Supporters say campaign finance reform remains alive
Earlier this month, the cry for federal campaign finance reform fell silent as Senate supporters failed to garner enough support to bring the legislation to a vote. Reform opponents declared the issue dead and buried.
But supporters of reform say that people only have to look to the states to see that it's alive and kicking.
“The Senate leadership would like to have the people believe that it's dead,” said Eric Schmeltzer of Public Campaign, a nonprofit group supporting change in the way Americans fund political campaigns. “But at the state and grassroots level, the people are taking the lead on the issue. The people are going to lead, and the leaders will follow.”
More than two dozen states legislatures considered campaign reform efforts this year, although many are running into the same major roadblock that Congress found: Buckley v. Valeo.
The U.S. Supreme Court's 1976 ruling in Buckley rejected Congress' attempt to limit election spending in congressional campaigns. Some say the high court equated campaign spending with free speech. Therefore, laws that limit political spending would be unconstitutional.
That's why opponents say they derailed the measure offered by Sens. John McCain, R-Ariz., and Russ Feingold, D-Wis., which fell eight votes short of the 60 needed to close off debate and move toward final passage. The bill, if passed, would ban unregulated donations to political parties, expand disclosure requirements and regulate issue ads purported to educate voters but which are often used to influence elections.
But such reasoning hasn't stopped state and local officials from passing their own statutes.
One such statute might find its way to the Supreme Court this term, setting up a direct challenge to Buckley. Last April, a federal appeals court rejected a 1995 Cincinnati ordinance enacted to limit spending by City Council candidates to no more than $140,000, which is three times a council member's annual salary. The ordinance has never taken effect because of the court challenge.
Earlier this month, the National Voting Rights Institute, a Boston-based group handling Cincinnati's appeal, announced it would ask the high court to hear the case.
“Our contention is that Buckley did not lay down a rule automatically barring spending limits for all time,” Brenda Wright, an institute attorney, said. “We think the time is right for the court to give states and localities some breathing room to experiment with placing limits to enable people who can't their message out.”
Wright and others contend that the most innovative efforts in campaign finance are coming out of state and local governments. They say the courts ought to give them a chance.
But for the most part, courts haven't been amenable.
Besides the Cincinnati statute, state and federal courts this year have rejected state efforts to set contribution and spending limits in several states including Missouri, California, Alaska and Ohio.
Deborah Goldberg, senior attorney with the Brennan Center for Justice, a nonprofit group handling appeals for California and Missouri, says she isn't sure the states have come up with the perfect solution yet.
“This is an extremely volatile area of the law right now,” Goldberg said. “Not only at the state level but at the local level.”
Akron, Ohio; Albuquerque, N.M.; New York City and Austin, Texas, are all cities that have drafted reform statutes.
As for the state measures the Brennan Center is defending, Goldberg said California's measure, which passed in 1996, established individual contribution limits at $500 for statewide offices, $250 for Assembly races and $100 for small jurisdictions. The limits doubled for candidates who accepted spending limits.
A federal court determined that California's limits were too low to allow candidates to run viable campaigns. The state's appeal is before the 9th U.S. Circuit Court of Appeals.
In Missouri, the donation limits were $1,075 for statewide offices, $525 for state Senate seats and $275 for state House seats. Missouri's appeal of a federal judge's decision is before the 8th U.S. Circuit Court of Appeals.
Schmeltzer says his group has avoided head-on challenges to the Buckley decision but instead has focused efforts on crafting legislation that will satisfy the courts and Congress.
“We will pass legislation until the leadership on Capitol Hill can't deny it,” he said.
Schmeltzer says Massachusetts and Arizona are taking innovative approaches to reform that should withstand court scrutiny. Ballots for November's general election in both states include referendums to establish public-financed campaigns. Such systems offer candidates a set amount of state money for their campaigns on the condition that they don't raise or spend any additional money.
Such systems already exist in Maine and Vermont.
University of Virginia law professor Lillian BeVier says that even voluntary limits pose problems because they limit the total quantity of political speech.
In a paper published by the Cato Institute, BeVier cites a decision by the 8th U.S. Circuit Court of Appeals that said one is “hard-pressed to discern how the interests of good government could possibly be served by campaign expenditure laws that necessarily have the effect of limiting the quantity of political speech in which candidates for public office are allowed to engage.”
BeVier also says limitations don't create a level playing field because they don't take into account the advantage of incumbency.
“Equalizing the amount of money that incumbents and challengers can spend would simply make permanent the incumbent advantages that already exist,” she wrote.