to prevent discriminatory broadcasting. Although the fairness doctrine and public scrutiny might have protected presidential candidates from unfair treatment, it was believed that complete repeal of the equal time provision would prove unwise. Such an action would place enormous power over the conduct of American political campaigns in the hands of the broadcasting industry. With no guidelines other than "fairness," broadcasters would have considerable discretion to determine which candidates were major and which minor, and how to apportion free time among them. Since broadcasting, as a government regudated industry has an interest in the results of any election, a serious potential for abuse of this discretion does exist. To compound this problem, it would be nearly impossible to police 468 separate House and Senate races in a typical election year. The multitude of candidates and offices, the relatively low visibility of the races, and the necessity of resolving any complaints before the election renders them moot would overwhelm the resources of the FCC."

66

A partial repeal of section 315(a), applying only to presidential and vice presidential contests would serve a salutory purpose. In this form, the repeal would encourage debates between presidential candidates and could result in significant amounts of free time being made available for their discretionary use. The cost of campaign television would be reduced significantly, and the public would benefit from increased exposure to, and confrontation among, candidates. Enforcement of the fairness doctrine in this situation would appear more feasible due to the small number of candidates and the high visibility of the presidential campaign. A well-drafted provision could spell out safeguards to protect significant third and fourth party candidates. A limited repeal of this nature would be a significant improvement in the law and could operate effectively within the framework of the Campaign Communications Reform Act.

CONTRIBUTION LIMITATIONS

One of the least effective and most unrealistic provisions of federal elections law has been the limitation on individual contributions.58 Unreasonably low contribution limits, coupled with conspicous nonenforcement, has turned many candidates into conscious evaders of the law. As a result, contributions have not been limited, and it has become nearly impossible to obtain an accurate

55 The purpose of repealing section 315 (a) for federal elections was to remove what was felt to be the major obstacle to the provision of free time. See note 14 supra. However. empirically, the broadcaster's contention that equal time prevents them from granting free time appears unsound. For example, 20 of the 34 Senate races in 1964 were contested by only two candidates. Thus, no minor candidates would have been entitled to free time. Nevertheless, only 29 percent of the television stations involved in these races offered free time-the same percentage of stations that offered free time in multi-candidate elections. In 11 close elections 90 percent of the stations sold time, but only 32 percent offered free time. Rosenbloom 78. Similarly, in 1968 in the states where only two candidates were running, only 34 percent of the stations gave free time. However, in the seven states with multi-candidate races, 45 percent of the stations gave free time. FCC Survey 3.

The primary obstacle to free time in most elections is either the refusal of candidates to accept either the offer or the programing judgments of broadcasters. Paid for time is preferable to free time because the candidate has total control over the format of the program. He is able to create an image, emphasize, deemphasize, or distort issues at will Free time, on the other hand, is uncontrolled and subjects the candidates to challenge by other candidates, newsmen, or the public, depending on the format of the program. See J. McGinniss, supra note 1, at 30-33, 58-73. See also 1971 Hearings on H.R. 8627, at 65-66. Free time is of great advantage to a lesser known candidate who may be able to achieve recognition and stature as a major candidate. Front runners are therefore often reluctant to take free time. See Alexander, supra note 5, at 264. In a presidential election, however, public pressure would restrict a candidate's ability to refuse an offer of free timefor debate or for other purposes. On the one occasion when the requirement was suspended for a presidential election, the results were quite satisfactory. See note 14 supra.

58 For an example of the potential abuses of this discretion, see 1971 Hearings on H.R. 8627, at 163-64 (categorization of George Wallace's 1968 candidacy as less than major). CBS would determine whether candidates are major on the basis of the reports of journalists covering the campaign, of public opinion polling, of the record in the primaries, and the mechanical question of how many ballots on which the candidate's name appears. As a candidate improves his standing by these criteria, he would be apportioned more time. ultimately approaching equal time. Id. at 162-63. This policy raises the paradox of a candidate being denied free access to the best medium for arousing public interest and support until he is able to arouse public interest and support.

57 Furthermore, the FCC has recently come under criticism for allegedly acting in a partisan manner. See 1971 Hearings on H.R. 8627, at 271-99. There could be grave consequences if the FCC abused or was suspected of abusing this discretion on behalf of one party.

58 See 18 U.S.C. § 608 (1970).

61

account of a candidate's real expenditures. Thus, Congress determined that contribution limitations would always cause enforcement difficulties and repealed all limitations with one exception. Ideally, the necessary protection against a large contributor buying an election would be provided by the publicity which the statute's reporting requirements would assure." The only exception to the removal of contribution limitations provided by the Federal Election Campaign Act of 1971 is a ceiling imposed on the amount a candidate may contribute in his own behalf." The purpose of the limitation is to prevent a wealthy man from, in effect, purchasing an office. The modest scope of this limitation will make enforcement feasible."

65

DISCLOSURE OF FEDERAL CAMPAIGN FUNDS

POLITICAL COMMITTEES AND REPORTING REQUIREMENTS

GG

Perhaps the most serious flaw in prior attempts to control campaign financing was the nonregulation of political committees. The proliferation of such committees has hidden many expenditures and has effectively diffused the responsibility for campaign expenses. Thus, the provision for adequate regulations to govern the activities of political committees and to ensure strict accounting for all campaign finances is a key element of the Federal Election Campaign Act of 1971.07

Any committee which is likely to spend more than $1000 for election purposes within the calendar year must appoint a chairman and a treasurers and file a statement of organization with supervisory officials." The committee officers have two duties to keep a detailed account of all expenditures and receipts 70 and to

See notes 9-10 supra and accompanying text.

60 See 1971 on S. 382, at 52-53.

61 See Federal Election Campaign Act of 1971, Pub. L. No. 92-225, § 203, 86 Stat. 9 (1972), amending 18 U.S.C. § 608 (1970).

62 But see Letter from John Gardner, Chairman of Common Cause, to Senator Frank Moss, July 27, 1971 (copy on file at Geo. L.I.). Common Cause recommends contribution limitations. The organization feels that the overall benefit of the large contribution would outweigh the inhibitory effect of the adverse publicity.

e3 Federal Election Campaign Act of 1971, Pub. L. No. 92-225, § 203, 86 Stat. 9 (1972). This prohibition embraces the candidate's family as well. A presidential candidate is limited to $50,000; a senatorial candidate, to $35,000; a House candidate to $25.000.

There were notable instances of extraordinary personal expenditures in 1970 in New York, Ohio. Pennsylvania, and California. See 1971 Hearings on S. 382, at 139 (statement of Senator Baker).

Among the other changes made by title II of the Act, section 205 is of significance. Section 610 of title 18 prohibits contributions by labor unions. Recently, in United States v. Pipefitters Local 562, the conviction of union officers for violations of this section was upheld. 434 F. 2d 1116 (8th Cir.), aff'd on rehearing, 434 F. 2d 1127 (8th Cir 1970), cert. granted, 402 U.S. 994 (1971) (No. 70-289). In this case the funds were collected and distributed by a separate political committee affiliated with the union; the court felt, however, that the relationship between the organizations was so close that the union was in fact making the contributions. The decision threatened to obstruct unions' ability to contribute funds through labor committees. Section 205 of the Federal Election Campaign Act of 1971, however, removes this threat by permitting contributions collected and expended through a separate segregated fund. Federal Election Campaign Act of 1971, Pub. L. No. 92-225, § 205, 86 Stat. 10 (1972) amending 18 U.S.C. § 608 (1970).

See notes 9-10 supra.

Federal Election Campaign Act of 1971, Pub. L. No. 92-225, §§ 301-11, 86 Stat. 11 (1972). 68 Id. § 302(a), 86 Stat. 12.

Federal Election Campaign Act of 1971, Pub. L. No. 92-225, § 303 (a), 86 Stat. 14 (1972). This statement must give the name and address of the committee, the names, addresses and relationships of any affiliated organizations, the jurisdiction and scope of the organizations, the names and addresses of the custodian of the books and of all other officers, the names and addresses of each candidate or party which the committee will support, the location of all funds, the intended disposition of any residual funds and a statement of any reports required by state or local law. In addition, the committee must provide any other information required by the appropriate supervisory officer. Id. § 303 (b), 86 Stat. 14. The positions of treasurer and chairman must be filled at all times, and the committee will not be permitted to function if either position is vacant. Id. § 302 (a), 86 Stat. 12. It would be possible, of course, to avoid these committee provisions by creating a multitude of committees, each of which would spend less than $1,000. In a campaign of any sie, however, this expedient would be impractical.

70 The committee must keep a record of every contribution in excess of $10 and every expenditure over $100. Id. §§ 302 (c), (d), 86 Stat. 13. Smaller contributions seemingly will be discouraged because of the administrative costs of accounting for them. See AFLCIO, Statement on Campaign Financing Legislation (1971) (copy on file at Geo. L.J.).

submit periodic financial reports." Any individual contributor who expends more than $100 within a calendar year must also follow these reporting procedures." The financial reports must be filed on the tenth of March, June, and September, 15 and five days prior to the election, and by January 31 of the year following the election. Any contribution over $5000 made in the last five days of the campaign must be reported within 48 hours," so as to prevent any unreported last minute shifts of funds into a campaign. The reports are to be kept by the supervisory officer who will cross-index, code, and publish them." This officer will also initiate a uniform system of bookkeeping to permit easy comparison of reports." To guarantee public access to this financial information, copies of reports for each jurisdiction will be kept on file with the Secretary of State or an equivalent official of the appropriate state."

This area of the Act could have the most meaningful effect on the problem of regulating campaign expenditures. Most importantly, the statute promulgates regulations to govern the creation and conduct of political committees. Each committee will be guided by officers responsible for its conduct, officers with specific duties to perform. In addition, the repeal of contribution limitations eliminates the chief incentive to proliferate committees. The number of committees will most likely decline, and the quick dissemination of readily comprehensible reports will have a salutory effect on the dignity and honesty of the electoral process.

ENFORCEMENT SUPERVISORY OFFICERS

78

Enforcement of any law respecting the conduct of the electoral process presents special difficulties. To be effective, the enforcement agent must be independent, impartial, and have adequate staff and enforcement powers. The Federal Corrupt Practices Act vested authority to supervise federal elections in the Secretary of the Senate and the Clerk of the House of Representatives. These officials are employees of Congress and maintain small staffs and budgets. In the past, they have had neither the facilities nor the inclination to police their employers, particularly when the result of their efforts could have been to imprison popularly elected officials of the United States Government. Unfortunately, the Federal Election Campaign Act of 1971 chose to perpetuate past mistakes by vesting enforcement authority in the Secretary of the Senate for senatorial races, the

71 Federal Election Campaign Act of 1971, Pub. L. No. 92-225, § 304 (a), 86 Stat. 14 (1972). The reports are to be made on a standard reporting form to be furnished by the supervisory officer. Id. § 308 (a) (1), 86 Stat. 16. They must state the total amount of cash on hand at the beginning of the reporting period; the name, address, and amount of all contributors who gave more than $100 during the calendar year to the committee: the sum of all contributions of $100 or less made during the reporting period; the name and address of any candidate or committee from which or to which any transfers of funds were made; the total proceeds of any fund-raising events; the sum total of all receipts during the period; the names of all persons to whom expenditures in excess of $100 during the year were made; the sum total of expenditures made during the period: the debts owed by the committee; and any other information required by the supervisory officer. To facilitate publicity, all persons identified as contributors or as receiving money must be identified by occupation and place of business. Id. $ 304 (b), 86 Stat. 15. In addition, reports must be made on convention financing. Id. § 307, 86 Stat. 16.

72 Federal Election Campaign Act of 1971, Pub. L. No. 92-225, § 305, 86 Stat. 16 (1972). The individual contributor's activities in an election are revealed without the necessity of extensive examination of committee reports. See AFL-CIO, Statement on Campaign Financing Legislation (1971) (copy on file at Geo. L.J.).

7 Federal Election Campaign Act of 1971, Pub. L. No. 92-225, § 304 (a), 86 Stat. 14 (1972).

It is still possible, however, for an individual contributor to conceal the beneficiary of his support. The contributor could contribute money to a committee with the proviso that the funds be given to a particular candidate. The committee would have to report the contribution it passed on to the candidate as its own contribution. Thus, there would be no reported link between the candidate and the original contributor.

74 Id. This section could be easily evaded by making contributions of slightly less than $5,000 and by donating in the names of several parties. Thus, large sums of money given in the last few days of the campaign would remain unreported until after the election. See 117 Cong. Rec. S13276 (daily ed. Aug. 5. 1971) (remarks of Senator Long).

Federal Election Campaign Act of 1971, Pub. L. No. 92-225, § 308 (a) (3), 86 Stat. 17 (1972).

70 Id. $ 308(a) (2), 86 Stat. 16.

77 Id. § 309, 86 Stat. 18.

78 The Clerk of the House of Representatives has 260 employees, 156 of whom are assigned to supply, maintenance, telephone service, an audio-visual department, and engineering. There is only one staff attorney. See Hearings on Legislative Branch Appropriations Before a Subcomm. of the House Comm. on Appropriations, 92d Cong., 1st Sess. 651-55 (1971). The Secretary of the Senate has 150 employees, 68 of whom are messengers, debate reporters, transcribers, librarians, payroll clerks, and document room assistants. There is no staff attorney. See S. Doc. No. 37, 92d Cong., 1st Sess. 1-3 (1971).

Clerk of the House for House races, and the Comptroller General for all other federal campaigns.'

79

81

80

These officers, however, have been granted extensive new powers to employ in the administration of the Act. They are vested with responsibility for the mechanical aspects of each campaign-providing reporting forms, establishing the bookkeeping system, and collecting, indexing, and publishing reports. They are also vested with rulemaking and adjudicatory powers to deal with the complex problems likely to arise under the statute. In the event of a complaint, the supervisory officers are empowered to hold hearings and upon determining that a complaint is justified, can request the Attorney General to seek injunctive relief in federal district court." The power to request an injunction is the only enforcement power the officers possess. The officers' primary exercise of authority will be through the establishment of rules and uniform procedures governing the conduct of campaigns. Their use of the adjudicatory process, and the publicity that would result from the instigation of proceedings is an additional method of exerting control. The injunctive remedy would only be used in extreme cases. Because political campaigns are extremely sensitive to adverse publicity, these powers may be sufficient. The Act also provides for criminal penalties, but they are not tailored to the special circumstances of election law violations. S. 382 had originally proposed the creation of a Federal Elections Commission to administer the Act. The Commission would have been an independent body appointed by the President with its own budget and with all powers the supervisory officers are now given. The FEC would have been a major improvement over the present system because of its independence, its greater facilities, and its capacity to develop expertise in conducting elections. The deletion of this measure and the continuation of enforcement and administrative powers in the Clerk of the House, the Secretary of the Senate, and the Comtroller General seriously jeopardizes the effectiveness of the new provisions.

84

REGULATED INDUSTRIES

Under the provisions of the Hatch Political Activity Act of 1939, banks are prohibited from making campaign contributions. In 1971, indictments were returned against several banks in Texas and Ohio which had extended bona fide loans to candidates." The Federal Election Campaign Act of 1971 permits legiti

87

Federal Election Campaign Act of 1971. Pub. L. No. 92-225, § 301(g), 86 Stat. 12 (1972). Despite a larger staff, the Comptroller General is also an inappropriate enforcement agent. See 117 Cong. Rec. S12882 (daily ed. Aug. 2, 1971).

Federal Election Campaign Act of 1971, Pub. L. No. 92-225, § 308 (a), 86 Stat. 16 (1972). 81 Id. § 308(d), 86 Stat. 18.

Id.

The powers of the supervisory officers were originally to have been invested in a Federal Elections Commission. S. 382, 92d Cong., 1st Sess. § 310 (1971). Because it lacked an independent staff, this Commission would have been forced to rely on the Attorney General to seek injunctive relief. The measure was retained in the final version for the supervisory officers. It is possible that serious liaison problems with the Attorney General could develop in the course of a highly partisan campaign.

84 Violations can be punished by a year's imprisonment and a $1,000 fine. Federal Election Campaign Act of 1971, Pub. L. No. 92-225. § 311, 86 Stat. 19 (1972). The Attorney General would be extremely reluctant to prosecute, and the courts would be similarly reluctant to convict or sentence, candidates or officials- elect of the United States Government.

An interesting and innovative alternative was provided by H.R. 11060 which distinguished between noncandidate and candidate violators of the law. Noncandidate violators would have been subject to criminal penalties similar to those in the Act. Presidential and vice presidential candidates would have been fined up to $25,000, but would not have been impisoned. Candidates for federal offices other than Presidency would have been barred from office until they complied with the law. H.R. 11060, 92d Cong., 1st Sess. § 6 (1971). This scheme would have permitted a court to enforce the law without precipitating a political crisis by jailing federal officials.

S. 382, 92d Cong.. 1st Sess. § 310 (1971). The Commission was to consist of six members chosen by the President and confirmed by the Senate. Not more than three of the members were to be from the same party. The members were to serve staggered 12 year terms. 14. § 310(a). The Commission would make use of the facilities and personnel of the General Accounting Office and the Department of Justice. By permitting the Commission to borrow the bureaucracy of these two agencies, the Senate attempted to avoid the creation of an independent election bureaucracy which would operate only every two years. See 117 Cong. Rec. $12991 (daily ed. Aug. 3, 1971) (remarks of Senator Cannon). However, the effect may have been to hamstring the Commission by preventing the development of an independent staff with election expertise, and by forcing it to rely on bureaucrats serving two masters.

98 18 U.S.C. § 610 (1970).

See 1971 Hearings on S. 382, at 199.

mate loans made in the ordinary course of business-with appropriate interest charges and collateral.

89

Many regulated industries are reluctant to require deposits or advance pay. ments from candidates, since a candidate denied service might win election and achieve influence over the regulation of that industry. As a result, at the conclusion on a campaign such corporations are often owed large sums of money which they have little chance of collecting. Therefore, the Act requires appropriate administrative agencies to establish regulations to govern the granting of credit. Although this section is intended primarily to protect regulated industries from making de facto gifts of their services which result from nonpayment of campaign debts, this measure will also serve to penalize financially improvident candidates and parties by establishing more stringent credit regulations.

OBSTACLES TO SUCCESS

In response to serious deterioration of the American political process, Congress, in the Federal Election Campaign Act of 1971, has proposed a significant departure from previous campaign regulation attempts. Unlike the Federal Corrupt Practices Act and the Hatch Political Activity Act of 1939, the Federal Election Campaign Act of 1971 attempts to solve campaign finance problems by limiting costs, by requiring strict reporting of expenses and contributions by carefully regulating political committees, and by expanding supervisory officers' power to regulate election campaigns.

Despite many improvements over current legal controls, the Act suffers from marked inadequacies which may cripple its effectiveness. The lack of an overall spending limitation will continue to allow the rich man to maintain an advantage over his poorer opponent, and the certification process will remain a cause of unending confusion and potential first amendment challenges. The failure to repeal section 315(a) with respect to presidential candidates may prevent them from benefiting from free alternatives to expensive national television time. Criminal sanctions provided for by the Act continue to be inappropriate as a deterrent to campaign spending violations. Most importantly, the Act leaves the responsibility of supervision and enforcement in the hands of the same officers who have been unable or unwilling to enforce present laws. Although their powers have been greatly expanded, it remains to be seen whether the Clerk of the House, the Secretary of the Senate, and the Comptroller General will provide the kind of vigorous enforcement effort necessary to improve the conduct of American elections.

A pending case, Common Cause v. Democratic Nat'l Comm.,a1 may have significant impact upon the enforcement of election laws. Common Cause brought an action for injunctive and declaratory relief alleging that the two major political parties and the Conservative Party of New York employed and conspired to employ various devices to circumvent illegally the contribution limitations of sections 608 and 609 of title 18 of the United States Code. In a memorandum opinion, the district court determined that a civil remedy to enforce the law was available and that Common Cause had standing to sue on behalf of its membership. The ability of private groups and citizens to seek equitable relief

92

88 Federal Election Campaign Act of 1971, Pub. L. No. 92-225, § 401, 86 Stat. 19 (1972). See also id. § 205, 86 Stat. 10; 1971 Hearings on S. 382, at 199.

For example, as of August 1971, various former presidential candidates owed the Bell System nearly $1 million. 117 Cong. Rec. $12999 (daily ed. Aug. 3, 1971).

0 Federal Election Campaign Act of 1971, Pub. L. No. 92-225, § 401, 86 Stat. 19 (1972). 91 Civ. No. 61-71 (D.D.C., filed Jan. 11, 1971), motion to dismiss denied, 333 F. Supp. 803 (D.D.C. 1971).

92 333 F. Supp. 803 (D.D.C. 1971). The court relied on case authority granting civil remedies under criminal statutes when the party bringing suit is a member of the class the law was meant to protect and the criminal penalties are inadequate to protect the class. 333 F. Supp. at 809. The membership of Common Cause consists of contributors, campaign workers, and voters all of whom were meant to be protected by the Act, and the nonenforcement of the statute has long since proven the inadequacy of the criminal sanctions. Common Cause was granted standing on behalf of its membership because the value of their votes, work, and contributions would be nullified if they obeyed the law while others evaded it with impunity. Id. at 808.