Bill Clinton responded to the campaign finance scandals that followed his 1996 reelection campaign with the resourcefulness for which he had by that time become renowned. First, he categorically denied wrongdoing. Then he asserted that if he had made mistakes, Republicans had done so first. Finally he proclaimed that whatever he had done was for the good of the country.
Sensing that he had not been entirely persuasive in these assertions, Clinton resorted to the favorite stratagem of presidents in need of political cover: the announcement of a bipartisan commission.
In March 1997 Clinton announced that former Vice President Walter Mondale would co-chair (with Republican former Senator Nancy Kassebaum Baker) an independent commission to promote campaign finance reform. To outward appearances, Mondale possessed little more to qualify him for the job than the status of an elder statesman.
Mondale, however, was in fact an expert analyst of campaign finance laws. His study of campaign finance laws predates his days as a practicing politician and extends nearly 50 years into the past.
As a third-year law student at the University of Minnesota Law School, Mondale wrote an extensive analysis of Minnesota's then-current campaign finance law, the Minnesota Corrupt Practices Act. Mondale's analysis was published as an anonymous note in the January 1956 issue of the Minnesota Law Review.
Mondale has never concealed his authorship of the note, though to our knowledge no one other than us has ever written about it before. Mondale donated an autographed copy for auction at a University of Minnesota Law School student fundraiser in 1979. I own the autographed copy. It is full of astute observations that belie the regime of highly regulated campaign finance that has become the law of the land with Mondale's support.
In his student note, Mondale first observed that the two key features of Minnesota's campaign finance statute were a fixed amount on the total expenditures that could be made by or on behalf of a candidate during primary and general elections, and public disclosure of contributions and expenditures before and after each primary and general election campaign. Mondale criticized arbitrary financial limitations on campaign expenditures while supporting disclosure requirements.
Mondale criticized certain reasons advanced for limiting campaign expenditures. He challenged the notion, for example, that limitations encouraged men of limited means to become candidates. Mondale in any event argued that there was general agreement that the Minnesota campaign finance statute had been ineffectual.
Such statutes, according to Mondale, either resulted in feeble campaigns or evasion of the law, mostly through the establishment of purportedly independent committees that had frustrated public disclosure regulations. As a result, Mondale noted, many scholars had urged reform to achieve effective limits on campaign spending.
Mondale believed that, to be effective, such reform would require both expenditure limits set at a reasonable level and the centralization of authority for all expenditures in a candidate's behalf in the candidate or his party. Mondale supported neither.
Mondale observed that no scientific criteria existed to determine what was a reasonable ceiling on expenditures: "If set too high, limits serve no purpose; and if too low, candidates will attempt to avoid the law. If the law is sufficiently pervasive so that such avoidance is prevented, limits set at too low a level will prevent the electoral from becoming adequately informed, and such limits may be invalidated as a violation of free speech." You see, liberals used to care about such things.
Moreover, Mondale argued, expenditure limits were inherently arbitrary in light of advantages one candidate might have over another by virtue of incumbency and media or party support. He noted that fixed campaign expenditure limits would constantly lag behind increasing campaign costs (remember: this was published in 1956) and would not be responsive to circumstances of particular campaigns.
In the analysis of Walter Mondale's anonymous 1956 University of Minnesota Law Review student note, the second requirement of effective campaign finance reform that included expenditure limitations was the centralization of authority in the candidate for all sums spent in the candidate's behalf. Mondale expressed concern that vesting a candidate with authority to limit the speech of his supporters might be inconsistent with the First Amendment. (Recall again that this was a time when liberals cared about such things.)
Further, even if a statute narrowly tailored to prohibit independent expenditures in behalf of a particular candidate passed constitutional muster, it was "improbable that legislation could be drawn which prevented circuitous avoidance of established limits." Interest groups could aid the candidate by making expenditures advocating the policies he favored; independent groups could be established for the same purpose; and unions could make large expenditures advising members of the dangers or advantages of particular candidates.
In short, Mondale concluded, reform efforts geared to controlling expenditures seemed "inadvisable because of the improbability that reasonable limits could be determined or maintained, or that legislation could be drawn that could not be [evaded]." Mondale therefore urged that removal of expenditure limits be considered and that primary emphasis be given to public disclosure of campaign financing.
The present system of federal campaign finance law dates to 1974, when Congress enacted reform legislation that included a complex set of expenditure and contribution limitations as well as reporting and disclosure requirements. The Supreme Court struck down the expenditure limitations as unconstitutional infringements of free speech rights and generally upheld the remaining provisions.
The surviving contribution limitations--limitations exacerbated by the Bipartisan Campaign Reform Act of 2002--raise in one form or another all the problems Mondale diagnosed with respect to expenditure limitations. In the 1997 White House ceremony announcing the formation of his commission, Mondale referred to "the nightmare of the present campaign finance system." Unfortunately, neither he nor his liberal allies ever drew the connection between that nightmare and the earlier dream of reform.
The Mondale of 1956 understood that political speech was at the core of the protection afforded by the First Amendment and that a system of financial limitations on political speech was necessarily arbitrary if not destructive. The current liberal orthodoxy was best articulated by Richard Gephardt, who famously contended that "[w]hat we have is two important values in direct conflict: freedom of speech and our desire for healthy campaigns in a healthy democracy. You can't have both." As a precocious law student nearly 50 years ago, Walter Mondale persuasively rejected this utterly vapid contention that has become the law of the land with a vengeance.