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 reached. 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 resolved 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 became 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 enforcement 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. Involved here are essentlally questions of publ-ic discussion and po1ítical dialogue, certaínLy the highest order of neaning of the First .Anendment, and vastly more Ímportant than the question of whether or not a city can have go-go girLs or X-rated movíes. Just as surely as recentLy-enacted laws wíll have impacË, so wí1-1 court decisions refíne and modífy the thrust of recent change, The Supreme Court decision paved the way for further lítigation ¡¡hen the Court invíted more Litígation regarding treatment of minor partíes and in other cases where damage could be shown. The courts undoubtedly will contÍnue to play a sígní- ficant role ín electíon law. In some areas of change--for example, busing and abortion--there ís reLiance upon Lítigation to consolidate and sometines expand the meaníng of Legislatíon. In electíon matters, the reverse can be expected to happen; because of First and Fourteenth Anendment ínterpretations, the courts wiLl- tend to relax ühe rigidíties. Of course, excessíve litigaËíon míght tend to make election law more controversíaL than ít aLready is and coul-d even reduce public confidence in the electoraL system--an irony because some of the most restrictive legislation whích the Court struck down was deemed necessary by its sponsors in order to increase con- fídence in the elecÉion sysËem. Hence the goaLs of reform need to be re-Ëhougtnto acconnodate Ëhe new reality. That reality caL1s for lÍmited goal-s, rather than the far-reaching, now unattain- abl-e and ilLusory goals of, 1974 when the lawrs most controverslal (and unconstitu- tionaL) provisíons rrere enacted. A simpLifÍed legislative approack wouLd yield two lmportant products: make the lanr much Less complex, and easíer and less expen- síve for candÍdaËes and po1Ítica1- conunittees to compl-y with while encouragíng citizen particípation. And it would minimize the mosÊ controversial aspects of the work of the Federal- Election Commíssion. It also hoLds the hope of raisíng levels of confídence Ín the el-ection process, the ul-tímate goal of recent reform. The absence of a contínuíng publíc ínterest constituency for eLectíon reform has often been remarked. Reformers gror^r \reary and their goals change. An involved 4. consËituency, consisting of political candidates, parties, and inËerest groups r¡hose actívíties are being regulated, not only exists but among the effecËed candidates are incumbent members of Congress who exercise oversight of and control funds for Ëhe Federal ElecËíon Conurission. Experience with regulatory agencíes is thaË they Ëend to be captured by the industries they are established to regulate. In the case of the FEC, there ütere special structural controls buílt into its establishment, giving Ëhe Congress unusual influence, which is being exercised selectively but effectíveLy.

ConEress íonal Public Financing For severaL reasons, 1977 appeared to be a propiËious time for extending publíc fundíng to congressíonal campaigns. Newly-elected President Jirnmy Carter r,ras a firm supporter of the idea, replacing Gerald Ford v¡ho signed the L974 and 1"976 Amendments reluctanËly and posed a poËential- veto threat. Ïn February, Car' ter assigned Vice-President l,Ialter Mondale to formul-ate an elections package whích sras sent to the Congress on March 22, Congressman Frank Thompson, Jr., a long-tíme supporter, had replaced I,rrayne L, Hays, Ëhe leading congressional anta- gonist, as chairman of the House Administration Commíttee. Three key congressional ]-eaders--senate Majority Leader Robert C, Byrd, Speaker of the House Thomas P. OtNeill, and House Majority Leader James C. I^lright, Jr.--alL reversed their previous posítíons and endorsed the Ídea early Ln L977. Thus díd the Democratic leadership seemingly give impetus to public funding of senatoríal and congressional campaígns in cooperatíon wíth a Democratic Presídent. Some thought that the issue had been Ëaken over by the powerbrokers from the reformers. By August, however, Ëhe favorable signals proved to be deceptive, By October, the extent of congres- síonal oppositíon vras confirmed. The powerbrokers couLd not or would not bring about Ëhis reform. Presídent Carterts March message recornmended the adoption of electíon-day voter registratíon, popular electíon of the President, politíca1- ríghts for federal employees, and public fundíng of congressional election campaigns, Of the lasË proposal, Ëhe Presídent commented that the 1976 presidentiaL electíon proved that such a progrâm works and is supported by the Anerican people. Carter urged Congress to adopt a sítrilar system for congressional electíons. Accordíng to the PresidenË, pubtictrfinancing of candldates not only mínimizes even the aPPearance of oblígation io specíal ínterest contributors, but also provides an opportunity for qualífied p"r"ór. who lack funds to seek public office.'r8 llhiLe aduritting that the legisLa- iors kne¡¡ whích formula was best, he requested that whatever plan was adopted should be fínanced through Èhe checkoff system on the personal income tax form, as ís the presidential fínancíng program. He stated that in order Ëo Prevent frivolous can- didaËes from receiving money from the government, candidaËes should be requíred to demonstrate substanËial public support. He favored settíng the limits on expenditures high enough to permit an adequaËe presentaËion of candídates and their plat- forms to the people. He warned that candidates who accept public financíng should not be placed at a seríous disadvantage compared r,rith candídates r¿ho do not accePt pubLic iunds or who have access to very large private funds. And he suggested that ihe system should be appl-ied as broadl-y as possíb1e, ideally to ínclude primaries as well âs general elections. But recognizíng the need for guíck action, Ëhe President that he would accept a bill confining the program to general el-ections in "nrrorrrr""ã!978. tr'lhíle generally praisíng the FECA, the President recommended ËhaË Congress revise Ëhe sËatute in light of the experiences presídential candidates had wíth ít in 1976 campaigns. Carter suggested Éhat: (1) presídentíal- candidates be allor¿ed to 5. deslgnate one comlttee ln each state to ralse and spend a llnlted amount of money (perhape 2C for each ellgfble voter) for campaign actlvlties wlthin the etate t (2) when congresalonal candldates mentlon ln their advertfsing the presidential nomÍnee of their party, the expendlture should not have to be reported by the presfdentlal candidate or charged against hís llnitatfon; (3) presídentiaL candldates be given an addltlonaL grant to cover the coste of conplylng with the FECA; (4) the FEC devel-op a comnon reporting and accountfng system that all candidates could use; and (5) the law be cLarifled as it applies to the flnancíaI aspects of the delegate selection process. Carter urged that contributions to delegates, or candidates for delegate, should be charged against a presldential candfdatets limits only when delegates are pledged to the specífic candldate. Expenses of delegatee íncurred in attendlng a natlonal conventíon should not be consldered as contrfbutíons or expendftures for the candldaËe supported. Even before the Presldentts message tras sent to the Congress, public fundlng bills were introduced in both houses. In the Senate,5.926, providing public funds for senatorial prfnary and generaL elections, was íntroduced by a bipartisan coalition. In mid-June, the Senate Comrittee on Rules and Administra- tÍon reported a revísed versÍon of S.926r' wlth publ-fc financlng of prímary campaigns deleted in order to reduce íts costs and make it more acceptable to the House of Representatives. The bill also contained numerous amendments to the FederaL Election Gampalgn Act, the basic federal law dealing with campaign dis- clooure, Limitatlons, and the public funding of presidential campaigns. 5.926 reached the Senate fLoor in late July and imrediately encountered the oppositíon of a nearLy united Republican party, including sonn co-sponsors of the biLl, along wlth Southern Democrats. The opponents launched a fiLibuster to prevent the reasure from comÍng to a vote and, after more than a week of debate and three unsuccessful cl-oture votes designed to límit further debate, the Demo- cratic leadership conceded defeat and dropped the publíc fundlng provísions from the bfl1. It Ís believed that more support for the Ídea exiets than tlas indicated by the cLoture votes, and the Democratíc Leadership has been critíctzed for aban- donÍng further attempts when compromÍse with potentíal Republícan suPPorters Pos- sibly could have salvaged public fundíng. Con¡non Cause was crítÍcal of eíght Senators, seven of them Republicans, on record in favor of pubLic funding but who fail.ed to voËe, as Comnon Cause claímed they had pLedged, f9T cloture to shut off debate and permit further consideratíon of the legisLatíon.10 The Amendments to the FECA remained and were passed by a vote of 88-1. The denise of 5.926 was but the latest episode ín the movement for public funding of congressional elections. Both houses of Congress have consídered the ídea several Ëímes ín recent years, and the Senate has actualLy approved it twice onLy to see its bill thwarted by the House. The issue ¡ras fírst consídered by the Senate 1n July L973, During debate on a comprehensive campaígn reform bí11, an amendment Ìras introduced by Senator Edward Ignnedy and Minoríty Leader Hugh Scott that would have provided treasury funds to flnance congressional general eLectíon campaigns, but not primaries. The amendmenË ¡ras tabled, but the 53-40 vote lras cLoser i¡rao *ost observers had expectedrllttt¿ demonstrated the exístence of a soLid core group in the Senate sympathetic to the idea of pubLic fínancing. PublÍc fínancíng !ûas passed by the Senate ln November L973. Using a parlia- mentary naneuver, proponents succeeded in amending an unrelated federal debt-ceilíng bil-l to provide public funding of presídentiaL prirrary and general electíon and con- gressionaL general- election campaígns. After protests from the House, hærever, a compromíse was reached that elíminated congressÍona1 races but retained public funding for the presÍdential electíon. Ì.Ihen this version was returned to the Senate, James B. Allen succeeded by rneans of a fílibuster to elímínate the public financing anendment. 12 6.

The issue was taken up again ín 1974, when both houses considered amendments to the FederaL ELectíon Campaign Act. In April the Senate, by a vote of 53-32, passed a bíll that incl-uded publíc fínancing of presidential and congres- síonal races, covering both primary and general elections, The House version of the bí11, holrever, provided funds only for the presidential elections, and when rePresenlatives of both houses met ín eonference commíttee the House víew pre- urit"¿ .13 Another amendmenË package to the FECA was passed ín L976, but publíc funding of congressional races lras again excluded, having faiLed by a tie vote in the Senate RuLes Committee and by a 274-l2L vote on the floor of the House.14 More than two monËhs after the Senatets faílure ín L977, the House turned to consíderatÍon of congressional public financíng. Some L55 Democratic menrbers signed a letter, encouråged by the Democratic Study Group and Cosrnon Cause, ask- lng Speaker OrNeíll and Chaírman Thompson for actíon. In late October, the House Adninistration Cormíttee undertook Ëo mark up a biLl drafted by Thompson and his staff, Thompson aborted the effort after a combination of Republicans and Demo- crats adopted amendments that srere considered certain to ki1l the 1egíslation on the House floor. Ttre crucial amendment ¡¡ou1d have extended publíc funding to primaries, raísing Íts cost and makíng the bÍll unpalatabLe to many supporters of general election coverage onl-y. A.mong those voting to include prínaries lrere some non-Southern Democrats who knew their actions woul-d dash the chances of the bil1. Another cripplíng amendment approved would have extended maËchíng funds to all can- dídates, major and mínor party on the same basís, who achieved the $10,000 threshold to qualify, Thís also was considered to be a barrier to passage.-_Unable to report out a passable bill, Thompson wíthdrew ít for the 1977 sessÍon,r) The House Adminístratíon Committee came to be perceíved as remaíníng closer to Irtayne Haysl obstructioníst positíons tharr those of his reformíst successor, Frank Thompson. Some cynícs have proposed a scenario suggesting that the L977 efforts may not have been sincere. It is pointed out that the Senate passed publíc financing in 1973 and 1974 knowing thaË Hays would defeat i-t in the l{ouse and ín joínt conference. Ín L977, the outcome in the House was uncertain and was dependent upon the extent of Speaker OrNeíLLfs influence. Hence the Senate lras afraíd to take a chance on House aceeptance and so defeated the bí1L. Then OtNeiLl encouraged Thompson to act, knowÍng the Senate..vould not try agaín this year. Thus both the Senate and House got credít for trying, trlhile the outcome may have been ín doubt ín both cases, only the cynics are certain that the efforts nere sure to faíL. The House did not consíder revÍsíon of the presidentíal- fundíng portions of the FECA, as the Senate had. Al-1 Ëhat remained of congressionaL efforts was the Senate-passed versíon of FECA amendments, If approved by the House eventualLy, this new Law wouLd have the effect of íncreasíng participation by the political parties and by volunteers, and of easing the reportíng burden on candídates and political cormíttees. Among other provisíons relatíng to dísclosure and reportíng, the bill would: All-ow any state or national political party commíttee regístered ¡¡ith the FEC to use the lower posÊa1 rates granted uníons and other non-profit organízations. Give state party corrmittees, including rrsubordinaterr committees, the right to spend two cents tir¡es the statets voting-age populatlon on behalf of the partyrs presí- dential nominee. Thís ís ín addítion to the already-existing ríght of the national party cormitËees to spend tr,¡o cents tímes the natíonaL voting-age populatíon on the nominee's behalf; ín 1976 existing 1aw permÍttíng the DNC and Ëhe RNC to spend up to $3.2 millíon on behalf of theÍr candídates. CarËer and Ford. 7.

Allow the following volunteer actlvitles not to be counted as contrlbutions or expenditures: (1) lndÍvfduals nay use real or personal property on their or¡n residential premises on behalf of a candfdate or a party comrittee if the value does not exceed $11000, (2) vendors may sell food and beverages to candidates or party coumittees for lower than the rrnormaL comparabletr charge as long as the sale prlce 1s at Least equal to the cost of the food to the vendor and the value of the díscount does not exceed $11000; (3) volunteers may pay their own travel expenses up to $1,000 when servíng a candldate or a poLitical party cor¡mittee; under Present Law, these servíces may be donated to a candídate, buË not to a party cormittee, and only up to a vaLue of $500. Allow a state or local party co'n¡nittee to pay for materfaLs (bumper stickers, pins, etc,) used fn connection wíth vol-unteer actlvíties on behalf of a candidate, without counting the costs against the party contribution and expenditure l1míts. AlLow all political party conrmittees to accept free servíces from a lawyer or accountant who continues to receive compensation from hls regular employer, wíth- out counting the vaLue of the service as a contríbutíon or expendÍture by the employer; at present, onLy the nationaL comnittees have thís ríght. Exempt contributions to and expenditures by delegates and those seeking to become delegates to a natisnal- or state politícaL conventíon or caucus from all ceÍlíngs and reporting requirements. Exempt fron the defínítion of rfcontributionrr and trexpenditurerr and therefore from limftation the vaLue of rrlisting or mentíoníng'r the name of any presidential candidate in any other candídaters campaign materiaLs or poLltíca1- advertisíng, as Long as the purpose of such materials ís to promote the candldacy of the other candÍdate and is initÍated by hln. Give nominated presidential candidates up to $500,000 in addítÍonaL public funds to pay for the legal and accounting costs associated wíth neeting the requÍrements of the FECA. Under present law, compliance costs are exempt from the candídatefs $21.8 rnillion expenditure lÍmits, but the addítíonaL funds must be privately raised. These provisíons mainly courplied with President Carterts recormrendations, and they are small but healthy steps ín the direction of strengthening partíes, exempt- ing certain joínt costs from candidatesr expendíture limíts, and encouragíng wider cítízen partÍcipatíon. These ideas qrere not very controversial, and as noted, the Senate passed the biLl wfth onLy one dissent. Thís actíon demonstrated how much easier ít is to refíne a 1aw once passed than to enact a neÌr one, especíally con- gressíonal publ-ic funding. Surely publíc funding if appLied to them triggers ín some legísl-ators fear of the mysteríous forces unleashed rrhenever proposals are made to do thíngs differently than in the past. Many ín the Congress are content to tamper with presídentíal elections but not their own. The Congress displayed a certain weariness with the subject of eLectíon refonn when some of their seats were thought to be at stake. Through the years, there were fer¡ compensatory positíve features Ëo the gener- alLy negatíve character of lar¡s regarding pol-itícaL finance, Historical-ly, when the assessment of government empLoyees vras prohibíted, no pattern of alternatíve statutory provisíons folLor.red to ease fund-raisíng probLems or to reduce politícal costs; Ëhe gap or Íncome loss was fíL1ed by corporate contributions. Wtren corpor- aåè givÍng was prohíbiËed, agaín no statutory alternatives lJere enacted; the gap was fílLed by contribution of r¡ealthy indivíduals. l,lhen the wealthy urere resËricted in theír gíving (although there were many loophoLes Ín these restrictions), again no permissive or enabling legísLatíon was enacted to hel-p nake availabLe nelt sources 8. of funds; Ëhe gap thís tíme was filled by a miscellany of measures, such as fund-raísing dinners and other devices currently in use, Ttris last gap has never been adequately fi1Led It was not untíl L974 that the historícal pattern began to be reversed; when stríct limitations on contríbutions were imposed, reducing sources of money, the gap in lost revenue was filled by money from a ne'hl source, the government, at least for presídential- elections, I,lhether the Congress will- fol- low this pattern for congressional campaigns remains a challenging question. In federal campaigns, indivíduals are noÌ, prohibited from contributing more than $1,000, and politicaL action corrnittees from contributing more than $5,000, to a primary or general election campaígn, In the L976 eongressional elections, trhen no pubLic funding was provided and hence there could be no expenditure 1ímits, some wealthy candidates spenË large amounts of personal funds. The method of dealíng wíth hÍs inequity in Ëhe defeated Senate bil-l- \¡tas to raise expenditure 1ímíts and provide additional maÊchíng funds for the opponents of candidates r¡ho exceed Ëhe personal or overall expenditure limits set by the bill.16 The contributíon 1imíts enacËed by Congress in L974, and upheld by the Su- preme Court, \¡¡ere desígned to reduce the ínfl-uence of special inËerests in the electoral process. In this they were only partíally successful. A Common Cause survey found that the aggregate amount of special-interest contributions Ëo congressional- eandidates íncreased subsËantia1l"y to $22,6 million in L976 as com- f,ared to $12.5 míllíon Ln L974 and $8.5 mil-Lion ín L972,L7 One reason for thís Ís the dramatic increase in the number of political actíon cosunittees, whÍch have multiplied to a poínt where most Èrade and professíonal associatíons and nÉny corporatíons and nearly all labor unions, noht sponsor them. Sínce these ínterests could no longer conËribute to presidenËial candídates in the general eLection períod where ful1 funding was províded by government, many turned Ëheír excess doLlars to congressional races. A strong possíbiLity exísts that wíth the continued growth in the number and síze ot po1-iticaL action conmíttees, these numbers will increase ín future years. ln 1976, the $11000 limit imposed on in- dívidual contributors had the effect of dirníníshíng the índividual gÍft coutponent while increasíng Ëhe group gíft cornponent as a percentage of total- contributíons ín many congressionaL campaigns. Thís uníntended result of reform efforts could be rectified by raisÍng the indívídual- contríbution límits or reducing those of po1ítical action committees. Increasíng the índívidual contribution l-iníts r^¡oul-d have the effect of increasing the total amount of campaign money, whíLe each contribution could stí11- remain 1ow enough to dímínísh the possibil-ity of contríbu- tors unduly influencing candidates. Increasíng the contríbution Limits also would hel-p Êo províde candídates wiËh seed money, Ëhe amounts needed early in a campaign to get ít organízed and Ëo gear up mail-íng or other means to raise additíonal money. Partly as a result of the law, political fund-raising patterns are changíng. To the extent the wealthy donor is now límíted, focus is shiftíng to fund raísers r¡ho can organÍze and solícit interesË groups, Thus,looking Ëo the future, PACs and índependent expenditures probably will become more important ín Ëhe regulatory process. The suecessful candidate increasingl-y will- be the one who can predicate his canpaígn upon organized interest groups whose memberships can be mobilized as small contributors to his campaign, in addition to whatever help the groupts PAC may give, Specíal ínterest money is a form of polítical expression and is a r*ray for groups to get theír víews across to the publíc and polítical leaders, as r,¡el1 as to their own members. One personts special interest is anotherfs publie interest. In common usage, ideologicaL, issue, and functional groups are linked l¡ith vested ínterests-- 9.

corporations, labor unions and trade assocÍation--into the loaded term ttspecial interesté"" Many of these groups aggregate smaller contributions in order to contribute larger, more meaningful gifts to favored candídates. Sone corporate PAC contributions whfch are made through neutral trustee pLans are determlned by indivídual enployees, not by the corporate managenent, and thus many PAC dona- tiorr are in effect made by individuals giving to the candidate or party of their choíce. Of course, rank and fÍle labor unf.on members give mostLy smaL1 dona- tions, aLthough they cannoÊ earmark funds to speclfíc candidåtes, It is important to retain søre degree of private givÍng in the electoraL s5zstem, For the citizen, the act of gfvíng to the candídate or group of his choice, even if only a snall amount, instil-Ls a sense of partÍcÍpation in the politícal process. For the candidate, the need to meet wÍth potential donors and solfcit their contributions can provide a feedback on the concerns of the electorate that is both more írmediate and'more personal than that provided ín other campalgn activÍties. This tends to make candidates more attentive, and government more responsive, There 1s danger to our p1uraLístíc society if groups are overly restricted ín their politícaL actívity. It is suggestive that the three most significant events of the past two decades--the civÍl rights movement, the peace movement, and Watergate--emanated from the prívate sector, where the need for actíon was perceÍved and organízed to accomplish it. rõ Government reacted but did not initiate the activity, and the governmenË Ìras part of the problem in each case. Hence the case for interest groups, which are aggregations of like-mínded peo- pl-e whose political posrer is enhanced by combÍníng forces. ÌJithouË groups, ín- divíduals in mass socíety are atomized and ineffectual-, The First A¡rendment guarantees the right of assocíatíon and indívidual-s take cues from groups which give them political guidance. PublÍc funding of political campaigns, when the money is given directly to candídates, many accelerate the trend toward candídate independence and could dinínÍsh the roLe of the two nlajor parËies. Wíth government funding avaílable, and made doubLy attractive by f-imits on private contríbutions, the candídaters need to reLy on party identificatíon wíll be greatly lessened. Funded even par- tiaLl-y wíth government moníes, the candidate has less need to ídentífy wíth hís party, I'fhile traditíonally ín most areas the parties have not provÍded nruch money to candidates, they have eased fund raísing for candidates by openÍng access to party actívísts for voLunteer work, and to contribuËors for money, To the extent thaË such obligations are reduced, the trend may be tor¡ard candidates even more independent of the parties than in the pasË, with the result of lessening abilíty to produce coherent majorítíes ín legisl-atures. If public fínancíng dírectly to candidates ís exÈended to senatorial ard congressíonal campaÍgns reduced party loyalty míght result, fragmenting both ma- joríties and minoríties, possibly leading to new factionalísm and spLinter parties, At the least, one can speculate that subsidíes directLy to candfdates without reference to parties wíll lead to more independence ln legíslaËures and an erosíon of party feelíng.rv At a tíme when there is concern over Executive-Legi- slatíve reLationships, and about Executive encroachment and weak 1egíslatures, âny further splíntering of Congress or of state Legislatures could accelerate the di- míníshíng of the LegÍslatíve branch. The operation of checks and balances would be less consËant íf legÍslatures are weakened further. An elected office holder who ignored the demands of the leadershíp would not be fearful of beíng frozen out of a re-electíon bid or denied adequate funds because government woul-d provide at least partíal fundíng. The partíes can be an important part of the balancing act, 10. and therefore need continuing, not díniníshing, relationshíps with legíslators carrying the party label. Accordingly, the partÍes need public funding independent of any government money given to candidaËes, and ways should be thought through about whether some candídate fundÍng at least ín the general election period can be channeled through the party. Of course, eo Long as ele continue primaries as a means of nomination, and put a high value on independent voting, i.e., voting for the man rather than the party, our system wilL diminísh the role of politícal parties. The public policy consideratÍon is whether it ís desírable ín our candidate- centered cuLture to further divorce candídates from the parties on whose tickets they run. lJith direct candÍdate funding, the partíes wíll Lose some leverage. Ultimately the Ìray Êo get more accountabil-ity and responsibiliËy in political finance woul-d seem to be through democratically-reformed, adequately-funded poli- ticaL parties, not by enhancing candídate independence. Foreign experience with poLitícal subsidies is ÍnsÊructive. Subsidíes in countries with parlíamentary systems, wíth the exception of the province of Que- bec, are made to poLitíca1 parËies, not to candidaËes, In these countrí-es, Pêr- ties control the electoral campaígns, and candidates mobílize only 1ínited, if âtry, supplementaL support. 0pen primaries ín whích party candídates can be chal- lenged do not exist, and the parties choose the candidates without sígnifícant cosË to the one seeking nominatíon, In most of the natíons with subsidÍes, governments fund the partíes annu- ally, not only at election time, This is suppl-emented at tir¡es by free broad- cast time, again made to the partíes and not to the eandídates. The public fí- nance systems in other countries have been ínítiated by parties of all Persua- sions, and they appear to have benefítted many. Historically, at first, most of the subsidies were given ín smaller amounts to supplement resources already available, and later increased when the system adjusted to the infusion of new funds, UntÍl- passage of the 1974 Amendments in the United States, no country províding subsídíes imposed ceilíngs on private contributions, wíËh the excep- iion of Puerto Ríco which operates in a political setting somewhat similar to ours. In this country we sought Ëo have both l-imits and subsidÍes, as we1L as the optÍonal provision that a candidate can refuse the public money, Thís system of optíonal subsídíes accompanied by both contribution and ex- pendÍture 1ímitatíons points up the signifícance of the regulatory agency, the ffC, responsible for administratíon and enforcement of the la¡¡. For example, ín 1976 somè thírty Ëo fifty mernbers of the staff of the Federal- ElecËi on Commissíon were involved in the process of certífying matchíng funds for Ëhe fifteen qualified presídentíal candídates. If 800 or more congressional candídates were to becomå elígibl-e for public funds, the adminístratíve burden on the FEC could become overwheluríng rrnless some ne\¡t procedures are devísed, or flat grants made. 5.926 provided fór a combined flat grant and matchÍng funds, a system designed to diurinish Èhe work load of the FEC qthil-e ensuring'candidates with early publíc funds ín states hoLding 1-ate primaries, Tn 1976 nine states had congressional primaries in August, sixteen in September, and one in October, Wíthout immediate iLat grar,ts upon nominatíon, candidates ín these states woutd be under tremen- dous straín to raise the money to quaLify for matching funds, to be certífíed by the FEC, and then Ëo collect matching funds before the November election. One alternatíve to a subsídy and to an enlanged role for the FEC ís a tax credít plan sponsored maín1y by Republícans but u'ith some DemocraËic suPPort. Ïn the Senate, the plan, which would have applied only to Senate campaigns, called for a 75 per cent tax credít on contríbutions up to $100 on a single return' $200 on a joÍnt return. The present alternative tax credít/tax deduction would remain in effect for other campaigns. The Senate Committee on Finance rePorted out the- bill favorably, buË íts próspects are considered even less líkely than those of congressíonal Public funding.¿u 11.

The PresidentÍal ExÞeríence Publíc funding of presldentlal general electlon campaigns r¿as fírst enacted by the Congress ln L966.2L That law provided for an íncome tax checkoff to supply funds to the natlonaL polltical parties to be spent on behalf of theÍr presidential candidates. The next year, the l"aw r,ras not repealed but rdas made inoperative, in part because the Congress belatedly recognized the power that would accrue to theparties¡ natíonal commíttees. These developments served the purpose of stimu- latíng thínkíng about the subject. Public fínancing was revived in the Revenue Act of 1971. This law províded funding dírectly to the presidential candidaËes, for the general election only. It re-established the income tax checkoff system, by whÍch every indivídual whose l"Íability for any cal-endar year nas $1- or more could designate on his federal íncome tax form that $1 of his tax money be paid to the Presídential- Election Campaign Fund; couples filíng joint returns could desÍgnate $2. This fund wouLd then distribute to Ëhe presÍdential candídate of each major party an amount equal to 1-5 cents uruLtiplied by the votíng-age population of the United States and adjusted for changes in the Consumer Príce Index-- $21.8 nillion in L976. In return, a major party candídate who accepted public fundÍng would be prohibíted fron accepting private campaign contributions. The L974 Anendments to the FECA extended the concept of publíc fínancing by authorfzing tlro nehr uses for the money raised from the tax checkoff. Both major party national couurÍttees couLd receive^up to $2.2 nilLíon to help pay the costs of the national nominatíng conventions.¿z And eligible candidaËes for presiden- tíal nomination couLd receive limited matching funds for pre-convention campaígn expenses. To qualify for the money, a candidate must first prove that he has raísed $5,000 in contributíons of $250 or less in each of twenty states. the government would then match the fírst $250 of every prívate contributíon to the candidate. A $10,9 mÍl1íon spendíng limít Ltas imposed on the pre-nomination period, so theoretícally a candidate could receive up Êo $5.S mittion in matching funds, Seven per cent of the taxpayers used the checkoff ín L972, in part because it r.¡as on a separate forn ínstead of being íncl-uded on the 1040 For¡n and r.¡as con- sequently overlooked by many taxpayers. The taxpayer response rose to 15 per cent in L973, and in the three tax years flom L974 to L976 it has been in the 24 to 27 per cent range. The 1evel of funding currently beíng provided is suffícient for financíng presidentíal campaígns, and the fund even had a comfortable $24^ million surplus after spending $ZZ urittion ín the 1976 presidentíal electíonlJ If pubLic funding of congressíonal campaígns is approved, however, ít is likely that after the first year of payouts, either the checkoff amount would have to be increased or dírect appropríations from the Ëreasury would have to be made, Changing from a four-year cycle to a tno-year congressíonal one would put consi- derable pressure on the checkoff sysËem at present levels of response, t'Ine L976 presÍdential election was the first to be conducted wíth public funds. During the pre-nomination period, fifteen candídates, thirteen of whom were Demo- crats, qual-ifíed for matching funds, although one never c1-aimed any. Thus twelve DemocratÍc and two Republican candidates for presídential nomination received ç24,3 míllion in publíc funds, In additÍon, the two major partíes each received about $2 rniL1íon to pay for their natíonaL nominating conventions. During the general electíon, the two major party candídates each received $21.8 rníll-ion. No minor party or índependent candídates quallfíed to receive any funds. As coul-d be ex- p""tâa with any new system, there r¡rere numerous problems that needed to be worked out as the campaign progressed. Nevertheless, certain tentative conclusions can be drawn concerning the effect of the laws on the campaígn and on the elections. t2.

As a result of the Buckley decision of January L976, the manner of appointment of members of the commisslon r¿as changed substantially. The FEC was in exís- tence onl-y nine months when the Supreme Court declared the method of its members selection unconstítutlonal; as an agency performing executive functions the separa- tion of posters doctrine was vloLated since some members were chogen by the legÍsla- tive branch. That meanË that the FEC could not carry out the executíve functions of enforcing the law or certifyfng matching fund payments to presÍdentíal candidates. Ttre Supreme Court originall-y gave the Congress 30 days ín which to reconstí- tuËe the FEC, then extended that for another 20 days when the Congress was slow ín acting. The reconsËítution took 1-1-1 days in al-l-, during 61 of ¡¡hích the FEC power to certify matching funds ttas suspended. President Ford requested a simple reconstitution, which he saíd he wouLd sign promptly in order to permit the FEC to contínue to operate through the presidenËial- prímaries, He warned agaínst be- coming bogged down ín other controversía1 changes. However, the Congress was faced with proposals for such changes, among them the extension of pubLíc funding to senatorial and congressíonaL campaigns, and revisions of law regardíng corporate, trade assocíation and labor PACs. The publ-ic funding extensÍon was defeated but the Congress undertook sígnificanË revisíons deaLing with compLiance and enforcement procedures, the íssuing of advísory opinions, and the role of PACs. Much del-ay occurred because the Congress \^Ias unable or unwÍLling to act promptly, Many of the issues were raísed ín the House by llayne Hays and \rere accepted by the Senate in joint conference r^rhí1e under increasing pressure Ëo act promptly. Some observers thought the de1-ay lras purposeful, desÍgned by Democratic leaders to help the nomínatíon prospects of Senator Hubert lfumphrey (who was not an active candidate but was thought by many to be a potential one if other candidates faíled) and to hurt certaín candÍdates actívely competing in the primaries- Repub- I-íean Senate leaders undertook their ovrn delays, thought to assist President Fordts prospects against hís chaLlenger, Ronal-d Reagan. The suspension of matchlng funds came at crucial tímes, forcíng candidates to re1-y whol1-y on prívate funds and loans duríng the Pennsylvania and Texas primaries, among other crucial ones. Both the Senate and the House inítía1-ly passed substantially different bíIls. A conference commíttee finaLly reached agreement on a substiÈute bilL. Intensíve lobbying had occurred with labor and busíness conflicting on the outcome of llouse provisions dealíng with corporate and labor PACs. But Congress by then was in spring recess and the presidential primary season in fuLl- sway. Key Senate Repub- licans deLayed ffnal approvaL of the conference conmittee report untí1 earl-y May; the final vote turned on the PAC provísions, which Republ-icans !üere unhappy with, and not on the reconstítuting of the Conmissíon. Ttre RepubLícans were critical of restríctíons on the fund-raising abil-íty of corporate política1 action cormittees. Cornpany committees coul-d seek contributions only from stockhoLders and executive and administratíve personneL and theír famíl-íes, Labor union poLítica1 action committees could soLicít contríbutíons only from union medbers and their famí1íes, Ilowever, t¡¡ice a year uníon and corporate po1-itical action commíttees are permitted to seek contributioræonly by mail from all employees they are not inítíally restricted to soliciting. A trade association or its ?AC could soLícit contributíons from stockholders and executive or administrative personnel or the assocíatíonts member corporations íf separately and specífically approved by the corporation; however, any corporation cannot approve any such solicítation by more than one trade assocíation in any calendar year. The 1aw also restricted the proliferation of membershíp-organizations and corporate and uníon political action committees. A1-1 polítical action committees established by a company or an international uníon are treated as a sÍngle comníttee for conÈribution purposes. The Republieans generally were rnollifíed by Democratíc explanations, although the corporate and trade assocíatíon cottttuníty remained dissatisfied, beLíeving the new l-aw was discriminatory and favored labor unions. 13.

Once the bill passed, the focus shifted to the l,trhite House, where President Ford took a week to sign it whíle the Nebraska primary was held. Ford refused to say he would sign the bill, whíle Ëhe other candidates sought his assurances he would sign it ín order to ease their ability to borrow money against the promise of later-cerËified matchíng funds, Ford pondered vetoing the 1976 Amendments, but reluctantly signed them on May 11, L976. One reservation he announced he had v¡as whether the provísions for a congressional veto of regulations \^¡as constitutional. Accordíngly, he instructed the Attorney General to ËesË the concept in the courts at his earlíest conveníence. Shortly thereafÈer, Ramsey C1ark, a former Attorney General, and a Ralph Nader^organization, Public Citizen LiËigation Group, filed suiË to test this quest ion,¿+ The delay at the l,¡hite House vras caused ín part by the resignation of FEC Chairman Thomas Curtis and Ëhe problems encountered in seekÍng a replacement. Sev- eral who \^rere approached begged off because they v¡ere not willing to take a reduc- tion ín income, or \rere uncertain about the future of the Commission given its stormy relations with the Congress. One potential appointee, tr{i11iam D. Ruckelshaus, r^rho had resígned as deputy attorney general during the'rSaturday night massacure," was reported wíl-ling on1-y íf he would be elected chairman of the FEC. A t^Ihite House effort to test out this possibility brought charges of political pressure. Finally, I^lilliam L, Springer, another former Congressman, r¡?as nominated, while Ëhe Michígan and Maryland presidentíal prímaríes passed, The Senate promptly reconfirmed the reappoínted Commissíoners, buË President Ford refused Ëo sr¡rear them in--on grounds that partisan balance at the FEC should be maintained--unLi1 confirmation hearings were held and Springer r¡as confirmed. Sínce the lar¡ requíres that decísions be bipartisan, and con¡nissÍoners are occas- ionally absent frorn votes anyr¡ray, the argument for partisan balance seemed to some an unnecessary delay, givíng candidates less tíme to use matching money effectively in the Oregon, Idaho, Nevada, Arkansas, KenËucky, Tennessee and subsequent primaries. Finally on May 2L, the Senate Rules CommíËtee held an hour-long hearing and sent Ëhe Sprínger nomínatíon to the SenaËe floor for quick confirmation. That afternoon the six commissioners $rere svrorn in by the President. lmmediately afterwards, the renewed FEC certífied $3,2 million due for various candídates and $1 míllion to the major party national eonventíons. The FEC staff had continued to process submis- síons for matching funds whíle certifications \^tere suspended, so the paperwork was completed and ready once the Commissionrs authority was restored. I^lheËher or not the delays were intentíonal, it be- eame clear that government funding can be used to Ehe advanËage of certain candidates, and the ground rules changed in rnid-campaÍgn, The slowness, however delí- berate, fírst by the House, then the Senate, and later by the President, had the effect of unfair tactícs on the candidates and gave the appearance of government manípulation in Ëhe ¡¡orking of a supposedly neutral program. Tt was not a promís- ing beginníng for the first year of operatíon of government funding; on the oËher hand, the Supreme CourË is not likely Ëo upset the smooth operatÍon of an elecËion law in míd-campaígn again. The eampaigns of Reagan, Jackson, Udall and Lrtallace, among oËhers, reached crises due to lack of available money, indicaËing their de- pendenee upon government funding. Carter and Reagan \dere able to borrow money and theír private fund raísíng conÈinued to be successful. Some of the others revised their schedules to make lime in order to phone potential donors, reduced staff or other expenses, and in some cases staffers wenË for weeks without pay. trIhen spend- íng in some primary states was reduced by some candidates, an impact was certain to be felt on the vote. L4.

Ttre Ford campaign ¡¡as relatÍvely heal-thy financiall-y throughout, and Reagan charged that President Ford benefítted from ínterest-free credit frorn the U.S. Goveinment, which bf11ed the campalgn later whil-e other candidates needed advance money before theír charter planes would fly. Ulti- mateiy the delays did not especial-ly help Ford. The effect on Fordrs campaign vras not cãrtaln, because Reagan went into debt Ín this períod of tíme yet won primaries in Texas, Iidíana, Georgía, and Al-abama, while Fordrs cash advantage was slowly dissípatÁd. The áelays díd not hurt Carter seriously, although he lost níne of the Lãst 14 primaríes in a wínning campaign for the nomination; given his momen- Ëum, prompt matchíng funds couLd have helped hirn ín these later prímaries. The suspension of executive functíons of the FEC was the third major gap in the appl-ícatÍon of certaín federal election Lar^¡s within a four year period: (1) Frour March L-Apri1 6, L972, when no transition period was provided from the time of the repeat òe tne Federal Corrupt PracËíces Act until the FECA of L97L becane ejffective on APril 7, L972; (2) From January l-April 1-4, L975, when the 1974 A¡nendments became effective on January 1 but there Ìras no functioning FEC to adminíster and enforce the law until Apríl 14, L975; (3) Frour March 22-May 2!, L976, ¡^rhen the FEC ¡¡as unabLe to carry out certain of its executive responsititities because it had not been reconstituted as required by the Suprene Court. This ís telling corffnentary on how carelessLy drafted election laws have been, or how lacking Ín uigency has been the fo1-1-ow-up--or possibly, how cleverly policy makers purposely encourage lapses in the operation of election lan¡s. Moreover, twÍce--in both L972 and L976--the rules of the game \^tere changed ín mid-campaign. Some had argued that government fundíng wouLd produce more candidates than usuaL. I{hile moie than 100 candidates fíled ttiËh the FEC, onLy 15 qualified for matching grants, A1L serious candídates organized their fund raising to achieve ear1y to receive government funds, and once qualífied, all accepted them,"lilififity president Ford considered not taking the money and going the private route' but soon t:;å::i":: f;"årt;i*.ilå¡n.;:""11ffåå;es wirh onlv a regíonal base, such as Jimny Carter, wouLd have diffículty qualifying for matching funds; but he, along v¡ith otirer sectional candídates, readily qualified by tying theír fund raising ínto existíng organízations or networks of peopLe, Qualifying for the matching grants meant ttã tin¿ of License to practicert in the bíg time, as former Governor Terry San- ford of North CaroLina and a 1976 Democratíc hopeful, expressed ít.25 Thís has be- corrp a new threshold, a screening process, for presidential candidates, and certainly wiLl hurt some future candídates. ' Of those who received governmenË funds, some campaígns were undoubtedly pro- longed as a resul-t of the additionaL money availabLe, with the candidates hanging on lorrg", than they night have othervise, in order Ëo get Ëhe money' One candidate surprí-ed observers by quaLifying easily. Ttrat r,¡as ELlen McCormack, who ran essen- tiaiLy a singLe-issue cänpaign, ãs a Ríght to Life, anËi-abortion candidate. Mrs. McCormack qras a po1-íticaL-,rnLoomt who was able to quaLify be_ca1se the íssue she represented was än emotíonaL one which had adherents ín sufficíent members of states, h"r campaign to atËract attention to her cause rather than to nominate her was well"rrå organized to reach them. Despite government funding, seven candídates--Sanford, Bentsen, Bayh, Shapp, Harrís, Sackson, and Shriver--dropped out by míd-prirnary season when they faíled 15. to garner enough votes in several states to be able to continue to contesË effectively, However, several of these remained in Ëhe contest as a favorite son or to keep theÍr options open for a time, drawing additional fundíng to the extent they were able to raise more money for matchíng, although no longer active candidates; matching funds also were used to help pay off debts ineurred ín the cam- paígn. Then, the 1976 Anendments effectívely cut off further funding for them. Candidates l¡ho faíl to make good showings ín the voting in the presidentíal primaries then find it harder to raíse money, thus reducíng the maËching funds, and so the cycle leading to withdrawl from the race begíns. One clear concLusion is that the combinatíon of contribution limits and gov- ernmenü funding Íncreased the costs of fund raísíng. The effort to outreach successfully is expensíve, especial-ly in matchable sums of $250 or under, According- ly, fund-raising costs v¡ere proportionally hígher than ín previous campaigns where contribuËíons could be solicited in larger amounts. Bookkeeping costs also rrere hígh, partly to ensure compliance with the disclosure and Limitations sections of the 1aw, partly for preparation of claims submiËted for matching funds under procedures requíred by the FEC. The most imporËant effect of the public financing system, symbolízed by the success of Jinrrry Carter, lvas the equalized chance it províded to qualified but 1ittle-known ouËsÍders to compete effectively. Lacking access to tradiËíonal sources of large Democratíc contributíons, wiËhout publíc funding CarËer probably would have Lost out early ín the primary season to those candÍdates, such as Sena- tor Henry Jackson, who enjoyed such aecess, But the combination of campaign contribution limits, which lowered the advantage large contributors could provide, and matching funds, which enhanced the value of small- contributions, had an equalizing effect, Publíc funding allowed a I'Iashíngton outsider, a regíonal candidate, to break into the fíeld and establish his candidacy. In terms of the candidate spending líníts in the presidentíal pre-nomination period, the $10.9 mil-líon anount lras not suffícíent in the hotly-contested cam- paígns for Republícan nomination, Both Presídent Ford and Governor Reagan cut back spending in the late primaries and over the summer in order Ëo conserve money for anticipated high spending at the Repubtican convenËíon. l{hen spending at the convention Íras unexpectedly low, boËh candidates had surpluses, but that is no reason to belíeve they could not have spenË more had iË been allowed. Reagan, ín fact, failed to contest heavily ín the Ohio prímary ín order to conserve money, and was sorry later. Both candidates could have raísed more money and planned to spend ít effectively. If spending limits are provided, they shouLd be generously high to accomodate closely-contested races, whether for nomination or for election. Both raajor-party nominees, Jinuny Carter and Gerald Ford, accepted publíc grants of $21-.8 millíon for their general election campaígns and were therefore ineligible to accept additional" prívaËe money. The national comnittees of the partíes couLd spend an addítional $3.2 million on behalf of the presidentíal candidates. ALthough the sysËem r¡orked smoothly, it was apparent that the grants r¿ere set at a low level. By way of contrasÈ, the L9T2McÊovern and Nixon general elecËíon campaigns had spent $30 million and $60 mí1Lion,26 respectively, and there lras a 33 per cent ínflation factor between L972 and 1976. The campaígns responded by channelíng a large proportion of their money into mass-medía advertisíng, the most cost-effective rray to reach large audíences, and very little ínto the kínds of field operations and campaígn paraphernalia that touch voters dírectly. The Carter campaign, for example, budgeted $285,000 Ëo be spent in Californía, exclu- sive of media, compared to the $1.5 rni11íon spent ín the state by George McGovern Ln 1972. The result of simílarly tight budgeting in other states by both candidates q/as a substantial decrease ín campaign actívity, lower campaign exPosure, and press reports throughout the entire campaign períod descríbing public apathy and predicting record-low voter turnouts, which did resulË. 16.

The experience in Èhe close electíon between President Carter and former President Ford calls for higher expenditure limits, Nelther couLd mount exten- slve grass-roots campaigns ln the states wíth the amounts of money provided in 1976i even the t\,ro cents per eLigibLe voter formula for spending within states for the presldential general election, which Carterrs message and S.926 both proposed, wfll not provide enough for mountíng serious stateïride campaigns ln rnany states. Accordingly, the amount shouLd be increased to permlt state affil- íates to undertake the necessary grass-roots campalgning to attract locaL volunteers, to províde them with píns, posters, and bumper stickers necessary for them to mounË an enÈhusíastic campaígn and to aËtract potentíal voters to register and to vote. It ís ínconsÍstent to stress voter regístration but to limit candídates from spending money to índuce voters to go to the poll_s, The presídential debates r¡tere another factor. VJhatever their ínpact, the debates were extra-Lega1, gívíng the candídates inunense exposure to the electorate not contemplated by the law, and thus must be considered an evasion of the expen- díture f-imits, Also the debates clearl-y díscriminaËed against minor party and independent candidates. Of course, the debates were sanctíoned by Congress, the Federal Cormunications Couunission, the FederaL ELection Commíssíon, a federal district judge, a federal court of appeals and the U.S. Supreme Court. Nevertheless they raíse serious íssues about the regulation of presÍdentiaL eLections. Fírst, they benefit the two major parties at the expense of other organized polítical- entítÍes ín the counËry, Second, they point up the probLem of usíng ceil-íngs rather than floors ín regulating campaígn expendítures. I^Iith 1ímitations on expenditures it is essential that candidates not go over the al-Located maximum. They and their supporters have incentíves to seek ways of receívíng assístance Ín a manner which wiLl not be counted agaínst their totals. The debates produced a similar outcome, êX- posure not counted agaínst the limits, thus makíng the limits less than controlling. FLoors without ceí1ings, often advocated by political scientists, would be geared to provide a suffícíent leve1 of government funds to ensure effective access of the candidates to the electorate. Beyond that level, candÍdates would be free to spend as much prívate money as Ëhey could raise. This concept is accepted in mature democracies around the wor1d, although in these countríes money ís provided to the polítical parties and not directly to candidates. In the Uníted States, however, the concept of floors has not been widel-y advanced. Proponents apparently believe that legislators in Congress or in the states would not enact government funding íf they fel-t that tax dollars rrere merely being thrown on top of un- limíted private dollars, thus.raisíng Éhe ante for election campaigning.

The ríght of citizens to gfve money Ëo presidential eandidates in the general eLection períod meshes with the expenditure limft problem, SoLicíting contributions attunes one to the diversity of constituents and in the process hetrps to make eLected officials more responsive. ïf spendÍng linits are retaíned, consideration shoul-d be given to raisíng thern for the general el-ecËion period and extending the maËching fund formula now ín use before the natíonal conventions, so at no exËra tax dollars, cítízens would be able to contribute to the presidentíal nominee of their choíce. The eligibilíty requíremenËs might be somer¡haË different than the 20 state formula used in presidenÈial pre-nomination campaigns, ín order to deal faírly r,¡íth mÍnor parËíes. The provísí,ons in the law now for mínor party or independent presidential candídaËes are unfaír, despíte the Supreme Court decísion which ín- víted further LÍtigatíon íf damage can be shor¿n. The law should províde for the avaíLabiLity of publíc funds before, not after, Ëhe electíon campaign ís over, L7.

FEC Appointments The post-Vietnam-ltatergate style of the Congress seeking to be more influ- ential ín policy making has extended itself into the selection of FEC Conmíssioners despíte the Bug4lev decísion whích requires that the President appoint all síx coumíssioners.¿/ Presídent Carterrs first Democratic nominee, John McGarry, ra¡as suggested by Speaker OrNeill and accepted by the President everi though OrNeÍll already had chosen another Coumissioner, Robert Tiernan, r^rhen the House chose tv¡o of the orígína1 Comnissíoners, McGarry, if confirned, would replace an original presídential appointee, Neil Staebler, tÍpping the balance toward more congressional influence over the FEC. McGarry was chosen only after an earlier l{hite House favorite, Susan King, was dropped following criticísm by OrNeí11 and House Majority tr{hip John Brademas that she lras a "do-good, Corunon Cause type," Common Cause sought and played only a smalL role, suggestíng to Ëhe President several nanìes including King, but not persistíng ín trying to ínfluence the outcome until a belated letter was sent to him opposíng the choice of McGarry. The historical lack of follow-through by reformers was evídent; after a masterful job of l¡orking for a strict and comprehensive law, Conmon Cause has paid relatively LíttLe attention to the operation of the FEC, fiLíng one major complaint against AI.{PAC but not pursuíng a day-to-day watchdog role. Of course, Comnon Cause has contínued to work for congressional pubLic financing, and in Ëhat quest needs the help of OtNeíll, The lühite House aetíon ín deferring to Speaker OrNeill in the choíce of a Democratic commÍssíoner did not extend to gíving similar choícé to the Republican congressional- leadership ín makíng an appoíntment of a RepubLícan commissioner. According to the Republicans, President Carter promísed to name a coruníssioner from a 1ísË to be submítted by Senator Howard H. Baker and RepresentaËive John J. Rhodes. The Republícans offered tv¡o names, neíther acceptable to Carter who said his choíce would have to be a Republican who favored public financing of congressional electíons. Baker and Rhodes complaíned that public fínancing hras controversial and that Carter was Ímposing addítional- conditíons on the nominatíon. Car- ter asked for new names, and one \^ras suggested but also Ì¡as unacceptable. After long delays, Carter then appointed SamueLD, Zagoría, a moderate Republican with labor support, whích actíon Baker and Rhodes called |tdeepl-y troubLingrtr ZagorLa then discl-aÍured support for eongreqsional pubLic financing, declaríng the White House never asked his opiníon. He charged the press with gívíng him arrbum.rap" for sayíng he was for ít when he had not taken a positíon regarding it and does noË íntend to compromíse himself on future judgments,¿o But that would seem to eontradict Carterrs statements that he would onLy appoint supporters of public funding and the rest of the election laws, The proposed combination of three Democratic commissioners, íncluding McGarry, consídered favorabLe to labor, plus Zagoría, unsettl-ed both the Republican leadership and the corporate PAC comrrunÍty, who fear the appointments porËend undue labor influence in the r¿ork of the FlC, The present chairman of Ëhe FEC, Thomas E. Harris, a Democrat, is a former associaÈe general counsel of the AFL-CIO, which adds to Ëhe Republican dístrust. Of course, congressional Republicans and Democratic presidents traditlonally have had arguments over who should decide federal appoíntments of op- posiËion members. But the FEC is politically sensítive and requires balance, espec- ia1ly since the Commissíon regulates corporate and trade associatíon PACs, a risíng factor in natíonal polítics, Zagotia would replace !lí11íam Springer, who President Ford nomínated on short notice to reconstitute the FEC. 18.

The Zagoria controversy Ís one that cannot enhance the authoríty or sta- bílity of the FEC. Some Democrats ínterpreted the Zagoria incident âs a squabble between maínstream and Liberal Republicans. Republican Senators.Clifford Case, Charles Mathias, and former Senator John Sherman Cooper supported Zagoríu firmation hearings, while Republican Congressmen John Rhodes, I^Iilliam Frenzel"t "árr- and Vander Jagt opposed hírn. SenaÊor Baker attacked Carter for going back on hís word, but Left hís optíons open since he is Mlnority Leader of ait Sãnate Repub- licans, including Case and Mathias. Some 127 Republican House members sígneà a letter critícizing President Carter for appointing Zagoria ¡¡íthout the active particÍpatíon of the Republícan party leadership. The incídent needs to be considered ín broader perspective. If the FEC is to survíve and be effective, it requíres good faith and strong bipartisan support. Ihe way to achieve those ís by Democrats working together with nepublícans, oot by unílatera1 presídential aetion that affronts the Republican leãdershíp. Repub- licans have held up the confírmatÍon of both McGarry and Zagoria, and duã to a procedural rule in the Senate, the President must make the appointments again in the second sessíon of the 95th Congress. By the time the Senate confirm", tt,e nenr commíssioners wil-l take their seats nearly a year afüer they becanrc open on April 30, L976. Ilhile Staebler and Springer Ìrere former congressmen, McGarry and Zagoría had workÍng careers on Capitol Hil1, continuing to exËend the congressional ín- fluence on the FEC. Carter faiLed to appoint a non-congressíonal type. A reform- mínded President, Carter, deferred to a practiËíoner of old school pólitics, OtNei1L, because Carter needs OtNeÍl-1 more than he needs an independent cormís- sioner. Some thought that Carter also deferred to labor ín the Zagoria appoint- mgnt. Lip-service is paíd to an Índependent cornnission, but independents wíthout tíes to major ínterests do noË get appoínted,

The FEC I,Ihile recognizíng the need for an evenhanded approach at a time of widespread cynícísm about the electoral process, the FEC nevertheless has had a stormy begín- ning. As a result of the BuckLey v, Valeo decísion, the manner of appofntment of members of the commission had to be changed. The FEC drew fíre within months of íts foundíng from certain members of Con- gress who were not pleased wÍth the commissionrs early operations or its ínÍtíg[ decísions. The first two regulatíons the FEC ïrrote were rejected by Congress." The congressional attack on the proposed regulatíons r.ras evídence of the particular problems buiLt into the structure and functioníng of the agency. The orí- gínal method of appointment of íts members, with four appoínted by the legisLatíve branch, Ìüas desígned to ensure congressional domínance. Of the six original appoín- tees, four were former members of the House of Representatives, tending to reínforce the congressional" ínfluence. Thís eased their conformatíon by a majority of both houses, ín itself an unusual procedure. FoLlowíng the Bucklev decísion, the procedure was changed by the Congress in the 1976 Amendments to conform to the usual practice of presídential nomination and senatoríal confírmation. Because the FEC has the poÌ¡er to regulate congresslonal campaigns, the poten- tÍal conflíct between the new commíssionerst experíence and their friendships on Capítol Híll and theír need for impartial- handlíng of congressional elections was apparent. In order to achieve credibiLity as an independent agency, there was a clear need to establish the FECrs índependence from the Congress it was ín part es- tablíshed to regulate. Some members of Congress, ít turned out, did not wanË the FEC to be very independent where congressional electíons were concerned. The proposed regulations, advisory opínions and procedures touched the daíly lives of members, whether campaígning or not, in ways some found objectíonable and others considered outside the courmÍssíon's provÍnce. L9.

Another problem was that the regul-ations the FEC wrote had to be submitted to Congress aLong with an explanacion and justíficatíon. If neither the Senate nor the House disapproved by a formal vote withín 30 rtlegíslatíve" days (days each house Íe ín session),the cormission could preseribe such regu- latíon, and ít r^rould have the force of law. Both the method of partial congressional appoíntment and the review of its regulations Ttere unusual and tended to threaten the independence of the FEC. Of course, FEC funds are appropriated by Congress, another pressure point. The Congress has retaliated or moved against Ëhe Commíssion in every íuraginable vray ín iËs two-and-a-ha1f year history: by real and threatened budget cuts, by re- strúcting its statutory poÌter, by curtailíng its discretionary povrer, by urgíng certain staff appoíntments, by threats and by persuasíon. To flesh out and clarify various aspects of the FECA, the Comuríssion sent íts fírst proposed regulatíons to Congress ín December, l-975 and January, Lgl6, Because the Supreme Courtls decisíon in BuckLev suspended the Comríssionrs rule- naking authority, these proposed regulations couLd noË be implemented. The FEC began redraftíng portions of the orÍginal regulations to conform to the Court de- císíon, and as the shape of the 1976 Amendments seemed clear, to incorporate them Ínto the regulations. CongressíonaL Expense Accounts. In íts ínÍtia1 proposed regulation, on congressíona1 expense funds, the FEC, whether intentionally or not, served to alert Congress to the pohler whích the new agency could claím and to how that Povter míght be perceived by some members to be directed at tímes agaínst them or agaínst tradítíonal pracÈices they do not r¡ant discontínued. This regula- tíon was submitted to Congress in July 1975 and dealt r¿ith the so-called rfoffíce slush fundsrrmaintaíned by some members. It required that they be discLosed aË regular intervals and made them subject to the then-new Límítatíons on political contríbutíons and expendítures. The funds in questíon, forrnally known asrrconstituent servíce fundsr" r"- ually come from eontríbutions made outside the campaign framework. They are used to supplement funds provided by the government to pay for day-to-day opera- tíons of congressional offices. These'roffÍce fundsrtare used for such items as ner¡Tsletters, travel back home and office expenses beyond Ëhose authorized by Congress. Not enough money ís provÍded by the government to meet the perceíved needs of some members, so they pay for them out of theír or^rn pockets, íf person- ally able, or by raising specíal funds. There Ís a legitimate questíon as to whether so-called representational expenses are sufficient in some cases, and the wave of congressíonaL reform ín Ëhe 95th Congress has been sweetened by some additional funds and perquÍsites, In íts proposed reguLation, the FEC heLd thaË funds raised independently of those authorizedrtshould be viewed as pol-ítícal and not legislaËive iunds,"30." quíring dísclosure ín quarterly campaign fínance reports. Even more conËrover- sial was the requírement that contríbutions and spendíng from the accounts be treated as campaígn funds under the limítations set by law for Ëhe next electíon of the member maintaínÍng the fund. Congressional reactíon was immediate and íncLuded threats to veto the rulíng. The Senate subsequentl-y did veto the proposed regulatíon, by a one-vote margin (48'47), with many senators reluctant to appear to be voting in favor of 'rslush funds.'r Apparently, some senators voted wíth the FEC only because they knew theír votes were not needed to defeat the measure, None of the t976 presídential con- tenders then ín the Senate voted against the FEC regulatíon, 20,

A compromise proposal, whlch woul-d treat the funds as political only ín electlon years and also would incl-ude comparable funds used by congressional challengers as weLl as by the President and Vice Presídent, tlas then worked out wíth Senate leaders. It ran ínto sharp oppositíon, horever, ln the House Administration Cosmittee headed by l.rlayne Hays of Ohlo. Ttre Supreme Court ruL- ing that expenditure liníts Ìrere unconstÍtutional effectively removed that problem from the proposed regulation and caused its consideration to be suspended untíl the Federal Electíon Cormission was reconstituted. Even after the reconstitution, the fourth draft of the regulation was changed under pressure from some members of Congress, At congressional insís- tence, the FEC deleted from the proposed regulations a $1OO Linit on cash con- tríbutions. Sínce the election 1aw set that linit on cash campaÍgn contríbu- tíons, the change put congressíonaL office funding on a different basis. Simi- LarLy, the FEC retreated on Íts position that office account reports shouLd be filed as attachments to campaígn fund reports. Legisl-ators objected that to do so wouLd give the appearance that these funds represented canpaígn money' and they ínsísted on maintainíng a dístínction. The exPense accounË reports lsere required once each year--on January 31--but ín election years, quarÊerly reports rùere requíred. The proposed regulatíon hras prepared in response to a large number of requests from menbers of Congress asking whether their office accounts were subject to the limÍtations in the law. It proved to be an unfortunate tacËic for the FEC to seek to reguLåte a congressional- custom before writing basic regu- Latíons dealing with the substance of the 14trt, thaË ís, disclosure, límítations and government funding, The effort was bound to cause controversy. Yet the FEC was respondíng to many requests for advísory opinions on many subjects' some of the margínal-, but.some from members of Congress who were persistent in seeking quíck ansïrers. Basic reguLations ltere gíven lesser prioríty. Poínt of Entrv. Members of Congress also attacked the second pr_oposed FEC regulatÍon,-whíctr was more basíc to the Lar¡ than the office fund regulaËion. Thã proposád poÍnt of entry reguLatíon reguíred thaË originals of all candidate and lolitical comrníttee fund reports be fíLed first with the FEC; then the FEC would provide mÍcrofilm copíes of the reporËs to the Secretary of the Senate and thã Clerk of the House wíthin two working days, Such a system would have provided more effective discLosure under efficient procedures, but ít ¡¡as re- lected by the House. Under the L971 law, Ëhere Ìrere three supervisory offícers, ãach indêpendent of the other. The 1974 Amendments faiLed to specífy c1-earLy the role ãf tne Secretary and the Clerk in reLation to the FEC, but Ëhe law seemed to require an arrangement whereby candídates for the Senate and their cormrittees wóu1d continue to fíLe wiËh the Secretary, candidates for the llouse and thefr eomnittees wouLd continue to file wíth the Clerk, and candidates for president and Více President and their conrníttees as weLL as multÍ-candidaËe (party or specíal ínterest or íssue) coumrittees would fiLe wíth the FEC. Clearly, the Sâcretary and Ëhe CLerk had to provide copies of fiLed reports to the FEC, whÍch was responsible for admínístering and enforcing the Law. The proposed regulatíon ínterpreted the Law broadLy, buË ít was considered desirable to make Lt possíble for candidates or committees to fíle all reports at a síngle address and to reduce costs of photocopyíng and postage for committees supporting candidates for more than one federal office. 21.

The inítia1 point of entry regulaLion met with the approval of the SenaLe but not the House, Representative Hays argued that the law as ít then stood sufficed and that the Clerk of the House I'ought not Ëo have a whole bunch of people handling these Papers before they get to him.tt3l The presumed Prero- gatíve of the House to receive the reports fírst vlas argued for two reasons: (1) The U.S. Constítution states that each house is the judge of its o!¡n membership, and hence custody of the oríginal reports sras essentíal in case any guestíons of contested elections or of unethical behavior in fund raising or spending arose t (2) some members checked their disclosure filíngs with personnel in the Offíce of the Clerk of the House before filing verifíed reports, and they r¡ere concerned that the FEC would not provide the sane service to help them to avoid possible violations of l-ar¿. The seeond reason was more important in the rejection voÉe because assurances had been made when the House r¡as debating the 1974 Amendments that the l-eadershíp woul-d guaranËee that the original fílings would continue to be with the House Clerk. RelucËantly, the FEC bor,red before the opposiLion and revised its proposal on filing reports--reversing the procedure so that candidates filed fírst v¡íth the Clerk and the Secretary, rrho then passed on copies to the FEC. However, this proposed regulation aLso was deferred until after the FEC was reconsËi- tuted. The FEC ãhaírman, Thomas B. Curtis, said the change would produce'radded cost and confus ion.trJ¿ Clearly, sogÉ of the early criticism of the FEC by Congress was unjustified. Some FEC decisíons r¿ere ineviËable and merely implemented a 1aw that tras complex and in part badly drafted. The problem for the FEC r¡as to treat Congress at armrs lãngth to ensure its own independence while being responsíve Ëo Congresst oversight auËhority The regulations that had been rejected by Congress were rewrítten, and aLong ,¿ith ãne on disclosure, had been cleared by Congress but not issued when the Supreme CourË released its Buckley decísion, I,lhiLe Congress rewrote the Iaw to reconstitute the commission, three other proposed regulations thaË had been prepared l¡ere not submitËed, and hearings on one other llere eancel-led. Thus, the FEC was in operation for more than a year r^rithouË a single regulation ín force. The períod was extended Ëo two years, as wí1L be sho¡,¡n. A few days after the commission !üas reconsËítuted in May 1976, ten sets of draft regula- Ëions were publíshed for publíc commenË. These incorporated provisions based on the 1976 Amendments, During Lg77, each House of Congress adopted Codes of Conduct which include controls over office accounts whích are comparabLe ín stringency to those init- ia1-Ly proposed by the FEC, But the point-of-entry problem has not been resolved in favor of the FBC. Once the FEC had been reconstítuted, Ëhe sËaff presented its proposals to Ëhe Commission. The regulatíons were published ín the &d.ral Regíster on May 26, Lg76, for public conunenË. The Commíssion then held public hearings' and written coÍments trere receíved from the public. After the Conunission had ten- tatively approved the regulations, its staff met rvith 1-egislators and congres- s.ional staffers. These meetíngs were designed Ëo reduce congressional hostility to the proposals and to inform the Commissíon of congressíonal- desire to get certain chãngãs made in Ëhe regulatíons. The regulaEions hrere approved by the Com- mission in their final form and sent to Congress on August 3, L976. 22,

Once the regulatlons rtere submitted, the question was not whether they were acceptable but whether Congress woul-d remain in sessíon the 30 "legisla- tiverr days required.for them to go into effect. At thís poinÈ there tras some congressional concern that any tinkering with the proposed regulation prlor to the election couLd endanger the legislatÍve veto power that had been chal-- lenged in court by Ransey Clark and Ralph Naderrs publíc interest law group, As the Congress neared íts earl-y acljournment ín tÍme to campaign, Corunis- síon members nade a last-mÍnute appeal- to congressional- Leaders to schedule pro forma sessions so that the regulations couLd go ínto effecË for the l-976 eLection. This effort had the support of Frank, Thompson. But íË failed when Congress adjourned on October 1, two legisLatíve days short of the 30-day requirement. Duríng this period a complicatÍon had devel-oped with re- specË to a provísion of Ëhe regulations whích banned a reverse checkoff to raise polítical funds, a procedure heavíly used by the NationaL Education Assoc- iation. The NEA engaged in intensive Lobbying efforts to deLay congressionaL action on the proposed regulations containing the ban. Ilhile Ëherè were deníals Ëhat this was the reason for Ëhe postponement once again in nlaking the reguLa- tíons effective, Ít cLearLy was a contributíng factor íllustratíng the poLiti- cal maneuvering invoLved ín the rel-atíonships betq¡een the FEC, the Congress, and interesË groups. The NEA continued Ëo use the disputed negative checkoff sysÈem during the generaL eLectíon perÍod.. This Left the regulations ín lÍmbo, but the Conunissíon on October 5 íssued a po1-icy statement on the status of the regulatíons, Anong other thíngs the statement declared: This announcment provides notíce to aLL affected parties that the Commíssíon íntends to adminíster the Act in a fashion which implements the interpretaÊíons set forth in the proposed regula- Ëions. ALl- persons subject to the AcÈ shouLd aecordíngLy compLy fully with the reguirements of the FEC regul-atíons during the L976 eLections. the FEC reguLaËíons should be looked upon as interpre- tative rules under traditional concepts of administrative lal¡ and should be_taken as an authoriËative guíde as Ëo how Èhe eLectíon laws aPPlv ' . .33' On January 11, L977 the Commíssion resubmitted the regulations with t¡ro mínor changes. These required more adequate record-keepíng of campaign expenditures and alLowed corporations and Labor organizations to distribute nonpartisan regÍs- tration or votíng information to the general pubLic. March 29 narked the Ëhír- tieth Legislative day and in the interim no provisíon had been vetoed by either house. On April 13, L977 tlr.e Commission offícÍally promulgated the regulations. Thus 16 months after the fírsË version of Ëhe regulations had been submitted, fÍfteen months after the Suprene Court had suspended the Courrrissionts executive po$rer, eleven months after tlæ agency had been reeonstituted and the regulations had been published in the Federal $9gþ!g., and nine months after they had been submítted to Congress in nearly fínal form, the regulations went into effect. Thís sequence of events is tellíng conmentary about the Cosmíssion and íts rela- tionshÍps wíth the Congress. It took al-most two years from the time of the establíshment of the FEC to the effectÍve date of its regulations, a períod span- níng the 1976 elections. Duríng L977, whiLe the resubmitted regul-ations r^rere before the Congress, the negative checkoff plan continued to generate much debate, Most of the members of the House Admínístratíon CommitËee favored the NEA payroll-deduction plan but expressed deep concern that any veto of a FEC reguLation míght bríng about a con- stítutional court test of the one-house legislative veto power. In this spírit, the conrníttee in a meetíng March 17, L977 passed by a voice voËe the foll-owing resolut ion:34 23.

Resolved: that the House Administratíon Coumittee by not reporting out a resolution specificalLy disapproving the proposed FEC reguLation LI4.5 does noË intend that thls be ínter- preted in any way as endorsing or not endorsÍng any specífic enforcement action by the FEC against any specific organízation(s) and further that these proposed regulations do not in any rnTay change or modífy the appLicable 1aw. This incident demonstrated the tenacíty r.rith which the Congress seeks Ëo retain the one house veto. It íl-l-ustrates deference to a strong interest group, In 5.926, passed by the Senate ín August 1977, the Legisl,atíve veto period was reduced from 30 to 20 legíslative days, but only wíth respect to the presidential public financing provísíons of the 1aw. Advisorv Opínions Duríng 1976 tlne Comnissíon's authority and functíon wÍth respect to render- íng Advísory Opínions (AOs), Opiníons of Counsel, and ínformal legal Informational LetËers were substantially affected by both the Uníted SËates Supreme CourË decision ín Bucklqy v. VaLeo and the 1-976 Amendments to the Federal Election Cam- paign A"t,F PrÍor to the Supreme Court decision, Éhe Couuníssion íssued bínding AdvÍsory Opinions, and the General Counsel also issued Opínions of Counsel. I,Iith the Bucklev decísion, however, and the Supreme Courtts Ëemporary invalidation of many of the Corrmissionfs powers including the pohrer to íssue Advisory Opinions, the Conuníssion ceased íssuing Advisory Opinions. Instead, the Ccumíssion issued only opiníons of counsel in areas prevíousLy covered by AOs. No neÌJ ground was broken and OCs also were stopped after March 22, when the Supreme Court stays were termínated. The FEC undertook eval-uation of all regulatíons and AOs follow- íng the Supreme Court decísion and began Êo elimínate those dealing with limitations declared unconstÍtutíonaL by the court. It also began to revise others deaLíng with disclosure or public funding and related límiÊs no longer effective. Many of the AOs were crÍticízed by practitíoners and scholars for being narro\¡, and legalÍstíc, for inflexíbly following the rigÍditíes in the law and for faiLing to relax some possibl-y unconstitutional provisíons of the law, trltren Congress re\,rrote Êhe larn in L976, it set new standards in writing advisory opínions, stipulaËíng that the FEC cannoË issue rules of general applicabílíty but must apply AOs only to a specífic facts presented ín a re- quesË. .Any rules of general appLÍcabí1ity \¡rere reguíred to be incorporated into regulations, whích then were subject to congressíonal- dísapproval.36 But the Commissíon ítseLf \,¡as to determine how broadly or narrowly to interpret the 1aw, The need for Advisory Opinions continued as neúr requests r¡ere submítted after the enaetment of the L976 Amendments. The Commissíon responded Ëo these requests in two ways. Formal Advísory Opinions \¡rere issued where applicable Ëo factual situations. In other eases, Responses Ëo Advisory Opínions (Re:AORs) were gÍven, clearly stating that they qrere responses based on proposed regula- tíons rather than constítuting formal Advisory Opiníons. I{híle the Advisory Opíníons carried wíth them the full protections and iuununÍties granted by the law, the Conrrissionfs Responses to Advisory Opinion Requests, which ínvolved relíance on proposed regulaËions, did not afford the requesting person, or others símiLar1y situatíon, the same protectíon gíven in connection with an AO. 24.

Coumentary. Adnfttedly thís is an imperfect world, and methods of mea- suring impact are dífficult to construcË, but the FEC should pay more aüten- tion to impact ín terms of how the l-aw, the regulations and the advisory opinions affect citizen participation, the recruiËment of candidates, the two- party system, group activity and constitutional rights. TÍme spent on differ- entíatlng between good íntent and bad effect is time weLl spenÊ. It Ís desirabLe to establish measures to evaluaËe on a continuing basis the poLítíca1 effecËs of the regulations and of the advísory opinions. The FEC uqdertook an etaborate study of the impact of the law on the L976 elec- tionsfTf.tt this was a one-tíme ät,ray, Coniínuíng efforts in the directíon of constructíve critícísm and rneasurement of impact are needed because know- ledge of the dírect operational consequences of many of its action are lacking, Sometimes there Ís inmedíate feedback r,lhen a particular regulation is not welL-receíved and proËest letters and caLLs are forthcoming. SomeËimes the staff may detect practitíoner dífficuLty in complying, especially when numerous fauLty filings are received. But there is no systematic effort to monítor how a gíven reguLatíon is working in practice.

Enforcement the muLtiple roles. of the FEC are leading Ëo a controversy regarding enforcement posrers. A U.S. District Judge has ruLed that the Department of Jus- tice has unl-Ímited authority to prcsecute crímínal violatigns of the FECA regardless of r.¡heËher the FEC has iroceeded wíth an action.38 The Justice Depart- nrent claíms that Íts índependent prosecutorial authority extends to cases where the FEC has not investigated, or has investigaËed and declined to prosecute, or has treated Ëhe vioLation as a cívil- matter. Some House leaders prefer FEC to Justice jurisdíctlon, and congressíonaL attempts may be made to overturn the court ts decísion, Other enforcemênt problems have developed. The law requires the Conurission to endeavor to correct or prevent certaín alleged viol-atíons by ínformal meËhods of conference, concíl-iation and persuasion, and to enter ínto conciliaËíon agree- ments. Enforcement and compliance actions are confidentíaL while in process. Some complaínÈs and actions have been on the books for more than a year, although many have been disposed of. In one case, U.S. DisËríct Judge ordered the FEC to âecíde wíthin 30 days wheËher a víoLation of law had occurred. The judge crí- ticized the FEC for faÍlíng to aet Ìrithin a 90-day period slipulated by the FECA. The FEC claimed ít had taken steps Ëhat consËituted acËion, ¡^rhereas the judge ínterpreted the law to demand fíàal action rn¡Íthin 90 days.39 In bringíng civil suits against non-fiLers, FEC acËions have disturbed some federaL courts, which do not srant to deaL with such minimal cases . One federal .iudge fined a non-fíler $1, and several others were fined $100, hardly severe iettãttie".4O Now the FEC wilL not fil-e more than one such suit in each circuit åt a time. Apart from these cases, Ëhe other major enforcement actions of the FEC has been à $5OO fine of a corporaËion,4l those connected with the i1-1egaL receipt of pubLic funds by the Shapp campaígn.a¿"Î9 The Conmission has roles as judge and jury, adminístrator, prosecutot, ell- forcer and magistrate. The lnternal tensíons in these roles are obvíous, and 1egislatíve cÍarífications of some of these roles no doubt r¡ill continue to be made, just as the L976 Amendments sought. 25.

Aud íts In the year sínce the L976 electíons, the House leadership has criticized the FEC several times regardíng its audlt poLicy under whích 44 incumbent congressmen and their opponents were subjected to audít, The audíts \¡rere chosen on a random basis, and were not, as some House members wanted, done only for probable cause, Audited Senators are not knorrn to have objected, and the Sen- ate, ín S,926, would expand FEC power specifically to permit ttrandom audits'r beyond the present poÌrer rrto make from tíme to time audits and fieLd ínvesti- gatíons " At an October L3, 1977 hearing before the House Admínistration Con¡níttee, committee members questioned the FEC chaírmanrrfhomas E. Harris, persístent1y, threatening to change the 1aw if necessary.-' Objections íncluded the fact that the FEC was sLow in dísposing of compLaints and investigations; that only four presidential pre-nomination audits had been released 1,4 months after the 1,976 conventions; that audíts consume staff and volunteer Ëíme, dís- courage voLunteer finance managers, are expensive for those audited, can be urisleadíng when constÍtuents and media faiL to make a distínction between a routine audit and one in which violations are suspected; that contributors become nervous when they receive inquiríes as to whether they reaLl-y gave the money that has been dísclosed, and are turned off from gíving again; and that since audits are not sÌrorn statements, they prove líttle anyway. Harris failed to respond that íË was an audít whích exposed the víolations ín the Milton Shapp campaign for presídentíaL nomínation. I,lhether the realizaËion Ëhat publ-ic funding of congressionaL campaígns would require audíts of all candídates accepting funds, not only on a random orrrprobable cause?f basis, has had some effect in building House opposition to publíc fundíng of theír campaÍgns, ís not knor,m but may be a factor.

Conc lus ion A¡nericans seem íncreasíngly ambívalent about the role of government ín their Lives. There appears to be a loss of faíth leadíng to a feeLing that government seeks to do too much, at too hígh a cost, and often does not do well in íts endeavors, If the pendulum ís swinging in favor of lor¡ered expec- tations about what government can accompl-ish, this wiLl effect the gains of the 1970s with respect to electíon reform. I,{e are on the receding side of el-ection reform, which crested aË the heíght of I,tatergate ín L974, A counter- reform may be deveLoping, although ít ís not ofËen arËiculated. More than Líp-service is stil1 beíng paid to reform; many politícians as well as others have been converted and are faithful to its precepts. Reformers are less strí- dent now, however, and undoubtedly wi1L lose some force by a process of atËrí- tíon, On the other hand, some reforms, such as the FEC, are institutionalized and wiLl not be repealed nor are they f-ikely to be seriously weakened. The future of reform wil-1 depend ín 1-arge measure upon the performance of the FEC, which in íts formative years has been subjected to extreme pressures from the Congress, One must go on the assumptíon that the major elements of the regulatíon of politics are írreversÍble, and that the regulation ís needed to recapture cíËizenst confidence in the electoral process, Lower leve1s of regul-atíon, however, are likely, not seeking to do so much, noË over-regulating, but calí- braËing the regulation so as to aehieve a fine balance between seekíng to keep politics faÍr and democratíc, and over-burdening and stíflíng it, The electoral process ís a delicate mechanism, not to be tampered wíth unnecessarily. One member of Congress, discussíng FECA complexities, wondered whether office holders shoul-d not r¡rorry about avoídíng servíng tine rather than constiËuents. In late L977, he would be joined by many others. 26.

PoLitlcs 1s properly animated by the voluntary efforts of individuals, political parties, groups and organizatlons. The new election laws have created en- vironments Ín which certain forms of poLitical voLuntarism are affected,because the laws influence the roles of candídates, poLítical cornrnitËees, political parties, specÍal inËerests and po1-ítícal action groups--a11 dependent to some degree upon the voLuntary actions of cíËfzens. Furthermore, the new technologies and the professionallzatíon of politics brought on Ín part by the laws themselves are having important consequences for voluntarism by requírÍng seríous candidates to substitute paid experts for free, usuâLLy unskil-led, help. The Federal Election Campaígn Act and the state equivalents can be compared to the Securities Exchange Act of. L934. That act required pubLic corPorations to systematize and publicize their bookkeeping, whích led private lawyers and accountants to set up sËandards which in turn brought about a fax greater degree of voLuntary complíance than the SEC alone woul-d have been abl-e to colrrrland. Labor unions felt a similar discipl-ining effeet when the Landrum-Gríffin Act passed. The new electíon Laws have had a comparable effect on politícs. But a harsher price must be paid for effective governmental regulation in an activity such as polítics, because politics is so dependent upon vol-untary action. Corporations and labor unions, usíng treasury money, can assign paid workers to cope with regulaËion and pass along Ëhe cost in terms of higher príees or increased dues. Because money ís a scarce resource ín poLitics, candídates and parties and polÍtical couunittees cannoË as readily pay salaries to ensure compl-iance, and cannot pass aLong the cost. lJhen they do allocate money resourees to complíance' it reduces their campaígning capabílíty, and adds financíal pressures, I^lhen expenditure 1imíts are in effect, ít has become desirable to exempt compliance eosts in order to free up the fulL potential for direct campaigning,

The problems of compLiance became so substantial and costLy that changes ín the laws r¡ere sought early in L976, Both the Ford and Carter organizations petÍtíoned the FEC to exclude complíance costs from the expendiËure restríc- tíons, Both organízatíons argued that compl-íance should not be considered nor- mal campaÍgn costs subject to expendíture Limitations. Indeed, both organizations realized that compLiance-reLated costs couLd become so signifícant that unless they were exempted, each candidaters eLection effort could be signífi- cantly constraÍned. The FEC, however, refused Ëo allovl an examptíon on grounds it díd not have the authority to do so. Thus, ín one of the few bi-partísan efforts by Ëhe campaígn, both Ford and Carter sought and achÍeved a legisLated exemptíon of complÍance costs inel-uded ín the 1-976 AurendmenËs. This provision Ëhen enabLed candídates who were close to spendíng limits--Carter, Ford and Reagan--to isolate out compLiance costs retroactively back to January 1, L975, and to recaLcul-ate their other expenditures. It had no effect on candídates not spending close Èo the expenditure Limits. In hís March L977 eLection reform message, Presídent Carter requested that $500r000 be authorized from checkoff funds to cover complíance costs for presidential candidates in the general election period in the future. The Senate in 5.926 has authorized this specíal- subsidy, which is testimony co the reaL costs of complíance felt by the 1976 campaigners. Clearly candidates for nomínation wilL seek such subventions in the future, as wiLl- congressionaL candidates íf congressional- public financíng is enacted. The combinatíon of government funding with expendíture límíêe makes the FEC a consulting parËner ín the operation of campaigns. Its role exceeds that of mere regulator r^rhen a constant fLow of questíons ís addressed to the Conmis- sion whích, in responding, must necessaríly intrude into campaign strategy, tac- tícs, and planníng. SÍnce politícs ís competítive, the danger of a Oonmíssion siding unfairly, even unintentionally, in a campaign exists. Tíme pressures are real. Unlike other areas of regulation, pol-iticaL campaígns have fíníte scheduLes. Candidates need quick answers, The pressure of tíme does not aLways permiË full. consideratíon of all factors relating to a decision. 27.

Moreover, there ís evídence of sophisticated attempts by candidates to use the Conrmission for their partisan purposes. one candidåce cômplains about some asPect of an opponentts campaign, casting doubts which receíve media attention, Campaign staff time is díverted to answering the charges or producing retalia_ tory allegatíons. Sometimes harassment by one candidate of anothe. ã"".r"", and the Commissíon is caught in between. There always have been dirty tricks, harassment, and charges that capture media focus, The difference nor¡, is that so many aspects of campaígníng aie regulated, that there is a wider opportuníty to hurt one t s opponent, and the availabíLíty of a full-tíme commissíon to use and to take advàntage of. Since the 1930s the Federal- Cornnrunications Commíssion has existed with lts regulatory Process available whenever po1ítícal broadcasting Ís concerned. In broádcasting and other areas, there has been occasional last-mínute resort to the courts for campaígn remedíes. But the exístence of a fuLL-time agency such as the FEC, whose whole Purpose ís to regulate campaígns is a recent innãvation, a uniquel-y Aurerícan answer to a clear problem, and one r¿hích wí11- require refining and revísion as experience mounts as to the operation of such agencies while campaign are in pro- gress

As significant as was Ëhe role of the reformers, they could not fashíon a major transformation ín the American electoral process. The Congress acted, I^IatergaÈe catalyzed, the Congress acted again, the FEC sÉruggled to exerË its índependence, the Supreme Court intervened dramatical-ly, then the Congress reas- serted iËself. By this tíme, much of the reform momentum was blunËed. The most enduring changes normally are made by those with a stake Ín the outcome--by íncumbents, by the political parties, by the major interest groups. The reformers and Ëhe media set the outer limits of reform, or the parameters, by condiËioníng the atmosphere. But the actual changes are forged in the arena of politicaL pressures, limiËed by Ëhe U.S. Constitutíon as interpreted by the courts. trIhat is most needed is a phílosophy about regulation that ís both constitu- tíonal and pragmaËically desígned to keep the election process open and flexible rather than rÍgid, exclusionary and fragmented. IË ís not clear from the efforts ín L977 to extend and revise Ëhe FECA that the Congress is yet positioning iË- seLf Ëo enacË laws reflectíng the openness and flexíbility a democratic and plura- 1ÍstÍc socíety reguires. I{e do know that the future ís íncreasingly in the hands of power brokers who are more realistíc than the reformers, and are less likely to damage the fabrie of poliËics. I¡Ihether thís r¡il-l skew change Ëoward greater íncumbent advantage, or lead to faír laws equitable for chaLLengers as r¡ell, rê- maíns to be seen. But an even larger questíon is rrrhether the restraíníng and chill-ing aspects of the l-ar¡s will be relaxed, and the roLe of the FEC dímínished, without damaging the spirít of the law or the goals of reform,

FOOTNOTES

1. The Federal Election Campaígn Act of L97L, 2 t.S.C., 43L-54 (Supp. II, 1972) lhereínafter cited as FECA], the Federal Election Campaígn Act Amend- ments of 1974, Pub. L. No.93-443, 88 Stat. L263 (codified in several titles of U.S.C.), and Subtítle H of the Internal Revenue Code of 1954, Int. Rev. Code of L954,900I-42. rrFECArr is used general-1-y to describe the FECA of 1971 and its 1974 and l-976 Amendments.

2, Federal Election Cormnission, AOR 1975-23, published in the Federal @þ!gg., July 29, L975 (40 FR 31879). Revised in FR 75'32L72, Fíled L2'2'75.

3. FEC Dísclosure Series, No, 8: Corporate-Related PoliËical Committees, þ- ceipts and Expenditures , 1976 Campaign (llashington, D.C.: Federal El-ection Conmíssion, September I977) .

4. FEC Disclosure Series, &. 5: Index of Communication @þ_ [ Corporations, Labor Organizatíons, Membership Organízatíons, Trade Associations. 1976 Can- paiÊn (llashington, D.C.: Federal Election Commission, April L977), 5. MÍchae1 J. MaLbín, "Labor, Business and Money--A Post-ELection Analysis," Natíonal JournaL, March L9, L977, pp, 4L2-L7. 6. See, for exampl-e, Gordon L, I,treíl, 'rViguerie: The Man !'Iith the Golden Listr" Pol"iticks, November B, L977, pp. L4-L6, and Ken Bode, 'rPlunder on the Right,tl The New $gþ!þ., November 12, L977, pp, LI-L2, 7. Bucklev v. Valeo, 424 U.S. L (1976), 8. President Jiurnry Carter, Message to Congress, 9b.ægg ín the ELectoral .!ry, Nlarch 22, L977, p. 2. 9. U.S. Congress, Senate,gsth Cong,,lst Sess., þþ!& Fínancing of Senate General Elections AcË and Federal, Election Campaign AcË Aurendments of. L977, Report No. 95-300, Report of the Courmíttee on Rul-es and AdmínístraËion, L977, 1o.ComtonCause,@.,llPub1icFinancingBatt1eMovesËoHouse,t'Vo1.3, No. 4, August-September \977, pp, 1, 3-4. 11. ConEressignal- Quarterlv Almanac, 93rd Congress, lit Sessign....L973, Vol. &(TX (i,Iashington, D.C. : Congressional QuarËerly , L974) , p, 746, L2, Ibid., pp. 752-755 13. Ibid. , 93t! Congress, Znd Session. ,.L974, Vo1. KO( (1975), PP. 6LL-633, L4. Campaísn Practices !g!5-, March 8, 1976, p. 1; Apríl 5, 1976, p. 2. L5. Ibíd,, October 3L, L977, p. L-3. 16. After the Senate deleted the publíc fundíng title from S.926, ít voted to accept an amendment whích restored a provision oríginall-y in that title. The amendment requíred that within sixty days of the election or within five days of quaLÍfícation for inclusion on the general- elecËion baL1ot, whichever 1s later, a senatsrial- candidate must declare how much of his personal funds, ín excess of $351000, if any, he planned to spend ín the general election, No penalty for spending beyond that 1Ímit r^ras imposed, but presumably the supporters of the amendment believe the weÍght of public opinÍon will go against a candidate r^rho admits that he pl-ans heavy personal s pend íng . 17. Conuron Cause, "Campaign Reports for 1976 Show Near DoubLíng of Tnterest Group Contributions to Candídates for Congressrrt Press Release, February 15, L977, p. 1.

18. Stephen Gíllers, rf0ptÍng for the Crítics,'r O?-ED page, The New York Times, January 25, 1977,

19. See, for example, an occasíonaL newsletter of Ëhe Conmittee on Party Renewal, a group of Amerícan political scientists, located at the Eagleton Instítute of Politics, Rutgers University, Ner¡ Brunswick, Ner.¡ Jersey, entítled Party , November L97_7, pp, 1-6. 20, U.S. Congress, Senate, Corurittee on Finance, Increase ín Credit for ConËríbu- tions to Candídates for the U.S. Senate, $g!, 95-342, 95th Congresç, lst Sess., July 13, L977. 2L. Herbert E. Alexander, Money In Politics (Iüashíngton, D.C.: PubLic Affairs Press, L972), pp. 2LB-22L, 22. This sectlon draws heavily upon Herbert E. Alexander, FínancinE þ!!!!g-: Money, ELections and PoLitical- Reform (l{ashington, D.C.3 CongressionaL Quar- terly Press, L976), pp. L37-L42, L52-L54, 243-255,

23. Thomas E. Harris, Testimony before Senate Committee on Rules and Adurinístra- tíon, May 6, L977, Hearings Before the Comrnittee on Rul-es and AdminÍstration of the United States Senate, 95th Cong., Lst Sess., on FederaL Election Re- form Proposals of 1977 (lüashington, D.C.; U.S. Government Printing Office, 1977), p. 430.

24. The suít sought to have the one-house veto provísions of the FECA decl-ared unconstítutional. The U.S. Court of AppeaLs disníssed the case on the gnounds that it did not present a ripe case or controversy within the meaníng of that phrase ín ArËicLe III of the U.S. Constítution. Clark appealed to the U.S. Supreme Court. On April 8, T977 the Couuníssíon fíled a motíon with the Court askíng ít to dismiss the motion on the following grounds: (1) Clark soughË appeal on a matter of jurisdíction whereas the FECA onLy alLorrs appeals on constitutional questíons; (2) there Ìüas no record evidence pertaíning to a congressional veto of FEC reguLatíons; (3) none of the íssues has been reviewed by a lower court; and (4) the issues involved deal with f'sensitiye questíons relating to the separatíon of LegisLatíve and executive powers.rr) On June 6, L977 the Supreme Court affirrned Ëhe Court of Appeal-sr decísion dísurÍssíng the suit. The DeparÊment of Justice joíned the suit at the Court of Appeals stage, urgíng that the veto be decLared unconstitutional. CLark v. KirrmÍtt, No. 76-L1"05 . 25. Christopher Lydon, "Democratic Hopefuls Live Off the Landr" k New York , July L3 , L975, 26. Herbert E. Alexander, Eiryigg. the L972 Electicn (Lexington, Mass.: Lexington Books, D.C, Heath and Company, L976), P, 27L,

27. This section generally foLlo!ùs ggggigg Practíces $9pg!.9., September 28, L977, pp. 2-3; October 3, 1977, P. 6, October 31, L977, Pp. 4-5; Noveriber L4, 1977, pp. 1-3. fBum 28. Ron Sarro, "Republican Zagoria Clains Rapr on FEC Nomination,tt & I,Iashington &.!, November 4, L977, 29. This sectíon ís deríved from Herbert E. Alexander, E!Eg!gg. Polítics, pp. L45-148. trCongress rSlush 30. Richard D. Lyons, Leaders Fight Curbs on Funds,ttt T-bg Ne¡¡ York !iE" September L5, L975, 31, lJarren !,Ieaver, Jr., ttl,layne Hays Today I^IíL1 Again TackLe Election Board on Rule," & New Ygrk @, October 20, L975. 32, I,larren trleaver, Jr., ItELectíon Panel Revises Campaign Reportíng Rule,tt El?- New York j!@, November 26, L975, 33. Federal El-ection ComríssÍon, ttStatement of Federal ElecÊion Commission: October 5, 1976,t' EE ReLease, October 5, L976. 34, I'FEC Regulation on Reverse Check-Off Faces Threat of Item Veto in House,'t Campaígn Practíces $gþ., March 2L, 1977, p. 4. 35. Ihís section ís deríved from llerberË E. Alexander, Ei¡ryigg. þ!!!þ,9., pp. L56-L57.

36. Advisory opÍnions may only be issued concerníng the applícaËion of a general rule of law to a specifíc facËual sítuatíon ínvoLvíng the requesËer. A ttgeneral rul-e of l-awrt must be stated ín regulations. Opinions cannot be íssued for hypothetícal questions. AOs issued by the Conurission may be re- lied upon by any person involved in the specific transaction dealt with in the requesË or any person involved ín a transaction indistinguishabLe from the transaction in the requesÉ provided in either case thaË such persons acË ín good faith and ín accordance wíth the provísions and findings of Ëhe AO. Advisory opiníons may be requested by ho1-ders of federaL office, candidates for federal office, politícal commiËËees, the natíonal coumittee of a poLi- tícal- party or authorized agents of any of the fore goíng Persons if the agent díscloses the ídentíty of his or her principal-. Thís ís a rather nar- row l-Íst since it seems to excLude state electíon couutissions from seeking AOs concerning the rel"atíonships of federaL to sËate lar.r. 37. Deeision Making Information and llart Research AssocÍates, A Stud¡¡ of the Im- päct of the Federal El-ectíon Campaign Act on iuhe L976 ELections (Prepared for the FederaL Election Comaríssíon, L977), rrCampaign 38. Act Víolators Can Be Prosecuted by BoËh Justice Department and FEC, Judge Rules," bpgiæ, Practices Reports, August B, L977, pp. g-9. 39, NatÍonal Rtght to- lJork Commíttee v. Thomson, C.A, 77-435, L977.

40. Federal Election Commfssion, Lítigation Status Sheet, October 14, L977, 4L. Federal Electíon comnissíon, rn the Matter of okonÍte company, MuR (16); rrCorporation the 213 Fíned for Funding Ad Praising Congressman in Car,paig;rtt Eg4jæ. PracÉíces Bg-9,!,9., August 22, L977, pp. 3-5.

42. Federal ELection Comnissíon, Statqment of Reasons for Determination of Repav- ment from MÍl-ton Shapp, undated; 'rshapp Agrees to Return Nearly $3001000 ín PresidentiaL Campaígn Matching Fundsr"Jamgaigtr Practices Reports, May 1-6, 1977, pp. 4-5. ffln 43. Ëhe Midst of Routine Testímony, Up Pops the Question of Campaign tAudíts'rrl Campaign Practíces Reports, October 17, L977, pp. 3-5,