Andrew M. Siff *
With the Supreme Court set to hear arguments this fall concerning
the constitutionality of Missouri's campaign contribution limits
in Nixon v. Shrink Missouri Government PAC, there is increasing
unanimity among Congressmen that the federal contribution limits
established in 1974 must be raised. On March 24, 1999, The United
States Senate Rules and Administration Committee held a hearing
regarding the need to raise the federal contribution limits. The
hearing was unusual because instead of both the majority and minority
calling witnesses, Democrats and Republicans unanimously agreed
upon the same four panelistsformer Indiana Senator Dan Coates; Professor
John Lott of the University of Chicago; Karen Sheridan, Executive
Vice President of SMY Media, Inc.; and Dr. Demaris Miller, an unsuccessful
candidate for the House of Representatives.
The hearing began with Chairman Mitch McConnell (R-KY.) noting
the growing chorus of voices on both sides of the aisle in favor
of increasing the $1,000 limit on individual contributions and the
$5,000 limit on PAC contributions to federal candidates established
in 1974. McConnell explained that today it is much more difficult
for federal candidates, especially challengers who do not have the
name recognition and ability to get free media exposure enjoyed
by incumbents, to get their message out than it was in 1974. He
attributed this growing difficulty to the increase in the voting
age population, the increasing cost of advertising and the incredible
fragmentation of television markets brought about by cable television.
The Chairman's remarks were followed by Senator Chris Dodd (D-CT),
the Committee's Ranking Member, complaining about the "money
chase"the time and effort expended by candidates to raise the
funds required for an effective campaign, which take away from the
time they can spend legislating. Dodd also expressed concern about
the growing cost of federal elections and stated his hesitancy about
any changes to federal election laws that were not directed at reducing
the amount of money spent to run for office.
After Dodd finished, Senator Rick Santorum (R-PA) politely highlighted
the inconsistency between Senator Dodd's desire to end the "money
chase" and his hesitancy about raising the contribution limits.
"I have a very good basis for comparison, looking at [my state's]
Governor and how he raises money versus how I raise money. Pennsylvania
doesn't have contribution limits. I know my Governor doesn't spend
10 percent of the time raising money that I spend. He just doesn't
have to spend that kind of time because he is able to raise it in
larger chunks . . . ." Campaign Contribution Limits, S. HRG.
COMM. ON RULES & ADMIN. 106-19, at 4 (March 24, 1999).
The first witness to testify was Senator Coates. Coates urged the
Committee to raise the federal limits on contributions to candidates
so that legislators would not have to use such a "substantial
portion of [their] time" amassing the resources needed for
an effective campaign. Id. at 8. He vehemently rejected the idea
that raising contribution limits as high as $10,000 would foster
corruption among elected representatives. Afterall, as Coates observed,
even a $10,000 contribution would be so small a part of the typical
$4 million to $6 million Senate campaign that it is "ridiculous
. . . to claim it has a corrupting influence" and that members
would risk prosecution and other sanctions for such a nominal percentage
of their entire campaign fund. Ibid. In conclusion, Coates opined:
"I think elected representatives spend too much time raising
money for political campaigns, and the remedy for that problem .
. . is, at a minimum, to raise contribution limits. It is not to
limit free speech. I think that is a non-starter politically, and
I think it is a non-starter constitutionally. I think it is a non-starter
from our ability to enact good policy." Id. at 9.
Building on Senator Coates remarks, the next witness, Doctor Demaris
Miller of McClean, Virginia testified:
"Despite the popular belief that campaign financing limits
make elections more fair and democratic, the opposite is true. Contribution
limits increase the advantages of incumbents at the expense of challengers."
Id. at 28.
Miller recounted how the low contribution limits severely hindered
her ability to get her message out during her campaign for Virginia's
8th Congressional District against Democratic incumbent Jim Moran.
Like all incumbents, Moran had a free website, free phones, free
Internet access and the ability to send mail to constituents for
free via the Congressional franking privilege. As an incumbent,
Miller's opponent was also able to do public appearances and get
media exposure at no cost. As a challenger Miller had to pay for
all of these things. And because of the contribution limits, as
the campaign progressed, her ability to develop name recognition
crested at an unacceptably low level because she did not have the
funds to operate the kind of ad campaign that was necessary. People
who already knew Miller and supported her were unable to help her
because they had already given their $1,000. Miller recalled how
she he had to repeatedly turn down additional contributions offered
by her supporters.
The greatest burden on Miller's campaign finances was media advertising.
She explained that in 1974, when the contribution limits were enacted,
her district was covered by three broadcast stations. Today there
are four networks, three cable systems and satellite systems within
her district. Miller observed:
"That is an awful lot of media to cover, and it means that
every media purchase you make is, first, more expensive because
it covers a broader area and, second, it covers fewer of your own
constituents. So you have to make more buys to make up the difference."Id.
Doctor Miller's observations regarding the high cost and other
problems associated with television advertising were confirmed by
the testimony of Karen Sheriden of SMY Media, Inc., which does media
buying for both commercial and political clients. Sheriden explained
that there has been a "70 percent growth in commercial stations
in this country between 1975 and today." Id. at 46. This increased
choice for viewers has resulted in "a decline in viewer loyalty
to stations" including the major networks (ABC, NBC and CBS),
which garnered 91% of prime-time viewers in 1975 and today get only
50% of that market. Sheridan stated that this fragmentation "makes
it much more difficult and expensive to reach the viewing population.
In your top 100 media markets in this country, your costs for prime
time [advertising] have increased 300% from 1975 to today."
Id. at 47.
Sheridan went on to explain the absolute necessity of TV advertising
for political candidates. She noted that television reaches "90%
of viewing adults each week." She also proffered studies indicating
that "as of March 1997, 69% of all adults in this country utilize
television as the primary place to get information on what is happening
. . . . Forty Seven percent get this information only from TV and
53% of all adults say that TV is the most credible source for information."
Id. at 47.
Moreover, while the data demonstrates that television is the best
medium a candidate can use to develop name recognition quickly with
a large percentage of the voting age population, candidates must
pay out the nose for this advertising. This is because candidates
are required to do the majority of their advertising in the 60 days
before a general election in November. Sheridan testified that this
means candidates buy during the fourth quarter, which is when new
season programs debut. Thus, the fourth quarter is the most expensive
time to buy ads. In fact, ads run during the fourth quarter can
cost as much as 46% more than ads run during other times of the
In addition to having to buy expensive time during the fourth quarter,
candidates must also compete for prime advertising time with other
federal and state candidates seeking election that November. And
much of their money is wasted. Sheridan explained that Dr. Miller's
8th District, for example, is covered by the Washington, D.C. media
market which also covers another 16 congressional districts and
four states in addition to Virginia. Sheridan's data indicated that
only 11% of the viewers watching ads purchased in this media market
reside in Virginia's 8th District. The other 89% could not vote
for Miller. All of these factors resulted in a 300% increase in
the cost of reaching by television the same number of voters within
a given district that a candidate could reach through TV ads in
The final witness, Professor John Lott of the University of Chicago,
told the committee about the research he had done on the connection
between contribution limits, corruption and the cost of campaigns.
Lott explained that contribution limits, like price controls, did
not reduce competition for campaign money, but merely altered the
form that competition took. He recounted how gasoline price controls
in the 1970's caused consumers to pay less at the pump, but forced
them to spend more time waiting in line. Likewise, candidates raising
funds under the 1974 limits must spend more time finding more donors
to fill their campaign accounts. And Lott testified that just as
competition for rent controlled apartments is carried out through
illicit "key money," political competition encourages
citizens with an interest in an election that they value at more
than $1,000 to evade limits through illicit "straw donors."
Lott's research revealed that contribution limits had absolutely
no effect on the cost of campaigns, but merely altered "the
composition of those expenditures." Id. at 60.
According to Professor Lott's research the increasing cost of campaigns
is attributable "to one factor, and that is the increasing
size of government. As more is at stake, people are willing to spend
more" to elect candidates that agree with their views of how
government should operate. Id. In view of this, one wonders why
members of Congress, such as Senator Dodd, interested in decreasing
the cost of federal elections do not seek to reduce the size of
the federal government. This seems a much better approach than infringing
on the free speech rights of citizens who naturally want to express
their views on what an increasingly ubiquitous federal bureaucracy
is doing to them.
No rationale observer of the Senate's hearing on campaign contribution
limits could have left not thinking that it would be good policy
to raise the contribution limits established in 1974 (unless they
were only interested in maintaining the advantages this system creates
for incumbents). The hearing also made clear that the existing limits
really are beginning to impact the ability of challengers who are
not already well known or very rich to run effective campaigns against
incumbents. If similarly compelling evidence is presented to the
Supreme Court this fall when it hears Nixon v. Shrink Missouri Government
PAC, perhaps the Court will realize that the 1974 contribution limits
approved in Buckley v. Valeo are beginning to "undermine to
. . .[a] material degree the potential for robust and effective
discussion of candidates and campaign issues." 424 U.S. 1,
* Vice Chairman, Publications, Free Speech & Election Law Practice
Group of the Federalist Society.