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Part: I
History & Current Questions on Campaign Reform
Without continued efforts toward Campaign Finance Reform, American elections are at
risk to undue influence by major corporations. The public perception of corruption in our old and
current elections system is a threat to our democratic system. Although the Supreme Court has
made great effort to balance the interest our greatest ideal “freedom with speech” with fair
elections free from gross influence by the narrow interests of corporate America. Sadly, the court
has in effect sided with corporations by the creation of loopholes in their rulings on reform laws.
These loopholes have allows money to flow into our elections, and this perception of corruption
turns voters off to the electoral progress. In his powerful 1963 essay “Strength to Love” Martin
Luther King Jr., stated “All progress is precarious, and the solution of one problem brings us
face to face with another problem.” Although talking about the tactics of non-violence as a
means to achieve equal rights for Blacks, King’s statement can be applied to Congress’s attempt
to regulate the influence of money on elections in the United States. Such efforts have been
observed congressional action for over a century. The first bill to address limits on contributions
was the Tillman Act of 1907. The act prohibited monetary contributions to national political
campaigns by corporations. The passage marked the “golden age” for the Progressive
Movement, which fought for better working and living conditions for average workers. In
addition, progressives felt that government was not addressing common concerns of the people,
because of the power of contributions in federal elections by big business on governmental
policy. Theodore Roosevelt was elected in part because of his support for the Progressives; he
called on Congress to take action on curving such power. However, the language of the Act
provided no enforcement method and did not require disclosure on the origins of contributions.
To address the shortcomings of the Tillman Act, Congress passed the Federal Corrupt
Practices Act of 1910 .Not only were limits placed on campaign spending for political parties in
federal elections, but full public disclosure of spending by the parties were required. However,
the Act did not force candidates to disclose, and there were few penalties which were rarely
enforced. In 1941, the U.S. Supreme Court in United States v. Classic (1941) upheld the Acts'
spending limits in federal elections. The court limited its ruling, however, by concluding that the
congressional power to regulate extended only in cases where state law made primaries and
nominations part of the election and/or whenever the primary effectively determined the outcome
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of the election (Bauer 2004). The Act would remain the nation's primary law to regulate
campaign finance in federal elections until 1971 when congress passed the Federal Election
Campaign Act.
As the decades passed, Congress renewed its determination to regulate money in politics
in the 1970's. Suspicions of financial abuses broke into outright criminal charges against
President Richard Nixon with the Watergate scandal which in turn prompted Congress to
strengthen campaign finance regulations by passing the Federal Election Campaign Act of 1971
(FECA) and its 1974 Amendments. The backdrop for such bill was due to the wide-spread
discontent and distrust of government in part because of the Vietnam War. To ensure
enforcement something the previous reforms lacked, an eight-member Federal Election
Commission was set up to oversee enforcement of the law. Political contributions by individuals
and groups were limited. Independent spending by individuals or groups “relative to a clearly
identified candidate” was limited to $1,000 per election (FEC). Expenditures by a candidate in
an election were limited according to which office was being sought. A public financing system
of elections both in primary and general elections were set up. The final major aspect of the law
requires Political Committees were required to keep records on contributions and expenditures
and to disclose them publicly. When ruling on the FEC, the Supreme Court remained badly split
in Buckley v. Valeo (1976), they upheld limitations on political contributions but overturning
restrictions on campaign spending.
In effect, the Court allowed for unlimited independent expenditures, as long as the
candidate or his/her agents did not coordinate efforts. The problem with the Court’s logic is that
is difficult to prevent coordination between interest groups and candidates, therefore providing a
loophole for corporate money to flow into our elections. By the 2002, Soft money provided
more than half the Democrats funds, compared with only 17 percent in 1992; for Republicans,
the percentage rose from 16 percent to more than 40 percent (Jost 2002). Moreover 60 percent of
that money came from only 800 individuals and organizations (O’ Brien 2008). Soft-money
resources by the major political parties rose from $86 million in the 1992 elections to over $495
million in the 2000 election (Jost 2002). What is soft money? Any political contribution which is
made in a way to avoid current regulations, for example donations to political action committees
(PACs’) is referred to as soft money. Such contributions are often limited for "party building"
and "get out the vote efforts". The increase use of "issue ads" which do not clearly support any
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one identified candidate has now become a common way for political parties to get their message
out while avoiding spending limits.
In 2002, the Bipartisan Campaign Reform Act (BCRA) with the leadership of Senator
Russ Feingold and John McCain seek to correct the loopholes. The “McCain-Feingold Law”
placed limits on the amount of soft money, which could be spent by political parties, office
holders or candidates in any federal election. In addition, the act prohibited corporations and
unions from using their general funds for “issue ads” and other “electioneering communications”
aimed at influencing federal election results. Congress passed the BRCA in 2002, and President
Bush signed the bill into law. David O’Brien called BCRA, as being the “most comprehensive
reform of campaign finance in over a quarter of a century (O’ Brien 2008).” The constitutionality
of the law was immediately challenged by both conservative and liberal groups alike. Opposition
to BRCA created “weird bed fellows” with officials and groups who historically always opposed
each other on social and economic issues. The leader of the movement to the challenge of the
new restrictions by the Federal Election Commission under BRCA was Kentucky Republican
Senator Mitch McConnell who was an ardent foe of the BCRA when it was being considered by
Congress. The Supreme Court upheld most of the restrictions set into place by BCRA in the
landmark case McConnell v. Federal Election Commission (2003). In McConnell, Justice John
Stevens stated when writing for the majority “We are under no illusion that BCRA -- the
Bipartisan Campaign Reform Act -- will be the last congressional statement on the matter.
Money, like water, will always find an outlet.” The Supreme Court in 2010, partly overturned
McConnell with the deeply controversial Citizens United v. Federal Election Commission ruling.
In short, the Court held that corporate funding of independent political broadcasts in candidate
elections cannot be limited under the First Amendment. An ABC-Washington Post poll
conducted in February 2010 showed that 80% of those surveyed opposed the Citizens United
ruling. Additionally, 72% supported an effort by Congress to reinstate limits on corporate and
union spending on election campaigns. The wide-spread opposition to the recent Supreme Court
ruling underscores the public perception that corporate money is making our leaders beholden to
their narrow interest at the cost of the nation.
In addition, to concerns of undue influence of soft money in our elections bring us to the
next question; does money itself equal “free speech” and are corporations entitled the same rights
as a citizen of this country? Foes of reform efforts clearly view money as a form of speech,
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where supports view money in more narrow terms in regards to speech. Similar questions come
to mind like in Stolle’s article dealing with political consumerism, are people sick of the current
system where money gains favor over the voices of common working class Americans? It
appears by the recent polls stated above that Americans are indeed in favor of controls to curve
corporate influence. The harm of corporate influence can be seen in the recent BP oil spill over
the Gulf, and Pfizer who puts patients at risk while breaking laws right and left and the only
thing the government can say is that Pfizer is “too bad to nail”. Perhaps the most troublesome
thing that comes to mind with Citizens United is the court places no limits on companies that are
not American. In short, this could mean that foreign companies could have more of a voice in
elections than American citizens.
Surely these are complex questions which this literature review alone will not answer,
however what I hope comes from this is a better understanding on how scholars deal with these
questions. The question of reform, of how money is used in the elections is linked to the health
of our democracy, in whether or not voters can believe that their voices will not be silence by the
overwhelming wealth of MNC’s. Scholars have also have reasoned with no agreement on how to
protect freedom of speech vs. the right to have free and clean elections. Perhaps someday
Congress and the Court will be able to find a balance between the interests of the two major
sides; however such future seems unlikely with our current polarized political environment.
Part: II
Overview of Literature Review
The literature review will take a look at two major themes within the topic of Campaign
Finance Reform. The first theme deals with campaign reform efforts to reduce the appearance of
or outright acts of corruption within our elections system. This theme also looks at the public’s
awareness and understanding of reform. In theme two, we will be concerned about Americans
commitment to Freedom of Speech and Clean Elections. In other words, the question that
scholars want to answer is; are citizens as willing to support the political speech of interest
groups that they dislike as they are to support the speech and influence of groups that they do
like? The second theme will also take a look to see if scholars believe we can find a proper
balance between big business and the common American.
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Theme I: Campaign Reform efforts to reduce the appearance of corruption
Not only is reform good policy in the eyes of many, it’ also good politics. In polls
conducted over the last 20 years show that at least 72% of Americans support campaign finance
reform generally; just 14% are "content" with the current system1. 86% believe that special
interest contributors influence policy decisions2. 53% think they affect them "a great deal." 68%
think that the American political system is more influenced by special interest money than
twenty years ago3. 81% favor limiting the total amount of money that business and industry can
contribute to congressional campaigns4. Oddly despite solid support for reform efforts, in the
book “Inside the Campaign Finance Battle” (2003) authors Corrado, Mann and Potter contend
that such efforts by congress have not changed the appearance of corruption in the eyes of most
Americans. To back their claim, Corrado et al. (2003) used data from the Michigan’s National
Election Studies (NES) and data from the Pew Research Center. In short they concluded, that
just as in past campaign finance reform efforts had no effect on trust in government, the
Bipartisan Campaign Reform Act (BCRA) will just as unlikely to reduce the appearance of
corruption in American politics, because few people were aware of the act, and once informed,
they did not believe it would be successful in stopping the flow of money (Corrado et al, 2003).
Such a conclusion also displays the level of cynicism about the role of special interest and the
ability of the interest groups to shape any reform bill to their approved image. For a recent
explain, although Americans were in favor of the public option, Americans started to turn against
health reform when the powerful insurance and drug interest were able to remove the public
option. In short, the current Health Care Reform bill may expand coverage to millions of
Americans; the bill is weak in protecting the most at risk groups from being abused when
seeking care. Americans feel like in health reform; campaign finance reform will protect the very
interest Congress went out to regulate and therefore providing limited protection for the general
public while at the same time appearing to provide protection and reform.
The relationship between parties and candidates also challenges the success of campaign
finance law in limiting the appearance of corruption or outright corruption in American
1
(Mellman Group poll, August 1996) as cited from Public Citizen: Protection Health, Safety and Democracy.
(Watchdog group which fights for openness and democratic accountability in government).
<http://www.citizen.org/congress/campaign/articles.cfm?ID=5721>
2
(Campaign for America poll, July 1995) as cited from Public Citizen.
3
(Wall St. J. /Hart poll, January 1997) as cited from Public Citizen.
4
(Gallup poll, November 1996) as cited from Public Citizen.
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Elections. How? Some judges have argued that political parties present no danger of corruption.
However, Richard Briffault in his 2000 report titled "The Political Parties and Campaign
Reform” found that although parties play an active and positive role in funding campaigns of
their candidates, some recent campaign practices have caused the loopholes in campaign finance
to grow. He concludes that political parties’ activities to gain funds have undermined campaign
finance law, the very law that both parties had supported. The goal of campaign finance reform
should be not to limit the parties, but to liberate the parties from corrupting influences according
to Briffault. Regulation of party campaign finance activity is, therefore not an infringement on
party rights or an interference with party interests, but a means of making the parties more
faithful to their capacity to promote electoral competition, grass-roots political activity, and
broad-based approaches to the problems of governance (Briffault 2000).
Some questions come from Briffault’s work, such as how can parties be expected to act
with good faith to regulate themselves. The elected officials in Congress benefited from getting
elected in the current system, why would they want to change it, perhaps lip service is all that is
require to keep real voices of reform from gaining any real traction? All regulation carries with it
considerable risk if the regulations are designed by the regulatees themselves. The next logical
question to ask now, is do American’s really care about reform? We already learned from theme
one that Americans do not trust the outcome of reform efforts.
Theme II: Americans commitment to Freedom of Speech v. Clean Elections and a balance
Perhaps the most compelling source I found was written by J.T Grant and T. Rudolph in
(2003) called “Value Conflict, Groups affects, and the Issue of Campaign Finance.” The data
used in this study was taken from the 2000 American Politics Study (APS), in addition to a large
computer-assisted telephone- interview (CATI) survey of the American adult population. This
survey was conducted for the authors by the Center for Survey Research at The Ohio State
University in the weeks following the 2000 elections. This article makes many important
contributions, however for this review we will only focus on the first in which the authors
conclude that citizens' commitment to the values of expression and equality in the campaign
finance system is shaped by their feelings toward those whose rights and influence are perceived
to be at stake. Citizens were more willing to support the political speech of interest groups that
they liked than to support the speech of groups that they disliked. On the flip side, people were
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more deeply concerned about the inequalities generated by groups that they disliked than about
those triggered by groups that they liked (Grant & Rudolph, 2003). An interesting side note from
this report, according to the American Politics Study of 2000 which ranked most liked interest
groups to least like interest groups, show that gay-rights interest groups were the most disliked in
America, more than the Oil and Tobacco Lobby.
To see if we can find a balance between the two parties in the battle over reform, I will
move away from a political science viewpoint, I turn to economists Burton and Russell, who in
their 2004 report titled "Campaign Finance Reform: A public choice perspective" questioned if
reform efforts to reduce the flow of money into elections will really lead to better policy. In
effect they argue that money itself is not bad, and are concerned about adopting non-market
solutions for running our elections. In short they conclude that in our "free" democratic society
they believe that a simple requirement of the details surrounding campaign contributions get
reported in a timely matter might be indeed much more in the public interest then more vigorous
efforts to “restrain” or limit political contributions and spending (Burton & Russell 2004). I
believe that Burton and Russell take too much of a “hands off approach” in their view of money
and influence of big business. Why I think this will be reviewed in my conclusion section.
To counter Burton and Russell, S. Stoll takes the view of reform from a philosopher’s
stance, in her 2005 report titled “Corporate rights to Free Speech”. It’s important to note that she
teaches religion and philosophy at Muskingum College in Ohio. She explores the question
whether or not companies can properly be said to have the right to civil and free speech or
whether corporate speech is always “de facto” commercial speech not subject to the same sorts
of legal protections as the right to civil free speech. She used the recent Supreme Court rulings
on campaign finance reform as her methodology. She concludes the corporation’s rights to civil
free speech must be restricted, because granting rights of free speech to these lifeless and
timeless companies may in practice undermine the guaranteed rights of free speech to individuals
(Stoll 2005). The Supreme Court was once noted for using the 14th Amendment to protect
corporate rights before using such Amendment to protect the rights of African Americans in this
country. However to date, the court has still favored corporate speech almost to the point where
they overlook the rights of common people only showcases how out of touch the elites on the
court are to common American concerns.
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Part: III
Conclusion: Money like Water
“The death of democracy is not likely to be an assassination from ambush. It will be a slow extinction
from apathy, indifference, and undernourishment.” ~Robert M. Hutchins
In restating soon to retire Justice John Stevens when writing for the majority in
McConnell, wrote a powerful statement “We are under no illusion that BCRA -- the Bipartisan
Campaign Reform Act -- will be the last congressional statement on the matter. Money, like
water, will always find an outlet.” Although BCRA has been good in limiting soft-money in
federal elections, big money has simply shifted from the parties’ soft money accounts to 527s,
501 (c)s and new for-profit organizations which have found their way into our elections and are
relatively less regulated (Farrar-Myers & Dwyre, 2008). Critics, who support campaign finance
reforms, were deeply concerned and for the right reasons that Buckley would create massive
loopholes which would allow huge amounts of “independent” cash to find its way in our national
elections. Others would take the position that no matter how many restrictions are placed on
contributions, money like a virus is able to adapt easily to the changing environment. Although,
true campaign finance reform is needed to prevent a status quo system, where only the fat cats
get to play, and where members of Congress have to play ball with them to keep their jobs.
Scholars have been at odds over reform efforts, some believe that there is no need for limits,
where others are stand fast on the need to limit the flow of money into our elections. The weapon
best used by Corporations is “free speech”, however the truth is a corporation is not a person, for
example let’s say I spill a few tons of oil into the gulf coast, I would be in jail faster than it takes
to drink coffee, however to date there has been not one arrest, because the spill took place under
BP. A corporation has no soul, its timeless and lifeless, yet our high Court has hidden behind the
14th Amendment to protect the powerful, while at the same time forgetting about African
Americans, Women and Gays for over a century. Surely the debate will continue over what
future reform efforts should look like among scholars, what is clear however is the failure of past
reform to prevent money from finding new ways into the system.
The concern of undue influence from corporations has been a concern since the start of
the 20th century. Congress then moved to pass the Tillman Act of 1907 which was the first but
limited effort to limit unwanted influence, and BCRA was just another milestone in that effort.
Campaign Finance Reform is in our history and is a valued partner in ensuring the health of our
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democracy. The Congress will always have to adapt to the changing times and the recent growth
of multinational corporations that work without borders. In closing, the health of our democracy
rest more on just “free speech” and “campaign finance reform”, it depends on citizens being
active in the political process.
Political Cartoons: Citizens United v. Federal Election Commission (2010)
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Reference Page
1. Briffault, R. (2000). The political parties and campaign finance reform. Columbia
Law Review, 100 (3), 620-666.
2. Burton, A. A., & Russell. F. S. (2004). Campaign finance reform: A public choice
perspective. Public Choice, 120 (3/4), 379-400.
3. Corrado, A., Mann, T., & Potter, T. (2003). Inside the campaign finance battle.
Washington DC: The Brooking Institution, 273-285.
4. Farrar-Myers, V.A., & Dwyre, D. (2008). Limits & loopholes: the quest for money,
free speech and fair elections. Washington DC: Congressional Quarterly Inc, 172175.
5. Grant, J. T., & Rudolph, T. (2003). Value conflict, group affects, and the issue of
campaign finance. American Journal of Political Science, 47 (3), 453-469.
6. Jost, K. (2002). Campaign finance showdown: are limits on soft money and issue ads
valid. Washington DC: CQ Researcher Inc, 969-992.
7. O’ Brien, David. (2008). Constitutional law and politics: struggles for power and
governmental accountability. New York: W.W. Norton & Company, 457- 475
8. Stoll, S. L. (2005). Corporate rights to free speech. Journal of Business Ethics, 58
(1/3), 261-269
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