Sample research paper on campaign financial reform and its relationship to freedom of speech

Campaign Financial Reform and its Relationship to Freedom of Speech

Campaign Finance is not new to American political history. Growing public support for campaign financial reform and recent Supreme Court rulings in favor of new financial reform limits invalidate interest groups concerns that these financial controls are violations of the First Amendment right to freedom of speech; instead, financial reform gives Middle America greater influence and a louder voice in the political speech arena.

Recent surveys have gone on to demonstrate public concern against role of money in elections. A majority of Americans voters are in for publicly funded elections. As for instance, a recent bipartisan survey of likely voters nationwide by Lake Research Partners and Bellwether Research clearly demonstrates the public concern against unfair elections. In what emerged as the highlight of the survey it came as no surprise that a significant majority of voters, across party lines, support publicly-funded elections – something that we are all aware of “in the wake of lobbyist scandals, the soaring costs of campaigns, and discontent with Washington, voters are hungry for a more open, clean, and fair system of campaign funding” (www.campaignmoney.org).

We may briefly present some of the significant findings revealed by this survey:

• Seventy five percent voters, that is, three out of four voters support a voluntary system of publicly funded campaigns.

• Those that support the agenda of public finance campaigns cut across party lines: Eighty percent of Democrats, 78% of Independents, and 65% of Republicans support this reform. In other words there is a near consensus on the proposal irrespective of party affiliations.

• Support of this reform is strong across demographic and regional groups. In other words, the strong pro-reform opinion finds an expression across gender, age, and regional divides with no less than 60% to 75% support.

• The survey was designed to elicit opinion on candidates supporting and not supporting this reform. Those candidates, irrespective of party affiliation, that supported reform were found to increase their lead substantially over an opponent that did not favor this reform. In other words, the survey found that support for public financing of elections helps Congressional candidates.

• The survey found a number of reasons why voters support this reform. However, all these reasons convey just one message that the voters overwhelmingly believe that positive changes will come out of this reform. While 82% of the voters believe that because of publicly financed elections candidates will win on their ideas not on the money they raise, 81% believe it is likely politicians will be more accountable to voters instead of large contributors. They (79%) also felt that those with good ideas and not just the rich and powerful will have a chance of winning as a consequence of this reform; and (77%) that special interests will not receive special favors from politicians (www.campaignmoney.org).

Even as campaign finance is perhaps as old as the democratic history of the USA and the oppositions including public opinion, press, legal statutes, and judicial injunctions have a parallel history, the Bipartisan Campaign Reform Act of 2002 was a land mark development with the objective to end the use of non-federal or soft money for activity affecting federal elections. The Act provides reduction of special interest groups influence, reporting requirements, use of contribution amounts for certain purposes, modification on contribution limits, penalties for violations, etc. The Act also addresses Congress’ recognized need for limitations on soft money contributions, fundraising methods, and better accountability of funds and expenditures. The Act applies to National, State, District and the Local parties. This Act prohibits national parties from raising or spending nonfederal funds. As for state, district, and local parties, it requires party committees to fund federal election activities with federal funds and, in some cases, with money raised according to new limitations, prohibitions, and reporting requirements (i.e. Levin funds), or with a combination of such funds. The Act also puts a limit on fundraising by federal and nonfederal candidates and officeholders on behalf of party committees, other candidates, and nonprofit organizations. It also puts a number of other restrictions including the limits on individual contributions. The Act led to several complexities for those who wanted to remove soft money from politics. While eliminating all soft money donations from national party committees, it doubled the contribution limit for hard money from $1000 to $2000 per cycle with inbuilt increase for donations. (www.law.cornell.edu).

Does the ban on soft money violate the First Amendment? This is quite a complex issue. The Bipartisan Campaign Reform Act 2002 was challenged by groups such as the California State Democratic Party and the National Rifle Association, and individuals including U.S. Senator Mitch McConnell (then the Senate Majority Whip). According to him, the legislation was an unconstitutional infringement on their First Amendment rights. McConnell had for long opposed the BCRA in the Senate on the grounds of its constitutional merits leading several Senate filibusters to block its passage.

Whether the ban on unrestricted soft money contributions and limitations on when private organizations could engage in political support advertisements violates the First Amendment’s freedom of speech was the crucial issue debated by the Supreme Court that finally ruled against. The Court held that because the restrictions dealt with money used to help with voter registration and increase voting polls attendance, the impact on free speech was minimal. In June 2003, the D.C. Court of Appeals issued a ruling on the case that ruling never took effect, as the case was immediately appealed to the Supreme Court. In September 2003, the U.S. Supreme Court heard oral arguments in the designated McConnell v. FEC case. The Supreme Court, on Wednesday, December 10, 2003, came out with a ruling upholding the key provisions of the case; the vote on the court was 5 to 4 in favor. Two justices, Justices John Paul Stevens and Sandra Day O’Connor, wrote the majority opinion, who were joined by David Souter, Ruth Bader Ginsburg, and Stephen Breyer, and opposed by Chief Justice William Rehnquist, Anthony Kennedy, Clarence Thomas, and Antonin Scalia (www.law.cornell.edu).

While the BCRA was enacted with pious intentions, all was not well with it. From its very inception, it was mired in controversy and litigations. One of the Amendments made to the Act was Millionaires’ Amendment opened provisions for candidates running against self-financed opponents to legitimately receive contributions from individuals at increased limits as well as have increased coordinatred party expenditures made on their behalf. According to the provisions of the Millionaires’ Amendment candidates facing opponents who spend personal funds in excess of the limit may have their limits enhanced in case of House and Senate candidates. The threshold amount for House candidates is $350,000. House candidates whose opponent's personal spending exceeds that threshold may trigger increased limits. For Senate candidates, the threshold amount is the sum of $150,000 plus an amount equal to the voting age population of the State in question multiplied by $0.04. Senate candidates may qualify for increased limits only after an opposing candidate's personal spending exceeds twice the threshold amount. The question that arises here is does this Amendment violate the First Amendment “by chilling the speech of self-financed candidates and the Equal Protection Clause of the Fifth Amendment by giving the opponents of self-financed candidates a competitive advantage” (www.law.duke.edu)

Davis was the 2006 Democratic Party candidate for New York’s 26th District seat in the United States House of Representatives who challenged the Millionaire's Amendment that relaxes the contribution limits for a candidate who faces a wealthy opponent.

A three-judge panel of the district court held that the Millionaire's Amendment violated neither the First Amendment nor Equal Protection. The First Amendment challenge failed because the Millionaires’ Amendment does not “burden the exercise of political speech.” It places no restrictions on a candidate’s ability to spend unlimited amounts of his personal wealth to communicate his message to voters, nor does it reduce the amount of money he is able to raise from contributors. The Equal Protection claim failed because Davis could not show that the statute burdened similarly situated candidates differently. By trying to reduce the disparity between wealthy and less wealthy candidates, Congress did not violate the Equal Protection clause (www.law.duke.edu).

However, the Supreme Court has recently struck down the Millionaires’ Amendment, unconstitutional in a 5-4 decision in shocking the candidates that face wealthy opponents.

Justice Samuel Alito, writing for the majority, ruled the amendment, a violation of the First Amendment. He held that the Supreme Court has “never upheld the constitutionality of a law that imposes different contribution limits for candidates who are competing against each other.” Wrote Alito: “While (the Bipartisan Campaign Reform Act) does not impose a cap on a candidate’s expenditure of personal funds, it imposes an unprecedented penalty on any candidate who robustly exercises that First Amendment right, requiring him to choose between the right to engage in unfettered political speech and subjection to discriminatory fundraising limitations. The burden is not justified by any governmental interest in eliminating corruption or the perception of corruption.” Alito was joined in the majority by Chief Justice John Roberts and Justices Clarence Thomas, Antonin Scalia and Anthony Kennedy (www.politico.com).

This Supreme Court decision leaves open a fundamental question of a level playing field in American democracy. The decision compounds the issue in the wake of “last year’s Supreme Court ruling that overturned a part of the McCain-Feingold campaign finance reform law that prevented issue-based groups from advertising within a certain timeframe before an election” (www.politico.com).

Nonetheless, the SC ruling on Millionaires’ Amendment should be seen as having any significant impact on the core theme of McCain-Feingold, the soft money ban. The soft money ban remains intact.

The general message among the people conveyed by the latest Supreme Court decision appears that money will continue to have a powerful impact in the elections, and that political office is a millionaires’ club. The important point being missed by the public opinion here is that the Supreme Court has always favored a balanced opinion and that the Supreme Court has upheld the key provisions of BCRA that is wide enough to significantly dilute the role of soft money.

That money is a menace in elections is universally recognized today. Politicians spend too much of their time raising funds and missing on important business of developing good public policy. “Fair Elections are a bold solution to the problem of money in politics. Three states – Maine, Connecticut and Arizona – have instituted the systems for tatewide and legislative elections. Publicly financed elections for some public offices, including judgeships, exist in four additional states, and the solution has been implemented in two major cities. Other states, such as Maryland, are actively considering similar proposals for their state elections” (Breaking Free with Fair Elections 2007 p.1).

There are several reasons voters are seeking a change today. The number one reason is perhaps that in a free and fair democracy every citizen must have a voice. The current campaigns involving astronomical sums of money might throttle the voice of a common citizen for he can never dream of fighting an election which is his inalienable right. If somehow he manages to raise funds he may realize the cost of winning an election is beyond his dreams. “The winners of House elections in 1976 spent an average of about

$87,000 on campaigns, or about $308,000 in 2006 dollars. In contrast, the average House

winner in 2006 spent $1.3 million. In 1976, successful Senate candidates spent an average of $609,000, or about $2.2 million in 2006 dollars. In 2006, the average Senate winner spent an astonishing $9.6 million (Breaking Free with Fair Elections 2007). Once the candidates are elected and become House members they must raise almost $1000 a day to wage their next campaign. “Freshman House Democrat Tim Walz (Minn.) recalls that Rep. Rahm Emanuel (D-Ill.) told him in the middle of December 2006, “Start raising money now… And here’s your goal: Have $1 million in the bank by the time this race gets ready next time.”” (Breaking Free with Fair Elections 2007 p.2)

The implications are graver than can be imagined. The burden of fund raising distracts law makers from public duties. The only solution to this conundrum appears in a mechanism that takes care of electoral funding leaving the legislators to do their job. A study by researchers at the University of Maryland confirmed just that: the candidates who participate in full publicly funded electoral systems spend significantly less time raising money than other candidates. “U.S. House candidates in contested elections reported spending an average of 34 percent of their time raising money. Meanwhile, privately funded state legislative candidates reported spending an average of 24 percent of their time fundraising and publicly funded candidates reported spending only 8 percent” ( Breaking Free with Fair Elections 2007 p.3).

The current system of funding not only takes away fund raisers’ valuable time but does immense injustice to the constituencies that are poor and cannot raise as much fund as their neighbor. “A congressional Fair Elections system would free incumbent and prospective office holders to better connect with all of their constituents, not merely those most able to contribute to campaigns” ( Breaking Free with Fair Elections 2007 p.3).

In context of our discussion above it is plain that the role of mega bucks in electioneering has not only a corrupting influence in the political system but also does an immense harm to the nation. It is therefore, the right time to do some soul searching. The dozens of surveys are unanimous in the findings. The verdict is loud and clear: Every one except lobbyists favor public funding for free and fair campaigns. The six pillars of Fair Elections system outlined by Breaking Free with Fair Elections: A New Declaration of Independence forCongress (2007) include the following:

  1. Candidates seeking public funding collect “seed money” to initiate their campaigns.
  2. Candidates collect qualifying contributions to show that they have support
  3. Candidates who qualify must abide by spending limits
  4. Its voluntary. Candidates who do not want to participate do not have to.
  5. Participating candidates must comply with simple spending rules.
  6. Participating candidates must receive adequate funds.

Conclusion: It is evident from the above discussion that there is a massive support in favor of campaign financial reform. The support cuts across party, gender, race, community, and age divides. In other words, the reform advocacy is nearly consensual. Moreover, laws in recent times have also been made that put a limit on spending. The Supreme Court, too, by and large appears to favor campaign reform. However, interest groups appear concerned that these financial controls are violations of the First Amendment right to freedom of speech. They have failed to understand the true meaning of democracy that has a place for each and every participant in it. It is imperative that their voice too be heard otherwise we would be doing gross injustice to them. In order that they have a voice and the voice that is heard, the only solution is campaign financial reform. Those who think such a reform sounds fine in theory but is difficult in practice too need to be reminded that the system has worked in a number of states of the USA. Given a chance, it certainly holds a promise.

References

Duke Law (2007-2008). Davis v Federal Election Commission. Retrieved on August 25, 2008 from Duke Law Website http://www.law.duke.edu/publiclaw/supremecourtonline/certgrants/2007/davvfed

Politico (June 26, 2008). Josh Kraushaar. Court Strikes ‘Millionaires’ Amendment. Retrieved on August 25, 2008 from Politico Website http://www.politico.com/news/stories/0608/11377

Breaking Free with Fair Elections: A New Declaration of Independence for

Congress. (2007, March). Retrieved August 5, 2008, from the Public Citizen organization Web site: ttp://www.cleanupwashington.org/documents/

breaking_free.pdf

Lake Research Partners. (2006, June 21). Recent National Survey on Campaign

Finance Reform. Retrieved on August 5, 2008, from the Public Campaign Action

Fund Web site: http://www.campaignmoney.org//polling

U.S. Congress. (2002, March 27). Bipartisan Campaign Reform Act of 2002.

Retrieved on August 4, 2008 from Cornell University Law School Web site:

http://www.law.cornell.edu/background/campaign_finance/bcra_txt.pdf

U.S. Supreme Court. (2003, December). McConnell, Unites States Senator, et al. v.

Federal Election Commission et al. Retrieved on August 5, 2008 from Cornell

University Law School Web site: http://www.law.cornell.edu/supct/pdf/02-1674P.ZS


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