sending the parties pac-ing the
constitution congressional control and campaign spending after
colorado republican federal
campaign committee v federal
elections commission
i introduction
politicians a wit once said are so good at campaigning and so lousy
at governing because they have so much experience with the former and
so little experience with the latter all humor aside to many one of the
least desirable effects of the american experiment begun over two
hundred years ago is the advent of the campaign the complaints about
campaigns range from them being too long' to them being too nasty 2
many of the complaints however distill to these two related charges too much money is in politics and as a result those with money play
too large a role in the political process 3 in essence the suspicion is that
1 louis harris reform now s 100 and beyond 8 j l & pub pol'y 253 1992 advocating a dedicated three-week campaign similar to those used in the united kingdom 2 editorial the awful price of political apathy bus week nov 11 1996 at 4 arguing that the 1996 presidential candidates-bill clinton bob dole and ross perot-had
the highest negative voter ratings ever recorded because of negative advertising bruce b auster & josh chetwynd accentuating the negative u s news & world rep sep 30 1996 at 45-47 describing the kinder gentler attack ad that the presidential campaigns used
in 1996 3 indeed much of the initial attempt at systematic regulation of how campaigns are fi-
nanced focused on these two aspects reducing the amount of money spent in total and re-
ducing the influence of those with money by limiting expenditures and contributions see in-
fra notes 30-44 and accompanying text further current proposals for new systematic
regulation focus on both elements see sen russell d feingold editorial reform vitak
campaign finance system no longer tolerable montgomery advertiser nov 17 1996 at 3d for example in the 1996 election year combined republican and democratic
expenditures for both congressional and presidential elections totaled over $1 6 billion up
72 from 1992 laurie kellman balanced budge other reforms will try bipartisan spirit washington times january 7 1997 at e8 although this is a great deal of money it
should be put into proper context the total moneys spent in one two-year election cycle is
roughly comparable to what two to three major u s corporations alone spend annually on
their advertising budgets see bradley a smith faulty assumptions and undemocratic con-
sequences of campaign finance reform 105 yale lj 1049 1060 1996 hereinafter smith faulty assumptions perhaps the american system does not spend enough on electing its
officials the estimated $175 million spent in 1960 at all levels of american politics represents
marquette law review vol 81 1201
the presence of massive amounts of money corrupts the political process
by determining which persons get heard and as a result what issues get
heard the scandal surrounding the democratic national committee's successful efforts at fundraising during the 1996 presidential campaign
only 0 0003 percent of that year's gross national product only 75 percent of what
we spend to clean and repair our shoes and only twice the amount spent by the red
cross the estimated $35 million spent on the 1964 presidential race is less than
one-tenth what was spent that year on spectator sports and the total campaign bill
of $200 million is only one-fifth the sum we spent that year on movie tickets the
estimated $12 5 million spent in 1968 to advertise richard nixon is less than what
was spent that year in promoting deodorants the $58 9 million spent on television
at all levels is slightly less than the cost of one lockheed c5-a military transport
plane the $300 million total campaign spending in 1968 is 25 percent less than
what the top two corporate advertisers general motors and procter & gamble spent flogging their wares and is 16 percent less than what tobacco manufacturers
spent advertising their products george thayer who shakes the money tree 274 1973 4 the argument usually is not that those with money somehow bribe a politician into
acting in a certain way bribery of a public office is a crime independent of any campaign fi-
nance law 18 u s c § 201 et seq 1996 rather the typical argument is more subtle and
occurs earlier in time money influences which candidates will run what their agendas will
be or which speeches they will give bradley a smith money talks speech corruption equality and campaign finance 86 geo l j 45 59 1997 hereinafter smith money
talks another formulation of this argument is that money buys access to politicians which al-
lows the politician to hear the agenda of the buyer professor lowenstein has expanded
upon this idea arguing that essentially two contribution strategies exist the electoral and
the legislative daniel hays lowenstein on campaign finance reform the root of all
evil is deeply rooted 18 hofstra l rev 301 1989 under the electoral strategy the
contributor will make contributions to those candidates who are likely if they are elected to
pursue the policies the contributor favors id at 308 this strategy will not contribute either
to sure winners or to sure losers because to do so would be a waste of time and money how-
ever this strategy works best when an election is close and the contributor stands to gain sub-
stantially if the correct candidate wins id conversely under the legislative strategy the
contributor donates to the candidate who likely will win hoping that out of gratitude for the
contribution the candidate will pursue beneficial policies to the contributor id use of the legislative strategy has serious consequences and raises issues that go to the heart of
democratic theory lillian r bevier campaign finance reform specious arguments in-
tractable dilemmas 94 colum l rev 1258 1273 1994 hereinafter bevier specious ar-
gument though the reformist arguments usually target the legislative strategy the few
studies that exist are inconclusive as to whether the money follows the votes electoral strat-
egy or the votes follow the money legislative strategy see frank j sorauf inside
campaign finance 164-70 1992 hereinafter sorauf inside campaign fnance such criticism concludes that only the people who get access get results meaning that
those without money are in effect excluded from the political debate for example derek
bok of harvard university stated that the removal of money from politics would lessen the
disadvantages of the poor and other unorganized groups in defending their interests in
washington the inauguration voices priorities for the nation education and housing n y times jan 21 1997 at a16 see generally j skelly wright politics and the constitu-
tion is money speech 85 yale l j 1001 1976 hereinafter wright is money speech 1202
1998 campaign finance laws and political parties 1203
may have thrown new gasoline onto an old fire 5
the current regulatory scheme for financing political campaigns is
mainly a result of the watergate crisis 6 after watergate the populace
was so thoroughly repulsed by the apparent corruption of the washing-
ton elite that congress-quintessentially washington elites if ever they
existed-enacted the most comprehensive accumulation of campaign fi-
nance laws to date the supreme court however not amused by the
infringement of the new laws against the first amendment rights of po-
litically active persons struck down a good portion of the regulatory
scheme 7 the wisdom or lack thereof of both the current regulatory
scheme and the buckley v valeo decision has been the subject of much
debate and disagreement this comment seeks to refrain from entering that fray as much as is
possible rather than further criticizing the wisdom of the current cam-
paign finance law as it stands since buckley this comment instead dis-
cusses whether given the current status of both the campaign finance
laws enacted by congress and the judicial gloss of those laws one can
constitutionally justify the campaign expenditure regulations applied to
political parties in essence this comment does not argue for a new
regulatory or judicial framework from which to judge how campaigns
ought to be financed ' rather this comment discusses whether given
5 the democratic national committee's allegedly illegal acceptance of nearly $500 000
from the lippo group and potential trading influence for campaign money has been well
documented and need not be discussed here in great detail see eric pooley red face over
china time june 1 1998 at 46 mark hosenball & michael isikoff a strange brew newsveek may 25 1998 at 36 paul blastris et al clinton's next tria why illegal dona-
tions will bedevil the democrats u s news & world rep february 10 1997 at 26-30 for the report of the senate governmental affairs subcommittee on its investigation into the
fundraising foibles of 1996 see senate governmental affairs subcommittee final report on
the special investigation visited june 24 1998 http llwww senate gov -gov-affairs sireport htm the president ought to take comfort if that is the correct phrase in that he is
not the first nor will he be the last to attempt to bend whatever finance rules are in place the history of american campaign financing practices is a history of laws being bro-
ken either willfully or with the tacit consent of those charged with enforcing the
laws in all likelihood this impulse will continue unabated into the foreseeable fu-
ture thayer supra note 3 at 284 6 see infra part iii notes 30-35 and accompanying text 7 buckley v valeo 424 u s 1 1976 per curium see infra notes 44-59 and accom-
panying text 8 such articles and books are already abundant more often the criticism of the cur-
rent regulatory scheme is leveled not at congress for passing the federal election campaign
act of 1971 but rather at the supreme court for invalidating much of that congressional ac-
tion see e g owen m fiss the irony of free speech 17-19 80 1996 arguing that
marquette law review
the current status of campaign finance laws political parties constitu-
tionally fall within the present scheme to accomplish this task three steps are necessary first one must
understand what political parties are where it is that they came from and what it is that they do therefore a brief history of american po-
litical parties-from the revolution until the late 20th century-follows
in part ii while looking at the history of american political parties part ii also discusses the varying historical methods of financing cam-
paigns throughout the history of the united states second one must
understand the attempts by congress to regulate the way campaigns are
financed most notably part iii focuses on the current congressional
attempt at regulation the federal elections campaign act feca of
1974 and its subsequent treatment by the courts third once an under-
standing of both the history of political parties and the current regula-
tory scheme is obtained the question of the applicability of the regula-
tion to political parties can be discussed part iv examines this
question this analysis hinges on whether the rationale allowing the
regulation of campaign activities of individuals and corporations is co-
gent when applied to political parties ii a brief history of american political parties
the constitution is silent on the subject of political parties probably
free speech demands that the state must lower the voices of some in order to hear the voice
of others lawrence tribe american constitutional law §§ 13-27 to 13-31 1988 arguing that limiting contributions levels the playing field between the affluent and the non-
affluent vincent blasi free speech and the widening gyre of fundraising why campaign
spending limits may not violate the first amendment after all 94 columb l rev 1281 1984 arguing that protect ing the time of elected representatives and candidates for of-
fice from fund raising should be a major goal of campaign finance reform j skelly wright money and the pollution of politics is the first amendment an obstacle to political equal-
ity 82 colum l rev 609 1982 arguing that the supreme court in buckley failed to re-
alize that political equality and individual participation are hallmarks of the first amend-
ment marlene arnold nicholson campaign financing and equal protection 26 stan l rev 815 1974 arguing that large political contributions violate the equal protection rights
of non-affluent voters however the debate has not been entirely one-sided those who believe that the limita-
tion of campaign spending is not only bad policy but unconstitutional are not without a
voice see e g smith faulty assumptions supra note 3 at 1049 arguing that campaign fi-
nance laws are counter productive to the goals for which they strive george f will civic
speech gets rationed newsweek april 15 1996 at 80 arguing that the constitution being
a political document most fundamentally protects speech related to political advocacy lil-
lian r bevier specious arguments intractable dilemmas 94 columb l rev 1258 1994 martin h redhish campaign spending laws and the first amendment 46 n y u l rev 901 1971 arguing that laws limiting political spending violate the first amendment 1204 vol 81 1201
1998 campaign finance laws and political parties 1205
because in 1787 parties as we now think of them did not exist 9 indeed when the new federal government was created any differences between
political leaders were a result of regional and personal differences and
not from anything resembling party identification ° these circum-
stances did not substantially change until sometime near the end of
george washington's second term as president however by the time
that washington gave his farewell speech in 1796 clear party divisions
were appearing with alexander hamilton and john adams on one side
and thomas jefferson and james madison on the other 12 washington
and many of his contemporaries saw this emerging party structure as
remarkably distasteful and as a result gave the young nation this
warning about the political party it serves always to distract the public councils and enfeeble the
public administration it agitates the community with ill
founded jealousies and false alarms kindles the animosity of one
part against another foments occasionally riot and insurrection it opens the door to foreign influence and corruption there is an opinion that parties in free countries are useful
9 robert j dinkin campaigning in america a history of election
practices 1-11 1989 noting that parties did not exist in the colonies and were not imme-
diately present in the new republic 10 see robert kelly the cultural pattern in american politics 82 1979 kelly argues that in contrast to the political leaders in the western european nations all the
principle political figures in the early united states were whigs at heart as such all be-
lieved that government existed to serve the public that power ought to be decentralized and
that individual liberty was essential id however within this overarching whig tradition kelly argues that four different regional modes of republicanism developed 1 the moralistic republicanism in the new england states 2 the libertarian republicanism in
the south 3 the egalitarian and the 4 elitist republicanism in the middle atlantic
states id at 83-85 within these four regional factions arose much of the political conflict of
the post-revolutionary period further even accounting for these regional differences those who voted in a partisan
fashion in the capital city were generally unwilling to extend that ideological fervor when the
election season rolled around at work legislators could be partisans at home candidates
needed to be independents dinkin supra note 9 at 12 11 however even during washington's presidency one could see the sign of things to
come more and more elections featured multiple candidates-candidates who organized
bands of supporters what might be called a precursor of the political machine and who ac-
tually campaigned by giving speeches and traveling throughout the district dinkin supra
note 9 at 11-18 12 john h aldrich why parties 77 1995 kelly supra note 10 at 110 al-
though most politicians were either federalists or jeffersonian republicans kelly argues
that neither party considered a multiple party system natural or sustainable since only one
party could in the end survive elections gained added importance kelly supra note 10 at
110 marquette law review
checks upon the administration of the government and serve to
keep alive the spirit of liberty i n those governments of
the popular character in governments purely elective it is a
spirit not to be encouraged a fire not to be quenched it
demands a uniform vigilance to prevent its bursting into flame lest instead of warming it should consume 3
along with the advent of dual parties came the quickening of the
campaign although washington was a nearly unopposed choice for the
first president his successors beginning in 1796 with john adams did
not have that luxury the campaign-especially at the national level-
was born albeit in an infant state 4 one result of campaigns was the
generation of public interest in politics as a result eligible voter par-
ticipation grew from 25 in the 1790s to nearly 70 in some states by
1808 ' considering the monumental stature of these candidates-
adams jefferson madison-it is more accurate to state that they stood for office rather than ran for office 1 6 as a result the early
campaigns consisted of little more than recommendation and reputa-
tion what little cost was incurred as the result of such a campaign-an
occasional leaflet or food and alcoholic drink for example-was usually
paid for by the aristocratic candidate himself '7
when jefferson defeated adams in 1800 the federalists were dealt
a blow from which they would not recover over the course of the next
quarter century the jeffersonian republicans without any serious external enemy to unite it disintegrated into rival factions by the
early 1820s the first party system was all but dead 18 out of this chaos
arose a new candidate with a new method of campaigning andrew
jackson 13 george washington farewell address in writings 970 john rhodehamel ed 1997 14 dinkin supra note 9 at 18 15 kelly supra note 10 at 119 of course it is always important to remember that
the only eligible voters at the time were propertied white males-a rather small and homoge-
neous segment of the overall population smith faulty assumptions supra note 3 at 1053 16 see smith faulty assumptions supra note 3 at 1053 indeed when james madison
sought re-election to the house of representatives in 1790 he wrote to a few genteel ac-
quaintances asked for their support and let his reputation and association go from there dinkin supra note 9 at 12 remnants of this simpler if not nobler time remained at least
until the sixth president john quincy adams who argued to pay money for securing the
presidency either directly or indirectly was incorrect in principle quoted in herbert e alexander financing politics 5 3d ed 1984 17 see smith faulty assumptions supra note 3 at 1053 18 michael f holt the democratic party 1828-1860 in 1 history of u s political
parties 497 arthur m schlesinger jr ed 1973 1206 'vol 81 1201
1998 campaign finance laws and political parties 1207
by the time of the 1828 presidential elections suffrage had been ex-
tended to nearly all free white males without regard to property owner-
ship 1 in light of this change martin van buren coming to the aid of
jackson organized the first presidential campaign directed toward the
popular masses 20 however such a campaign required two features be-
fore unseen extensive fundraising and substantial political organiza-
tion to get his message out to the masses jackson required a network
of supporters scattered throughout the country 1 additionally during
an era limited in its means of mass communication jackson needed
campaign materials-newspaper advertisements pamphlets and ral-
lies-extolling the virtues of his candidacy all of these things-the
political machine rallies advertisements pamphlets and the like-
while necessary to get his message beyond the aristocracy to the general
public required significant capital outlays 23 enter the political party 19 id at 503 20 id
21 interestingly the notion of the candidate himself traveling throughout the country campaigning was relatively unheard of until this century even jackson the man of the
people retired to his house upon receiving word that he was the democratic nominee alexander supra note 16 at 6 most of the actual campaigning was done by members of
the candidate's party the candidates themselves would at times appear at rallies to greet
crowds of supporters even embarking on special trips to promote their candidacy dinkin supra note 9 at 44 however even though they might be seen it was not unusual for candi-
dates not to be heard id noting that andrew jackson gave no speeches on his campaign
trips a few notable exceptions existed to this non-campaign campaign -stephen douglas
and william jennings bryan for example-but even william mckinley in 1896 sat on his
front porch and let the citizens come to him alexander supra note 16 at 6 see also
president's commission on campaign costs financing presidential campaigns in the
american party system 264 265 john r owens & pj staudenraus eds 1965 comparing the campaign differences of abraham lincoln who never left springfield illinois nor gave a speech during his 1860 campaign to john kennedy who traveled 44 000 miles and
gave 360 speeches during his 1960 campaign 22 see smith faulty assumptions supra note 3 at 1053 see also robert v remini the electon of andrew jackson 76-77 1963 noting that under van buren's leader-
ship the democratic party established a nationwide network of 600 newspapers as a means of
blanketing the country with pro-jackson rhetoric 23 holt supra note 18 at 503 not surprisingly the democratization of the election
process required campaigns campaigns required campaign expenditures these expendi-
tures necessarily drove up the cost of obtaining office for example by the 1830s a candidate
could expect a run for congress to cost between $3 000 and $4 000 dinkin supra note 9 at
40 statewide offices such as governor could easily cost more-sometimes double or triple
the amount it took to run for the house of representatives l indeed professor dinkin
estimates that by the middle of the nineteenth century a presidential campaign cost $50 000
without including the costs incurred by the state parties for promoting the party's entire
ticket id even the simplest form of communication-the newspaper-that jackson's democrats
employed in the hundreds required an annual budget of $500 000 remini supra note 22 at
marq uette law review
most of the campaign funds were not raised from the general public however beginning with jackson and continuing until the civil service
reforms of the pendleton ac 4 in 1883 the burden of financing a cam-
paign fell on those federal bureaucrats whose jobs-under the spoils
system -hinged on the reelection of their benefactor to accomplish
this a portion of the bureaucrat's salary was deducted much like mod-
em day income tax withholding to support the reelection of the office-
holder 26 the period from the 1870s until the 1920s has been labeled the golden age of parties mainly because the political parties-more ac-
curately the local political bosses-effectively controlled the candidates
because the parties effectively controlled the social welfare benefits that
many citizens especially immigrants desperately needed ' with the
federal social welfare guarantees of the new deal years away new im-
migrants turned to the local political party bosses for everything from
entertainment to employment 2'
all of that began to change with the passage of the pendleton act in
1883 that replaced much of the old spoils system with non-political civil
servants the removal of the main source of campaign funds however did not remove the necessity of raising those funds candidates and par-
ties still needed sources of income to finance mass campaigns but found
that local control and patronage were not nearly as effective as they
once were propitiously at this same time the modem corporation
emerged onto the american landscape because of its size and potential
for generating wealth the corporation had a distinct interest in the gov-
ernment's actions since quite often the government was one of the only
checks on corporate power 29 consequently corporations seeking to in-
77 newspapers of course were not the sole expense of these campaigns not terribly unlike
today party leaders and officeholders sought to have the federal government assume as much
of this cost as possible mainly through the franking privilege dinkin supra note 9 at 40-41 24 pendleton act of 1883 22 stat 407 25 paul s herrnson the high finance of american politics campaign spending and
reform in federal elections in campaign and party finance in north america and
western europe 17 18 arthur b bunlicks ed 1993 see also smith faulty assump-
tions supra note 3 at 1053 smith citing various primary sources notes that by 1878 benefi-
ciaries of the spoils system financed nearly 90 of republican congressional campaigns additionally would-be officeholders associated with the would-be benefactor also had
the responsibility of financing the challenger's campaign id 26 smith faulty assumptions supra note 3 at 1053 27 larry j sabato the party's just begun 35 1988 hereinafter sabato just begun 28 id 29 for example the emerging corporation benefited from the high tariff that kept
cheaper foreign competition from affecting the united states market see smith faulty as- vol 81 12011208
1998 campaign finance laws and political parties 1209
fluence policy and parties seeking to find new methods of campaign fi-
nance found one another-and found that each could provide benefits
for the other the result by 1904 corporations financed over 73 of
theodore roosevelt's presidential campaign ' while corporations
played a major role in financing campaigns wealthy individuals also be-
came an integral part of campaign financing by contributing large sums
to many candidates' campaigns alarmed at the influence-or at the very least the potential influ-
ence-corporations and wealthy individuals exerted over politicians state governments led by progressives such as robert lafollette in the
early part of this century passed laws regulating political parties and
campaign financing ' the federal government followed the lead of the
states although to a lesser extent by passing laws regulating campaign
financing federal regulation began with the passage of the tillman act
sumptions supra note 3 at 1054 see also daniel k tarullo law and politics in twentieth
century tariff history 34 ucla l rev 285 286 1986 noting that in the late nineteenth
and early twentieth centuries the tariff would rise if republicans were in office and fall if
democrats were in office-practices that reflected the philosophies of each party congress
was not entirely benevolent however in response to the inequities and excesses of the late
19th century corporate culture congress passed legislation such as the sherman antitrust
act which allowed the federal government to regulate at least to some extent the corporate
monopoly see virginia bernhard et al firsthand america a history of the
united states 525 1991 politicians faced with the costs of campaigning without the
revenues generated by patronage used their advantageous position to fry the corporate fat -meaning to strike enough fear in the heart of corporate interests over what congress
could do to entice those interests into regularly contributing to the party thayer supra
note 3 at 46 30 smith faulty assumptions supra note 3 at 1054 while the republican party was
the natural beneficiary of corporate contributions because of its pro-business philosophy many corporations contributed freely to both parties in an effort to insure that whichever
party was in power their interests would be considered see edwin m epstein cor-
porations contributions and political campaigns 11 1978 31 smith faulty assumptions supra note 3 at 1054 see also herrnson supra note 25 at 18 32 the state progressive reforms included making the election for certain local offices
non-partisan so that the rascals political bosses were not only kept out of selecting local
leaders but kept out of the game altogether xandra kayden & eddie mahe jr the party goes on 41 1985 other progressive reforms included regulating various
aspects of political parties this was accomplished through extensive codification of what committees and conventions the parties needed to exhibit how party leadership was cho-
sen and what persons were permitted to make party decisions austin ranney curing
the mischiefs of faction 18 1975 see also jeane kirkpatrick dismantling the
parties reflections on party reform and party decomposition 7 1979 noting
that the lafollette progressives embodied the persistent american suspicion of organiza-
tion the most dramatic and long-lasting of the progressive reforms however was wisconsin's great contribution for the art of governance-the direct primary id at 81 marquette law review vol 81 1201
in 1907 33 that banned a narrow category of corporate contributions to
candidates for president and congress 3 additionally in the first part
of this century congress occasionally passed measures increasing its
regulation of campaign financing methods 35 these congressional
regulations focused on the disclosure of financial contributors as well as
on the limitations of financial contributions and spending however 33 pub l no 59-36 34 stat 864 1907 34 herrnson supra note 25 at 18 epstein supra note 30 at 11-12 35 the most comprehensive of these reform attempts was the corrupt practices act
of 1925 pub l no 68-506 43 stat 1070 repealed by federal election campaign act of
1971 pub l no 92-25 86 stat 3 the corrupt practices act required a candidate to dis-
close contributors and set limits on the amount a candidate could spend on a congressional
bid for a rather extensive yet concise description of the corrupt practices act see kirk j nahra political parties and the campaign finance laws dilemmas concerns and oppor-
tunities 56 fordham l rev 53 60-64 1987 hereinafter nahra political parties later
reform legislation included the hatch act of 1939 pub l no 76-252 53 stat 1147 1939 codified at 2 u s c § 441a the smith-connally act of 1943 pub l no 78-89 57 stat 163 1943 and the taft-hartley act pub l no 80-101 61 stat 136 interestingly the history of political action committees pacs began with the smith-
connally and taft-hartley acts as noted above the tillman act banned direct corporate
contributions to political campaigns see pub l no 59-36 34 stat 864 1907 at that time
no similar restriction existed for labor unions not surprisingly organized labor in the 1920s
and 1930s began to exercise clout by contributing large amounts of money to political cam-
paigns for example some have estimated that labor unions contributed nearly $800 000 in
the 1936 election to help re-elect fdr alexander supra note 16 at 83 in addition or-
ganized labor engaged in a series of controversial work stoppages during the second world
war larry j sabato pac power inside the world of political action
committees 5-6 1984 hereinafter sabato pac power these highly public acts of
large campaign contributions and strikes drew attention to organized labor and not all of it
was positive id as a result in 1939 senator carl hatch of new mexico offered an amendment to the
pendleton act that extended its prohibitions against political activity to virtually all gov-
ernment employees id at 71 labor's opponents were not finished however over the
veto of fdr an alliance of republicans and southern democrats passed the war time smith-
connally act which brought the campaign activities of unions in alignment with corpora-
tions id at 73 sabato pac power supra at 6 once the war ended the taft-hartley
act made permanent the smith-connally act's wartime restrictions ld thayer supra
note 3 at 73 out of these restrictions emerged the first pac-organized labor's committee for in-
dustrial organization political action committee cio-pac in 1955 when the ameri-
can federation of labor afl and the cio merged so did their pacs the resulting
pac-the committee on political education cope --quickly emerged as arguably the most important and effective pac of all time sabato pac power supra at 6 business interests did not follow the unions' lead until the early 1960s id in fact it is
only a rather recent phenomenon that business organizations have had more and better
funded pacs in comparison to labor see carl t bogus excessive executive compensation
and the failure of corporate democracy 41 buff l rev 1 23 1993 noting that in 1974
corporate pacs numbered 89 while labor pacs numbered 201 by 1989 corporations had
over five times as many pacs as unions-1 745 versus 339 1210
1998 campaign finance laws and political parties 1211
these early attempts at campaign regulation were doomed to fail be-
cause they lacked an effective supervisory body that could force compli-
ance with the law and because they were easily circumvented as a re-
sult most of these early reform attempts were summarily ignored by
both the candidate and contributor '
the most comprehensive-and to date the latest-law attempting to
reform the financing of political campaigns occurred with the passage of
the federal election campaign acts in 1971 and with its 1974 amend-
ments 39 hereinafter feca referring to the 1971 act as modified by
the 1974 amendments congress passed feca in response to allega-
tions of large campaign contributions by one wealthy individual to
president nixon's successful campaign and passed the 1974 amendments
in the wake of the watergate scandal ' feca comprehensively regu-
lated nearly all aspects of modem campaigning imposing disclosure re-
quirements 41 contribution limitations to both candidates pacs and
parties expenditure limitations on candidates and parties and partial
public financing of presidential elections 43 considering the encom-
passing nature of the feca regulatory scheme and considering that
significant remnants of it still remain the current regulatory scheme a
discussion of feca's impact warrants a separate discussion below 36 see herrnson supra note 25 at 19 see also sorauf inside campaign finance supra note 4 at 5 thayer supra note 3 at 284-88 37 see nahra political parties supra note 35 at 62 the main problems with these
early attempts were twofold they were easy to avoid and no one effectively enforced them id for example disclosure and contribution limitations were easily circumvented by estab-
lishing independent committees from the candidate frank j sorauf political
parties in the american system 141 1964 hereinafter sorauf political parties additionally enforcement of the early acts was nonexistent despite gargantuan violations
of the federal corrupt practices act for example not a single person was prosecuted under
its penalty provisions see sorauf inside campaign finance supra note 4 at 6 38 pub l no 92-225 86 stat 3 1971 39 pub l no 93-443 88 stat 1263 1974 40 smith faulty assumptions supra note 3 at 1055 sorauf inside campaign
finance supra note 4 at 6-7 41 2 u s c § 434 1976 42 i& § 441a a 43 26 u s c §§ 9003-9004 1976 marquette law review
iii feca buckley v valeo and the current regulatory
mess
a the congressional plan
building from a similar regulatory scheme established in the corrupt
practices act feca established an elaborate and comprehensive sys-
tem of federal campaign financing feca however went far beyond
any prior attempt at regulation indeed feca for the first time trans-
formed running for federal office into a regulated industry with all
the familiar trappings-reports to file forms to fill out regulations to
observe and a regulatory commission to live with '
first and foremost among the regulatory trappings was a limitation
on the amount of money that a contributor-individual political party or political committee more commonly known as a political action
committee or pac --could give an individual contributor could
give a maximum of $1000 to any one candidate $20 000 to a committee
established by a national party but not at the disposal of one candidate and $5 000 to a pac per calendar year 4' additionally a pac could
give a maximum of $5 000 to a candidate $15 000 to a political party es-
tablished by a national party and $5 000 to any other political commit-
tee per calendar year ' in addition to the limits on contributions to
these entities the maximum amount that any one individual could give
in total to all political organizations during a calendar year was
$25 000 47 second feca limited the amount of money that a candidate
could spend on a campaign these expenditure limitations were accom-
plished either by establishing a maximum total dollar amount' or by
multiplying a state's eligible voters by some monetary amount 9
44 daniel d polsby buckley v valeo the special nature of political speech 1976
sup cr rev 1 4 45 federal election campaign act amendments of 1974 feca pub l no 93-
443 88 stat 1263 codified as amended at 2 u s c § 441a 1996 46 id 47 id 48 feca pub l no 93-443 88 stat 1263 § 101 c 1 a b the maximum dollar
amount limitations applied to persons running for the office of the president feca even
divided the total spending amount into money spent to win the party's nomination $10 000 000 and money spent to win the white house $20 000 000 id 49 feca pub l no 93-443 88 stat 1263 § 101 c 1 c - f the per-eligible
voter method might be employed for candidates running for either the senate or the house
of representatives for example a candidate running for the senate or the house in a state
with more than one house member could spend the greater of $100 000 or $ 08 per eligible
voter on her campaign id similarly the candidate running for the senate or the house in a
1212 vol 81 1201
1998 campaign finance laws and political parties 1213
moreover under feca's expenditure limitations a candidate could
spend at most $50 000 of her own money on her own campaign ' third feca limited to $1000 the amount of money groups not affiliated with
the candidate or the campaign could spend in support of the candidate these were expenditures made without the candidate's knowledge or
authorization but expenditures nonetheless which a third party
authorized to aid a candidate's campaign fourth feca imposed dis-
closure requirements on the contributors to a campaign or pac as well
as disclosure by persons who independently-meaning without the
knowledge of or coordination with the candidate expended funds on
behalf of the candidate fifth feca established a partial system of
public financing for presidential elections sixth and finally feca
created the federal election commission the commission to en-
force the provisions of feca 53
shortly after its passage a diverse group of political actors m-- from
the aclu and presidential candidate eugene mccarthy to the ameri-
can conservative union and senator james buckley-challenged the
constitutionality of feca the supreme court in buckley v valeo 55
upheld certain provisions of feca and struck down other provisions of
feca while buckley has been strongly criticized from the time of its
state with only one house member could spend the greater of $150 000 or $ 12 per eligible
voter on her campaign id
50 feca pub l no 93-443 88 stat 1263 § 608 a 1 a the breakdown is as fol-
lows $50 000 for the presidency $35 000 for the senate and $25 000 for the house id 51 feca pub l no 93-443 88 stat 1263 codified as amended at 2 u s c § 434 1975 52 feca itself did not create a system of partial public financing of presidential elec-
tions congress through a series of other laws laid the initial groundwork for such financing see the presidential election campaign fund act of 1966 title iv of pub l no 89-909 §§
301-305 80 stat 1587 creating the check-off system on income taxes for partial public fi-
nancing of presidential elections pub l no 93-53 § 6 87 stat 138 allowing the taxpayer
in the check-off system to designate which party she wished her money to go feca added
to this existing scheme by providing matching funds for presidential candidates feca pub l no 93-443 §§ 403-408 88 stat 1291 -since feca's passage in 1974 repeated efforts by reformers to expand the current pub-
lic financing beyond presidential elections to congressional elections have at least to date fallen on deaf ears see e g susan manes up for bid the common cause view in
money elecrions and democracy 17 margaret latus nugent & john r johannes
eds 1990 53 2 u s c §§ 437c-442 1975 supp 54 kirk j nahra book note a brave new role the fall and rise of american politi-
cal parties 23 harv j leg 645 655 1986 hereinafter nahra book note 55 424 u s 1 1976 per curiam marquette law review
delivery 56 understanding the court's approach and rationale in buckley
is crucial to understanding both the interpretation of the first amend-
ment as it relates to political speech and the relationship between that
interpretation and political parties b the supreme court response buckley v valeo
faced with feca's myriad of regulations regarding political advo-
cacy the court chartered a middle course in its decision the court
recognized two potentially polar propositions namely that congress has
the constitutional power to regulate federal elections ' and that the
first amendment provides the broadest protection to political ex-
pression ' faced with these propositions the court determined that
its task was not to decide the legitimacy of congressional regulation of
federal elections in toto but rather to decide whether congress' attempt
through feca unduly burdened the first amendment rights of citi-
zens 59 with this mandate in mind the court's most notable-and influ-
ential-principle from buckley is that in politics at least money is
speech 6 the court summarily rejected the notion that restrictions on
the amount of money persons can give or spend in a federal election are
merely time place and manner restrictions 61 rather noting that in a
vast modem society the communication of ideas requires the expendi-
ture of money the court held that limiting spending in federal elections
was a direct burden restricting core conduct and consequently was sub-
56 see e g wright is money speech supra note 4 57 buckley 424 u s at 13 5& id at 14 59 id
60 id at 19 the court in new york times v sullivan opined essentially the same
principle when it held that the times did not lose its first amendment protections merely
because an allegedly libelous statement appeared in an editorial advertisement 376 u s 254 266 1964 the court noted that to hold otherwise would be to
discourage newspapers from carrying editorial advertisements of this type and so
might shut off an important outlet for the promulgation of information and ideas by
persons who do not themselves have access to publishing facilities-who wish to ex-
ercise their freedom of speech even though they are not members of the press id the point is obvious the first amendment protections do not lessen merely because
the actual production of the speech-printing broadcasting and the like-are farmed out to
another and that other is paid for her services but see wright is money speech supra note
4 at 1005 61 buckley v valeo 424 u s 1 17-18 1976 per curiam categorizing feca as
time place and manner restrictions would allow the government latitude to regulate the ac-
tivity so long as it does not discriminate on the basis of content see erznoznik v city of
jacksonville 422 u s 205 209 1975 vol 81 12011214
1998 campaign finance laws and political parties 1215
ject to strict scrutiny 2 therefore the court analyzed feca to deter-
mine if its regulations impermissibly burdened the exercise of first
amendment rights resulting in different answers for different provi-
sions of the justifications the government offered for feca's regulations
of constitutionally protected activity the court recognized the preven-
tion of corruption-whether real or imagined-as the sole valid com-
pelling government interest further the court limited its definition of corruption to quid pro quo transactions between the candidate and
contributor with this one compelling interest as the standard the
court went about the business of analyzing feca to see if it indeed was
narrowly tailored to achieve the goal of preventing corruption in dis-
secting feca's two most controversial provisions-the limitation on
contributions to candidates and the limitations on independent expendi-
tures on behalf of a candidate-the court created the standard by which
later campaign finance challenges would be judged specifically the
court drew a distinction between making a contribution to a candidate pac or political party and making an expenditure of personal funds in-
dependent of any coordination with the candidate pac or political
party in drawing this distinction the court held that due to the po-
62 buckley 424 u s at 19 the court stated that restricting the expenditure of money
in campaigns reduces the quantity of political expression by restricting the number of is-
sues discussed the depth of their exploration and the size of the audience reached id certain costs have always been necessary to get one's message out even the simplest forms
of communication in the nation's history-the publication of thomas paine's common sense
tract for example-required some capital outlay by someone see supra note 23 noting that
in the 1820s andrew jackson's network of newspapers cost nearly $500 000 annually to op-
erate in addition in the late twentieth century the most effective means of communication l television and radio are also the most expensive see congressional quarterly congressional campaign finances history facrs and controversy 20-22 1992 bill thomas ads could be regulated in the last 90 days of election roll call january 9 1997 at 26 noting that the afl-cio alone spent between $35-53 million on tv
ads in the 1996 elections see also wright supra note 8 at 620 noting that the cost of a thirty
second television ad in portland oregon jumped from $55 in 1974 to $3 000 in 1982 63 buckley 424 u s at 25-26 the other ancillary justifications the government of-
fered for feca's regulations were limiting the disproportionate influence of the affluent and
slowing the increasing costs of federal elections ld the court did not find these two justifi-
cations compelling 64 id at 26-27 this narrow definition of corruption has drawn the ire of many of
buckley's critics see supra note 8 and accompanying text see also smith money talks su-
pra note 4 at 55 bevier money and politics supra note 8 at 1081-83 note campaign con-
tributions and federal bribery law 92 harv l rev 451 1978 65 see infra part ilh c 66 buckley 424 u s at 29 45 the distinction between a contribution and an expendi-
marquette law review
tential for a quid pro quo exchange of campaign money for political fa-
vor the limitation on the amount a person could contribute to a cam-
paign pac or political party passed constitutional muster 6 con-
versely the court held that the limitation on independent political
expenditures-made in support of a candidate by a third party or by the
candidate herself out of personal funds-were not constitutionally per-
missible 6 the court reasoned that an expenditure made without the
direction or control of any candidate was core first amendment ex-
pression free from any quid pro quo danger 9 the court noted that s uch independent expenditures may well provide little assis-
tance to the candidate's campaign and indeed may prove coun-
terproductive the absence of prearrangement and coordination
of an expenditure with the candidate or his agent not only un-
dermines the value of the expenditure to the candidate but also
alleviates the danger that expenditures will be given as a quid pro
quo for improper commitments from the candidate 7°
similar reasoning when applied to feca's limitations on spending per-
sonal wealth revealed that such a regulation violated the constitution
because the notion that a candidate could corrupt herself from the ex-
penditure of her own money was absurd 71
while buckley established the framework from which to view the
regulation of campaign financing it nonetheless left many questions un-
answered these questions centered around the constitutionality of
feca's provisions regarding non-candidates pacs and political par-
ture has also been a major source of criticism from commentators see wright supra note 8 at 612-13 calling buckley's rationale wholly foreign to the first amendment this dis-
tinction as justice marshall noted in a later dissent was not altogether clear for three mem-
bers of the buckley court fec v national conservative political action committee ncpac 470 u s 480 519-20 1985 marshall j dissenting indeed in buckley chief
justice burger justice white and justice blackmun did not see or understand the difference
between contributions and expenditures buckley 424 u s at 241 burger c j concurring in
part and dissenting in part arguing that contributions and expenditures are but two sides of
the same first amendment coin buckley 424 u s at 261 white j concurring in part and
dissenting in part for constitutional purposes it is difficult to see the difference between
the two situations buckley 424 u s at 290 blackmun j concurring in part and dissenting
in part finding that the court did not make a principled distinction between the contri-
bution limitations and the expenditure limitations by 1985 justice marshall decided
that he too could no longer find any distinction f e c v national conservative political ac-
tion committee 479 u s at 518 519 marshall j dissenting 67 buckley 424 u s at 27-28 68 id at 45 69 id at 47-48 70 id at 47 71 buckley 424 u s at 52 1216 vol 81 1201
1998 campaign finance laws and political parties 1217
ties the cases that follow outline the court's application of buckley in
response to the challenge of different provisions of feca c post-buckley feca's constitutionality as applied to pacs
shortly after the court decided buckley both the democratic and
republican parties seeking flexibility in the manner in which they made
their contributions to their candidates and expenditures on behalf of
their candidates utilized national party committees as the conduit for
channeling national money to local candidates specifically both the
democrats and the republicans based upon a commission advisory
opinion ' designated their respective national party committees to be
the national party's agent for purposes of campaign finance distribution
to local senatorial candidates under feca such national party com-
mittees for example the national republican senatorial committee are authorized to make contributions up to $17 500 to a senatorial can-
didate ' however feca itself is silent on whether the national party
committees can make expenditures on behalf of senatorial candidates 74
in response to this silence in april of 1977 the commission issued a
regulation that allowed the national parties to make the national party
committees their agents for campaign expenditures the national
committee of a political party may make expenditures authorized by this
section through any designated agent including state and subordinate
party committees ' 5
because the regulation allowed the national parties to channel
money to either national or state political committees in 1978 the re-
publicans sought to do just the opposite allow the state parties to chan-
nel money to the national party committees the democrats were not
amused with this variation on a theme and filed a complaint with the
commission eventually the complaint's substance reached the supreme
court 7 6 at issue in f e c v democratic senatorial campaign com-
mittee was whether given the silence of section 441a d 3 the national
committees could act as agents of the state parties 7
72 expenditure limitations on congressional campaign committees fed election
camp fin guide cch 15236 feb 15 1977 73 2 u s c § 441a h 1996 74 id § 441a d 1996 75 11 c f r § 110 7 a 4 1981 emphasis added 76 f e c v democratic senatorial campaign comm 454 u s 27 1981 77 i at 33-34 marquette law review
a unanimous court78 determined that the silence of feca section
441a d 3 did not preclude the national party committees from acting
as the agents of the state parties in reaching its holding the court
noted that striking down the agency relationship between the state par-
ties and the national party committees-a practice that only the repub-
licans employed at the time-would necessitate striking down the
agency relationship between the national party and the national party
committees as well-a practice in which both parties engaged 7 the
only point of contention among the court related to the ability of the
national party committees under feca to make expenditures on behalf
of the senatorial candidates the court noted that p arty committees
are considered incapable of making 'independent' expenditures in con-
nection with the campaigns of their party's candidates ' in his concur-
rence justice stevens took issue with that assumption noting that with
the facts of this case he was not entirely sure that the expenditures at
issue 'otherwise would be impermissible ' 8 unresolved after
democratic senatorial campaign committee is whether the political
committees could make expenditures on behalf senatorial candidates
that exceeded feca's amount limitation-in essence whether the
feca provision violated the first amendment such question did not
reach the court until 1996 also in 1981 the court heard a challenge to feca's provision lim-
iting the amount a person can contribute to a political committee to
$5 000 annually s in california medical association v f e c 4 the cali-
fornia medical association medical association argued that the
$5 000 annual limit on the amount it could contribute to the california
medical political action committee calpac was unconstitu-
tional '
in challenging this provision of feca the medical association ar-
gued first that its contributions to calpac were actually expendi-
78 not only was the court unanimous but also justice white--one of the justices most
critical of the court's buckley holding-authored the court's opinion in democratic senato-
rial campaign committee 79 democratic senatorial campaign committee 454 u s at 34 80 id at 27-28 n 1 81 id at 45 stevens j concurring 82 see infra part iii d 83 2 u s c § 441a a 1 c 1996 84 453 u s 182 1981 85 id at 193 vol 81 12011218
1998 campaign finance laws and political parties 1219
tures and therefore under buckley immune from regulation calpac was a pac formed by the medical association and received
substantial but not all of its funding from the medical associate ' it
existed to engage in political advocacy on behalf of the medical associa-
tion the medical association argued that because of its close rela-
tionship with calpac any moneys it gave to calpac ought to be
treated the same for purposes of constitutional analysis as if the medical
association had skipped the calpac straw man and spent the
money itself the court was unpersuaded by this speech by proxy ar-
gument noting that contributions to pacs-apparently even those with
whom the contributor created and controlled-were not the type of ac-
tivity entitled to full first amendment protection under buckley 89
failing with its first argument the medical association next argued that
the sole justification for upholding the regulations in buckley-quid pro
quo corruption-was not present in its contributions to calpac ' the
medical association argued that neither actual nor apparent corruption
was possible when a pac was the recipient of the contribution because
congress in enacting feca was attempting to prevent the corruption
of politicians not contributors 9' the court did not agree noting that
such an exception would make the legitimate limitation on contribu-
tions by individuals to candidates easy to avoid by merely channeling
the money through a straw man pac '
having upheld a contribution limitation in california medical asso-
ciation the court in 1984 heard a challenge to a regulation limiting the
amount pacs could independently spend in presidential races where
the candidate had accepted public funding ' the purpose of the pac at
issue in this case the national conservative political action committee ncpac was to promote the election of conservative persons to
86 id at 195 87 id at 184 while the medical association formed calpac calpac was a separate legal entity that received funds from multiple sources iu at 196 88 l at 184 89 id at 196 justice blackmun found this mechanical application of buckley unap-
pealing stating that speech by proxy was indeed entitled to full first amendment protec-
tion i& at 202-03 blackmun j concurring in part and concurring in judgment none-
theless he agreed with the court that section 441a a 1 c was constitutional because it implicat ed the governmental interest in preventing actual or potential corruption id at
203 blackmun j concurring in part and concurring in judgment 90 id at 195 91 id at 197 92 id at 198 93 f e c v national conservative political action comm 470 u s 480 1985 marq uette law review
federal office in 1983 ncpac announced that it was preparing to ex-
pend considerable amounts of money in the 1984 presidential election to
encourage the re-election of president reagan the democratic party
and others brought suit seeking a declaratory judgment that the presi-
dential election campaign fund act pecfa 5 was constitutional and thus limited the allowable expenditures of ncpac in the 1984 elec-
tion to $1 000 because reagan's campaign had opted to accept public
funding ' the court noted that ncpac had spent significant amounts
of money urging the election of president reagan in 1980 and that none
of ncpacs 1980 expenditures were made in conjunction or consulta-
tion with the reagan campaign '
the court reiterated its buckley rationale-noting that although
the members of ncpac were indeed seeking speech by proxy similar
to that sought by the medical association in california medical asso-
ciation ncpac nonetheless was entitled to full first amendment pro-
tection because contrary to california medical association the regu-
lated activity was not a contribution but an expenditurey8 further the
court reaffirmed that prevention of corruption was the only compelling
government interest in campaign finance regulation stating that t he
hallmark of corruption is the financial quid pro quo dollars for political
favors as before the type of activity was again the determining fac-
tor not the amount of money in question the court was not impressed
that ncpac might increase the potential for corruption because they
spent more money than the individuals at issue in buckley indeed 94 id at 483 democrats were not entirely irrational in their reaction to ncpac in
1983 ncpac first became active in the 1978 election year but in 1980 it spent a record $3 3
million in the congressional and presidential races specifically ncpac spent $1 1 million
independently against six liberal democratic senators-senators birch bayh of indiana frank church of idaho alan cranston of california john culver of iowa thomas eagleton
of missouri and george mcgovern of south dakota-and all but cranston and eagleton
were defeated sorauf inside campaign finance supra note 4 at 180 how much of
the other four senators' defeat actually could be attributed to ncpac's efforts is debatable nevertheless ncpac's tactics were new and effective-and at the time only utilized by con-
servative groups nahra political parties supra note 35 at 104
95 pub l no 92-178 85 stat 563 1971 codified at 26 u s c §§ 9001-9013 1987
supp although pecfa is different than feca the two acts attempt to accomplish similar
ends while feca affects all federal elections pecfa only affects those presidential can-
didates who choose to receive public funding-and then only from the period covering the
nomination until thirty days beyond the general election 96 national conservative political action comm 470 u s at 483 97 id at 490 9& it at 494-95 99 id at 497 100 id at 498 1220 vol 81 1201
1998 campaign finance laws and political parties 1221
the court was satisfied that the absence of prearrangement and coor-
dination undermines the value of the expenditure to the candidate and
thereby alleviates the danger that expenditures will be given as a quid
pro quo for improper commitments from the candidate d colorado republican federal campaign committee v f e c in 1996 the court in colorado republican federal campaign com-
mittee v f e c had yet another opportunity to assess the constitution-
ality of a provision of feca though prior to this case the court had
never ruled on the constitutionality of the specific provision the court
was not venturing into uncharted territory at issue in colorado re-
publican was feca section 441a d ' a provision known as the party
expenditure provision this provision exempted political parties from
the spending limitations feca imposed on pacs and other multican-
didate political committees 'o' merely because section 441a d ex-
empted political parties from the contribution limitation levels feca
imposed on pacs does not mean that feca gives political parties a
blank check to contribute to their candidates rather feca provides a
more generous separate formula to limit the amount of money political
parties can spend in conjunction with a candidate's campaign °4
under this more generous party formula feca authorized the
colorado republican federal campaign committee colorado re-
publican party to spend a total of $103 000 in conjunction with its
senatorial candidate in 1986 u during the election cycle of 1986 then-
101 id 102 2 u s c § 441a d 1994 103 see id § 441a a 2 a 7 b i without section 441a d feca would treat po-
litical parties exactly as it treats pacs-meaning that political parties could only contribute
$5 000 to any one candidate's campaign see colorado republican federal campaign com-
mittee v f e c 116 s ct 2309 2313 1996 104 2 u s c § 441a d 3 the national committee of a political party or a state committee of a political party including any subordinate committee of a state committee may not make any ex-
penditure in connection with the general election campaign of a candidate for fed-
eral office in a state who is affiliated with such party which exceeds- a in the case of a candidate for election to the office of senator or of repre-
sentative from a state which is entitled to only one representative the greater
of- i 2 cents multiplied by the voting age population of the state or ii $20 000 and b in the case of a candidate for election to the office of representative delegate or resident commissioner in any other state $10 000 105 colorado republican 116 s ct at 2314 marquette law review
representative timothy wirth announced his intention to campaign for
one of colorado's senate seats ' 6 before the republicans chose their
candidate to oppose wirth the colorado republican party began to run
a series of radio advertisements critical of wirth's record in congress °c
the colorado democratic party filed a complaint with the fec arguing
that the colorado republican party violated section 441a d because it
had assigned its entire $103 000 to the national republican senatorial
committee and therefore had no money left to spend on the anti-wirth
radio advertisements 1s
as it had done so often before in feca cases the court drew tight
factual distinctions and hinged its decision on factual conclusions in
colorado republican the variation on buckley's theme focused on a
political party's coordinated expenditures made in conjunction with the
candidate's campaign versus a political party's independent expenditures
made on behalf of the candidate without the candidate's knowledge ' °9
in reviewing the record the court noted the dearth of factual evi-
dence for the notion that the colorado republican party did anything
but make expenditures independent of the republican senatorial candi-
date '10 rather all evidence pointed to the fact that the colorado re-
publican party acted without any consultation with its candidate '
having disposed of the factual notion that coordination between the
party and the candidate occurred the court next tackled the fec's ar-
gument that political parties were either disallowed by law or consid-
ered legally incapable of making independent expenditures ' the
court could find no persuasive support for these propositions in any
controlling precedent or in any act of congress ' furthermore if con-
gress did enact some sort of legal bar on independent political party
spending the court noted that its post-buckley feca rulings have all
consistently concluded that restricting any independent expenditures
106 id 107 id 108 id see also supra notes 57-77 and accompanying text 109 colorado republican 116 s ct at 2315 110 id 111 id on its face the notion that the colorado republican party consulted the re-
publican senatorial candidate borders on the absurd since the republican senatorial candi-
date had not yet been selected at the time the radio advertisements were broadcast id 112 id at 2318 see e g 11 cfr § 110 7 b 4 1995 prohibiting political parties from
making independent expenditures in any general election campaign 113 colorado republican 116 s ct at 2318 1222 vol 81 1201
1998 campaign finance laws and political parties 1223
would violate the first amendment to hold differently for political
parties would put them at a disadvantage to both pacs and individual
candidates ' as a result the court could not find any evidence nor
could they be persuaded by any argument to find that the colorado
republican party acted any way but independently when it ran the anti-
wirth radio advertisements having rested its decision on those grounds the court refused to
consider the further question of whether the limitation of any campaign
expenditure-whether made independently or in coordination with a
candidate-violated the first amendment 116 with this inaction chief
justice rehnquist and justices scalia kennedy and thomas could not
agree 7 these four justices argued that the colorado republican party
adequately raised and preserved the larger constitutional question further these justices argued that however compelling might be the
prevention of quid pro quo corruption in the context of limiting contri-
butions to political parties and pacs limiting contributions by political
parties to candidates could never withstand constitutional scrutiny 1
for these justices quid pro quo corruption in the party-to-candidate
contribution situation fails because candidates and political parties are
so intertwined as to be essentially a single entity 1 9 thus the party-to-
candidate contribution situation is most similar not to the pac-to-
114 id at 2316 citing eu v san francisco county democratic central comm 489
u s 214 1989 national conservative political action committee v f e c 470 u s 480 1985 115 see nahra political parties supra note 35 at 98-99 colorado republican 116 s ct at 2318 noting how separating independent from coordinated expenditures in pacs is no
more different or difficult than doing so for parties 116 colorado republican 116 s ct at 2320 indeed the court noted that colorado
republican was the first case in the 20-year history of feca to suggest that in-fact coordi-
nated expenditures by political parties are protected from congressional regulation by the
first amendment id 117 id at 2321 kennedy j concurring in part and dissenting in part noting that the
political party in its pleadings in the district court and throughout this litigation has pre-
served its claim that the constraints imposed by feca both on its face and as inter-
preted by the commission violate the first amendment id at 2323 thomas j concur-
ring in part and dissenting in part in addition justice thomas joined the roll of justices
unable to understand the contribution versus expenditures dichotomy see f e c v na-
tional conservative political action committee 479 u s at 480 518 519 1985 marshall j dissenting buckley v valeo 424 u s 1 235 1976 per curiam burger c j concurring in
part and dissenting in part buckley 424 u s at 257 white j concurring in part and dis-
senting in part buckley 424 u s at 290 blackmun j concurring in part and dissenting in
part 118 colorado republican 116 s ct at 2322 119 id marquette law review
candidate contribution but rather to the candidate financing her cam-
paign with her own funds buckley v valeo held that a candidate can-
not be restricted in the use of her own money and this is what political
parties do when they make the expenditures feca restricts 121 the
buckley court's rationale for this was of course that it would be impos-
sible for a candidate to corrupt herself through the use of her own
funds '2 but for these four justices in colorado republican the political
party cannot corrupt a candidate because the candidate and the party
are essentially the same entity '2' articulating this point justice ken-
nedy noted a political party can give effect to their views only by selecting
and supporting candidates a political party has its own tradi-
tions and principles that transcend the interests of individual
candidates and campaigns but in the context of particular elec-
tions candidates are necessary to make the party's message
known and effective and vice versa y1
4
the party's speech cannot be separated from speech on the
candidate's behalf without constraining the party in advocating
its most essential positions and pursuing its most basic goals the
party's form of organization and the fact that its fate in an elec-
tion is inextricably intertwined with that of its candidates cannot
provide a basis for the restrictions imposed here for chief justice rehnquist and justices scalia kennedy and tho-
mas candidates and political parties inhabit the same space share the
same existence because of this same existence the political party can-
not corrupt the candidate any more than the candidate can corrupt her-
self iv is the quid pro quo justification for limitations on
campaign contributions compelling when applied to
contributions made by political parties to be clear this section is not a general critique of the buckley
scheme of analyzing campaign finance cases indeed after over twenty
120 id at 2321-22 121 id at 2321 122 buckley 424 u s at 51-54 123 colorado republican 116 s ct at 2322 kennedy j concurring in part and dis-
senting in part 124 id at 2322 125 id at 2323 vol 81 12011224
1998 campaign finance laws and political parties 1225
years of the court's repeated application of the buckley rationale with-
out radical deviation from it one can be fairly sure that buckley will
remain good law for some time as a result this discussion will not
take sides on such issues as whether quid pro quo corruption ought to be
the only allowable compelling interest or whether political equality be-
tween the rich and poor ought also be a compelling interest instead this section argues that the dollar limitations feca section
441a places on the ability of political parties to make expenditures on
behalf of their candidates when analyzed through the lens of buckley
and its progeny cannot pass constitutional muster moreover even if
such a restriction were constitutional its effects would also be politically
undesirable in essence then this section argues that not only is section
441a fundamentally impermissible it is also unwise policy a constitutional questions the place of the party in the regulatory world of pacs and candidates
political parties are curious creatures since feca case law has
sprouted everywhere except around the barren sof of political parties one is left to take concepts derived in other contexts and extrapolate
them into the world of the political party the question of political par-
ties and speech limitation can really be reduced to this buckley formula-
126 colloquia constitutional implications of campaign finance reform 8 admin l j am u 167 participant noting that an honest assessment of the state of the law reveals
that the prospects for overturning buckley are virtually nonexistent 127 some academics have claimed that the current system of campaign finance not only
is immoral but also unconstitutional because it violates the equal protection rights of the
poor segments of society see wright supra note 8 at 625-42 arguing that by equating po-
litical spending with political speech and according both the same constitutional protection the court placed the first amendment squarely in opposition to the democratic ideal of politi-
cal equality nicholson supra note 8 at 821-25 owen fiss free speech and social struc-
ture 71 iowa l rev 1405 1986 some have even argued that the fact that few poor per-
sons are in the halls of congress signifies that the current system is violative of equal
protection colloquia supra note 137 at 174-77 in this regard the current system is equated
with the unconstitutional poll tax harper v virginia state bd of elections 383 u s 663 1966 filing fee bullock v carter 405 u s 134 1972 or white primary terry v adams 345 u s 461 1986 to engage in this argument is tempting however it is outside the ambit
of this comment see bevier specious arguments supra note 4 at 1268-69 arguing that
treating income classes as monolithic groups at best oversimplifies the problems that the po-
litical process must solve indeed when one looks at the seven wealthiest members of
congress in 1994-representative amo houghton r-ny senator herb kohl d-wi senator jay rockefeller d-wv representative michael huffington r-ca senator di-
ane feinstein d-ca senator frank lautenberg d-nj and senator edward kennedy d-
ma --it certainly cannot be considered a monolithic group colloquia supra note 137 at
177-78 marquette law review
tion are political parties by nature more like candidates expending re-
sources for their own campaign or are they more like pacs contributing
resources to another's campaign the conceptual formulation is no dif-
ferent from the post-feca election law cases only the focus is differ-
ent but as the discussion above has shown on the result of that seem-
ingly insignificant semantic question hangs a multitude of important
ramifications z on the result of that question rests the answer to
whether party speech and candidate speech are one in the same and un-
limitable by congress 1 the political party and the pac separate members of the same
family strictly speaking the political party and the pac resemble one an-
other to a great extent '29 both are primarily political organizations both endorse and support candidates and both pool the physical men-
tal and financial capital of many individuals so as to achieve greater re-
sults ' however to say that political parties are nothing more than
larger-than-usual pacs is to not understand the place and role of the
political party both in american history and today this is to say that although political parties resemble pacs in significant ways the differ-
ences between the two are great enough to be more than differences of
degree but rather of kind perhaps distinguishing between political parties and pacs is inher-
ently difficult because no universal definition of a political party exists '
128 supra parts iii b - d 129 see leon d epstein political parties in the american mold 284-94 296 1986 noting that pacs are not solely a phenomenon of the past twenty years and that they
have taken over some of the traditional party functions 130 another less flattering similarity is that both political parties and pacs are rather
unpopular organizations in american life see e g sabato just begun supra note 27 at
5 gerald m pomper the contribution of political parties to american democracy in
party renewal in america theory and practice 1 gerald m pomper ed 1980 noting that americans do not like political parties see also sorauf inside campaign
finance supra note 4 at 161-62 relating a network television news broadcast that decried
the corruption of the political system by special interests manes supra note 52 at 20-23 fred wertheimer the dirtiest election ever the spending abuses of 1996 should shame us
into reform wash post nov 3 1996 at c1 131 professors beck and sorauf distill the differing views of political parties down to
three basic conceptions paul allen beck & frank j sorauf party politics in
america 7-16 7th ed 1992 first some argue e g edmund burke that the political
party is an association of members with a common ideological bent id at 8-9 beck and
sorauf note that this conception has not been a favorite of scholars of american political par-
ties for a variety of reasons-not the least of which is such a conception makes it difficult to
distinguish parties from factions id at 9 second some conceive of the political party as a
1226 vol 81 1201
1998 campaign finance laws and political parties 1227
quite possibly it is easier to detail what a political party is not-
especially in comparison to pacs-than what a political party is pro-
fessors beck and sorauf in their book party politics in america set
forth a useful list of activities which uniquely identify a political party in
comparison to similar organizations such as pacs first political parties are different because their efforts are concen-
trated in the contesting of elections ' m in the american system politi-
cal parties have the responsibility for fielding candidates in local state and federal elections of course many pacs are also highly active in
the election season supporting candidates and promoting candidates to
the public ' however in general terms a pacs support for a candi-
date is secondary to that of the political party put another way in most
cases pacs offer support to candidates-meaning persons already en-
gaged in the process of attaining or retaining elective office under the
auspices of the political party second parties must be broad and inclusive groups of individuals to
be successful ' in order to obtain governance parties must marshal
enough public support so as to attain a majority of the voting public 135
the need to obtain such wide public support necessitates that parties
cannot be beholden to a narrow range of concerns or an exclusive band
of followers and expect electoral success 6 the contrast to pacs in this
regard is striking pacs are quite often political arms of interest groups
that only focus on issues involving that organization's interests ' the
hierarchical structure id third some conceive of the political party largely in terms of
what it does beck and sorauf posit that these later two conceptions-at times in some
manner of combination-dominate the views of american political parties id professor sabato defines parties as a group of officeholders candidates activities and
voters who identify with a group label and seek to elect individuals to public office who run
under that label sabato just begun supra note 27 at 26 132 id at 18 133 indeed some pacs limit their activity almost exclusively to electoral activity see e g f e c v national conservative political action comm 470 u s 480 490 1984 ncpac's primary purpose is to attempt to influence directly or indirectly the election or
defeat of candidates for federal state and local offices by making contributions and by mak-
ing its own expenditures 134 beck & sorauf supra note 142 at 18-19 135 id aldrich supra note 12 at 28-46 indicating that parties form for purposes of
governance as well as for purposes of campaigning 136 beck & sorauf supra note 142 at 19 137 see eg thomas gas improper influence campaign finance law political interest groups and the problem of equality 45-79 87 1996 noting
that pacs are much more likely to form among interest groups with strong ties to private
economic institutions sabato pac power supra note 35 at 25-26 noting that one might quickly conclude that every conceivable group has a pac kayden & mahe su-
marquette law review
need for parties to obtain wide public support also results in another dis-
tinguishing feature the importance of bodies over brains the
sheer number of votes needed for parties to succeed puts a premium on
masses of people rather than on a band of a few creative entrepreneurs
and their motivated clientele ' u parties may not have the sex appeal of a well-funded pac but they certainly are the work horses of ameri-
can politics third political parties operate solely as political organizations solely as instruments of political action '39 parties exist entirely for po-
litical purposes certainly some of the actions a party may take-such
as urban 'club' parties in some cities that cater to the social and in-
tellectual needs of a mobile educated ideological often isolated upper
middle class --do not immediately strike one as inherently political in
nature nonetheless parties engage in these actions for the sole pur-
pose of translating those associations into electoral support at some
later point in time 4 ' conversely pacs are in many situations political arms of some otherwise non-political enterprise pacs normally arise
because the underlying organization perceives a need to advocate for
their interests in the political arena for example the primary purpose
of labor unions-obtaining increased compensation and improved
working conditions for members need not necessarily be political however unions finding that they can reap additional benefits from en-
gaging in expressly political activities create pacs '43 unions of course
pra note 32 at 153 if the interests cannot act alone then they must combine but if they
combine they must have something to offer each other and trades of that sort must at some
point mean compromise fred wertheimer & susan weiss manes campaign finance re-
form a key to restoring the health of our democracy 94 colum l rev 1126 1139-40 giving examples of specific and narrow pac issues and influence but see sabato pac
power supra note 35 at 30 noting that not all pacs form around specific and narrow in-
terests 138 beck & sorauf supra note 142 at 18-19 see also everett carll ladd jr party reform since 1968 in the american constitutional system under strong and
weak parties 81 89-92 patricia bonomi et al eds 1981 arguing that successful parties
are able to take diffuse and difficult ideas and through its members arrive at some solution 139 id at 19 140 sorauf political parties supra note 37 at 4 141 id at 5 142 see amalgamated meat cutter and butcher workmen of north am v jewell tea
co 381 u s 676 723 goldberg j concurring in part and dissenting in part for the ob-
ject of a union is to band together the individual workers in an effort by common action to
obtain better wages and working conditions-ie to obtain a higher price for their labor 143 alexander supra note 16 at 84-85 indeed union leaders rightfully argue that
the government has the power to either significantly enhance labor's position through legisla-
tion-or that it has the power to significantly diminish labor's position through legislation vol 81 12011228
1998 campaign finance laws and political parties 1229
are not alone corporations agriculture 145 professional associations 6
and virtually any and every non-political organization may likely find it
worth their time to create a political wing 47
fourth political parties endure and persist over stretches of time
while pacs by contrast appear to be almost political will-o'-the-
wisps which disappear as suddenly as they appear as part ii illus-
trated political parties have been a part of the american political land-
scape for almost as long as that landscape has existed itself further the
current two party system can trace its existence to the civil war 49 as
beck and sorauf put it the parties are there as point of reference-
year after year election after election and candidate after candidate-
giving continuity and form to the choices americans face and the issues
they debate ' while some pacs may be able to trace their existence
back to the new deal ' many pacs have a much more transient lifecy-
cle ' knowing which pacs will wield influence-let alone exist-in the
next decade requires a talent bordering on the clairvoyant fifth and finally parties act as cues or symbols for many voters'
candidate or issue selections 53 modem life is consumed by work and
family obligations desires for leisure and other drains upon the totality
of time at the same time government despite president clinton's
rhetoric from a few state of the union speeches ago is still big and active and nothing appearing on the horizon looks to radically alter
that reality '54 when these two observations connect they produce a
see alexander heard the costs of democracy 180 1962 further labor argues
that because other competing organizations seek to influence the political agenda they must
also do so or be doomed to irrelevance in policy debates id 144 see ruth markus wisconsin court to address regulation of issue advocacy ads wash post jan 16 1998 at a4 145 see gais supra note 148 at 35 relating that agricultural giant archer-daniels-
midland contributed over $1 3 million to both parties in the 1992 election 146 see california medical association v f e c 453 u s 182 1981 147 see sabato pac power supra note 35 at 25-26 noting that one might quickly
conclude that every conceivable group has a pac but also see id at 32-33 noting that
fortune 500 companies were as likely to not have a pac as they were to having one 148 beck & sorauf supra note 142 at 19 149 id 150 id 151 see sabato pac power supra note 35 at 5-6 the phenomenon that pacs
represent-factions--of course trace their history long before the new deal see james
madison the federalist no 10 152 see gais supra note 148 at 65-68 relating the volatile nature of many pacs 153 beck & sorauf supra note 142 at 19-20 154 for the text of president clinton's 1996 state of the union speech see http ll
marquette law review vol 81 1201
paradoxical result at the same time government seeks do more and
therefore more possibilities arise for differing political opinions the
citizenry has less time to fully contemplate those positions 155 political
parties offer the voter a reasonably simple way to filter issues republi-
cans by and large hold certain positions democrats by and large hold
other positions the ability for a general voter to quickly summarize a
candidate's positions-to label her-based upon party affiliation is a
tremendously useful tool pacs do not offer such opportunities initially it must be said that
pacs operate in many circumstances in a pragmatic rather than a prin-
cipled manner pacs like to support candidates who will win ' addi-
tionally some pacs especially business ones can be rather bipartisan they will give money both to republican candidates and democratic
candidates depending upon the individual candidate's positions on is-
sues 5 some pacs will even contribute to the general funds of both
political parties although usually the amounts given to each are not
equal in a sense this strategy might well be characterized as a hedging all bets strategy pacs want to be sure that they do not end
up entirely on the wrong side of the election so they will contribute to
both candidates 59
www2 whitehouse gov wh new other sotu html visited june 24 1998 155 most persons would instinctively think this a bad thing especially if less opportu-
nity to contemplate candidate positions translates into political apathy resulting in low voter
turnouts if low voter turnouts however are not such a terrible thing for republican govern-
ment could this also mean that the citizenry's decreased ability to contemplate different posi-
tions in a complex world is also not as bad as instincts might suggest see seymour martin
lipset political man 183-89 226-29 4th ed 1988 1959 156 for a variety of reasons incumbency often times makes winning easier see smith faulty assumptions supra note 3 at 1073-74 noting that incumbents have name recognition press coverage staffs and franking privileges among other things this is born out in the re-
election data from 1972 to 1990 nearly 94 of incumbents who ran for re-election were
successful in their bid l sandy maisel the incumbency advantage in money elections and democracy 119 121 margaret latus nugent & john r johannes eds 1990 see also
george f will restoration 87-89 1993 citing norman j ornstein et al vital
statistics on congress 1991-1992 58-59 1992 not surprisingly pacs are more likely
to heavily contribute to incumbents than to challengers sabato pac power supra note
35 at 73-74 colloquia supra note 137 at 179 noting that in 1992 pacs gave $89 million to
incumbents in the house of representatives compared to $11 million to challengers 157 id at 142-43 158 see e g gais supra note 148 at 35 relating that agricultural giant archer-
daniels-midland contributed to both parties in the 1992 election 159 sabato pac power supra note 35 at 147 quoting democratic political director
ann lewis in the early 1980's as indicating that businesses might well want to consider that
the democrats hold the house will regain the senate and might take the white house when
they make their campaign contributions 1230
1998 campaign finance laws and political parties 1231
these five areas taken individually may not forcefully distinguish the
differences between the political party and the pac however when
one looks at them in total political parties are revealed to be something
similar yet substantively different than the pac such an analysis really
only answers half of the question because to say that political party ac-
tion is not akin to pac action is not to necessarily say that political
party action is akin to individual candidate action that candidate-party
similarity must be shown separately 2 political parties and candidates essentially twins buckley clearly set forth the principle that congress cannot restrict a
candidate's use of her or her family's own wealth because a candidate's
own wealth could not act as quid pro quo corruptive activity w corrup-
tion as always is the lodestar in these matters in colorado republican chief justice rehnquist and justices scalia kennedy and thomas es-
sentially argued that the political party is extended family to the can-
didate and therefore the party's expenditures on behalf of the candi-
date cannot be limited in any way 6 1 though the words were not spoken
in justice kennedy's concurrence these justices necessarily meant that a
political party cannot corrupt a candidate rather justice kennedy's
description can be summarized in this manner contribution limitations
by parties to candidates improperly burden the first amendment rights
of political parties the kennedy and thomas concurrences make sense in light of
buckley only if candidates and parties are considered to be subdivisions
of an indivisible whole parties cannot function without candidates and
candidates cannot function without parties ' what is to be made of this
assertion from the vantage point of the political party the indivisible unit argument appears plausible remember that the party exists solely for
electoral and political action 6' in order for the political party to speak
when it must speak i e at an election it must have candidates to ar-
ticulate its message to accomplish this task the party selects' 6' candi-
160 buckley v valeo 424 u s 1 51-54 1976 per curiam 161 colorado republican federal campaign committee v f e c 116 s ct 2309 2322 1996 kennedy j concurring in part and dissenting in part 162 id at 2323 163 or in justice kennedy's language in the context of particular elections candidates
are necessary to make the party's message known and effective and vice versa id at 2322 164 supra note 145 and accompanying text 165 perhaps the phrase the party selects was more vividly true back in the days when
marquette law review
dates to be the spokespeople of the party's ideas by virtue of attaining
the nomination the candidate is rewarded with the party's financial
support its organization and perhaps most importantly its label '6
without candidates the political party would be awash in messages with
no messenger to deliver them '67
from the perspective of the candidate however the indivisible
unit rationale may at first glance have some reasonable objections to
overcome first and foremost is this is the political party indispensable
to the candidate in the abstract the answer undoubtedly is that they
are not one can certainly imagine a world in which formal parties do
not exist and candidates instead run solely upon their personal merits
and accomplishments but one need not only theorize about such a
world for it has existed albeit briefly in the united states when the electoral college met to cast votes for the first president
of the united states the delegates acted without considering the con-
cept of party '' ' indeed the majority of the founders thought parties
to be detestable and dangerous to the maintenance of a free society ' 69
political bosses exercised significant clout at the local and state party level and hence at the
selection of national convention delegates see e g cousins v wigoda 419 u s 477 1975 because both major parties reformed their structure in the 1960s and 1970s much of the con-
trol of the party lies in the hands of the national committees see generally charles longley party reform and party nationalization the case of the democrats in the party symbol
21 william crotty ed 1980 see also charles h longley national party renewal in party
renewal in america 69 69-71 gerald m pomper ed 1980 nevertheless the party -
albeit in a different and perhaps more democratic way-still selects its candidates see
ranney supra note 32 at 2 noting the differing methods for states to conduct party nomi-
nation primaries 166 see supra notes 162-66 and accompanying text perhaps here the difference be-
tween the party and the pac is more striking candidates are known by their party label-
e g the democratic candidate for the 1st district --in a way that is completely foreign to a
pac candidates are not except when opponents do so in derisive terms known as the tobacco union anti-abortion-fill in the blank candidate for the 1st district the dif-
ference is simple yet striking 167 see nahra political parties supra note 35 at 102 this assumes that the party
would even exist without candidates-a doubtful proposition if professors beck and sorauf
are correct see supra notes 145-53 and accompanying text 168 a james reichley the life of the parties 38 1992 169 see id at 25-31 such sentiment did not die with the close of the eighteenth cen-
tury the progressive sentiments of the early twentieth century can be traced as descendants
of this thought see william j crotty the philosophies of party reform in party
renewal in america 31 33 gerald m pomper ed 1980 indeed the same spirit is alive
and well even in our own time see generally moisei i ostrogorski democracy and
the organization of political parties ii the united states seymour lipset
trans 1982 robert michals political parties a sociological study of the
oligarchical tendencies of modern democracy eden paul & cedar paul trans 1962 1232 vol 81 1201
1998 campaign finance laws and political parties 1233
such general sentiments were systematically reflected in the new gov-
ernment for example the electoral college was created to function as
an elaborate version of a civic club's nominating committee or an insti-
tution's search committee 17 the college met in order to select the
most able persons among all the nominees name the candidate with the
highest vote total as president and name the runner-up as vice presi-
dent ' the system worked once-washington's election as the first
president however by the election of 1796 the college adopted a
more modem approach mainly because a noticeable two-party system
had developed '
aside from this eight-year occurrence at the origination of the na-
tion parties have been an integral part of the political exercise but this
should not come as a surprise since opinions on topics will vary and
people will naturally migrate to others with whom they are in general
agreement on basic principles moreover in a democratic system these
groups of people who share basic opinions on fundamental principles
have the opportunity to implement their opinions into law 173 the party
is essential to the orderly operation of democratic governance because
without it individuals would need to re-create coalitions with every new
election 4
170 id at 35 quoting james sundquist strengthening the national parties in
elections american style 198 a james reichey ed 1987 171 al cf u s const art ii sec 1 172 i& see also supra notes 11-14 and accompanying text perhaps the parties existed
prior to the election of 1796 but washington's status as the father of the country and his
steadfast personality placated the party factions for his years in office see martin van
buren inquiry into the origin and course of political parties in the united
states 7 augustus m kelly publishers 1967 1867 the two great parties of this coun-
try with occasional changes in their names only have for the principal part of a century oc-
cupied antagonistic positions upon all important political questions 173 indeed edmund burke thought it impossible for republics to avoid parties and im-
prudent for a political leader to shun party association party is a body of men united for promoting by their joint endeavours the national
interest upon some particular principle in which they are all agreed for my part i
find it impossible to conceive that any one who believes in his own politics or
thinks them to be of any weight who refuses to adopt the means of having them re-
duced into practice it is the business of he politician who is the philosopher in
action to find out proper means toward those ends and to employ them with effect therefore every honourable connexion will avow it is their first purpose to pursue
every just method to put the men who hold their opinions into such a condition as
may enable them to carry their common plans into execution with all the power and
authority of the state edmund burke parties are necessary to the performance of public duty in the american
party system24 25-26 john r owens & pj staudenraus eds 1965 174 see e g pomper supra note 141 at 11-15 marquette law review
this fact is easily overlooked in a society where the progressives' at-
titude- vote for the candidate not the party or there is no demo-
cratic or republican way to run the schools -has swept the populace 75
but there is a republican way to run the senate or a democratic way
to run the white house even if at times the differences do not seem
large the american system of government was established so that no
one person acting alone could effect dramatic or irreversible change 6
the system is designed to require coalitions to accomplish governance the party is the indispensable force that creates protracted coalitions
and hence gives government the ability to function but this is putting the cart before the horse for parties are the neces-
sary vehicles for candidates to attain electoral victory parties offer the
candidate much needed funds for the campaign to be sure however as
was noted above parties offer the candidate access to the preexisting
organizational network of party supporters without these very practi-
cal organizations in place every candidate for every office at every elec-
tion would need to re-create the machine in order to produce a cam-
paign such an undertaking would not only require huge start-up costs
in order to get an organization initially in motion but would be an ex-
tremely inefficient method of campaigning faced with these costs it
would not be an unremarkable turn of events to find individual candi-
dates joining forces to capitalize on the economies of scale inherent in
a campaign 7 which in essence means creating political parties further such a non-party system could likely produce a less demo-
cratic method for selecting candidates in a system or more accurately
a non-system where parties do not exist as a leavening force between
individuals certain individuals will undoubtedly assume the inside track such a system works to the advantage of the wealthy who have no need
175 id at 13 176 consider james madison's classic formulation in federalist number 51 in framing
a government which is to be administered by men over me the great difficulty lies in this you must first enable the government to controul the governed and in the next place oblige
it to controul itself james madison federalist no 51 emphasis added 177 see supra notes 137-66 and accompanying text 178 focusing solely on the presidency for a moment examples of recent independent candidates are sparse-john anderson in 1980 and ross perot in 1992 both failed to garner
even a single electoral vote and their total vote percentages were not terribly impressive in
comparison to their democratic and republican opponents perhaps perot learned his lesson
after the 1992 elections when he ran again in 1996 he no longer ran as an independent but
rather formed the reform party that-not surprisingly-selected him as its candidate apparently one attempt at independence was enough for perot to recognize the burdens of
recreating his organization every four years and the corresponding benefits a party provides
in this area 1234 vol 81 1201
1998 campaign finance laws and political parties 1235
for outside campaign financing 179 it also gives an advantage to the can-
didate who has some form of celebrity status by virtue of her occupa-
tion ' or is the descendant of a prominent person or family ' parties
are a force that negates these inherent advantages at least to some de-
gree 18
thus although in the abstract a candidate does not need the politi-
cal party the american democratic experience-if not the democratic
experience in general-reveals that political parties are indispensable
to the election of candidates furthermore parties and the sustained
coalitions they provide are necessary for the functioning of a govern-
mental system that spreads power into the hands of many b policy questions the place of the party in strengthening republican
government
in addition to the constitutional case for removing the restrictions
on the amount which political parties can spend on behalf of their can-
didates a secondary-and strongly secondary-policy argument also fa-
vors the removal that argument is this if political parties are not re-
stricted in the amount they can contribute to their candidate the
political party might become the preferred vehicle for campaign contri-
butions from the public to many critics one of the most unfortunate
179 smith faulty assumptions supra note 3 at 1081-82 180 id at 1077-81 smith money talks supra note 4 at 92-95 181 nelson w polsby consequences of party reform 148-49 1983 for ex-
ample one would reasonably assume that john f kennedy jr would have an instant advan-
tage over his opponent were he to run for state or federal office in light of his family name
and his position as editor in chief of george magazine a position his family name and line-
age one could speculate played no small role in landing similarly one would also reasona-
bly assume that former president george bush's two sons-jeb and george w -who are
actively engaged in politics received at least initial notoriety from their father's notoriety 182 of course part of the drive to reform party behavior and campaign finance was a
direct result of the perception by some that the parties were non-representative organizations
controlled by the whims of party elites see ranney supra note 32 at 101-04 carol f ca-
sey the national democratic party in party renewal in america 87 gerald m pom-
per ed 1980 john f bibby party renewal in the national republican party in party
renewal in america 102 gerald m pomper ed 1980 the point however is that a
world in which parties do not exist might not remove elites from positions of power only
perhaps reshuffle which elites are in power see e g kirkpatrick supra note 32 at 12-13 1979 noting that national convention delegates of both parties after the reforms of the
1960s and 1970s were substantially drawn from educated and professional classes and exag-
gerated the gap between the elite and rank and file members 183 reichley supra note 168 at 31 184 it is important to reiterate that this comment working within the bounds of buck-
ley is not stating that the public would be able to give limitless contributions to either the
marquette law review
facets of the current system is the increased role that pacs play in po-
litical funding mainly because pacs are seen to have no other pur-
pose than exercising a corrupting and illegitimate influence over politi-
cians buckley itself followed by the court's extension of buckley in
f e c v national conservative political action committee leaves lit-
tle room to restrict the independent expenditures of any person or or-
ganization-be that an individual party or pac further as feca is
currently constituted pacs and political parties are treated virtually as
equals insofar their ability to receive contributions from donors or
spend money on candidates '8 buckley did little to change this virtual
equality numerous critics have noted that since buckley's rather favor-
able treatment of pacs in 1976 the number of pacs has skyrocketed-
along with the amount of money that they have contributed for ex-
ample in 1974 608 pacs were registered by the federal elections
commission by 1987 that number rose to 4 211 w at that same time the total amount of pac contributions increased from $11 6 million in
1974 to over $150 million by 1987 '9'
candidate or to the political party here as was seen before the contribution expenditure
dichotomy comes into play all the comment argues is that under buckley and its progeny the political party must be allowed unrestricted contribution to its candidate 185 see e g manes supra note 52 at 20-23 186 sabato paying for elections supra note 126 at 10 noting that pacs are
best described as agents of pseudo corruption however professor sabato argues that in
many cases pacs do not have any noticeable impact on elected officials instead critics who
see pacs influencing legislators behind every vote fail to take into account non-corruptive
factors for the vote-like political conviction or political compromise id at 13-14 187 470 u s 480 1984 188 at the time of feca's passage the political parties were lumped in along with eve-
rything else political as part of the problem sabato paying for elections supra note
126 at 49 as a result the reformers treated the political party and the pac alike for ex-
ample under feca both the pac and the political party are limited to giving a $5 000 con-
tribution in house races id however through the exploiting of loopholes --or the clever
reading of the law depending upon how one views it-political parties are usually able to
give a total of $30 000 $15 000 in the primary and $15 000 in the general election id 189 sorauf inside campaign finance supra note 4 at 102-103 see also cass m sunstein political equality and unintended consequences 94 columb l rev 1390 1396 1403-1410 1994 noting that t he early regulation of individual contributions had an im-
portant unintended consequence it led directly to the rise of the political action commit-
tee wright supra note 8 at 614-620 comparing pacs to a form of 'multiple voting'
and a form of legalized bribery 190 michael 'neil comment independent spending political action committees and
the need for further campaign finance reform 37 depaul l rev 611 628-629 1988 citing frank sorauf money in american elections 78 1988 191 larry j sabato pacs and parties in money elections and democracy 187 188 margaret latus nugent and john r johannes eds 1990 not frequently noted among
the increased number of pacs and pac spending however is the fact that at least in 1992 1236 vol 81 1201
1998 campaign finance laws and political parties 1237
by placing political parties and pacs on equal ground feca en-
couraged this growth in pac numbers and contributions part of the
solution must include the removal of this parity the constitutional
mandate that political parties cannot be limited in their contributions to
their candidates would accomplish a partial removal of the parity be-
tween political parties and pacs instead because of the political par-
ties' unlimited ability to financially support their candidates parties
could well become the preferred vehicle for candidates to seek and ob-
tain campaign funds this policy argument rests on the presupposition that in a healthy
republic political parties are to be preferred to pacs perhaps an unre-
flective response would disagree with this presupposition and instead
hold parties equally culpable for perceived political ills however among those persons who study politics and political theory-namely
political scientists-prefer political parties to pacs with few exceptions those same persons nevertheless readily admit that the political party
has not faired all that well of late although some argue that the tide
possibly is turning 1 as argued above political parties are argued to
be more conducive to good governance than pacs mainly because
party interests in order to garner sufficient numbers of voters to elect
candidates are wide diffuse and consensus-building institutions in an
otherwise balkanized nation ' additionally political parties arguably
promote civic duty the chores of democracy 1 inform the public of
issues promote stability in the political order and with a two party sys-
tem provide for lasting coalitions which last beyond individual issues 1 all of these things counteract the general political decay which some
critics see as a debilitating disease not only on political parties but also
one-third of all pacs contributed nothing and 92 of all pacs contributed less than
$100 000 each lee ann elliott the facts & figures about campaign finance a view
from inside the federal election commission 8 j l & pub pol'y 311 311 1992 192 see kayden and mahe supra note 32 at 30-51 arguing that a host of internal
factors-the pendleton act and other progressive reforms-combined with external fac-
tors-the new deal federalizing traditional party social welfare functions the reduction of
immigration a lack of confidence in institutions and the rise of pacs-were devastating to
the political parties see also sabato paying for elections supra note 126 at 47 see
generally david broder the party's over 1972 193 see sabato just begun supra note 27 at 177 194 see supra notes 143-70 and accompanying text 195 sabato just begun supra note 27 at 5 professor sabato notes that while par-
ties normally are accused of dividing public opinion in reality they congregate public opin-
ion-opinion which would otherwise be left solely to smaller individualistic factions id 196 reichley supra note 168 at 414 197 sabato paying for elecrions supra note 126 at 44-45 marquette law review
on society as a whole 1 9 as a result of this preference for political par-
ties over pacs many commentators include in their call for reforms a
less restrictive regulatory scheme for political party contributions so that
pacs put at a disadvantage lose some of their importance proposals
range from significantly increasing the dollar contribution allowed to a
political party to removing any restriction altogether 9
if political parties are indeed healthier than pacs to a functioning
republican government real reform might be found in a rather odd
place that reform would most certainly not be found in feca or
most likely in any bill likely to be introduced in congress at present rather real reform would occur with the court that strikes down party
contribution limitations to candidates because such a reform would
have the effect of strengthening political parties over pacs the irony
cannot be overstated critics of buckley and its progeny have argued
that the court has stood in the way of reform perhaps the court will in-
advertently bring reform about through buckley and its progeny standing alone this policy rationale should not dictate the court's rea-
soning nor the outcome of any case nevertheless a constitutional rul-
ing that also promotes sound public policy should be wholeheartedly
welcomed and encouraged v conclusion
political parties are unique entities in the american political system originating shortly after the founding of the nation the political party
has had a varied yet continuous impact on the electoral process in
light of the supreme court's much criticized but steadfast methodology
in analyzing congressional attempts at regulating the financing of cam-
paigns feca's restrictions limiting the amount that political parties
may contribute to their candidates must be unconstitutional under the
test established by buckley v valeo for the regulation to withstand
constitutional scrutiny it must combat either actual or perceived cor-
ruption however a candidate running for office under the banner of a
political party cannot be corrupted by that political party further be-
cause the candidate and the political party share such an intertwined
relationship any contribution that the political party makes toward its
candidate is best categorized as an expenditure on behalf of itself while this constitutional analysis may well cause considerable con-
198 wilson carey mcwilliams parties as civic associations in party renewal in
america 51 61 gerald m pomper ed 1980 199 see sabato pacs and parties supra note 202 at 200-203 vol 81 12011238
1998 campaign finance laws and political parties 1239
cern among those who seek to reform the financing of federal elections such concern may be largely unwarranted various political scientists
have for some time argued that a key to reforming federal campaigns is
to inflate the importance of the political party while at the same time de-
flate the importance of the pac while striking down feca's contri-
bution regulations between a political party and its candidate might not
have been the vehicle the reformers had in mind when they thought of
reform it nonetheless could produce the desired result kurt d dykstra the author wishes to sincerely thank his wife leah sikkema dykstra for granting
him the necessary time to think and write about these matters and also his young daughter juliana dykstra for reminding him through her newborn cries to not lose contact with other more important matters in life