Michael W. McConnell*
Reprinted with permission of The Wall Street Journal © 1997
Dow Jones & Company, Inc. All rights reserved.
We take the unusual step in this issue of reprinting an article
that appeared earlier in a different publication, but we think Professor
McConnells ideas merit further attention. We say that, not
necessarily because we agree with all that he says, but rather because
his proposal on how to address the vexing issue of campaign finance
reform is two things such proposals rarely are - provocative, and
respectful of the First Amendment. And because it is provocative,
we invite readers to submit for publication in our next issue reactions
to Professor McConnells proposal. Professor McConnell, in
turn, has agreed to address your responses. So please let us know
your thoughts - send them by email, fax, or regular mail to either
of the editors, William McGrath and Allison Hayward, or to the Federalist
Janet Renos refusal to seek an independent counsel to investigate
Clinton fundraising is likely to refocus debate on systemic campaign
finance reform. Senate Majority Leader Trent Lott yanked the McCain-Feingold
campaign finance reform bill off the agenda for this year. But thanks
to Democratic filibustering, the bill will be back before Congress
next spring. The result will be the same. Republicans will refuse
to support legislation unless it prevents labor unions from using
coerced dues from workers; Democrats will refuse to support it if
it does. Stalemate.
The disagreement over union money is only the public face of a
deeper and more intractable problem. Everyone can agree that the
present system needs to be changed, but most proposals for "reform,"
including McCain-Feingold, would probably make matters worse.
And such efforts to control political speech inevitably founder
on the shoals of the First Amendment. It may be constitutional to
restrict contributions to candidates or political parties (though
most First Amendment purists doubt even this). But restricting direct
contributions simply forces would-be contributors to find indirect
means of supporting candidates. To be effective, therefore, the
restrictions have to extend far beyond limits on contributions.
The Very Core
McCain-Feingold, for example, would make it a crime to run an advertisement
stating your views on the candidate within 60 days of the election.
Under no coherent reading of the Constitution could it be permissible
to prohibit citizens and voluntary associations from attempting
to persuade their fellow citizens how to vote. That is the very
core of the First Amendment.
Whats more, these proposals would make it even more difficult
for challengers to mount effective campaigns against incumbents,
who enjoy built-in advantages of media access, taxpayer-funded mailings,
name recognition and constituent service. Nor would public financing
solve the problem. There is no neutral formula for allocating funds,
and most proposals would favor the candidates of the two major parties
at the expense of all others.
We need to be clear about the problems with the current system
and about the purpose of reform. The problem is not too much campaign
speech. Nor is the problem that "special interests" are
using their resources to influence public opinion. Thats what
freedom of speech is all about. Pro-lifers, environmentalists, and
free-traders have a right to make their opinions known to the public.
All of us are "special interests."
The problem is that elected officials use the powers of office
to extract contributions and hence to perpetrate themselves in office.
(That is why the prohibition on the use of publicly funded telephones,
offices, and computers for partisan fundraising is more than just
a technicality.) The flip side of this is that contributors seek
to influence public policy not by persuasion but by currying favor
with officeholders. Roger Tamraz contributed hundreds of thousands
of dollars to the Democratic Party not because he believes in its
philosophy of government. He did it in hopes that the Clinton administration
would return the favor.
As the Supreme Court held in Buckley v. Valeo, there is no constitutional
barrier to laws designed to combat this kind of corruption. Americans
have a First Amendment right to do what we can to sway public opinion,
but not to buy privileged access to our leaders by giving money
to their campaigns.
I have not seen any plausibly comprehensive solution to this problems,
and I suspect that no such solution exists. But there are reforms
that would reduce the opportunities for official corruption without
infringing free speech rights or further entrenching incumbents.
Instead of repeating the McCain-Feingold standoff, I suggest that
Congress consider more productive proposals.
First, Congress should enact tax credits for modest political contributions
(refundable, so that the poor have equal opportunity). Limits of
perhaps $250 per candidate, with a $1,000 annual cap per tax-payer,
would be about right. This would make it easier for candidates to
raise money from ordinary people, and easier for ordinary people
to participate in politics through contributions. It would be the
equivalent of partial public financing, but without government control
over how the funds are divided. The cost would be small change in
Second, Congress should abolish political action committees and
raise limits on individual contributions. The wrong-headed campaign
reforms of the 1970s placed strict limits on individual contributions
- but allowed PACs to aggregate contributions and donate them to
candidates in $5,000 units. This "reform" magnified the
power of interest groups and lobbyists and restricted the influence
Individuals have many different opinions and interests, and unless
their contributions are large enough to warrant invitation to a
White House coffee or its equivalent, the candidate does not necessarily
know what those interests are. The interests of a PAC lobbyist,
by contrast, are all too clear. It also bears mention that PACs
give almost 13 times as much money to incumbents as to challengers
- a sure sign that the purpose of the contribution is to buy influence
rather than to persuade voters.
A more radical proposal is to create a mechanism for anonymous
contributions above the ordinary legal limit. If a candidate does
not know who made the contribution, then there is no possibility
of improper influence. This would also bolster the argument that
contribution limits are constitutional. If everyone is free (within
certain generous limits) to contribute to the candidate of his choice,
then the only question is whether there is a constitutional right
to make ones generosity known to the candidate. That is not
freedom of speech. The constitutional right is to persuade ones
fellow citizens - not to make an officeholder grateful. To be sure,
there may be practical problems in ensuring anonymity. Contributors
are extraordinarily clever about evading the laws in this area.
But I think campaign nondisclosure merits serious consideration.
Fourth, Congress should ban campaign contributions for a certain
period - perhaps six months - after Election Day. The postelection
fundraiser, where lobbyists scurry to placate the winner, may be
the most undisguised form of influence peddling in our entire system.
It is particularly disgusting to see lobbyists who supported the
loser suddenly switch sides. This abuse can be banned without injury
to freedom of speech. Postelection contributions cannot possibly
serve the function of persuading our fellow citizens how to vote.
It is simply a way for the holder of public office to use his position
for personal political advantage - and for lobbyists to curry favor
without any danger that the other side might win.
An extension of this idea would be to require all political campaign
contributions to be used by the recipient within a specified period
(no longer than six months). This would prevent incumbents from
amassing "war chests" to scare off potential challengers.
It is hard to believe that contributions made years before the election,
and before the contributor even knows who the opposing candidate
might be, is a good-faith attempt to persuade. It is almost certainly
an attempt to buy influence.
Another possibility is to prohibit contributors from giving money
to both sides in the same election. Someone who gives money to both
the Republican and the Democrat is not expressing his political
opinions, but purchasing access to the future officeholder.
The common element in all of these proposals is that they prohibit
forms of campaign fund-raising that have little or no relation to
legitimate persuasion, and seek to increase the role of ordinary
citizens in our political process. They would not solve the whole
problem. But they are a big improvement over McCain-Feingold, which
cannot possibly pass Congress and would likely (and rightly) be
struck down by the Supreme Court if it did pass. This is a test
to see whether those members of Congress who say they want to reform
the system are really serious.
*Michael W. McConnell is a professor of constitutional law at the
University of Utah.