The tripling of the hard money individual contribution limits in the Hagel bill means: • The amount an individual could give to a federal candidate would increase from $1,000 per election to $3,000 per election, or a total of $6,000 for a primary and general election combined. • The amount an individual could give to a national party committee would increase from $20,000 per year to $60,000 per year (Each national party has three separate committees for the House, the Senate and the National Committee.) • The overall aggregate amount that an individual could give to all federal candidates and parties in a given year would increase from $25,000 to $75,000, or $150,000 per election cycle. A couple could contribute $150,000 per year or $300,000 per election cycle year. An individual could contribute $60,000 per year in soft money and an aggregate total of $75,000 per year in hard money for a combined total of $135,000 per year, or $270,000 per election cycle. A couple could give $270,000 per year or $540,000 in combined hard and soft money in an election cycle. • On top of all this, individuals, PACs, corporations and labor unions would remain free to give unlimited soft money contributions that were raised by federal officeholders and candidates and sent directly to state parties to be spent on "issue ads" and other activities promoting their federal candidacies and attacking their opponents. This does not constitute campaign finance reform. APPENDIX 4. THE WALL STREET JOURNAL THURSDAY, MARCH 16, 2000 Sen. Chuck Hagel is one of the genu- A decorated Vietnam veteran, the Ne- But he's also unwittingly being used to A Reform Dog That Won't Hunt used for federal elections. There would be no crackdown on fed- Labor unions and corporations would Sen. Hagel cites some pluses, like Politics & People of so-called "independent expenditures" to The aim is to get Mr. Bush and GOP sena- In the unlikely event the Arizonan capit- •The soft-money scam could continue un- help their friend Mr. Bush in the New York The superficial attractiveness of this The amount of hard money an individ- But it also triples what individuals can That's excessive. But the worse prob- two election cycles the two national par- While blocking efforts to change this But his opponent is uniquely ill-suited A27. to take advantage. Mr. Bush not only op- Jälle This is the scene Mr. McCain faces This isn't out of kindness. It's outf Mr. Hagel candidly admits his measure APPENDIX 5. Questions from Chairman McConnell for Professor BeVier 1. Do you have concerns about using the strong egalitarian principles that undergird voting rights principles, such as one person one vote, as the basis for First Amendment jurisprudence? If so, please explain? Answer: Yes, I have such concerns. The First Amendment is about political competition, not about political equality. The idea of the First Amendment as a guarantee of "equal political influence" is an oxymoron in a democracy, which is based after all on the principle that when all the votes are counted one candidate will have more votes, and that candidate will be the winner. By definition, the whole point of competition for votes is that it is an effort to win political power through winning in the competition of ideas by engaging in effective persuasive, political speech. The First Amendment presumes that all ideas about how we ought to be governed and by whom are entitled to the champions they can attract by virtue of their own merits. That is why citizens have First Amendment rights to express and communicate their ideas. But the First Amendment does not say that all ideas are entitled to have equal influence, which is what reading the First Amendment as a guarantee of politcal equality would mean. Moreover, even if one were to accept the notion, which I emphatically reject, that the First Amendment is a guarantee of political equality, one would not be able to find an appropriate constitutional criterion by which to judge whether the ideal had been obtained. There is no "constitutional goldilocks" by which to determine whether the amount of political power or influence possessed by any individual, or any association of individuals is “just right," so that we could say with confidence that we had come close to obtaining an appropriate amount of political equality. 2. As you know, Mr. Morrison of Public Citizen has advocated a soft money ban tied to public funding of political conventions and the campaigns of presidential candidates. Specifically, Mr. Morrison has argued that it would be constitutional to condition a nominee's receipt of public funds and a party's receipt of convention funds on a party's decision to give up its constitutional right to raise soft money. I know that you touched on this question during the hearing. Would you expound on your views as to whether the Court would uphold a law requiring a political party to forego its First Amendment right to raise soft money in ex 65-013-00-6 change for a presidential candidate being able to receive public funds? Answer: On reflection, I have become convinced that the Court is very unlikely to uphold such a law. Waiver of First Amendment rights is always a problematic legislative strategy, and even though the Court has sustained waivers in a few cases it has always been wary of them. Even more importantly, however, the Court has never sustained a waiver of another person's or entity's rights in exchange for benefits of funding received for oneself. Nor do I think it would do so. It would be one thing for the Court to permit me to decide that the bargain the state was offering me in exchange for my relinquishing my own First Amendment rights was sufficiently rich, and that I had sufficient options about whether to accept it that my decision to do so could not be said to have been inappropriately coerced. It would be quite another thing for the Court to permit me to bargain away somebody else's First Amendment rights: they ought not to be thought mine to sell if only because I would have a systematic incentive to undervalue them and to overvalue the governmental benefits I would be receiving in exchange. Questions from Chairman McConnell for Dean Sullivan 1. In your testimony, after debunking the notion that our polity is terribly corrupt, you framed the real concern of reform advocates as concern about unequal influence as between large contributors and those who are not. Do you believe that it is consistent with First Amendment values and jurisprudence to limit the speech of some citizens to promote the influence of others? Or is it contrary to the First Amendment to limit speech in an effort to empower the government to be arbiter of who has too much influence or persuasive power on public issues? Answer: In our free speech jurisprudence, speech may not be limited because of its content or likelihood of influencing an audience. Nor may one person's speech be limited because another person's speech is thought more worthy of being heard. Thus limiting speech in an effort to decrease the speaking power of some and enhance the speaking power of others is presumptively unconstitutional. To be sure, all markets, including markets for speech, may be regulated through content-neutral economic laws-for example, newspapers and software companies are subject, like any other company, to labor laws and antitrust laws. But campaign finance laws premised on equalizing speaking power are not similarly content-neutral; rather, they aim to prevent speech because of its anticipated effect on listeners, and that the First Amendment does not generally allow. 2. Do you have concerns about using the strong egalitarian principles that undergird voting rights principles, such as one person one vote, as the basis for First Amendment jurisprudence? If so, please explain? Answer: Yes. Our system requires a balance between equality and liberty. One person one vote properly ensures equality in the ultimate democratic forum of the voting booth. But freedom of speech cannot be equalized in a similar fashion. Not every speaker is equally articulate or persuasive. And in a system of predominantly private media_ownership, not everyone can have an equally prominent voice. Trying to equalize speaking power will tend to be futile even if it were permissible: any effort to shut down one "loophole" for speech will beget another form of speech, as we have seen with the shifts from campaign contributions to so-called "soft money" and independent issue ads that have been the unintended consequences of campaign finance reform itself. 3. As you know, Mr. Morrison of Public Citizen has advocated a soft money ban tied to public funding of political conventions and the campaigns of presidential candidates. Specifically, Mr. Morrison has argued that it would be constitutional to condition a nominee's receipt of public funds and a party's receipt of convention funds on a party's decision to give up its constitutional right to raise soft money. I know that you touched on this question during the hearing. Would you expound on your views as to whether the Court would uphold a law requiring a political party to forego its First Amendment right to raise soft money in exchange for a presidential candidate being able to receive public funds? Answer: The proposal to condition public funds to a presidential candidate upon his party's decision to forego private fundraising for general party activities at a minimum raises a serious First Amendment question. It is true that in Buckley v. Valeo, the Supreme Court upheld against First Amendment challenge the federal law that requires a candidate who receives public funds to forego private fundraising. But it does not necessarily follow that the tail of public funding to a candidate may wag the dog of a party's entire associational activity. The Supreme Court has held that the government may earmark public funds for those activities it favors, such as entirely publicly funded candidate campaigns. But this proposal goes beyond earmarking; it conditions funds for a particular campaign on a party's foregoing private fundraising for party activites apart from that campaign. The Supreme Court has generally invalidated such nongermane conditions on funding when they would be unconstitutional outside the funding context. For example, it has held that the government may deny funds to abortion but not food stamps on account of an abortion. Government may |