Money, Elections, and Democracy

Reforming Congressional Campaign Finance

Margaret Latus Nugent

• Publisher: Routledge
• Year: 2019
• Print ISBN: 9780367014360
• eBook ISBN: 9780429714238
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

This book is concerned with how the system of congressional campaign financing and proposals for its reform affect key values. It focuses on specific problems with the sources of campaign funds, undesirable consequences of the campaign finance system, and difficulties with reforming the system.

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Introduction: What Is at Stake?

Margaret Latus Nugent and John R. Johannes

“Too much money is being given by special interest PACs. Too much money is being spent by candidates. Too much influence is being exercised through political money. The scandalous way in which congressional campaigns are financed is threatening our representative system of government—a government of, by and for the people.” ¹

“Free and fair elections, it seems, are prescriptions the U.S. urges upon others. In this country, however, the system is deliberately rigged to favor those already in power. And glaring campaign-finance loopholes are further stretched enough to accommodate even Boss Tweed.” ²

“When politicians start to see a dollar sign behind every vote, every phone call, every solicitation, those other factors sometimes weighed during governance, like the public good and equal access to government, become less and less important.”³

“When 99.2 percent of all incumbents get re-elected, many of them without opposition, there is more than the PAC issue at stake. Democracy is at stake.”⁴

The ink on the post-Watergate campaign finance reforms was barely dry when challenges to the new laws arose, loopholes opened, and calls for new and better reforms sounded. Lacking a campaign finance scandal of the scope of Teapot Dome or Watergate, the Eighties might well be characterized as a pre-malignant era with hints of corruption, widening loopholes, and compounding criticisms of common campaign finance practices. Reform proposals multiplied in response to concern that a scandal was threatening and needed to be averted.

Even a very brief survey of criticisms of congressional campaign finance in the 1980s highlights these concerns among journalists, political activists, and legislators. Elizabeth Drew claims that politicians are being driven to new forms of corruption, are being hampered in their ability to govern, are circumventing the spirit of campaign finance laws through numerous loopholes, and are no longer the safeguards of our representative democracy.⁵ Philip Stern has summarized the gist of his criticism in the title of his book: The Best Congress Money Can Buy.⁶ “Honest graft” is Brooks Jackson’s characterization of congressional campaign financing.⁷

Throughout the 1980s, books, newspaper articles, and popular news magazines increasingly have been charging that current practices in financing congressional elections: (a) reduce competition, guaranteeing the re-election of incumbents; (b) nationalize political influence, undermining the local ties of representatives; (c) weaken the political parties, contributing to the “Balkanization” and polarization of Congress; (d) promote legislative corruption and fundraising fraud; and (e) perpetuate numerous other abuses and loopholes that violate the spirit of the Federal Election Campaign Act. For example, a single issue of U.S. News and World Report contained articles on campaign financing entitled: “A Case of Legal Corruption,” “What Dollars Can Buy,” and “The Dirty Big Secret of Campaign Finance.”⁸

The media are not alone in their concerns. For over twenty years, Common Cause, the self-styled citizens’ lobby, has pushed for campaign finance reform. More recently, it has been joined in its efforts by other think tanks and interest groups such as Democracy Project, The Center for Responsive Politics, and Citizens Against PACs. Members of Congress have joined the attack. A survey of members of Congress in 1987 indicated that almost half admitted that fundraising duties cut into the time they devote to legislative work. Forty-three percent said that PACs have had a negative or somewhat negative effect on the operations of Congress. At least one-third were concerned that the current campaign finance system makes representatives less inclined to compromise on legislative issues. One Member claimed that incumbents are responsible for extorting money from PACs. Another complained that “PACs and interest group contributions have led to the ‘Balkanization’ into separate little power fiefdoms.”⁹ Not surprisingly, Congress has responded with reams of legislation on campaign financing.

Campaign Finance Reforms in the Progressive Tradition

Concerns about campaign financing are not new in American politics, often giving rise to reform movements. Since 1907, the “persistent populist Progressive predispositions of Americans”¹⁰ have led to changes in our campaign finance system that were designed to achieve a series of goals: (1) Oppose the influence of money on the behavior of those elected; (2) assure that “narrow interests” do not prevail over the “public good;” (3) prohibit money from distorting the integrity of elections; (4) prevent the unequal distribution of wealth from undermining political equality; and (5) require “open government” that precludes secrecy in raising and spending campaign funds.

The first federal laws of this century focused on the potential for campaign funds to corrupt the activities of government. The Tillman Act of 1907 was passed in response to allegations that contributions to Teddy Roosevelt’s 1904 presidential campaign were given in exchange for protection from “trust busting.”¹¹ The Tillman Act’s restriction on corporations’ contributions to federal elections was extended to labor unions in the 1943 Smith-Connally Act, which was followed by the 1947 Taft-Hartley permanent ban on such contributions. A second approach to preventing quid pro quos has been to place limits on the size of contributions from individuals to candidates. Such limits were enacted as part of the Federal Corrupt Practices Act of 1925 and the 1940 Hatch Act, although loopholes were commonplace and enforcement rare.

Contribution limits actually became a potentially effective protection against the corruption of government after the Federal Election Campaign Act Amendments of 1974, which included the creation of the Federal Election Commission to oversee enforcement. The FECA limited individual contributions to $1,000 per candidate per election (with a total limit of $25,000 per year), and PAC contributions to $5,000 per candidate per election (with no aggregate limit). The 1974 Act also restricted independent spending on behalf of or against candidates to $1,000 for individuals, a limitation subsequently struck down by Buckley v. Valeo.¹² Finally, in response to abuses in the 1972 election (such as large contributions from the dairy industry in exchange for price supports), the 1974 Act established a method for public funding of presidential elections.

The same concern about corruption undergirded the Supreme Court’s decision in Buckley to uphold most of the 1974 Amendments. According to the Court, the only appropriate legislative goal justifying restricting political liberty in campaign spending is to prevent corruption or the appearance of corruption. Corruption itself was narrowly understood as contributions “given to secure a political quid pro quo from current and potential office holders….”¹³

A Progressive populist corollary to concerns over special favors has run through reform debates: the fear that “narrow interests” could distort the legislative and regulatory agenda against the interests of the “public good.” James Madison’s classic articulation in Federalist 10 shows the enduring nature of this issue: “By faction I understand a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens or to the permanent and aggregate interests of the community.”¹⁴ The fear of special control has led to limits on campaign contributions, and, in 1940, to the Hatch Act, which forbade individuals or businesses working for the government to contribute to federal elections. Recent critics insist that more needs to be done to protect the public from plundering by the special interests.

Reformers have feared that the corruptive danger of money extends beyond its potential for altering public policy. They worry that spending in elections might distort the integrity of the electoral process itself, ultimately determining the outcome of elections. Naturally, legislators have opposed blatant violations such as vote buying, as with the 1918 prohibition against bribery in federal elections.¹⁵ Reforms from 1911 to 1974 have also tried to protect the fairness of elections by placing spending limits on the campaigns themselves. The Federal Election Campaign Act of 1971 also imposed a limit on what candidates could spend on their own behalf, and the 1974 Amendments retained this limit.

The Supreme Court’s view of the importance of maintaining the integrity of elections has been mixed, however. On one hand, the decision upholding the Federal Corrupt Practices Act of 1925 stated, “To say that Congress is without power to pass appropriate legislation to safeguard such an election from the improper use of money to influence the result is to deny the nation in a vital particular the power of self protection.”¹⁶ On the other hand, in striking down the 1974 FECA’s limits on campaign expenditures and limits on what candidates can spend on their own behalf, the Court stepped away from the concerns of Burroughs. In fact, a later decision that corporations are not precluded from spending public funds on referenda and ballot issues rests on the logic that such expenditures represent free speech and cannot be corruptive even though they may influence the outcome of such campaigns.¹⁷

Enhancing political equality has been a fourth concern of the Progressive tradition, as many of the campaign finance reforms discussed above also illustrate. The general objection is that the unequal distribution of wealth can undermine political equality because the “haves” use their resources to gain more political clout than the “have nots.” Such clout then becomes the means to guarantee even more economic advantages to the wealthy. Egalitarianism has stood behind movements for public financing of elections, limits on contributions as well as total campaign spending, and restrictions on how much candidates can spend on their own behalf.¹⁸ Recently, however, the Supreme Court has rejected the legislative goal of “equalizing the relative ability of individuals and^ groups to influence the outcomes of elections,”¹⁹ suggesting that, in the eyes of the Court, the value of political equality is secondary to that of political liberty.

The last Progressive value that has found expression in campaign finance laws throughout the century is the distrust of secrecy, expressed in requirements to make public the sources and uses of campaign funds. Disclosure of the financing of congressional elections was first required in 1910 and 1911.²⁰ The reporting of sources of campaign funds in federal elections was strengthened by the Federal Corrupt Practices Act of 1925 and extended to primary elections by the Hatch Act of 1940. As with other aspects of these laws, however, disclosure was inadequate because of the lack of an enforcement process and the prevalence of loopholes. Replacing the Federal Corrupt Practices Act, the Federal Election Campaign Act of 1971 placed more stringent requirements for reporting and disclosure on all candidates for federal office. More importantly, the creation of the Federal Election Commission in the 1974 Amendments actually provided for an agency to help publicize these reports as well as to enforce the laws requiring disclosure.

Despite the wealth of data made available by the FEC, some current critics charge that problems with secrecy remain. The most obvious case is the use of “soft money” contributions from corporations, labor unions, and individuals ...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• Acknowledgments
• 1. Introduction: What Is at Stake?
• 2. Up for Bid: A Common Cause View
• Part I: Problems with Funding
• Part II: Problematic Consequences
• Part III: Problems with Reform
• About the Contributors
• Index