PRINTERCAMPAIGN FINANCE REFORM.DOC 1/15/2020 3:34 PM Campaign Finance Reform* TABLE OF CONTENTS I. STATEMENT OF ISSUES ......................................................................................... 19 II. PROBLEMS ........................................................................................................... 20 A. Campaign Finance and Excessive Influence by Contributors .................... 20 B. Lack of Disclosure ..................................................................................... 21 C. Accuracy and Fairness .............................................................................. 21 D. Access and Equality ................................................................................... 21 III. ENACTMENT OF THE MCCAIN-FEINGOLD BILL ..................................................... 21 A. Status ......................................................................................................... 21 B. Problems Following the McCain-Feingold Bill ......................................... 22 IV. LEGAL CONSTRAINTS ........................................................................................... 22 V. OPTIMUM MODELS .............................................................................................. 24 VI. THE HOW: TACTICAL QUESTIONS ........................................................................ 25 VII. BACKGROUND ON PANELISTS ............................................................................... 26 VIII. PANEL DISCUSSION .............................................................................................. 29 I. STATEMENT OF ISSUES The campaign finance reform session agenda considers the following: (1) the problems posed by the current system of campaign finance, (2) alternative approaches and related legal constraints, and (3) advisable strategies to implement preferred reforms. * March 23, 2001. Moderator: Scott Harshbarger, President and CEO, Common Cause. Panelists: Frank Clemente, Director, Public Citizen Congress Watch; Charles Lewis, Executive Director, Center for Public Integrity; Nick Nyhart, Executive Director, Public Campaign; E. Joshua Rosenkranz, Executive Director, Brennan Center for Justice, New York University School of Law. 19 PRINTERCAMPAIGN FINANCE REFORM.DOC 1/15/2020 3:34 PM II. PROBLEMS A. Campaign Finance and Excessive Influence by Contributors The problem of campaign finance influence is pervasive at all levels of government. Campaign costs are increasing well above inflation rates. Spending limits rarely apply. Recent state level term limitation measures only exacerbate the importance of money in affected states, as new offices with new constituencies must be won at shorter intervals. Money dictates who runs and often who wins. Great candidates opt out because they cannot possibly raise the amount of money they need to compete or because the very idea of raising the necessary sums offends them. Money buys access and access buys influence. Lobbyists who represent moneyed interests are generally able to block measures against the short-term financial interests of their respective clients. The drive to raise funds distracts officeholders from their official duties. The written materials presented prior to the conference included several examples of the undue influence of contributions in congressional campaigns as documented by Public Citizen and Common Cause, among other organizations.1 They also include commentary by Charles Lewis of the Center for Public Integrity, outlining current campaign contribution influence problems in congressional, presidential, and state settings.2 This is followed by a recent Common Cause report,3 the table of contents to Common Cause’s recent book on money in politics,4 and opinion pieces on campaign finance problems.5 Lastly, Public 1. See, e.g., COMMON CAUSE, PARTY SOFT MONEY (1998); PUBLIC CITIZEN, KILLING US SOFTLY: SOFT MONEY’S PHENOMENAL GROWTH AND ITS HARM TO THE PUBLIC (2001) [hereinafter KILLING US SOFTLY], available at http://www.citizen.org/doc uments/killingussoftlyreport.pdf (last visited Feb. 1, 2003); Press Release, Common Cause, Statement of Common Cause President Scott Harshbarger at Paying the Price News Conference (June 15, 2000), http://www.commoncause.org/publications/june00/06 1500.htm (last visited Feb. 1, 2003). 2. Charles Lewis, Everything I’m Telling You Is Entirely Legal, Remarks at the 22nd Annual Conference of the Council on Governmental Ethics Laws (December 5, 2000), http://www.public-i.org/dtaweb/report.asp?ReportID=141&L1=10&L2=70&L3= 15&L4=0&L5=0&State=&Year=2000 (last visited Feb. 1, 2003). 3. Press Release, Common Cause, 89 Percent of House Incumbents in Financially Uncompetitive Races; House Candidates Enjoy Record $526 Million in Campaign Funds Through September 30, According to Common Cause (Nov. 2, 2000) (on file with author). 4. COMMON CAUSE, A REPORTER’S GUIDE TO MONEY IN POLITICS: CAMPAIGN 2000 (2000). 5. PUBLIC CITIZEN, DISCLOSURE LAW PASSED IN 2000 CLOSES CAMPAIGN FINANCE LOOPHOLE (n.d.), available at http://www.citizen.org/congress/campaign/legislation/ section527/articles.cfm?ID=5315 (last visited Feb. 1, 2003); Scott Harshbarger, Where Has Democracy Gone? The View from the Shadow Conventions, WASH. TIMES, Sept. 5, 2000, at A15. 20 PRINTERCAMPAIGN FINANCE REFORM.DOC 1/15/2020 3:34 PM [VOL. 40: 19, 2003] Campaign Finance Reform SAN DIEGO LAW REVIEW Campaign’s Campaigns and Television outlines how increasing campaign and media costs exacerbate the problem.6 B. Lack of Disclosure Although disclosure requirements have seemingly proliferated, they may neither be adequate nor enforced. In particular, by avoiding certain words explicitly referring to an election, political players of all sorts can influence elections without revealing their identities. What about contributions received just after the final pre-election report? What about contributions made through independent committees? Is relevant information provided? What does disclosure accomplish? C. Accuracy and Fairness Campaigns have become misleading sound bite contests—button pushing, focus group screened ads have little substance. Last minute misleading mailers proliferate. How does this problem tie into campaign finance disparities?7 D. Access and Equality Is it possible to run a visible campaign without private wealth or wealthy friends? To what extent is the one person, one vote ideal distorted by the financial demand of campaigns? III. ENACTMENT OF THE MCCAIN-FEINGOLD BILL A. Status 8 What are the current provisions and status of the McCain-Feingold bill? 6. PUBLIC CAMPAIGN, CAMPAIGNS AND TELEVISION; DOLLARS VS. DISCOURSE (1999) (on file with author). 7. See CHARLES LEWIS, CENTER FOR PUBLIC INTEGRITY, THE BUYING OF THE PRESIDENT 2000, at 9–14, 340–42 (2000). 8. See, e.g., COMMON CAUSE, THE HAGEL BILL: A FATALLY FLAWED PROPOSAL (n.d) (on file with author); PUBLIC CITIZEN, KEY PROVISIONS OF THE MCCAIN-FEINGOLD BILL (2001) (on file with author); PUBLIC CITIZEN, MCCAIN-FEINGOLD IMPACTS AND WHAT IT LEAVES UNDONE (2001) (on file with author); PUBLIC CITIZEN, REINFORCING THE RICH: THE CONSEQUENCES OF PROPOSALS TO RAISE THE $1,000 LIMIT ON INDIVIDUAL CONTRIBUTIONS TO FEDERAL CANDIDATES (2001), available at http://www.citizen.org /documents/hard$report.pdf (last visited Feb. 1, 2003); U.S. PUBLIC INTEREST RESEARCH GROUP, THE CONSEQUENCES OF RAISING FEDERAL CONTRIBUTION LIMITS (2001), 21 PRINTERCAMPAIGN FINANCE REFORM.DOC 1/15/2020 3:34 PM B. Problems Following the McCain-Feingold Bill Assuming enactment of the McCain-Feingold bill, what problems will remain? (1) There will be remaining loopholes regarding soft money.9 Some proposed amendments to the McCain-Feingold bill would allow soft money with alleged limits. What are the problems here? Which states retain the soft money loophole? (2) The hard money problem: designated contributions continue to buy influence. To what extent is influence enhanced for organized associations able to arrange enormous hard money financing even with contribution limits? (3) “Issue ads”: Will the proposed amendments to the McCain- Feingold bill resurrect the problem? What about the states?10 (4) Self-financing. (5) Nondisclosure. (6) Media and campaign costs. Campaign contribution limits can theoretically disperse dependence and perceived officeholder obligation onto broader populations. However, two problems emerge: (1) if limits are too low, the cost of raising sums can approach revenues obtained, which then makes fundraising and electoral entry difficult and favors special interests able to coordinate maximum contributions; and (2) contribution limits also favor wealthy candidates who are able to finance campaigns from their own private sources. IV. LEGAL CONSTRAINTS The three most important U.S. Supreme Court decisions on campaign finance constitutionality are Buckley v. Valeo,11 Austin v. Michigan available at http://pirg.org/democracy/democracy.asp?id2=5908&id3=CFR& (last visited Feb. 1, 2003); Joan Claybrook, President, Public Citizen, Testimony Regarding “Compelled Speech” and Campaign Finance Reform Before the Senate Committee on Rules and Administration (Apr. 12, 2000), available at http://www.citizen.org/congress/ campaign/issues/paycheck/articles.cfm?ID=5298 (last visited Feb. 1, 2003). 9. For a discussion of soft money abuse, see, for example, E. Joshua Rosenkranz, Brennan Center for Justice, Electoral Fraud, Pure and Simple, WASH. POST, Nov. 3, 2000, at A33, available at 2000 WL 25425923. 10. See, e.g., E. Joshua Rosenkranz, The