to Hubert Humphrey, but his candidacy helped hasten America’s withdrawal from Vietnam. Today’s $1,000 individual or $5,000 PAC federal election limits on contributions would have made his run impossible.

McCarthy’s chief point on campaign finance is that the government should not control political discussion. And that is exactly where more contribution limits and government financing of elections will lead. A LUDICROUS ASSUMPTION The assumption that political donations are made solely for self-interested economic reasons (and never for ideological or social reasons) is ludicrous. Were Abolitionists or anti-Vietnam War activists motivated by personal gain?

But even if the assumption was true, so what? The real problem today is that too little, not too much, money is being spent on politics. Lack of resources is the primary reason challengers cannot defeat incumbents. Estimates of spending in the 1994 Congressional elections are pegged between $7.50 and $10.00 per eligible voter. In comparison, calculates law professor Bradley Fields, Americans spend twice as much on yogurt and three times as much on potato chips each year as they do on political campaigns.

Contribution restrictions and expenditure rules operate like price controls, producing a dynamic all their own that aids the “ins” and entrenched interests. Everyone else would benefit if there were more, not less, political discussion. The only campaign finance statutes should be disclosure laws for the sources of contributions. The government shouldn’t pay for any campaign, and it shouldn’t restrict how candidates or supporters raise funds. But pending legislation, the McCain/Feingold bill in the Senate and Shays/Meehan in the House of Representative, would make matters worse. These so-called campaign finance reform proposals would freeze the status quo, create what the ACLU calls a “speech police” and make it harder for outsiders and challengers to be heard. The bills are an all-out assault on political speech by issue advocacy groups — private organizations like the ACLU or the National Right to Life Committee. They are good policy only if the goals are to further depress voter turnout, retain incumbents and increase cynicism about the political process.

Next month the Supreme Court has an opportunity to correct some current wrongs when it revisits campaign finance restrictions during oral arguments in Shrink Missouri Government PAC v. Nixon. That case is an Eighth Circuit decision from last year, 161 F.3d 519, which overturned a Missouri law limiting campaign contributions to $1075. The court may use the occasion to modify its 1976 decision, Buckley v. Valeo, 424 U.S. 1, and do away with contribution limits in federal elections. A SARDONIC TWIST Meanwhile, next March, Californians will be voting on yet another bad campaign finance measure — a common election year rite. The initiative is misleadingly entitled the “Voters Bill of Rights.” It was cobbled together by Ron Unz, a libertarian who should know better, and Tony Miller, the author of an even worse 1996 initiative that fortunately is still tied up in the courts. Unz/Miller starts with the usual assumption that Californians are too stupid to think, much less speak, for themselves and therefore require further government supervision over their electoral process. The new measure sets contribution limits at $3,000 for local and state offices and $5,000 for statewide offices. It also doles out limited public financing of elections from the state’s general fund, subject to “voluntary” spending restrictions. Its one original idea is a rapid Internet disclosure scheme for campaign contributions. But even this good proposal is negated by a provision that turns some volunteer Internet sites into regulated campaign committees. And Unz/Miller has this sardonic twist: Silicon Valley centi-millionaire Ron Unz used his personal fortune to make himself a major political player by first running against Pete Wilson in the 1994 GOP gubernatorial primary and then later financing Prop 227, the anti-bilingual education initiative. But Prop 227 ran into A. Jerrold Perenchio, the wealthy owner of the Univision broadcast network, who according to press reports put up $1.5 million of his own money to oppose the measure. Prop 227 still won. One goal of Unz/Miller is to prevent individuals from exercising as much political speech in the future as Perenchio did last November. Initiative backers or opponents that accept state financing could generally raise no more than 10 percent of their funds from any one donor.

Does Unz really believe that once government bureaucrats and incumbent politicians take control of campaign financing, they won’t jimmy the rules against controversial propositions like Prop 227 and non-incumbent challengers? “I’m always annoyed when I find somebody advocating more government funding of elections,” says Eugene McCarthy, who trusts the American people and the First Amendment to keep elections honest. Judges, legislators and voters should all listen to him. George M. Kraw is a San Jose attorney.

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