The First Amendment
excerpted from the book
The Corruption of American Politics
by Elizabeth Drew
The Overlook Press, 1999
The Federal Election Campaign Act signed into law by the new
President, Gerald Ford, in October 1974 (Nixon had announced his
resignation on August 8 and departed Washington the next day),
was the most sweeping campaign finance reform law ever enacted.
It placed the toughest-ever limits on spending and contributions
to federal campaigns and strengthened the requirements for reporting
contributions and expenditures.
The 1974 act provided for a voluntary system of public financing
for presidential elections, to be paid for by a checkoff on income-tax
returns. A presidential candidate who accepted the public money
had to agree, by law, to spend only $50,000 of his own funds in
the primary and general election. If a presidential candidate
wanted to exceed the limits on the amounts his campaign could
spend, he had to turn down the public financing. Limits were placed
on what could be spent on campaigns for the Senate and House,
but public financing wasn't provided for these campaigns, because
House members were loath to make funds available to potential
Limits were placed on what individuals and PACs could contribute
to federal candidates and to the political parties-$1,000 for
individuals, and $5,000 for PACs, per candidate in any primary,
general, or run-off election. And limits were supposedly placed
on the amounts that the parties could spend on federal candidates.
Independent expenditures-moneys spent on ads to help a candidate,
independently of that candidate's campaign-were limited to $ 1,000.
Individuals could give no more than an aggregate 'of $25,000 to
all federal candidates and political parties and PACs. Cash contributions
of over $ 100 were prohibited. This largely overlooked provision
eliminated the brown bags-or black satchels-of cash that had been
passed around to the candidates of both parties during recent
federal elections. The Federal Election Commission was established
to enforce the law, but Congress made sure it would be toothless
by stocking it with three members from each of the two major political
parties, giving Members of Congress a large say over the appointments,
and providing it with an inadequate budget for the job.
Virtually all of the meaning behind the 1974 law has been
obliterated over time.
The first blow to this law came in the Buckley decision. The
suit to overturn key parts of the 1974 act-the public financing
of presidential campaigns, because it put limits on both spending
and contributions; the limits on what candidates for the Senate
and House could spend; the limits on individual contributions
to campaigns, as well as the limits on independent expenditures-was
brought on January 2, 1975, by a coalition of people on the left
and the right who had objections to the new law. They included
James Buckley (brother of William), then a Conservative Party
senator from New York; former senator and presidential candidate
Eugene McCarthy, who opposed the entire law on First Amendment
grounds; the liberal activist financier Stewart Mott; the conservative
periodical Human Events; the ACLU, the New York Conservative Party,
and the American Conservative Union. The coalition was put together
by David Keene, then an assistant to James Buckley, who realized
that these various people and groups shared the same objections
to the law and could pool their resources to bring the suit.
The Court decision, handed down January 30, 1976, a per curiam
decision (in the name of the Court, rather than signed by any
particular justice), reflected a Court divided all over the place,
and was very odd. It indicated little understanding of the real
world of politics. It failed to foresee the actual impact of its
decisions. It was reviewing the 1974 law on its face, because
there had been no actual experience under it. The Court's frame
of reference was Watergate.
The Court did not say that the right to exercise free speech
through spending on campaigns was absolute. It said that there
were two competing values: the right of free speech in donating
or spending money for elections, and preventing corruption in
elections. It said that in some instances the interest in preventing
corruption justified restrictions on the donation of money.
In weighing the two values of free speech and clean elections,
the Court said that expenditures made independently of campaigns
are a highly protected form of speech and that contributions to
a campaign are less protected, because they are an indirect form
of speech and because they can lead to corruption or "the
appearance" of corruption. With the 1972 Nixon campaign in
mind, the Court offered that "the primary purpose" of
the 1974 act was "to limit the actuality and appearance of
corruption [italics the author's], resulting from large individual
financial contributions'" That, it said, was "a sufficient
justification for the intrusion on freedom of political association"
posed by the limits on contributions.
But the Court's tortured distinction between expenditures
and contributions didn't reflect the real world. Making a contribution
is as much a political statement as making an independent expenditure.
Someone who gives $1,000 to a candidate is likely to feel that
that is as much an expression of his view as if he spent $1,000
helping to finance an ad on behalf of a candidate. And there's
as great a potential for corruption through "independent"
expenditures as through making a contribution. Moreover, it's
shortsighted to say that preventing corruption is the only legitimate
reason for restricting campaign contributions and expenditures.
Putting the candidates on an even, or a relatively even, playing
field would be another (the Court rejected that concept). Under
the current system, incumbents have a tremendous advantage over
challengers-unless the challenger happens to be very wealthy.
The Court also struck down limits in the 1974 act on what
candidates could contribute to their own campaigns. They can't
corrupt themselves, after all. One result is that an estimated
39 percent of the one hundred current senators are millionaires-sixteen
of them millionaires several times over.
Fred Wertheimer, of Democracy 21, which agitates for campaign
finance reform, and a former president of Common Cause says, of
Buckley, "It undermines the concept of one-person, one-vote,
in that it gives much greater influence to people who have money
in the process once the politician is elected than it does to
the average voter." Another reason for limiting contributions
and expenditures could be to spare candidates from having to spend
a large percentage of their time raising money. To run a successful
Senate race, candidates must now raise an average of $16,000 a
week, every week, for six years. A House candidate has to raise
$7,100 a week for two years.
The Court's thinking led to a hodgepodge ruling in which the
spending limits of the presidential public financing system were
upheld, because the system was voluntary, but spending limits
for congressional races were rejected because they weren't paired
with public funds and therefore weren't voluntary. But at the
same time, the limits on contributions to congressional campaigns
were upheld (as preventing corruption). This led to the current
situation wherein Members of Congress can spend unlimited amounts
on their campaigns, but the money has to be raised in limited
In affirming the concept of "independent expenditures"-
expenditures on behalf of a candidate made independently of the
campaign (or ostensibly so)-the Court approved a whole new way
of spending money on behalf of a candidate without regard to the
contribution limits. It said that spending by individuals and
PACs could be unlimited so long as there was no coordination with
the candidate's campaign. The theory was that in the case of independent
spenders there was no danger of a quid pro quo and therefore no
danger of corruption.
When the Court made this finding, over twenty years ago, there
was no problem of expenditures by independent groups because there
were virtually no independent groups spending money to help campaigns.
The independent expenditure decision opened the way for advocacy
groups-from the National Rifle Association to the Sierra Club-to
spend money to help campaigns "independently," outside
The Court indecision created the rationale for what has become
a major circumvention of the law, the running of "issue ads"
to help or hurt a candidate. It did this through a strange interpretation
of what constituted advocacy on behalf of or against a certain
candidate-"express advocacy"-as opposed to simply a
discussion of issues. The Court spelled out the definition of
"express" advocacy in one of the most shortsighted,
and most exploited, footnotes in the history of such addenda.
Footnote 52, which was to deal a major blow to the 1974 campaign
law, set forth a list of words that, if used in an ad, would constitute
"express advocacy" of the election or defeat of a candidate.
They were, said the footnote, words "such as": "vote
for." "elect," "support," "cast
your ballot for," "Smith for Congress"," vote
against"," defeat", "reject." This list
left a lot of possibilities.
The footnote led to a long-running debate, and conflicting
lower court decisions, over its intent. People who wanted the
widest possible leeway to run "issue ads" that were
actually-and obviously- for the purpose of electing or defeating
a candidate argued that anything went that didn't use the specifically
forbidden words in the footnote. This interpretation allowed corporations
and unions to use treasury money or union dues otherwise barred
from being spent to influence a federal election to air "issue
ads" that didn't use those words but were clearly intended
to help or hurt a candidate.
People who wanted to rein in this new way of spending money
on behalf of a candidate argued that the "such as" in
the footnote meant that the words listed therein were simply for
illustrative purposes and that the Court left room for Congress
to define-or redefine-what constituted "express advocacy."
The dean of the first school was McConnell. He argued that
the decision, and the footnote, were sacred text and that they
left no room for any other interpretation. In a Senate debate
on reform in 1998, McConnell said, misleadingly, "Issue advocacy
is criticism of us....The Court has said it is impermissible for
us to decide how much political speech is enough."
And right along with McConnell, and bolstering his cause as
he was bolstering theirs, were advocacy groups that, for their
various purposes, shared this position and met in his office.
The ACLU argued that there could be no further infringements of
"free speech," and, like other groups-the Christian
Coalition, the NRA-contended that nothing should stand in the
way of their "communicating with our members." This
was a bogus argument, because communicating with members, through
faxes, newsletters, mailings, etc., which weren't affected, and
taking an ad to affect the wider electorate's opinion are very
The Court actually recognized that "it would naively
underestimate the ingenuity and resourcefulness of persons and
groups desiring to buy influence to believe that they would have
much difficulty devising expenditures that skirted the restriction
on express advocacy of election or defeat, but nevertheless benefited
the candidate's campaign." Having recognized this danger,
the Court unleashed it anyway.
McConnell was crafty in his use of the Buckley decision to
buttress his arguments against reform. For example, in a September
1997 debate on campaign finance reform, he said: "The Supreme
Court said it was constitutionally impermissible for the government
to try to level the playing field." In fact, the Court said,
"The concept that government may restrict the speech of some
elements of our society in order to enhance the relative voice
of others is wholly foreign to the First Amendment."
McConnell went on, sonorously, "[E]ven if it were possible
somehow for the government to figure out how to micromanage and
level the playing field, it is truly, constitutionally impermissible
for the government to try to do that."
But this definitive-sounding argument was based on taking
what the Court said about one specific provision of the 1974 act,
the part of the decision that struck down mandatory spending limits
for congressional campaigns, and applying it to totally different
kinds of provisions in the pending legislation.
At another point in that debate, McConnell told the Senate:
"The Court has made it perfectly clear that the ability to
speak and to influence the course of events in any way that is
constitutionally permissible is going to be protected."
But this, of course is a tautology-a perfectly circular statement.
IN 1996, a group called Citizens for Reform ran an "issue
ad" against Rep. Cal Dooley, Democrat of California, that
said: "Congressman Cal Dooley makes choices for you and your
family. Cal Dooley said no to increased money for federal prisons.
Instead, Dooley gave the money to lawyers. Lawyers that used taxpayer's
money to sue on behalf of prison inmates and illegal aliens. Cal
Dooley said no to increased money for drug enforcement. Instead,
Dooley gave your money to radical lawyers who represented drug
dealers. Is Cal Dooley making the right choices for you?"
(Dooley won reelection.)
Only after the election was it learned that Citizens for Reform
was funded by Triad Management Services, Inc., an organization
that steered conservative money into contributions and ads. According
to the Wall Street Journal, Triad was backed by the highly conservative
Koch brothers, owners of Koch Industries, a company specializing
in chemical, oil, and energy services, and one of the country's
largest privately held firms. Triad was believed to have taken
ads in at least twenty-six congressional races in 1996. Many of
these and other mysteriously sponsored ads came into the campaigns
in the closing days.
Also in 1996, the League of Conservation Voters ran an "issue
ad" against Rep. Greg Ganske, a moderate Republican from
Iowa. It said: "It's our land; our water. America's environment
must be protected. But in just eighteen months, Congressman Ganske
has voted twelve out of twelve times to weaken environmental protections.
Congressman Ganske even voted to let corporations continue releasing
cancer-causing pollutants into our air. Congressman Ganske voted
for the big corporations who lobbied these bills and gave him
thousands of dollars in contributions. Call Congressman Ganske.
Tell him to protect America's environment. For our families. For
our future." (Ganske won.)
These sorts of ads proliferated like crazy in 1996, as more
groups, including ad hoc groups, sponsorship and membership unknown,
and the political parties, found new ways of getting around what
limits there were on spending in campaigns.
The other death blow to the reforms of 1974 was the opening
of the soft money loophole. Written by the Federal Election Commission
in 1978, at the behest of the two parties, the regulation said
that some party activities- could be paid for by funds outside
limits established by the act. That opened the way for corporate
and union funds as well as unlimited amounts from individuals
to be used for certain federal election activities. (The FEC,
though largely ineffective, can be responsive when the two parties
ask for the same thing.) The rationale for such soft money was
that it would go to nice, benign, "party-building" activities,
such as get-out-the-vote drives and paying for banners and balloons.
But it has been used for purposes well beyond that-for hundreds
of millions of dollars in "issue ads" by the parties
and by interest groups. That a political party could run an ad
to help their candidates and still call it an "issue ad"
is absurd, absurdity was the legacy of the Buckley decision.