a look at campaign finance reform from the fin de siècle to the début du millénaire
get the pdf: rev. 20 March 2005
“Him what pays, says,” goes the Capitalist credo, and a quick look at our nation’s history can vouch for just such sentiment. Nowhere is money’s efficacy more apparent than in the realm of politics. Even in the earliest days of the American democratic enterprise, the official with more funds held more sway with voters. In 1777, James Madison complained that he lost his run for the Virginia legislature because he refused to provide alcohol for assembled voters.
The larger question at hand, then, is whether money and its efficacious (if morally questionable) use in politics degrades the system. Certainly, I think a majority of Americans would agree in theory to the conspiratorial murmurings of Washington “fat cats” and plutocrats dominating the democratic machine.
The earliest call for campaign finance reform reconcilable with our modern idiom came from Theodore Roosevelt, who said in 1905 that “contributions by corporations to any political committee or for any political purpose should be forbidden by law.” This, of course, did not refer to individuals, including the wealthy individual owners of large corporations. The Tillman Act of 1907 put just such a law into the books, and was expanded by the Taft-Hartley Act of 1947 to include labor unions.
Obviously, given the state of campaign finance today, and the furor it has caused in the last two elections, these early steps toward economically democratizing the political process fell far short of the ideal. The first substantial change to campaign finance took Watergate and the resultant collective indignation of Americans (who had never before given a thought to the idea of plutocracy, even while corporations financed and branded popular television) to find life in Congress. The Federal Election Campaign Act, or FECA, built upon the restrictions of the Tillman and Taft-Hartley acts and added further provisions as to the maximum amounts organizations and individuals may donate. In addition, the act requires a disclosure of sources for amounts over $100, which adds some measure of transparency to the political process. Furthermore, the act established a President Campaign Fund, from which presidential candidates may draw a certain amount of money. The purpose, I gather, is to reduce a candidate’s reliance on special interest monies, allowing him or her to make principled, rather than strategic, decisions.
In essence, FECA dealt primarily with “hard money,” or funds donated directly to politicians. Since the law’s inception, another kind of funds, “soft money,” has become the infamously nefarious source of campaigns’ perceived degradation. Because soft money is donated to political parties, it is relatively unchecked, and it quickly became the source for a sinister lineage of aggressive character attacks. The Supreme Court decision Buckley v. Valeo made illegal the use of phrases such as “vote for” or “elect” in soft money ads, but made no mention of the sort that lauds one candidate as a devoted father and soup kitchen worker who spends his free time bottle-feeding baby seals and the other candidate as a Communist who talks with a full mouth and eats babies for fun. In short, FECA had exposed to some extent the sorts of political intercourse previously hidden from the public’s view, but had done nothing to salve—in fact, had worsened—the tone of political discourse, especially given the growing ubiquity of TV.
By the time America trudged into the new century, the issue had gotten out of hand. When Enron, a large and influential font of funds for both political parties (the phrase “both political parties” itself a condemnation of the fallen nature of our political system) caused government officials, businessmen, and Joe. Q. Citizen alike to have conniption fits, a piece of legislation called the Bipartisan Campaign Reform Act (or “McCain-Feingold Act”), which had languished in Congress since 1997, was finally signed into law, with amendments, by President Bush in 2002. Its most salient features are a ban of soft money and of the aforementioned “issue ads” (Candidate X visits the elderly, Candidate Y dabbles in the occult) sixty days prior to an election, the latter point hotly contested by liberal (ACLU) and conservative (Christian Coalition) groups alike.
Like any piece of legislation, the BCRA is neither comprehensive nor unchallenged. Although the Supreme Court more or less reiterated its legality in McConnell v. FEC (2003), a controversial new sort of special interest group, called “527s” after the section of the tax code in which they find their loophole, manage to circumvent the admittedly wide reach of the BCRA. In the 2004 presidential election, Republicans especially were decrying the existence of 527s such as MoveOn.org and one of its prime backers, George Soros. While conservatives had their own major 527 groups, such as Swift Vets for Truth [sic], groups like MoveOn represented a burgeoning grassroots effort on the part of sociopolitical bloggers and internet-savvy Democrats. Of course, 527s to some degree produced the same sort of reprehensible slander and propaganda as groups before them. In 2004, neither George W. Bush nor John Kerry would explicitly decry 527 groups as damaging to the democratic process, even though Swift Vets for Truth [sic] produced a steady stream of lies and slander, and MoveOn had at one point hosted a variety of user-made commercials comparing Bush to such unsavory characters as Hitler (an unfair analogy, no matter what one’s feelings for the man).
Given such a lurid history of the Almighty Dollar’s role in American government, we must then return to the question posed initially: does money to this scale erode the integrity of our system of government? I think that question can be answered with a resounding “Yes!” Not only is money (the cost of a campaign in 2004 approached $4 billion) the driving force behind what Americans are now coming to understand as a sick spectacle of partisan hackery, but naturally money issues, until the emergence of 2004’s “trump” issues of gay marriage and preemptive war, tended to dominate America’s motivation for voting. Is there any way to regulate these efforts without necessitating an abridgment of First Amendment rights?
Unfortunately, lawmakers seem to be looking in the wrong places. Federal Elections Commissioner Bradley Smith said recently in an interview that the FEC is only months away from beginning a process that will start to regulate political speech on the internet. He said, “Would a link to a candidate’s page be a problem? If someone sets up a home page and links to their favorite politician, is that a contribution? This is a big deal, if someone has already contributed the legal maximum, or if they’re at the disclosure threshold and additional expenditures have to be disclosed under federal law. Certainly a lot of bloggers are very much out front. Do we give bloggers the press exemption?”
Not only is the idea of a regulated internet absurd (the internet is a largely unregulated patchwork of servers across the globe), but the blogger community (today at strengths unimaginable just a few years ago) is up in arms about this issue. Not only would such an attempt at regulation definitively constitute a violation of protected speech, but its focus is misdirected. A link on a website to a campaign’s homepage does not make a candidate beholden to bloggers in the way that a large monetary donation does. Nor does it lower the level of political discourse, in the way that attack ads or pundits like Ann Coulter—and to a lesser degree, Greg Palast—do.
Our electoral process has come under a lot of scrutiny in the last five years: the efficiency of the electoral college, unchecked graft, unchecked libel and slander in attack ads and pernicious punditry. But the process really started in the first televised debate, before which elections were won largely on character, principle, and oration and after which they were won by hair and graphic artistry. Lee Atwater’s aggressive political marketing, America’s growing fetishism of commodity (to borrow a phrase from Cornel West), the reemergence of corporate America as definers of cultural and political interests, the deepening Manichæan cleft of the electorate into liberals and conservatives, the devolution of America into a functionally two-party system, and the deification of the dollar as prime motivator and prime catalyst in any enterprise, be it political, social, or cultural, have all contributed to the growing need for such bills as FECA or BCRA. Such is the unfortunate byproduct of economic or political capitalism (and a crucial deconstruction of extreme libertarianism), and there does not seem to be a method of combating it that is both effective and constitutional. Perhaps the easiest way to start would be to subject political advertisements, be they of the direct “Vote for me!” type or the more insidious “My opponent makes the baby Jesus cry” variety, to the threat of libel or slander suits. More than simply holding organizations responsible for their output, there needs to be a concerted effort to change the tone and motivation of our political culture wholecloth, and that is an issue of generations.
- Buckley v. Valeo. No. 75-436. Supreme Ct. of the US. 30 Jan 1976.
- “Campaign Finance Reform.” Wikipedia: The Free Encyclopedia. 4 Mar 2005, 22:16 UTC. 20 Mar 2005 <http://en.wikipedia.org/wiki/Campaign_finance_reform>.
- Cong. Bipartisan Campaign Report Act of 2002. US 107th Cong., 2nd sess. HR 2356, S 27. 27 Mar. 2002. 19 Mar. 2005 <http://www.law.cornell.edu/background/campaign_finance/bcra_txt.pdf>.
- “Federal Campaign Election Act.” Wikipedia: The Free Encyclopedia. 12 Nov 2004 , 19:45 UTC. 20 Mar 2005 <http://en.wikipedia.org/wiki/Federal_Election_Campaign_Act>.
- McConnell v. FEC. No. 02-1674. Supreme Ct. of the US. 10 Dec 2003.
- Roosevelt, Theodore. The Project Gutenberg EBook of State of the Union Addresses. 16 Dec. 2004. Project Gutenberg. 19 Mar. 2005 <http://www.gutenberg.org/dirs/etext04/suroo11.txt>.
- Smith, Bradley. Interview with Declan McCullagh. CNet. 3 Mar. 2005. 5 Mar. 2005 <http://news.com.com/The+coming+crackdown+on+blogging/2008-1028_3-5
- United States. Federal Election Commission. Bipartisan Campaign Reform Act of 2002. 20 Mar. 2005 <http://www.fec.gov/pages/bcra/bcra_update.shtml>.