Campaign Reform in Name Only : Propositions 68 and 73 Fail to Offer Meaningful Change

When California voters go to the polls June 7, they will be offered two proposals that aim to enact campaign-finance reform--Propositions 68 and 73. Unfortunately, neither proposal will accomplish the reforms that its supporters claim.

Indeed, Proposition 73 will effectively prohibit meaningful reform, since it outlaws any limits on campaign spending . Without spending limits, the proposed “reforms” will duplicate the congressional campaign system under which we just two years ago witnessed the most expensive U.S. Senate race in California’s history.

On the other hand, Proposition 68, which enjoys the enthusiastic support of organizations like Common Cause, makes a feeble attempt at grappling with spending limits but ultimately falls short of the mark.

Meaningful campaign-finance reform, above all else, must limit the total number of dollars that candidates can spend. Achieving that objective is not as simple as it seems, however. The U.S. Supreme Court has held (Buckley vs. Valeo, 1976) that the right to spend money in a campaign is intimately tied to freedom of political speech and, as such, is a right protected under the First Amendment. The only circumstance under which the courts have allowed limits to be placed on spending is in exchange for some tangible benefit--namely, public financing. What that means, very simply, is that we can limit campaign spending only if we provide for public financing of campaigns.

Proposition 68 tries to do that, but its authors have made two fundamental errors. Fearful that their measure might be defeated on the issue of public funding, they have proposed a system of taxpayers voluntarily placing $3 of their taxes in a state fund. Such a fund would be woefully insufficient to pay for campaigns if a meaningful number of candidates opted to participate.

The inadequate revenues probably are not going to be too much of a problem, however, since the spending limits contained in Proposition 68 are so low that almost no one running for office in California--at least not in a highly competitive contest--will agree to them. The only candidates who will have any incentive to accept these limits are incumbents in very safe districts (who seldom, if ever, have a contested race) and, of course, extremist candidates. Extremists would have no chance of winning, yet would gain a platform for their views because they would have nothing to lose by using the easy-to-get public financing. This is hardly the sweeping reform that Proposition 68’s authors had in mind.

The appropriate model for campaign-finance reform is the system by which presidential elections are held. After qualifying “thresholds” or levels of private contributions are met by a candidate in the early primary stages, public funds become available. By the general election, only public money is spent; each nominee has the same limit, and there are no special-interest dollars influencing the contest. That is meaningful campaign reform.

Not only is Proposition 68 not meaningful, it is dangerous. Several of its provisions are of questionable constitutional validity. One of these, for instance, is the limit on the aggregate number of dollars that a political-action committee can contribute to all candidates in an election cycle. The courts generally have accepted and protected the right of individuals to band together in PACs to amplify their participation in the electoral process. It is highly questionable that the courts would let this sort of restriction stand.

A second problem is the complete ban on off-year fund-raising. What this provision amounts to is a wholesale abrogation of the First Amendment during odd-numbered years. While limits on off-year contributions might withstand judicial review, it is almost inconceivable that a total prohibition would pass muster.

The measure also contains a number of limits on expenditures made independent of a candidate. The courts generally have held such restrictions unlawful.

I am certain that the proponents of Proposition 68 mean well. I have, in fact, met with them and expressed my disagreements with their proposal. Unfortunately, in their zeal to accomplish reform, Common Cause in particular has had a history of failing to understand just how far they can restrict electoral and political behavior without trampling on First Amendment rights. For example, Common Cause was among the staunchest supporters of spending limits for congressional campaigns that the court struck down on First Amendment grounds in Buckley vs. Valeo. Here in California, several provisions of the Fair Political Practices Act, another Common Cause initiative, were overturned by the courts as violating the First Amendment.

A similar fate most likely awaits major provisions of Proposition 68. A very real danger lies in such systemic tinkering with our electoral process. No one knows how many of Proposition 68’s provisions will be left standing when the courts are finished or how that tattered system would work.

Neither Proposition 68 nor 73 will accomplish the kind of reform that is needed. If they are enacted, the public will buy into a promise of reform in 1988 only to be disillusioned once again by 1990.