The D.C. District Court's Recent Campaign Finance Opinions:
The Fourteen-Pound Tome Underscores the Policy, As Well as Legal, Problems with the Act

By MARCI HAMILTON


hamilton02@aol.com
----
Thursday, May. 08, 2003

When asked why he was in favor of campaign finance reform, Senator John McCain spoke passionately about the undue influence of special interest lobbyists. He declared that it was impossible in Washington to work for the public good with all of the money changing hands behind the scenes.

McCain's identification of a serious problem was right on target. Washington is not focused on the larger public good in most circumstances, and special interests are a major reason for that. So along with Senator Feingold, McCain set to work to create a law to fix the problem.

As is usual when it comes to campaign reform, those who weighed in on such a law had mixed motives. On the one hand, members of each party wanted to maximize their party's contribution base while hindering the opposing party's. (Never take any congressional corruption clean-up at face value.) On the other hand, at least for some, reform was also driven by a genuine belief in the egalitarian element of American society - and a sincere attempt to ensure that no one person, family, union, or business can wield power over the government in contravention of the public good.

Unfortunately, the law that was enacted - the Bipartisan Campaign Reform Act (BCRA) - did not do the job it was meant to: It did not effectively fight corruption. Instead, it focused on the regulation of so-called "soft money."

Soft money is the result of the Supreme Court's 1976 decision, Buckley v.Valeo, upholding limitations on private contributions to political candidates. Post-Buckley, those who wanted to influence the political process, from wealthy individuals to unions to corporations, turned to giving the parties large sums to get around the individual limitations.

BCRA is intended to stop that practice by prohibiting parties from raising soft money, by prohibiting the spending of soft money on "attack ads," and by prohibiting the donations of soft money by parties to advocacy groups, among other strategies.

This week, a special three-judge D.C. district court ruled on the constitutionality of BCRA, in the case of McConnell v. Federal Election Commission. The effect of the multiple opinions issued was to strike down much of the Act.

Now the government has appealed to the Supreme Court for review. (The Act itself stipulated that the case would go to the district court, then directly to the Supreme Court; ordinarily, the government would have to first appeal to a federal appellate Circuit Court.)

A Behemoth, Divided Set of Opinions

The opinions of the three judges cover more than 1,600 pages, and weigh 14 pounds (according to my bathroom scale). One shudders to think what the nine-Justice Supreme Court could produce!

The opinions also require a four-page scorecard, conveniently supplied by the court, so that the reader can identify the court's holding - pro or con - on each provision. The major holdings struck the ban on national political parties raising soft money; struck the rule that parties could not raise or donate soft money to advocacy groups; upheld the ban on spending soft money on attack ads; and upheld the ban on federal officeholders or candidates' raising soft money themselves.

There are only five provisions on which all three judges agree. What is amusing is exactly what they agree on: These provisions are "nonjusticiable," meaning a court had no business judging their constitutionality in the first place. Meanwhile, with respect to the other, justiciable provisions, which the judges believe they should to be reviewing, they couldn't reach a unanimous result.

What does all of this prove? First, BCRA was one of the larger legislative sausages ever produced.

Second, when a district court knows it has the only bite at the apple before Supreme Court review, it may give into the temptation to address every possible argument - leading to opinions far heavier than a newborn child. Far better to let constitutional issues circulate in the federal appellate courts so that wisdom can percolate, rather than forcing as many half-baked arguments as the litigators can imagine through a single process.

Third, when Congress tries to stem improper influence by limiting money and advertisements - the approach the BCRA took - it is asking for trouble, as I will explain in greater detail in the following section.

Signs Showed the BCRA Was Trouble from the Start

This debacle was hardly unforeseeable. Months ago, Congress scheduled special classes for the members to explain campaign finance law - after the BCRA had already been enacted.

I don't know about you, but I sat up straight when I read in the newspaper that our elected officials who had just produced this "landmark" campaign finance law now needed special classes to know when they could take or raise money. Apparently, they passed it without understanding it.

I can understand (grudgingly) their passing a technical bankruptcy bill they did not fully understand. But how could these people - many of whom are trained as attorneys - pass a law that governs their own elections and not understand it? That is quite literally insane.

It is also distressing. It seems that the ones with the most interest in, and in many cases, training for, understanding the law don't get it. If so, how are ordinary citizens, who are supposed to be policing their representatives, expected to?

Why Campaign Finance Restrictions Simply Cannot Work to Stem Corruption

This latest legislative foray makes clear that Buckley v. Valeo was a monumental error. President Bush compounded the error when he signed BCRA into law, knowing full well there were serious constitutional problems with it. The President, too, takes an oath to uphold the Constitution.

Beyond these constitutional problems, however, there were also serious policy problems with the BCRA. Indeed, for two major reasons, there was little chance it could serve its anti-corruption purpose.

First, limiting monetary contributions does not necessarily limit a contributor's power. Money is just one path for power to take. In response to restrictions like the BCRA's, those who seek influence will only close their wallets and search through their nonmonetary goodie bags.

There are many other emoluments that power-seeking individuals crave. They include future positions of power, entree to high society with all of its accoutrements, and fame. The power elite will find ways to serve each other, whether a direct avenue of money is there or not. Does anyone really believe that forbidding a politician from saying the magic words "donate to my campaign" will be less beholden to the donor if those words have been uttered by his supporting national political party?

Second, limiting monetary contributions focuses too much on only one means of tempting members of Congress away from the public good - when there are many. If the real concern is that members of Congress are ignoring the public good to grab money, then the problem is with the members, not the money. The problem is not the existence of temptation, but rather the quality of those being tempted.

To be sure, McCain and Feingold have pointed to a potent temptation for members of Congress, but they should be pointing instead to those who are succumbing to the temptation. Our members of Congress are elected to serve the country as trustees of the people's best interest. They are supposed to be acting under a horizon of the public good, not a rainbow leading to a pot of gold. This constitutional principle gets lost in the attention-diverting debates over which contributions should be limited.

The Better Path: Disclosure of Contributions and Their Source, Not Prohibition

So what is the answer? There is nothing so withering to the corruption vine than direct sunlight. If the people, and the press, can see what's going on as contributors try to seduce members, that - and only that - will truly stop the corruption.

There is a very straightforward way to force members to pay more attention to the public good, as opposed to the interests of individual donors: inform the people who is contributing what and when. Members who can be bought, can also be voted out.

The answer to the McCain/Feingold conundrum, therefore, is disclosure, disclosure, disclosure.

With the Internet's capacities, it should be simple to institute a system of immediate and accurate reporting of contributions. As soon as a check is deposited into a candidate's account, the name of the donor, the amount, and the date should appear on the politician's website. The names should not be forwarded to some bureaucracy, making the people work to find out the information, but rather to the public itself. Then public interest groups and the press can check into suspiciously timed contributions that may look, in retrospect, a lot more like bribes.

Those politicians failing to disclose the required information should be scrubbed from the ballot. It is simple, it is feasible, and it is good for accountability.


Marci Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. An archive of her articles on constitutional issues is available on this website. Her email address is hamilton02@aol.com

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