House of Representatives Committee on the Judiciary
Subcommittee on the Constitution

Subcommittee Hearing on "Free Speech and Campaign Finance Reform"- February 27, 1997

Gene Karpinski
Executive Director
United States Public Interest Research Group (U.S. PIRG)

Good morning and thank you for inviting me to testify today. My name is Gene Karpinski, and I am the Executive Director of the U.S. Public Interest Research Group, U.S. PIRG, which is the national advocacy office for state PIRGs across the country. The PIRGs are nonprofit, nonpartisan grassroots citizen watchdog organizations which focus on environmental and consumer protection and democratic reform.

Both the PIRGs and I personally have worked on the issue of campaign finance reform for over twenty years. We see campaign finance as belonging to the core of the issues on which we work, and among the most important, if not the most important, issue determining our future as a democratic country.

I'm here to address three things: What is fundamentally the problem with the role of big money in politics? What is the solution? And do we need a constitutional amendment to achieve this solution? The last question particularly revolves, as you know, around the Supreme Court's flawed decision in the Buckley case. We believe that the courts have created a situation where citizens cannot pursue fundamental campaign finance reform without a constitutional amendment. We are not proposing to amend the First Amendment, but simply to overturn the flawed Buckley ruling.

Unlike the distinguished other panelists here today, I am not a legal scholar. I am an activist, and I work with and represent thousands of other activists working full-time across the country on campaign finance and other public interest issues. These activists have collected hundreds of thousands of signatures to put campaign finance reform initiatives on state ballots, lobbied reforms through state legislatures, produced hundreds of reports documenting the problem of big money in politics, and spent countless hours organizing millions of citizens around this issue.

I. The Problem: Big Money in Politics Threatens Our Democracy

First, what is the problem? Our democracy is decaying and severely threatened by the dominance of wealthy interests in the political process. This past election saw at least $2.7 billion spent on elections, yet less than half of eligible voters chose to cast a ballot,the lowest number in more than 72 years. The problem is that the entire system is predisposed toward the interests of big money, rather than average voters. The problem is not any number of things that some say it is. Let me further elaborate what the problem is not, because this is key to pursuing real campaign finance reform.

The problem is not, fundamentally, that politicians spend too much time raising campaign money. This is a problem, to be sure, reducing the time that elected officials spend on more important duties, but it is incidental -- it is not the fundamental problem.

The problem is also not that citizens use various means, including donations, to attempt to influence who gets elected. In fact, this is what a democracy is all about. The more the citizenry is engaged and involved in trying to influence the outcome of elections, the healthier the democracy.

Nor is the problem that citizens attempt to get access to and influence with politicians, meet the candidates at barbeques and spaghetti dinners, ask the candidates before they vote for or work for them what they can expect from them in return, etc. -- this again is natural and desirable in a democracy. Voters should not only actively engage in electing politicians; they should also actively hold politicians accountable.

It is true that, when a politician slants a vote on an issue with a particular, economically self-interested donor in mind, the quid pro quo feel of such behavior offends our sensibilities. But the core problem is even more fundamental than that.

The real problem with the role of money in politics is more fundamental and corrosive of our democracy than any of these stated misformulations of the problem. It is simply this: If

(A) election outcomes in a modern mass-communication society are largely determined by the amount of money spent on campaigning, and

(B) private money is the source of campaign funding, and

(C) the wealthy and special interests are allowed to give contributions of a size which are beyond the reach of average citizens,

And, the candidates who raise the most money are the candidates who will win. In the 1996 House elections, the candidate who spent more money won in 96% of all races. In addition to needing to spend more to win, candidates raise huge amounts of their contributions from people they don't represent in office. In one large state alone, California, candidates for the state legislature received 80% of their contributions from outside their districts in 1994.

With this kind of influence accorded to big money in our political system, the candidates and the political parties will increasingly look alike on all issues of importance to moneyed interests. The rich and the moneyed special interests will get their way in politics, and participate actively for that reason. And far too many average citizens will not participate, except perhaps on election day, and even then only out of habit and an admirable sense of civic duty.

If this picture sounds familiar, it is, because it is exactly what has been happening to American politics since the advent of television put an ever-increasing premium on campaign spending. After 40 years of this trend, the dominance of big money is thorough, and our democratic system is in crisis.

I would add as well that in terms of the threat to our democracy, it is irrelevant how the total amount of money in the campaign finance system compares to some other facet of our economy, such as how much Americans spend each year on bubble gum or some other item. Everyone can afford bubble gum, but very few can afford to give thousands of dollars to candidates and parties to make sure their interests are represented by elected officials sympathetic to their concerns. The threat to democracy occurs because average Americans are pushed off the playing field of the politics that shape our lives.

II. The Solution: Get Big Money out of Politics, through Concrete Reforms

The immediate solutions we propose, supported by huge majorities of the public, are fourfold:

* Limit contributions to a size within the reach of average citizens, say a maximum of $100. With these limits, everyone is on a level playing field when it comes to participating in politics.

* Limit the amount of money a candidate can accept from outside his or her district, to say no more than 25% of total fundraising. This limits the distorting power of money to only those who can at least vote for a candidate, and, in that sense, are appropriately entitled to seek to influence the election outcome.

(Had a 25% limit on out-of-district fundraising been applied to the 1996 candidates for federal office in California, their fundraising would have been cut in half.)

* Limit spending. This indirectly has a leveling effect if limits are sufficiently low so as to allow candidates who do not depend on large contributions to nonetheless raise sufficient money to compete.

* Finally, provide free TV, radio and mail to candidates.

In the last two election cycles, voters in five "laboratories of democracy" -- MT, MO, OR, AR, and CO -- have passed PIRG-backed initiatives that set $100 contribution limits for most state elections, by large margins -- often two to one or greater. In 1992 voters in the District of Columbia voted into a law a similar measure. Over this time, either voters or state legislatures in CA, MA, ME, and AK have also passed contribution limits significantly lower than the current federal limits.

With few exceptions, though, these laws are not in force, because they have either been overturned in the courts or are currently being challenged in court. Courts have ruled that limiting big money in politics limits free speech, following the Supreme Court's wrongheaded Buckley decision.

In Oregon, after nearly three-quarters of voters (72%) passed Measure 9 on the ballot in 1994, individual contributors could give only up to $100 for state legislative candidates, and up to $500 for statewide candidates, and corporations were banned from making campaign contributions. The limits were in effect through the 1996 elections, and they worked quite well. Under these contribution limits, average spending on state races in 1996 fell to less than half the 1994 expenditures.

Some candidates disliked the new limits, while others enthusiastically took advantage of the fact that the new system required more citizen-based campaigns. With these limits, candidates had to spend more time at soccer matches and spaghetti dinners, meeting their constituents and raising contributions in amounts within the reach of average voters, in order to get their message out. This reinvigorates democracy.

Prior to the passage of Oregon's Measure 9, campaign expenditures had been on a steadily and steeply climbing trajectory for years. After this success at reining in big money in politics, though, the Oregon Supreme Court ruled just a few weeks ago that the law's contribution limits violated free speech protections in the state (not the federal) constitution. As the state's major paper noted in reporting the decision, it "returns the state's campaign finance system to a no-holds-barred past in which contributions of any size are allowed as long as they are reported publicly."

Also in the 1994 elections, about three-quarters (74%) of Missouri voters passed Proposition A, which set contribution limits of $100 for most state races. Unfortunately, the federal court in Missouri overturned this voter initiative before it could take effect for fundraising for the 1996 elections. We believe, however, that its effects would have mirrored the dramatic change in Oregon politics.

In the Washington, D.C. example, low contribution limits led to more open and democratic elections. The 1994 City Council elections featured a 66% increase in the number of major candidates from the 1990, pre-limit elections (of candidates raising more than $1,000, from 24 in 1990 to 40 in 1994). And, although more candidates felt they could enter the arena, total contributions to candidates declined 23%. With lower contribution limits, more citizens feel they can play on the electoral field. They aren't closed out by the chase for big money, which they know they couldn't win.

On this past fall's ballot, voters in Arkansas and Colorado passed $100 contribution limits by two to one margins. This margin mirrors that in other states where voters have expressed their opinion on getting big money out of politics at the ballot. These voter initiatives, too, though, have been challenged in court by opponents of real campaign finance reform.

Voter support at the election polls mirrors recent public opinion polls on what the public wants to change with regards to the way campaigns are financed. In a Washington Post poll conducted last month, over four-fifths of those surveyed favored requiring House and Senate candidates to raise three-fourths of their money from their district or state, respectively. A similar number favored placing a limit on how much a candidate for the House or Senate could spend (79%). Although there has been to date very little debate in the public at large about the flawed Buckley decision, many Americans already realize that something is deeply wrong with the lack of control on big money in politics. In the same poll, for example, 59% of the public supports a constitutional amendment to allow limits on contributions.

III. Do we need a Constitutional Amendment to achieve this solution?

Now I move to my third point -- do we need a constitutional amendment to achieve this solution? That depends on the courts, obviously. As this Committee is well aware, the Supreme Court, by equating spending money on the promotion of speech with speech itself, has ruled in Buckley and related decisions that limits on campaign spending and contributions are subject to First Amendment considerations. We believe that view is wrong.

We applaud the fact that others like Mr. Neuborne are trying to reverse that decision through the court process, and we wish them well. But I've been a professional vote counter for the last twenty years, and I'm not optimistic that such a route will meet with success any time soon.

In the case of contributions, the courts have gone on to hold that limits must be reasonable and weighed against one specific state interest -- that of limiting quid pro quo corruption. Even if First Amendment considerations applied (and we believe they don't), we regard that narrow test to be insufficient. Other Constitutional considerations -- of equal protection of the laws, of the integrity of the election process, and of the preservation of a democratic form of government -- have been entirely ignored by these Court rulings. We believe the current system of campaign financing does far more violence to the Constitution in these regards than would spending and contribution limits supported by a majority of the body politic, and equally and fairly applied to all citizens and candidates.

In fact, another legal approach being pursued in the courts to overturn the current dominance of big money in our campaign finance system focuses on the current "wealth primary." To quote the legal organization attacking the current system with this argument, "those who do not raise enough money -- that is, those who lose the wealth primary -- almost always do not win office." Just as the courts have struck down previous obstacles thought earlier to be constitutional, like the all-white primary and the poll tax, the wealth primary should be struck down as well.

In the case of spending limits, the Supreme Court has found them to be forbidden entirely. This is also unsupported by the Constitution, in our view, and is even inconsistent with the Court's own reasoning on contribution limits. (In a further exercise of the judicial imagination, spending limits have been allowed where they are technically voluntary, even if the conditions placed upon not accepting such limits, for example the denial of millions of dollars of public money, are so onerous as to doom a candidate who fails to make the "right choice." The distinction between "mandatory" and "voluntary" is rendered a fine one indeed.)

In any case, our fundamental view is that a correct interpretation of the First Amendment does not forbid any limits whatsoever which the sovereign may wish to place on campaign spending or contributions, so long as they apply equally and fairly to everyone.

The chief aspiration of the Bill of Rights was to protect the powerless from the abuse of concentrated power. Were the Constitution's framers alive today, they would surely regard the corruption of our democratic system by moneyed interests as the prime such abuse of power in our time. The Bill of Rights, properly understood, is not a bar to reform, it is a clarion call for reform. "Get special interest money out of politics!" is, today, the moral equivalent of "Don't tread on me!" some 200 years ago.

The whole idea of the First Amendment was to guarantee that everyone's voice would be heard. Today, as always, everyone has one voice, but not everyone has the same amount of money. The Court's current reasoning elevates the voice of the wealthy few and drowns out the the voice of the many -- ordinary citizens. It should be reversed.

We and many others believe the Buckley decision is severely flawed, because it is deeply anti-democratic. The anti-democratic Buckley decision confuses money with speech. Neither the public at large nor many prominent constitutional experts find this to be the case. We believe emphatically that the anti-democratic Buckley decision must be overturned, for the sake of our democracy, by whatever means necessary. And, as you know, we are hardly alone in this belief.

For a number of years, Senators Hollings and Specter have introduced a bipartisan proposed constitutional amendment, with the express purpose of overturning the anti-democratic Buckley decision. In introducing the joint resolution for their amendment just last month, Senator Specter noted that fundamental campaign finance reform remains impossible without overturning the Buckley decision. He said, "I believe that running for office should remain a matter of issues, tenacity, integrity and old-fashioned campaigning. Running for office should not become a simple function of money."

Senator Specter also noted in his remarks on the floor of the Senate that a growing group of prominent legal scholars have called for the reversal of Buckley. Led by Professor Ronald Dworkin of New York University School of Law, so far over 40 legal scholars have signed a statement that reads in part

We believe that the Buckley decision is wrong and should be overturned. The decision did not declare a valuable principle that we should hesitate to challenge. On the contrary, it misunderstood not only what free speech really is but what it really means for free people to govern themselves.

We the undersigned call for the reconsideration and reversal of the Buckley decision.

As one of your other panelists today, Lloyd Cutler, noted when he co-chaired the Committee on the Constitutional System with Senator Nancy Kassebaum and Douglas Dillon in 1988,

Even the Congress has found that unlimited speech can destroy the power to govern; that is why the House of Representatives has imposed time limits on Members' speeches for decades

...On three past occasions we the people have amended the Constitution to correct weaknesses in that rightly revered document as interpreted by the Supreme Court. On at least two of those occasions -- striking down the Dred Scott decision and the decision striking down federal income taxes, history has subsequently confirmed that the amendments were essential to our development as a healthy, just and powerful society

...Accordingly, the Committee on the Constitutional System has come to the conclusion that the only effective way to limit the explosive growth of campaign financing is to adopt a constitional amendment.

As state attorneys general -- many of us elected -- we believe the experience of campaigns teaches the lesson that unlimited campaign spending threatens the integrity of the election process. As the chief legal officers of our respective states, we believe that the force of better reasoning compels the conclusion that it is the absence of limits on campaign expenditures -- not the restrictions -- which strike "at the core of our electoral process and of the First Amendment freedoms."

Former Senator Bill Bradley, as you likely are aware, has called repeatedly for a constitional amendment to pave the way for real campaign finance reform. In an op/ed piece in The New York Times just after the most recent election, he noted the corrosive effect of equating big money with speech.

...the Supreme Court decision that prevents limits on campaign spending must be directly confronted, by amending the Constitution to make it clear that money does not equal free speech...

...the spurious argument in the Court's 1976 decision in Buckley v. Valeo...equated the right to spend unlimited amounds of money when running for public office with the right of free speech. In that case, the Court in effect said that a rich man's wallet deserved the same constitutional protection as a poor person's soapbox, and that limits on total spending hampered free expression.

I disagree. Money is not speech. The right to speak freely is our nation's highest value, but democracy also requires protecting alternative voices from being drowned out by a flood of cash. Unless we set limits on total campaign spending, the powerful can continue to broadcast their voices, while the less powerful are barely heard. It is no infringement on anyone's right of expression to insure that citizens have an opportunity to hear a range of messages about America's future.

Bradley challenges head on the absurd proposition that unlimited big money in politics is an expression of free speech. He highlights the point that while we must always respect the protection accorded by the First Amendment, there is more needed to ensure a healthy democracy than free speech alone.

He has also noted that "Under the current system, Congress will inevitably listen to the 900,000 Americans who give $200 or more to their campaigns ahead of the 259 million who don't." In taking note of the widespread support for major reform like $100 contribution limits, he has noted that "The worst consequence would be a resurgence of door-to-door campaigning, of politicians listening instead of polling, and of campaigns led by candidates and their ideas rather than consultants and their focus-group-tested messages." In Buckley, the Court declared that a spending restriction "necessarily reduces the quantity of expression by reducing the number of issues discussed, the depth of their exploration, and the size of the audience reached." The amount of money spent in modern campaigns bears almost no relation to the number of issues discussed or the depth of their exploration. Money buys chiefly repetition. And distortion. This is why the late constitutional law scholar Paul Freund wrote that spending limits are consistent with free speech: "We are dealing not so much with the right of personal expression or even with association, but with dollars and decibels. And just as the volume of sound may be limited by law, so the volume of dollars may be limited, without violating the First Amendment." I would like to refer the Members of the Subcommittee to a recent article that highlights the danger to our democracy posed by big money in our political system. Professor Ronald Dworkin, writing in The New York Review of Books last October, details this danger in his article entitled, "The Curse of American Politics." He focuses specifically on the problems posed by the Buckley decision, and the danger of not regulating campaign expenditures because of supposed infringements on the First Amendment.

Dworkin points out that in a democratic system, meaning self-government by the people, citizens have two critical roles. The first, in their capacity as voters, is as final arbiters, referees, judges of the government that acts in their name. In this capacity, the free speech protection embodied in the First Amendment is critically important, to ensure that citizens have adequate information to make decisions about public questions and elected officials as they affect their interests. Citizens have a second, equally important role in a democratic system. This is as active participants in the democracy, as candidates, activists, small contributors to citizen organizations and to candidates, and through other proactive participation in the process that shapes their community and nation. The Buckley decision, argues Dworkin, fails to address the need for a healthy democracy to protect the conditions necessary for this active role of the citizenry. You cannot have equal participation, which is necessary for democratic self-governance, when you have the unlimited influence of money in the political process, which is not equally distributed. Buckley is flawed, because it does not recognize this.

Thus, we and many others, for the various reasons outlined above, believe the Court was wrong, and that it should reverse its reasoning in Buckley. But if the Court's reasoning is not reversed, then a Constitutional Amendment is appropriate and necessary to allow limits which the people or their representatives may wish to place on campaign spending and contributions, including so-called independent expenditures, soft money, and/or a candidate's spending from personal wealth.

Such an Amendment would not "amend the First Amendment." Such action is merely clarifying the First Amendment for federal judges (who were appointed, after all, by politicians elected under the current system of campaign financing), and spelling out in black and white what is already evident and commonsensical to the voters of America. Namely, that the control of big special interest money over politics is corrosive of the very fabric of our democratic way of life and must be ended.

We thus advocate an amendment that gives Congress "the power to set limits on contributions and expenditures made to influence the outcome the outcome of any Federal election," and that gives the states the same unqualified power to set limits on big money in politics in their state elections. A copy of our proposed amendment language is attached to my testimony. We do not support weaker versions of a constitutional amendment that would only, we believe, continue to leave decisions about fundamental campaign finance reform to the courts rather than to the people and their elected representatives.

In closing, I would like to point out that the function of politics, indeed the essence of politics, is to shape the law to serve the people. Many if not most great social changes in American hsitory were originally damned by the courts -- abolition of slavery, women's suffrage, the 40-hour work week, anti-trust laws, civil rights, and many more. Victory was won not by lawyers figuring out how to do the good deed while appearing not to do it, while hoping the courts wouldn't notice. Victory was only won by ordinary citizens coming back again and again, at the ballot box and in the streets, and then to the courts if necessary, demanding to be heard.

Our democracy is in grave danger because of big money in politics. The public is clamoring for reform. The anti-democratic Buckley decision stands in the way of this. It is time to overturn Buckley, and a constitutional amendment is necessary to do so.

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