Clean and Constitutional
E. Joshua Rosenkranz
Measures to reform the way we finance political campaigns are dropping like
flies. Buckley v. Valeo, the landmark Supreme Court case that occupies
the field of campaign finance reform, has been invoked by courts at all levels
to frustrate popular reforms of every flavor. Buckley has almost come
to stand for the proposition that if it's effective, it must be unconstitutional.
As Donnelly, Fine, and Miller indicate, voters seem willing to take decisive
action if only the courts will let them do it. But that's a big "if."
Consider the record: Scores of promising reforms that have been enacted into
law have fallen to a Buckley challenge. And every reform that voters
passed by initiative on Election Day--Arkansas, California, Colorado, Montana,
and even Maine--is currently besieged by litigation. Given this record, it
is natural to be skeptical of a reform that has been heralded as enthusiastically
as the Clean Money Option. But, from a constitutional perspective, there is
good reason for optimism. Of all the models of reform, the Clean Money Option
is the least susceptible to constitutional challenge--at least under current
Buckley is most commonly understood as the case that equates money
with speech. Buckley declared, in essence, that each dollar spent in
support of speech is as protected as the spoken word that it buys. This principle,
simple enough to state, has evolved into a treacherous tangle of rules that
ensnare the unwary--and sometimes even the wary.
Buckley's central prop is a distinction between expenditures and contributions.
Expenditures, the Court held, are fully protected. That means that a Perot
or a Huffington has an absolute right to buy his way into office. It means
a fat cat has an absolute right to saturate the air waves with a message advocating
for or against a candidate. And a campaign has a right to spend unlimited
amounts of money that it collects from others--so long as each contribution
is in a permissible amount and from a legal source. Thus, in 1976, Buckley
struck mandatory caps on expenditures in congressional campaigns, and, in
Buckley's name, a federal court just last month struck a campaign expenditure
cap imposed by the City of Cincinnati.
On the other hand, contribution caps are permitted--but only up to a point.
No contribution cap has ever been sustained except on the rationale that it
advances the battle against corruption or the appearance of corruption. On
this rationale, only a contribution that is, or would appear to be, corrupting
can be barred. Several courts have, therefore, struck $100 contribution caps,
on the theory that no politician is corrupted by a $101 contribution. Also
under attack are caps on aggregate contributions from a type of source (out-of-state
donors or PACs, for example), on the theory that all is well as long as no
single contribution is independently corrupting.
So what does all this mean for the Clean Money Option? The critical aspect
of the Clean Money Option, from the perspective of constitutional doctrine,
is that it essentially bribes candidates to do what they cannot be forced
to do: forego all contributions upon qualifying (the ultimate contribution
limit) and cap expenditures. Under Buckley, the carrot approach is
permissible, so long as the candidate remains truly free to turn down the
invitation. Applying this test, the Buckley Court upheld the presidential
public financing system under which presidential candidates receive a large
pot of money (currently over $60 million each for major-party candidates)
in return for foregoing all private funds and capping expenditures.
One would think, then, that almost any incentive would be upheld, right?
Not so fast. Though the issue has scarcely been explored (because public financing
systems are fairly uncommon), the courts have already begun to muddle the
rules on at least two crucial points.
First, how enticing can the deal be? On the if-it-works-it-must-be-unconstitutional
side of the ledger, is a case that struck an aspect of Kentucky's matching
contribution plan. In Kentucky, a candidate who accepted expenditure caps
could raise campaign money in $500 chunks (which are matched with public funds),
but a candidate who opted out was relegated to raising money in bite-sized
$100 increments. A federal court, concluding that no candidate could afford
to opt out under these terms, found this provision coercive. On the other
side of the ledger are two recent federal appeals court decisions upholding
Rhode Island's and Minnesota's partial financing schemes. The Rhode Island
scheme contains a similar "cap gap" provision, with a two-to-one gap. And
both the Rhode Island and the Minnesota schemes lift the expenditure caps
entirely for a participating candidate once a nonparticipating opponent reaches
a certain fundraising or spending level. Neither was struck as coercive, although
both are quite enticing.
An aspect of the Minnesota scheme that was struck, however, raises the second
set of issues, which could be critical to the success of the Clean Money Option.
If past experience is any indication, the attempt to stanch the flow of money
directly into political campaigns will simply lead influence-seekers to reroute
their money by spending independently in support of candidates or by laundering
large contributions through the party ("soft money"). The soft money loophole
can easily be closed, but the difficult constitutional question is how far
can a public financing scheme go to discourage independent expenditures? The
Maine system offers candidates more money if they come under considerable
attack from independent expenditures. One federal court has already struck
Minnesota's variant of this approach--a provision that freed a participating
candidate to raise more money (with a government match of contributions) in
response to a deluge of independent spending targeted against him. The better
view is that under the First Amendment helping a target counter speech is
not punishment. Rather, it is in the great First Amendment tradition that
the best antidote to speech is more speech.
We must not allow the courts to make as much of a muddle out of the subsidy
side of campaign finance regulation as they have of the restriction side.
For now, from a constitutional perspective, the subsidy side of the field
is the most promising of all, if only because the landmines have yet to be