From the Los Angeles mayor's race to the race for the presidency, the role of independent campaign finance spending -- money that isn't directly coordinated with candidates -- has never been more important. In the Hahn-Villaraigosa contest, independent spending is at a record of more than $2.3 million, which frees the candidates to exceed the $1.8-million spending cap each agreed to when he took partial public funding for his campaign. On the national level, the so-called 527 organizations (remember the Swift Boat Veterans and MoveOn.org?) are gathering six- and seven-figure donations, and those donations are taking the place of the "soft money" gifts to political parties that Congress outlawed in 2002.
So is this independent spending yet another campaign finance "loophole" that should be closed, or is it something to be celebrated as part of the vigorous free exchange that should take place in the election season? It's neither. Instead, it's an unavoidable consequence of our private system for financing elections, and it cannot and should not be limited until we shift to full and fair public financing.
To understand the rise of independent spending, it's necessary to look at the Supreme Court's 1976 decision in Buckley vs. Valeo. In that case, the Supreme Court upheld the ability of Congress to limit contributions to candidates. Giving a donation was the significant act of speech and association, according to the decision, and limiting merely the amount didn't take much away from that right. Moreover, large contributions given to candidates raise concerns about corruption, so limiting them would help prevent damage to the political process that could come from even the appearance of corruption.
When it came to independent spending, however, the court said that curbing contribution amounts would have too much of a detrimental effect on 1st Amendment rights. The federal law at issue in Buckley would have barred most individuals from spending as little as $1,000 on, say, a newspaper ad promoting a presidential candidate. Not only would that limit important voices in a political campaign, the court held, it could not be justified by a concern about corruption or the appearance of corruption, given the requirement that such efforts be independent from the candidates. So the court's decision let independent spending stand and paved the way for the situation today.
The free-speech justification in this reasoning is pretty persuasive. We would have a poorer political debate if the only ones that could meaningfully participate through campaign spending were the parties, the candidates and the media (the media being big campaign spenders that are exempt from most campaign finance laws).
But what about the court's rationale on corruption and independent spending? Surely many Angelenos believe that James K. Hahn and Antonio Villaraigosa are likely to give special access to the heads of unions that are running independent ads supporting them. And some suspect that so-called independent spenders are really in cahoots with the candidates anyway (that's probably not true -- it's too easy to watch a campaign from the outside and legally devise a complementary strategy). None of this reassures the voters that the system is clean.
There is a way to solve the appearance of corruption and at the same time fulfill the need to allow the maximum number of voices to be heard during a campaign: public financing, distributed to candidates, causes and parties. Imagine if the city gave Los Angeles voters $25 each in campaign vouchers to distribute to his or her favorite city candidate, party or interest group, and this was the only money allowed in L.A. campaigns. The potential for corruption drops precipitously, the number of voices heard, via donations, rises.
A few things would have to happen first. The city would have to decide how much money should be allotted to allow for vigorous, competitive city campaigns. And the Supreme Court would have to reverse itself on some provisions of Buckley vs. Valeo in order to, under the right circumstances, allow limits on all kinds of campaign spending.
But that could be happening sooner rather than later. The 2nd Circuit Court of Appeals recently issued an opinion strongly suggesting that Vermont's mandatory candidate spending limits are constitutional. Those limits, among the nation's strictest, were meant to challenge Buckley vs. Valeo, and the question may well be headed for the U.S. Supreme Court. That means the court may take its first serious look in nearly 30 years at the question. The final word on spending limits -- and the corrupting effect of "independent" money -- is yet to come.