I Southern Californla, Los .Angeles, California, December 10, L977

ETE TTON REFCIRM TN TTS SECONÐ STAGE: M0I4ENTI¡¡{ PASSING !'80}{ REFoR}@R$ rO PCnlgR BRo&ER$ Ilerbert E=, Alexandef- Cítlzene I Besearch Foundatf.on Prepated for delivery at the confereneé on ttPolitlc¿t Mor.rey and Eleetion Reforul tonpatatl-ve Perspeetlveo'f at the tlnlversity of Southern Californla, Los .Angeles, California, December 10, L977, The Ale¡pnder CIollection Item Number ,, o :Donafed b1r Herbett E. Alexander,2008 The United States has entered a watershed period ln the history of electlon regulation, fn whlch dfrectlons are shiftíng. New regulatory paËterns are emergfng from the cruclble in whlch the reformers of the early l-970s seek to fend off the wanlng memories of I,Iatergate, the backlash to the reforms of the past five years, Ëhe experience with the new laws during the 1976 elections, and the inpli- cations of the Supreme Court decision in BuckLev v. Valeo. Clearly, a second stage fn the development of electíon reform has been reach- ed. The ball has passed from the reformers to Èhe powerbrokers, ín many ways that can be documented, fn other ways onLy perceived as the Congress continues to influence the operatíon of the FederaL ELection Comníssion (fEC) aíded and abetted by a reform-mínded President whose purposes aLso are being strongly Ínfluenced by the Congress. If power has passed nraínly to the Democratic brokers ín the Congress, their posture surel-y ís strongLy ínfI-uenced by organized laborrs wishes. Understand- ably, Labor ís íncreasingLy worried about the rÍse of corporate politícal actíon cormíttees (PACs). Despíte some restrictions in the 1976 Asrendmentq to the Fed- eral Election Campaign Àct (FECA)1 and ín the FECfs SIJNPAC decísion2 iurplementing the corporate PAC aspects of election law, the corporate and trade assocíation comnunítíes have demonstrated theír abíLíty to íncrease the nu4ber of PACs they sponsor, and the amounËs raised and conËríbuted to candídates.3 The PubLic Affairs Council, the NationaL Assocíatíon of Manufacturers, the Chamber of Commerce of the U.S., the NatÍonaL Association of PACs, the ?racticing Law Institute and others all sponsor well-attended seminars on how to organíze and admíníster PACs to make them effective. The business comnruníty displ-ays a continuing watchfulness over, and lobbies regarding, 1-egislative activities affecting election lar¡. Labor is frozen at fewer than 300 unions with no likLihood of l-arger numbers; its nain instrument is its abil-ity to generate mênpower, not money, because labor cannot compete with business-oriented PAC contrlbutions when supplemented by |arge índividual contributions nade by wealthy business o\tners and well-paíd managers. Labor, of course, can generate large amounts of cormunicatíon expenses in dealíng wíth fts members and theír famílies on electoral issues and candidates.4 And laborts registratíon and get-out-the-vote activity is generally more direct and more effective than is that of busíness.5 Hence laborrs presence seeking legísla- tíve remedíes among congressíonaL supporËers is understandable. Laborrs support of congressíonal publíc financing has been less successful than its efforts to regulate corporate and trade associatíon PACs as accomplished in the L976 Anendments. IdeologícaL, issue and functional groups have been organizing PACs at a lesser rate than business but some, such as so-call-ed ríght-wing groups, otganize on rìumer!- ous lssues of interest to theír constituencíes. In recent years there has been a ne¡¡ fl-oweríng of electÍon-oriented activíty, making the elections area a growth in- dustry, whÍch is manifesË also in federal- and state regulatory commissíon staff ex- pans ion, As government at aLl- levels has grown, ít touches every interest and every ín- dÍvíduaL, so the need grows to try to ínfluence public poLicy and the elected offi- cíals who make public poLícy. This need attracts interests to partícípate ín the electoral process. The ambivalence of voters losing faith in government whil-e their organízed interests seek to influence its actíons brings tensions that must be re- solved before the future directÍon of regulation Ís clear. It is ironic but not sur- prising that voter turnout decreases and oËher forms of citizen participatíon may be ãirioi"hing as candídates turn to Lawyers, accountants, managers, dírect maíl, 9o*- puter, and fund-raising professional-s, to run aspects of their campaigns, and that entrepeneurs among them establísh firns to advíse on running PACs and on occasion, trígger the organizíng of ne¡r issues commíttees.6 2. There are more definable groups seekíng attention--buslness, 1abor, professional, pub1lc interest--and each has its subgroups deaLing wíth a specific índustry or issue, Larger groupings are fragmented, so the voices heard most effectively seem to be those with large resources or those achieving dramatic appeal, Plura1ism may be more extensíve than ever but what is heard is a vast clamor. The fragmentation is evident in independent voting, and few groups can deliver voters with díverse interests. Single-issue candídates such as ELlen McCormack can survíve ín the maelstrom, and her candidacy ís only the first of many such single-íssue candídates successfully tying into an organized group for electoral support, Congressional public funding wouLd confirm that many consËitueneíes exíst wÍth single-issue concentratíons of population Likely to organíze sufficíentl-y to qualify their candídates for matching funds. The regulatíon of political finance is essentially a process rather Ëhan a substantive matter. Ihe conventíonal wísdom díd not portray íts appeal as a politícal íssue, yet it came to capture wídespread attenËion. Ttre subject had been so neglected for so long that major revísions of I-a¡rs were long overdue. GreaË íntensíty of feeling propelled the movement foru¡ard. In the past, reform had been an issue difficult to transl-ate into voter enthusiasm and interest. In addítion,legislators r¿ho r¡ere successful under the prevailing system Ìrere often reluctant to rock any boats that míght spil1 them out of office But for a variety of reasons since the late 1-960s, reform began Ëo overcome such obstacles. The dríve for change nas kept al-íve by the ever-increasíng costs of campaígníng, the íncidence of mi11íoaaire candidates, the large disparíties in campaign spending as between various candidai:es and poliËíca1 parties, some clear cases cf undue ínfluence on the decisíon-makíng process by Large conËributors and specíal interesËs, aad Ëhe apparent advantages of incumbency ín an age of mass communications wÍth a constant focus on the lives and actívitíes of offíce holders. Watergate was ímportant in the reform cause, but reformr¡as wel-L underway, partícularly in the states, before the name of the llashington office complex be- came a synonym for polítíca1 corruption and unfair practiees. Watergate served as a catalyst. Groups such as Conmon Cause exploited the íssue dramatically, üs- ing it Ëo focus further attentíon on election reform. Recognitíon mounted that existing laws had been inadequate to regulate changed conditions, that enforce- ment had been lax, that massíve change ín the content of Law and in its Ímplemen- tation sras essential. Before the Supreme Court decision, the reform movement had achieved compre- hensíve and stríngent regul-ations both at the federal leveL and ín many of the states. Thís was no'rfake reform" but a far-reachíng one that was changing the system radically. Reformers often fear the dangers of íncomplete reform, but Tdere on the way to achieving a real one r¡hen the Supreme Court reversed it ín its Path. The Supreme Court díd much Ëo relax some of the rigidíties that the Federal Election Campaign Act, especíal1y the Í974 AmendmenÊs, imposed upon the eLectoral- process. The January 1976 decísion/ upheld the most desírable feaËures of the law-- public disclosure and public funding of presidentÍal campaigns--whi1-e partía1-ly sav- íng the polítícal sysËem from its most controversial features--the limitations on candídates' campaign expendítures and the ceilings on spending by indivíduals and groups independent of the candidates. The decision foll-or.¡ed closely the reconunendations of the American Bar Asso- cÍation and adhered to the fíndings expressed in the political science and l-egal literature over the years, that expenditure 1ímits would have serious consequences 3. for the polltical system Ln terms of their lmpact upon the reLatfonships between alL the actors and inetftutLons--candfdates, campaign comnittees, poLitícal par- tles, ínterest groups and vol-unteers--active in electíons. Ttre Court ruled that expenditure llnits were permisslbLe constitutionally only if fmposed as a condi- tion of the acceptance of publ-lc funding. Court-mandated change has required rethinklng by lawmakers, brínging further uncertaLnty to the future of electlon reform. I,lhíle the reformers thrust lras to restrict large contríbutíons and special Ínteçests, the Courtts thrust was Ín Ehe dírection of reopening certaín channeLs for bíg money to re-enËer politÍcs. Whíle the reformers thrust had been to llmit campaign expendítures, the Courtfs thrust was in the direction of permitting unLimítad individual- expenditures by a candi- -date for hís own campaígn untess he accepts publíc funding íf offered, and by in- divíduals and groups lndependent of coordination wíth the candidatets campaign, regardLess or whether public funding ís províded. Thus the Court opened the way to the evasion and avoídance of both contributíon and expendíture Liurits. Al-most two years after the Suprene Court decisíon, the Congress had not been able to legi- sLate Ì¡ays to deaL effectívely with these openings. On1-y publíc financing can Legi- timize overalL canpaígn expenditure 1ímits and constitutionalíze Limits on personal spendíng by candidates on their own behalf. Despfte the definitive Supreme Court ruling, no doubt Ameríca wílL experience a decade of f.itigatÍon ín the frsunshíne" and poLitíca1 fínance areas. JusÉ as the past decade was marked by a series of confLícting court decisions in respect to obscenity and pornography, the years ahead probabLy wiLL see the same kínd of in- consistent and contradíctory rulings Ín the area of elections.

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