* Senior Articles Editor, Boston College Third World Law Journal (2001–2002).
1 Campaign Finance as a Civil Rights Issue, 43 HOW. L.J. 5, 11 (1999) (Samantha Sanchez, co-director of the National Institute on Money in State Politics, quoting former senator Mark Hanna (R-Ohio).
2 Rachel Van Dongen & Amy Keller, Democratic Candidates Try to Rally Around Campaign Finance Reform, Pollsters Wonder Whether Issue Will Matter to Voters, Roll Call (D.C.), Aug. 10, 1998 (explaining that several Democratic candidates were trying to use campaign finance reform to their advantage in the 1998 mid-term election).
3 Tim Curran, Campaign Finance Reform Bill Besieged By Four Separate Democratic Factions, Roll Call (D.C.), May 17, 1993; Martin Van Der Werf, U.S. Senate Struggles with Campaign Finance Reform; Complex Plan to Set Spending Limits Spurs Bickering Between Democrats, GOP, Ariz. Republic, June 14, 1993, at A1. Then Representative and current Republican U.S. Senator from Arizona Jon Kyle has said “This [the most recent campaign finance bill] proves there is nothing more difficult to get bipartisan consensus on than campaign-finance reform.” See id.; Philip D. Duncan & Christine C. Lawrence, Congressional Quarterly’s Politics in America 1998, the 105th Congress 44 (1997) (listing Jon Kyle as the junior senator from Arizona).
4 See S. 719, 107th Cong. (2001); S. 176, 107th Cong. (2001); S. 27, 107th Cong. (2001); S. 22, 107th Cong. (2001); S. 17, 107th Cong. (2001); H.R. 1637, 107th Cong. (2001); H.R. 380, 107th Cong. (2001); H.R. 151, 107th Cong. (2001); S. 2941, 106th Cong. (2000); H.R. 2866, 106th Cong. (1999); H.R. 3068, 105th Cong. (1997); Proposals at a Glance, Roll Call (D.C.), May 28, 1998 (detailing numerous bills in the 105th Congress that deal with campaign finance reform).
5 See S. 27, 107th Cong. (2001) (sponsored by Senators John McCain, R-Ariz., and Russell Feingold, D-Wis.); Karen O’Connor & Larry J. Sabato, The Essentials of American Government, Continuity and Change 375 (3d ed. 1998); Alison Mitchell, Campaign Finance Bill Passes in Senate, 59–41; House Foes Vow a Fight, N.Y. Times, Apr. 3, 2001, at A1 [hereinafter Campaign Finance Bill Passes in Senate]. Even the McCain-Feingold legislation passed in the Senate faced an uncertain future given the trouble the House version encountered. See infra note 331. O’Connor and Sabato explain that although campaign finance reform is a “favorite Washington topic . . . little legislation is ever passed.” See O’Connor & Sabato, supra, at 375; Mike Dorning, Campaign Reform Dead Again; GOP Senators Defeat Bid to Ban ‘Soft Money’ Donations, Chi. trib., Oct. 20, 1999, at 1.
6 See Karen O’Connor & Larry J. Sabato, American Government, Roots and Reform 461 (2d ed. 1996).
7 Paul S. Herrnson, Congressional Elections, Campaigning at Home and in Washington 244–45 (1995).
8 See id. at 244.
9 See id.; Spencer A. Overton, But Some Are More Equal: Race, Exclusion, and Campaign Finance, TEX. L. REV. (forthcoming 2002) (manuscript at 6, on file with author) [hereinafter But Some Are More Equal]. Overton explains that, “‘Reformers’ class-based critique of the current campaign finance system is inadequate because race operates as a distinct political identity worthy of independent analysis in the campaign finance context.” Id. at 7. This article, while relevant to all people of color, focuses more on black candidates and politicians because there is limited information pertaining to other groups. See generally infra.
10 See Barbara C. Burrell, A Woman’s Place Is in the House, Campaigning for Congress in the Feminist Era 106 (1994); John Theilmann & Al Wilhite, Discrimination and Congressional Campaign Contributions 153 (1991).
11 Linda L. Fowler, Candidates, Congress, and the American Democracy 125 (1993). While the problems of minority and female candidates are not exactly the same, nor are the circumstances of individual candidates within these groups, minority and female candidates in general share similar ideological leanings and a disproportionately low number within Congress. Id.; Burrell, supra note 10, at 135; Terry Smith, Reinventing Black Politics: Senate Districts, Minority Vote Dilution and the Preservation of the Second Reconstruction, 25 Hastings Const. L.Q. 277, 280–81 (1998). Fowler notes that, “In studies of roll call voting . . . female lawmakers are consistently more liberal than their male colleagues, even when party affiliation is controlled. . . . Similar patterns are evident among African-American legislators, who have constituted the most liberal and cohesive voting block in the Congress.” Fowler, supra, at 125. Fowler explains that the sample of Hispanic and Asian legislators is too low to come to any reliable conclusions. Id. Also, Fowler points out that “women and ethnic minorities often bring different occupational backgrounds to Congress . . . life experiences [that] probably contribute to the differing agendas that women and ethnic minorities pursue in Congress . . . .” Id. at 125–26; Theilmann & Wilhite, supra note 10, at 156–57.
12 Theilmann & Wilhite, supra note 10, at 57. The authors note that, “Numerous works investigate the impact of money on congressional campaigns, but only a handful . . . examine the impact of campaign funding on the election of blacks and women.” Id.
13 David Bositis, The Black Vote in 2000, A Preliminary Analysis, Joint Center for Political and Economic Studies, 3 (2000), at http://www.jointcenter.org/selpaper/blackvote 2000. htm (last visited Jan. 22, 2002) [hereinafter The Black Vote in 2000]; David Bositis, The Black Vote in ’98, Joint Center for Political and Economic Studies, 3 (1998), at http://www. jointcenter.org/selpaper/black.htm (last visited Jan. 22, 2002). In 1996, there were fifty-eight black candidates for federal office, and in 1994 there were sixty-six, the highest total before the 2000 election. Bositis, The Black Vote in ’98, supra, at 3.
14 Bositis, The Black Vote in 2000, supra note 13, at 3. The number thirty-nine represents thirty-seven voting members and two non-voting delegates. Id. Non-voting delegates cannot cast votes on the House floor, but these representatives from Puerto Rico, the District of Columbia, Guam, American Samoa and the Virgin Islands enjoy most of the member privileges including office space, staffs, and the ability to vote in committee. Roger H. Davidson & Walter J. Oleszek, Congress and Its Members 27 (5th ed. 1996).
15 Bositis, The Black Vote in 2000, supra note 13, at 3.
16 Id. Challengers are candidates who take on incumbents, and open-seat candidates are candidates that run for an office that does not have an incumbent seeking reelection. See Herrnson, supra note 7, at 16–17.
17 See Bositis, The Black Vote in 2000, supra note 13, at 3. The mayor of New Orleans, Marc H. Morial, noted that, “‘Certainly, I’d be interested in [being a statewide candidate] . . . at some point. But in Louisiana they haven’t elected a statewide African-American official since the 1880s.’” Kevin Sack, Pressed Against a ‘Race Ceiling’, N.Y. Times, Apr. 5, 2001, at A12.
18 See Bositis, The Black Vote in 2000, supra note 13, at 8. The 200 races with 400 candidate slots include incumbents, so there have not been 400 different candidates. See id.
19 See id. at 3. In the thirty-two districts in the nation that have the highest percentage of blacks, twenty-nine are represented by black representatives. See John Mercurio, House GOP Back to 6-Seat Majority, Roll Call (D.C.), June 21, 2001.
20 Smith, supra note 11, at 279; Eric Schmitt, For 7 Million People in Census, One Race Category Isn’t Enough, N.Y. Times, Mar. 13, 2001, at A1 [hereinafter For 7 Million People in Census].
21 Bositis, The Black Vote in 2000, supra note 13, at 3. Since passage of the Voting Rights Act, only one black candidate has been elected governor of a state, L. Douglas Wilder in Virginia. See Sack, supra note 17, at A12. At least one candidate for governor in 2002 will be black: H. Carl McCall, the New York state comptroller, plans to run for governor in New York. See id.
22 Id. The four winners included a Georgia Public Service Commissioner, a North Carolina Court of Appeals justice, a North Carolina State Auditor, and a Texas Railroad Commissioner. Id.
23 Id.
24 See Schmitt, For 7 Million People in Census, supra note 20, at A1. The term Hispanic, as defined by the United States Census Bureau, includes Hispanics or Latinos of any race, including general categories labeled Mexican, Puerto Rican, Cuban, and other Hispanic or Latino. See Summary File 1; 2000 Census of Population and Housing, United States Census Bureau, app. B-8 at 517, at http://www.census.gov/prod/cen2000/doc/sf1.pdf (last visited Jan. 22, 2002).
25 See Schmitt, For 7 Million People in Census, supra note 20, at A1.
26 Id.
27 See Eric Schmitt, New Census Shows Hispanics Are Even with Blacks in U.S., N.Y. Times, Mar. 8, 2001, at A1 [hereinafter New Census Shows].
28 Election 2000: Summary of Results for Women, Center for American Women and Politics (CAWP), Eagleton Institute of Politics—Rutgers, the State University of New Jersey, (2000), at http://www.rci.rutgers.edu/~cawp/facts/elections/Summary2000.html (last visited Jan. 22, 2002).
29 See id. The new members of the Senate include Maria Cantwell, D-Wash., Jean Carnahan, D-Mo., Hillary Rodham Clinton, D-N.Y., and Debbie Stabenow, D-Mich. Id. Three incumbent female senators were reelected in the year 2000: Dianne Feinstein, D-Cal., Kay Bailey Hutchinson, R-Tex., and Olympia Snowe, R-Me. Id.
30 Id.
31 Id. This number includes Rep. Diane Watson, D-Cal., who won a special election on June 5 replacing a male representative, Julian C. Dixon, who died. B. Drummond Ayres Jr., Democrat Easily Wins California Seat in House, N.Y. Times, June 7, 2001, at A14. Despite recent gains, six states have never sent a woman to Congress: Alaska, Delaware, Iowa, Mississippi, New Hampshire and Vermont. Ben White, Politics; Women Are Still Underrepresented, Study Says, Wash. Post, Nov. 19, 2000, at A15.
32 Ayres, supra note 31, at A14; Election 2000, supra note 28. All female incumbents who ran for re-election won. Election 2000, supra note 28. One of the two female candidates who managed to beat an incumbent, Democrat Jane Harman in California, had been a congresswoman from the district until 1998 when she gave up her seat to run for governor of California, lost in the gubernatorial Democratic primary, and then reclaimed her seat in 2000. The Pacific, Wash. Post, Nov. 9, 2000, at A40.
33 See Election 2000, supra note 28. One of the sixty-two female members in the House was recently elevated to the highest position a woman has held in either House of Congress in U.S. history. See Adam Clymer, A New Vote Counter; Nancy Patricia Pelosi, N.Y. Times, Oct. 11, at A18. Pelosi’s, D-Cal., Democratic colleagues elected her to the number two spot, House Democratic Whip, second only to House Minority Leader Richard A. Gephardt, D-Mo. Id.
34 Mary Beth Schneider, Women Still Hold Majority, but Not Their Share of Power; Females Are Not Common in Leadership Positions Despite a Half-Century of Change, Indianapolis Star, May 27, 2001, at A1. This represents a slight drop from the 1990 census, when women comprised 51.3% of the general population. Id.
35 See Election 2000, supra note 28.
36 Id. Jeanne Shaheen in New Hampshire won re-election, and Ruth Ann Miller (D) in Delaware and Judy Martz (R) in Montana won for the first time. Id. Jane Dee Hull (R) of Arizona and Christine Todd Whitman (R) of New Jersey did not face an election. Id. Whitman left her gubernatorial post before her term ended, however, to serve as head of the Environmental Protection Agency in the Bush administration. David M. Halbfinger, DiFrancesco Sworn In as Acting Governor, N.Y. Times, Feb. 1, 2001, at B5; Glen Johnson, A Divided Panel Backs Ashcroft, Key Opponents of Bush Choice Hoping for 40 Votes Tomorrow, Boston Globe, Jan. 31, 2001, at A1. With Whitman’s departure, Senate President Donald T. DiFrancesco (R) became the acting governor of New Jersey, reducing the female gubernatorial total to four. Halbfinger, supra, at B5. However, the number returned to five when Massachusetts Lieutenant Governor Jane M. Swift (R) became the first female governor in the state’s history when she was sworn in as acting governor to replace Governor Paul Cellucci (R), who left to be the U.S. ambassador to Canada. Frank Phillips, Transfer of Power; ‘Her Excellency’ Swift Is First Woman to Serve as Mass. Governor, Boston Globe, Apr. 11, 2001, at A1.
37 Election 2000, supra note 28. Following the 2000 election, CAWP listed eighty-four statewide elected officials including sixteen lieutenant governors, eight attorney generals, thirteen secretaries of state, eleven state treasurers and a host of other positions. Id.
38 Id. Of 2229 female candidates for state legislatures in 2000, preliminary results showed that 1388 won, which added to the 269 already elected female state legislators, bringing the number to 1656 women, or 22.3% of the total. Id. The ten state legislatures that have the highest percentage of female representatives range from Connecticut’s 28.9% to the highest percentage of 39.5% in Washington state. Id. The ten states with the lowest percentage of women in state legislatures range from 15.7% in Virginia, down to the 50th state for female legislators, Alabama, with 7.9% of the total. Id.
39 See Burrell, supra note 10, at 135; Smith, supra note 11, at 280–81.
40 See Smith, supra note 11, at 281. The four black senators in the nation’s history include two from Reconstruction, Hiram Rhodes Revels, R-Miss., and Blanche Kelso Bruce, R-Miss., and only two from this century, Edward William Brooke (R) who served in the late 1960s and throughout the 1970s from Massachusetts, and Carol Moseley-Braun (D), elected in 1992 from Illinois, and defeated by a white, male Republican in 1998. Id.; Campaign Finance as a Civil Rights Issue, supra note 1, at 18.
41 Smith, supra note 11, at 281. Prior to redistricting in 1990, blacks made up only 4.9% of Congress and Hispanics made up 2.5% (compared to voting age populations of 11.1% and 7.3% respectively). Id. Following the redistricting effort to make more majority-black and majority-Hispanic districts, numbers jumped to 8% black, 4% Hispanic, 1% Asian and .2% Native American. Id. However, current numbers show that since the post-1990 spike in percentage, the number of black representatives in the 107th Congress has actually fallen to 7.2%. See Bositis, The Black Vote in 2000, supra note 13, at 3.
42 Davidson & Oleszek, supra note 14, at 125. The authors note that no blacks served in Congress from 1900 through 1928, and in the next twenty-five years only three blacks were elected. Id. Even in modern races involving minorities, some commentators blame race as the deciding factor. See Mercurio, supra note 19. A June 19, 2001 special election in Virginia pitted two state senators against one another: a white Republican, Randy Forbes, and a black, female Democrat, Louise Lucas. Id. Forbes won 52% to 48%, prompting some to suggest the “defeat resulted from lingering racism in a state that has only elected one black House Member . . . since Reconstruction.” Id. Mercurio quotes Rep. Maxine Waters, D-Cal., as saying, “‘Clearly the difference here was race . . . . [S]he had all the qualifications. She fit that district, except for race.’” Id.
43 Burrell, supra note 10, at 8. The author includes a chart detailing the percentage and number of women in the House, rising from 2.5%, or eleven members in 1967, to forty-seven members, 10.8% in 1993, the last year listed. Id. The percentage following the 2000 election is calculated similar to Burrell’s numbers which do not include non-voting members. Id. In the 107th Congress, there are sixty female voting members of the House out of 435 members. See Ayres, supra note 31, at A14; Election 2000, supra note 28.
44 See Davidson & Oleszek, supra note 14, at 125. The authors note that as of 1996, “somewhat more than 150 women have been elected or appointed to Congress.” Id. The rise of women in Congress began with Jeannette Rankin (R), first elected from Montana in 1916. Id.
45 See supra Section I.
46 See Schneider, supra note 34, at A1. The black congresswoman Rep. Julia Carson, D-Ind., said that Rep. Melissa Hart’s, R-Pa., comments “‘really didn’t impact me that much; it’s not my first time at the rodeo.’” Id.
47 Davidson & Oleszek, supra note 14, at 64–65. The authors include a table showing the number of incumbents seeking reelection every two years for the last fifty years. Id. The fifty-year average is that 397 members of the House seek reelection and 29.1 members of the Senate do so (out of the roughly one-third up for reelection every two years). Id. These numbers equate to approximately 91% of incumbents in the House and approximately 87% of incumbents in the Senate who seek reelection. See id. With only 9% of the House seats and 13% of the Senate seats opening up in any given election cycle, it would take a long time to reach parity with regard to minorities and women by just relying on seats opening up as opposed to challenging incumbents who do seek reelection. See id.
48 David E. Price, The Congressional Experience, A View from the Hill 28 (1992). Price, a white male who first ran for his House seat as a challenger, writes about his experiences running for and holding office, detailing the problems with raising money. See id. at 26–28.
49 See id. at 10–11. Price said a number of contributing factors, including the district’s volatility and the incumbent’s narrow win the election before, led to his decision to run. Id. at 11. O’Connor and Sabato explain that high reelection rates are the norm, ranging well above 90% in most election years in the House. O’Connor & Sabato (3rd ed.), supra note 5, at 360–61. However, the authors note that there is more chance for turnover in the Senate for various reasons, with incumbent reelection rates going as low as 60% in 1980. Id. at 361. However, the 1994 election, which has been regarded as a landslide because Republicans won enough seats to take back the Senate and the House, still saw a reelection rate for incumbent representatives and senators of 90%. Id.
50 O’Connor & Sabato (2d ed.), supra note 6, at 419. The reasons for incumbent success include a high name recognition because they are already in office, additional access to the media because of the nature of their position, which lends itself to many high-profile events, and the fact that “every year the average member of the U.S. House of Representatives expends about $750,000 in taxpayer funds to run the office. Much of this money directly or indirectly promotes the legislator by means of mass mailing or constituency services.” Id.
51 Price, supra note 48, at 28. Price notes that, “There are many reasons for the advantages congressional incumbents enjoy, but the status quo orientation of political finance surely ranks high on the list.” Id.
52 Id. at 27.
53 Cass R. Sunstein, Political Equality and Unintended Consequences, 94 Colum. L. Rev. 1390, 1402 (1994).
54 See Price, supra note 48, at 14; Sunstein, supra note 53, at 1402. Price says that during his first campaign for Congress in which he was a challenger, in order to raise the needed cash, “we did what we had said we would never do—we took out a $45,000 second mortgage on our home.” Price, supra note 48, at 14.
55 Herrnson, supra note 7, at 142. The author explains that the best process to follow to amass the necessary funds starts with challengers donating or loaning the initial funds needed. Id. The challengers will then ask relatives, friends, colleagues, local activists, and anyone else they can think of to donate funds to their campaign. Id. Only after there has been some success at home do these challengers then attempt to collect money from Washington, D.C. sources. Id. Initially, at least, it helps a serious challenger to have either personal funds or a very large, somewhat well-off base of support. See id.
56 Price, supra note 48, at 28. Table 2.1 shows congressional challengers funding levels and outcomes from 1984 through 1990. Id. Well-funded challengers, those with over $300,000, numbered 180 during the four elections; only ninety-six (slightly over 50%) polled at least 45% in the general election. Id. And of the well-funded challengers, only thirty-five (or slightly over 19%) won their race. Id. In the four elections, only seven challengers who raised under $300,000 won. Id.
57 See Gary W. Copeland, The Impact of Money on Congressional Elections, 19 (presented at the 2000 Annual Meeting of the American Political Science Association, Aug./Sept. 2000) (on file with author).
58 See id. at 20.
59 Id.
60 Id. at 20, Table 3.
61 Id.
62 Copeland, supra note 57, at 20.
63 Jamin Raskin & John Bonifaz, Equal Protection and the Wealth Primary, 11 Yale L. & Pol’y Rev. 273, 279 n.26 (1993).
64 Id.
65 Kenneth J. Cooper, More Blacks Run for Statewide Offices; 13 Candidates—a Record—Often Find Race Less Crucial Than Money to Staying Competitive, Wash. Post, Oct. 29, 1994, at A12.
66 Id.
67 Duncan & Lawrence, supra note 3, at 818, 1518. In Missouri, John Ashcroft, former governor, beat Wheat by a margin of 60% to 36%, in a race in which, “Wheat’s effort in the primary depleted his finances, and he showed little strength among the rural whites critical to the party’s statewide majorities.” Id. at 818. In addition, during the campaign, some accused Ashcroft of highlighting Wheat’s race. Cooper, supra note 65, at A12. Cooper notes that E. Terrence Jones, a political scientist at the University of Missouri-St. Louis, “suggested that Ashcroft has tapped into a ‘subtle racism’ because ‘each of Ashcroft’s ads has had a picture of Alan [Wheat] in it, not too flattering, and clearly indicating his race,’” a charge Ashcroft denied. Id. In Washington, incumbent Senator Slade Gorton (R) beat Sims 56% to 44%, “a virtual landslide for the man who was defeated for re-election in 1986 only to narrowly win the state’s other Senate seat two years later.” Duncan & Lawrence, supra note 3, at 1517–18. In addition, Carol Moseley-Braun, a black Senator from Illinois, lost her reelection bid in 1998 to Peter Fitzgerald who spent $18 million from his own pocket. Campaign Finance as a Civil Rights Issue, supra note 1, at 18–19. William McNary, co-director of Citizen Action/Illinois, notes that Fitzgerald “refused to campaign in African-American districts or African-American areas” and characterizes Moseley-Braun, who raised $14 million, as unable “to raise enough money to defend herself.” Id.
68 Mary Leonard, Campaign 2000/Congress; Women Candidates Fierce, Financed, Boston Globe, Nov. 5, 2000, at A37. Leonard notes that Northup, collected almost $3 million for the campaign, while Jordan, raised more than $1.6 million. Id. Northup wound up winning the election by a comfortable margin, 53% to 44%. Al Cross, Election 2000; Kentucky; 3rd Congressional District; In Big-Money Race, Rep. Northup Wins Big, Courier-Journal (Louisville), Nov. 8, 2000, at 5X.
69 See Leonard, supra note 68, at A37. Jordan noted that she was pictured as an “angry black woman” in many of Northup’s advertisements. Id.
70 Cooper, supra note 65, at A12. Cooper quotes Michael Brown, political director of AMERICA’s Fund, a group that supports minority candidates, as saying, “Traditionally, we people of color have not written the kind of checks other people do.” Id.
71 Theilmann & Wilhite, supra note 10, at 76–77; Eileen Shanahan, Taking Stock; Women Elected to the House in ’94 Beat Out the Men as Fundraisers, Chi. Trib., Aug. 20, 1995, at 9; Ed Vogel, Report shows minority campaigns lack finances, Las Vegas Review-Journal, Sept. 24, 1998, at 3B. See generally The Color of Money, Public Campaign, (1999), at http://www. publiccampaign.org/colorofmoney/ (last visited Jan. 22, 2002) [hereinafter The Color of Money].
72 See generally Theilmann & Wilhite, supra note 10.
73 Id. at 76–77.
74 Id. at 145–46.
75 Id. at 146.
76 See Vogel, supra note 71, at 3B. See generally The Color of Money, supra note 71.
77 Shanahan, supra note 71, at 9.
78 See generally The Color of Money, supra note 71.
79 Id. at 1 (Executive Summary). There are 2500 zip codes with over 50% people of color totaling about 41 million people. Id. In those areas, eight out of 10,000 people gave over $200, compared to the twenty-six top-giving zip codes in which more than four in 100 gave a contribution, and the national participation rate which is about two per 1000, or twenty per 10,000. Id.
80 See id. at 1 (Intro.).
81 Id. at 1–2 (Intro.). Some of Public Campaign’s findings include: The twenty-six zip codes that gave the most money to candidates, parties, and PACs during 1995–96 gave about the same number of contributions as all 2492 zip code areas in which people of color make up 50% or more, even though the population of the 2492 zip codes is sixty times greater than the twenty-six highest-giving zip codes. Id. at 2. Zip code 10021 in New York, whose 107,000 residents are 91% white, gave $9.3 million, while the 9.5 million residents of the 483 communities that are more than 90% people of color gave $5.5 million. Id. at 1 (Executive Summary).
82 Ellen Miller, Guess What? Political Donors Are Old, Rich, White Men, The Hill (D.C.), July 1, 1998, at 5 [hereinafter Guess What?].
83 Campaign Finance as a Civil Rights Issue, supra note 1, at 12.
84 See id. at 13.
85 Shanahan, supra note 71, at 9. The average winning female candidate in the 1994 election raised $680,000, significantly more than the average successful male candidate’s total of $562,000. Id. This statistic is not conclusive, however, given that this could mean a higher percentage of female incumbents faced stiff competition causing them to raise more campaign cash, fewer male incumbents faced stiff competition, or a whole host of other possibilities. See id.
86 See Burrell, supra note 10, at 128; Schneider, supra note 34, at A1. Burrell notes that although total amounts raised and spent from various sources have equaled or exceeded male candidates, money is still a problem because “so few women have been able to run as incumbents.” See Burrell, supra note 10, at 128.
87 Theilmann & Wilhite, supra note 10, at 152.
88 See id. at 154, 162.
89 Id. at 156–57.
90 Susan J. Carroll, Women as Candidates in American Politics 49–50 (2d ed. 1994); Fowler, supra note 11, at 129.
91 See Carroll, supra note 90, at 49–50.
92 Id. at 50.
93 Id.
94 Id.
95 Id. at 51. Carroll quotes Suzanne Paizis, author of the rather dated 1977 book Getting Her Elected: A Political Woman’s Handbook, as saying “While ‘she’ is writing a $5 check for her favorite woman candidate (and considering that a sizable donation), ‘he’ is writing a $50 or $500 check for the candidate of his choice (usually male).” Id. In addition, Carroll notes that female candidates in a 1976 study most often cited money as a major problem, invoked by 58% of congressional candidates and almost 53% of statewide candidates. Id. at 51–52.
96 Theilmann & Wilhite, supra note 10, at 152; Shanahan, supra note 71, at 9.
97 Fowler, supra note 11, at 129. Fowler cites Carroll as suggesting that the general election may reflect equality for women, but the discrimination may actually be present in the nomination stage or earlier. Id.
98 Id. Fowler notes that little research has been done in this area, making concrete conclusions with regard to female candidates’ ability to raise money a difficult proposition. See id.
99 See Election 2000, supra note 28.
100 Miller, Guess What?, supra note 82, at 5. Miller points out that a survey of donors who gave over $200 were 80% male. Id.
101 See Theilmann & Wilhite, supra note 10, at 149. There is some evidence that individual contributors are hostile to women, but in general it appears as though women collect a good percentage of their money from individual contributors, which means more time spent on fundraising activities. Id.
102 Terry Smith, Parties and Transformative Politics, 100 Colum. L. Rev. 845, 865 (2000). Articles on women in politics regularly cite money as a barrier for female candidates. See William March, Women Set to Launch Challenge, Tampa Tribune, Aug. 19, 2001, at 1. March notes that, “several experts agree that money is one problem for many female candidates of both parties . . . . Women are more likely to come to politics from civic or community activities than business, and may therefore have less access to fundraising networks . . . .” Id. Indeed, the general notion even in smaller political markets is that women have a harder time raising campaign cash. Kimberly Marselas, Women Succeeding in Political Arena, Maryland Gazette (Glen Burnie), Mar. 28, 2001, at A1. Marselas notes that, “Female candidates, if they can win the support of their party, still lag behind men when it comes to getting financial backing.” Id.
103 See Theilmann & Wilhite, supra note 10, at 76–77; Shanahan, supra note 71, at 9; Vogel, supra note 71, at 3B. See generally The Color of Money, supra note 71.
104 See Theilmann & Wilhite, supra note 10, at 156–57; Sunstein, supra note 53, at 1390. Theilmann and Wilhite explain that with the current campaign finance structure, “further sexual and racial integration of Congress will be an arduous task,” indicating that the already delicate situation must be factored when weighing a change. See Theilmann & Wilhite, supra note 10, at 156–57. Sunstein’s article warns that campaign finance reform needs to avoid joining the list of regulations and legislation that have resulted in unintended consequences. See Sunstein, supra note 53, at 1390.
105 Campaign Finance Reform, A Sourcebook 159 (Anthony Corrado et al. eds., 1997). Steven F. Stockmeyer, former executive director of the National Association of Business Political Action Committees, a collection of over 120 PACs, told the Committee on House Oversight in 1995 that “PACs have become the whipping boy of the campaign finance debate. For 20 years, professional reform groups have engaged in a McCarthy-like attack on PACs and this narrow view has been repeated by an unquestioning media.” Id.
106 Federal Election Campaign Act of 1971, 2 U.S.C. §§ 431(4), 433 (2000) (amended 1974).
107 Federal Election Commission, 11 C.F.R. § 100.5(e)(3); CAMPAIGN FINANCE REFORM, A SOURCEBOOK, supra note 105, at 6. The term “multicandidate committee” means:
a political committee which (i) has been registered under section 303 [USCS § 433] for a period of not less than 6 months, which has received contributions from more than 50 persons, and, except for any State political party organization, has made contributions to 5 or more candidates for Federal office.
2 U.S.C. § 441a(a)(4).
108 2 U.S.C. § 441a(a)(2). The term “election” with regard to the above statute, and all parts of the statute that mention election, is defined as:
(A) a general, special, primary, or runoff election; (B) a convention or caucus of a political party which has authority to nominate a candidate; (C) a primary election held for the selection of delegates to a national nominating convention of a political party; and (D) a primary election held for the expression of a preference for the nomination of individuals for election to the office of President.
2 U.S.C. § 431(1)(A)-(D). This means, for instance, that the contribution limit of $5000 per multicandidate political committee to any given candidate per election allows a committee to give $5000 in the primary and another $5000 in the general election and in any special or runoff election that includes that candidate. See id.; 2 U.S.C. § 441a(a).
109 See 2 U.S.C. § 441a(a)(8). The provision states:
For purposes of the limitations imposed by this section, all contributions made by a person, either directly or indirectly, on behalf of a particular candidate, including contributions which are in any way earmarked or otherwise directed through an intermediary or conduit to such candidate, shall be treated as contributions from such person to such candidate. The intermediate or conduit shall report the original source and the intended recipient of such contribution to the Commission and to the intended recipient.
Id.
110 See id.; Curran, supra note 3.
111 2 U.S.C. § 441a(a)(2); 11 C.F.R. § 110.6; Geoffrey M. Wardle, Note, Political Contributions and Conduits After Charles Keating and EMILY’s List: An Incremental Approach to Reforming Federal Campaign Finance, 46 Case W. Res. L. Rev. 531, 535 (1996); Curran, supra note 3.
112 Id. § 110.6(b)(1) (2000).
113 Id. § 110.6(c)(1)(i), (iv)(A).
114 Id. § 110.6(c)(2)(i)–(ii).
115 Id. § 110.6(d)(1)–(2).
116 See 966 F.2d 1471, 1478 (D.C. Cir. 1992); Wardle, supra note 111, at 541–42. In this case, the National Republican Senatorial Committee (NRSC) pre-selected four 1986 Senate candidates and proceeded to solicit donations on their behalf. FEC, 966 F.2d at 1473. The Committee sent out letters saying it would divide the money equally among four candidates, only giving their states and not their names. Id. The court said this was not “direction or control.” See id. at 1478. Since this decision, there has been an increase in the number of political interest organizations that have supported federal candidates by bundling. Wardle, supra note 111, at 558.
117 Fred Wertheimer & Susan Weiss Manes, Campaign Finance Reform: A Key to Restoring the Health of Our Democracy, 94 Colum. L. Rev. 1126, 1136 (1994) (pointing out the common misconception about the history of PACs).
118 Id. at 1136–37. The authors explain that there was nothing accidental or coincidental by the explosion in the number of PACs—the 1974 provision, later amended by a 1976 provision, “was designed by special interests to protect PACs and to enhance the role of PACs and was not proposed or enacted as a reform.” Id. at 1136 n.55, 1137.
119 O’Connor & Sabato (3d ed.), supra note 5, at 336.
120 See H.R. 151, 107th Cong. (2001); H.R. 2866, 106th Cong. (1999); Panel Discussion: Revolutionizing Campaign Finance—An Appraisal of Proposed Reforms, 13 J. L. & Politics 163, 165 (1997) [hereinafter Revolutionizing Campaign Finance]; Curran, supra note 3.
121 H.R. 151, 107th Cong. (2001). One of the provisions in Rep. Thomas E. Petri’s, R-Wis., bill includes reducing the maximum PAC contribution from $5000 to $2000. Id. § 8; Curran, supra note 3. The article explains that President Clinton’s campaign finance reform legislation in 1993 had originally considered lowering the $5000 limit for PACs, and also notes that the bill at the time included a provision to lower PAC contributions to $2500 in Senate races. See Curran, supra note 3.
122 H.R. 2866, 106th Cong. (1999). Rep. Nick Smith’s, R-Mich., proposed bill in the last Congress would have amended FECA to state, “[N]o political action committee may make any contribution to any candidate or any authorized committee of the candidate with respect to any election for Federal office.” Id. § 101. During a panel discussion sponsored by the Administrative Law Section of the American Bar Association, panelists discussed changes to campaign finance laws, including a complete ban on PAC contributions and expenditures, or a reduction of PAC contribution limits to $1000 per candidate per election. Revolutionizing Campaign Finance, supra note 120, at 163–65.
123 CAMPAIGN FINANCE REFORM, A SOURCEBOOK, supra note 105, at 162. Joel M. Gora, Professor of Law at Brooklyn Law School, testified in front of the Senate Committee on Rules and Administration in 1996, telling members of the committee that there is no Court precedent that would uphold a total ban on PACs, stating “Political contributions are fundamentally protected by the First Amendment, as embodiments of both speech and association.” Id. The moderator of an ABA panel’s discussion on campaign finance said that although the idea of banning PACs would be discussed, he noted that a complete ban could be “declared unconstitutional” and so also asked participants to discuss reducing the PAC contribution limit. Revolutionizing Campaign Finance, supra note 120, at 165. One participant, the aforementioned Steven Stockmeyer, affiliated with an association of PACs, called the idea of a complete ban, “absolute nonsense,” adding that “The PAC ban is unconstitutional, as they themselves admit in the bill.” Id. at 179. Stockmeyer continued, “It’s a tongue-in-cheek ban, if it’s anything. It’s two fingers crossed behind your back. What it basically says is, ‘We know this is unconstitutional so we have to have a fallback provision—in case it is found unconstitutional—which would establish a new PAC limit.’” Id.
124 See H.R. 151, 107th Cong. (2001). Another proposal in Rep. Petri’s bill would insert language that states, “No political action committee . . . may act as an intermediary or conduit with respect to a contribution to a candidate for federal office.” Id. § 5; Ian Ayres & Jeremy Bulow, The Donation Booth: Mandating Donor Anonymity to Disrupt the Market for Political Influence, 50 Stan. L. Rev. 837, 869 (1998). The authors’ proposal for mandated donor anonymity would “effectively outlaw bundling” by keeping PACs from getting the credit for soliciting the donations. See Ayres & Bulow, supra, at 869–70; Wertheimer & Weiss Manes, supra note 117, at 1128; Wardle, supra note 111, at 573; Curran, supra note 3. Curran’s article, in discussing the fighting regarding President Clinton’s campaign finance bill in 1993, lists the anti-bundling provision as one of the sources of consternation. See Curran, supra note 3; Proposals at a Glance, supra note 4. The article gives an overview of various campaign finance-related bills in the 105th Congress, listing Rep. Sam Farr’s, D-Cal., measure which would ban bundling, among other things. Proposals at a Glance, supra note 4.
125 See Curran, supra note 3.
126 Wertheimer & Weiss Manes, supra note 117, at 1135. The authors explain that, “For most PACs, contributions to challengers are seen as a waste of money. Moreover, few PACs are willing to run the risk of antagonizing an incumbent Member of Congress by contributing to his or her opponent.” Id.; Revolutionizing Campaign Finance, supra note 120, at 172–73. Donald Simon, former Acting President of Common Cause, notes that “over 70% of PAC money goes to incumbents,” leading him to conclude that “this is a very important reason that incumbents are able to consistently outraise, and therefore outspend, challengers.” Revolutionizing Campaign Finance, supra note 120, at 172–73.
127 See Burrell, supra note 10, at 106; Theilmann & Wilhite, supra note 10, at 153; Revolutionizing Campaign Finance, supra note 120, at 172–73.
128 Herrnson, supra note 7, at 109–10.
129 Id. at 109.
130 Id. at 109–10.
131 Theilmann & Wilhite, supra note 10, at 107; Revolutionizing Campaign Finance, supra note 120, at 172–73.
132 Theilmann & Wilhite, supra note 10, at 107.
133 Id. at 107, 152. The authors later explain that “nonincumbent blacks were often helped by PAC contributions, most notably by labor and nonaligned PACs,” and “nonincumbent female candidates appeared to benefit from PAC contributions . . . particularly prominent were the nonaligned PAC contributions, which totaled between $4700 and $8200 more to women candidates in four of the five elections.” Id. at 152.
134 Id. at 107. While Theilmann and Wilhite’s work is one of the most comprehensive studies of campaign contributions to minority and female candidates, it was published in 1991, before the real influx of PAC money from female-oriented groups. Eleanor Clift & Tom Brazaitis, Madam President: Shattering the Last Glass Ceiling 99 (2000); Richard Logan Fox, Gender Dynamics in Congressional Elections 116–17, 141 n.7 (1997); Mary Lynn F. Jones, A Big Leap Year; Women Candidates Capture Greatest Number of Seats Since 1992, Chi. Tribune, Nov. 15, 2000, at 3. See generally Theilmann & Wilhite, supra note 10.
135 See Davidson & Oleszek, supra note 14, at 64–65.
136 Logan Fox, supra note 134, at 116–17.
137 Clift & Brazaitis, supra note 134, at 17.
138 Id. at 88.
139 Logan Fox, supra note 134, at 117; Kay Mills, Trends Point to Large Gains Among Women in Congress, Houston Chronicle, Oct. 18, 1992, at 1.
140 Logan Fox, supra note 134, at 117, 141 n.7. The Women’s Campaign Fund in 1992 raised $1.3 million, almost twice as much as its previous record; the Hollywood Women’s Political Committee contributed $543,671; the National Organization for Women contributed $593,845; and the National Women’s Political Caucus contributed $500,000. Id.
141 Clift & Brazaitis, supra note 134, at 99. This is the largest increase of Democratic women in the House in a non-presidential election year. Id.
142 Jones, supra note 134, at 3.
143 The Campaign Finance System and Its Impact on Candidates of Color In-Kind Donations to Political Campaigns [hereinafter In-Kind Donations to Political Campaigns], 43 How. L. J. 25, 34 (1999); Wertheimer & Weiss Manes, supra note 117, at 1135; Jon Friedman, The Founding Mother, N.Y. Times, May 2, 1993, § 6 (Magazine), at 50; John Lewis, In Defense of PACs, Wash. Post, July 1, 1994, at A25; Elizabeth Schwinn, Lobby Laws: Women May Win an Exemption, The Times-Picayune (New Orleans), Oct. 31, 1993, at A10; Shanahan, supra note 71, at 9.
144 Duncan & Lawrence, supra note 3, at 392. Although Lewis won in 1986 in the general election with a vote total of 75%, he had to endure a strong primary challenge from state Sen. Julian Bond. Id. Bond beat Lewis in the primary, but it was close enough to force a run-off in which Lewis won the nomination with 52%. Id.
145 Lewis, supra note 143, at A25.
146 Id.
147 Id.
148 In-Kind Donations to Political Campaigns, supra note 143, at 34.
149 Id.; Duncan & Lawrence, supra note 3, at 448.
150 Shanahan, supra note 71, at 9. Shanahan explains that in the 1994 election, 53% of the contributions to black male candidates and 54% of the contributions to black female candidates came from PACs; PAC contributions to Hispanic and white men and women ranged from 37 to 42%. Id.
151 Id.
152 Id. Shanahan explains that Bonifaz actually would like to get rid of all interest-group funding of campaigns, but until that happens, minorities will need to continue to rely on PAC money. Id.
153 Sunstein, supra note 53, at 1390, 1409–10.
154 Id. at 1410.
155 Id. at 1409.
156 See David J. Weidman, Comment, The Real Truth About Federal Campaign Finance: Rejecting the Hysterical Call for Publicly Financed Congressional Campaigns, 63 Tenn. L. Rev. 775, 783 (1996) (noting that the Black Congressional Caucus “has vehemently opposed any proposals to eliminate PACs”); Curran, supra note 3. Curran notes that PACs make major contributions to “many African American House Members, who often lack large contributor bases in their own districts.” Curran, supra note 3.
157 See David A. Bositis, The Congressional Black Caucus in the 103rd Congress 28–29 (1994) [hereinafter The Congressional Black Caucus]. Bositis explains that because “many of their districts are among the poorest in the nation, Caucus members are more dependent upon contributions from political action committees (PACs) than are other members of the House.” Id. at 28. Bositis also cites figures showing that the twenty-eight Caucus districts that have black voting-age populations of over 50% in 1989 had a mean household income of $30,878, while the figure for all districts was $38,453. Id. Also in 1989, the proportion of people living in poverty in these districts was 24.2% compared to 13.1% nationally. Id. at 29; The Federal Election Commission Twenty Year Report, 32 (1995), at http://www.fec.gov/pdf/20year.pdf (last visited Jan. 22, 2002) [hereinafter Twenty Year Report]. The Report notes that “Without PAC funding, some say minority candidates could not amass sufficient funds to communicate effectively with the electorate.” Twenty Year Report, supra, at 32.
158 See Burrell, supra note 10, at 128, 130; Carroll, supra note 90, at 171; Logan Fox, supra note 134, at 116–17; Nancy E. McGlen & Karen O’Connor, Women, Politics, and American Society 86 (2d ed. 1998); Friedman, supra note 143, at 50; Schwinn, supra note 143, at A10.
159 Logan Fox, supra note 134, at 116.
160 Id. at 117.
161 Id.
162 See Burrell, supra note 10, at 128, 130; Carroll, supra note 90, at 171; Logan Fox, supra note 134, at 117; McGlen & O’Connor, supra note 158, at 86.
163 McGlen & O’Connor, supra note 158, at 86. The authors list EMILY’s List, NOW PAC, the Women’s Campaign Fund, Women in the Senate and House (WISH), and Republican Network to Elect Women (RENEW) as some of the critical groups. Id.
164 Burrell, supra note 10, at 128, 130.
165 Carroll, supra note 90, at 171.
166 Logan Fox, supra note 134, at 117.
167 See Jason P. Conti, Book Note, The Money Chase: How Proposed Changes to Campaign Finance Laws Could Impact Female Candidates, 21 B.C. Third World L.J. 105, 116-20 (2001).
168 See Friedman, supra note 143, at 50; Schwinn, supra note 143, at A10.
169 Wertheimer & Weiss Manes, supra note 117, at 1128, 1142. The authors write: “The bundling loophole poses a serious threat to the integrity of existing federal contribution limits . . . .” Id.; Ayres & Bulow, supra note 124, at 869. The authors contend that bundling “allows groups of individual contributors to buy access or influence.” Ayres & Bulow, supra note 124, at 869.
170 Friedman, supra note 143, at 50; Schwinn, supra note 143, at A10. For example, Rep. Rosa DeLauro, D-Conn., a former head of EMILY’s List, strongly supports the continuation of bundling. Schwinn, supra note 143, at A10.
171 See H.R. 3, 103d Cong. § 501 (1993) (including such a ban for non-lobbying PACs); Wardle, supra note 111, at 550–51; Bundling Makes Emily’s List, Legal Times, Apr. 26, 1993, at 5; Friedman, supra note 143, at 50; Schwinn, supra note 143, at A10.
172 Ellen R. Malcolm, Reining Big Givers, N.Y. Times, Mar. 30, 1993, at A23.
173 See Wardle, supra note 111, at 565; Pat Swift, Gender Gap Plays a Role in Campaign Funding, Buffalo News, Mar. 18, 2000, at 7C.
174 Bundling Makes Emily’s List, supra note 171, at 5.
175 See Gail Collins, Why the Women Are Fading Away, N.Y. Times, Oct. 25, 1998, § 6 (Magazine), at 54 [hereinafter Why the Women]. Collins writes:
[C]ampaign finance reform keeps receding, and some contrarians say that Emily’s List is one of the reasons. That’s near-heresy: Emily’s List, a political action committee that “bundles” donations from backers interested in promoting Democratic women in politics, has done more than any group to put women’s campaigns on an equal financial level with men’s. Still, nearly any discussion of finance reform inevitably raises the question of what such reform would do to Emily.
Collins, Why The Women, supra, at 54; Schwinn, supra note 143, at A10. Schwinn describes the bundling loophole as “a loophole that means big bucks for women candidates and others.” Schwinn, supra note 143, at A10.
176 Schwinn, supra note 143, at A10.
177 See Bositis, The Congressional Black Caucus, supra note 157, at 28–29; Burrell, supra note 10, at 128, 130; Carroll, supra note 90, at 171; Logan Fox, supra note 134, at 117; McGlen & O’Connor, supra note 158, at 86; Sunstein, supra note 53, at 1410; Curran, supra note 3; Friedman, supra note 143, at 50; Schwinn, supra note 143, at A10; Shanahan, supra note 71, at 9.
178 Sunstein, supra note 53, at 1409–10.
179 See S. 27, 107th Cong. (2001); S. 22, 107th Cong. (2001); S. 17, 107th Cong. (2001); H.R. 1637, 107th Cong. (2001); H.R. 380, 107th Cong. (2001); S. 2941, 106th Cong. (2000); S. 1816, 106th Cong. (1999); S. 26, 106th Cong. (1999); H.R. 417, 106th Cong. (1999); Richard Briffault, The Political Parties and Campaign Finance Reform, 100 Colum. L. Rev. 620, 633 (2000); Wertheimer & Weiss Manes, supra note 117, at 1128.
180 Stephen Ansolabehere & James M. Snyder, Jr., Soft Money, Hard Money, Strong Parties, 100 Colum. L. Rev. 598 (2000).
181 Direct contributions from political parties are regulated like PACs, meaning that they can give up to $5000 per election (with the primary and the general election considered two separate elections) to any given candidate. 2 U.S.C. §§ 441a(a)(2), 431(1)(A)–(D); Briffault, supra note 179, at 625. However, the parties enjoy two additional special capabilities to help candidates: First, party committees can engage in coordinated expenditures that do not count against the $5000 cap, but instead are governed by a separate calculating mechanism that still results in a cap, but it is higher. 2 U.S.C. § 441a(d), (h); Briffault, supra note 179, at 625–26. The U.S. Court of Appeals for the Tenth Circuit invalidated FECA’s caps on party-coordinated expenditures with a party’s congressional candidates. See FEC vs. Colo. Republican Fed. Campaign Comm., 213 F.3d 1221, 1232–33 (10th Cir. 2000) (“Colorado Republican II”). The Supreme Court, however, reversed the Tenth Circuit and found that a party’s coordinated expenditures “may be restricted to minimize circumvention of contribution limits.” FEC v. Colo. Republican Fed. Campaign Comm., 121 S. Ct. 2351, 2371 (2001); Briffault, supra note 179, at 625. The second party provision is that state party committees can undertake “grass-roots” efforts, including get-out-the-vote drives and voter registration, in unlimited amounts so long as the money complies with FECA’s source and cap requirements. 2 U.S.C. §§ 431(8)(B)(x)(2), (xii)(2), 431(9)(B)(viii)(2), (ix)(2); Briffault, supra note 179, at 626. Because the 1979 amendments excluded state and local party-building expenditures from contribution limits, this allowed contributors to give unlimited amounts of money to the national parties’ state and local party-building accounts, dubbed “non-federal” accounts. Ansolabehere & Snyder, supra note 180, at 598. After the 1979 amendments, soft money began to grow in the 1980’s, rising from $19 million in 1980 to $45 million in 1988, and was used to “build the infrastructure of the national parties,” including staff costs, polling, data processing and office space. Briffault, supra note 179, at 629.
182 See Ansolabehere & Snyder, supra note 180, at 598–99.
183 See id. at 601.
184 See Alison Mitchell, Bush and McCain Meet on Campaign Finance, N.Y. Times, Jan. 25, 2001, at A20 [hereinafter Bush and McCain Meet]. The 2000 election found the parties raising the highest amounts of soft money ever, with the Democrats’ party committees taking in $243.1 million and the Republicans collecting $244.4 million, for a total of $487.5 million. Id. In 1996, the two national political parties together raised $263 million, nearly three times as much as was raised in 1992. Steve Campbell, Campaign System Riddled with Loopholes; They Render Existing Finance Restrictions Virtually Meaningless, The Portland Press Herald (Me.), Sept. 16, 1997, at 1A. Soft money did not stop expanding in the 1990s. The Democratic and Republican party committees raised $98.8 million in soft money ($65.6 million for the GOP and $33.3 million for Democrats) in the first six months of 2001, almost triple the amount raised in the first six months of the last non-presidential election cycle, 1997–98. Ben White, Soft Money Soars for Both Parties as GOP Takes in Record Sum for Six-Month Span, Wash. Post, Sept. 6, 2001, at A9. The parties collected only $54.5 million in the first six months of 1999–2000. Id.
185 See Briffault, supra note 179, at 630.
186 See id.
187 See id. at 632–33.
188 Id. at 631–33. The author notes that an FEC Advisory Opinion in 1995 that allowed the Republican National Committee to criticize President Clinton by name while discussing issues led to the widespread use of such “issue” advertising in the 1996 election. Id. at 632. The Advisory Opinion also stipulated that issue advocacy ads cannot be paid for exclusively through soft money; only a specified portion of the cost can be funded through soft money, a ruling that was challenged but failed to yield injunctive relief before the 1998 election. Id. at 633.
189 Id. at 633.
190 See S. 27, 107th Cong. (2001); H.R. 380, 107th Cong. (2001); see also S. 22, 107th Cong. (2001); S. 17, 107th Cong. (2001); H.R. 1637, 107th Cong. (2001); S. 2941, 106th Cong. (2000); H.R. 417, 106th Cong. (1999). H.R. 380, the House version of McCain-Feingold, is sponsored by Rep. Christopher Shays, R-Conn., and Rep. Martin Meehan, D-Mass. See H.R. 380, 107th Cong. (2001). Shays-Meehan passed the House in both 1998 and 1999, but that may have been tied to the fact that members could vote for the proposal without repercussion because McCain-Feingold repeatedly died in Senate filibusters. See Alison Mitchell, House G.O.P. Seeks New Way to Block Campaign Measure, N.Y. Times, June 25, 2001, at A1 [hereinafter House G.O.P. Seeks New Way].
191 See Mitchell, Campaign Finance Bill Passes in Senate, supra note 5, at A1. Twelve Republicans and forty-seven Democrats joined together to pass the legislation. Id. Despite the success, the outcome was far from certain even a short time before the vote. Larry Bivins, Thompson Pushes Bill Banning ‘Soft Money’; Bipartisan Support Could Expedite Vote on Reform, Tennessean, Jan. 23, 2001, at 6A. Bivins quoted Republican Senator from Tennessee Fred Thompson as saying, “We have a better chance than ever before to get something done” in late January, and Alison Mitchell quoted Thompson just a month and a half later saying, “I’m not confident of the outcome.” Bivins, supra, at 6A; Alison Mitchell, Before Debate, Added Scrutiny of Finance Bill, N.Y. Times, Mar. 12, 2001, at A1 [hereinafter Before Debate]. The proponents of a ban on soft money said they received a boost in the summer of 2000 when the Supreme Court ruled that limits on party coordinated expenditures with candidates are justified. Colo. Republican, 121 S. Ct. at 2371; Adam Clymer, The Supreme Court: Campaign Money; Justices Uphold Curbs on Coordinated Political Spending, N.Y. Times, June 26, 2001, at A15. McCain said, “‘Clearly this decision demonstrates that McCain-Feingold restrictions on campaign contributions are constitutional,’” and Rep. Shays, co-sponsor of the House legislation said, “‘The Supreme Court’s decision is wind in the sails of the movement to reform our badly broken campaign finance system. . . . We are even more confident today that the court will uphold a soft-money ban.’” Clymer, The Supreme Court: Campaign Money, supra, at A15. Opponents, however, noted that proponents “‘can take no comfort in today’s decision,’ because ‘the Colorado case was about federally restricted hard money while McCain-Feingold would ban nonfederal soft money.’” Id. (quoting Senator Mitch McConnell, R-Ky.)
192 See S. 27, 107th Cong. 2001 §§ 101, 102, 308, 304, 201–204 (2001). Both individual contribution limits, the aggregate and per candidate per election limit, are indexed for inflation. Id. § 308. The new individual contribution limits would be raised in addition to other benefits if a candidate’s opposition spends over a certain multiple of the threshold limit, which is equal to $150,000 plus $0.04 multiplied by each member of a state’s voting age population. See id. §§ 304, 308. The legislation also prohibits issue advertising from corporate and labor interests thirty days before a primary election and sixty days before a general election. Id. § 203. Also, the bill increases the senatorial campaign committee limit from $17,500 to $35,000, strengthens the ban on fundraising on federal property, strengthens the foreign money ban, ensures the lowest media rates for candidates with some exceptions, provides for a study and report on clean elections, increases some penalties for violations, and modifies disclosure provisions. See §§ 308(c), 302, 303, 305, 306, 312, 314, 317, 501–504.
193 See Money Trumps Fair Politics, L.A. Times, Oct. 21 1999, at B10; Mr. Bush Shouldn’t Fight McCain’s Finance Bill, Tennessean, Jan. 26, 2001, at 12A; Mr. McCain’s Medicine, N.Y. Times, May 10, 2000, at A30; Where’s the Outrage?, Wash. Post, Jan. 19, 2001, at A36.
194 Ronald J. Hrebenar et al., Political Parties, Interest Groups, and Political Campaigns 143 (1999).
195 Id.
196 See Briffault, supra note 179, at 644. The FEC’s Twenty Year Report notes that, “virtually all observers agree that parties are essential to American politics.” Twenty Year Report, supra note 157, at 31. One political scientist, Larry Sabato, has said, “‘The parties help stabilize an inherently unstable political system . . . . Anything that weakens those institutions makes democracy more unstable in the United States.’” Steven Thomma, Reforms Can Have Unintended Consequences, San Diego Union-Tribune, Mar. 25, 2001, at G6.
197 Hrebenar et al., supra note 194, at 155.
198 See id. at 158; Michael J. Malbin & Thomas L. Gais, The Day After Reform, Sobering Campaign Finance Lessons from the American States 153 (1998); Ansolabehere & Snyder, supra note 180, at 619; Briffault, supra note 179, at 660; Mitchell, Before Debate, Added Scrutiny of Finance Bill, supra note 191, at A1 (noting that “some lawmakers argue that the ban on soft money will weaken the two-party system by causing donations to flow away from parties . . . .”).
199 Hrebenar et al., supra note 194, at 158; Malbin & Gais, supra note 198, at 153 (noting that in competitive races, state parties are more likely to help challengers than any other source); Briffault, supra note 179, at 660.
200 Briffault, supra note 179, at 661.
201 Malbin & Gais, supra note 198, at 152.
202 Ansolabehere & Snyder, supra note 180, at 619.
203 See id. at 608, 611. Although the authors admit that a large reduction in party money would reduce challenger vote shares by 2.5%, they conclude this would not “change competition in the national elections appreciably” because the typical challenger only receives 35% of the vote. See id. at 611. However, one could argue a 2.5% vote loss could impact some challengers in tight elections. See id. As Clift and Brazaitis point out, challenger candidate Harriett Woods (D) lost by a mere 27,000 votes to incumbent John Danforth (R) in the 1982 Missouri Senate race in which she received inadequate party support; 2.5% added to Woods’ vote total certainly would have helped her win the race since she lost by about 1%. See Clift & Brazaitis, supra note 134, at 87. In addition, professors Thad Kousser and Ray LaRaja did a study involving party money and also concluded that a ban on soft money would lead to 2.5% less in votes for challengers, ultimately concluding that “credible challengers will be hurt the most.” Thad Kousser & Ray LaRaja, Will a Soft Money Ban Stifle Political Competition? Theory and Evidence from the States, 24 (presented at the 2000 Annual Meeting of the American Political Science Association, Aug./Sept. 2000) (on file with author).
204 Malbin & Gais, supra note 198, at 152; Ansolabehere & Snyder, supra note 180, at 617. By studying three states, Ansolabehere & Snyder conclude that if the national parties did not provide money for grass roots activities including direct mail and voter registration, turnout in these states would have been reduced by slightly more than two percent. Ansolabehere & Snyder, supra note 180, at 616–17; Ken Bentsen Jr., Term Limits Would Forfeit Our Right to Choose, Houston Chron., Nov. 4, 1991, at C15 (expressing the notion that increasing voter turnout would increase the odds for challengers); Evelyn Theiss, Kucinich, Coyne Hope for Boost from Clinton-Gore Visit, Plain Dealer (Cleveland), Nov. 1, 1996, at 15A (quoting a Democratic pollster as saying that a presidential visit “can’t hurt the challengers, and it can help them a little; if it increases voter turnout that helps . . . .”).
205 The Purposes and Beneficiaries of Party “Soft Money”, Brennan Center for Justice at NYU School of Law (on file with author).
206 See Mitchell, Bush and McCain Meet, supra note 184, at A20.
207 See Bentsen, supra note 204, at C15; Bositis, The Black Vote in 2000, supra note 13, at 3; Election 2000, supra note 28; Thomma, supra note 196, at G6.
208 See Hrebenar et al., supra note 194, at 158; Malbin & Gais, supra note 198, at 152–53; Ansolabehere & Snyder, supra note 180, at 608, 617; Briffault, supra note 179, at 660–61.
209 See Hrebenar et al., supra note 194, at 158; Malbin & Gais, supra note 198, at 152–53; Ansolabehere & Snyder, supra note 180, at 608, 617; Briffault, supra note 179, at 660; Bositis, The Black Vote in 2000, supra note 13, at 3; Election 2000, supra note 28.
210 McGlen & O’Connor, supra note 158, at 87; Theilmann & Wilhite, supra note 10, at 129.
211 The Purposes and Beneficiaries of Party “Soft Money”, supra note 205.
212 See id.; O’Connor & Sabato (3rd ed.), supra note 5, at 360–61 (explaining that high reelection rates are the norm, ranging well above 90% in most election years in the House).
213 See Cooper, supra note 65, at A12.
214 See The Purposes and Beneficiaries of Party “Soft Money”, supra note 205, at Figure 8.
215 See id.; Leonard, supra note 68, at A37.
216 Theilmann & Wilhite, supra note 10, at 129. The authors note that in general both parties are more inclined to give greater amounts to black and female candidates. Id. They note, however, that the advantage with party money improves their chances of winning only marginally because of the power of incumbency. Id. Theilmann and Wilhite’s book, published in 1991, came before the explosion of soft money. See Briffault, supra note 179, at 629–30; Campbell, supra note 184, at 1A; Mitchell, Bush and McCain Meet, supra note 184, at A20; White, supra note 184, at A9. See generally Theilmann & Wilhite supra note 10. However, it follows that a pattern of party spending pre-soft money that benefits certain candidates would continue to help those candidates when soft money is involved. See generally Theilmann & Wilhite supra note 10.
217 Theilmann & Wilhite, supra note 10, at 126.
218 McGlen & O’Connor, supra note 158, at 87; Theilmann & Wilhite, supra note 10, at 129. Although the authors do not offer concrete evidence on whether females have a better time attracting campaign funds from political parties, it seems clear that generally, “party support . . . [has] more to do with the competitiveness of the race than with the gender of the candidate.” Logan Fox, supra note 134, at 124.
219 Electoral Systems in Comparative Perspective, Their Impact on Women and Minorities 103–04 (Wilma Rule & Joseph F. Zimmerman, eds., 1994). The authors note that one of the key barriers to the election of women and minorities is weak political parties. Id.; Catherine Whitney, Nine and Counting, The Women of the Senate 57 (2000). The author, in conjunction with the then nine female senators, notes that party support and money are the “critical components to women achieving credibility and being elected to office.” Id.; Penny M. Miller, Staking Their Claim, The Impact of Kentucky Women in the Political Process, 84 Ky. L.J. 1163, 1176 (1995/96) [hereinafter Staking Their Claim]. The author notes that in recent years the national parties “have played an increasing advocatory role for women in office . . . . In the last decade, the national parties have taken active steps to promote women’s candidacies . . . .” Miller, Staking Their Claim, supra, at 1176.
220 See Swift, supra note 173, at 7C. The author notes that “women’s views of campaign finance reform are colored by their preference for fund raising networks and issue groups. They tend to oppose eliminating soft money contributions.” Id.; Curran, supra note 3. The author explains that some members of the Congressional Black Caucus, in the 1993 struggle over President Clinton’s campaign finance legislation, seemed to be more interested in some form of increased disclosure rather than an outright soft money ban. Curran, supra note 3.
221 Darryl Fears, Keys to a Campaign Bill; Divided Black Caucus Is Heavily Lobbied, Wash. Post, July 11, 2001, at A1; Karen Hosler, As ‘Soft Money’ Ban Foe, Wynn Comes Under Fire; Md. Democrat’s Stance Could Help Defeat Bill, Balt. Sun, July 12, 2001, at A1 (noting that up to half of Rep. Albert R. Wynn’s, D-Md, Congressional Black Caucus colleagues “appeared to be aligned with him” against the Shays-Meehan bill); Alison Mitchell, Blacks and Hispanics in House Balk on Campaign Finance Bill, N.Y. Times, May 9, 2001, at A1 [hereinafter Blacks and Hispanics in House Balk]; Mitchell, House G.O.P. Seeks New Way, supra note 190, at A1; Philip Shenon, The Black Caucus, Once a Foe, Enjoys Soft-Money Games, N.Y. Times, Aug. 27, 2001, at A1. Rep. Bennie G. Thompson, D-Miss., noted, “‘We’ll never be able to match the resources the Republicans can generate, but soft money allows us to be competitive.’” See Shenon, supra, at A1. Shenon notes that “Mr. Thompson called it hopeless to think that he and other black lawmakers from poor, mostly rural districts could ever make up for the loss of soft money,” and Rep. Earl F. Hilliard, D-Ala., said that a soft-money ban was a “‘threat to my continued service in the Congress.’” Id. In addition, Shenon points out that soft money was spent in November 2000 for a get-out-the-vote drive in Rep. Hilliard’s district and that soft money is paying for an attorney and a demographer in his effort to avoid having his district redrawn in a way that might threaten his reelection. See id.
222 See Shenon, supra note 221, at A1. Shenon notes that even the House leaders who support the soft-money ban say black members who oppose the ban “have reason to be concerned about a moratorium and that the caucus’s voter-education programs in Florida last November might have put Al Gore in the White House if there had been just a little more money.” Id.
223 See The Purposes and Beneficiaries of Party “Soft Money”, supra note 205; Hosler, supra note 221, at A1; Memorandum from the Fannie Lou Hamer Project, to the Congressional Black Caucus (May 15, 2001), at http://www.flhp.org/cbcmemo.htm (last visited Jan. 22, 2002) [hereinafter Memorandum to Congressional Black Caucus]. The Fannie Lou Hamer Project is a group working to reshape campaign finance reform as a civil rights issue; the group has created the Fannie Lou Hamer standard which, “asks whether a proposed reform would make the system more fair for someone like Hamer, a poor woman of color” who championed voting rights. See Spencer Overton, Fannie Lou Hamer Wouldn’t Like This, Wash. Post, Mar. 29, 2001, at B11.
224 See The Purposes and Beneficiaries of Party “Soft Money”, supra note 205; Hosler, supra note 221, at A1; Memorandum to Congressional Black Caucus, supra note 223. Hosler explains that Rep. Wynn’s stance against a soft-money ban has rankled many of his House Congressional Black Caucus colleagues including party elders like Rep. Charles B. Rangel, D-N.Y., and Rep. John Lewis, D-Ga. Hosler, supra note 221, at A1. The Fannie Lou Hamer Project argues that soft money’s role in get-out-the-vote efforts could be supplemented with hard money and/or a bill could allocate federal money for such activities; in addition, the group argues that banning soft money will reduce the influence of big business and release the stranglehold soft money has on top leadership positions. See Memorandum to Congressional Black Caucus, supra note 223.
225 See Hrebenar et al., supra note 194, at 158; Malbin & Gais, supra note 198, at 152–53; Ansolabehere & Snyder, supra note 180, at 608, 617; Briffault, supra note 179, at 660; Bositis, The Black Vote in 2000, supra note 13, at 3; Election 2000, supra note 28; Mitchell, Campaign Finance Bill Passes in Senate, supra note 5, at A1.
226 See Hrebenar et al., supra note 194, at 158; Malbin & Gais, supra note 198, at 152–53; Ansolabehere & Snyder, supra note 180, at 608, 617; Briffault, supra note 179, at 660; Bositis, The Black Vote in 2000, supra note 13, at 3; Election 2000, supra note 28.
227 2 U.S.C. § 441a(a)(1). “No persons shall make contributions—(A) to any candidate and his [or her] authorized political committees with respect to any election for Federal office which, in the aggregate, exceed $1,000.” Id. The term “election” with regard to the above statute, as with multicandidate political committees, means that the contribution limit of $1000 allows an individual to give $1000 in the primary and another $1000 in the general election and in any special or runoff election that includes that candidate. See 2 U.S.C. §§ 431(1)(A)–(D), 441a(a)(1).
228 2 U.S.C. § 441a(a)(1)(B)–(C).
229 Id. § 441a(a)(3).
230 424 U.S. 1, 143 (1976). While the appellants argued that the $1000 contribution ceiling “unjustifiably burdens First Amendment freedoms, employs overbroad dollar limits, and discriminates against candidates opposing incumbent officeholders and minor-party candidates in violation of the Fifth Amendment,” the Court notes that “It is unnecessary to look beyond the Act’s primary purpose—to limit the actuality and appearance of corruption resulting from large individual financial contributions—in order to find a constitutionally sufficient justification for the $1,000 contribution limitation.” Id. at 24, 26.
231 See id. at 26; 2 U.S.C. § 441a(a)(1)(A). The individual contribution limit is not indexed for inflation, and therefore has remained at $1000. See 2 U.S.C. § 441a(a)(1)(A); Buckley, 424 U.S. at 26.
232 S. 176, 107th Cong. § 8 (2001) (increasing the individual contribution limit to candidates to $3000, and indexing the amount each calendar year “based on the increase in the price index”); S. 27, 107th Cong. §§ 102, 308 (2001) (increasing the aggregate individual contribution limit from $25,000 to $37,500); S. 22, 107th Cong. § 203 (2001) (increasing the individual contribution limit to candidates to $3000, increasing the limit to political parties to $60,000, increasing the limit from individuals to political committees to $15,000, and increasing individuals’ aggregate limit to $75,000); S. 17, 107th Cong. § 102 (2001) (increasing the aggregate contribution limit for individuals from $25,000 to $30,000); H.R. 380, 107th Cong. § 102 (2001) (increasing the aggregate contribution limit for individuals from $25,000 to $30,000).
233 S. 27, 107th Cong. §§ 102, 308 (2001).
234 528 U.S. 377, 397–98 (2000).
235 Id. at 397.
236 Id. at 389–90 n.4; Campaign Finance Reform, A Sourcebook, supra note 105, at 108–09; Theilmann and Wilhite, supra note 10, at 146; Campaign Finance as a Civil Rights Issue, 43 How. L.J. 41, 46–47 (1999); Kathey Pruitt, Rights Group Opposes Raising Campaign Gift Limit, Atlanta J. & Const., Aug. 5, 2000, at 4E.
237 Campaign Finance Reform, A Sourcebook, supra note 105, at 108–09.
238 528 U.S. at 389–90 n.4. Some reformers do not seem sold on higher limits: Senators McCain and Feingold “didn’t intend to promote higher hard-money limits but accepted them as a necessary compromise.” See Janet Hook & Doyle McManus, A Win for Campaign Finance Won’t Mean Victory for Reform, L.A. Times, Mar. 31, 2001, at A1.
239 Theilmann and Wilhite, supra note 10, at 146.
240 Id.
241 See Bositis, The Congressional Black Caucus, supra note 157, at 28.
242 Campaign Finance as a Civil Rights Issue, supra note 236, at 46–47; Pruitt, supra note 236, at 4E.
243 Pruitt, supra note 236, at 4E.
244 Id.
245 Campaign Finance as a Civil Rights Issue, supra note 236, at 46–47.
246 See Fears, supra note 221, at A1.
247 Nixon, 528 U.S. at 389–90 n.4.; Campaign Finance Reform, A Sourcebook, supra note 105, at 108–09; Theilmann and Wilhite, supra note 10, at 146; Campaign Finance as a Civil Rights Issue, supra note 236, at 46–47; Pruitt, supra note 236, at 4E.
248 See S. 176, 107th Cong. (2001); S. 27, 107th Cong. (2001); S. 22, 107th Cong. (2001); S. 17, 107th Cong. (2001); H.R. 380, 107th Cong. (2001); Theilmann and Wilhite, supra note 10, at 146; Campaign Finance as a Civil Rights Issue, supra note 236, at 46–47 (1999); Pruitt, supra note 236, at 4E.
249 See S. 27, 107th Cong. §§ 102, 308 (2001); Theilmann and Wilhite, supra note 10, at 146; Campaign Finance as a Civil Rights Issue, supra note 236, at 46–47 (1999); Pruitt, supra note 236, at 4E.
250 See Burrell, supra note 10, at 188; Malbin & Gais, supra note 198, at 144; Vincent Blasi, Free Speech and the Widening Gyre of Fund-Raising: Why Campaign Spending Limits May Not Violate the First Amendment After All, 94 Colum. L. Rev. 1281 (1994); Colloquia: Campaign Finance Reform: Law and Politics: Constitutional Implications of Campaign Finance Reform, 8 Admin. L.J. Am. U. 161, 170 (1994) [hereinafter Constitutional Implications of Campaign Finance Reform]; Michael J. Klarman, Majoritarian Judicial Review: The Entrenchment Problem, 85 Geo. L.J. 491, 538 n.218 (1997); Joseph Lieberman, The Politics of Money and the Road to Self-Destruction, 16 Yale L. & Pol’y Rev. 425, 462–63 (1998); Revolutionizing Campaign Finance, supra note 120, at 178; Bradley A. Smith, Point / Counterpoint: Some Problems with Taxpayer-Funded Political Campaigns, 148 U. Pa. L. Rev. 591, 605 (1999); Wertheimer & Weiss Manes, supra note 117, at 1152; Van Der Werf, supra note 3, at A1.
251 See Buckley, 424 U.S. at 19, 143.
252 See supra sources cited note 250.
253 Buckley, 424 U.S. at 143.
254 Id. at 19. “A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.” Id.
255 See id. Blasi, however, argues that candidate time protection is an important element that could help make spending caps constitutional. See Blasi, supra note 250, at 1284.
256 Homans v. City of Albuquerque, No. 01–2271, 2001 U.S. App. LEXIS 19780, at *10–11 (10th Cir. Sept. 6, 2001).
257 Id. at *8, *11.
258 See FEC v. Colo. Republican Fed. Campaign Comm., 121 S. Ct. 2351, 2356 (2001).
259 Landell v. Sorrell, 118 F. Supp. 2d 459, 483 (D. Vt. 2000).
260 Id. at 481.
261 Burrell, supra note 10, at 188 (claiming that “ceilings on spending and methods of raising money hurt challengers and advantage incumbents”); Malbin & Gais, supra note 198, at 144; Constitutional Implications of Campaign Finance Reform, supra note 250, at 170 (including Bob Peck, associated with the American Civil Liberties Union, who notes that those who support spending limits assume “people are sheep, who are attracted to whoever spends the most money,” and calls such “reform” a way to decrease accountability); Revolutionizing Campaign Finance, supra note 120, at 178 (including an address by Steven F. Stockmeyer, former executive director of the National Association of Business Political Action Committees, saying that there is no evidence such caps would work in congressional elections); Smith, supra note 250, at 605 (noting that a flat spending cap may “harm those challengers most likely to actually defeat an incumbent” because the best challengers tend to have the most funding); Wertheimer & Weiss Manes, supra note 117, at 1152 (quoting former Senator Robert Dole, R-Kan., as saying “As I have said many, many times before, an absolute—fixed—cap on campaign spending is nothing more than a prescription for incumbency protection.”).
262 See Klarman, supra note 250, at 538 n.218. The author notes, “For those of us who believe that unlimited campaign spending generally benefits incumbents more than challengers, the one useful step the Court might take in this area is to overrule its ghastly decision in Buckley, which constitutionally entrenches incumbents . . . .” Id.; Lieberman, supra note 250, at 462. Former Democratic vice presidential nominee and current Connecticut Senator Joseph Lieberman notes there are a number of things reformers can do, including asking the Court to reconsider Buckley by showing the “detrimental impact the unlimited spending they permitted . . . [has] had on our campaign system.” Lieberman, supra note 250, at 462. Wertheimer & Weiss Manes, when responding to critics who say public financing and spending limits would protect incumbents, note that “it is the current unlimited spending system that is the ultimate protection scheme for incumbents.” Wertheimer & Weiss Manes, supra note 117, at 1152. Van Der Werf describes spending limits as having been “advocated for years as a way to even the advantage incumbents have . . . .” Van Der Werf, supra note 3, at A1.
263 Colo. Republican, 121 S. Ct. at 2360 n.8. Although the FEC did not ask the Court to reconsider the expenditure limits approach in Buckley, the majority opinion, joined by five justices, notes in a footnote that “such limits could be justified in light of post-Buckley developments in campaign finance.” Id. In addition, Justice Kennedy’s dissent in Nixon v. Shrink Missouri states that there could be a scheme with some limits on expenditures that would meet constitutional scrutiny, and Justice Breyer notes in his dissent that Buckley and its expenditure limits ruling could be reconsidered. Nixon, 528 U.S. at 405, 409. This would seem to indicate that several justices, perhaps a majority, are willing to reconsider Buckley. See id.; Colo. Republican, 121 S. Ct. at 2360 n.8. However, the Tenth Circuit noted recently that although “The district court also perceived that the Supreme Court currently was divided over Buckley’s scope . . . the statements [questioning Buckley] are not those of a majority even if joined by other members of the Court.” Homans, No. 01–2271, at 8. The Tenth Circuit also noted that “the Supreme Court has not suggested that the distinction between campaign expenditures and campaign contributions is about to change.” Id. at 9. See generally Buckley, 424 U.S. 1 (1976).
264 See Mary Becker, Patriarchy and Inequality: Towards a Substantive Feminism, 1999 U. Chi. Legal F. 21, 60 (1999) (drawing the conclusion that “Women, African Americans, Latinos and other disproportionately poor groups near the bottom of the social structure have less political power in an electoral system in which voice and power can be purchased than they would in a system with public financing of campaigns, stringent spending limits, and free media time . . . .”); Raskin & Bonifaz, supra note 63, at 279 n.26; Copeland, supra note 57, at 20.
265 See Colo. Republican, 121 S. Ct. at 2356; Buckley, 424 U.S. at 19, 143; Homans, No. 01–2271, at 10–11.
266 Buckley, 424 U.S. at 57 n.65.
267 Id.
268 See id.; 26 U.S.C. §§ 9001–9013 (2000).
269 See Hrebenar, et al., supra note 194, at 164–65; Blasi, supra note 250, at 1318–19; Harold E. Ford, Jr. & Jason M. Levien, A New Horizon for Campaign Finance Reform, 37 Harv. J. on Legis. 307, 317–22 (2000); Jamin Raskin & John Bonifaz, The Constitutional Imperative and Practical Superiority of Democratically Financed Elections, 94 Colum. L. Rev. 1160, 1189–1202 (1994) [hereinafter The Constitutional Imperative]; Wertheimer & Weiss Manes, supra note 117, at 1149–54.
270 See S. 27, 107th Cong. (2001); Hrebenar, et al., supra note 194, at 164–65. The authors list the elements of the older McCain-Feingold legislation, noting that the bill included: Voluntary spending limits ranging from $1.5 million to $8.25 million in the Senate and $600,000 per election in the House; thirty minutes of free, prime-time television on stations in their state for complying candidates; the ability for House and Senate candidates to purchase advertising time at 50% of the lowest rate; and mailing benefits for complying candidates. See Hrebenar, et al., supra note 194, at 164–65.
271 See Hrebenar, et al., supra note 194, at 164–65; Price, supra note 48, at 27; Blasi, supra note 250, at 1318–19. Wertheimer & Weiss Manes encourage limited amounts of free television time through the use of vouchers, citing the fact that “Television is the most powerful means of communication in our society and plays a critical role in our national elections.” Wertheimer & Weiss Manes, supra note 117, at 1151.
272 Wertheimer & Weiss Manes, supra note 117, at 1151–52.
273 See Hrebenar, et al., supra note 194, at 164–65 (outlining a former version of the McCain-Feingold bill that offers participating Senate candidates thirty minutes of free, prime-time television on stations in their state, and House and Senate candidates could also purchase advertising time at 50% of the lowest rate); Marty Jezer et al., A Proposal for Democratically Financed Congressional Elections, 11 Yale L. & Pol’y Rev. 333, 345, 349–51, 354–59 (1993) (endorsing a plan by The Working Group on Electoral Democracy that would give a House candidate fifteen minutes for the primary and thirty minutes for the general election and thirty minutes to each Senate candidate during the primary and sixty minutes for the general campaign, all in one to five minute slots); Raskin & Bonifaz, supra note 269, at 1196–97 (1994) (endorsing The Working Group on Electoral Democracy’s proposal); Wertheimer & Weiss Manes, supra note 117, at 1151–52; Curran, supra note 3 (explaining that Clinton’s 1993 campaign finance proposal included a $600,000 voluntary spending cap for House candidates who would receive up to $200,000 in “communication vouchers” to be used to buy print and broadcast advertising.)
274 Price, supra note 48, at 27.
275 Id.; Sunstein, supra note 53, at 1412 (admitting that a system in which the government ensures a candidate is not at a substantial disadvantage has numerous problems including who would qualify and what would prevent candidates from being unfairly excluded).
276 Ford & Levien, supra note 269, at 317–22; Raskin & Bonifaz, supra note 269, at 1189–1202; Wertheimer & Weiss Manes, supra note 117, at 1149–54.
277 Ford & Levien, supra note 269, at 318; Raskin & Bonifaz, supra note 269, at 1191; Wertheimer & Weiss Manes, supra note 117, at 1149.
278 Ford & Levien, supra note 269, at 318 (requiring $20,000 raised in $100 increments to qualify); Raskin & Bonifaz, supra note 269, at 1190 (requiring 1000 $5 contributions for House candidates and 2000 $5 contributions for Senate candidates in states with one House district, and an additional 250 per district); Wertheimer & Weiss Manes, supra note 117, at 1149 (requiring qualifying contributions, but leaving out the details of the number and amount of those qualifying contributions).
279 Ford & Levien, supra note 269, at 318 (charging the FEC with setting the amount of public funding for candidates based on various aspects of the district or state); Raskin & Bonifaz, supra note 269, at 1190–92 (listing specific dollar amounts for House and Senate candidates including House candidates receiving $100,000 in the primary and an additional $150,000 for the general campaign and Senate candidates receiving $100,000 for the primary plus $50,000 for each congressional district, and $150,000 for the general campaign plus $75,000 for each additional congressional district all in exchange for an agreement the candidate would not raise or private money during the primary and general election); Wertheimer & Weiss Manes, supra note 117, at 1149 (explaining a proposal could use either a matching formula which would lead to a partial publicly-funded system like presidential primaries, or a grant system that would give candidate full financing like the general presidential election).
280 Ford & Levien, supra note 269, at 319–20; Raskin & Bonifaz, supra note 269, at 1198–99; Wertheimer & Weiss Manes, supra note 117, at 1150.
281 Bruce A. Ackerman, Crediting the Voters: A New Beginning for Campaign Finance, Am. Prospect, Spring 1993, at 71; Richard L. Hasen, Clipping Coupons for Democracy: An Egalitarian/Public Choice Defense of Campaign Finance Vouchers, 84 Cal. L. Rev. 1, 5, 44 (1996); Sunstein, supra note 53, at 1412–13.
282 Ackerman, supra note 281, at 71 (explaining that each registered voter would get a balance of “red-white-and-blue money” or vouchers that would be the only source of funding to pay for elections); Hasen, supra note 281, at 22 (noting that voters could use the vouchers to fund candidates, licensed interest groups or political parties); Sunstein, supra note 53, at 1412.
283 Ackerman, supra note 281, at 71; Hasen, supra note 281, at 5; Sunstein, supra note 53, at 1412.
284 Hasen, supra note 281, at 44 (noting that although the Supreme Court should find such a proposal constitutional, “such an outcome is far from certain”).
285 See Ford & Levien, supra note 269, at 317–22; Raskin & Bonifaz, supra note 269, at 1189–1202; Wertheimer & Weiss Manes, supra note 117, at 1149–54; Carey Goldberg, Publicly Paid Elections Put to the Test in 3 States, N.Y. Times, Nov. 19, 2000, § 1, at 44; Hungry for Good News About the Election? Try This, USA Today, Dec. 6, 2000, at 24A [hereinafter Hungry for Good News]; Rick Klein, Clean Elections Act Alters Terrain in Maine, Boston Globe, Feb. 26, 2001, at A1; Josh Silver, Reform Effort Likely to Miss; Priorities: As Congress Studies the Languishing Bill to Reform Campaign Finance, Loopholes in the Legislation May Prevent Even a Passed Version from Staying True to the Cause, Balt. Sun, Jan. 21, 2001, at 1C.
286 Az. Rev. Stat. Ann. § 16–940 (2000); Me. Rev. Stat. Ann. tit. 21A, § 1121 (2000); Mass. Gen. Laws Ann. ch. 55A, § 1 (2000); Vt. Stat. Ann. tit. 17, § 2801 (2000); Robert Dreyfuss, Reform Beyond the Beltway; States as Laboratories of Clean Money, Am. Prospect, May-June 1998, at 50 (noting that Maine’s clean elections passed by a margin of 56 to 44% on November 5, 1996); Robert Dreyfuss, Reform Gets Rolling; Campaign Finance at the Grass Roots, Am. Prospect, July-Aug. 1999, at 39 (noting that the measure in Vermont was passed by the state legislature in 1997; the measure in Massachusetts garnered 67% of the vote in 1998; and the measure in Arizona, a conservative state, was passed by the voters by 51% to 49% in 1998). See Rick Klein, Clean Elections Concessions Offers May Not Save Funding Bill, Boston Globe, Sept. 27, 2001, at B5 [hereinafter Clean Elections Concessions]. Klein notes that actual funding for clean elections in Massachusetts has stalled. Id. See Section IVB.
287 See Me. Rev. Stat. Ann. tit. 21A, §§ 1121–1128 (2000); Daggett v. Comm’n on Gov’t Ethics & Election Practices, 205 F.3d 445 (1st Cir. 2000); CAMPAIGN FINANCE REFORM, A SOURCEBOOK, supra note 105 at 373; Hungry for Good News, supra note 285, at 24A.
288 Campaign Finance Reform, A Sourcebook, supra note 105, at 373; Ford & Levien, supra note 269, at 314; Dreyfuss, Reform Beyond the Beltway, supra note 286, at 50.
289 Me. Rev. Stat. Ann. tit. 21A, § 1123 (2000).
290 Id. § 1125 (1)–(3). Seed money cannot exceed $50,000 for gubernatorial candidates, $1500 for State Senate candidates and $500 for State House of Representatives candidate. § 1125 (2)(A)–(C). For gubernatorial candidates to qualify, 2500 verified registered voters must give a qualifying contribution, defined as $5 in the form of check or money order; a State Senate candidate must collect 150 such contributions; and a House candidate must collect fifty such contributions. §§ 1122(7), 1125(3).
291 § 1125(5)–(6).
292 §§ 1124–1125(7), (8)(A)–(C). The Fund disperses money based on the specific type of election: contested primaries, uncontested primaries, and contested general elections. Id. Revenues may not be expended for uncontested general elections. § 1125 (8)(D).
293 21-A M.R.S. § 1125(9). Matching funds can be triggered if a:
[F]inance or election report shows that the sum of a candidate’s expenditures or obligations, or funds raised or borrowed, whichever is greater, alone or in conjunction with independent expenditures reported under section 1019, exceeds the distribution amount under subsection 8, the commission shall issue immediately to any opposing Maine Clean Election Act candidate an additional amount equivalent to the reported excess. Matching funds are limited to 2 times the amount originally distributed under subsection 8, paragraph A or C, whichever is applicable.
Id.
294 Id. § 1125(13)-(14).
295 Id. §§ 1122(2), 1128.
296 Id. §§ 1015(1)-(2), 1056(1).
297 Daggett, 205 F.3d at 450. The plaintiffs included legislative candidates, campaign contributors, political action committees, and the Maine Libertarian Party. Id.
298 Id. at 472. The First Circuit did not rule on the $500 limit to gubernatorial candidates, finding that none of the parties in the suit had standing on that issue. Id.
299 Id.
300 See generally id.
301 Hrebenar, et al., supra note 194, at 168–70; Joseph E. Finley, The Pitfalls of Contingent Public Financing in Congressional Campaign Spending Reform, 44 Emory L.J. 735, 739–40 (1995) (addressing the constitutionality of contingent public funding which is like Maine’s matching program, in that the candidate receives extra money if their opponent exceeds a certain level); Smith, supra note 250, at 592.
302 Hrebenar, et al., supra note 194, at 168–70; Finley, supra note 301, at 739–40; Smith, supra note 250, at 610–24.
303 Campaign Finance as a Civil Rights Issue, supra note 236, at 48; Constitutional Implications of Campaign Finance Reform, supra note 250, at 197; Malcolm, supra note 172, at A23.
304 See Dreyfuss, Reform Beyond the Beltway, supra note 286, at 50.
305 Goldberg, supra note 285, at 44; Hungry for Good News, supra note 285, at 24A; Klein, Clean Elections Act Alters Terrain in Maine, supra note 285, at A1; Silver, supra note 285, at 1C.
306 Klein, Clean Elections Act Alters Terrain in Maine, supra note 285, at A1.
307 Goldberg, supra note 285, at 44; Hungry for Good News, supra note 285, at 24A; Klein, Clean Elections Act Alters Terrain in Maine, supra note 285, at A1; Silver, supra note 285, at 1C. In addition, more than 10,000 Maine residents made $5 contributions to candidates, spending on legislative races went down by 18%, and the disparity of funding between winners and losers “leveled off ‘significantly.’” Emmet Meara, Maine’s Clean Elections Called ‘Best System in the Nation’, Bangor Daily News, June 15, 2001, at B4.
308 See Klein, Clean Elections Act Alters Terrain in Maine, supra note 285, at A1.
309 Id.
310 Id.
311 See Id.; Malcolm, supra note 172, at A23.
312 Campaign Finance as a Civil Rights Issue, supra note 236, at 48; Constitutional Implications of Campaign Finance Reform, supra note 250, at 197.
313 Campaign Finance as a Civil Rights Issue, supra note 236, at 48 (including remarks by professor and journalist Roger Wilkins, who noted “And if you want to really equalize it, say nobody can give any money except we the people. So we’ll have public financing of campaigns. That seems to me to gets closer to one person, one vote than anything I know.”); Challenging the Campaign Finance System as a Voting Rights Barrier: A Legal Strategy, 43 How. L.J. 63, 73 (1999) (including a speech by civil rights activist Dr. Gwen Patton who explained “If we truly want to see a democratic society, we have to complete the unfinished business of the voting rights movement where the vote, not money, is the only determinant in the process. That means public financing for all political campaigns. There can be no compromise; no zigzag.”); Constitutional Implications of Campaign Finance Reform, supra note 250, at 183 (including a panel with American University professor Jamin Raskin who explained that a “superior alternative” to a private money system is public financing of elections); Continuing to Build a Movement: Legal and Grassroots Strategies, 43 How. L.J. 87, 99 (1999) (including a panel with Randall Kehler, formerly associated with Public Campaign, who explains that, “the solution has to be, in some way, shape or form, publicly financed elections.”); Ford & Levien, supra note 269, at 317–22; (including a plan for voluntary full public financing); Marcella Bombardieri, Campaign 2000; Quiet Reformer Activist Takes New Tack Against Big Money in Politics, Boston Globe, Nov. 4, 2000, at B1 (noting that John C. Bonifaz, founder of the National Voting Rights Institute, prefers a fully publicly funded system); National Digest, Fort Worth Star-Telegram, Feb. 13, 1999, at 4 (noting that the National Voting Rights Institute, the NAACP and other civil rights groups argue “public financing would help level the playing field for candidates who might be long on vision and ability but short n funding”); Press Release, Fannie Lou Hamer Project, NAACP Endorses Public Financing of Elections “Fannie Lou Hamer Would Be Proud” (July 11, 2001), at http://www.flhp.org/naacppress1.htm (last visited Jan. 22, 2002) [hereinafter NAACP Endorses Public Financing].
314 NAACP Endorses Public Financing, supra note 313.
315 Constitutional Implications of Campaign Finance Reform, supra note 250, at 197.
316 See id.; Campaign Finance as a Civil Rights Issue, supra note 1, at 19.
317 Warren Tolman, Cleaning Up Elections in Massachusetts, Boston Globe, July 6, 2000, at A15.
318 See H.R. 1189, 107th Cong. (2001) (sponsored by Rep. Cynthia A. McKinney, D-Ga., allowing states to create multi-seat congressional districts); H.R. 3068, 105th Cong. (1997) (a predecessor to H.R. 1189 also sponsored by McKinney along with thirteen co-sponsors, including nine black representatives); Becker, supra note 264, at 79–80 (outlining three proposals ranging in feasibility: a multi-member district scheme for the Senate, a constitutional amendment creating the regional election of senators, and a requirement that each state send at least one woman to the Senate); Suzanne Daley, French Parties Press for Women in Politics, N.Y. Times, Feb. 4, 2001, § 1, at 8 (outlining a new law passed in France last year that, starting with municipal elections this past March, political parties are obliged to have an equal number of male and female candidates in almost all elections, a law that “appears to go further than any other in the world in attempting to share representation more evenly between men and women”).
319 See Klarman, supra note 250, at 536–37; Sunstein, supra note 53, at 1400; Gail Collins, Campaign Finance 101, N.Y. Times, Mar. 2, 2001, at A23; Michelle Cottle, Where Are the Good Guys When We Need Them? While the Public Interest Groups Fiddle, Campaign Finance Reform Burns, Wash. Monthly, Sept. 1997, at 20; Curran, supra note 3.
320 See Klarman, supra note 250, at 536–37; Sunstein, supra note 53, at 1400.
321 See Cottle, supra note 319, at 20; Curran, supra note 3.
322 See Curran, supra note 3.
323 Id. The author explains that four Democratic constituencies, Southern conservatives, minorities, liberal reformers and women, all had different problems with Clinton’s 1993 campaign finance legislation. Id. Southern conservatives did not like provisions including some public funding, minority members did not like some PAC and soft money elements of the bill, women opposed the anti-bundling provision, and liberals complained the bill did not go far enough. Id.
324 See Collins, Campaign Finance 101, supra note 319, at A23. Collins explains the politics over the McCain-Feingold legislation in 2001:
Sometime this month, the McCain-Feingold campaign finance reform bill is going to come up in the Senate. Its supporters have the votes to win, in theory. But there are pitfalls. A theoretically sympathetic senator could offer an amendment that eases the rules for unions, or Emily’s List, or the Christian Coalition, and suddenly—poison pill!—the whole fragile coalition of support cracks. And when people read about it the next day, looking to see whom they ought to blame, they’ll see a phrase like “express advocacy” or “coordinated expenditure restrictions” and find their eyes sliding over to the weather report. There are senators committed to voting for the bill who would secretly like to see it die.
Id. And ultimately, at least in 2001, it appears as though Collins’s remarks have proven to be prophetic: The House version of McCain-Feingold stalled in that chamber initially because of an anti-reform procedural maneuver. See Alison Mitchell, Campaign Measure Shelved After Fierce Fight on Rules, N.Y. Times, July 13, 2001, at A1 [hereinafter Campaign Measure Shelved]. The terrorist attack on September 11, 2001 further sidelined the measure. See David S. Broder, Some Action on Hill Delayed to Avoid Divisive Debates, Wash. Post, Sept. 24, 2001, at A1. However, the collapse of Enron, a company that donated a significant amount of money to both political parties, brought the measure back to life in early 2002. See Alison Mitchell, Enron’s Woes Revive Debate on Campaigns, N.Y. TIMES, Jan. 22, 2002, at A16 [hereinafter Enron’s Woes].
325 See Silver, supra note 285, at 1C. Silver explains that “the original legislation has been gutted,” having lost provisions involving bundling and free air time, leaving the bill “riddled with loopholes.” Id.
326 See S. 27, 107th Cong. (2001); Hrebenar, et al., supra note 194, at 164–65. The authors list the elements of the older McCain-Feingold legislation, noting that the bill included voluntary spending limits ranging from $1.5 million to $8.25 million in the Senate and $600,000 per election in the House, and in return offered complying candidates thirty minutes of free, prime-time television on stations in their state, and House and Senate candidates could also purchase advertising time at 50% of the lowest rate; also, the bill included mailing benefits for complying candidates. See Hrebenar, et al., supra note 194, at 164–65; Silver, supra note 285, at 1C. The bill that passed the Senate does not contain any of these provisions. See S. 27, 107th Cong. (2001); Mitchell, Campaign Finance Bill Passes in Senate, supra note 5, at A1.
327 See Van Dongen & Keller, supra note 2. The authors explain that, “most strategists believe that the issue doesn’t have much political bite.” Id.
328 Alison Mitchell, 2 Groups in House Are at Focal Point on Campaign Bill, N.Y. Times, July 12, 2001, at A1 (noting that “two pivotal groups” were at the center of the future of reform, “Republican freshman and black Democrats.”)
329 See Mitchell, Campaign Finance Bill Passes in Senate, supra note 5, at A1. Months before the House began debate on Shays-Meehan, House Majority Whip Rep. Tom Delay, R-Tex., vowed to “‘try anything I can’ to kill it.” Id.
330 See Mitchell, Campaign Measure Shelved, supra note 324, at A1. House leaders insisted that sponsors of the bill would have to introduce each of the minor changes to their bill in a separate measure, fourteen in all, rather than allowing them to put forward one package. Id. Supporters of the legislation felt this was too difficult and therefore told supporters to vote down the rules, therefore postponing taking up the issue. Id. Opponents had already tried to avoid passing the Shays-Meehan bill by backing a measure by Rep. Bob Ney, R-Ohio, that allowed contributors to give up to $75,000 a year to each of the six national political committees and allowed unlimited contributions to state parties. Id.
331 See Broder, supra note 324, at A1; Amy Keller, Election Reform Efforts Expected to Move Forward, Roll Call (D.C.), Sept. 24, 2001. Following the failure of bringing debate on Shays-Meehan, proponents were collecting signatures for a petition to force the House leadership to bring the issue on to the calendar. See Broder, supra note 324, at A1. Supporters had collected 210 of 218 needed signatures before the terrorist attack. Id. The signature drive stopped after the attack and many questioned whether or not the issue would reappear on the agenda because of more pressing national concerns. See id.; Keller, supra. However, when Enron collapsed, the media focused on the company’s significant campaign donations and political access, whereby re-igniting the drive for reform. See Mitchell, Enron’s Woes, supra note 324. As a result, by January 21, supporters expected to pick up the signatures they needed to force the House leadership to schedule a floor debate. See id.
332 See Dreyfuss, Reform Gets Rolling, supra note 286, at 39; Terry Ganey, Missourians Reject Public Financing of Election Campaigns; Proposal to Restrict Billboards Appeared to Pass, St. Louis Post-Dispatch, Nov. 8, 2000, at A15 (explaining that the ballot initiative, which failed by a 2–1 margin, was “a target for business organizations like the Chamber of Commerce and Associated Industries of Missouri” because it would have been funded through a corporate franchise tax on 7500 employers); The Measures, Oregonian, Nov. 8, 2000, at C4 (listing a ballot initiative, public money for candidates, as going down to defeat with 60% voting against the proposal).
333 Klein, Clean Elections Concessions, supra note 286, at B5.
334 Rick Klein, Justices Hit Lawmakers on Clean Elections, BOSTON GLOBE, Dec. 4, 2001, at B1. As of January 22, 2002, the Supreme Judicial Court had not yet ruled on the fate of clean elections in Massachusetts.
335 See O’Connor & Sabato (3d ed. 1998), supra note 5, at 375; Mitchell, Campaign Measure Shelved, supra note 324, at A1. O’Connor and Sabato explain that although campaign finance reform is a “favorite Washington topic . . . little legislation is ever passed.” See O’Connor & Sabato (3d ed. 1998), supra note 5, at 375.
336 Adam Clymer, Many Proposals, Few Supporters, On Campaign Law, N.Y. Times, Apr. 6, 1997, § 1, at 1 [hereinafter Many Proposals] (quoting Meehan).
337 See Hrebenar et al., supra note 194, at 158; Malbin & Gais, supra note 198, at 152–53; McGlen & O’Connor, supra note 158, at 87; Theilmann & Wilhite, supra note 10, at 129, 146; Ansolabehere & Snyder, supra note 180, at 608, 617; Becker, supra note 264, at 79–80; Briffault, supra note 179, at 660–61; Campaign Finance as a Civil Rights Issue, supra note 236, at 46–47 (1999); Ford & Levien, supra note 269, at 317–22; In-Kind Donations to Political Campaigns, supra note 143, at 34; Raskin & Bonifaz, supra note 63, at 279 n.26; Raskin & Bonifaz, supra note 269, at 1189–1202; Wertheimer & Weiss Manes, supra note 117, at 1135, 1149–54; Clymer, Many Proposals, supra note 336, at 1; Curran, supra note 3; Friedman, supra note 143, at 50; Lewis, supra note 143, at A25; Pruitt, supra note 236, at 4E; Schwinn, supra note 143, at A10; Shanahan, supra note 71, at 9.
338 See Sunstein, supra note 53, at 1390, 1409–10; Clymer, Many Proposals, supra note 336, at 1.
339 See Hrebenar et al., supra note 194, at 158; Malbin & Gais, supra note 198, at 152–53; McGlen & O’Connor, supra note 158, at 87; Theilmann & Wilhite, supra note 10, at 129, 146; Ansolabehere & Snyder, supra note 180, at 608, 617; Becker, supra note 264, at 79–80; Briffault, supra note 179, at 660–61; Campaign Finance as a Civil Rights Issue, supra note 236, at 46–47 (1999); In-Kind Donations to Political Campaigns, supra note 143, at 34; Raskin & Bonifaz, supra note 63, at 279 n.26; Wertheimer & Weiss Manes, supra note 117, at 1135; Friedman, supra note 143, at 50; Lewis, supra note 143, at A25; Pruitt, supra note 236, at 4E; Schwinn, supra note 143, at A10; Shanahan, supra note 71, at 9.
340 In-Kind Donations to Political Campaigns, supra note 143, at 34; Wertheimer & Weiss Manes, supra note 117, at 1135; Friedman, supra note 143, at 50; Lewis, supra note 143, at A25; Schwinn, supra note 143, at A10; Shanahan, supra note 71.
341 See Hrebenar et al., supra note 194, at 158; Malbin & Gais, supra note 198, at 152–53; McGlen & O’Connor, supra note 158, at 87; Theilmann & Wilhite, supra note 10, at 129; Ansolabehere & Snyder, supra note 180, at 608, 617; Briffault, supra note 179, at 660–61.
342 See Hrebenar et al., supra note 194, at 158; Malbin & Gais, supra note 198, at 152–53; McGlen & O’Connor, supra note 158, at 87; Theilmann & Wilhite, supra note 10, at 129; Ansolabehere & Snyder, supra note 180, at 608, 617; Briffault, supra note 179, at 660–61. Despite evidence that suggests a soft money ban could be detrimental to minority and female candidates, the issue is not clear cut; some participants in the public debate have taken the opposite approach and support a ban on soft money. See The Purposes and Beneficiaries of Party “Soft Money”, supra note 205; Memorandum to Congressional Black Caucus, supra note 223; Hosler, supra note 221, at A1.
343 See Theilmann and Wilhite, supra note 10, at 146; Campaign Finance as a Civil Rights Issue, supra note 236, at 46–47 (1999); Pruitt, supra note 236, at 4E.
344 See Raskin & Bonifaz, supra note 63, at 279 n.26; Copeland, supra note 57, at 20 (noting “Few challengers have the capacity to spend the amount of money necessary to beat an incumbent.”).
345 See Hook & McManus, supra note 238, at A1.
346 Id. The authors note, “One outcome is clear: Abolishing soft money and relying entirely on hard money favors incumbents, no matter what their party”; in addition, the Senate added “several other incumbent-friendly amendments.” Id. Sen. Christopher Dodd, D-Conn., has said that the amendment protecting candidates who face wealthy opponents is “pretty much incumbency protection.” Id. Ultimately, the measures in McCain-Feingold, “are likely to make incumbent politicians even more powerful and secure than they are now.” Thomma, supra note 196, at G6.
347 Fears, supra note 221, at A1; Hosler, supra note 221, at A1 (noting that up to half of Rep. Wynn’s Congressional Black Caucus colleagues “appeared to be aligned with him” against the Shays-Meehan bill); Mitchell, Blacks and Hispanics in House Balk, supra note 221, at A1; Mitchell, House G.O.P. Seeks New Way, supra note 190, at A1. One possible reason why race was not as much of a factor in the Senate debate is because of the dismal representation of minority members in the Senate. See Bositis, The Black Vote in 2000, supra note 13, at 3 (listing a total of thirty-nine black members elected to the 107th Congress, including thirty-seven black voting House members and two black non-voting House delegates).
348 Fears, supra note 221, at A1 (noting that “The smaller Congressional Hispanic Caucus issued a formal notice that it has major concerns regarding the Shays-Meehan bill . . . .”); Hosler, supra note 221, at 1A; Mitchell, Blacks and Hispanics in House, supra note 221, at A1; Mitchell, House G.O.P. Seeks New Way, supra note 190, at A1. Even some members of the Congressional Black Caucus who said they would vote for Shays-Meehan expressed some reservations:
We do believe in campaign finance reform . . . . Soft money has been used to drown out the voices of our constituents and people like them across the country. But the question is whether a soft-money ban that takes money away from get-out-the-vote efforts is almost suicidal for the black caucus.
Hosler, supra note 221, at 1A (quoting Rep. Elijah E. Cummings, D-Md.). Dissenters to this logic argue that a ban on soft money would return politics to a more grass-roots approach and would increase the clout of poorer and minority districts by reducing the power of big-money politics. See Donna Brazile, Soft Money’s Scanty Leftovers, N.Y. Times, July 11, 2001, at A17; Fears, supra note 221, at A1. In fact, Rep. Wynn took criticism for his stance against Shays-Meehan and for co-sponsoring legislation with Rep. Ney that would limit but not completely ban soft money. See Hosler, supra note 221, at 1A. Hosler notes, “Some of Rep. Albert R. Wynn’s colleagues in the Congressional Black Caucus say they are troubled, even angry, that he would work to defeat what they see as a crucial political reform.” Id.
349 Mitchell, Blacks and Hispanics in House, supra note 221, at A1. Some members said problems with black citizens voting in Florida during the 2000 election emphasized the need for voter mobilization efforts; Rep. Wynn, said “‘Florida made all of us aware of what goes on at the street level, the need for voter registration for example.” See id. In addition, another member noted “‘If you take away the source of funding for the get-out-the-vote campaign, you undercut the black community.’” See id. (quoting Rep. James E. Clyburn, D-S.C.)
350 See Thomma, supra note 196, at G6. Thomma warns about unforeseen results, and quotes Boston University History Professor Bruce Schulman as saying reform “‘always has unintended consequences because people find creative ways to evade the rules.’” Id. Thomma notes that McCain-Feingold could limit the parties’ ability to bring new voters to the polls, make parties more dependent on interest groups whereby giving them more clout, and make incumbents even more secure. See id.
351 See Raskin & Bonifaz, supra note 269, at 1194; Curran, supra note 3.
352 See Curran, supra note 3.
353 See Jezer, et al., supra note 273, at 347; Raskin & Bonifaz, supra note 269, at 1194.
354 See Jezer, et al., supra note 273, at 347; Raskin & Bonifaz, supra note 269, at 1194. This source of funding would only be available to qualifying challengers because incumbents’ congressional salary would bar them from receiving this money. See Jezer, et al., supra note 273, at 347.
355 See Lieberman, supra note 250, at 463. The author describes reform like closing the soft money loophole as being “incremental reform” as opposed to “comprehensive reform,” which seems to be described as “radically recast[ing] our entire campaign finance system.” Id. at 462–63.
356 See Constitutional Implications of Campaign Finance Reform, supra note 250, at 197; Dreyfuss, Reform Gets Rolling, supra note 286, at 39 (noting that a “disparate coalition” including women’s groups and civil rights organizations among other groups were targeting states for clean money campaigns); Klein, Clean Elections Act Alters Terrain in Maine, supra note 285, at A1; Malcolm, supra note 172, at A23.
357 Ford & Levien, supra note 269, at 317–22; Raskin & Bonifaz, supra note 269, at 1189–1202; Wertheimer & Weiss Manes, supra note 117, at 1149–54.
358 See H.R. 1637, 107th Cong. (2001); See Klarman, supra note 250, at 536–37; Collins, Campaign Finance 101, supra note 319, at A23; Cottle, supra note 319, at 20; Curran, supra note 3.
359 See H.R. 1637, 107th Cong. (2001). Sen. Paul Wellstone, D-Minn., introduced a companion measure in the Senate on April 5, 2001 calling for full public funding of Senate elections. See S. 719, 107th Cong. (2001). Because the bills are very similar and because Tierney has garnered forty-nine co-sponsors as opposed to Wellstone’s two co-sponsors, Tierney’s bill will be used as a model. See id.; S. 719, 107th Cong. (2001), Bill Summary & Status for the 107th Congress, at http://thomas.loc.gov/cgi-bin/bdquery/z?d107:SN00719: @@@L&summ2=m& (last visited Jan. 22, 2002); H.R. 1637, 107th Cong. (2001), Bill Summary & Status for the 107th Congress, at http://thomas.loc.gov/cgi-bin/bdquery/z?d107: HR01637:@@@L&summ2=m& (last visited Jan. 22, 2002).
360 H.R. 1637, 107th Cong. §§ 501(15), 502(a)(1)–(2), 505(a) (2001) (explaining that qualified candidates shall be certified no later than five days after a candidate files a declaration). A “Major Party Candidate” is defined as “a candidate of a political party of which a candidate for Member of or Delegate or Resident Commissioner to the Congress, for President, or for Governor in the preceding 5 years received, as a candidate of that party, 25 percent or more of the total number of popular votes received in the State (or Congressional district, if applicable) by all candidates for the same office.” Id. § 501(9). Qualifying contributions are defined as $5 exactly from registered voters from the candidate’s state. See § 501(15).
361 Id. § 502(a)(2)(D).
362 Id. § 502(b).
363 Id. § 503. The bill does allow a candidate or a member of a candidate’s immediate family to make a qualifying contribution. Id. § 503(b)(2).
364 H.R. 1637, 107th Cong. § 501(16), § 504(a) (2001).
365 Id. § 504(a), (d), (g) (explaining that unspent seed money must be returned before clean election funds are made available for an election period); § 506(b)(1)–(2) (explaining that money shall be made available on the later date of either when the candidate is certified or the date on which the primary election period begins for the primary, and forty-eight hours after certification of the primary results or the date in which a candidate is certified as a general election clean candidate, whichever comes first).
366 Id. § 506(c). The “applicable percentage” is: “25 percent, in the case of a candidate in a primary election who is not a major party candidate; 40 percent, in the case of a major party candidate in a primary election; 60 percent, in the case of any candidate in a general election.” Id. § 506(c)(3)(A)(i)–(iii).
367 Id. § 506(c)(3)(B).
368 Id. § 506(d). The bill limits matching funds to 200% of the clean money amount available. Id. § 506(e).
369 H.R. 1637, 107th Cong. §§ 301(c), 302, 501–508 (2001).
370 See generally id.
371 See H.R. 1637, 107th Cong. (2001), Bill Summary & Status for the 107th Congress, supra note 359.
372 See Raskin & Bonifaz, supra note 269, at 1190 (including House and Senate candidates). Senator Wellstone’s companion measure in the Senate calls for full public funding for Senate elections. S. 719, 107th Cong. (2001). If it is easier procedurally to split up the bills, then it makes sense to do so; however, it is important to note that full public funding will not be full until both House and Senate candidates have the clean election option. See S. 719, 107th Cong. (2001); H.R. 1637, 107th Cong. (2001).
373 See S. 719, 107th Cong. (2001) (providing public funding for just the Senate); H.R. 1637, 107th Cong. § 502(a)(2)(A) (2001) (requiring a major party candidate to collect 1500 qualifying contributions for House elections, but failing to provide a mechanism for Senate elections); Raskin & Bonifaz, supra note 269, at 1190; Bositis, The Black Vote in 2000, supra note 13, at 3 (failing to list a single black member of the Senate in the 107th Congress); Election 2000, supra note 28 (listing thirteen female senators in the 107th Congress).
374 See H.R. 1637, 107th Cong. § 501(15)(B) (2001); Constitutional Implications of Campaign Finance Reform, supra note 250, at 197 (including an explanation from Raskin that “The reason why so many members of the Congressional Black Caucus raise their money out of state is because the people in their districts cannot afford to give them the huge sums of money that are required to run for public office”).
375 See H.R. 1637, 107th Cong. § 506(c)(3)(B) (2001).
376 See Ford & Levien, supra note 269, at 318 (charging the FEC with setting the amount of public funding for candidates based on various aspects of the district or state).
377 See Jezer, et al., supra note 273, at 347; Raskin & Bonifaz, supra note 269, at 1194. The bill also bans soft money, limits independent and coordinated political party expenditures, and increases the aggregate individual contribution limit from $25,000 to $30,000 among other things. See H.R. 1637, 107th Cong. §§ 201–204, 401, 402 (2001). While these changes are not ideal, the strength of the public funding provisions makes the overall bill an excellent piece of campaign finance legislation with respect to female and minority candidates. See generally id.
378 See also S. 719, 107th Cong. (2001). See generally H.R. 1637, 107th Cong. (2001).
379 See Ford & Levien, supra note 269, at 320–21; Wertheimer & Weiss Manes, supra note 117, at 1153.
380 See Raskin & Bonifaz, supra note 269, at 1200. The authors estimated the cost of their full-funding proposal for House and Senate elections at $500 million per year, an estimate based on their calculations before their article’s publication in 1994. Id. at 1200 n.42; David E. Rosenbaum, Plan to Tie Tax Cut to Surplus Gains; G.O.P. Tries to Stop It, N.Y. Times, Mar. 8, 2001, at A16 (explaining that the Congressional Budget Office is projecting a $5.6 trillion budget surplus over the next ten years).
381 See Raskin & Bonifaz, supra note 269, at 1189–90, 1200–01.
382 Campaign Finance Reform as a Civil Rights Issue, supra note 1, at 19 (including William McNary, co-director of Citizen Action/Illinois, who notes that clean election reform will take “a cataclysmic shift in power” that should be a movement including “labor, and churches, and rotary clubs, and women’s groups, and people of color”); Clymer, Many Proposals, supra note 336, at 1; Dreyfuss, Reform Beyond the Beltway, supra note 286, at 50 (noting that “reformers will have to assemble a lot of political muscle and millions of dollars to back up their arguments . . . . Public financing may indeed be a bandwagon, but it will be some time before it shifts out of first gear.”).
383 See Constitutional Implications of Campaign Finance Reform, supra note 250, at 197; Klarman, supra note 250, at 536–37; Sunstein, supra note 53, at 1400; Bositis, The Black Vote in 2000, supra note 13, at 3; Collins, Campaign Finance 101, supra note 319, at A23; Cottle, supra note 319, at 20; Curran, supra note 3; Election 2000, supra note 28; Klein, Clean Elections Act Alters Terrain in Maine, supra note 285, at A1; Malcolm, supra note 172, at A23.
384 See S. 17, 107th Cong. § 312 (2001). The legislation calls for a study and report to be completed by the Comptroller General of the United States looking into the number of candidates and races impacted by clean election money and the effects of such money on candidates in Arizona and Maine. See id.
385 See Bositis, The Black Vote in 2000, supra note 13, at 3; Election 2000, supra note 28.
386 See S. 176, 107th Cong. (2001); S. 27, 107th Cong. (2001); S. 22, 107th Cong. (2001); S. 17, 107th Cong. (2001); H.R. 1637, 107th Cong. (2001); H.R. 380, 107th Cong. (2001); H.R. 151, 107th Cong. (2001); S. 2941, 106th Cong. (2000); H.R. 2866, 106th Cong. (1999); H.R. 3068, 105th Cong. (1997); Proposals at a Glance, supra note 4.
387 See Herrnson, supra note 7, at 244; Overton, But Some Are More Equal, supra note 9, at 6-7.
388 See sources cited supra note 337, 340; Bositis, The Black Vote in 2000, supra note 13, at 3; Election 2000, supra note 28; Hook & McManus, supra note 238, at A1.
389 See Me. Rev. Stat. Ann. tit. 21A, §§ 1121–1128 (2000); Constitutional Implications of Campaign Finance Reform, supra note 250, at 197; Malcolm, supra note 172, at A23.
390 See Sunstein, supra note 53, at 1390; Overton, But Some Are More Equal, supra note 9, at 6–7; Thomma, supra note 196 (explaining that McCain-Feingold could result in stronger political interest groups, reduced voter participation, and weakened political parties).