For Immediate Release February 5, 1997

Amendment 15 Is Bad Campaign Medicine

by Shawn Mitchell

Colorado voters couldn’t have known. In 1997, the U.S. Supreme Court ruled there is a constitutional right to campaign anonymously. In so doing, the Court struck down a state law requiring campaign leaflets to include a disclaimer that identifies the literature’s sponsor. Less than two years later, the sponsors of Amendment 15, a measure to regulate campaign finance, sold to Colorado a law that requires, among other things, persons making independent campaign expenditures to include a disclaimer much more extensive than the requirements already invalidated by the Supreme Court.

It is the sort of aggressive regulation that pervades Amendment 15. The law sets up a complex scheme that attempts to choreograph the world of campaigns, fund raising, contributions, and political speech. There are regulations and limits on what individuals can give to candidates, what individuals can give to parties, what parties can give to candidates, etc., ad infinitum, ad nauseam.

Some of the provisions, like the required disclosures for independent expenditures, are blatantly unconstitutional.

Even the core concept of Fifteen, tight limits on contributions to candidates, is suspect. Advocates of Fifteen argue that the Supreme Court has upheld contribution limits already, so Fifteen is OK. But the advocates overlook a few important points. In the 1974 case of Buckley v. Valeo, a very divided Supreme Court upheld limitations on contributions to federal candidates. The Court, however, was clearly troubled by restrictions on political speech and the case produced five separate dissenting opinions. The Court decided that limits that were too low would unconstitutionally interfere with speech, but somehow concluded that the limits before it, $1,000 for most federal offices, didn’t cross the line.

Amendment 15, however, limits contributions to Colorado legislative races at $100, or one tenth of the level the Court uncomfortably accepted in the Buckley case. Factor in the eroding effects of inflation, which gives a 1974 dollar about 20 cents of purchasing power today, and the limits imposed by Fifteen are just 1/50^th, or 2% of the level of the limits upheld in Buckley. Put differently, in 1997 dollars, the controversial Buckley limits were $5,000 compared to $100 under Amendment 15. One apologist for Fifteen claims the disparity is justified because state races are usually smaller and less expensive than federal races. But he missed the logical conclusion of his own argument. State legislative races already have limits based on their scale: 100 Colorado legislative seats individually have a much smaller pool of willing contributors than the state’s two senate seats or six congressional districts.

But more is at stake here than just bean-counting and "technical" constitutional violations. Strict limits on candidates contributions are simply a bad idea with bad consequences, quite apart from the warm feeling produced by sticking it to politicians. These consequences flow from a few inexorable realities, such as the law of supply and demand and the fact that politics is competitive and candidates want to win. By making any important resource, in this case money, more scarce, campaign regulations actually increase its importance to politicians. Still wanting to win, and hampered by tighter limits, politicians become full-time fundraisers, often at the expense of their constituents and good public policy. They spend hours on the telephone every day; they build, horde, and cherish contributor lists and direct mail plans.

Limits also give a huge advantage to incumbents at the expense of challengers. Incumbents can rely on greater name ID and the fund-raising advantage inherent in holding office to overwhelm lesser known challengers, whose only hope is to raise enough money to level the playing field. Fifteen throttles that hope.

Many federal office holders, living under limits much less stringent than Fifteen’s, arrange virtually all their affairs around fund raising. They develop ever more clever methods. Sometimes, probably more often than the public realizes, they cross ethical and legal lines, an example being the most recent scandals coming from the White House and the Democratic National Committee. While Americans are rightly concerned about such unseemly behavior, the logical response to violations of current law is not necessarily the one trumpeted by the national media—to impose new, stricter limits. (Though one muse admire the President’s sheer brass for proposing such laws in his current situation, something akin to a highway speeder arguing to a cop that what we really need are lower speed limits.)

The Federal experience with contribution limits has not been promising. Many of its premises are constitutionally dicey. The facts just didn’t come out in the remarkably quiet campaign over Amendment 15.

Shawn Mitchell is a Senior Fellow at the Independence Institute, a free-market think-tank located in Golden, Colorado

This article, from the Independence Institute staff, fellows and research network, is offered for your use at no charge. Independence Feature Syndicate articles are published for educational purposes only, and the authors speak for themselves. Nothing written here is to be construed as necessarily representing the views of the Independence Institute or as an attempt to influence any election or legislative action.
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