The 1980 election was marked by the entrance of a significant new participant in the electoral process: the independent spender. Under the Federal Election Campaign Act, (FECA) the independent spender is unhampered by the rules and regulations that affect everyone else. The independent spender is not limited in the amounts of money that can be spent or by the effective constraints of reporting. In a broader perspective, the independent spender is not subject to the “rules of the game” generally associated with American campaigning.
An independent expenditure under the FECA is spent in the election or defeat of a candidate and is made without the cooperation or consent of any candidate. Constraints are placed upon groups in raising funds for independent spending and responsibilities are imposed on such groups both to register and to report their income and expenditures to the Federal Election Commission if they receive or spend certain threshold amounts. In spite of these minimal requirements, courts have been loathe to punish unregistered groups, acting in effect as independent spenders, which do not fall strictly within the statutory definition. In Federal Election Commission v. Central Long Island Tax Reform Immediately Committee, a case involving a 1976 congressional race, the court took just such a limited view. A John Birch Society affiliate, Central Long Island Tax Reform Immediately (CLITRIM) published a bulletin listing Long Island Democrat Jerome Ambro’s voting record on tax reduction. The FEC filed suit against CLITRIM and theNational Tax Reform Immediately organization (National TRIM), charging both with violating, inter alia, section 304 of the Federal Election Campaign Act. This section requires any person making contributions or independent expenditures expressly advocating the election or defeat of a clearly identified candidate in an amount exceeding one hundred dollars to file an information statement with the Commission.10 More than a year later, the FEC proposed a settlement whereby CLITRIM would pay a civil fine of one hundred dollars. The Second Circuit resolved the issue by holding that the organization did not “expressly advocate the election or defeat” of Mr. Ambro.
Federal campaign law depends for its enforcement on the assumption that candidates will watch each other and report infractions to the FEC. As a result of such scrutiny, candidates will be careful to comply with the law in order to avoid the potential costs of being accused of breaking it; this is especially true in this post-Watergate era, when the voting public seems to have a low tolerance for corruption of the political system.
The independent spender is less constrained by the fear of public censure. There is some concern that a heavy-handed independent expenditure campaign will elicit underdog sympathy for the candidate under attack, but there is also a recognition that the hostility that may be aroused will harm the group more than the opposing candidate. It is also true that some of the independent spenders are more concerned with removing someone from office than they are with electing a particular candidate. They are almost entirely issue purists. This was often the case in the 1980 Senate elections.
Given the limited resources of the FEC and the length of time the regulatory agency takes to make a ruling after a complaint has been filed, the costs of infraction of the rules are minimal compared to the benefits. One state party chairman noted in 1978, “If we interpret things conservatively and the other side doesn’t, we’ll lose the election and they’ll get a$5,000 fine next April.” If the individual or group spending the money is not running for office, the constraints on misrepresentation or other infractions of the rules are even more minimal. In the oft-quoted words of John T. Dolan, Director of the National Conservative Political Action Committee (NCPAC), a group like his “could lie through its teeth and the candidate it helps still stays clean.”
Given this advantage it is appropriate to consider the rationale for this apparent imbalance in the political process. The Supreme Court held in Buckley v. Valeo that dollar limits placed on independent expenditures “relative to a clearly identified candidate during a calendar year,” imposed a direct and substantial restraint on the quantity of political speech, and held this to impermissibly impinge on first amendment freedom of expression. Independent political spending is thus equated, for purposes of constitutional protection, with political speech. A political justification for these expenditures has also been advanced. David Keene, a political consultant and advocate of independent expenditures, noted that independent expenditures are a reflection of the fact that the system-with the presidential campaign totally financed by the federal government and by necessity a closed operation-doesn’t involve people who like to be involved; as long as people want to be involved in politics, they will be.
The United States has a long tradition of relatively open participation in political campaigns. Recent campaign finance laws and technological developments have restricted much of the local activity. Campaigns used to provide a good deal of entertainment and motivation for supporters. Elections were also a vehicle for entrance into political life. They provided opportunities for proving one’s self, and much of that proof depended on the free flow of activities. Restrictions—both intended and unintended—have recently forced campaigns to become increasingly centralized, limiting the opportunity for local participants to demonstrate their political ability.The question remains, however, whether independent activities are an adequate alternate route. Independent spending itself has tended to be almost as centralized as the campaigns themselves. The history and consequences of independent spending will help to clarify this point.
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