Good-government proponents cheered the Senate's recent passage of the biggest piece of campaign finance reform legislation in years, what eventually became known as the McCain-Feingold-Cochran bill. Missing amid all the debates over soft money and hard, issue ads and PACs, has been any serious consideration of what effect campaign finance laws have on political participation. Surely if campaign finance law has a good purpose, it would make it easier for regular citizens to make a difference in politics.
Yet by imposing complicated and expensive compliance procedures campaign finance laws can harshly limit—and even severely punish–citizen participation. Consider the fate of two Californians, Russ Howard and Steve Cicero. They were officers with a grassroots political action group called Californians Against Corruption (CAC). Their organization ran a recall campaign in 1994 against state Sen. David Roberti. (Roberti won.) CAC was upset with Roberti for his role in an assault weapon ban, his spending habits, and his alleged links with corrupt politicians.
Roberti had been senate president pro tem for 13 years and was one of the most powerful men in California politics. Understandably, many Californians might have been hesitant to publicly declare themselves his enemy by funding his recall. Yet California's campaign finance law requires that political campaigns collect the names, addresses, occupations, and employers of all donors who give more than $100. Campaigns must file that information with the government, which then makes it a matter of public record.
Russ Howard always thought that it might be bad for his donors to report such information, especially since CAC's offices had been broken into and their telephone lines cut. Various officers and members of CAC have sworn in legal documents that they received threatening calls and letters. In addition to Howard's reticence to supply the information, in many cases, donors simply didn't tell CAC their employer or occupation when they sent in their checks.
Howard and Cicero were running a grassroots campaign. They didn't have the professional accountants, lawyers, and software that campaign finance laws make necessary for any political action. As even good-government guru Ralph Nader recently complained, campaign finance law is "very strict and very complicated." Merely renting the necessary software to comply with it cost his presidential campaign $5,000 a month. Making political campaigns prohibitively expensive and complicated is no way to increase citizen participation.
Howard and Cicero learned just how expensive political participation can get. California's Fair Political Practices Commission hit both men with the largest fine it has ever levied: $808,000, for a campaign that spent only $103,091. This seems on its face a grotesque violation of the Eighth Amendment's admonition against "excessive fines," especially when you consider that CAC later made available to the FPPC copies of all the checks they received.
Certainly, the fine is absurdly out of balance with any possible harm CAC's sloppy, late, or incomplete paperwork filings could be thought to have caused. For some perspective, consider that Sen. Dianne Feinstein (D-Calif.), in her unsuccessful 1990 gubernatorial bid, failed to disclose expenditures of $3.5 million and contributions of $815,000. She was fined only $190,000.
Given Roberti's popularity and pull in California politics, the disproportionate and historically huge fine seems like a punitive political hit. Of course, there is no smoking gun. The FPPC was only following procedure, as harshly as it possibly could. The maximum fine for any one violation is $2,000. So the FPPC chose to count not reporting occupations for 93 donors as 93 separate violations, failure to provide employer information for 91 donors as 91 separate violations, and so on, to reach its unprecedented fine. The FPPC explicitly stated as an aggravating factor that Howard told a newspaper reporter that "the little guy can't participate [in politics] without running afoul of technical violations." In essence, the FPPC punished him in part for not agreeing with campaign finance law.
The fine was originally levied in October 1995. This January, a California Superior Court judge declared for summary judgement in favor of FPPC. Howard and Cicero must now pay the fine, which is far more money than they could ever come up with, without benefit of a trial.
Anyone who believes there is too much political influence by wealthy interests and not enough by citizens should think about the fate of Howard and Cicero and ask themselves: Can there be anything good about laws that take away everything a citizen has merely because he didn't file paperwork on time with the government? Should choosing to participate in grassroots political activism leave you open to complete ruin?
Howard and Cicero thought that in America if you wanted to get involved in politics, you were free to get involved. They didn't realize that you would have to satisfy a complicated and picayune set of government paperwork requirements at risk of your entire future to do so. Contra the supporters of McCain-Feingold-Cochran bill, "strengthening" campaign finance law, which inevitably means more technical hoops to jump through and more hurdles to trip on, will only make matters worse.