(Revised, Summer, 2001)
Campaign Reform: Constitutional Questions
by
Craig R. Smith
Professor of Communication Studies and Director, Center for First Amendment Studies, California State University, Long Beach
The effort to reform our political system has been one of the most frustrating legislative problems in our history. While most advocates are in agreement about the problems within the system, and though reform has majority bi-partisan support, at this writing Congress has failed to pass legislation to remedy the situation. In fact, it was a major issue in the presidential campaign of 2000.
To assess the constitutional questions surrounding this legislation, this study proceeds in four stages. First, it reviews the rules now governing campaign rhetoric; second, it examines the problems with the current system; third, it reviews the proposals for change; and finally it discusses the constitutionality of these reforms.
I. The Current Rules
There are various rationale for curtailing freedom of expression. These include defamation, libel, slander, obscenity, and communication that presents a clear and present danger to another or to the nation. None of these has been used to curtail campaign rhetoric, nor did the current Congress use them as a rationale for their proposals.
The rationales that were used are far more controversial. They begin with the argument that since broadcasters do not enjoy the same degree of freedom of expression as the print media, they can be required to provide free time to federal candidates. Variations on this theme date back to the first rules imposed on broadcasters stemming from the vague requirement that they serve the public interest.
In 1927, the Congress passed the Dill-White Radio Act, which created the Federal Radio Commission (FRC), the forerunner to the Federal Communications Commission (FCC). In the process of passing this legislation, the Congress added that, in order to retain their licenses, broadcasters must operate in the "public interest" and had to provide candidates for office with an equal opportunity for air time. The first test of the new law came in 1929 when a radio station owned by the Chicago Federation of Labor was not allowed to increase its air time because its programming was deemed by the FRC not to be in the public interest (Chicago Federation of Labor v. FRC, 1929; cf. Great Lakes Broadcasting et al. v. FRC, 1929). Then in 1931, the FRC denied a license based on a review of programming content (KFKB Broadcasting Ass'n v. FRC, 1931). In 1932, Congress tried to expand the equal opportunities rules to include public referenda on issues but the effort fell victim to a pocket veto by President Hoover. In 1934, Congress re-wrote the 1927 Act into the Communications Act, which created the Federal Communications Commission (FCC) to replace the FRC and gave it power over telephone, telegraph, and all broadcasting. The strongest use of new powers came in January of 1941 when the FCC handed down its Mayflower decision in which a licensee, the Yankee Network, was granted a renewal contingent upon its agreement not to editorialize. The FCC said that "the broadcaster cannot be an advocate" (FCC, 1941, at 333).
In 1943, the National Broadcasting Company took the FCC to the Supreme Court to get the rules governing content removed. But, in part because NBC programmed 86 percent of nighttime broadcasting, the Supreme Court ruled against the network and reinforced the initial rationale for the legislation: that a scarcity of outlets exists for broadcast programming, therefore, the government has a right to license the electromagnetic spectrum and assess its use in terms of programming.
In 1949, as a corrective to the Mayflower rule, the FCC promulgated a rule called the "Fairness Doctrine," which required coverage of local issues of importance and allowed presentation of contrasting points of view on those issues. The object of the FCC was to increase the diversity of voices in the marketplace of ideas and thereby help broadcasters meet their public service obligation. Almost immediately broadcasters began to comment on local issues of concern and to provide an opportunity for contrasting views from responsible representatives in the community. The success of the Doctrine led Senator Proxmire (D-Wisconsin) to propose an amendment to the Communication Act in 1959 that he thought would codify the FCC's right to implement the Fairness Doctrine. The amendment was signed into law, but as we shall see, its interpretation became a matter of some debate.
In Red Lion Broadcasting (1969), the Supreme Court examined the constitutionality of the personal attack rule, a corollary of the Doctrine. Red Lion Broadcasting owned radio station WGCB in Red Lion, Pennsylvania, a town of less than 6,000 persons. Listeners in the small suburb had access to over 20 other radio stations in 1964, the time of this incident. They also had access to cable television, of which about half the households took advantage. During the election of 1964, WGCB aired a five minute syndicated editorial by the Reverend Billy James Hargis of the "Christian Crusade." In the editorial, Hargis attacked a liberal writer who consulted with the Democratic National Committee named Fred Cook. Cook demanded time for a response under the "personal attack rule." WGCB said that Cook would have to pay for his response time; the cost would be $5. Cook refused and the case was decided by the Supreme Court in 1969. The Court ruled unanimously in favor of Cook, arguing that the electromagnetic spectrum is scarce, that licensees are public fiduciaries, and therefore, subject to government control to insure "fairness."(1)
Ironically, in 1974 Senator Proxmire launched the first attempt to repeal the Doctrine because he came to believe it impinged on broadcasters' First Amendment rights. His effort failed. The second effort at repeal was born during Senate Commerce Committee hearings on "Freedom of Expression" held in the fall of 1982. This effort, of which I was a part, partially succeeded in 1987 when the FCC suspended the "Fairness Doctrine" but left its corollaries, the Personal Attack and the Political Editorial Rules, in tact.(2) The Personal Attack rule guarantees the right to reply to anyone who has had his/her character questioned, particularly if that occurred when a broadcaster was endorsing a political opponent. The Political Editorial rule provides that if a station broadcasts an editorial endorsing or opposing a candidate for office, the candidates for the same office who are not endorsed or who are opposed must be sent notification of the editorial, a script of the editorial, and given an offer to air a reply. The case to repeal them was made before the U.S. Circuit for the District of Columbia in April of 1999; the court ordered an expedited hearing of fact at the FCC. Another set of content rules born in 1934 require a broadcast to provide "equal opportunities" for appearances by all bona fide candidates for public office, including write-ins. For a while this meant that if a station wished to sponsor a debate between the Democrat and Republican running for Senate, it had to provide comparable time for others who have filed for the office, no matter what the size of their following or the legitimacy of their effort.
Luckily, in 1975 with the Aspen Rules, and again in 1983, the FCC made it easier by allowing a station to cover a debate, no matter who participated, as long as the debate was put on the air live and in its entirety. In 1984, half the television stations in the country offered time for debates, a major increase over the number offering to cover debates in years when the FCC did not suspend the rules.
In the wake of Watergate, a passel of requirements was added to the Federal Corrupt Practices Act of 1925 and the Federal Election Campaign Act of 1971. Along with requiring full disclosure of contributions to a federal campaign,(3) the new rules limited individual contributions to $1,000 per election, prohibited corporate contributions,(4) and established that employees could contribute to a campaign only by forming political action committees (PACs) which could make maximum contributions of $5,000 per candidate per election. No individual would be allowed to give more than $5,000 to a PAC or $25,000 overall to federal candidates during a single year. The new law also carefully monitored and limited what a political party could contribute to its candidates and what corporations or unions could "contribute in kind" -- equipment, services, travel, and the like. Political parties were forced to allocate their contributions based on population formulas, but they could provide money to and in states for the purpose of "party building activities." This provision opened the law to what is called "soft money:" contributions given to the party for grassroots and party building activities were allowed under amendments to the FECA passed in 1979. These activities are not subject to the limitations of the Federal Election Campaign Act or the regulations of the FEC. Nor are certain activities of corporations and unions including corporate communication to stockholders, labor communications to its members or their families, non-partisan voter registrations and get-out-the-vote activities, and creation of political action committees. Soft money may also take the form of issue advocacy by for-profit, non-profit, and labor organizations as long as they are not coordinated with a candidate.
Further, the law provided for public financing of presidential nominating conventions and for matching funds to help pay for presidential primary and general election campaigns. In 1999 the public was so annoyed by this provision that only 11% of those who filed income tax return checked off a contribution to the FEC fund. In 1981 almost 29% of filers check the box. The result was that for the 2000 election cycle, the FEC was seriously short of funds.
In return for accepting matching funds, presidential candidates were limited in how much they could spend overall. If they refused matching funds, as did George W. Bush and Steve Forbes, they could spend their money in an unrestricted way.
BUCKLEY V. VALEO
Senator James L. Buckley, a member of the Conservative Party of New York and Eugene J. McCarthy, a liberal Democrat and former Senator from Minnesota, challenged the law arguing that it infringed on freedom of expression and assembly. They lost at the appellant level when the court found "a clear and compelling interest" (Buckley v. Valeo, 424 U.S. 841 (1975)) in preserving the integrity of the electoral process. This opinion was important because the Supreme Court accepted the "integrity" argument (at 10), even though it does not meet the burden of proof regarding guilt. In fact the Court has consistently required the government to prove that the harms it seeks to combat are real and based on solid evidence. (See for example, Ibanez v. Florida Dept. of Business and Professional Regulations, 512 U.S. 136, 143 (1994); See also NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913 (1982); Carey v. Brown, 447 U.S. 455, 467 (1980): Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964).
The case was argued in the shadow of the Watergate scandal before the Supreme Court. In fact, Archibald Cox who had been fired by President Nixon, was an attorney for the appellees. In the main, they argued that the law merely restricted conduct, not speech, and was therefore constitutional given Congress' power to regulate federal elections. The appellants argued that the law restricted freedom of speech, freedom of assembly, due process and equal protection.
The Supreme Court, in a curious decision with no single justice signing, ruled that the restrictions on contributions were constitutional but that spending limitations were not. The former, said the Court using the 1972 election as an example, were appropriate ways of controlling the appearance of undue influence (p. 26); the latter, however, restricted freedom of expression (pp. 39, 44, 56-58). Furthermore, despite an argument that the disclosure provision violated the rights of free association and privacy, the Court held that the government had a compelling interest in preventing a "corrupting" influence (p. 55). The act was found to promote the general welfare and thereby constitutionally sanctioned. The Court held that the provisions regarding minor parties matching funds and ballot access did not violate the Due Process Clause of the Fifth Amendment (p. 74).
Clearly this decision touches a great many issues from free speech to freedom to associate. The decision is very long and very complex, with Justices joining and dissenting on various parts of various opinions. Justices Brennan, Stewart and Powell concurred in all parts of the majority decision, and were joined by Justice Marshall in all parts but I.C.2, which strikes down spending limits. Justice Blackmun joined in all parts except section I.B, which upholds limits on fund-raising. Opposing public funding provisions, Justice Rehnquist joined in all parts except III. B.1 in which the majority found no merit to claims that the public financing of presidential candidates was a free speech violation and Due Process clause violation.. Justice Burger dissented in part but joined in Part I.C which overturned expenditure limits and Part IV, which concurred that Congress had the right to establish a FEC. Justice White joined only in Part III, which affirmed the provisions establishing public financing of presidential elections, because he believed that expenditure limits were constitutional. Justice Stevens took no part in the case. An analysis of the decision reveals why consensus was so difficult to achieve.
The majority acknowledged that "The First Amendment protects political association as well political expression" unless a compelling government interest can be advanced by a narrowly constructed regulation (p. 15). We will return to freedom of association below. At this juncture, let us turn to the compelling interest standard. The Court argued that the regulation of conduct did not rise above the O'Brien standard as claimed by the appellees. United States v. O'Brien (1968) made a distinction between conduct, which could be regulated, and expression, which could not. The Court in Buckley did not " . . .share the view that the present Act's contribution and expenditure limitations are comparable to the restrictions on conduct upheld in O'Brien. The expenditure of money simply cannot be equated with such conduct as destruction of a draft card" (p. 16). The Court continued:
Even if the categorization of the expenditure of money as conduct were accepted, the limitations challenged here would not meet the O'Brien test because the governmental interest advanced in support of the Act involve 'suppressing communication.' The interests served by the Act include restricting the voices of people and interest groups who have money to spend and reducing the overall scope of federal election campaigns (p. 17).
Thus, early in this decision, the majority equates money and speech, accepting the argument that money is symbolic speech. Such a ruling accords with Tinker v. Des Moines Indep. Comm. School Dist. (1969) and decisions that would follow Buckley, such as Johnson v. Texas (1989). Later we shall see, however, that once the Court turned to the contribution side of the equation, it did not find a strong enough correlation between money donated to a campaign and expressive conduct.
As it continued its rationale for striking down the restriction on spending limits, the majority discounted "time, place and manner restrictions" as a rationale for the law. The Court established those criteria in a number of cases that argued that content neutral restrictions on time, place and manner of speech were permissible if the state had a compelling interest to advance (see, for example, Heffron v. International Society for Krishna Consciousness (1981)). In Buckley, the Court ruled : "The critical difference between this case and [time, place and manner rulings] is that the present Act's contribution and expenditure limitations impose direct quantity restrictions on political communication and association by persons, groups, candidates, and political parties in addition to any reasonable time, place, and manner regulations otherwise imposed" (p. 18). The heart of the case for striking down the spending limitations came next:
A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the side of the audience reached . . . . The electorate's increasing dependence on television, radio, and other mass media for news and information has made these expensive modes of communication indispensable instruments of effective political speech (p. 19).
Thus, the spending limits of the Act were struck down. However, one wonders if this reasoning applies to spending, why does it not apply to fundraising?
The answer came only a few pages later:
By contrast . . . a limitation upon the amount that any one person or group may contribute to a candidate or political committee entails only a marginal restriction upon the contributor's ability to engage in free communication. A contribution serves as a general expression of support for the candidate and his views, but does not communicate the underlying basis for the support. The quantity of communication provides a very rough index of the intensity of the contributor's support for the candidate. . . . While contributions may result in political expression if spent by a candidate or an association to present views to the voters, the transformation of contributions into political debate involves speech by someone other than the contributor (p. 20-21).
Therefore, it is not specific enough in the Court's view to serve as expressive conduct; thus it does not qualify for protection under the symbolic speech standard. The Court argues that the act of contributing, regardless of the amount, fulfills the symbolic function of expression. The majority claimed that these restrictions would actually force campaigns to seek wider support, thereby involving more people in campaigns (p. 21). Finally, contributors may engage in direct participation in the political process (p. 21) rather than contributing to candidates who speak for them. The law does not prevent, but in fact encourages voters to organize with "like-minded" persons to support a candidate, which reinforces the important element freedom of association (p. 22).(1) The Court concluded that "although the Act's contribution and expenditure limitations both implicate fundamental First Amendment interests, its expenditure ceilings impose significantly more severe restrictions on protected freedoms of political expression and association than do its limitations on financial contributions" (p. 23).
This reasoning is comparative; the Court will strike down the most offensive part of the law and use that as a rationale for uphold the less offensive. One wonders, however, if the restrictions on contributions had been considered alone against the constitutional standard whether they too would have been found to be an unconstitutional restriction on expressive speech and/or the freedom to associate. Recall that the First Amendment guarantees "the right of the people peaceably to assemble" in order to "petition the government" (United States v. Cruikshank, 1876). Like other First Amendment rights, it can be limited if there is a compelling government interest to do so (Cox v. Louisiana, 1965). In this regard and with particular relevance the issue taken up by the Buckley Court, Justice Douglas wrote in Adderley v. Florida in 1966 that "Those who do not control television and radio, those who cannot afford to advertise in newspapers or circulate elaborate pamphlets may have only a more limited type of access to public officials. Their methods should not be condemned as tactics of obstruction . . . as long as the assembly and petition are peaceable. . ." (pp. 50-51.) Nowhere, however, was the right of assembly more strongly asserted than in N.A.A.C.P. v. Alabama (1958). That state had attempt to obtain a list contributors to the N.A.A.C.P.. The Court ruled that "It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the 'liberty' assure by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech" (p. 460; see also, Kusper v. Pontikes, 1973, p. 57). In light of these precedents, it is difficult to see how the Court could rationalize curtailing a citizen's desire to support his or her association through a contribution that was kept secret. The Court did so by accepting appellees arguments that the government had a compelling interest to advance: "prevention of corruption and the appearance of corruption spawned by the real or imagined coercive influence of large financial contributions on candidates' positions and on their actions if elected to office" (p. 25, my emphasis). The weight of Watergate was clearly evident: "Although the scope of pernicious practices can never be reliably ascertained, the deeply disturbing examples surfacing after the 1972 election demonstrate that the problem is not an illusory one" (p. 27). The Court here borders on undercutting the presumption of innocence and relies on evidence that may be unreliable and/or perceived.
Nonetheless, the Court used this evidence to justify a re-engineering of the political system. Restrictions and incentives are set in place to encourage broader participation (more candidates rather than one, the formation of political action committees, direct involvement rather than monetary support) and reduce influence and associational strength (less money per candidate). The Court evidently believed that no one has the right to put all of his or her eggs in one basket; one is restricted to giving $25,000 in federal campaigns, and that money must be split among 25 candidates. Furthermore, giving all of one's money to one candidate is not a specific enough symbolic message to warrant protection, and such a contribution gives an appearance of corruption which justifies restricting freedom of assembly.
The Court goes on to cite the danger of the possibility of quid pro quo arrangements (pp. 26-27), but a quick review of recent history indicates that the law neither prevents nor detects such arrangements. They have merely been moved into the realm of "soft money" contributions to the major parties that the law excepted (see below). The Court argues that limitations on fund-raising are justified because the disclosure provisions, and other federal laws on bribery, are insufficient to stem the tide of political corruption (pp. 27-28).
The appellants argued that the law was overboard and overreaching for just this reason. The Court was unsympathetic: "Congress was justified in concluding that the interest in safeguarding against the appearance of impropriety requires that the opportunity for abuse inherent in the process of raising large monetary contributions be eliminated" (p. 30).
The Court next took up the appellants' argument that the law favors incumbents over challengers because incumbents naturally have a broader base of support and have already established name recognition. Hence they can raise funds more easily than challengers even though they do not need to raise as much money as challengers, who must overcome these and other obstacles. The Court demanded solid evidence for this claim, in the absence of which it claimed that the playing field was level: "Challengers can and often do defeat incumbents in federal elections" (p. 32). However, the Courts evidence for this claim is highly suspect. They rely (footnote 34) on election results from 1974, the first post-Watergate election in which many Republican incumbents were thrown out of office. The Court needed to ask, what is the threshold for establishing that a law unconstitutionally discriminates against challengers as opposed to incumbents. Since incumbents have the advantage of name recognition and an established basis of support, aren't challengers fighting an uphill battle if their ability to raise funds is limited to $1000 per person? The Court responds that many challengers out raised and out spent incumbents. One would need to engage in case by case analysis to determine the circumstances under which this happened.(2) In the end, the Court returned to the rationale it had used earlier to justify its equal treatment of incumbents and challengers: "Since the danger . . . and the appearance of corruption apply with equal force to challengers and incumbents, Congress had ample justification for imposing the same fundraising constraints upon both" (p. 33).
Appellants also argued that minor parties and their candidates were also disadvantaged under this law because of their smaller base of support. While the Court found this argument "troubling" (p. 33), they did not accept it. Since all candidates are treated equally, the law is fair. Furthermore, restricting the ability of the major parties to raise funds should actually rebound to the benefit of smaller parties. The Court concluded that the "attempt to exclude minor parties and independents en masse from the Act's contribution limitations overlooks the fact that minor-party candidates may win elective office or have a substantial impact on the outcome of an election" (p. 35).
The Court also dismissed the claim that the requirements surrounding the formation of a Political Action Committee (PAC), particularly the six-month waiting period, interfered with free association. The Court actually argued that the law encouraged participation by employees (p. 35-36). These are the same PACs that have been so roundly criticized for joining together their contributions to have a bigger impact; the practice is called bundling.
Limitations on Spending
Given these arguments, it is rather astounding that majority can turn around when it comes to expenditure limitations and argue that "[t]he Acts expenditure ceilings impose direct and substantial restraints on the quantity of political speech" (p. 39). In response Justice Harry Blackmun wrote that the Court could not make a distinction between contributions and expenditures on the basis of which was more vital to freedom of expression (p. 290) . In his dissent, Chief Justice Warren Burger wrote, "Contributions and expenditures are two sides of the same First Amendment coin" (p. 241).
The majority disagreed upholding the contribution limits but arguing that Congress needed to refine the legislation with regard to spending: "[T]here is no definition clarifying what expenditures are 'relative to' a candidate. The use of so indefinite a phrase . . . fails to clearly mark the boundary between permissible and impermissible speech . . ." (p. 41). The Court turns "to the basic First Amendment question" and finds that the law "impermissively burdens the constitutional right of free expression" (p. 44). On this side of the equation, "[w]e find that the governmental interest in preventing corruption and the appearance of corruption is inadequate to justify [the] ceiling on independent expenditures" (p. 45).
Next the majority turned to the issue of limitations on candidates from personal or family resources. Again they ruled such restrictions place too much of a burden on the free-speech rights of candidates. As we have seen, this part of the ruling allowed the rich to spend as much as they pleased to run for office which, given the restrictions on other candidates, tilted the playing field in favor of the wealthy. On this point, the Court favors equal treatment over providing incentives to reduce the influence of money in the campaign.
Reporting and Disclosure
The first federal disclosure law had been enacted in 1910 to cover money crossing state borders to other states' political campaigns. In 1925 these rules were strengthened in the wake of the Republican scandal. The 1971 Act replaced the 1925 rules, which was then modified after Watergate. The question concerning the reporting of contributions and the disclosure of contributors and expenditures centered on whether these requirements were so rigorous as muddle a campaign in red tape and whether they may chill the right to free association. Said the Court:
We are not unmindful that the damage done by disclosure to the associational interest of the minor parties and their members and to supporters of independents could be significant. These movements are less likely to have a sound financial base and thus are more vulnerable to falloffs in contributions. In some instances fears of reprisal may deter contributions to the point where the movement cannot survive (p. 71).
However, in part because the appellants had provided insufficient evidence to document their fears (p. 72), the Court concluded that the requirements were constitutional and denied the request for a blanket exemption for minor parties, again coming down on the side of equal treatment of all parties. Furthermore, the Court argued that disclosure would over come "routing of financial support of candidates through avenue not explicitly covered by the general provisions of the act" (p. 76). In his dissent, Justice Berger believed the need for secrecy outweighed other considerations: "Rank-and-file union members or rising junior executives may now think twice before making even modest contributions to a candidate who is in disfavor by the union or the management hierarchy" (p. 237).
Minor Party Funding
The Court's examination of independent spending to influence the outcome of an election was also interesting. It tried to make a distinction between independent issue advocacy and party building, and "funds used for communications that expressly advocate the election or defeat of a clearly identified candidate" (p. 80). The ruling precludes regulation of independent expenditures unless the advocacy involved expressly advocates the victory or defeat of a candidate. As I will indicate later in this report, that required the courts to revisit this section of the case.(3)
The appellants had argued that the funding limits were unrealistic even in terms of the alleged government interest. A one thousand dollar limit on individuals and a five-thousand dollar limit on PACs was ridiculously below a threshold that would appear to influence candidates or elections improperly. The requirement that a campaign report any amount received of ten dollars or more, and the requirement to report the name and address of anyone contributing as little as one hundred dollars are also ludicrously low. And the Court recognized that "Indeed, there is little in the legislative history to indicate that Congress focused carefully on the appropriate level at which to require recording and disclosure" (p. 83). Nonetheless, the Court upheld the law because it could not require the Congress to establish the "highest reasonable threshold. The line is necessarily a judgmental decision...." (p. 83).
Public Funding of Elections
The Court then went on to affirm the use of a Presidential Election Campaign Fund for primary campaigns, party nominating conventions, and general election campaigns. It re-asserted its sanctioning of the major, minor, and new party labels and requirements. It rejected the First and Fifth Amendment claims of the appellants on the ground that the law "furthers, not abridges, pertinent First Amendment values" (p. 93).
The power of the Congress to establish the FEC law was also challenged. However, the Court ruled that if the law was constitutional, so was the Commission. Furthermore, the Court held that the time was not yet ripe to assess the Commission's operation. In the process, the majority did give a nod to the argument that the "three great branches of the National Government be largely separate from one another" (p. 120). However, the Court overcomes this problem by arguing that the branches need not be totally separate. Thus, joint commission could be established among the branches. A good deal of time is spent examining the original intent of the Founders on this point, which may have attracted Chief Justice Burger's concurrence with this section.
The Dissenters
Five justices dissenting in part to the decision raised various arguments at various points but never coalesced into a majority on one issue. Three of the five were conservatives, Burger, Blackmun, and Rehnquist, and only two, Burger and Rehnquist were strict constuctionists. The fourth dissenter, Byron White, was a swing voter. The fifth dissenter was the liberal Thurgood Marshall. Burger's dissent is the most extensive. While he agrees that "the need for disclosure outweighs individual constitutional claims" (p. 236), he objects to the disclosure of small contributions, the limitation on contributions, and the public financing of presidential elections. Burger believes that small anonymous contributions could not corrupt the system but could if the donor were revealed, he or she could be punished or harassed. Burger analogizes the situation to the secret ballot. He concludes this argument rather colorfully: "The government has used a shotgun to kill wrens as well as hawks" (p. 239).
Burger strongly opposes limits on contributions because that effectively limits expenditures, which the majority claims is unconstitutional. Burger argues the majority simply can't have it both ways; either way "money translates into communication" (p. 243). Worse yet:
the Act does not attempt to do any more than the bribery laws . . . . In fact, the Act does not reach . . . forms of 'association' that can be fully as corrupt as a contribution intended as a quid pro quo - such as the eleventh hour endorsement by a former rival, obtained for the promise of a federal appointment (p. 246).
Burger also opposes public financing altogether on the grounds that it undercuts representative democracy. Like Justice Rehnquist, Burger believes the Act allows the government to support certain parties over others and, with its matching provisions, gives a preference to candidates who are talented at raising money. Furthermore, a:
candidate with substantial personal resources is now given by the Court a clear advantage over his less affluent opponents, who are constrained by the law in fund-raising, because the Court holds that the 'First Amendment cannot tolerate' any restrictions on spending (p. 253).
These problems have been caused by the Court's piece meal approach to the act: "By dissecting the Act bit by bit, and casting off vital parts, the Court fails to recognize that the whole of this Act is greater than the sum of its parts" (p. 235).
Justice White also dissented in part because he believed it was consistent to limit both contributions and expenditures as "effective preventive and curative steps" (p. 259). He found the contributions and expenditures to be neutral as to content, avoiding the symbolic speech quagmire altogether. He also argued that unless spending limits were in place the law would not function properly; the rich would have an advantage.(4) His statement on this point is worth noting:
One of the points on which all Members of the Court agree is that money is essential for effective communication in a political campaign. It would appear to follow that the candidate with a substantial personal fortune . . . is off to a significant "head start." [The] ability to generate contributions may itself depend upon a showing of a financial base for the campaign . . . which in turn is facilitated by expenditures of substantial personal sums. Thus the wealthy candidate's immediate access to a substantial personal fortune may give him and initial advantage that his less wealthy opponent can never overcome (p. 288).
As we shall see, Justice White proved prescient on this point. He also goes on at some length about the manner in which members had been appointed to the FEC. Like his colleagues, he found the method to be unconstitutional and Congress was forced to remedy the situation by returning to the traditional presidential appointment process with the advice and consent of Congress.
Justice Rehnquist dissented in part because he believed the Act was unfair to independent candidates and minor parties. The most interesting part of his dissent is his redefinition of the Gitlow ruling of 1925:
I am of the opinion that not all of the strictures which the First Amendment imposes upon Congress are carried over against the States by the Fourteenth Amendment, but rather that it is only the 'general principle' of free speech . . . that" is incorporated (Buckley, p. 291). This rather stunning interpretation would later be embraced by Justices Scalia and Thomas when they joined the Court.
The Impact of Buckley v. Valeo
Once the dust settled from this controversial decision, the Republican Party immediately adapted by honing its rhetorical effectiveness at direct-mail solicitations of small donors and soft-money solicitations from corporations. For years it held a huge lead over other parties in terms of fund-raising and at the same time could brag that the average donation to the Party and its candidates was far below that of the Democrats. In first 18 months of the 1986 election cycle, for example, the National Republican Senatorial Committee raised $59.6 million compared to $6.8 million raised by its Democratic counterpart.
In the meantime, the courts began to react to the ruling. One of the most important rulings concerned issue advocacy.(5) The Supreme Court ruled that federal regulations could limit donations for "communications that in express terms advocate the election or defeat of clearly identified candidate[s] for federal office," but not for more general "issue advocacy" (FEC v. Massachusetts Right to Life, p. 12). The issue again came before a Federal court when Harvey Furgatch had placed ads in prominent papers during the 1980 campaign that accused President Carter of "degrading the electoral process and lessening the prestige of the [presidency]" (FEC v. Furgatch, p. 858). In 1987 the Supreme Court denied certiorari in this Ninth Circuit case, which had established a three-part test to determine whether a communication is issue advocacy:
First, even if it is not presented in the clearest, most explicit language, speech is "express" for the present purposes if its message is unmistakable and unambiguous, suggestive of only one plausible meaning. Second, speech may only be termed "advocacy" if it presents a clear plea for action, and thus speech that is merely informative is not covered by the Act. Finally, it must be clear what action is advocated. Speech cannot be "express advocacy of election or defeat of a candidate" when reasonable minds could differ as to whether it encourages a vote for or against a candidate or encourages the reader to take some other kind of action (p. 864).
In its denial, the Supreme Court ruled:
[S]peech need not include any of the words listed in Buckley to be express advocacy under the act, but it must, when read as a whole, and with limited reference to external events, be susceptible of no other reasonable interpretation but as an exhortation to vote for or against a specific candidate (p. 864)
Thus, while many issue advertisements are not covered by the Act, the advertisement before the bar was express advocacy and fell under the province of the Act. The FEC soon clarified its rules with regard to what kind of advertising was covered by the Act. Their criteria included closeness to the election, that the advertisement is unambiguous and suggestive of only one meaning, and that meaning advocates voting for or against a candidate.
In 1996 the Court expanded freedom of expression for parties on a seven to two vote when it rejected the Federal Election Commission's penalizing of the Colorado Republican party for funding radio advertisements that criticized the record of the Democratic candidate for U.S. Senate, Timothy Worth. The Republican Campaign Committee was free to advocate the defeat of the Democratic candidate as long as it did so independently of the Republican candidate's campaign.(6) If coordination could be proved, then the Republican party would have violated the law. The same rule applies to independent PACs. "The independent expression of a political party's view is 'core' First Amendment activity," wrote Justice Stephen G. Breyer, a Clinton appointee (Colorado Republican Federal Campaign Comm. v. Federal Election Commission, p. 610, 1996). What may be the most pernicious part of this ruling is that it affirmed that standard practice of a major party collecting soft-money from unions, corporations, and private individuals (see below), passing that money to state parties, and then state parties using the funds to attack opponents of their candidates. As Briffault had made clear, "Party spending blurs the expenditure/contribution distinction. It is formally an expenditure, but given the close ties between parties and their candidates, party spending could plausibly be treated as a contribution" (p. 102-103).
In 1996, FEC took up the issue of voter guides in FEC v. Christian Coalition. Because the Coalition's voter guides rated candidates, the FEC argued that they constituted speech endorsing or calling for the defeat of candidates. The FEC lost the first round of this case in August of 1999 when Judge Joyce Green of Federal District Court ruled that while the Coalition had to pay fines for sharing its voter lists with Oliver North (who ran for Senate in Virginia) and for coordinating activities with House Speaker Newt Gingrich, it was protected under the First Amendment when it endorsed George Bush for President and Jesse Helms for Senator because no coordination could be proven. Following the Colorado Republican precedent, the ruling allows PACs and other independent organizations to attack and defend candidates in their literature and media campaigns as long as no coordination with candidates can be proved.
By far the most significant ruling was Nixon v. Shrink Missouri Government PAC which was decided on January 24, 2000. Shrink Missouri Government PAC intentionally gave Zev Fredman, a candidate for Missouri state auditor, a contribution that was over the state-imposed limits which went into effect after state initiative with even stricter limits was struck down by the Eighth Circuit (Carver v. Nixon, 1995). The challenge to the regnant Missouri law then reached the Eighth Circuit where the PAC and Fredman argued that the state law violated their First and Fourteenth Amendment rights. The Eighth Circuit Court of Appeals agreed arguing that Buckley required courts to apply strict scrutiny to state laws. Therefore, Missouri was required to demonstrate that the law advanced a compelling interest and that the statutes were narrowly drawn. The Court of appeals ruled that the state's evidence was inadequate to meet these tests (Shrink Missouri Government PAC v Adams, 1998).
The Supreme Court overruled arguing that Buckley is the authority for comparable state limits on contributions and those limits need not be pegged to the precise dollar amounts approved in Buckley. Justice Souter, writing for the majority, claimed that the possibility of the appearance of corruption was enough of a compelling interest for the state to restrict contributions in this case. In Souter's mind that interest overwhelmed concerns about restricting freedom of speech and association.
II. Current Problems
Buckley v. Valeo sent politicians scrambling for ways by which they could raise money in small amounts, but gather enough contributions to meet their campaign needs. The loopholes created by the Court had several weird consequences. First, those running for office could spend their own money in unlimited ways, a loophole through which John Connolly, Michael Huffington, Ross Perot and Steve Forbes have driven.
The "soft money" loophole meant that rich donors could give a great deal of money directly to political parties and with a wink and a nudge, it would wind up the right pockets. From 1993 to 1997, campaign contributions by the 544 largest public and private companies in America jumped 75% to $129 million.(16) Soft money is the fastest growing component of this sum, constituting over $50 million from corporations.(17) For example in the 1996 election cycle, Philip Morris contributed $3.9 million and AT&T contributed $2.2 million in PAC money. From January 1, 1995 to November 25, 1996, the Republican national committees reported raising $141 million in soft money, an increase of 183% over the previous cycle. The Democrat national committees raised $122 million, an increase of 237%. In Colorado Republican Committee v. FEC,(18) in 1996, the Supreme Court ruled that First Amendment prohibited the application of any provision of the FECA (1971) (2 U.S.C. Sec. 441 a(d)(3)) to political party expenditures made independently. Not surprisingly then, in only the first fifteen months of the 1997-98 cycle, the national Democratic and Republican parties had raised a total of $90 million.(19) In that cycle, because of overseas funding the Democrats caught up with the Republicans, but also faced serious ethical questioning.
In the round of "soft money" donations reported by Time magazine in September of 1999, the Democratic National Party had received $525,000 from the Communication Workers of America, $460,000 from the American Federation of State, County and Municipal Employees, $315,000 from commercial realtor Walter H. Shorenstein, $315,000 from Williams Bailey Law Firm, and $305,350 from AT&T. Each of these have lobbied extensively for legislation that is supported by the Democratic Party.(20) For example, Williams Bailey Law Firm opposes personal-injury tort reform.
The givers in the same time period to the Republican National Party are AT&T with $527,000, American Financial Group with $500,000, Philip Morris with $378,467, United Parcel Service with $363,550, and Kojaian Management with $300,000. Each of these companies has lobbied extensively for legislation that is supported by the Republican Party.(21) For example, American Financial Group owns Chiquita Bananas, which is seeking protection from European exporters. On February 7, 2000 Time did an expose' of this operation demonstrating that American Financial Group's annual revenues equal $4 billion but they control other companies with assets of over $10 billion dollars. Terence McAuliffe, whom Vice President Gore called "the greatest fund raiser in the history of the universe,"(22)is a business partner with the head of American Financial Group. On October 17, 1994, the night the head of American Financial Group was having dinner at the White House, the United States Trade Representative, Mickey Kantor, launched a major investigation of European companies opposing American Financial Group in various markets. A week later, Vice President Gore called the head of American Financial Group and requested more contributions to the Democratic Party. On November 3, 1994, AFG sent a check for $50,000 to the Democratic National Committee; and $50,000 followed the other companies that AFG controlled.(23)
Finally, with regard to soft money, the last presidential campaign led to an influx of foreign money into campaign coffers. While foreigners are prohibited from contributing to federal campaigns, green card holders are not.(24) Furthermore, foreign groups, particularly the Chinese, attempted to circumvent the law by passing money through American citizens or American subsidiaries. Both tactics are illegal if the money is spent directly on candidates; however, if the money is given to parties as soft money, it may not be covered under the statutes. John Huang, a representative of the Indonesian based Lippo Group, an official at the DNC and the Commerce Department, raised over $4 million for the Democratic Party primarily from Asian-Americans, some of whom were used as conduits for foreign funds.(25) Cheong Am America's $250,000 was returned when it was pointed out to the DNC that the money was from a subsidiary of a South Korean firm which had not yet generated revenues in the United States. Resident aliens Arief and Soroya Wiriadinata donated $452,000 in twenty-three separate contributions to the DNC of which $320,000 was donated after they returned to Indonesia. Since the couple did not file 1995 income tax returns, the DNC returned the money. Many of the agents involved in these transfers, including Johnny Huang, have pled guilty to violating the law.
Political action committees (PACs) through which employees can shift money to campaigns grew to over 4,000 in 1986 and remain at about that level now. PAC contributors, including union and corporate members, number over 4 million, and total donations to House and Senate campaigns in 1996 reached over $200 million. Cantor reports that "Twenty-nine percent of House and Senate general election candidates' funds came from PACs in 1996, up from less than 20% in 1976."(26)
Campaigns are so expensive as to exclude many candidates. According to Cantor, the average cost of winning a House seat is $683,000, up from $87,000 in 1976; the cost of winning a Senate seat is $3.8 million, up from $609,000 in 1976.(27) He reports, "House and Senate candidates spent over $765 million in 1996, up 72% since 1990."(28) The cost of purchasing broadcast time is eating up the budgets of the campaigns. For example, Cantor and Rutkus report "52% of President Clinton's 1996 campaign budget and 46% of Senator Dole's were spent on electronic media advertising ($59 million v. $54 million). In competitive races 48% of Senate campaign budgets and 41% of House campaign budgets were devoted to broadcast media advertising."(29) In 1996 over $400 million was spent on broadcast advertising by federal state and local candidates in primary and general campaigns, up from $10 million in 1960, or $53 million in adjusted 1996 dollars.
III. Current Proposals
The current proposals include such unconstitutional requirements as making the openings and closings in federal campaign commercials uniform, requiring candidates to appear in their commercials, prohibiting commercials for a time period just before the election, expanding the ban on coordinated activity, and forcing stations which aired "negative ads" to grant free response time to attacked candidates.
A number of proposals were aimed at unions trying to create a more level playing field with corporations. For example, HR 928 (Christensen) would require unions to include its distribution of funds to political candidates in its annual financial report. HR 1625 (Fawell) would require labor unions to obtain permission from workers in writing before spending dues on a political campaign.(30)
A great many legislative proposals sought close the soft money exception by rewriting the FECA.(31) HR 506 (Andrews), for example, would subject national parties who transfer funds to state and local parties to the same limitations, prohibitions, and reporting requirements as FECA applies in other instances. HR 2777 (Gephardt) would limit contributions from any entity to a national party organ to $10,000 in a calendar year.
Emerging from this sea of legislation to the consensus leadership position was the bill authored by Senators McCain (R-Arizona) and Feingold (D-Wisconsin). The Bipartisan Campaign Reform Act contained the following provisions:
1. all contributions to national party organs shall fall under the regulations of the FECA and the FEC shall determine the meaning the word “coordinating.”
2. all transferred funds from national party organs to state or local party organs shall be subject to the regulations of the FECA.
3. no party organ may solicit funds or make any donations to any organization that is exempt from federal taxation under 26 U.S. C. sec. 501 (c), that is, charitable or non-profit.
4. no candidate for federal office may receive any funds that are not subject to the FECA requirements.
5. state parties may create their own grassroots fund.
6. no person can make contributions exceeding in aggregate, $30,000 during any calendar year of which not more than $25,000 may be contributed to all candidates in any calendar year and not more than $20,000 contributed to all state political party committees in any calendar year. Contributions made in any calendar year in which there is no federal election shall be counted toward the limits imposed on a calendar year in which there is a federal election. In effect, this language limits the contribution totals to the federal election cycle.
7. "express advocacy" is defined as communication that advocates the election or defeat of a candidate by containing the phrase "vote for," "re-elect," or words that in context can have no reasonable meaning other than to advocate the election or defeat of a clearly identified candidate.
8. union members may not be required to pay full union dues if some of those funds are used for political purposes.
9. senate candidates who agree to spending limits would receive 30 minutes of free television time, additional non-pre-emptive TV time at 50% of the lowest unit rate, and up to two mailings per voter at 3rd class nonprofit bulk rate.
10. PAC contributions to federal candidates would be prohibited.
IV. Unconstitutional and Unworkable
Taking the most important reforms in order, this study assess the constitutionality of each. First, while the Fairness Doctrine and its corollaries were well intentioned and upheld in the Red Lion case unanimously in 1969, their force has been serious eroded by technological developments and other case law. In FCC v. League of Women Voters of California, the Court opened the door to a repeal of Red Lion when it noted:
that the FCC, observing that "if any substantial possibility exists that the [Fairness Doctrine] rules have impeded, rather than furthered, First Amendment objectives, repeal may be warranted on that ground alone," has tentatively concluded that the rules, by effectively chilling speech, do not serve the public interest, and has therefore proposed to repeal them .... As we recognized in Red Lion ... were it to be shown by the Commission that the Fairness Doctrine "has the effect of reducing rather than enhancing" speech, we would then be forced to reconsider the constitutional basis of our decision in that case (1984, 276-379, nn.11-12).
The Court then questioned the legitimacy of the "scarcity rationale." In 1986, the D.C. Circuit Court of appeals took the Court up on its offer in the TRAC case. It reads in part:
[I]t is unclear why [scarcity] justifies content regulation of broadcasting in a way that would be intolerable if applied to the editorial process of the print media. All economic goods are scarce, not least the newsprint, ink, delivery trucks, computers, and other resources that go into the production and dissemination of print journalism. Not everyone who wishes to publish a newspaper, or even a pamphlet, may do so. Since scarcity is a universal fact, it can hardly explain regulation in one context and not another . . . . All economic goods are scarce, not least the newsprint, ink, delivery trucks, computers, and other resources that go into printing a newspaper (TRAC, 1986, no.85-1160, slip. op.).
There are now 10,128 radio stations and 1,315 television stations. Ninety-six percent of all households with television receive five or more stations. There are approximately 8,000 cable systems in the United States reaching 50 million subscribers, half of the nation's television households. Cable or satellite transmission is now available to almost every American home.
However, even if the Fairness Doctrine is permanently struck down, the equal time and equal access rules remain. These leave the nation with two contradictory First Amendment standards. In Miami Herald v. Tornillo in 1974, the Supreme Court ruled that newspapers were not subject to equal space or response space laws. But they made no mention of the 1969 Red Lion case, which subject broadcasters to such laws. It is for that reason that impositions of other restrictions for broadcasters have surfaced over the years. Hopefully this issue will be resolved by the case now before the U.S. Court of Appeals for the District of Columbia (see above).
Let us turn to the constitutionality of free and reduced-rate television time for political candidates as an example. Based on precedent in other areas, broadcasters argue that such reductions are an unjust taking that violates the Fifth Amendment. In 1978 the Supreme Court in Penn Central Transportation Co. v. New York City(32) wherein the City had designated Grand Central Station a landmark and prohibited Penn Central from using the airspace above it. Writing for the majority, Justice Brennan ruled for the City using a complex balancing test that included 1) how permanent the regulation is or has been, 2) whether the regulation advances a state's interest, 3) whether the regulation prevents a harm, 4) whether the economic impact of the regulation is negative, and 5) whether the regulation is equitable and just.
This same reasoning is now being applied to those bills before the Congress that would force broadcasters to give up advertising time to candidates for office such as S. 25 above. Senator Arlen Spectre (R-Pa.) has attacked the bill because its provision on free air time "Does not measure up to the constitutional standard of the Fifth Amendment on taking property without due process of law. I do not see how you can square, constitutionally, the taking of that property without compensation."(33)
However, there are many constitutional scholars that believe this argument will not hold because broadcasters have no right to grant of license or "property interest" in the use of a frequency. Section 304 of the Communications Act requires license applicants to waive "any claim to the use of any particularly frequency or of the electromagnetic spectrum as against the regulatory power of the United States." This provision was reinforced in FCC v. Sanders Bros. Radio Station.(34) Furthermore, in CBS v. FCC, the Court held that the right of access by candidates to broadcast time did not violate the First Amendment.(35) And of course in Red Lion the Court held that broadcast licensing were less free than newspapers due to their fiduciary standing and the scarcity of spectrum space.
However, in CBS, Inc. v. Democratic National Committee in 1973, the Supreme Court began back peddling when it talked about the "traditional journalistic role" of broadcasters.(36) Professor Rodney A. Smolla has challenged other assumptions by making an important distinction:
Yes, the government may have licensed broadcasters to use the electronic spectrum. But it is not the government itself that is doing the broadcasting. Rather, the government has created its system to licensure to distribute frequencies efficiently and to promote a diversity of voices among private speakers, who maintain their rights under the First Amendment to choose for themselves what they will or will not say.(37)
This distinction opens the government in general and the FCC in particular to an application of Rosenberger v. University of Virginia (1995)(38) which would not allow them to control the speech of broadcasters who are operating privately and not spokespersons for the government. As Smolla points out, "When a zoning board grants a license for a hardware store to expand its business, for example, it is permissible to attach the condition that the lot be landscaped to handle additional parking needs . . . . but the Supreme Court held that it was not permissible . . . to impose a requirement that the hardware store owner create a walking and cycling path through a 'greenway' across the property, no matter how attractive and altruistic the policy goal of creating such paths may be. This was a gratuitous condition."(39) The same is true of requiring broadcasters to grant free air time since there is no clear nexus between this requirement and the license to operate.
Thus, the First Amendment argument against requiring free air time is much stronger than the Fifth. First, Red Lion is battered and ready for repeal as we has seen elsewhere in this study. Second, the Supreme Court has held that "compelled speech" and the "compulsion to print"(40) are unconstitutional. Soft money may also be protected under the First Amendment. For example, Senator Spectre introduced his own bill which would ban soft money contributions for corporations, eliminate foreign contributions, limit personal financing, and more closely regulate disclosure and expenditures, Professor Lillian BeVier of the University of Virginia Law School claimed, "The Supreme Court will strike down" the proposal if it becomes law.(41) Professor Bradley A. Smith at Capitol University Law School concurred: "[You can't] limit soft money contributions if the money is being used for issue advocacy."(42) Perhaps that is why the FEC decided not to consider a proposal to ban soft money in 1998.(43)
The current system retains elements that are unworkable and/or unconstitutional which is why many scholars were stunned by the Nixon decision of January, 2000. Remember that the contribution limits were not indexed for inflation. $5,000 today is a lot less than it was in 1975, when the law was passed. Furthermore, with regard to ending political action committee contributions, one could argue that dollars given to political campaigns no longer represent corporations and unions; they represent individuals who associate in campaigns by giving to their favorite candidates through PACs to increase their influence. In 1996, the average contribution to a PAC was only $120 a year.(44) Political action committees provide a way for citizens to participate in the political process and give some weight to that participation by joining together with others who have similar interests. Millions of people contribute to PACs. As long as contributions must be fully, promptly, and publicly disclosed, as they are now, it seems anti-democratic to limit them.
Conclusion
In the face of the avalanche of legislative proposals to reform the political system, there exists the temptation to trample on the rights of certain speakers. Yet when the Supreme Court revisited Buckley it failed to make it consistent and to work out the inherent contradiction between Red Lion and Miami Herald. In a his dissent in Buckely v. Valeo, Justice Blackmun wrote that the Court could not make a distinction between contributions and expenditures on the basis of which was more vital to freedom of expression. Chief Justice Burger said in his dissent: "Contributions and expenditures are two sides of the same First Amendment coin. . . ." One person's contribution is another person's expenditure. Since in the most recent case, these dissenters were not vindicated, it is clear that the Buckley precedent will guide campaign regulation for the foreseeable future.
Beyond the common reforms cited above, what reforms could we propose that might prove constitutional under these guidelines? Several states have stepped in to propose term limitations. Many theorists believe such imposition are the ultimate attack on freedom of expression because they don't allow voters to make a choice regarding incumbents whose terms have expired. Term limits are also criticized for creating amateur legislators who are more reliant on lobbyists that are experienced ones.
Another suggested reform is to make House terms four years. This would cut the need to fundraise constantly. However, unless such a constitutional amendment was coupled with a restriction on running against a sitting senator in the off year, the Senate would never approve the amendment.
Since 1974 full disclosure of campaign contributions and contributors has been required. But some constitutional scholars charge that this requirement has a chilling effect on free association.
Perhaps it would be wise for the Supreme Court and members of the Congress to review our respect for campaign rhetoric. The Court has ruled that speech endorsing candidates “is at the core of our electoral process and of our First Amendment freedoms” (Williams v Rhodes, 393 U.S. 23, 32 (1968). Even in Buckley, the majority held that “debate on the qualifications of candidates [is] integral to the operation of the system of government established by the Constitution.” (424 U.S. at 14). Since the Watergate scandal, Congress and in part the Court has stripped away such First Amendment liberties as freedom of association, freedom of speech, and freedom of the press in an effort to repair our political system. In many cases it has made matters worse by allowing the wealthy an advantage of the poor. It has based its reform on the “appearance of corruption” rather than on proof thereof. These transgressions should not be permitted to stand.
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McChesney, R. W. (1988). Constant Retreat: The American Civil Liberties Union and the Debate over the Meaning of Free Speech for Radio Broadcasting in the 1930s. In S. Smith (Ed.). Free Speech Yearbook (pp. 28-39). Carbondale, Ill.: Southern Illinois University Press.
Meredith Corporation v. FCC, 809 F.2d 863 (D.C. Cir. 1987).
National Broadcasting Company v. United States, 319 U.S. 190 (1943).
Powe, L. (1987). American Broadcasting and the First Amendment. Berkeley: University of California Press.
President Threatens to Veto Money Bills: Contra Aid, Fairness Doctrine Disputed. (1987, December 19). Washington Post, p. A10.
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ENDNOTES
1. Later Fred Friendly, Edward R. Murrow's producer, discovered that while on the payroll of the Democratic National Committee, Cook had written a book called Barry Goldwater: Extremist on the Right, an article in Nation magazine attacking the right, and was coordinating an effort to suppress right wing attacks on the Johnson administration (1976, pp. 32-42). The overall strategy of the DNC under the direction of Martin Firestone, a former FCC Commissioner, was to intimidate stations into dropping rightist editorials. Powe (1987) has chronicled a long list of cases dating back to Franklin Roosevelt's press secretary in which the public interest standard in general and the Fairness Doctrine in particular were used to threaten broadcasters (Cf. Benjamin, 1988; McChesney, 1988).
2. For more details on this effort, see Craig R. Smith, "The Campaign to Repeal the Fairness Doctrine," Rhetoric & Public Affairs, 2 (1999): 481-505.
3. In FCC v. Akins, no. 96-1590, the Supreme Court is deciding in 1998 whether that rule applies to independent political advocacy group and with what stringency.
4. which were first banned in 1907.
5. 424 U.S. 1 (1976). See also Maine Right to Life, 914 F. Supp. at 12.
6. 484 U.S. 850.
7. 807 F. 2d 857 (1987).
8. at 864.
9. 807 F.2d 857 (9th Cir. 1987), cert. den. 484 U.S. 850 (1987) at 858.
10. Id. at 864.
11. 11 C.F. R. 100.22(b).
12. That decision 1974 was re-affirmed in February of 1999 by U.S. District Judge Edward Nottingham. He ruled that the 1986 lawsuit filed by the FEC against the Colorado Republican Party was invalid because no evidence demonstrated that the party had coordinated its effort with he Republican candidate. Democrats argued that the advertisements against Senator Tim Wirth, a Democrat, violated the 1974 act. While they may have violated them in spirit, they did not in law.
13. Federal Election Commission v. Colorado Republican Federal Campaign Committee, 518 U.S. 604 (1996).
14. No. 96 CVO 1781.
15. No. 98-963.
16. "Donors: Survey Sheds Light on Firms that Play Politics," Los Angeles Times (September 21, 1997): A22.
17. PAC contributions constitute about the same amount; but are slower in growth.
18. 116 S. Ct. 2309 (1996).
19. This statistic is from Common Cause, which claimed that the Republicans had raised $55.7 million in soft money and the Democrats had raised $34.3 million. "Money: More than Ever," Los Angeles Times (May 16, 1998), A6.
20. "Soft Money Dollars," Time (September 9, 1999): 42-44.
21. "Soft Money Dollars," Time (September 9, 1999): 42-44.
22. Time, February 7, 2000, p. 44.
23. In 2000, a federal jury convicted Maria Hsia of funneling $109,000 in illegal donations to Democrats including the 1996 Clinton-Gore campaign. Prosecutors claimed that Hsia used a Buddhist temple event as a cover to reimburse straw donors who were listed as contributors. Gore had called Hsia a political ally and later admitted that he knew the temple event was a fundraiser. Officials in the Justice Department sought to investigate Gore, but Attorney General Reno stopped the investigation.
24. See Sec. 441e, FECA.
25. Ruth Marcus, "DNC Official Concedes 'Mistakes of Process,'" Washington Post (November 13, 1996): A4.
26. Joseph E. Cantor, Campaign Financing: Updated (Washington, D.C.: Congressional Research Service: Library of Congress, December 17, 1997), p. 1.
27. p. 2.
28. Cantor, p. 1.
29. Joseph E. Cantor and Denis Steven Rutkus, Free and Reduced-Rate Television Time for Political Candidates (Washington, D.C.: Congressional Research Service, July 7, 1997), p. 3.
30. Direct contributions from labor unions were banned in 1943.
31. See HRs 110 (Clement), 419 (Maloney), 493 (Shays), 506 (Andrews), 600 (Farr), 653 (White), 2777 (Gephardt); see Senate bills 9 (Nickles), 11 (Daschle), 25 (McCain), among others.
32. 438 U.S. 104.
33. Paige Albiniak, "Reform that Doesn't Take a Bite Out of TV Time," Broadcasting & Cable (Sept. 8, 1997): 22.
34. 309 U.S. 470 (1940).
35. 453 U.S. at 397.
36. 412 U.S. 94 (1973).
37. Rodney A. Smolla, Free Air Time for Candidates and the First Amendment (Washington, D.C.: The Media Institute, 1998), p.3.
38. 115 S. Ct. 2510.
39. Smolla, pp. 3-4.
40. Miami Herald Co. v. Tornillo (1974). See also Hurley v. Irish-American Gay, Lesbian and Bisexual Group, 94-749 (1995); Wooley vs. Maynard, 430 U.S. 705 (1977).
41. David G. Savage, "Key Vote on Campaign Reform May Belong to Supreme Court," Los Angeles Times (October 2, 1997): A5.
42. Savage, A5.
43. "Election Panel Seeks Alternatives to Outright Ban on 'Soft Money,'" Los Angeles Times (February 13, 1998): A4.
44. "Donors . . ." , A24.
1. This section can be read as a nod to the losing side's very strong arguments on how the law impacts freedom of association.
2. We do know that under the provisions of the law upheld by the Court those who are independently wealthy enjoy a great advantage since there is no limit on what they can contribute to their own campaigns.
3. For a lengthy analysis of the problems ensuing from this definition see Leffel.
4. Ross Perot used $60 million of his money in the 1992 campaign, which Dorf argues changed history. In Buckley the majority ruled that a person has the right to "vigorously and tirelessly . . . advocate his own election" (p. 52).
5. Due to the limitations of space, this study will not explore the impact of Buckley on such ancillary cases as Abood v. Detroit Board of Education (1977), which protected unions member who did not want their dues used for political purposes, Glada v. Bloustein (1982), which relied on Buckley to force a lower court to re-examine a requirement that students be allowed a negative check off on uses of student fees, and Ozonoff v. Berzak (1984), which ruled that contributions were tantamount to association.
6. The case began in 1986. The ruling in Colorado Republican Federal Campaign Comm, (1996) was re-affirmed in February of 1999 by U.S. District Judge Edward Nottingham.
