MONEY AND FREE SPEECH: CAMPAIGN FINANCE REFORM AND THE COURTS

Vol. 16 No. 4 (April, 2006), pp.277-281

MONEY AND FREE SPEECH: CAMPAIGN FINANCE REFORM AND THE COURTS, by Melvin I. Urofsky. Lawrence, KS: University Press of Kansas, 2005. 336pp. Hardcover. $29.95. ISBN: 0-7006-1403-6.

Reviewed by David S. Mann, Professor of Political Science, College of Charleston. Mannd [at] cofc.edu

In recent years, the University Press of Kansas has made a serious commitment to publish books about Supreme Court cases and patterns in American politics. Melvin I. Urofsky’s recent endeavor to explain campaign finance reform is a wonderful work that takes the reader from the earliest attempts at controlling campaign finance through MCCONNELL v. FEC (2003). I have revised my freshman course presentation of this subject as a consequence of reading this book.

The volume is in three parts. Part One discusses the history of campaign finance reform. Part Two shows how the courts have addressed the First Amendment in this issue space. Part Three, always anticipated in a Urofsky book, is the Appendix of documents, which include the Federal Election Campaign Act (FECA), three sets of amendments, and the Bipartisan Campaign Finance Reform Act (aka McCain-Feingold and BCRA).

A foremost and careful legal historian, Urofsky from the beginning informs the reader that he has a point of view. “[T]he reader should know that I started on one side, but in the course of my research and writing gradually moved to the other. . . [N]ot only is money essential to the political system, it is in fact a form of speech, and although the authors of the McCain-Feingold law had idealistic and praiseworthy goals, they failed to take into account realities other than abuses—the realities of how U.S. politics is financed, how it has operated for many years, and above all, how many factors go into each person’s decision on how to vote” (p.xi). This admission was surprising, especially when the concept of paying for free speech seems like such a contradiction to the freshman student who sees data that show how much money is invested in political campaigns.

Urofsky begins with a mercifully short history of early campaign finance, from Washington, Hamilton, and Jefferson through J.Q. Adams, Jackson, and James Buchanan in about seven pages, three early 20th century statutes that I had never heard of before (The Tillman Act and two statutes called Federal Corrupt Practices Acts), the more familiar Hatch Act and several other statutes that take us to the early 1970s in 27 pages. He summarizes all this by writing that the effects of these statutes “could be described as negligible at best” (p.27). Most chapters begin with a preface quote, and this chapter’s is telling. He quotes Mark Hanna as saying “There are two things that are important in politics. The first is money, and I can’t remember what the second is” (p.4, citation omitted). [*278]

Chapter Two is a discussion of the Federal Election Campaign Act and BUCKLEY v. VALEO (1976). We see a pattern emerge, where Congress, not the most speedy policy-making body in the world, responds to campaign finance abuses “only to see much of its work undone by the Supreme Court” (p.28). Television changed everything. Urofsky shows us data from Jacobson’s MONEY IN CONGRESSIONAL ELECTIONS to demonstrate that the House seat that cost a million dollars to finance in 1958 cost $3.6 million in 1970, that the Senate seat in the same time frame went from 1.3 to 6.7 million, and that the cost of all federal campaigns jumped threefold from1952-72, to 425 million dollars. Those jumps in expenditures seem huge; the dollar amounts would fund many a small college, but even those amounts are dwarfed thirty years hence. In the early 1970s, add Watergate to the equation, the growth in cynicism and distrust of government, the emergence of Common Cause “and other groups dedicated to electoral and government reform” (pp.44-45), and public opinion polls that showed an interest in tax support for federal campaigns, and we see more fully the background for the 1971 statute.

The 1971 Federal Election Campaign Act (FECA), however, had no contribution limits unless the candidate was wealthy. We are familiar with some provisions of FECA, especially the expenditure limits and the creation of the Federal Election Commission. We are more familiar with the 1974 version of FECA, and Urofsky bullets several critiques of the statute on pages 51 and 52, but the most surprising criticism on which he would rely for his own position is from Justice Brandeis’ concurrence in WHITNEY v. CALIFORNIA (1927): “Rather than stifle ‘bad’ or unpopular speech, Brandeis declared, the remedy is more speech, and the result will be an informed citizenry and a vibrant democratic society” (p.53). So the famous lawsuit initiated not only by James Buckley, but also joined by Eugene McCarthy, Stewart Mott, the ACLU, and others – as odd a coalition would emerge in 2002 – began. Urofsky provides the reader with much more detail than is shown in the typical freshman government text or than might even be known by the typical freshman government instructor, including yours truly.

I confess that the BUCKLEY majority reasoning always has been confusing to me. It was a pleasant surprise to learn that Urofsky finds the reasoning confusing as well. “Rich candidates, in other words, had unlimited expression rights, but not rich donors” (p.57). Untouched by BUCKLEY: FECA permits PACs, party committees had to register with the Federal Election Commission (FEC), state party committees and national party committees had different rules and contribution limits, national party committees could transfer money to Senate candidates’ committees, expenditures on behalf of candidates varied by office and state population. There was no distinction between “hard” and “soft” money.

In the 20-year span beginning in 1980, both parties encouraged large gifts by creating special designations. For [*279] instance, the RNC made a list of those who contributed $100,000 to the party. Urofsky is blunt. He writes: “A half billion dollars buys an awful lot of campaign buttons, bumper stickers, and yard signs, so clearly the party definitions of grassroots activities, voter registration and get-out-the-vote expanded from what had been the relatively limited definition intended by Congress” (p.66). Soft money would eventually be funneled into federal campaigns, overhead costs, and generic advertising. FEC did nothing to control soft money.

Leaders of both political parties became very imaginative in their fundraising techniques. We all know of the Clinton/Lincoln bedroom fundraising. The GOP was no less involved, where those who gave $250,000 would be able to have private meetings with party leaders. “[T]hey both acted in gross disregard of the law” (p.98). Urofsky reminds us of the Keating Five and Congressional attempts from Reagan through Bush the Elder to generate new campaign finance regulations. The author goes into great detail describing proposed legislation of the 1990s in Chapter Four, which he entitles “The Road to McCain-Feingold.” By the end of this chapter, the reader knows the pattern: campaign finance abuses eventually lead to legislation, where the combination of loopholes and case law largely eviscerates the statute, and the cycle repeats itself.

Part Two begins with Chapter Five, where Urofsky walks the reader through some familiar and sometimes forgotten cases, such as GROVEY v. TOWNSEND (1935), SMITH v. ALLWRIGHT (1944), SOUTH CAROLINA v. KATZENBACH (1965), and others. This chapter spends five pages summarizing BUCKLEY, which the author had briefly and necessarily discussed earlier. My only serious criticism of the book is with his less than one page treatment of FEC v. NCPAC (1985), which, to my mind, was a vital case in legitimating PAC expenditures on behalf of candidates. I would like to have read a longer discussion. Nonetheless, by the end of this chapter Urofsky reminds us that the Supreme Court has spent considerable time subsequently trying to figure out what BUCKLEY meant.

The rest of Part Two, four chapters and about 100 pages, is a rendition of the litigation concerning BCRA and the case of MCCONNELL v. FEC (2003). Here, if not before, the reader must become impressed with Urofsky’s scholarship. Here, if not before, the reader whose specialty is the federal judiciary and civil liberties will have some fun. The author begins at the District Court level. The author provides summaries of the briefs for both sides. As with BUCKLEY, the plaintiffs ran the ideological gamut from Senator McConnell to the ACLU to the NRA, and Urofsky pays special attention to the arguments made by all. The ACLU brief looked at the big picture, asserting that BCRA would have a harmful impact on all advocacy groups. The NRA, on the other hand, had “but one purpose: to elect candidates supportive of their Second Amendment views and to defeat those who disagree. Yet both claim – legitimately – that their speech is political and therefore [*280] protected” (p.159). I did not know that the Pew Charitable Trusts provided research that supported the defendants. Pew funded Norman Ornstein to write a column for the “PewWire,” and funded research by the Center for Public Integrity, the Center for Responsible Politics, BYU, the Alliance for Better Campaigns, and Colby College (p.167). “In all parts of their briefs, the government and especially the intervenor-defendants kept hammering on the alleged corruption of the system, piling up one horrible example after another, in the hope that the court would agree and would acknowledge the compelling interest necessary to justify restricting speech” (p.173). In all, the briefs amounted to 1,676 pages, 41 boxes of evidence, and 13 binders of depositions from over 200 expert witnesses (p.178)—an awesome volume of data for any court to digest, let alone a three judge District Court panel.

In Chapter 7, aptly titled “Confusion in the District Court,” Urofsky provides some biographical information about the three judge panel and then in essence trashes its opinion. He discusses the apparent tension between the three judges, including snippets of quotes from the opinion that illustrate the bottom line: the panel’s opinion would do little to assist the Supreme Court.

Chapter 8 covers the oral argument and Supreme Court decision in MCCONNELL. There is at times some mind-boggling detail about BCRA and the justices’ views of various sections of the statute. After about 35 pages, Urofsky clears the air with a succinct summary. “In the end, five justices deferred to congressional findings and agreed with the defenders of the law that sufficient evidence existed to warrant the restrictions placed on campaign finance and on political speech. . . . Four did not see it that way, and their opinions upheld what had been the Court’s devotion to the basic principle that under the First Amendment, political speech in any form is a core value that should not be restricted” (p.228).

Finally, Urofsky discusses reaction to the decision and an epilogue. He concludes reflecting once again the words of Justice Brandeis that “the cure for allegedly bad speech is not regulation, but more speech” (p.250).

Personally, I struggle with this topic. Money may be the mother’s milk of politics, and the history that Urofsky provides surely illustrates that point. It just seems like a contradiction that free speech can be bought. Those who have more can buy more, the rich candidates can spend as much of their own money on their campaigns as they wish, but the less wealthy have to pursue other avenues of fundraising to compete. Weeks ago, when this review was originally due, Jack Abramoff and the lobbyist scandal was headline news. There were clamors for more reform, which even now are virtually off the radar. So the pattern continues where this book leaves off: corruption, legislation or attempted legislation, case law. As with most issues in civil liberties and the First Amendment, all we can really do as teachers/scholars is to raise questions, try to get students to think about these significant issues, and stay tuned. [*281]

REFERENCE:

Jacobson, Gary C. 1980. MONEY AND CONGRESSIONAL ELECTIONS. New Haven: Yale University Press.

CASE REFERENCES:

BUCKLEY v. VALEO, 424 US 1 (1976).

FEC v. NCPAC, 470 US 480 (1985).

GROVEY v. TOWNSEND, 295 US 45 (1935).

MCCONNELL v. FEC, 124 S.CT. 619 (2003).

SMITH v. ALLWRIGHT, 321 US 649 (1944).

SOUTH CAROLINA v. KATZENBACH, 383 US 301 (1966).

WHITNEY v. CALIFORNIA, 274 US 357 (1927).

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