Posts tagged ‘Federal Election Campaign Act’


Campaign Finance Needs Radical Change

The need for outlandish sums of money to finance TV ads in political campaigns for national, statewide, and some local races, has now reached a critical juncture where we must pressure the broadcast media, which profits handsomely from the way things are, as well as reluctant Senators and Congressmen, who routinely gain re-election thanks to the current system, that they must pass a Constitutional Amendment declaring money is not speech, and then submit it to the states so 75% of them may ratify it.

The problem should be obvious, but let’s walk through it, so we all begin on the same page. If someone wants to run for the U.S. Senate, the House, or the Presidency, they will not be taken seriously, unless they either have massive sums of money, or they have rich friends who can donate it to them. In 2010, the average Senator paid 9.8 million for his seat, while chairs in the House went for roughly 1.4 million each. In 2008, 2.4 billion was spent by Presidential candidates and their Political Action Committees.

If candidates raise those amounts, and win, they must then ignore the people’s business, so they can prepare for the next race, by spending most of their time raising money. The cycle never ends. While they are constantly raising funds, they have to spend even more time with the wealthiest 1%, and less with average citizens.

The issue of money in politics has been with us for a long time. Attempts to solve the problem commenced 40 years ago at the national level when candidates, political parties, and PACs, were first required to disclose their contributors, under the 1971 Federal Election Campaign Act (FECA). Many soon realized the mere disclosure of names did little to solve the underlying problem.

Just after the 1972 presidential campaign, when the public learned that large sums of cash had been delivered in brown paper bags to witnesses as hush money to keep them quiet during the Watergate Scandal, momentum for campaign finance reform grew. After President Nixon resigned in 1974, and the Democrats swept the Congress in the 1974 election, FECA was amended to establish a Public Financing system for Presidential races, funded by a tax return check-off. Caps were imposed on individual and PAC contributions, and limits were set for campaign expenditures. A Federal Election Commission (FEC) was created to enforce it.

The new law was challenged on Free Speech grounds, under the First Amendment, in Buckley v Valeo (1976), where the Supreme Court upheld limits on individual contributions, based on a compelling interest in preventing corruption, but then declared caps on sums campaigns could spend, and restrictions on groups (not clearly identified with campaigns), to be unconstitutional.

As a result, contributors shifted their millions from candidates, to political parties and non-candidate organizations, causing a growth in Political Action Committees (PACs). Constitutional amendments to limit the affects of Buckley failed in committee.

Since only those who accepted government funding were subjected to spending limits, and those who opted-out were free to spend as much as they wanted, over time, candidates with access to money, opted-out, forcing opponents to do the same.

The McCain-Feingold law (2002) (Bipartisan Campaign Reform Act) was an attempt to plug loopholes opened by Buckley, but once again, the Court, in McConnell v FEC (2003) ruled Congress could not restrict speech by non-profit organizations that do not coordinate activities with candidates, or expressly advocate for them. So money moved from political parties to IRS 527 non-profit organizations.

During the 2004 presidential race, the Swift Boat Veterans for Truth, a 527 group that shamelessly lied about Sen. John Kerry’s record in Vietnam, were found to have violated federal law, because they failed to maintain their IRS status, as they directly advocated against Kerry. But the abuse continued.

Many states, such as Maine, Vermont, Connecticut, and Arizona tried to implement reform, but the Court quickly invalidated their efforts.  In Randall (2006), the Supreme Court found Vermont’s clean election law unconstitutional. In FEC v Wis. Right to Life (2007) the Court ruled if there is any reasonable way to view a commercial as an “issue ad,” it is exempt from federal law. In Davis (2008) they struck down an Arizona public financing law that equalized the playing field. Connecticut’s reform law was also declared unconstitutional in 2009.

In Citizen’s United v FEC (2010), the Supreme Court ruled corporations are people who have a First Amendment right to use their funds to support or oppose candidates. If Super PACs remain totally independent, they may raise as much money as they want from corporations, unions, and individuals, and spend it as they wish, as long as they do not coordinate activities with candidates.

There are now roughly 1,600 corporate PACs, and a smaller number of labor union, and trade organization PACs. The system is now totally controlled by money, and massive amounts of it. Diverse views, particularly those held by real people, not part of the upper 1%, will not be heard in a system based on money.

It would be interesting to see what the Supreme Court would do if Congress enacted a criminal law that treated contributions above a certain level as bribery. Would the court strike it down under the 1st Amendment, or finally end their obstruction to reform?

The government could mandate free time on public television, and give candidates free postage, as is the case in many European and South American states, but if a bill to this effect was proposed, commercial TV lobbyists, co-conspirators in favor of leaving things the way they are, would probably contribute large sums to key Congressmen to kill the bill in committee.

We need radical change in the form of a carefully worded Constitutional Amendment that would override the argument that money is a constitutionally protected form of Free Speech.