Carnegie Reporter, Vol. 1, No. 1 | Overturning Buckley, page 2

However, the Court ruled, it is unconstitutional to regulate campaign spending. Money is the fuel of political debate, it reasoned, and limiting what a candidate can spend affects the quantity of political speech in the same way limiting the amount of fuel limits how far an automobile can travel. Further, because no corrupt deals are involved in the act of spending campaign money, the government has no compelling interest in limiting it.

The Buckley decision also found that limiting amounts that candidates can contribute to their own campaigns is unconstitutional because these are acts

of political speech and there is no other person involved with whom to make a corrupt deal. It also rejected limits on “independent” expenditures because the spender presumably has no contact with the candidate and thus cannot make an expressly corrupt deal.

In criticizing the ruling, the Brennan Center and other critics note that the distinction between contributions and spending is artificial. Contributions are acts of political expression, they reason, and much spending—on, say, opinion polling and office rent—has little to do with expression directly.

The center argues that a truly independent expenditure does not involve prior communication but that it can involve such communication—and corrupt deals—afterwards. Also, the ruling ignored the impact of huge levels of campaign spending that can, in effect, drown out—and thus limit—competing political speech by less-wealthy campaigns.

A central flaw of the Buckley ruling, the center argues, was its haste. Oral arguments were heard only 13 months after the law’s passage, and there was little factual record for the Court to consider. Basing their ruling on speculation about what could happen, the justices ignored the real-world impact of soaring campaign spending on our democracy, Rosenkranz says.

Because other cases dealing with campaign finance issues will undoubtedly come before the Court in the next few years, the center and other critics have been carefully documenting the harmful effects of inadequate regulation of campaign finances to strengthen their argument. No rights are absolute, Rosenkranz says, and the Supreme Court would have no problem in banning the right of someone to say, “I’ll give you $1,000 to vote for this bill.”

Campaign spending that leads to quid pro quo corruption or the appearance of corruption is probably the most compelling state interest for the justices to point to in declaring limits constitutional, and there is ample and growing evidence of this, the center contends.

Another compelling state interest, never raised during Buckley arguments, is the need to attract candidates with great potential for public service who decline to run because they are repelled by the campaign finance system and how much money they must raise. Incumbents can easily scare off talented opponents by raising huge amounts of special-interest campaign money. The Brennan Center contends that limits on campaign spending could promote more competitive elections.

The center works closely with such research organizations as the Center for Public Integrity and Center for Responsive Politics, both based in Washington, DC. It also works with national organizations like Public Campaign in Washington, DC, and such regional organizations as Northeast Action in Hartford, CT, Western States Center in Portland, OR, and Democracy South in Chapel Hill, NC.

The center also has an extensive public education program that includes reports on and critiques of the Buckley decision. It published Writing Reform: A Guide to Drafting State and Local Campaign Finance Laws in 1999 to help reformers from lay activists to legislative technicians. To inform the legal community, especially prominent lawyers and jurists, the center has held mock Supreme Court hearings of the case, rehearsing and honing its arguments, as well as raising the issues’ general visibility.

The possibility that it may take a decade to overturn Buckley does not discourage Rosenkranz. “It may be a blessing because it gives us a luxury few have in litigation,” he says. “It lets us take every step possible to reshape the landscape and improve our chances of winning.” And while it pursues a national strategy for federal reform, the center also supports state-by-state grassroots reform efforts.

National Voting Rights Institute

Located in Boston’s financial district, the National Voting Rights Institute’s staff of eight is smaller than the Brennan Center for Justice but has a unique emphasis on campaign finance reform issues. “Our special focus is on litigation and public education to complement the growing reform movement,” says John Bonifaz, the institute’s executive director and lead attorney.

Like the Brennan Center, the institute is involved in numerous cases defending campaign finance reform laws around the country and is co-counsel with the center in several of those cases. One was their successful defense against the Maine Civil Liberties Union’s challenge to that state’s Clean Elections Act, and a defense still underway against a similar challenge to Vermont’s new campaign finance reform law. (The American Civil Liberties Union and its state affiliates have consistently opposed campaign finance reforms as unconstitutional restraints of free speech.)

The institute has also made a special effort to reach out to state attorneys general and secretaries of state to enlist their help in overturning the Buckley decision.

However, the institute’s greatest distinction is its legal offensive against Buckley on the grounds that lack of controls on campaign spending is a civil rights issue: It unconstitutionally bars poor and minority candidates from winning, or even running, and deprives poor and minority voters of a choice. This approach puts reformers on the offensive against inadequate campaign finance laws, rather than merely defending reform gains.

“We’re trying to redefine the campaign finance question—move it beyond the narrow focus of constitutional rights of wealthy contributors and candidates—to the rights of the nonwealthy to have a vote that counts,” Bonifaz says.

In a challenge on behalf of the Georgia NAACP filed in 1998, the institute asserted that the state tolerates an unconstitutional system of state legislative elections that denies equal and meaningful participation in voting. The high cost of running for those offices is just as serious a barrier to voting by the poor and minorities as the “white primary” and poll tax of earlier times—and more recently by high filing fees for candidates. In fact, it is part of a discriminatory tradition that dates back two centuries when only white male property owners could vote.

In their report, The Wealth Primary: Campaign Fundraising and the Constit-ution, Bonifaz and co-author Jamin Raskin, an American University professor of law, detail their arguments. The report marshals campaign finance data that show soaring costs and a correlation between winning and money raised. The Center for Responsive Politics, Wash-ington, DC, published the report in 1994 and provided much of the financial and voting research.

Bonifaz honed this argument in a 1999 conference at Howard University, “Campaign Finance as a Civil Rights Issue,” that brought legal scholars together with other experts, activists and elected officials.

In its Georgia lawsuit, the institute showed that higher-spending legislative candidates won 83 percent of the time and that incumbents who outspent their rivals in the previous three elections won 95 percent of the time. And it’s getting worse. In 1992 Georgia Senate elections, winners had a 55 percent funding edge over their rivals. In 1996, winners enjoyed a 324 percent edge.

“We say you cannot have a political system in which the ability to have your voice heard depends on wealth,” Bonifaz states. “Elections have become a wealth primary in which only the richest and most powerful interests have a say. They simply drown out nonwealthy candidates, and that’s an unconstitutional limit of the free speech of the nonwealthy.”

The remedy, according to Bonifaz, is public financing of candidates who can demonstrate public support combined with limits on spending—as well as overturning Buckley, which he, like the Brennan Center, is optimistic the Supreme Court will do. In 1949, the Court upheld a Trenton, NJ, ordinance that regulated the use of political sound trucks, recognizing that the right of some to speak (loudly, in this case) has to be balanced against the rights of others.

Despite losing the Georgia lawsuit in 1999 which focused on a civil rights-related angle of campaign finance reform, and earlier, a similar lawsuit in California, the institute joined in another suit filed in North Carolina in late 1999, challenging that state’s inadequate campaign finance laws. Heading the legal team there is former North Carolina Supreme Court Chief Justice James Exum, Jr.

Bonifaz is confident that a future Supreme Court will ultimately agree with the institute. It may not be soon, he says, “But we’re in it for the long haul. The wealth primary will not stand the test of time.”

Contact: E. Joshua Rosenkranz, Executive Director, William J. Brennan, Jr., Center for Justice, New York University School of Law, 161 Avenue of the Americas, 5th Floor, New York, NY 10013. web site: www.brennancenter.org contact: John Bonifaz, Executive Director, National Voting Rights Institute, 294 Washington Street, Suite 713, Boston, MA, 02108. web site: www.nvri.org

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