[*PG99]THE FORGOTTEN FEW:CAMPAIGN FINANCE REFORM AND ITS IMPACT ON MINORITY AND FEMALE CANDIDATES

Jason P. Conti*

Abstract:  Campaign finance reform attracts intense political, academic, and media attention. The debate swirling around the McCain-Feingold legislation in 2001 is evidence of the power of the issue. Despite the intensity of the spotlight, commentators and politicians often overlook an important element of any proposed reform: diversity. This Note explores campaign finance reform from an under-explored angle: the impact proposed reforms would have on minority and female candidates. This Note explores the woefully inadequate diversity of representation in elective office and critiques numerous proposals for change from the perspective of a prospective minority or female candidate. This Note concludes that in order for the diversity of those holding elective office to better reflect the diversity of the nation as a whole, reformers must take the concerns of minority and female candidates into account and must institute publicly funded campaigns.

The two most important things in politics are money and I can’t remember what the other one is.

Mark Hanna1

During every election cycle, politicians, incumbents and challengers trumpet the need for campaign finance reform.2 However, once the election cycle has ended and a large percentage of the politicians already in the House of Representatives and the Senate return to those bodies, the issue seems to face stiff opposition and insurmountable odds.3 Certainly, reform does not fail to occur because of a [*PG100]lack of bills; in each Congress, a significant number of proposals are introduced presumably to bring about meaningful reform.4 Despite seemingly good intentions, with the exception of the campaign finance bill that passed the Senate in April 2001, campaign finance legislation usually does not leave its assigned committee, and the legislation that does manage a full vote in the House or Senate usually fails to gain a majority.5

While there is no shortage of campaign finance reform legislation, the real problems with campaign finance laws, for the most part, are not being addressed within the blizzard of proposed legislation.6 Reformers hope to achieve several different intended goals when proposing a change, including controlling campaign costs and controlling where campaign money originates.7 However, the main goal of any real campaign finance reform must be to increase the competitiveness of congressional elections by attempting to level the playing field between incumbents and challengers.8

While increasing parity between challengers and incumbents is an often-touted idea from reformers, particularly academics as op[*PG101]posed to entrenched incumbents, most reformers often overlook a significant factor: the effect of any proposed reform on minority and female candidates.9 Because of the dearth of minority and female politicians in Congress and in gubernatorial mansions across the country, minority and female candidates tend to start from the inferior challenger position.10 In addition to facing systemic dilemmas encountered by most challengers, minority and female candidates come to electoral contests with a host of unique disadvantages and concerns.11 It has long been known that the percentage of minorities and women in Congress is disproportionately low compared to the overall population; linking the problem to money, however, is a recent and under-explored area.12

Part I of this article examines the dismally low representation of women and minorities in elective office, focusing on Congress because of its position as a feeder for higher office (i.e. the presidency). Part II details the monetary problems of all challengers and highlights the specific struggles faced by minority and female candidates. In ad[*PG102]dition, Part III details several of the most popular campaign finance proposals, explaining how each proposal, if implemented, would impact minority and female candidates. Part IV focuses on the positive campaign finance reform experiment in Maine, a full public funding scheme, and also explores the force of politics in limiting reform. Finally, Part V of the article details the best and worst reform proposals with regard to female and minority candidates, and stresses the need for reformers to take the interests of minority and female candidates into account when devising any possible campaign finance reform.

I.  Congressional Composition: The Melting Pot
Skipped Congress

A.  Minority Congressional Composition

The 2000 election included a record number of black candidates for federal office on major party tickets, a total of seventy candidates, an increase from fifty-seven in 1998.13 Despite the increase in candidates, however, the thirty-nine black members elected in 2000 to the 107th Congress equals the number of black members in the 106th Congress.14 Even worse, the only non-incumbent black candidate for a federal office who won in 2000 was William Clay, Jr. from Missouri, who won his House seat from his retiring father.15 Of the thirty-three black challenger or open-seat candidates in 2000, thirty-two of them lost—everyone except Clay.16

[*PG103] The Senate will again be without a single black member among its ranks.17 In addition, in the last six election cycles (every two years from 1990 through 2000), a span that has seen each of the 100 Senate seats come up for election twice (a total of 200 races) there have only been a total of ten black major-party nominees, representing less than 3% of the overall total.18 In the 107th Congress, with 535 voting members in the House and Senate and five non-voting delegates, blacks comprise thirty-seven voting members, and two delegates, or 7.2%.19 The 2000 census revealed that blacks comprise 12.1% of the nation’s population, unchanged from the 1990 census.20

On the state level, eleven major-party black candidates sought statewide elective office in 2000, down from twenty-five in 1998.21 Of the eleven candidates, four were winners.22 The four black victors included a public service commissioner in Georgia, a North Carolina Court of Appeals justice, North Carolina’s state auditor and the Texas railroad commissioner.23

The dismal representation level of Hispanics has become that much more apparent since the release of the minority percentage breakdown from the 2000 census.24 The Hispanic population grew by [*PG104]about 58% compared to the 1990 census and for the first time has surpassed blacks as the largest minority group.25 Hispanics went from comprising 9.3% of the population to comprising 12.5% following the 2000 census.26 Despite the rise, there are only twenty-one Hispanic representatives in the House, about 4.8% of the total.27

B.  Women in Congress: A Slow Climb

In the 2000 election, the ranks of women in Congress swelled to a record number.28 Following the 2000 election, the Senate includes thirteen women, which is an increase of four women over the last Congress.29 Every woman who received a major party nomination for the Senate in the year 2000 won in the general election.30 In addition, the House has a record number of women serving in the 107th Congress, swelling to sixty women as well as two non-voting delegates.31 The fifty-four incumbent female representatives are joined by eight new women in the House; five female candidates won open-seat elections in 2000, two beat incumbents in 2000, and one won a special election in June 2001.32 The sixty-two members in the House (sixty [*PG105]voting members and two delegates) as well as the thirteen senators is roughly 13.9% of the total 535 voting members and five non-voting members of Congress.33 Every census since 1950 has shown that women outnumber men, and the 2000 census was no different; women make up 50.9% of the nation’s population.34

In the states, a record number of women are serving as governors.35 The five female governors following the 2000 election included two incumbents who did not face an election, one incumbent who won re-election, and two newcomers.36 In addition, women also serve in a number of other statewide elective offices.37 Despite other gains, however, the number of women in state legislatures after the 2000 election dropped slightly from 22.5% to 22.3%.38

[*PG106]C.  Congressional Diversity: A Limited History

The under-representation of minorities and women in Congress has improved but not at a precipitous rate.39 As Fordham University School of Law Professor Terry Smith points out, in the 208-year history of the Senate, there have been only four black senators, five Asian senators, and only three senators who appear to have Hispanic surnames.40 Smith paints a somewhat rosier picture of the historical composition of the House, noting that the percentages of minorities in the House has risen since redistricting following the 1990 census.41 However, despite the rise, as of 1996, fewer than 100 blacks had served in the House and Senate combined throughout the nation’s history.42 Women have enjoyed a slow yet steady climb in the number of female office-holders, increasing in the House from 2.5% of the total in 1967, to about 14% of the House following the 2000 elec[*PG107]tion.43 However, as of 1996, less than 200 women had been elected or appointed to Congress.44

Despite the noted gains in the percentages of minorities and women in Congress, the percentage of each in relation to the overall population is still grossly disproportionate.45 Minorities and women in Congress are so rare in fact, that this year a Pennsylvania congresswomen challenged a black female representative’s right to travel on a “members only” elevator not realizing that she was a member of Congress.46 In order to raise the percentages, minority and women candidates will either have to wait for more open seats to become available, which does not occur at a precipitous rate, or beat incumbents.47

II.  Money Gets in the Way

A.  Financial Problems Faced by Challenger Candidates

The problems faced by challengers, regardless of race or gender, is no secret in politics.48 David E. Price (D), a congressman from North Carolina first elected in 1986, has said that he knew when he [*PG108]decided to run that the odds of beating an incumbent were long at best: In each election from 1966 through 1984 (except for one), general election success rates for House incumbents were 92% or higher.49

While there are numerous reasons for incumbent success,50 certainly the financial advantage ranks among the most prominent.51 Price recalls how difficult it was to raise initial dollars to run for office, a process that made him understand why many qualified candidates simply will not jump through the political hoops necessary for success.52 Fundraising is so important that the only way challenger candidates can overcome the advantages of incumbency is to amass a gigantic war chest to support their effort.53 In order to amass the necessary funds, challengers face the equally unenviable prospects of either gathering large sums of money from individual donors and/or dipping into their personal funds.54 In short, the most effective steps towards attempting to unseat an incumbent involve elements that the average challenger cannot or will not do.55

[*PG109] Even if challenger candidates do amass the needed amounts of cash to mount a serious challenge, these candidates still do not perform as well as one might think.56 Studies have shown that throughout the years, there is a “reasonably strong and positive relationship between the amount of money spent by challengers and the share of the vote they received.”57 One study conducted by Professor Gary W. Copeland has shown that the expected vote totals for challengers is, in the words of the author, “truly depressing.”58 Copeland’s study shows that the average House challenger in 1998 spent about $300,000, and the predicted vote total at that level of spending was only 39.1%.59 In terms of predictive vote total based on spending, a House challenger who spent $1,000,000 received 43.1%; a challenger who spent $2,000,000 received 45.4%, which is “within striking distance.”60 In order for the predicted vote total to have been more than 50%, a House challenger would have had to spend $8,000,000.61 The findings confirm what has for a long time been intuitively known in politics: “Few challengers have the capacity to spend the amount of money necessary to beat an incumbent.”62

B.  The Never-Ending Struggle: Minority Candidates and Campaign Cash

Minority candidates, specifically challenger minority candidates, raise much less money than white candidates, ultimately leading to less success on election day.63 Jamin Raskin and John Bonifaz, in a Yale Law and Policy Review article, note that while the creation of majority-minority districts in which black or Hispanics comprise more than [*PG110]50% of the population has increased black and Hispanic representation in Congress, it seems likely that private financing of political campaigns “now systematically favors white candidates and white interests over minorities” in statewide races and races in majority-white districts.64

In 1994, both Ron Sims (D), a county official in Seattle, and Alan Wheat (D), a congressman from a Kansas City district that was 75% white, ran for the Senate as viable black candidates.65 While Sims ran in Washington against an incumbent, and Wheat ran for an open seat in Missouri, both candidates fell far behind their opponents in the fundraising race.66 Despite running viable campaigns, both candidates lost to white candidates by sizable margins.67 In addition, a fierce 2000 congressional race in Kentucky involved a white incumbent, Anne Northup (R), outspending her black opponent, Democratic Representative Eleanor Jordan, by a margin of almost two to one.68 In that race, described as a bell-weather because both candidates were in[*PG111]tense competitors, Jordan accused Northup of “using subtle racial slurs to malign her.”69

While each race comes with its own dynamics and it is difficult to generalize why black candidates do not do as well as white candidates, some have noted that a large contributing factor is the small amount of money blacks are willing or able to donate to campaigns.70 Many studies have shown that black candidates have a harder time raising funds than white candidates.71 One of the first major and often-cited studies of campaign funds and minority candidates comes from John Theilmann and Al Wilhite in their book Discrimination and Congressional Campaign Contributions.72 The authors note that aggregate campaign contributions to black candidates in general, when adjusted for various variables, on average resulted in a shortfall that ranged from $7000 to $30,000, meaning, “Apparently, being a black candidate in 1988 reduced a candidate’s campaign contributions by nearly $30,000.”73 As for individual contributions, Theilmann and Wilhite also note that black candidates face significant obstacles in cobbling together campaign donations.74 The authors’ research led them to two conclusions: First, individuals “appear to discriminate against black candidates,” and second, black candidates are more dependent on smaller contributions, which means higher costs trying to recruit additional small donations.75

Theilmann and Wilhite’s findings have been expanded upon in studies that continue to show that minority candidates have a more difficult time raising money to run for office.76 The results of the 1994 elections show a sobering picture for minority candidates: The average winning white candidate for the House during the 1994 election [*PG112]received $562,000, while the average successful black and Hispanic candidates raised less than two-thirds of that figure.77

In addition, Public Campaign, a non-profit, non-partisan group dedicated to campaign finance reform, conducted a study entitled The Color of Money that examined the sources of individual campaign contributions with respect to race during the 1996 federal election.78 The organization used zip code data from federal campaign reports and information from the U.S. Census to show that areas with the highest percentages of blacks do not give at the same rates as localities where whites comprise the majority.79 Public Campaign notes that because people of color tend to have “less wealth and lower incomes than whites in general,” it is to be expected that their giving levels are also lower.80 While much of Public Campaign’s findings tend to pit figures from the highest giving areas against figures from areas with a majority of people of color (not exactly a fair comparison), the numbers still show a disturbing disparity.81

Finally, a survey of donors who gave over $200 to the 1996 congressional campaign showed that less than one percent identified themselves as people of color.82 In general, all the evidence seems to point to one conclusion: Candidates of color raise less money.83 Given that the top-spending candidate in the 1998 House elections won 95% of the time, candidates with an inherent disadvantage in raising campaign cash will have a much more difficult time winning elections.84

[*PG113]C.  Women’s Fundraising Prowess

The ability of female candidates to collect campaign contributions is much greater than that of minority candidates, and in some circumstances, better than that of white, male candidates.85 However, this does not mean that female candidates do not face fundraising challenges that keep their numbers in Congress much lower than their 50% share of the population.86 Theilmann and Wilhite concluded that aggregate funding received by women was not significantly different than male candidates’ funding.87 However, although women were found to be at less of a financial disadvantage, the authors’ determination of a “total impact” of race and sex found that “black and female candidates suffer indirect discrimination” when it comes to fundraising.88 Furthermore, the authors conclude that “racial and sexual contribution differentials” will impact elections and the make-up of Congress regardless of the intent of the contributor, ultimately making further sexual and racial integration of Congress “an arduous task.”89

Despite such empirical evidence that shows women are able to compete in attracting campaign donations, some experts still suggest that the very nature of being a female candidate puts a politician at a disadvantage.90 Susan Carroll, in her book Women as Candidates in American Politics, starts with the assumption that women have difficulty in raising funds and then attempts to explain the reasons.91 While Carroll acknowledges that men also face fundraising problems, she notes that there are several reasons why raising funds is particularly difficult for women.92 First, Carroll notes that women “may face [*PG114]greater psychological barriers” in asking for money because of past socialization roles that did not expect women to be breadwinners.93 In addition, Carroll argues that many women are not tuned into “occupational and social networks” that can prove invaluable when trolling for dollars.94 Finally, Carroll contends that women are not as accustomed to giving money to politicians and therefore female candidates have a hard time raising money from other women.95

While the inherent problems women face may have an impact on their ability to collect campaign donations, recent studies have not reflected any perceived difficulty in raising funds96 However, other commentators have noted that such difficulties may not be reflected in empirical fundraising data because gender may hinder candidates in the earlier stages of the recruitment process.97 Some have suggested that female candidates in the early stages of a race may face problems with soliciting donors, with gaining the support of party elders, or with primary voters who may tend to be different kinds of voters.98

Despite the conflicting and tenuous conclusions regarding female candidates’ ability to attract campaign donations as compared to males, no one questions the unusually low percentage of female members of Congress as compared to the general population.99 In addition, the vast majority of large donors to political campaigns are men rather than women.100 Given this low percentage of representation, the fact that men are more likely to contribute to campaigns, and the fact that there appears to be inherent differences in male and [*PG115]female candidates’ fundraising (if not in aggregate donations than in the source of those donations), it follows that female candidates in general will feel the effect of reform in ways different than male candidates.101 Terry Smith concludes that, “the current system of campaign finance discriminates against women . . . [and] is unable to foster even symbolic diversity.”102

In addition to female candidates’ problems, minority candidates appear to face a host of fundraising problems that differ from those of the average white, male candidate, meaning that these candidates also will experience different effects as the result of reform than the average candidate.103 Because of these unique differences, it is essential for any campaign finance reform proposal to alter the laws to promote the election of minority and female candidates rather than inadvertently hinder their prospects.104

III.  An Abundance of Proposals

A.  Attacking a Key Element to Success: Political Action Committees

Political Action Committees (PACs) are one of the primary targets when reformers look to alter the current campaign finance sys[*PG116]tem.105 In order to understand what altering PACs would do to female and minority candidates, it is important to understand what PACs are and how they function.

Political committees are required to register with the Federal Election Commission (FEC) and are subject to limits on campaign contributions and sources of contributions.106 PACs are political committees that may be eligible for multicandidate political committee status, which brings with it an ability to donate more money.107 Multicandidate political committees can make contributions to any candidate or to their committee in any federal election up to $5000, not more than $15,000 in a calendar year to any political committee maintained by a national party, and up to $5000 per year to other political committees, including local and state party committees.108

PACs also employ another method to aid their candidates of choice: bundling.109 In essence, bundling allows a group to collect a [*PG117]large number of donations from a sizable group of donors, bundle them together, and present them to a candidate.110 This loophole requires certain reporting criteria for “earmarked” donations.111 Earmarked donations are those in which there is “a designation, instruction, or encumbrance, whether direct or indirect, express or implied, oral or written, which results in all or any part of a contribution or expenditure being made to, or expended on behalf of, a clearly identified candidate or a candidate’s authorized committee.”112 Reporting of such earmarked contributions requires that the conduit or intermediary report to the FEC and the recipient candidate the donor’s name and mailing address, and for individuals making contributions over $200, their occupation and employer.113 The recipient then must report any conduit that provided one or more earmarked contribution over $200, the total amount of contributions from the conduit, and the information identifying individuals giving more than $200.114

The FEC regulations alter this structure if it is determined that the conduit exercised “direction or control” over the choice of the recipient candidate; if no “direction or control” exists, then there is no effect on the conduit’s contribution limit to the candidate; however, if the FEC determines there was “any direction or control,” the contribution will count against the limits of both the individual and the conduit.115 The term “direction or control,” however, appears meaningless in light of the District of Columbia Court of Appeals decision in Federal Election Commission v. National Republican Senatorial [*PG118]Committee, in which the court found no “direction or control” when a national party helped a small, defined number of candidates.116

Fred Wertheimer and Susan Weiss Manes, Common Cause’s former president and former vice president for issue development, respectively, note that most people believe that PACs were created out of the reform of the federal campaign finance laws in 1974, when in reality PACs have been around since the 1950s.117 However, the 1974 amendments, which allowed entities with government contracts to operate PACs for the first time, paved the way for the explosion in the number of PACs today.118 The number of PACs grew to 4079 in 1996, more than six times the number in 1974.119

The rise of PACs and their supposed negative influence on the electoral process has caused reformers to propose a plethora of changes to the current campaign finance laws, ranging from nibbling on the edges to a complete ban of all PACs.120 Some reform proposals have merely suggested reducing PAC contribution limits from the current $5000 to any given candidate in any given election to a lower amount, thus reducing their ability to give significant sums of money to candidates.121

[*PG119] Other reform proposals have been more significant, including the complete ban of political action committees’ ability to give money to candidates.122 This reform, although proposed, may not be a viable reform as even proponents of the idea admit that it may be found unconstitutional because it would restrict political speech.123 Finally, a more popular and perhaps more constitutional proposal includes banning the practice of bundling, a tool PACs have used to increase the coffers of selected candidates.124 A ban on the practice would no longer allow PACs to solicit donations to a candidate from a large [*PG120]number of donors and package them together as one large donation free from the $5000 limit imposed on PACs.125

PACs generally have been known to give heavily to incumbent members of Congress rather than challengers.126 Because of this reality, it would seem as though any proposal that purports to reduce the power of PACs would help challengers and therefore benefit women and minority candidates, because of their tendency to be challenger candidates.127 However, not all PACs follow the narrow-minded, incumbent-oriented script that many anti-PAC reformers claim.128 PACs that follow ideological strategies give money to incumbents, challengers and candidates in open-seat elections who share “their broad ideology or positions on specific, often emotionally charged issues such as abortion.”129 Ideologically driven PACs will often give money to candidates in close elections, and such PACs “rarely give money to members of Congress for the sake of securing access to the legislative process.”130

Indeed, although experts claim that over 70% of PAC money goes to incumbents, minority and female candidates do better than expected with regard to PAC contributions.131 Theilmann and Wilhite, in their book Discrimination and Congressional Campaign Contributions, note that there is both good and bad news with regard to blacks and women and PACs.132 The authors explain that “the tendency of at least some types of PACs to support non-incumbent blacks and women is encouraging,” because the authors state that “without substantial institutional support such candidates have little chance of [*PG121]success.”133 However, the authors go on to highlight the fact that PACs are more likely to throw support to candidates in open-seat elections, not to those candidates challenging incumbents.134 Aid to open-seat candidates will help black and female candidates, but not as much as healthy support to challengers, since open seats are less likely to occur.135

Women’s PACs really began to make sizable donations in 1992, the so-called “year of the woman.”136 EMILY’s List, a group that funds pro-choice Democratic women running for office, stands for the concept that Early Money Is Like Yeast—it makes the dough rise.137 The group, founded by Ellen Malcolm, began in 1986 by collecting over $350,000 from more than 600 donors.138 The group kept growing, and really caught on in 1992, raising $6 million, four times more than in any previous year of operation.139 That year also saw the rise of other female-oriented groups’ ability to raise significant sums.140 EMILY’s List continued to grow, and by 1998, the group had swelled to 50,000 members in fifty states with total contributions of $7.5 million, all of which helped elect seven new pro-choice Democratic women to the House that year.141 The most recent election in 2000 [*PG122]continued the upward trend of contributions from EMILY’s List: The group doled out almost $9 million to female candidates.142

Despite some experts explaining that restrictions on PACs would ultimately help challengers because PAC money tends to flow to incumbents, many political operatives with the needs of female and minority candidates in mind do not support imposing restrictions on PACs.143 Perhaps there is no better real-life example of minority candidates and PAC money than Georgia Congressman John Lewis.144 Lewis describes himself as a “grass-roots candidate” who did not have a large following of supporters who could write $1000 checks when he first decided to run for Congress.145 In his own words, he claims he “was able to mount a credible and ultimately successful bid for Congress only because of the support given me by labor union political action committees and a few other PACs.”146 Lewis succinctly explains the role of PACs in his political rise: “If not for the support of these ‘special interests,’ this former civil rights worker, this poor son of a sharecropper would not have had a prayer of making it to the U.S. House of Representatives.”147

Lewis’ support is not an isolated occurrence in the minority community and among minority congressmen.148 Jesse Jackson, Jr., first elected to Congress from Illinois’s second district in a special election in 1995, has said that he cannot raise enough from his district, so as he puts it, “I have to go to PACs.”149

Indeed, the elimination or weakening of PACs has been known to be a dangerous reform for black candidates, given that both black men and women have received more than half of their contributions [*PG123]from PACs in the past.150 Ellen Miller, a member of the Board of Directors at the Center for Responsive Politics, has been quoted explaining that “the people who live in African-Americans’ districts can’t afford to pay to play.”151 For this reason, John Bonifaz, the founder and executive director of the National Voting Rights Institute, has said that eliminating PACs “essentially knocks out the one place where labor and minority candidates have an ability to compete . . . . It’s a classic false reform . . . put out by people who want to retain the status quo and pretend they’ve taken a step toward reform when they’ve only exacerbated the present system.”152

Other experts have echoed these sentiments, warning that even the best intentions when enacting campaign finance reform could lead to unintended consequences.153 Cass Sunstein, a University of Chicago law professor, writes that any reform that includes restricting or eliminating PACs could lead to the unintended consequence of reducing a powerful resource for minority candidates.154 Sunstein explains that “Sometimes minority candidates can succeed only with the help of PACs specifically organized for their particular benefit.”155 The importance of PAC money to minority candidates crystallized in a formal policy sense during the 1993 struggle over campaign finance reform in which the Congressional Black Caucus delayed in supporting any reform in part because of provisions regarding PACs.156 In short, PACs play a prominent role in the financial security of minority candidates, particularly black candidates, and any restriction on this [*PG124]funding source would disproportionately affect this already under-represented group.157

With regard to women and PACs, the hesitation to reform is just as intense as in the minority community because of the importance of “women’s issues” PACs.158 Commentators have explained that one of the reasons women have been able to equal or exceed men in fundraising has been the rise of women’s issues PACs.159 In his book Gender Dynamics in Congressional Elections, Richard Logan Fox quotes several campaign managers of female candidates who explained the importance of this money: “‘The contributions from the women’s groups were vital . . . I don’t know where we would have got [sic] the money we needed without EMILY’s List.’”160 Another campaign manager for a female candidate explained, “‘The money from the women’s groups was crucial for us.’”161

In fact, experts across the board seem to agree that the success of these “women’s issue” PACs have greatly aided female candidates.162 Nancy E. McGlen and Karen O’Connor, in their book Women, Politics, and American Society, explain that, “Recent efforts by women’s PACs . . . have been critical in alleviating the financial obstacles faced by women candidates.”163 Barbara C. Burrell, in her book A Women’s Place [*PG125]Is in the House, explains that, “PACs have made a difference and made women major players in the electoral process. . . . [T]he women’s PACs have become crucial elements in the process of electing women to the U.S. Congress.”164 Finally, Susan Carroll notes that women’s PACs are important for two essential functions: raising money and performing other tasks that have fallen to political parties in the past, including candidate recruitment, training and “in-kind services.”165 In short, it seems as though commentators and experts agree, “The existence of these groups is essential for female candidates.”166

It is clear that reducing the influence of PACs by lowering contribution limits or banning them outright would negatively effect female candidates, but proponents of “women’s issue” PACs also have another group of enemies: those who wish to ban bundling.167 Bundling involves soliciting money for candidates, combining the donations and then sending the money to candidates endorsed by the group.168

Certainly many commentators have not been supportive of the bundling loophole.169 However, the more popular position among female activists is that cutting out bundling without an exemption for non-lobbying PACs would have a disproportionately negative impact on female candidates.170 These commentators suggest political committees, like EMILY’s List, that do not engage in lobbying should be exempted from a bundling ban because they do not seek access to legislators once they are elected; therefore, there is no possibility of wrong doing.171 EMILY’s List head Malcolm wrote in a New York Times op-ed piece, “The last thing EMILY’s List wants is a loophole [exempting non-lobbying PACs] that would pour special-interest money into [*PG126]campaigns. That would take us back to the very system that kept women out of office.”172

Given the nature of the fundraising that these groups engage in, little question exists that taking away bundling would be a handicap.173 Indeed, some have called the bundling loophole EMILY’s List’s “life blood.”174 By taking away EMILY’s List and similarly minded groups’ ability to generate funds, female candidates would be stripped of one of their few financial advantages and thus put in an even more unenviable position.175 One commentator, Herbert Alexander, former director of the Citizens Research Foundation at the University of Southern California, explains bundling by noting: “I don’t call it [bundling] a loophole . . . Blacks and women are under-represented in Congress. They hit on a way of networking and now they’re told, ‘You can’t do that.’”176

In short, any reform proposal that limits the amount of contributions to candidates from PACs, bans PACs from making contributions, or bans the practice of bundling would have a serious impact on female and minority candidates.177 What might start as a noble attempt at reform—reigning in the supposed power of PACs—would put the already under-represented female and minority candidates in an even more powerless position should such reforms be enacted.178

[*PG127]B.  The Belle of the Reform Ball: Soft Money

Another popular proposal reformers target when discussing campaign finance reform involves soft money.179 Soft money officially arose out of the 1979 amendments to the Federal Election Campaign Act (FECA), in which Congress amended the law to include regulations that exclude state and local party-building activities from the federal contribution limits outlined in FECA.180 The FEC has since decided the 1979 amendments allow individuals and organizations to give unlimited amounts of money to the national parties’ state and local party-building campaign accounts, money that is not subject to the strict caps found in FECA.181 This money—referred to as soft money—is generally intended to be used for party-building expenditures at the state and local levels and cannot be spent in conjunction with federal candidates.182 Soft money provides a vehicle through [*PG128]which wealthy individuals and groups can help influence policy by contributing unlimited amounts of cash to the national parties, a major reason why critics find it to be such a corrupting influence.183 Soft money has grown increasingly more influential in elections across the country, increasing at an exponential rate in 1992, 1996, 2000, and in the first six months of 2001.184

In addition to the general growth in soft money receipts, the parties have begun to expand the uses for soft money, including spreading the wealth towards congressional campaigns.185 The 1997–98 mid-term election cycle was the first time that soft money played a large role in congressional campaigns; before that election, soft money was mostly limited to presidential campaigns.186 In addition, both political parties have turned to “issue advocacy” as another means of utilizing soft money.187 Issue advocacy ads, which advocate or oppose the cause of a candidate, can be partially paid for with a party’s soft money so long as they do not contain “magic words,” including “vote for,” “elect,” “cast your ballot for,” “vote against,” or “defeat.”188 Through this new method, parties have increased the usefulness of soft money and now can use these funds to pay for ads that directly aid federal candidates.189

[*PG129] Although numerous bills contain language concerning banning or restricting soft money, the piece of legislation that has engendered the most attention over the last several years is that of Arizona Senator John McCain (R) and Wisconsin Senator Russell Feingold (D).190 Various forms of this legislation have been proposed and have failed in past years, but in 2001 the McCain-Feingold bill passed the Senate in a bipartisan 59–41 vote.191 The legislation bans soft money, increases the aggregate individual contribution limit from $25,000 to $37,500, increases the amount an individual can give to a candidate in each election from $1000 to $2000, creates provisions for candidates running against independently wealthy opponents, and establishes a ban on advertising by particular groups thirty days before a primary and sixty days before a general election.192

[*PG130] The McCain-Feingold legislation has been considered the darling of the press, covered extensively in and endorsed by the media.193 The media seems quick to decry the use of soft money but has been slow to mention any possible good that could come from this funding source.194 At least one positive result has been linked to soft money: The early use of soft money in the 1980s is considered to have been essential to the revitalization of state party operations.195 While this may not at first appear to be a positive development given the public’s general desire to recoil from party labels, many political scientists stress the need to maintain strong, healthy political parties when looking to reform the current system.196

By using soft money, parties can have a profound impact on congressional elections in ways that would not be possible if they had to adhere to the low limits imposed by FECA.197 Reformers tend to view this increased party role as a negative development, but it also could be viewed as a mechanism to increase competition in elections.198 Political parties, when compared to individuals and PACs, are the most likely source for campaign contributions to non-incumbent candi[*PG131]dates.199 Because parties tend to mold their campaign expenditures around maximizing the number of seats they can win, they are much more likely to give to challenger candidates than other sources, such as individuals.200 In fact, authors Michael J. Malbin and Thomas L. Gais, in their book The Day After Reform, explain that there is an “intense party bias [in the states] in favor of challengers and open-seat candidates in close races,” adding that parties in most states “give a basic level of contributions as risk capital to a wide variety of challengers and open-seat candidates.”201

Professors Stephen Ansolabehere and James M. Snyder, Jr. have concluded, “More party money in congressional elections . . . would probably produce much higher electoral competition.”202 In addition, they also have calculated that the reverse situation—reducing the fundraising abilities of the political parties—would reduce challenger vote shares in the electoral process, mainly because non-incumbents have a much easier time attracting party money than PAC money.203 In addition, parties spend considerable sums for voter registration and voter turnout, elements that tend to be key for challenger candidates.204 Proponents of a ban of soft money cite the Brennan Center [*PG132]for Justice at NYU School of Law (Brennan Center) for the proposition that all state and national party committees combined spend 8.3% of their soft money on voter mobilization, voter registration, and get-out-the-vote drives.205 However, in the 2000 election, which saw the two national parties raise $487.5 million in soft money, 8.3% works out to over $40 million, a hefty sum that challenger candidates would have had to raise to mount get-out-the-vote drives if soft money was no longer available.206 In addition, Professor Ansolabehere has calculated that a soft money ban could force the parties to eliminate up to 20% of the money they spend aimed at drawing out new voters, and to cut as much as two percent of activities aimed at boosting election-day turnout, consequences that hinder challengers and therefore minority and female candidates.207 In short, a ban on soft money, or a restriction on party money, would affect challengers more than incumbents.208

Because female and minority candidates are under-represented and therefore tend to be challenger candidates, it naturally follows that they would be disproportionately affected by a ban on soft money.209 More specifically, additional evidence suggests that female and black candidates in particular benefit from party money not just by virtue of their challenger status, but by virtue of being female or black.210 The Brennan Center has noted that of the thirty-eight members of the Congressional Black Caucus, only one benefited from party-sponsored issue ads.211 However, incumbent black House members is not the group reformers should be concerned with; incum[*PG133]bents are reelected at extremely high rates each election cycle.212 Soft money is important for minority candidates in instances where a viable challenger or a viable participant in an open-seat election needs an infusion of cash.213 In fact, evidence shows that when viable minority and female candidates need money, the party steps forward to provide support.214 When Eleanor Jordan, a black state legislator, tried to unseat Anne Northup in a 2000 Kentucky House race, the Democratic party spent $821,837 on advertising; Jordan raised a total of about $1.6 million for her campaign.215 In addition, Wilhite and Theilmann’s book, although written before the real explosion in soft money and before the use of soft money in congressional campaigns, shows that women and blacks benefit at a greater rate from party money than do white, male candidates.216 The authors found the evidence for black candidates more compelling, concluding, “the Democratic party gave significantly greater contributions to black candidates than to their white counterparts in three of the five elections studied,” which resulted in a racial benefit of about $4000 to $12,000.217 With regard to women, the benefit does not appear to be as profound, but at least some analyses show that women may get more money from the parties than men.218 In short, experts indicate that party support is a key element to the success of female and minority candidates.219

[*PG134] For these reasons, many female and minority candidates and political operatives tend to oppose the elimination of soft money for fear that it could weaken the ability of parties to aid candidates.220 The debate in 2001 regarding the House version of the McCain-Feingold bill, sponsored by Representatives Christopher Shays, R-Conn., and Martin Meehan, D-Mass., indicates that many House minority members have grave reservations with banning soft money, fearing such a move could have serious repercussions for the future diversity of Congress.221 In fact, even some House Democratic leaders who support a soft-money ban have said they understand minority members’ reservations with a ban because of the dire effects it could have on their political futures.222 However, not all participants in the debate agree with [*PG135]this contention.223 Some argue that soft money is an evil that must be eliminated from the political world and contend that minority and female candidates will not be harmed by such a ban.224 However, evidence indicates that eliminating soft money, while a politically salient idea in light of the passage of McCain-Feingold in the Senate, may prove to be disastrous for competition and challengers in particular.225 Because female and minority candidates tend to be challengers, a soft-money ban would fall particularly hard on this group of prospective candidates, a factor that must be considered when Congress debates the merits of passing this so-called “reform.”226

C.  Raising the Individual Contribution Limit

Under FECA, individuals cannot make contributions over $1000 to any candidate during an election.227 In addition, an individual is [*PG136]allowed to give up to $20,000 to a committee or committees organized by the national parties and up to $5000 to any other political committee in a calendar year.228 Finally, in any given calendar year, an individual can make no more than $25,000 in total donations.229

In the landmark Supreme Court case involving campaign finance, Buckley v. Valeo, the Court upheld the individual contribution limits set at $1000.230 Since Congress passed FECA in 1974 and the Court upheld contribution limits in 1976, the dollar amount has remained unchanged.231 Some reformers have targeted these limits, looking, in particular, at raising the $1000 limit on donations to candidates and the total limit of $25,000 in any calendar year.232 The McCain-Feingold legislation that passed the Senate would hike the individual contribution limit from $1000 to $2000 and the aggregate individual limit from $25,000 to $37,500.233

The Supreme Court recently confirmed the constitutionality of limiting contributions to candidates in Nixon v. Shrink Mo. Gov’t PAC, decided in 2000.234 In Nixon, the Court rejected the notion that Missouri’s then $1075 limit on candidates for statewide office was too low, upholding the idea in Buckley that limits are constitutional unless they are “so radical in effect as to render political association ineffective, [*PG137]drive the sound of a candidate’s voice below the level of notice, and render contributions pointless.”235

Despite the constitutionality of contribution limits, some have questioned the logic of imposing such barriers, and there is also disagreement regarding the impact of such limitations on challengers and incumbents.236 FEC Commissioner Bradley A. Smith argues that, “Contribution limits tend to favor incumbents by making it harder for challengers to raise money and thereby make credible runs for office,” noting that the lower the limit, the more difficult it becomes to raise a large amount of needed cash in a short time.237 However, Justice Souter, writing for the majority of the Court in Nixon, addressed the respondent’s contention that contribution limits favor incumbents over challengers, concluding, “We found no support for the proposition that an incumbent’s advantages were leveraged into something significantly more powerful by contribution limitations applicable to all candidates, whether veterans or upstarts.”238

Apart from looking just at contribution limits from the challenger perspective, there is some evidence that blacks and women collect money from individuals in smaller amounts and therefore would not benefit from an increase in the contribution limit.239 Theilmann and Wilhite, when analyzing individual contributions, note that their formula shows that individuals “appear to discriminate against black candidates (and to a smaller extent women challengers),” and more importantly in this context, “black and female candidates appear to be dependent on smaller contributions.”240 This makes sense for black candidates, considering that black members of Congress tend to represent some of the poorest districts in the country and therefore cannot rely on individuals within their district to raise large individual contributions.241

[*PG138] There is evidence that people looking out for the interests of black candidates do not wish to see an increase in contribution limits.242 The National Association for the Advancement of Colored People (NAACP), the Southern Regional Council, the Georgia Rural Urban Summit, and the Fannie Lou Hamer Project, a group that views campaign finance reform as a civil rights issue, all objected to a move by the Georgia legislature that allowed for an increase of individual contribution limits to up to twice their previous level.243 Brenda Wright, managing attorney of the National Voting Rights Institute, wrote a letter to the U.S. Department of Justice noting that black voters are “far less likely than white voters to have sufficient funds to contribute at any level to political campaigns,” and also indicating that white candidates receive a disproportionate amount of large contributions.244 In addition, at Howard University Law School’s 1999 event Campaign Finance as a Civil Rights Issue, professor and journalist Roger Wilkins explained that some “reformers” find the individual contribution limits to be too low and want to increase them, despite the fact that only one-tenth of one percent of individuals gave $1000 in 1996.245 Finally, the debate over the House companion to McCain-Feingold, Shays-Meehan, indicated that several minority politicians and commentators fear an increase in the individual contribution limit would be detrimental to minority candidates in particular.246

In short, although there is some debate over whether contribution limits help or hurt challengers, it seems as though women and blacks in particular are not inhibited by such limitations; in fact, they may benefit from them.247 While raising contribution limits is typically just one element in a package of reforms, it does not appear as though it would have any benefit to female or black candidates and would most likely prove problematic.248 This represents another reason why the McCain-Feingold measure that passed the Senate, with its [*PG139]increased individual contribution limits, is not reform for black and female candidates.249

D.  Putting a Ceiling on Campaign Spending

There has been plenty of discussion regarding capping the amount of money candidates are allowed to spend in a federal election.250 Proposals that call for a mandatory so-called “ceiling” on spending face strict constitutional dilemmas.251 However, because the idea has regularly been floated, a brief mention is deserved.252

The Supreme Court in Buckley struck down the expenditure limit included in FECA, finding that “limitations on campaign expenditures, on independent expenditures by individuals and groups, and on expenditures by a candidate from his personal funds are constitutionally infirm.”253 The Court equated the restriction on spending money as being a restriction on political speech.254 For that reason, any mandatory spending cap appears as though it would have difficulty meeting the Supreme Court’s analysis in Buckley.255 In September 2001, the United States Court of Appeals for the Tenth Circuit overruled a district court decision that enforced a campaign expenditure limit in the mayoral race in Albuquerque, New Mexico.256 In en[*PG140]joining the city from enforcing the limit and ordering an injunction, the appeals court noted that the reasons listed for the expenditure limit in Albuquerque are no different than the interests that were insufficient in Buckley; therefore, the court found the limit must fail.257 In another recent case, the Supreme Court indicated that campaign spending limits are still invalid under the Court’s decision in Buckley, noting that “Later cases have respected this line between contributing and spending.”258 In Vermont, a district court did a thorough analysis of the state’s public funding statute, finding, among other things, that the statute’s expenditure limits were unconstitutional.259 The district court noted that “Buckley set an extremely high constitutional threshold for expenditure limits . . . .”260

Some commentators express the view that spending caps would not help challengers and are nothing more than incumbent protection devices.261 Others espouse the opposite view, noting that caps on spending might help challengers and therefore hope the Court reconsiders Buckley to allow for the imposition of such caps.262 Although [*PG141]some language in recent cases has indicated that the Court may be a little closer to reconsidering Buckley, other cases have questioned the practical impact of the Supreme Court language.263 However, although minority candidates in particular would seem to benefit from spending caps because these candidates tend to collect fewer campaign contributions, these caps on their own would not help minority or female candidates because they would not help challengers in the one area where they need the most support: Fundraising.264 In addition, mandatory campaign spending caps appear as though they would face stiff constitutional scrutiny under the Court’s Buckley analysis.265 However, there is a plan that could include spending limits and meet constitutional scrutiny: Public financing.

E.  The Most Far-Reaching Approach: Public Financing

The Supreme Court, in a footnote within the lengthy Buckley decision, laid out what may be the most promising form of campaign finance reform.266 While declaring limits on campaign expenditures unconstitutional, the Court noted:

[*PG142][C]ongress may engage in public financing of election campaigns and may condition acceptance of public funds on an agreement by the candidate to abide by specified expenditure limitations. Just as a candidate may voluntarily limit the size of the contributions he chooses to accept, he may decide to forgo private fundraising and accept public funding.267

With this small notation, the Court left the door open to allow public funding of campaigns to trickle down from the current publicly funded presidential election process to congressional campaigns.268

Public funding plans can take on many different forms, ranging from full funding to smaller proposals to provide free air time to qualifying candidates.269 Even the older form of the McCain-Feingold bill included public-funding elements that have since been stripped from the legislation.270 Although there is some variation, public-funding proposals can be broken into four general categories. The first category is the lowest rung of public funding: Providing free air time to qualifying candidates.271 Supporters argue that free communication vouchers are essential to reform because television is very important to elections, television advertising comes with a very large price tag, and proposals including free television time are workable because the public owns the airwaves.272 Proposals vary in form, mainly by the length of air time each candidate would receive, but the premise behind the idea is the same: Because advertising is the quick[*PG143]est and most expensive means with which to reach the public, candidates should be given an easy way to tap into this medium.273

The intermediate level includes proposals that include a certain amount of public funding short of full public financing.274 Such proposals could include a “floor” of public funds in which the government would match smaller donations through an expansion of the tax check off system, or a system in which the government would ensure a candidate was not at a substantial disadvantage against his or her opponent.275

The next level involves providing public money to fully fund campaigns, a proposal that can and often does include some form of reduced or free television/radio air time.276 The typical full public funding proposal first makes the program voluntary so as to comply with Buckley.277 In addition, in order to qualify as publicly funded candidates, a candidate would need to show a minimum level of support by collecting a certain number of relatively small qualifying contributions.278 Once a candidate has qualified to receive public funds and [*PG144]has pledged not to campaign for private dollars, that candidate would then receive payments based on her specific Senate or House race.279 Proposals for full financing also can include a number of other elements, including a provision that provides publicly funded candidates with additional money if their opponent spends over a predetermined amount and a provision that addresses independent expenditures by non-candidate groups and individuals.280

Finally, the most radical and therefore least politically viable option involves creating a voucher system to replace our current financing mechanism.281 In general, a voucher proposal would give each voter campaign vouchers that could be used to fund political campaigns.282 In addition, with limited exceptions, only vouchers could be used to fund campaigns.283 Despite some benefits, even supporters admit that it is a long road towards enacting such a far-reaching reform.284

Based on evidence from the states, it appears as though the most viable reform is a full-financing system that includes many of the ele[*PG145]ments listed above.285 Several states, including Arizona, Maine, Massachusetts and Vermont, have passed so-called “clean election” laws that implement public financing for offices within the state.286 Although the clean elections laws in the four states share many different elements, Maine’s law is perhaps the most helpful in understanding the structure of a sound public-funding system because it has withstood a challenge in federal court and has already been tested in an election.287

IV.  A Positive Experiment from the States and the
Limitations of Politics

A.  As Goes Maine, so Goes the Country?

The Maine Clean Election Act was a 1996 ballot initiative that was approved by over ten percentage points.288 The law, which went into effect for the 2000 election, involves public funding for Governor, State Senator, and State Representative races.289 Candidates must declare their intention to be certified, agree not to exceed certain limits when collecting “seed money,” and obtain a certain number of quali[*PG146]fying contributions during the qualifying period.290 Once the candidate has been certified and transferred all collected money to the Maine Clean Election Fund, a candidate can only spend money from the Fund and may not accept any contributions unless authorized.291 The Fund, financed through a number of methods including a tax check-off program and revenue from other taxes, disperses money based on the average of the last two elections.292 The law also includes a provision that provides clean election candidates with additional money if their non-clean election opponent exceeds the distribution amount proscribed for clean candidates.293 A candidate must return any unused money, and a candidate who has been denied certification can appeal the decision through a proscribed method.294 The Commission on Governmental Ethics and Election Practices will prepare a report that documents, evaluates, and recommends changes by January 30, 2002, and every four years after that date.295 In addition, in conjunction with the clean elections law, Maine also lowered contributions from an individual, political committee, other committee, corporation or association to $500 for gubernatorial candidates and $250 for all other candidates.296

[*PG147] In Daggett v. Commission on Gov’t Ethics & Election Practices, a long list of plaintiffs challenged Maine’s new funding mechanism, arguing that the public funding mechanism unconstitutionally coerced candidates to participate, and that the contribution limits violated the First Amendment.297 The First Circuit concluded that the contribution limits of the State Representatives and Senators are constitutional and the public funding scheme does not violate the First Amendment, thereby upholding the Act.298 The court, in evaluating whether or not the system is so stacked towards participation as to be deemed coercive—and therefore unconstitutional—held that “Maine’s public financing scheme provides a roughly proportionate mix of benefits and detriments to candidates seeking public funding, such that it does not burden the First Amendment rights of candidates or contributors.”299 In short, Maine’s law, while perhaps not perfect, is a good model with which to craft other full-funding systems.300

Despite Maine’s success, full public funding does not lack critics.301 Some critics indicate the public does not support full public congressional funding, others claim giving additional money once an opponent exceeds a certain level is unconstitutional, while others note that such a system would do little for equality or corruption.302 However, it is not difficult to find support for full public financing from female and minority activists; in fact, many see this as the best possibility for real reform.303 In Maine, numerous groups joined the fight for full public funding, including the Maine Women’s Lobby and the NAACP, further evidence that public funding would be a positive development for minorities and women.304 Those looking to put more women into office need only look to the results of Maine’s [*PG148]first election under the clean elections laws to find heartening evidence of success.305 After passing clean election reform, the number of candidates seeking a Maine House or Senate seat went from 305 in 1998 to 352 in 2000; of the 352, 116 candidates ran under the clean election system.306 In addition, 54% of those running under clean election won (sixty-two candidates including thirty-seven incumbents), and more women ran than usual.307

Problems did occur during the 2000 election in Maine.308 Interest groups spent more on issue advertising, overly complex reporting requirements may have deterred some candidates, and non-clean candidates delayed reporting expenditures so clean candidates would not get their matching funding right away.309 Overall, however, “most agree in Maine that while the Clean Elections Act will be revised before 2002, it’s there to stay.”310 Public financing would at least level the playing field for challengers and encourage new faces to enter the political ring; because of women’s tendency to fall into that category, full funding would be a positive reform for female candidates.311

The same is true for minority candidates, a group that has expressed the most desire for full public funding.312 Many minority activists have encouraged a full-funding system; numerous civil rights groups have called for such a system, and a black congressman, Harold E. Ford, Jr., D-Tenn., has written an article advocating such a change.313 In July 2001, the NAACP adopted a resolution calling cam[*PG149]paign finance reform a civil rights issue and supporting full public funding.314 Professor Raskin has said that public funding would be helpful to black candidates because, “It is precisely people who come from the poor communities who would benefit from public financing of elections.”315 In short, minority candidates would benefit from such a system because it would erase the historical fundraising disparity between minority and white candidates.316 As Warren Tolman, a 2002 Massachusetts gubernatorial candidate and clean money proponent, explains, “The reason why the clean elections movement is a threat to the political establishment is precisely its appeal: it levels the playing field and opens the door of electoral politics to real working men and women, more minorities, and more women . . . .”317

B.  Don’t Under-Estimate Politics

If election reformers’ only prerogative was to increase the number of minority and female members in the House and Senate, there are more radical, non-finance related approaches that could easily accomplish that goal.318 However, one key element with which any re[*PG150]form must contend is the politics of getting a particular piece of legislation passed.319

As University of Virginia Professor Michael J. Klarman explains, commentators may disagree about the benefits and harms of certain reform, but “The one thing that virtually all commentators agree upon, though, is that legislators drafting campaign finance legislation will seek to enhance the advantages of incumbency.”320 One need only look at past campaign finance fights to get an idea of the range of self-interests present.321 During the 1993 fight over President Clinton’s campaign finance legislation, a time when Democrats controlled the White House, Senate and House, different factions torpedoed any reform.322 As Capitol Hill’s newspaper Roll Call explained, up to four different constituencies in the House considered “portions of the bill to be threats to their own political futures, and they appear willing to scuttle the legislation in its current form.”323

Others argue that campaign finance reform is so complicated in its specifics and politics that action or inaction is difficult to understand.324 Indeed, because incumbents do not like passing legislation [*PG151]that would endanger their own electoral safety, it appears as though politics has whittled down the most touted reform proposal, the McCain-Feingold bill.325 The legislation, although it finally passed the Senate in 2001, has been reduced to an acceptable, and weaker, majority-friendly bill, much removed from its 1997 form.326 In addition, politicians generally do not face a great deal of constituent pressure to pass campaign finance reform and instead choose to focus on more popular issues.327 Politics impacted the most recent attempt at changing campaign finance law.328 After the Senate passed the McCain-Feingold bill, the House was slated to debate and vote on that body’s companion measure, the Shays-Meehan bill.329 However, even before debate could begin, a procedural maneuver by those opposed to the [*PG152]legislation forced the proponents to vote down the rules for debate and therefore postpone a vote on the measure.330 Although, the terrorist attack on September 11 dimmed prospects for reform in 2001, the collapse of Enron enhanced the chances for a floor debate in 2002.331

Despite the fact that public funding reformers in Arizona, Maine, Massachusetts and Vermont were successful, and polls show public financing support at 60 to 80%, recent public-financing efforts in Missouri and Oregon during the 2000 election failed by sizable margins, indicating support for this kind of reform may not be as broad as supporters would like.332 In addition, despite the fact that Massachusetts voters approved clean elections in a 1998 ballot initiative, politics is getting in the way of actually funding the measure.333 The battle over clean elections made its way to the Massachusetts Supreme Judicial Court in December 2001, where the justices were critical of the legislature’s refusal to fund the initiative, but conflicted over the [*PG153]court’s power to impose a remedy.334 In short, if the House is having problems passing Shays-Meehan, which includes modest reform, the prospects for an entirely new federal public funding mechanism is daunting at best.335 As Representative Martin T. Meehan, D-Mass., has said, “Members are not going to change a system that benefits them unless they feel they have no choice.”336

V.  The Best and the Worst Campaign Finance
Reform Has to Offer

Campaign finance reform proposals fall into three general categories: smaller efforts that could make some difference to minority and female candidates, larger, more beneficial proposals, and proposals that would be detrimental to these groups.337 While any reform proposal will have to go through the congressional ringer, it is essential that reformers remember that actions that seem to improve the way Americans elect their politicians could come at a cost—even less diversity than we currently have.338

There are “reforms” that if passed could have a serious impact on minority and female candidates.339 Proposals that ban PAC contribu[*PG154]tions or reduce the amount they could contribute would be detrimental, as would proposals that would eliminate the practice of bundling without some protection for groups like EMILY’s List.340 Reducing the power or fundraising capabilities of political parties would hurt challengers generally, and minority and female candidates in particular.341 Therefore, a ban on soft money, without a way for national parties to make up the loss in contributions, could negatively impact minority and female candidates.342 In addition, proposals to raise the individual contribution limit alone would do little to aid challengers and would harm minorities.343 Any proposal that just puts a spending cap without additional measures to help challenger candidates would not be very beneficial because it would not help with fundraising, the most essential element to any challenger’s campaign.344 Finally, in analyzing a package of reform, the McCain-Feingold legislation that passed the Senate in 2001 may wind up doing exactly what minority and female candidates need the least—help keep entrenched incumbents in their current positions.345 The bill’s combination of abolishing soft money, increasing contribution limits and other measures like allowing candidates to spend more against wealthy opponents equals an incumbent-friendly piece of legislation.346 In addition, the protracted fight [*PG155]regarding the House version of the McCain bill, Shays-Meehan, illustrates that some minority politicians are beginning to realize that the elements of these measures could hurt minority representation.347 Although not all commentators and minority representatives agree, several minority members of the House balked at several proposals in the Shays-Meehan bill that comply with the Senate version, including an increase in hard-money limits for Senate races and an all-out ban on soft money.348 Some minority members said a ban on soft money could undercut get-out-the-vote efforts including registration and mobilization.349 In short, while it is most likely not the intention of [*PG156]reformers, legislation like McCain-Feingold and Shays-Meehan, could result in unintended consequences like reduced voter participation and weakened political parties.350

There are, however, small proposals that might be considered more politically feasible than a complete overhaul of the campaign finance system.351 Proposals that call for reduced or free media time for candidates in exchange for a spending cap, similar to the concept in Clinton’s 1993 campaign finance bill, would help.352 Also, one of the components proposed in The Working Group on Electoral Democracy’s proposal for Democratically Financed Elections to Congress, could greatly help minority candidates: campaign scholarships for poor or working people running for Congress.353 Through this proposal, a candidate who can demonstrate that she would be unable to support herself or her family during the campaign would receive a reasonable amount of money for living expenses.354

Small proposals, however, would lead to small results.355 To enact real reform, to truly give minorities and women the chance to reach parity in the United States Congress, full public financing needs to be enacted.356 Many commentators have proposed full public funding schemes that no doubt would help minority and female candidates.357 [*PG157]However, because politics will always trump ingenuity and good intentions, it is more beneficial to look towards a full-funding plan that has engendered some support on Capitol Hill.358 Representative John F. Tierney (D-Mass.) has introduced a bill in the 107th Congress along with forty-nine co-sponsors that would establish clean elections for House candidates.359 The proposal, which borrows heavily from the Maine clean elections idea, requires a major party candidate in a primary election to declare herself a clean money candidate, promise not to run as a private money candidate in the general election, and collect 1500 qualifying contributions, defined as $5 exactly from registered voters from the candidate’s state.360 The candidate then needs to turn over all qualifying contributions to the House of Representatives Election Fund in exchange for public funding in the primary.361 A candidate qualifies as a general election clean candidate if the candidate satisfies certain requirements: The candidate (1) qualified during the primary period; (2) filed a declaration attesting to having completed the requirements to be a clean elections candidate; (3) secured a written agreement with their party that the party will only spend a certain amount in connection with the candidate; (4) and the candidate’s political party nominated the candidate to be placed on the ballot, or the candidate qualified as an independent to be placed on the ballot.362

[*PG158] A clean election candidate agrees not to accept private contributions after the qualifying period, not to expend funds other than those from their clean money funds, and not to expend personal funds.363 In addition, clean election candidates can accept no more than $35,000 in seed money, defined as contributions from one person that may be no more than $100 in the aggregate.364 This money can be used for campaign expenses (excluding television or radio advertising or personal use) from the date of the previous election through the earliest date clean election funds are made available.365 Clean election money is distributed based on the applicable percentage of 80% of the base amount for each election cycle involved.366 The base percentage is calculated using the national average of all amounts expended by winning candidates during the last three general elections for House districts.367 In addition, the bill includes a provision to provide matching funds to a clean election candidate should a person make an independent expenditure against the clean election candidate or in favor of her private money opponent, or if the private money opponent should expend more than 125% of the amount of clean money provided.368 Finally, the bill includes several important provisions including a restructuring and strengthening of the weak FEC and free and reduced broadcast time for clean election candidates in the primary and general election.369

On the whole, the bill includes a number of key components for a viable clean election proposal, including full funding and provisions for matching funds.370 Also, and perhaps more importantly, this pro[*PG159]posal comes directly from a member of Congress who has found forty-nine colleagues to co-sponsor this legislation in the 107th Congress.371

Despite its strengths, the proposal could be improved in a few ways, beginning with the inclusion of Senate races.372 Because of the severe deficiency of minorities and women in the Senate, any full funding proposal should encompass both the House and Senate.373 In addition, the bill currently requires all qualifying contributions to come from in-state registered voters; this provision should be altered to allow some out-of-state contributions, given that minority candidates tend to collect a sizable amount of money from outside their districts and states.374 In addition, in calculating how much a clean election candidate should receive, the bill relies on a formula that calculates the national average of all amounts expending by the winning candidates during the three most recent House elections.375 In order to tailor money to a specific area, a more effective approach would require an independent commission or the FEC to determine how much is appropriate for each House district or Senate race based on the peculiarities of that area.376 Finally, The Working Group on Electoral Democracy’s idea of scholarship money for poor or working class candidates would truly make the electoral process more open to all kinds of potential candidates.377

[*PG160] Tierney’s bill is a beginning, a framework upon which to build.378 One setback to any such proposal, in addition to the fact that incumbents would seek to block its passage, is the cost of such a proposal.379 Politicians are sensitive to cost, and such a large-scale proposal could be cost prohibitive, even during times of relative fiscal prosperity.380 However, it is important to note that the cost for the average publicly funded campaign is less than the cost of the average campaign because candidates do not need to spend money trying to raise more money through direct mail and other methods, a large expense in any campaign.381 Aside from the cost, in order for real campaign finance reform to become a reality, reformers need to attract a ground swell of support to force drastic action.382 Until such support develops, politics will continue to delay real reform that would help increase the number of minorities and women in the United States Congress.383 The most recent campaign finance legislation to pass a chamber of Congress, the McCain-Feingold bill, merely includes a study and re[*PG161]port of clean elections; there is a long road to travel before actually enacting real reform, federal clean election legislation.384

Conclusion

Minorities and women have historically been under-represented in the United States Congress; although this situation has improved slightly, there is still a paucity of representation from these groups.385 Many politicians, or “reformers,” claim to be peddling viable reform proposals that would improve the way campaigns are financed.386 Too often, however, these “reformers” fail to take the concerns of challengers generally and the special concerns of minority and female candidates in particular, into account when crafting “reform.”387 There are many proposals, including the McCain-Feingold bill that passed the Senate in 2001, cloaked in “reformer” clothing that would do little to promote diversity, or even worse, would endanger the limited progress women and minorities have achieved.388 The best approach for increasing the number of women and minorities in politics is to enact a clean election system similar to that of Maine, which includes full funding for House and Senate races.389 Short of that proposal, legislators must at least take the special needs of minority and female candidates into account when enacting “reform,” lest we might find ourselves wading through a sea of unintended consequences.390

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