In neighboring New Jersey, the Republican candidate for the U.S. Senate was excluded from a local committee's billboard because the committee feared it might otherwise have legal problems. Another local committee said it could not include the Senate candidate in a mass mailing unless the candidate paid part of the cost. The same candidate had been invited to make television spots for President Ford, to be paid for by the New Jersey GOP. But this plan was droppeȧ because it would have meant an illegal contribution to the Ford campaign. So the Senate candidate lost TV time that would have been far more valuable to him than to the Ford campaign.8

On the Democratic side, a Carter advance man was told by a group of citizens that they were going to run a full-page advertisement for his candidate. The advance man passed the message on to Carter headquarters in Atlanta. But he was told that the ad should not be run-so that the campaign could not be accused of collusion with what was supposed to be independent spending."

The spending limits encouraged Democrats to set up independent, unauthorized committees. A leader of one of those committees, Health Volunteers for Carter-Mondale, said: "I can't use Carter's speeches or press conferences in our literature." He added, "I don't know what the Carter campaign is doing in the health area and I'm scared to find out." 10

It seems that our campaigns have become so pure that campaigners either cannot communicate with the voters or else cannot communicate with each other. It is hard to imagine greater infringements on the rights of free speech and free assembly.

Finally, the act also tends to restrain political speech in its own special area— that is, speech about the election act and the Federal Election Commission. In my talks with others who are subjected to the election act, I find that criticism of the act and of the FEC is stronger and more hostile in private than in public. And I find only two explanations for this fact: (1) People who supported the law when it was passed are reluctant to admit that they were wrong; and (2) some people are afraid of retaliation by the Federal Election Commission. The Commission has life-and-death power over political campaigns at the federal level.

To use one example from my own experience: Two years ago, when I was preparing a statement on the election act for submission to this Committee, my group was involved in a compliance proceeding with the Commission. We were negotiating with them over a "conciliation" agreement. We realized that, if there were no agreement, the FEC would probably sue our committee. We still owed about $175,000 in debts from the 1976 campaign; we could not afford a lawsuit. As I was preparing my statement, it occurred to me once or twice that discretion might be the better part of valor, that it might be wise to tone down strong criticism of the Commission. I decided not to tone it down. And they sued us.

Now, it may be that my statement had no effect whatever on Commission staff. Senator McCarthy testified before this Committee around the same time. It may be that the FEC Commissioners who were waiting to give their testimony, and who heard Senator McCarthy refer to the FEC in uncomplimentary terms, were entirely unaffected by his statement when they voted on whether to sue our committee. But who will ever know?

11

THE LAW DISCRIMINATES AGAINST INSURGENT CANDIDATES AND AGAINST ALL CANDIDATES OUTSIDE OF THE MAJOR PARTIES

The principle of equal protection of the laws is not honored in the election act. The act discriminates against insurgent candidates in at least three major ways: (1) It excludes from the definition of "contribution" the enormous benefits enjoyed by incumbents: presidential and congressional staffs, district offices, departmental and Library of Congress research, taxpayer-supported publicity, and so forth. This is like placing the most-favored horse half a mile down the track before the race begins.

8 "A Candidate (and Former Election Official) Views the Federal Election Law and the FEC," Campaign Practices Reports, November 29, 1976, pp. 9-10. John P. Roche, "Enough of Joyless Campaign Reform," Washington Star, November 6, 1976, p. A-11. 10 Quoted in Walter Pincus, "Independent Committees Aid Carter," Washington Post, October 15, 1976, p. A-4.

11 The McCarthy testimony and the Meehan statement appeared in U.S. Senate, Committee on Rules and Administration, hearings on "Federal Election Reform Proposals of 1977," May, 1977, pp. 387-398 and 912-916. The FEC Commissioners voted to sue the Committee for a Constitutional Presidency about one month later.

(2) By limiting individual contributions to $1,000 per election, the law makes it difficult for anyone running against an incumbent to raise enough money for a serious race. Sometimes it makes it impossible.

(3) By setting the contribution limit for political action committees (PACS) at $5,000, the law again discriminates against insurgents. PACs give money almost exclusively to incumbents and to challengers who have exceptionally good chances of winning. Long-shot challengers must abide by the $1,000 limit on individual contributions while their incumbent opponents pick up much larger PAC donations.

One of the worst features of the election act is that its very existence tempts incumbents to tinker with it in such a way as to increase their advantages over challengers.12 This, I believe, is a far greater danger to our democracy than is monetary corruption. The corruption of money can taint the system; the corruption of power can kill it.

Minority-party candidates are doubly disadvantaged under the election act. Almost all of them are insurgents to begin with. In addition to that, they must run against candidates who are favored-and in some cases subsidized-by the law.

Independent candidates are triply disadvantaged by the election act. The proparty bias of the act is strong, and seems to become stronger each time the act is amended.

The Democratic and Republican parties are, of course, the major beneficiaries. Their conventions are subsidized, and their presidential candidates are subsidized.

While an individual may contribute only $1,000 per election to a federal candidate, s/he may contribute as much as $20,000 to a political party's national committee. When our committee, supporting an independent candidate for President in 1976, requested that the FEC treat it as a national party committee for purposes of the election act, the FEC commissioners deadlocked and thus failed to answer our request for an advisory opinion. The three Democratic Commissioners all voted against us. (This was during the period when the Democratic Party was engaged in a strenuous and ultimately successful effort to throw our candidate off the ballot in New York.) Since the Commissioners failed to meet their legal responsibility to respond to our request, we were left to our own interpretation of the law. We followed it. And in February of 1978, the FEC told us that it had found "reason to believe" that we may have violated the law by accepting over $1,000 per election from one individual. Over one year later, it is still considering the matter. This is the kind of justice an independent campaign receives from the Federal Election Commission.13

When then-Democratic Party chairman Robert Strauss and various Members of Congress were worried about possible prosecution for accepting illegal contributions, the statute of limitations was shortened to accommodate them.14 When the Republicans wanted to solicit corporate donations to help pay for their national headquarters, the law was amended so they could do so.15

When the Democrats and Republicans wanted debates between their presidential candidates in 1976, the Federal Election Commission interpreted the law to allow the League of Women Voters Education Fund to spend huge sums for the debates without counting the money as contributions to the Republican and Democratic candidates. More recently, the FEC proposed regulations allowing corporations and labor unions to contribute funds for candidate debates provided that the debates are sponsored by groups like the League. At this writing,

16

12 For example, the effort of House Democrats to cripple the Republican fundraising effort for House races in 1978. See Washington Star, March 8, 10, 16, 19, 20, and 22, 1978; and Washington Post, March 10, 19, and 22, 1978.

13 U.S. Federal Election Commission, Minutes for Thursday, October 14, 1976, pp. 4-5. Court battles over McCarthy's ballot status in New York were reported in the New York Times, October 9, 27, and 28, 1976; New York Post, October 22 and 28, 1976; Washington Post, October 30, 1976.

14 Richard L. Rashke and David H. Rothman, "How Congress Saves Its Own," The Nation, January 24, 1976. pp. 77-79; Robert Shogan, "Strauss Admits Possible Slip," Washington Post, January 10, 1975, p. A-3: "Strauss Case Held Unlikely Due to Time." Washington Post, April 26, 1975, p. A-2; "Strauss Prosecution to Be Dropped," Washington Post, June 14, 1975, p. A-2.

15 "Corporations Help Pay for GOP Headquarters," Congressional Quarterly Weekly Report. June 24 1978, n. 1612.

18 U.S. Federal Election Commission, Commission Memo No. 828, August 30, 1976, with attached "Policy Statement, Presidential Debates"; Federal Election Commission Record, March, 1978, p. 1; Federal Register, July 5, 1979, pp. 39348-39351.

neither House of Congress has disapproved the regulations, and the regulations are about to take effect. Perhaps 1980 presidential debates will be brought to us courtesy of Mobil Oil and the maritime unions.

Earlier this year, when submitting its legislative recommendations to Congress, the FEC declared, "Political parties have a central role to play in the political system. Campaign finance legislation must be carefully drafted to bolster the role of political parties in campaign financing . . ." Although it offered no rationale, constitutional or other, for this broad statement, the Commission went on to recommend allowing party committees to spend more money. It did not suggest that non-party committees be allowed to spend more.

18

17

All of this bolstering of political parties discriminates against independent candidates and against the approximately one-third of American voters who consider themselves independents. Propping up the parties also goes against the general spirit of the Constitution and against the letter of it in the Fourteenth Amendment, which guarantees "equal protection of the laws."

Those who quote the Federalist Papers and other writings of the Founding Fathers as opposing "splinter parties" or a multi-party system miss the point entirely. The men who wrote the Declaration of Independence and the Constitution were against all parties. They were non-party men, anti-party men; they were independents. Thus on October 2, 1780, John Adams, writing to a friend about the new constitution for Massachusetts, said, "There is nothing which I dread so much as a division of the republic into two great parties, each arranged under its leader, and concerting measures in opposition to each other. This, in my humble apprehension, is to be dreaded as the greatest political evil under our Constitution." 19 And on September 19, 1796, in his Farewell Address, George Washington declared, "I have already intimated to you the danger of parties in the State, with particular reference to the founding of them on geographical discriminations. Let me now take a more comprehensive view, and warn you in the most solemn manner against the baneful effects of the spirit of party, generally. . . . the common and continual mischiefs of the spirit of party are sufficient to make it the interest and the duty of a wise people to discourage and restrain it." 20

THE LAW'S COMPLIANCE PROCEDURES INFRINGE UPON THE DUE PROCESS GUARANTEES The operations of the Federal Election Commission demonstrate the dangers of combining legislative, executive, and judicial powers in one agency. The FEC serves not only as lawmaker and administrator, but also as judge, jury, and executioner. Some of us who have endured FEC compliance or "conciliation" procedures have felt like victims of a Lewis Carroll creature called Fury:

"I'll be judge,"

I'll be jury,"

Said cunning old Fury:

"I'll try the whole cause,

and condemn you to death." "1

Or like the King's Messenger, who is "in prison now, being punished; and the trial doesn't even begin till next Wednesday; and, of course, the crime comes last of all." Alice asked, "Suppose he never commits the crime?" And the Queen replied, "That would be all the better, wouldn't it?" 22

By passing an election law which is so complex and so broad in scope, Congress has given the FEC enormous power. Because so many technical violations of the law are possible-and almost inevitable for all but the best-financed campaigns-the FEC has enormous power over every federal campaign in the country. The law is virtually impossible for most campaigns to comply with in every respect, so nearly everyone is "guilty" of technical violations. This ensures a constant flow of FEC form letters demanding amended reports within

17 U.S. Federal Election Commission, Agenda Document No. 79-25, January 29, 1979, pp. 16-17. 18 Gallup Opinion Index, December, 1977, p. 30. Of those willing to label themselves, far more considered themselves independents (31 percent) than Republicans (20 percent). 19 John Adams, The Works of John Adams (Boston, 1854), vol. 9, p. 511.

20 George Washington, The Writings of George Washington (Washington, 1940), vol. 35, pp. 226-227.

21 Lewis Carroll, Alice in Wonderland and Through the Looking Glass (Kingsport, TN, 1946), p. 28.

22 Ibid., p. 218.

10 days. When reports are not quickly amended, a campaign treasurer receives a follow-up letter saying that the FEC has found “reason to believe" that the campaign may be in violation of the law. A lawsuit is threatened. The result of all this is to create a climate of fear for campaign treasurers. They operate always with the thought that the Feds are looking over their shoulders and may, at any moment, demand more information on any aspect of their campaigns or charge them with violations. And this, I submit, is an outrage. If it goes on for many more years, candidates—even incumbents—will be lucky to find campaign treasurers anywhere.

Many treasurers have to go through investigation and compliance procedures. Although the FEC lawyers are not required to apprise a respondent of the fact, anything he says during an investigation may be used against him if the Commission decides to sue him or to turn the case over to the Justice Department for possible prosecution. During the investigation, the respondent has no right to confront his accusers, to compel production of evidence in his own behalf, or even to present his case directly to the FEC commissioners who will decide it. The respondent and his lawyer-if his campaign can afford to pay a lawyer or can find a volunteer-deal only with FEC staff members. Both facts and legal theories are presented to the FEC commissioners in a General Counsel's report which the respondent and his lawyer do not see beforehand. They have no opportunity to question either its conclusions of fact or its conclusions of law.

The possibility of a "conciliation" agreement is the carrot for respondents. The threat of a lawsuit is the stick. Since many respondents cannot afford a court case, and since some cannot even afford to have a lawyer for the compliance proceeding, they tend to accept whatever the FEC offers by way of “conciliation" agreements. I put the word "conciliation" in quotes because most of the agreements I have read have nothing to do with genuine conciliation, which means "overcoming distrust or hostility" or "winning someone over." Rather, the agreements have to do with closing files on terms that make the FEC's enforcement record look impressive.

The FEC usually insists upon an admission by the respondent that he has violated the law, and often insists on a civil penalty. Many agreements do not even guarantee the respondent that there will be no further action against him. An incumbent member of Congress, in the unlikely event that he is involved in a serious compliance proceeding at all, may obtain better terms from the FEC. Thus an agreement with Senator James Sasser of Tennessee includes this paragraph: "It is understood that this Agreement does not constitute an admission that Senator Sasser or any employee or advisor of the Campaign Committee violated any provision of FECA. This conciliation agreement, unless violated, shall constitute a complete bar to any further action by the Commission with regard to the matters set forth in this Agreement.'

99 23

Because financial pressures and fear of adverse publicity lead many respondents to reach "conciliation" agreements, relatively few issues involving the FEC are brought to court. The FEC regularly pushes up to, and sometimes beyond, the limits of its authority. It makes strange interpretations of the election act. Yet, thanks to the compliance procedure set forth in the election act, the FEC is rarely challenged in court. This is ironic because, when it is seriously challenged on enforcement actions, it often loses. Since early March of this year, the Reagan committee, our committee, and the American Federation of State, County and Municipal Employees have defeated the FEC in enforcement cases.24

Many candidates and political committees use the complaint/compliance procedure to harass their opposition. Quite apart from the merits of a case and often there are no merits-there are two advantages in filing a complaint against a campaign or ideological opponent. First, release of the complaint to the press ensures bad publicity for the opposition. Second, a lengthy investigation and compliance proceeding can cost the opposition a great deal of time and money. And if the proceeding begins just before an election, it can throw the opposition off balance at a crucial time.

Tom Hayden's campaign filed a complaint against John Tunney's campaignand vice-versa. Ronald Reagan's campaign filed a complaint against Gerald

23 U.S. Federal Election Commission, Matter Under Review File, MUR 216 (76), "Conciliation Agreement, p. 6.

24 U.S. Federal Election Commission Record, May, 1979, p. 2, and June, 1979, p. 6; FEC V. AFSCME, U.S.D.C., District of Columbia, Č.A. No. 78-2114, Opinion and Order, May 15, 1979.

Ford. The National Abortion Rights Action League filed a complaint against antiabortion candidate Ellen McCormack. The National Right to Work Committee filed complaints against nearly every labor group and pro-labor candidate in sight. The National Committee for an Effective Congress filed complaints against an affiliate of the National Right to Work Committee, against conservative fundraiser Richard Viguerie, and, more recently, against the Bush, Connally and Reagan campaigns.

25

There are at least four things wrong with this. First, it is wrong in principle to encourage political use of what is supposed to be a system of justice. Vigilante activity and bounty-hunting are supposed to be part of our past-not our present. Second, many innocent people are hurt. They are forced to endure lengthy and often expensive investigations of actions that are in no way immoral, actions that have nothing whatever to do with corruption. Third, use of complaints to harass the opposition is a major distraction from the issues. People on all sides of an issue should be responding to each other's arguments-not harassing each other with complaints or trying to prevent each other from organizing politically. Fourth, it demeans the political process to reduce it to a childish game for tattle-tales. The political arena is beginning to resemble a national kindergarten. In summary, the Federal Election Campaign Act restrains free speech, discriminates against individuals and groups, and denies due process. It also has another major drawback. It does not do what it is supposed to do. A few examples follow.

THE LAW DOES NOT PREVENT CORRUPTION AND DOES NOT REDUCE SPECIAL-INTEREST

INFLUENCE

The matching-fund subsidies provided by the law actually encourage a new kind of corruption: giving money in someone else's name in order to make a candidate eligible for more matching funds. This was done on a large scale in the Milton Shapp campaign. There have been five criminal convictions connected with the Shapp case." The same type of fraud may have been practiced on a smaller scale for other presidential campaigns; but the Federal Election Commission has shown little zeal in checking allegations to this effect." It did, however, investigate the case of a little-known presidential candidate, a taxi cab driver who submitted for matching funds many contributions which had not been made at all. The case was turned over to the Justice Department. The candidate was indicted for fraud, convicted, and is now serving a two-year sentence in federal prison."

28

Those who think that public funding eliminated special-interest influence at the presidential level should look closely at the cargo preference bill and the Carter administration's support for that bill." And they should look to the "merchandising of access" by the Democratic National Committee.90

Those who think that campaign contributions no longer have anything to do with selection of ambassadors should look to the case of Anne Cox Chambers. Mrs. Chambers and her husband contributed approximately $52,000 to Democratic party candidates and committees from 1973-1977. President Carter named Mrs. Chambers Ambassador to Belgium. Mr. Milton A. Wolf and his family contributed over $49,000 to Democratic candidates from 1974 through 1976. President Carter appointed Mr. Wolf Ambassador to Austria.32 Mr. Marvin L. Warner and

31

25 U.S. Federal Election Commission, Matters Under Review Files, MUR 065 (75) and MUR 149 (76); MUR 105 (76); MUR 085 (76); MUR 354 (76), MUR 783 (78) through 803 (78), MUR 821 (78) through 844 (78), and MUR 861 (78) through 881 (78); MUR 290 (76), MUR 303 (76) and Fred Barbash, "Fund Violations Laid to Reagan, Connally, Bush Campaigns." Washington Post, April 20, 1979, p. A-4.

26 "Shapp Fund-Raising Couple Plead Guilty," Harrisburg Patriot, January 6, 1979; "Shapp Campaign Fund Pair Fined," Harrisburg Patriot, February 3, 1979; and telephone conversation of the writer with Mr. Craig Donsanto, Public Integrity Section, Criminal Division, U.S. Department of Justice, June 13, 1979.

27 U.S. Federal Election Commission, Matter Under Review Files, MUR 126 (76) and MUR 130 (76).

28 U.S. Department of Justice, Press Release, September 2, 1976; and writer's telephone conversation with Mr. Craig Donsanto, Public Integrity Section, Criminal Division, U.S. Department of Justice, June 13, 1979.

29 Albert Karr. "U.S. Oil Tankers to Get Assurance of Import Share," Wall Street Journal, July 7. 1977, p. 2; George Lardner, Jr., "GOP Leaders Assail Carter on Cargo-Preference Stand." Washington Post, August 2, 1977, pp. A-1 and A-10.

30 Ward Sinclair, "Merchandising Access," Washington Post, March 12, 1979, pp. A-1 and A-4.

31 Congressional Record, April 27, 1977. p. S 6476.

32 Ibid., June 21, 1977, pp. S 10315-10316.