INTRODUCTION :: On March 4, 1897, William McKinley capped a prominent career in public service when he became America’s twenty-fifth President. Perhaps most onlookers attributed the victory to McKinley’s character, intellect, or years of political experience. However, those watching a bit closer may have correctly pointed to wealthy Cleveland businessman Mark Hanna as the secret to McKinley’s success.
Maximizing the power of persuasion that accompanied his role as chairman of the Republican National Committee, Hanna raised and spent a then-record amount of funds on behalf of McKinley. His strategy? Hanna convinced business leaders that by donating to McKinley’s efforts, they were securing a “stake in the general prosperity,” a theory that offered a much needed dose of idealism in the midst of the great depression. Weighing a six million dollar war chest against William Jennings Bryan’s $ 650,000 campaign fund, McKinley handily defeated his opponent, and Hanna introduced the rudimentary financial blueprint for a victorious political campaign. Assessing his strategy, Hanna remarked, “There are two things that are important in politics. The first is money, and I can’t remember what the second one is.”
Over a century later, campaign spending levels continue to shatter records. The amount of money involved in the 2004 presidential election reached unprecedented heights, with individuals contributing a combined $ 496.6 million to the two major parties’ candidates over the course of the contest. But presidential elections are not the only contests to witness exorbitant spending. In 1998, the price of a race for the U.S. House of Representatives reached nearly seven times the cost of a House race in 1976, and the average cost of a U.S. Senate race increased more than six-fold over the same time period. Further, preliminary data indicated that the 2006 midterm election was the most expensive midterm contest ever, with candidates, national political parties, and other interested entities raising and spending approximately $ 2.8 billion.
Thus, as new spending records are set with each subsequent election, regardless of inflation statistics, any natural slowdown in campaign spending seems improbable. And the trend has not gone unnoticed. Fifty- nine percent of Americans are “very much” bothered by the amount of money spent on campaigns, half are dissatisfied with the nation’s campaign finance laws, and over sixty percent indicate that protecting the government from excessive influence by campaign contributors is more important than safeguarding the right to political participation. Certainly this discomfort with the American campaign finance system contributes in part, if not substantially, to the astonishing lack of public confidence in government.
Aware that the increasingly tight bond between money and politics presented ample opportunity for corruption, at least in the public’s perception, Congress knew a legislative response was warranted. Decades of attempts comprehensively to regulate electoral contests and the increasingly dependent relationship between money and politics culminated in the passage of the Federal Election Campaign Act of 1971 (FECA). As subsequently amended, this legislation established a comprehensive framework of campaign finance regulations, specifically delineating contribution and expenditure limits in an effort to control spending in political contests.
While portions of the FECA remain in effect today, in Buckley v. Valeo, the Supreme Court invalidated the FECA’s limitations on overall campaign expenditures for candidates seeking election to federal office. Equating spending to promote one’s political views to speech under the First Amendment, the Court held that the government had no power to determine when such “speech” has reached a level of waste or excess. Noting that the success of modern campaigns often hinged on the amount of money one raised, candidates responded to this affirmed freedom to “speak” by raising and spending more money than ever.
But not every state shared the Court’s comfort with unregulated expenditure limits. For example, under the constitutional election authority delegated to states, Vermont enacted the Vermont Campaign Finance Reform Act (Act 64), imposing stringent limitations on the amount candidates for state office could spend on campaigns. When the legislation was challenged in Randall v. Sorrell, a plurality of the Supreme Court declined Respondents’ invitation to overrule Buckley and, relying on the importance of stare decisis, found that Act 64′s expenditure limits violated the First Amendment. However, critics were not satisfied with the plurality’s dismissive treatment of Respondents’ assertion that expenditure limits were necessary to “reduce the amount of time candidates must spend raising money.” The plurality declined to address explicitly the merits of an interest in the allocation of candidate time and thus failed to establish a precedent foreclosing future cases from advocating for expenditure limitations on similar grounds. Instead, the Randall opinion first established Buckley as the foundation for most modern campaign finance regulation and then considered it inconceivable that such a seminal case could be overturned without injecting instability and disarray into campaign finance.
Considering the great impact of fundraising on modern elections, it is curious that there is relatively little legislative or judicial history addressing the merits of a time-protection rationale regarding the relationship between a candidate’s campaign income and the allocation of a candidate’s time. While judicial disregard for an interest in candidate time could indicate that courts implicitly find the interest insufficient to limit First Amendment protection of political speech, it is also possible that courts simply have yet to encounter a case adequately presenting the issue for adjudication.
Prompted by the exhaustive amount of time candidates continue to delegate to fundraising activities, this Note will analyze and explore the effects of the increasingly exclusive campaign focus on fundraising, the legislative and judicial response to the phenomenon thus far, and future legislative and judicial action that may be warranted. Part II will provide a brief overview of the history of expenditure regulations and the judiciary’s hesitation to curtail spending with the same restrictions applicable to campaign contributions. Part III of this Note will address the time-protection rationale as presented and dismissed in Randall, specifically exploring the role of stare decisis and the level of scrutiny employed in the Court’s decision to dismiss the interest. This Part will also consider whether, under a proper application of exacting judicial scrutiny, increased fundraising efforts, skyrocketing campaign spending, and the allocation of candidate time amount to a compelling government interest that justifies upholding future legislative attempts to limit expenditures. Finally, Part IV will conclude by assessing the judiciary’s likelihood of revisiting the time-protection rationale and the unlikely possibility that the weak state interests supporting the theory will ever be sufficient enough successfully to defend future expenditure limits.
November 2014, Vol. 66, No. 6
Lily Kahng, The Taxation of Intellectual Capital