The Campaign Finance Problem

It is commonplace to state that spending on political campaigns is "escalating." A more accurate word is "skyrocketing."

Between 1976 and 1988, spending on nationwide races for the U.S. Senate and House of Representatives shot up from $115.5 million to $457.7 million-a whopping 379% increase, far above the rate of inflation during that period.' Statewide and state legislative races increased from $120 million in 1976 to $540 million in 1988, an even greater rate of 450%.2

In West Virginia, expenditures for state Senate races showed even more dramatic increases in the decade 19761986. In 1976, the total spent for all state Senate races was $154,953 and by 1986 that total had reached $1,511,032-an 875% increase.3 The average cost of contested races in 1976 was $10,204, and in 1986, $112,162-an increase of 999%.4

An analyst of gubernatorial campaigns throughout the country drew this conclusion about the costs of races for governor in West Virginia:

The cost of gubernatorial campaigns since 1980 in West Virginia have averaged $9.7 million (1987 dollars), placing your state in 9th position among the 50 states. Since West Virginia is 34th in population and 41st in land size among the states, that average cost appears to be out of line, primarily due to the extraordinary cost of the 1980 election in which Governor Rockefeller invested so much money. Population size and the area of the state are generally two of the most cited factors in the cost of gubernatorial elections along with the competitiveness of the race, and the number of and cost of advertising in the state's media markets.5

The two most expensive campaigns in West Virginia history were both waged and won by U.S. Senator John D. Rockefeller IV. In winning reelection to the governorship in 1980, Rockefeller spent $11.7 million to defeat Arch Moore, who spent $967,488. To win the U.S. Senate seat in 1984 Rockefeller spent $12.1 million. The third most expensive race was waged by Gaston Caperton in 1988, when he spent $4.9 million in a campaign in which all candidates in the primary and general election logged a total of $8.8 million in campaign expenditures.6

Public opinion polls have consistently indicated a strong majority in support of ceilings on campaign spending. "Do you think there should be a limit on how much a person can

Ken Hechler is West Virginia Secretary of State and a former member of the U.S. House of Representatives.

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spend on running for public office?" was the question posed in a 1986 newspaper poll of 511 scientifically sampled West Virginia voters. The answers were 75.5% yes, 16.8% no, and 7.7% undecided.7

There are many reasons for the sharp increases in campaign spending. Campaigns have become professional ized. Highpriced political consultants are usually engaged for fundraising, polling, public relations, media design and production, research and many other aspects of the campaign. Sophisticated techniques are developed for targeting interest groups, mass mailings, computerized voter lists and other high-tech items which consultants convince candidates are necessary. Increasingly complicated laws and required contribution and expenditure reports often mean that candidates have to hire election lawyers and accountants to stay out of trouble. Candidates have to compete with big-budget commercial advertisers to be heard, and the cost of radio and television advertising is rapidly increasing.

James A. Farley, President Franklin D. Roosevelt's campaign manager and later national Democratic chairman, once observed that half of the money spent in a campaign was wasted, but he could never figure out which half! Nervous candidates are easily convinced in the waning days of a campaign that they simply must step up theirspending or wind up second in a contest where no second prizes are awarded.

A veritable arms race has developed between incumbents and their challengers. To scare off challengers, incumbents build up huge "war chests" months and years in advance of election year campaigns. The cost of campaigns has resulted in an increasing percentage of millionaires holding public office. Young people and those unwilling to "sell their souls" to special interest groups to raise money are hard-pressed and become discouraged from running for office.

The high cost of campaigns translates into high pressure on incumbent legislators to neglect their duties in order to raise money. Former Senate Majority Leader and West Virginia Senator, Robert C. Byrd, recently denounced "the money chase that is undermining this institution and taking Senators away from their work."8 In 1988, the average campaign for the U.S. Senate cost $4 million, which means that incumbents have to raise some $13,000 every week of their six-year term.9

For nonincumbent candidates, the pressure is even more intense. "Fundraising replaces campaign time that might otherwise be spent discussing issues and meeting with voters," concluded a task force analyzing campaign spending in West Virginia.10 With a part-time legislature in West Virginia, the time taken for fundraising during sessions is a more serious detriment than in other states with full-time legislative bodies.

Modern standards of ethics, morality and legality are far higherthan in earlieryears. During theeraafterthe Civil War, which one writer aptly termed "The Golden Age of Boodle,"" bribes and campaign contributions were at times scarcely distinguishable. Prior to the Seventeenth Amendment to the Constitution providing for direct election of U.S. senators, seats in the Senate were openly purchased by wealthy men or those financed by huge special interest contributions which amounted to bribes. A stark example on the national scene occurred when Vice President Spiro Agnew resigned his office in disgrace after he pleaded no contest to a felony cou nt of i ncome tax evasion, g rowi ng out of the acceptance of kickbacks on Maryland state contracts with architects and contractors. On the day of his resignation, Agnew stated bluntly: "My acceptance of contributions was part of a longestablished pattern of political fund-raising in the state."12

It should not be concluded that fundraising automatically is accompanied by any quid pro quo. An overwhelming majority of honest candidates and honest contributors participate in the political process without being accorded due credit by investigative news media sniffing out corruption. Those who compile voting records and attempt to tie legislative votes to prior campaign contributions overlook the fact that a majority of contributors simply give to candidates whose philosophy they already support. However, many conscientious legislators have spoken out publicly against the "pernicious influence of political money." House Majority Leader Richard A. Gephardt (D-Mo.) went so far as to urge his colleagues, in the closing debate on the reduction of the capital gains tax: "Do not listen when some contributor, a well-meaning contributor, may call and say please vote for capital gains it helps my own situation. I know the temptation to do that."13 "It's as simple as he who pays the piper plays the tune," noted Rep. Dan Glickman (D-Kan.) "Money has made it more difficult for Democrats to define an economic agenda that is different from the Republican agenda; we are taking from the same contributors."14

In modern times, the rise and proliferation of political action committees (PACs) has radically changed the political landscape. Between 1978 and 1988, contributions from all business, labor and other PACs to U.S. House of Representatives general election candidates grew more than 400%, from $22.9 million to $98.9 million. PAC contributions now account for 45% of the average house candidate's campaign war chest, compared to 28% 10 years ago. In 1988, house incumbents raised more than seven times as much as challengers from PACs, on average receiving more than $200,000 apiece from PACs.15

History of Campaign Finance Reform

Both Congress and the states have made sporadic efforts to control and reform the entire area of campaign contributions and expenditures. The efforts have been hampered by legal and constitutional restrictions, as well as the ingenious discovery and exploitation of loopholes by candidates, PACs, and forces opposed to reform. The watersheds of reform in many phases of society frequently follow some dramatic occurrence, such as the surge of social legislation which followed the tragic Triangle Shirtwaist Factory fire in a sweatshop loft in New York City. Such an occurrence was the well-heeled national campaign against the presidential candidacy of William Jennings Bryan in 1896. Mark Hanna, the most successful fundraiser up to his time, shook the money tree for untold millions of dollars from banks, corporations, insurance companies and wealthy denizens of Wall Street terrified by Bryan's radicalism and scared into filling the campaign coffers of William McKinley. Hanna assessed

banks one-quarter of one percent of their capital, and levied analogous assessments on larger corporations-such as the Standard Oil Corporation, which kicked in one quarter of million dollars.16

When Theodore Roosevelt succeeded McKinley, the progressive wing of the Republican party was in control. Roosevelt in 1905 proposed a ban on corporate contributions, and followed with the suggestion that all federal campaigns be publicly subsidized. This was the era of the muckrakers, which spurred the passage of the Tillman Act in 1907, prohibiting campaign contributions by corporations and banks.17 At the state level, West Virginia moved quickly in a special session of the legislature to enact the first spending limitand financial disclosure bill in 1908.18The limitsextended to all city, county, state and congressional races and were graduated in accordance with the number of votes for that office at the prior general election. For example, candidates for an office where 100,000 votes had been cast were limited to $1,275 and 50 cents per voter over that total, with a misdemeanor fine of up to $500 for violations and identical fines for failure to file disclosure forms. Unfortunately, the disclosure forms were not required until 30 days after the election, depriving the voters from knowledge of what candidates had spent, prior to the voter deciding who to support.

In 1910 and 1911, Congress enacted corrupt practices legislation establishing both disclosure requirements and spending limits for congressional races.19 The West Virginia Legislature in 1915 expanded financial disclosure requirements and added the provision which survives today that 40 days after primary and general elections delinquent nonfilers were to be turned over to county prosecutors. The spending limitations were revised to set a scale of $200 for county offices, $125 per county for candidates for the legislature, and $75 per county for congressional and statewide candidates. The spending limits were for primary elections, with a like amount for the general election. The 1915 legislation also detailed seven categories of expenditures legally authorized, all of which have survived to the present, but have been expanded to cover modern developments like radio, television, and public opinion polls. West Virginia political observers will be amused by the fact that in 1915 one of the lawful expenditures was "for conveying infirm or disabled voters to and from the polls," which today has been amended to read simply, "for conveying voters to and from the pollS."20

In 1918, Truman Newberry defeated Henry Ford in the U.S. Senate race in Michigan. Newberry was subsequently convicted for exceeding the $10,000 spending limit, but the U.S. Supreme Court in 1921 overturned the conviction on the grounds that Congress could not limit primaries.21 In subsequent cases, the Supreme Court has reversed the Newberry decision, but when the Federal Corrupt Practices Act of 1925 was passed, primaries were omitted from coverage. Fortunately, more recent campaign finance legislation now legally covers primaries, but the 1925 act was riddled with other loopholes. Candidates got around spending limitations by setting up a number of committees, and evaded other limitations by contending that the committees did not operate with "knowledge and consent"!22 A 1940 federal law limiting committees to a $3 million annual expenditure was also rendered useless by the establishment of a number of political committees.

In a 1963 publication, the Bureau of Government Research at West Virginia University had this pessimistic comment concerning campaign disclosure reports:23

It is exceed inglycluestion able whether the fi I in g of such information has any practical value. In many instances the reports are incomplete and misleading. In other instances, the use of fictitious names and the omission of other names and amounts render the reports meaningless.

A 1971 publication by the same bureau was even more critical of the West Virginia statutes designed to insure effective regulation of campaign financing:24

It is not unusual for candidates to file statements after the time for filing has expired; and on occasion, unsuccessful candidatesfile no statement whatsoever. Thosestatements which are filed apparently are filed in compliance with the general principles of the law. They serve no particularly useful purpose in providing a meaningful check upon campaign contributions and expenditures.

The 1971 report was justifiably critical of the prohibitions against solicitation of contributions from nonelective salaried employees. It was a common practice in West Virginia to finance political campaigns through such assessments to build up what were termed "flower funds." The 1971 report comments:25

It is not unusual for political leaders to readily admit to the existence of "flower funds" but to insist that any contributions made by State employees are wholly voluntary and therefore quite legal. Suffice it to say that in this matter there have been no convictions.

The 1970s marked a flurry of activity at the federal level. In 1971, Congress established public subsidies for presidential candidates, financed by a one dollartax check-off on federal income tax returns (made effective for the 1976 presidential election). The new lawalso placed ceilings on media expenditures, graduated in Senate campaigns according to population. Furthermore, loopholes in prior laws on disclosure of contributions and expenditures were closed, providing meaningful disclosure requirements. Thetoothless and loophole-ridden Federal Corrupt Practices Act of 1925 was repealed, and replaced by a statute with clear and unambiguous limitations on what a candidate could contribute to his own campaign. A candidate or hisfamily could not contribute more than $50,000 in each nomination and election contest for president, $35,000 forthe U.S. Senate and $25,000 forthe U.S. House of Representatives.26 In the 1968 presidential campaign, 32 DuPonts had contributed $107,000,22 Mellons $299,000, 21 Rockefellers $1.8 million, and 11 Pews $214,000.27

The 1971 law proved ineffective in preventing the campaign finance scandals spawned by Watergate, although the reporting requirement helped uncover many features of the multi-million-dollar financing of the Nixon presidential campaign. Huge illegal corporate contributions were "laundered" to conceal their identity. The scandals spurred Congress to strengthen the 1971 act in 1974, tightening the limits on what a candidate and his family could give to a candidate's campaign, setting a $1,000 limit on how much a contributor could give to each campaign, and a $5,000 limit on what a political action committee could contribute to a candidate. One very significant feature of the 1974 statute was the establishment of the Federal Election Commission, a bipartisan group which received and made public the financial disclosure reports, aswell as issuing rulings on interpretations of the act. The Federal Election Commission has been reasonably effective in overseeing the entire area of campaign financing and disclosure.28

The reform movement also occurred in new legislation in the states during the 1970s. In 1971 only seven states limited the size of an individual's contributions to a state campaign, whereas by 1974 this number had increased to seventeen. West Virginia Secretary of State John D. Rockefeller IV, elected in 1968, proposed some modest reforms which stiffened the reporting requirements slightly and also provided for tax credits for campaign contributions. The Republican sweep in West Virginia in 1972, however, elected a Republican Secretary of State, Edgar F. Heiskell 111, who proposed more stringent reforms. Heiskell's package required a single depository for campaign funds, more complete listing of occupations of contributors, limitation of individual contributions, and a $35,000 limit on what a candidate or his family could contribute to his own campaign. Not until January 1972 did GovernorArch Moore urgethe legislature to enact campaign finance reform legislation, and thereafter hewassilent on the subject despite the proposals advanced by hisfellow Republican. There was a minimal degree of enthusiasm for the proposals from the general public and all interest groups except the League of Women Voters. Consequently, the legislature placed reform on the back burner, even after the shocking disclosures produced by the Watergate scandals. The tide of reform which affected many other states did not extend to West Virginia in the 1970s, as the legislature opted for the status quo, and neither proposal was enacted.29

In 1976, the United States Supreme Court, in the case of Buckley v. Valeo,30 threw a blockbuster at campaign finance reform by ruling that many aspects of the 1971 and 1974 congressional statutes were unconstitutional violations of the FirstAmendment. Thisclecision had far-reaching, adverse effects on state legislation also. Thecourt pointedly indicated that spending limits would only be constitutional if they involved public financing. The limits on how much could be contributed to a candidate or committee were upheld, but the limits on how much a candidate could pour into his own campaign were thrown out the window. In addition, all limitations on independent expenditures on behalf of candidates were struck down. By equating money with speech, the court dealt a devastating blow to those desiring to create a level playing field for both rich and poor candidates. Freedom of speech was interpreted as according greater freedom for millionaires, and less freedom for those who possessed neither wealth nor the inclination to accumulate huge special interest war chests.

In the wake of the Buckley decision, Congress in 1976 required that political committees and individuals making independent expenditures over $100 had to swear that these expenditures were not made in collusion with the candidate.31 Unsuccessful efforts were made to extend public financing to congressional elections, but the public financing craze gripped the states. By 1989, half of the states had adopted some form of public funding of campaigns, whether through direct subsidies or various forms of tax credits or deductions. Seven states now require that candidates receiving public financing also observe ceilings on total spending.32

Campaign Finance in the States

A number of states and critics have made attempts to control campaign spending, either by limiting the size of contributions, as in West Virginia, by providing tax incentives for contributions, or by some form of public financing which in several states is accompanied by limits on expenditures. There are now 22 states which have some form of public financing of campaigns, and 8 of the 22 include limits on spending. Several states have adopted creative measures to limit spending. In Florida, unopposed candidates are limited in the expenditures they may make once they become unopposed. New Hampshire establishes limits on what can be spent on political advertising, as did Congress in its 1971 statute. In Utah, expenditures on behalf of a candidate must be made through and with the approval of the candidate's personal committee. Wyoming stipulates that money may not be expended on behalf of a candidate without the candidate's prior written approval.

In Hawaii, Minnesota and Wisconsin, races for governor, some statewide campaigns, and legislative races are publicly financed. Five additional states fund only races for statewide office. In Montana and Massachusetts, where the funding is provided by an add-on (as contrasted with the Federal checkoff) to the income tax, the amount of funding is relatively small. Six states fund their campaigns by the check-off system in which the taxpayer does not pay any additional tax or by direct state appropriation or a combination of the two.

There is wide variation among the states in eligibility requirements for public funding. Some states require candidates to raise certain amounts of money, as presidential campaigns are financed, to be eligible for public financing. States also vary widely in the practice of publicly funding primaries. Hawaii furnishes only $50 to legislative candidates, which understandably lowers the participation rate; in Minnesota, the average is about 60 times higherand the participation rate is also much higher. In Maryland, aid to candidates was based on an income tax add-on, but the plan was suspended in 1982 because the amount raised proved to be too small.

The most successful system of public funding forgubernatorial campaigns is the New Jersey program, wherein about 60% of the total cost of the campaign is publicly financed. In some other states where the amount of public financing is lower, there have been numerous instances where wealthy candidates decided that they preferred to stay out of the system so they could spend more of their own money and not be restricted by any limits tied to public financing.47

The increase of negative, mud-slinging campaigns and the end of federal revenue-sharing which places increasing financial burdens on states have contributed to declining support for the public financing of election campaigns. At the same time, the skyrocketing spending has increased the pressure from some sources to extend public support for campaigns to remove them from special interest domination. However, the more money that is spent, the greater is counterpressure from those who observe that money wasted on campaign gimmicks spurs opposition by taxpayers to wasting their tax dollars.

New York City, Chicago and several smaller cities have enacted spending limited tied to public financing, with mixed results in the number of participants willing to abide by the limits. A unique new approach has been tried in New Hampshire, starting in 1990. A $5,000 filing fee plus individually notarized signatures of voters are required unless candidates agree to specified spending limits.

In the early years following the Watergate scandals the percentage of taxpayers willing to check off $1.00 on their income tax returns to finance presidential campaigns was considerably higher. In 1981, approximately 41 million taxpayers (27% of the total) checked off the $1.00 on their IRS forms; in 1988, only33 million taxpayersopted tosupportthe public funding of presidential campaigns through using the check-off (21%). There was a further decline to 32,560,000 (20%) in 1989.48 Supporters of public financing, like Common Cause, insist that this falloff "has occurred in part because the memory of abuses in the Watergate era has faded-fewer taxpayers remember why the checkoff is there."49 It is also suggested that the tax professionals preparing taxes often do not mention the check-off. Both of these reasons may account for some of the decrease, but it is safe to conclude that the steady slide since 1981 is probably due to public disillusionment with the nature of the campaigns, as also reflected in the declining percentage of eligible voters who go to the polls.

Contemporary Reform Efforts in West Virginia

There have been a number of interesting developments in West Virginia since the Buckley decision in 1976. To encourage a wider number of small contributors, the West Virginia Legislature in 1980 lowered from $5,000 to $1,000 the ceiling on both individual and committee campaign contributions to a candidate. Despite the rise in the consumer price index since 1980, the limit is still $1,000 as of this writing.

In 1984, Secretary of State Ken Hechler asked the League of Women Voters to prepare a study with recommendations for improvements in election laws, to be submitted prior to the convening of the 1985 session of the legislature. The League report was extremely helpful in pinpointing a number of areas requiring reform and clarification, both in the campaign finance area and in other aspects of election law administration and enforcement.33 The League then helped lobby for the passage of some significant statutory improvements in 1985. Among campaign finance reforms passed in 1985 were the following:34
 

Candidates and committees up until 1985 had never been required to file any report after the post-election filing 30 days after election day, thus making it impossible to inform the public about unpaid loans or campaign contributions to pay off debts or other transactions. The 1985 law now requiresan annual reporton the last Saturday in March for those with over $500 of activity.

More specific information on loans is now required, including names of co-signers, a copy of the loan agreement with interest rate and repayment schedule.

Anonymous contributions are now prohibited, and if discovered must be turned over to the general revenue fund of the state.

The penalties were also increased for wilful violation of campaign finance reporting requirements.

Starting in 1986, the secretary of state published several pamphlets including the text of the new legislation, administrative rules which implemented and interpreted the legislation, and a handy guide for candidates, committees and election officials. Furthermore, as staff resources allowed, campaign finance reports were audited and more extensive efforts made to educate candidates and committees on filing accurate and complete reports.

On July 9, 1986, the West Virginia Supreme Court of Appeals handed down a landmark decision which ruled that expenditures for temporary campaign workers which exceeded limits that were "fairly commensurate with services rendered" amounted to vote-buying.35 The secretary of state was directed to promulgate the necessary regulations to bring these expenditures in line with services rendered.

Following 65 days of intensive discussions with the bipartisan State Election Commission, along with public comment, a limit of $35 per temporary worker on election day, along with a limitation of one temporary worker per precinct, was put into effect on September 15, 1986.36

The nature of election day expenditures was also reformed in 1986 by the passage of a statute prohibiting campaigning within 300feet of the outside doorof the building in which the polls are located. This new 300-foot law, strongly opposed by some politicians in southern West Virginia, had been a top priority interest of the secretary of state since taking office in 1985. Its passage and successful application after 1986 were widely hailed byan overwhelming majority of voters.37 One of the significant effects of the law was to discourage the payment of election workers on the grounds near the polls, and to shift the emphasis to preelection day activities.

One of the top priorities of the current secretary of state has been to try to achieve some controls over campaign spending. When bills designed to limit campaign spending did not pass in 1985 and 1986, the secretary of state caused to be formed a Campaign Finance Task Force, the membership of which included Becky Cain and Lila Hill of the League of Women Voters; David Grubb, State Director of West Virginia Citizen Action Group; Dr. Robert Hall, Executive Director of Common Cause/West Virginia; and John Hurd, President, West Virginia Chamber of Commerce. In its final report, the task force analyzed three alternative ways to implement campaign spending limitations: (1) mandatory limits and a constitutional challenge to attempt to reverse the Buckley v. Valeo decision; (2) mandatory limits tied to the voluntary acceptance of some form of public financing; (3) voluntary ceilings based on public policy. The task force rejected a challenge to the Buckley decision on the grounds that it 11 simply does not have the requisite faith in the likely success of a constitutional challenge." The purelyvoluntary approach was rejected because "the Task Force feels that it lacks the essential enforcement mechanism so necessaryto success." In conclusion, the task force recommended limits combined with some system of public financing.38

There appeared to be little sentiment in either the legislature or in the public for any form of public financing. As a consequence, Delegates Phyllis Given (D-Cabell) and Betty Crookshanks (D-Greenbrier) introduced a mandatory spending limits bill designed to challenge the Buckley decision.39 Although a subcommittee of the Judiciary Committee recommended the bill, the full House Judiciary Committee after acrimonious debate recommended a purely voluntary bill because the majority feared the Buckley decision could not be overturned. The House of Delegates then tabled the voluntary bill, with many members protesting it had no teeth.

In 1988, the secretary of state, with the full support of the Speakerof the House Robert "Chuck" Chambers, decided to pursue a two-pronged approach: (1) push for a state constitutional amendment, which might, when passed, help bolstera re-argument of the Buckley case; (2) should the first alternative fail, initiate a set of voluntary limits for all state and legislative offices in the 1988 primary and general elections. Although the constitutional amendment received a majority of 52votes in the Houseof Delegates, thevotefell short of the two-thirds necessaryto place the amendment on the general election ballot. Meanwhile, a newspaper poll of 538 West Virginians showed that 62.1% supported "voluntary limits on campaign spending," while 32.9% thought candidates should "be free to spend as much as they can afford." Only 5% expressed "no opinion."40

The State Election Commission unanimously recommended that a "Code of Fair Campaign Practices" embodying voluntary spending limits be circulated in 1988 to all state and county candidates. The Code4l included the following pledge:

I personally support a limit on campaign expenditures that when reasonable, sufficient and fairly applied, does not limit or restrict the expression of ideas of the candidate or others on behalf of the candidate, but instead challenges individuals to engage in open dialogue on the issues rather than merely to purchase the excessive repetition of images and slogans.

Although neither candidate for governor in 1988 signed the code, the voluntary spending limits had a dramatic effect in reducing expenditures in races for the House of Delegates and state Senate. In 1988, 14 of the 17 successful candidates signed the code. Despite the competition for attention while the presidential, gubernatorial and U.S. Senate races were proceeding, total expenditures in all state Senate races dropped for the first time in history, from $1,511,033 in 1986 to $899,881 in 1988-a 40% decrease. In House of Delegates races, 72 out of the 100 successful candidates signed the code in 1988. Recordsforall races are difficult to obtain atthe county level, but in Kanawha County alone, where 11 of the 12 successful candidates signed the code, the average cost of winning a seat declined from $17,449 in 1986 to $9,375 in 1988.42

Further progress was made in 1989 toward incorporating the Codeof FairCampaign Practices and voluntary spending limits into statutory form. The House of Delegates passed such an authorizing statute on March 3, 1989.43 After clearing the HouseJudiciary Committee, the House passed the bill by voice vote. However, the Senate Government Organization Committee, during a hearing on the House-passed bill, effectively killed the bill by referring it to a subcommittee.

A dramatic development in campaign spending reform occurred in the 1990 session of the legislature. The House of Delegates passed, by a vote of 86-14, a constitutional amendment "to amend the State Constitution to permit the Legislature to limit the amount of money which can be spent advocating or opposing a nomination or election of any candidate, orthe passage or defeat of any issue, thing or item to be voted upon at public election." The elation of supporters of the constitutional amendment, scheduled to be placed on the general election ballot in 1990, was short-lived, however. The state Senate quickly buried the amendment by doublereferencing it to the Government Organization and Judiciary Committees, where it died without further consideration despite frantic and repeated efforts of the secretary of state to revive it.

During the 1988 gubernatorial campaign, the State Election Commission was presented with evidence that the $35-perday limit on payment to temporary election workers was being evaded by paying workers for multiple days of preelection day work. The Commission unanimously urged the secretary of state to promulgate new regulations to extend the limitation to the preelection period, and apply these regulations prior to the November 8 general election.44 The secretary of state, although he had voted for the recommendation in the Commission meeting, entertained some reservations about promulgating the regulations less than six weeks before the election without a public hearing having been held as had been done prior to issuing the 1986 regulations. Strong objections were also voiced on the constitutional grounds by the speaker of the House of Delegates and the chairmen of the House and Senate Judiciary Committees. To obtain a declaratory judgment from the State Supreme Court, the secretary of state invited the State Republican chairman to bring a mandamus action. Although denying the writ of mandamus and avoiding the constitutional issue, the Supreme Court f inally decided on November 3,1988, that the secretary of state "does have authority to implement the recommendations of the Commission."45 On the same day the court rendered its decision, the secretary of state put the proposed regulations into effect and immediately notified all candidates and committees of the action.46

Campaign Finance and the Future:

A Proposal for Reform

Ever since the Buckley decision in 1976 limiting efforts to curb campaign spending, a small band of reformers has foughta frustratingly uphill battleto pick upthe pieces of the statutes shattered by the U.S. Supreme Court. Perhaps the most notable effort has been the Byrd-Boren bill, sponsored by the West Virginia and Oklahoma senators. In essence this bill attempts to tie public funding to spending limits and to limit PAC contributions to congressional campaigns. Although the bill received widespread public and editorial support, as well as massive lobbying support from organizations like Common Cause and the League of Women Voters, year after year the bill foundered by failing to stop filibusters against it. While the sponsors were marching up the hill, only to be pushed back, PACs continued to proliferate.50

The scandal in the savings and loan contributions to five U.S. senators by Charles H. Keating, Jr., spurred Congress to take a more optimistic attitude toward campaign spending reform in 1990. The partisan wrangling which blocked action on the Byrd-Boren bill has been eased somewhat by public expressions of support from Republican and Democratic leaders in both the House and Senate. On March 6, 1990, a bipartisan panel of lawyers and professors chosen by the Democratic and Republican Senate leadership reported their recommendations. Candidates accepting voluntary spending limits would get lower postal and advertising rates, plus tax credits to contributors.

To provide a vehicle for further discussion, the Senate Rules Committee reported S. 137, but intensive, behind-thescenes negotiations still had not produced afirm compromise agreement byJune 15,1990. Senate Majority Leader George Mitchell (D-Me.) remained insistent and optimistic that Congress would act affirmatively.

There are two ominous new thunderclouds which have recently materialized on the campaign finance horizon: soft money and bundling. "Soft money"-inelegantly dubbed 11 sewer money" by The New York Times-takes advantage of a loophole that Congress allowed in the Federal Election Campaign Act of 1979 when it permitted state parties to make unlimited expenditures for get-out-the-vote drives and other party-building activities. The loophole enabled donors to bypass the $25,000 limit on total giving to federal candidates and committees by giving the money to state parties. This also was used to contribute to state parties whose laws allow corporate or union contributions. As a result, in 1988 over 375 people contributed $100,000 or more to the Democrats or Republicans, a practice which many felt had been corrected as a result of the Watergate scandalS.51

"Bundling" means the process by which a PAC collects and transmits contributions or otherwise channels them to candidates. Forexample, a committee may solicit funds fora candidate, accepting checks which are funneled to the candidate after first being made out to the committee. Soft money, bundling and other forms of what has been termed 11 creative brokering" have been criticized but never effectively curbed.

Year after year, Congress has confronted a gridlock on how to proceed, post-Buckley, to limit campaign spending. The lip service given to the issue, bolstered by powerful editorial support, also seems to result in stalemate. At the state level, it can scarcely be claimed that overwhelming success has been achieved, with the exception of a few isolated instances. The chief stumbling block appears to be the United States Supreme Court decision which equates freedom of speech with the free spending of campaign money. The Court in several decisions has sanctioned the unlimited spending of "independent" PACs or committees for or against candidates or issues.

As long as over 98% of the incumbent congressmen are reelected, it is easy to understand why this translates into reluctance to change the rules by which this incumbentprotection is achieved. The same is true at the state level, where elected legislators fear to rush in and change the system by which they were elected. It is even a form of popular demagogy for incumbents to warn solemnly that any limitation on campaign spending would favor the incumbents against the challengers who must spend huge sums to unseat the incumbents! This skewed logic ignores the fact that incumbents always find it easier to raise money than do challengers, and a ceiling on spending would mean that a challenger would not have to raise as much money as the incumbent who bumps up against the ceiling. Of course, other steps are necessary to provide an even playing fieldincluding a balancing of the franking privilege advantages that congressmen possess, as well as the need to even out the amount of television and radio time available for challengers as well as incumbents.

Since the chief stumbling block to action appears to be the decision of the U.S. Supreme Court, starting with the Buckley v. Valeo decision in 1976, perhaps the time is ripe for a frontal challenge to that decision. The constitutional requirement that public financing is the necessary handmaiden of spending ceilings has played hob with those states facing severe financial burdens. The declining taxpayer support for income tax check-offs is a danger sign that public financing is increasingly unpopular. Since the U.S. Supreme Court under Chief Justice William Rehnquist, as dramatically illustrated in the Webster abortion case, is developing into a states-rights court, perhaps a challenge through state legislation would stand a better chance of passing constitutional muster. Throughout constitutional history, the U.S. Supreme Court has reversed prior decisions when changing times have produced new factual situations. This has been true in the case of child labor and fair labor standards legislation, as well as the dramatic reversal of Plessy v. Ferguson (the 11 separate but equal" decision) by Brown v. Boardof Education in the famous school segregation case. It can be argued that the freedom of speech of candidates of modest means is being deprived to a far greater extent than the freedom of speech of millionaires, since the former are frequently being excluded from office-seeking, or if theydo run theirspeech is muted.

It would not be difficult to make a strong case, which is supported by statistics at both the federal and state level, that political campaigns since the Buckley decision have become outrageously expensive. The opinion in the Buckley case speaks of the "allegedly skyrocketing costs of political campaigns." One constitutional observer remarked recently: "I do not think any justice today would say'allegedly'.