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navigation, see below the constitution and campaign finance - a legal movement for change by john c. bonifaz

John C. Bonifaz is the executive director of the National Voting Rights Institute, a non-profit public interest litigation and public education organization based in Boston, Massachusetts. Founded in 1994, the Institute is a leading force in challenging the wealth primary barrier in court, in seeking a revisitation of Buckley v. Valeo, and in defending meaningful campaign reforms enacted through legislation or ballot initiative at the state and local level. For more information, please feel free to contact us at 294 Washington Street, Suite 713, Boston, Massachusetts 02108, phone: 617-368-9100, fax: 617-368-9101, Web: http://world.std.com/~nvri/.

In 1937, a group of poor voters brought a constitutional challenge to the poll tax, a fee charged to citizens throughout the South as a requirement for exercising their right to vote. They lost. The United States Supreme Court upheld the poll tax as constitutional.

In 1951, a second group of poor voters went to the Supreme Court. And, again, the nation's highest court upheld the poll tax as constitutional.

Then came Annie Harper. In 1966, in the heat of the Civil Rights Movement, Harper, a poor Virginia voter and other voters with her challenged the $1.50 poll tax in Virginia's state elections. This time the Supreme Court got it right: "A State violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution whenever it makes the affluence of the voter or payment of any fee an electoral standard. Voter qualifications have no relation to wealth."

Annie Harper made history. She dared to challenge a long-standing barrier to our democracy which the Supreme Court had twice upheld. She dared to dream.

Today, a new legal movement has emerged to carry on the tradition which Annie Harper represents. It is a movement to eradicate today's wealth barrier to our democracy -- the system of privately-financed public election campaigns. It is a movement to overturn a U.S. Supreme Court ruling which equated money with speech and which sanctioned unlimited campaign spending in our federal elections. It is a movement to fulfill the legal promise of democracy here at home.

The Wealth Primary

We face today a new voting rights barrier: the wealth primary. The wealth primary is that exclusionary process, leading up to every party primary and every general election, in which those with money or access to money, by means of their campaign contributions, choose the candidates who almost invariably go on to govern. Those who do not raise enough money - that is, those who lose the wealth primary - almost always do not win office.

The rest of us, the vast majority of American people, are shut out of the wealth primary. We are excluded from a critical part of our election process. Our right to vote, including our right to equal and meaningful participation, is debased and undermined. Like the poll tax, our campaign finance system has been thought to be constitutional. It is constitutional no more.

Part of the Machinery

In 1953, the Supreme Court decided the last of what have become known as the "white primary" cases. But Terry v. Adams, 345 U.S. 461 (1953) actually did not involve a racially exclusionary primary. By the time Terry came around, the Supreme Court had already struck down all-white Democratic Party primary elections that were authorized by statute (Nixon v. Herndon, 273 U.S. 536 (1927)), by act of the state party's executive committee (Nixon v. Condon, 286 U.S. 73 (1932)), and by resolution of the state party membership (Smith v. Allwright, 321 U.S. 649 (1944)). Terry involved the pre-primary candidate nominating process of an all-white political organization in Texas, the home of the earlier cases.

The Jaybird Democratic Association, a large private political club open only to white Texas voters, had for years nominated candidates to run in the Democratic Party primary. For years, those who won the "Jaybird primary" would invariably go on to win the Democratic primary and the general election.

The Supreme Court ruled in Terry that the Jaybird Democratic Association's exclusionary process had become "part of the machinery for choosing officials" and, therefore, required constitutional scrutiny. The Court then struck down the Jaybird primary, finding that it unconstitutionally excluded African-American voters on the basis of their race from "an integral part" of "the elective process that determines who shall rule and govern."

Like that white primary, the wealth primary today is "part of the machinery" for getting elected to public office. It is, like its predecessor, both exclusionary and decisive. Candidates and voters who lack wealth and access to wealth are effectively excluded from the process. And the candidate who, by raising the most money, wins the wealth primary almost invariably wins the election.

That's the American way, some might say. If you have the money or can raise the money, you can spend it on your election campaign. The Supreme Court said as much in its (highly controversial) 1976 decision in Buckley v. Valeo, 424 U.S. 1, when it struck down, on First Amendment grounds, mandatory congressional limits on overall congressional campaign expenditures, on candidates' expenditure of their personal wealth, and on "independent" expenditures.

But the constitutional question posed by the wealth primary is not about the First Amendment rights of the well-financed candidates and wealthy contributors. It is about the equal-protection rights of all candidates and voters who are left behind in the fundraising process because of their lack of money and access to money. The Buckley ruling did not involve and, therefore, did not address this critical question.

Wealth as a Barrier

In Annie Harper's case, the Supreme Court stated for the first time the principle that wealth cannot serve as a barrier to the right to vote. Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966).

Six years after Harper, in Bullock v. Carter, 405 U.S. 134 (1972), the Court again faced the issue of wealth as a barrier in the electoral process and again stated that such a barrier cannot stand. This time, the question concerned a system of high filing fees that the state of Texas required candidates to pay in order to appear on the primary ballot. The fees ranged from $150 to $8900.

The Court invalidated the system on equal protection grounds. It found that, with the high filing fees, "potential office seekers lacking both personal wealth and affluent backers are in every practical sense precluded from seeking the nomination of their chosen party, no matter how qualified they might be and no matter how enthusiastic their popular support."

The "exclusionary character" of the system also violated the constitutional rights of non-affluent voters. "We would ignore reality," the Court stated, "were we not to recognize that this system falls with unequal weight on voters, as well as candidates, according to their economic status."

And just two years ago, the Supreme Court reaffirmed its landmark rulings in Harper and Bullock. In a case striking down a fee barrier to access to the courts, the nation's highest court reiterated: "The basic right to participate in political processes as voters and candidates cannot be limited to those who can pay for a license." M.L.B. v. S.L.J., 519 U.S. 102, 117 S.Ct. 555, 568 (1996).

Judicial intervention is now necessary to address the newest wealth barrier to our democracy. Just as the courts thirty years ago helped change the makeup of congressional and legislative districts so that they comported with the principle of "one person, one vote" (Reynolds v. Sims, 377 U.S. 533 (1964)), so the courts today can and must help change our campaign finance system to protect the rights of all citizens to equal and meaningful participation in the political process.

But, some might ask, if the influence of private money in elections cannot be tolerated, then how are candidates to run? Where does the money come from?

Distribute the Influence

In Bullock v. Carter, the State of Texas argued, among other things, that its system of high candidate filing fees was necessary in order to finance "the cost of conducting the primary elections." The State argued that, if the fees were struck down, "the voters, as taxpayers, will ultimately be burdened with the expense of the primaries."

But Chief Justice Warren Burger, writing for the Court, stated that the primary is part of the democratic process and that "it seems appropriate that a primary system designed to give the voters some influence at the nominating stage should spread the cost among all the voters in an attempt to distribute the influence without regard to wealth." Given the many functions that government pays for, Burger wrote, "it is difficult to single out any of a higher order than the conduct of elections at all levels to bring forth those persons desired by their fellow citizens to govern."

We can take guidance from the Court's ruling in Bullock. If the primary is part of the democratic process, so too is the electoral campaign, including all the fundraising, that leads up to the primary and the general election. We ought, then, "to distribute the influence" in our campaign finance system, ensuring that our elections are financed not by a wealthy elite but by all the people. If our elections are to be truly public, they must be publicly financed.

Challenging Buckley v. Valeo

A system of public financing can be voluntary, so as to comport with the Buckley ruling. Under a voluntary system, participating candidates could receive equal and full amounts of public funding. Candidates who choose to opt out of such a system would, in accordance with Buckley, still be able to engage in unlimited campaign spending, though they would face a real disincentive to choose the private money chase while their publicly-financed opponents are devoting their time to actual campaign work with the voters.

Yet, Buckley ultimately must be revisited. The facts and circumstances of money in politics have dramatically changed since the Buckley ruling. Since Buckley, this nation has witnessed an explosion of campaign spending. The 1996 election cycle marked the most expensive election yet in U.S. history, with congressional and presidential candidates spending a total of more than $2 billion. Campaign spending has also dramatically risen in state and local elections across the country.

This unlimited spending poses a serious threat to our democratic process. It undermines public confidence in our elections and in our democratic institutions. It presents an increased danger of actual corruption as large contributors dominate the financing of public election campaigns. It places enormous time pressures on officeholders running for re-election, interfering with their ability to carry out their governing duties. It enables candidates with wealth or access to wealth to drown out the voices of lesser-funded candidates and their supporters. It violates the promise of political equality.

These changed circumstances now demonstrate the necessity for campaign spending limits to protect the integrity of our electoral process. New facts now require a new review. As the Supreme Court has stated:

In constitutional adjudication as elsewhere in life, changed circumstances may impose new obligations, and the thoughtful part of the Nation could accept each decision to overrule a prior case as a response to the Court's constitutional duty.

Planned Parenthood v. Casey, 505 U.S. 833, 864 (1992).

In the twenty-two years since Buckley, the ruling has generated significant dissent within and outside of the legal community. More than 200 constitutional scholars from across the nation have signed a statement calling for the reversal of Buckley. The attorneys general for 24 states and the secretaries of state or chief election officers for 21 states have gone on record seeking to overturn the ruling. Members of Congress have introduced eleven bills since 1976 which would establish campaign spending limits for federal elections and set the stage for a revisitation of Buckley. Thirty-eight U.S. Senators have supported the call for the reversal of the ruling. And, most recently, the White House and the U.S. Justice Department announced their interest in supporting a test case for revisiting Buckley.

The nation may not need to wait long for a test case which reaches the Supreme Court. In 1997, the State of Vermont enacted campaign spending limits for its state elections, to take effect in the 2000 election cycle along with a comprehensive system of voluntary public funding for candidates running for governor and lieutenant governor. The proponents of the new law plan to mount an aggressive defense to an expected constitutional challenge to be filed following the November 1998 elections.

Since 1974, the City of Albuquerque has maintained limits on campaign expenditures for its local elections, making it the only major city in the country with any experience of campaign spending limits in place. Last year, a mayoral candidate and three campaign contributors filed suit in state court seeking to strike down the limits on Buckley grounds and obtained a preliminary injunction preventing the enforcement of the limits in the October 1997 municipal elections. The city, recognizing the emerging movement for revisiting Buckley, retained the Boston-based National Voting Rights Institute to defend its limits. In August 1998, the plaintiffs withdrew their complaint with the unsuccessful mayoral candidate citing his lack of interest in running for local office again. With the limits back in place, the city, with the Institute, is preparing to defend against an anticipated new lawsuit.

In July 1995, the Supreme Court of Ohio revised its judicial code of ethics to set campaign spending limits for that state's judicial elections. A group of judicial candidates promptly challenged the limits in federal court as violative of the First Amendment, relying on Buckley. The Ohio Attorney General's Office has defended the limits as justified by a new compelling governmental interest in protecting the impartiality of the state judiciary, an interest not presented to, and therefore not addressed by, the Buckley Court. Twenty-two states joined an amicus brief in support of the limits at the appellate court level. The brief, co-authored by the Iowa Attorney General's Office and the Institute, argued that judicial elections are distinguishable from legislative elections, and, in the alternative, that if Buckley is to be applied, the ruling should be reconsidered in light of new facts and circumstances. A three-judge panel of the U.S. Court of Appeals hearing the case, Suster v. Marshall, recently affirmed a district court ruling invalidating the judicial campaign spending limits, holding that, according to Buckley, campaign finance regulation can only be justified by the compelling governmental interest of preventing corruption and the appearance of corruption in the electoral process. The Ohio Attorney General's Office, on behalf of the state supreme court, is preparing to file a petition for review before the U.S. Supreme Court later this year.

The case which has received the most attention, however, in the legal movement challenging Buckley is City of Cincinnati v. Kruse, the first test case since 1976 to address directly the question of the constitutionality of campaign spending limits. In July 1995, following twenty months of study and deliberation, the Cincinnati City Council enacted limits on campaign expenditures in city council elections. The city council set the limits at the level of three times the annual salary for a city councilmember, a level of approximately $140,000. In enacting these limits, the city council recognized the Supreme Court's ruling in Buckley, but found that new facts and circumstances associated with campaign spending in its local elections demonstrated the necessity for spending limits. In March 1996, John R. Kruse, an unsuccessful city council candidate, his political committee, and two financial contributors filed suit in federal district court in Cincinnati, challenging the limits on Buckley grounds. The city retained the National Voting Rights Institute as special counsel to defend the limits.

In September 1998, Cincinnati filed a petition for review before the U.S. Supreme Court, following lower court rulings which held that the limits were unconstitutional under Buckley. For the first time in 22 years, the Supreme Court now has the opportunity to revisit its decision in Buckley in light of new facts and circumstances.

In its landmark ruling in Harper striking down the poll tax barrier, the Supreme Court held that "the Equal Protection Clause is not shackled to the political theory of a particular era...Notions of what constitutes equal treatment for purposes of the Equal Protection Clause do change." The wealth primary barrier and the Buckley ruling may stand today. They cannot stand the test of time.

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