Bucks and Buckley : The plaintiff makes his case.

I suppose it is time that the Buckley in Buckley v. Valeo say a word about today's campaign-finance-reform debate. Recently, the Twentieth Century Fund released a report entitled "Buckley Stops Here: Loosening the Judicial Stranglehold on Campaign Finance Reform." As the title suggests, the report proposes a legal strategy for persuading the Supreme Court to reverse certain of its holdings in the Buckley decision. The authors of the report are particularly concerned about the Court's conclusion that the First Amendment forbids any limitation on what a campaign committee or independent citizen may spend in support of a candidate for federal office or on what a candidate may expend on his own campaign. For them, meaningful reform requires stringent restrictions on the amounts that may be contributed or spent by all players in the election game. As I am a federal judge, I accept the Court's construction of the Constitution; but as the lead plaintiff in that 1976 case, I feel obliged to offer a dissenting view as to what constitutes true reform, as a matter of public policy.

It is instructive to consider who the Buckley plaintiffs were. They were political underdogs and outsiders. Although I was a United States senator at the time, I had squeaked into office in 1970 as the first third-party candidate in forty years to be elected to the Senate. My co-plaintiffs included Senator Eugene McCarthy, who bucked his party's establishment by running a sufficiently effective challenge to cause President Lyndon Johnson to withdraw his candidacy for reelection; the very conservative American Conservative Union and the equally liberal New York Civil Liberties Union; New York's Conservative Party and the national Libertarian Party; and Stewart Mott, a wealthy sponsor of liberal causes who had contributed $220,000 to the McCarthy presidential campaign.

What we all had in common was a concern that the 1974 amendments to the Federal Election Campaign Act would squeeze independent voices and reform movements out of the political process by making it even more difficult than it already was to raise effective challenges to the political status quo. That legislation established, among other things, an elaborate system of public financing for presidential elections, and it placed ceilings on what could be spent by presidential and congressional campaign committees. It also restricted independent spending in support of a candidate to $1,000, limited individual campaign contributions to $1,000, but permitted contributions of $5,000 to political action committees (the notorious "PACs") which, in turn, could contribute up to $5,000 to a candidate.

We believed that these restrictions were fundamentally flawed both constitutionally and as a matter of public policy. The core value protected by the First Amendment's speech clause is the freedom of political speech. It is incontrovertible that, in today's world, it takes money-and a great deal of it-for political speech to be heard. Therefore, we opposed the 1974 amendments' limits on contributions and spending as unlawful restrictions on political speech. We found the legislation equally objectionable on grounds of public policy, because a healthy democracy should encourage competition in the political marketplace rather than increase the difficulties already faced by those challenging incumbents or the political establishment. Incumbents enjoy enormous advantages over challengers. These include name recognition, the use of the frank to communicate with constituents, automatic access to the media, and the goodwill derived from handling constituent problems.

Given this fundamental political reality, a challenger who is not a celebrity in his own right must be able to persuade both the media and a broad base of potential contributors that his candidacy is credible. This requires a substantial amount of seed money. As I testified in Buckley, I could not have won election in 1970 if the present $1,000 limit on individual contributions had been in place. Thanks to substantial gifts from a handful of individuals, my campaign was able at the outset to hire key personnel, print campaign literature, and rent a strategically located New York City headquarters. This caused the media to take my candidacy seriously; and that, in turn, enabled me to raise (largely through mass mailings) the $2 million required for a competitive campaign. Nor could Senator McCarthy have launched a serious challenge to an incumbent president without the more than $1 million that was provided by fewer than a dozen early supporters.

We won a number of our arguments before the Supreme Court, but lost the critical one. The Court agreed with us that the restrictions placed on what could be spent in support of a congressional candidate were unconstitutional. It held, however, that the limitations placed on contributions by individuals and PACs were constitutional because of Congress's expressed concern for avoiding the appearances of improper influence on federal elections. But because an individual cannot corrupt himself, the Court overturned the limits that Congress had placed on what candidates could spend on their own campaigns.

THE BURDEN OF FUNDRAISING

In the wake of the Supreme Court's decision, we are left with a package of federal election laws and regulations that have distorted virtually every aspect of the election process. The 1974 amendments were supposed to de- emphasize the role of money in federal elections. Instead, by limiting individual contributions to a thousand dollars of diminishing value, today's law has made the search for money a candidate's central preoccupation. When I ran in 1970, I never made telephone calls requesting money, and I doubt that I attended as many as a dozen fundraising functions. Passing the hat was exclusively the concern of my finance committee. Today, the need to scrounge for money has proven so burdensome that two senators have recently cited this as a major reason for their decision to retire from public life.

The federal regulation of campaigns has all but driven grass-roots action from the political scene. The rules have become too complex, the costs of a misstep too great. In 1970, when on campaign tours around New York State, I would often run into groups that, on their own initiative, had rented storefronts from which to dispense my campaign literature, man the phones, and deploy volunteers. Today, anyone intrepid enough to engage in such spontaneous action is well advised to enlist the counsel of an election lawyer and accountant, and even then he must be prepared to prove his independence in court. In the case of my New York storefront volunteers, the mere possession of my campaign handouts would have been cited as proof enough of collusion.

The restrictions on giving are also at the root of the alarums in recent times over the uses of "soft" money, a word of art used to describe money raised by political parties that is not subject to federal election law limits and sometimes used to describe all unregulated money. The term describes, for example, the use of funds to advocate positions with which a particular candidate is identified-so-called "issue advocacy." Such expenditures are perfectly legal and, in fact, constitutionally protected if one is to take the Supreme Court's holdings in Buckley at face value. Nevertheless, the reformers are demanding the closure of what they describe as the loopholes in present law that permit such egregious abuses of political speech.

Today's reformers also complain about the power of PACs, and there is some justification for their concerns. PACs can have very specific objectives, and they may condition contributions on a candidate's commitment to vote this way or that on future legislation. But these committees are the beneficiaries of the restrictions placed on individual giving by the reformers of 1974. A citizen who would contribute $25,000 to one or two candidates in whom he believes, but is limited to a gift of $1,000 to each, will find other ways to deploy the rest of the money he has earmarked for political purposes.

But perhaps the most disturbing consequence of the 1974 amendments has been the way they have consolidated the political power of favored establishment forces. By compounding the difficulties faced by challengers, they have enlarged the advantages already enjoyed by incumbents. By restricting the political speech of political outsiders, they have enhanced the power of the two major parties. By discouraging individual action, they have enhanced the political influence of trade associations and labor unions. And if current efforts to control issue advocacy succeed, the result will be to increase still more the political power already exercised by the mass media.

THE WAY OUT

There is general agreement that the current state of the law governing federal campaigns is worse than unsatisfactory. The answer, however, is not to place further restrictions on the freedom of speech but to reexamine the premises on which the existing ones have been based. In the first instance, it has been amply demonstrated in a dozen recent races that money cannot "buy" elections. The voters have the final say. What money can do is buy the exposure without which no candidate, however meritorious, has a chance. This is the major reason that sound public policy would not place artificial obstacles in the way of challengers trying to launch a viable campaign.

Second, while it is of course true that large contributions can corrupt, the likelihood that a candidate will be seduced by such contributions is vastly overstated. The overwhelming majority of wealthy donors back candidates with whom they are in general agreement, and they are far more tolerant of differences on this point or that than are the PACs or other single-issue organizations to which a candidate will otherwise turn for necessary financing. It is true, yes, that a major financial contributor will have readier access to a candidate he has helped elect and that with access comes the opportunity to persuade. But corruption occurs only when a legislator casts a vote that violates his convictions in exchange for financial support; and virtually every study of actual voting patterns suggests that this kind of corruption is too rare to warrant the distortions created by the present law in an attempt to avoid the appearances of impropriety.

This is not to deny the importance of such appearances in a cynical age. A less damaging remedy is available, however, and that is full and immediate disclosure. Campaign committees can and should be required to record contributions on a daily basis and to make that information immediately available over the Internet. The opposing campaign can be relied on to publicize any gift that can give rise to an adverse inference. The public can then judge whether the contribution is apt to corrupt its recipient. What makes no sense is to retain a set of rules that makes it impossible for a Stewart Mott to provide a Eugene McCarthy with the seed money essential to a credible challenge to a sitting president, or that makes politics the playground of the super-rich who can finance their own campaigns.

The greater the government's involvement in our lives, the more important it is that participation in political debate be unhampered by artificial restraints. The problem today is not that too much money is spent on elections. It isn't. Procter & Gamble spends more each year in advertising its products than all political campaigns and parties do in extolling the merits of theirs. The problem is that the electoral process is saddled by a tangle of campaign laws and regulations that restrict the ability of independent voices to make themselves heard and that rig the political game in favor of the most privileged players. And because congressional incumbents are the beneficiaries of the tilted playing field (the advantages of Senate incumbency are worth well over $1 million in some states), it is fanciful to believe that Congress will rewrite the rule book to give outsiders an even break.

The road to true reform lies not in trying to persuade the Supreme Court to permit further restrictions on political speech, as the authors of the Twentieth Century Fund report and others are seeking to do, but to persuade Congress to rescind those that now exist while requiring the immediate disclosure of contributions. We have nothing to fear from unfettered political debate, and everything to gain. If artificial restraints are lifted, viable candidates will not lack the funds with which to be heard, because no side of the policy debate has a monopoly on money. American democracy can ill afford government control of the political marketplace-and that is where today's reformers would lead us.