in political exigencies, it would also seem that a repeal of the equal time provision would have conflicted with the policy and rationale behind the prohibition against political contributions by corporations. A radio or televison station permitted to give unrestricted amounts of free time to candidates of their choice, without reciprocal treatment to others, would be no different than the corporate body of that station directly contributing cash to the candidate.

103

The spending limitations imposed by Title I provide that a candidate may spend for the use of communications media the greater of: (1) $50.000; or (2) 10 cents multiplied by the voting age population of the electrorate.104 And the candidate is permitted to spend up to 60 percent of this amount on the broadcast media.105 In order to take account of inflationary cost increases, the act provides for periodic adjustments to the spending formula based on the Consumer Price Index.100 Because of the broad definition of the term "communications media," 107 these limitations cover all the important kinds of campaign media advertising.

Critical to an understanding of the mechanics of the spending limitations, is the separation of primary and general election contests. Each primary, general, special or run-off election is treated as a separate election and has a separate expenditure limitation applicable to it. And for all candidates, other than presidential, the limitations applicable to the use of the communications media are the same for both a primary and a general election; 108 i.e., 10 cents times the number of voters or $50,000, whichever is greater. Thus, a typical candidate for the Senate would be permitted to spend a total of 20 cents per eligible voter, or $100,000.1 In the case of a presidential candidate, the separate election concept is equally applicable, but the aggregate amount of his spending limitation is allocated on a state-by-state basis. A presidential candidate may spend, for use of the communications media in a state primary, an amount equal to that available to a Senate candidate from that state.110 And for the general presidential election, the limitations on the use of the communication media in any one State are likewise based upon the eligible eelectorate in that state."

The concept of an aggregate expenditure ceiling is not new, as evidenced by the discussion of the Federal Corrupt Practices Act. But the crucial questions regarding any such scheme still remain: is a ceiling advisable at all; and if so, are the given limitations workable within the realities of campaign finance. In his testimony before the Communications Subcommittee holding hearings on the act, Herbert Alexander, a leading expert on campaign finance, stated that an aggregate ceiling would favor the incumbent candidate while the absence of a ceiling would conversely permit the high spending usually necessary to challenge an incumbent.119 Rather than a ceiling, Alexander favored the idea of a publicly subsidized minimum amount sufficient to guarantee a candidate adequate exposure to the public.' 113 But Alexanders' criticism may be less pertinent than it appears at first blush; even with no effective spending limitations, there has been a very high rate of incumbent reelection." Consequently, the imposition of a ceiling should not portend any significant increase in that rate.

193 Voting age population is defined as the resident population 18 years and older. Act of Feb. 7, 1972. Pub. L. No. 92-225. tit. I, § 102 (5).

104 Id. § 104 (a) (1) (A). Under section 104 (a) (1) (C) (5), during the first week of January in each year, the Secretary of Commerce "shall certify to the Comptroller General and publish in the Federal Register an estimate of the voting age population of each state and congressional district for the last calendar year ending before the date of certification."

106 d. § 104 (a) (1) (B). Under section 104 of the Senate bill, the candidate, at his discretion, could spend between 30 and 70 percent of his total allocation on broadcast advertising.

100 Id. § 104 (a) (4). The mechanism for adjustment of the spending limitation formula is detailed in section 104 (a) (4) (B). “At the beginning of each calendar year. the Secretary of Labor shall certify to the Comptroller General and publish in the Federal Register the per centum difference between the price index for the 12 months preceding the beginning of such calendar year and the price index for the base period." Then the amounts determined under the spending limitation formula will be increased by the per centum difference.

107 See note 95 supra & accompanying text.

108 Act of Feb. 7, 1972, Pub. L. No, 92–225. tit. I. § 104 (a) (2).

100 The spending limitations for each election must be accounted separately. Thus, a candidate could not "save up" from the primary and then spend more than the $50,000 or 10 cents per voted limitation in the general election.

110 Id. & 104 (a) (3).

111 d. § 104(a).

112 1971 Hearings on S. 382, supra note 4, at 644-45 (testimony of Herbert Alexander). 113 Id.

114 From 1954 to 1968, 85 percent of all Senators who ran for reelection won, while 92 percent of all House members who ran for reelection won. Twentieth Century Fund Report, supra note 24, at 3.

Overall, the most persuasive argument for a ceiling is the continuing upward spiral in the cost of running for office. The problem, then, is to create a ceiling which curbs rising costs but is high enough to permit the challenger to adequately present himself to the public. The major difficulty in ascertaining whether spending limitations are realistic is the unavailability of appropriate statistics concerning past expenditures. One recent survey shows that 70 percent of the U.S. Senators spent over $100,000 on their last campaigns, 40 percent spent over $200,000,115 and three of every 10 members of the House spent over $60,000.1 But these figures are difficult to assess in terms of the Campaign Finance Act because they reflect total campaign expenditures-including salary and travel expenses and public opinion polls-while the act regulates only expenses for the communications media.

116

Although few statistics are available to provide an overall analysis of the Campaign Act's per-vote formula for computing the ceiling, a partial study has been made which compared 1970 broadcast advertising expenditures by Senate candidates with the highest possible expenditure for broadcast advertising available to the candidate under the Campaign Act." The comparison indicated that the typical candidate must decrease his spending for broadcast advertising in order to comply with the new law, in direct contrast to the upward spiral of campaign spending that currently exists.118

119

The present broadcast spending limitation is certainly more reasonable than that provided under the defunct Federal Corrupt Practices Act. Still, because candidates will be required to adjust their campaign expenditures downward, emphasis must once again be placed on the need for a workable system of disclosure and enforcement to prohibit a candidate from violating the new law. B. Title II

The amendments to the Election and Political Activities Laws constituting Title II of the Campaign Act contain several substantial revisions of campaign finance laws, including: (1) a repeal of the limitation on the amount of indi'vidual contributions; (2) a limitation of the amount of expenditures a candidate may make from his personal funds; (3) a redefining of "political committee" to do away with the requirement of operating in two or more: states; (4) an amendment of the prohibition against contributions from corporations and labor unions; (5) a redefining of "election" to include primaries; and (6) an expansion of the definition of political contribution and expenditure.

Comparison between actual amounts spent on broadcast media by senatorial candidates in the 1970 general election and the permissible broadcast spending the limitation applicable to senatorial candidates under Public Law No. 92-225.

Note.-Act of Feb. 7, 1972, Public Law No. 92-225 (table A, Legislative History), U.S. Code Cong. & Ad. News 88 (1972). The expenditures for candidates under Public Law No. 92-225 were determined by use of the 60 percent allotment for broadcast advertising as allowed under section 104(a) (1) (B) and includes an additional 4.3 percent to reflect inflationary increases.

115 The statistics quoted are cited in Hearings on S. 2876 before the Committee on Commerce, 91st Cong., 1st Sess., ser. 91-29, at 51 (1971). 116 Id.

117 1971 Hearings on S. 382, supra note 4, at 612 (testimony of Professor David Adamany of Wesleyan University).

118 See note 2 supra & accompanying text.

119 See note 36 supra & accompanying text.

121

122

The most significant of these revisions, in terms of the earlier discussion concerning the problems associated with the large individual contribution, is the repeal of the $5,000 limitation for anyone making a political contribution.120 It would seem that this change directly contradicts the rationale behind the reform concept of protecting against the dangers of the large individual contribution. In committee, the following reasons were put forth to justify the repeal of the old limitation: (1) such a limitation is probably unconstitutional: (2) it is completely unworkable; and (3) disclosure makes such limitations unneccessary. Although the unconstitutionality argument may be well taken, the most convincing rationale for repeal of any contribution limitation is the presence of the full disclosure requirement (the specifics of which will be discussed shortly). The requirement that campaign contributions be fully disclosed, makes the politician readily subject to any accurate charges of misconduct or conflict of interest, thereby precluding the need to continue restrictions on personal contributions. Moreover, in the context of the entire scheme of campaign finance legislation, if means are provided for obtaining funds which would reduce the reliance on the large contribution, a statutory limitation on personal contributions becomes much less relevant.

One kind of quasi-contribution limitation was included, however. Perhaps with a view towards preventing the situation in which the rich candidate is in a better position to gain access to an elected office, Congress set limitations on the expenditures a candidate may make from his personal funds (including those of his immediate family): $50,000 in the case of a candidate for President or Vice-President; $35,000 for a Senate candidate; and $25,000 for a House candidate.1

123

Other amendments in Title II are directed at closing the obvious loopholes existing in the old laws. No longer is a candidate able to decentralize his campaign finances by using state-level committees. Under the Campaign Act, the old definition of "political committee" (requiring operation in two or more states) is replaced by "any individual, committee, association, or organization which

120 Act of Feb. 7. 1972, Pub. L. No. 92-225, tit. II, § 203, amending 18 U.S.C. § 608 (1970).

121 S. Rep. No. 92-229, 92d Cong.. 1st Sess. 131 (1971).

122 For a number of years, various commentators have argued that restrictions on the amount of spending in a political campaign and requirements of public disclosure of contributions and contributors were violations of the first amendment. A recent discussion of this issue comes from Martin H. Redish. Redish, Campaign Spending Laws and the First Amendment, 46 N.Y.U.L. Rev. 900 (1971).

Redish uses New York Times v. Sullivan, 376 U.S. 254 (1964), in conjunction with Red Lion Broadcasting Co. v. FCC. 393 U.S. 367 (1964), and Mills v. Alabama, 384 U.S. 214 (1966). to support his theory that the "first amendment renders suspect

and regulations which have the effect of reducing total amount of expression on public questions." Redish. supra, at 910. But despite his theory. Redish admits that the Supreme Court, if faced with the issue directly, might feel that neutraliation of the upward spiral of campaign spending would justify such a limited infringment upon free expression of information and opinion-particularly in view of the relatively high ceiling imposed by the new law. In the area of public disclosure. Redish links United States v. Rumley. 345 U.S. 41 (1953), NAACP v. Alabama. 337 TLS. 449 (1953). Shelton v. Tucker, 364 U.S. 479 (1960), and Talley v. California, 362 U.S. 60 (1960) (cases protecting the privacy of membership lists and organization affiliations). to develop a first amendment right of anonymity which would protect the candidate and political parties from mandatory disclosure. While the validity of such a first amendment right is questionable, there are strong government interests in requiring full disclosure of campaign contributions and contributors. Foremost among these is that full disclosure provides the electorate a measure of protection from political favoritism-both legal and illegal-toward campaign benefactors.

Almost any campaign finance regulation is likely to have some effect on first amendment rights. In the area of spending limitations, it would seem that infringement on the first amendment rights would be minimal if a candidate was forced by the spending limitation to show only 75 television commercials instead of the 100 planned. The compelling gor ernmental interest in giving candidates virtual spending equality and in requiring dis closure to prevent possible corruption seems to outweigh the mild disturbance of first amendment rights.

Perhaps the most interesting comment upon these first amendment questions is the total absence of pertinent case law. Of course, this again attests to the fact that the Federal Corrupt Practices Act was virtually unenforced.

123 Act of Feb. 7, 1972, Pub. L. No. 92-225. tit. II, § 203. Realistically, however, it seems possible to avoid this restriction by using various relatives, friends and other conduits through which personal funds could be funneled into the campaa. A recent emple of just such contribution practices can be seen in the disclosure of campaign contributions and contributors by several Democratic presidential candidates before the effective date of Pub. L. No. 92-225. The sums attributed to numerous contributors are in excess of the $5.000 limitation which existed under 18 U.S.C. § 608 (1970), but the contributors simply spread the contribution among relatives and friends or gave the contributions to varions decentralized committees. Although the latter loophole has been eliminated, the former still remains available to the candidate seeking to avoid the personal funds limitation.

124

accepts contributions or makes expenditures during a calendar year in an aggregate amount exceeding $1,000." The ultimate effect of this change will be to centralize a candidate's finances under one major committee, which will incidentally lessen the burden imposed by the reporting provisions.

Unfortunately, Congress failed to close the loophole which permits corporations and labor unions to contribute millions of dollars through political action committees. Indeed, the amendment to the general prohibition against corporate and union contributions actually serves to sanction the committee device by specifically permitting it.125 This is particularly disconcerting since the amendment also broadens the phrase "contribution or expenditure" as used in this prohibition, 128 and because, without the explicit congressional approval of the political action committee contribution, the courts might have been persuaded to close this blatant loophole.

127

Title II further provides a criminal sanction for any direct or indirect promise of employment or other benefit by a candidate to a contributor. But this prohibition, which is a reenactment of a section of the Federal Corrupt Practices Act, is most likely unenforceable. Aside from the obvious evidentiary problems, the idea of what would constitute an indirect promise is extremely vague. Other revisions which merit mention are: the change in the term "election," as used in the Election and Political Activities Laws, to include primary and special runoff elections; 12 and the expansion of the term "contribution" to include the payment of compensation to a person who is working for a political candidate.10

C. Title III

In the last analysis, it is the disclosure system which will determine whether the provisions of the Campaign Act are adhered to. The disclosure scheme must be capable of determining whether the expenditure ceiling has been violated and of fully informing the public of the nature and amount of the contributions to a candidate's campaign. Thus, the disclosure requirements under Title III of the Act should be examined for their effectiveness in eliminating the reporting deficiencies evident under past legislation and in insulating the enforcement mechanisms from political pressures.

Under the reporting scheme, a "political committee" is defined-as it was for purposes of Title II-as any committee, association, or organization which accepts contributions or makes expenditures in an aggregate amount exceeding $1.000.11 The minimum dollar requirement seems reasonable circumvention of any disclosure provision would occur only if a candidate created a multitude of small committees to hide donations-an unlikely possibility considering the potential for imparing the candidate's public image if he violated the spirit of the law in such a way.

131

Each political committee is required to have a chairman and a treasurer.132 The treasurer must keep a detailed accounting of all contributions in excess of $10, including the amount the name, and the address of the contributor.133 Likewise, the treasurer must keep an accounting of all committee expenditures in excess of $100. Each treasurer of a political committee and each candidate must file with a supervisory officer (as designated by the act) 15 formal reports of receipts and expenditures. These reports are due on the 10th day of March, June and September of each year, and on the 15th and fifth days preceding the date of an election.17

130

124 Act of Feb. 7, 1972, Pub. L. No. 92-225, tit. II, § 201, amending 18 U.S.C. § 591 (1970). 125 Id. 12 Id.

127 Act of Feb. 7, 1972, Pub. L. No. 92–225, tit. II, § 202, amending 18 U.S.C. § 600 (1970). 12 Since section 600 is essentially unenforceable, it might appear that stronger means of preventing favoritism to big contributors is warranted. An absolute prohibition on extending employment or any other benefit to a person who contributed over a certain amount would be one way of minimizing the problem. Of course, this method also prevents qualified contributors from employment: but if the problem of favoritism is deemed serious enough, such broad measures would be desirable.

129 Act of Feb. 7, 1972, Pub. L. No. 92-225, tit. II, § 201, amending 18 U.S.C. § 591 (1970).. 130 Id.

131 Act of Feb. 7. 1972, Pub. L. No. 92-225, tit. III. $ 301(). The $1.000 limitation was found to be the most feasible by the Twentieth Century Fund, Twentieth Century Fund Report, supra note 24, at 16.

132 Act of Feb. 7, 1972, Pub. L. No. 92-225, tit. III, § 302 (a).

133 Id. § 302 (c).

134 Id. § 302(d). 135 Id. § 301 (g). 138 Id. § 304 (a). 137 Id.

The reports are extremely detailed and require the disclosure of: (1) cash on hand at the beginning of the reporting period; (2) the name and address of each person who makes a contribution in an aggregate amount in excess of $100 and the amount of such contribution; (3) the total sum of individual contributions; (4) the amount of funds transferred between political committees; (5) any loans to or from any person in an aggregate amount in excess of $100; (6) the proceeds obtained from fund raising events and the sale of campaign materials; (7) all other receipts in excess of $100, if not otherwise listed; (8) the total sum of all receipts; (9) the name and address of each person to whom an expenditure is made in an aggregate amount exceeding $100 and the amount and purpose of the expenditure; (10) the name and address of each person, as well as the amount and to whom an expenditure is made in excess of $100 for personal services or salaries; (11) the total sum of expenditures made; (12) the amount and nature of all debts and obligations; and (13) such other information as required by the supervisory officer.13

139

Furthermore, additional comprehensive reports must be filed with the Comptroller General concerning the financing of national party conventions. If these accounting and reporting requirements are adhered to, they should provide all the information necessary to determine any spending or contribution violations. And the extensive disclosure requirements should in themselves be sufficient to discourage any such violations.

142

The supervisory officer to whom the above reports are made is required to develop an indexing and filing system for the reports, publish the reports no more than two days after they are received, and prepare a comprehensive annual report. 140 The supervisory officer must also report "apparent violations" to the Justice Department. Moreover, any person (including a corporation, etc.) is given standing to file a complaint with the supervisory officer. Upon such a complaint, the officer must determine if there is a substantial reason to believe that a violation has occurred. If so, he is to expedite an investigation; and if a hearing shows that "any person has engaged or is about to engage in any acts or practices which constitute or will constitute a violation . . . the Attorney General . . . shall institute a civil action for relief, including a permanent or temporary injunction, restraining order, or any other appropriate order

99 143

144

On its face, this procedure seems to provide for a relatively adequate system of enforcement. Yet it masks several problems, the most important being that the supervisory officer is the Secretary of the Senate or the Clerk of the House, for Senate and House candidates, respectively. Consequently, with the exception of presidential candidates, whose supervisory officer is the Comptroller General. 14 (a long-term appointee), candidates must report to partisan officers who are not only subject to political pressures but are also chosen for their respective positions by the very persons whom they have the duty to investigate.

The Senate version of the Campaign Act would have given the role of the supervisory officers to an independent Federal Elections Commission consisting of six members appointed by the President to serve staggered 12-year terms.

138 Id. § 304 (b) (1)–(13).

139 Id. § 307. The report on convention financing must be filed not more than 60 days following the convention. The Comptroller General is to prescribe requirements for the report, which must include the sources of campaign funds and the purposes for which such funds were expended.

140 Id. § 308(a).

141 Id. § 308(a) (12).

142 Id. § 308 (d).

144 Id. & 301 (g).

The Secretary of the Senate and the Clerk of the House are not isolated from politics. (Cf. U.S. Gov't. Org. Manual 1971-72, 19-20 (1971), which describes the duties of these individuals.) In fact, the very people whom they must regulate and investigate under the Campaign Act elected them to their positions. Professor David Adamany of Wesleyan University expressed the problem of using the Secretary of the Senate and the Clerk of the House as Supervisory Officers:

"For decades the Secretary [of the Senate] and the Clerk [of the House] have been filing officers under the existing Federal statutes. In these decades a pattern has been created of accepting reports without question and simply making them available to the public. I do not believe that a change in the statutory rules will change the deeply ingrained view that the Secretary and the Clerk are merely filing officers. An Elections Commission. on the other hand, because it is freshly created, would be more likely dramatically to alter the reporting forms effectively to obtain information. It would also because of its bi-partisan composition, be more likely to investigate thoroughly and report violations in the reports. 1971 Hearings on S. 382, supra note 4, at 609 (testimony of Professor David Adamany of Wesleyan University).

145 Id.

146 S. 382, 92d Cong., 1st Sess. § 310 (1971).