What did the Federal Election Campaign Act of 1971 do, and how does it continue to influence political parties in America?
The Federal Elections Campaign Act of 1971 (FECA) itself was not very far-reaching. However, after it was enacted, there were a variety of additions made to it that made it into a more important law. FECA was very important in impacting campaign financing and political parties in the US. However, its impact has declined due to recent court decisions.
The main impact of FECA in its original form was to require disclosure of political contributions. Before FECA, candidates and parties did not have to reveal the names of their donors. FECA made it mandatory for them to disclose the names and other information about people who donated money (over a certain amount).
During the time that it was in force, FECA helped increase the power of political parties. Parties were able to take in and then spend large amounts of “soft money.” This was money that was given to the parties for “party-building” purposes, but not to spend on campaigns for any individual candidate. FECA limited the amounts that donors could give to candidates, but it did not limit the amount that they could give in soft money. This meant that the parties were able to take in large amounts of money. They could then spend it in ways that would indirectly benefit their candidates. This gave the political parties some degree of power over the candidates since the candidates depended on them for some money.
In recent years, FECA has been greatly weakened by court decisions. This has hurt political parties as much more money can be used by donors to directly support candidates. This bypasses the parties and reduces their importance.
The Federal Election Campaign Act (FECA) of 1971 was a comprehensive attempt by Congress--the whole legislative body of the combined United States House of Representatives and United States Senate--to regulate how the candidates for the presidency and Congress raised campaign money and reported those funds by disclosing amounts and sources of campaign money. The Act of 1971, which has been subsequently amended, governs virtually every aspect of campaign fund raising, especially the "big four" critical points:
- the size of contributions to political campaigns
- the source of such contributions
- public disclosure of campaign financial information,
- public financing of presidential campaigns (Mark Glaze and Trevor Potter, "Federal Election Campaign Act (1971)")
In 1974, following the Watergate Democratic Headquarters break-in scandal, which was led by some of Nixon's top advisers, the FECA of 1971 was amended to incorporate the issues brought to light by then present day politics and political concerns. The amended FECA was designed to "offset the skyrocketing costs and perceived corruption of American political campaigns" and included the creation of the Federal Election Commission (FEC) and "rules concerning disclosure, public financing, and contribution limits" (Glaze and Potter).
Federal Election Commission: Created by the 1974 amendment, the FEC was created solely for the purpose of administrating the federal election laws. The FEC is a repository and has regulatory and investigative powers that include power to subpoena and seek injunctions to halt activity or donations. The FEC:
- establishes regulations to implement federal election law
- investigates all complaints of campaign violations
- has power to subpoena witnesses and information
- has power to seek civil injunctions to ensure compliance
Disclosure: The FEC receives the disclosure reports mandated by the FECA (Federal Election Campaign Act of 1971) to be submitted by every candidate or committee active in a federal campaign. Each candidate or committee is required to form a central committee through which all contributions and expenditures for the campaign must b reported to the FEC as a a quarterly report of receipts and expenditures. These quarterly reports must contain extensive information about donors and details of every contribution or expenditure of or more than $100. The FEC then issues the information as a public report.
Public Financing: Public financing exists as a means of publicly funding reasonably limited primary and general election campaigns. The FECA created a public campaign fund giving/matching subsidy from which primary and general election campaign costs may be subsidized if the candidate promises to abide by spending limits and to not raise additional private money. FECA's campaign fund offers a voluntary participation program that may fully fund public financing for presidential general election campaigns. Another voluntary funding system of public matching subsidies fund presidential primary campaigns. This applies to candidates from the two major parties, Republican and Democrat, yet independent or minority party candidates may qualify for a proportional share of the public subsidy to help fund their campaigns.
Contribution Limit: FECA continues the ban on accepting contributions made by corporations and labor unions. FECA imposes a limit on all legal sources of funding, "sharply limiting the amount any individual, committee, or group could contribute to candidates or political committees in any election" (Glaze and Potter).
FECA's Influence on Politics Today
Supreme Court Ruling on Political Speech
Immediate challenges to FECA's FEC regulations appeared, and Buckley v. Valeo was heard by the Supreme Court in 1976. The Supreme Court decision in Buckley struck down several provisions of the 1974 FECA amendments. Spending Limits: The Court ruled that spending limits restrict freedom of "political speech" thus violating the First Amendment right of freedom of speech; "speech" has been defined by various Supreme Court cases as being applicable to many kinds of speech including "political speech." The Court ruled that Congresses provisions establishing "spending limits on candidates and political groups, including limits on the personal funds candidates could expend on their own elections" were unconstitutional restrictions on political speech ruling that "spending limits were acceptable only as voluntary limits agreed to as a condition of public campaign financing" (Glaze and Potter). Contribution Limits and Full Disclosure: In contrast, the Supreme Court did uphold the constitutionality of contribution limits and of full disclosure of contributions amounts and source. Nonetheless, the Court did narrowly restrict the definition of acceptable limitations ruling adversely that only contributions amounting to "express advocacy" or those "expressly calling for the election or defeat of a federal candidate could be forbidden," though the Court did uphold the "prohibition on corporate and union contributions" (Glaze and Potter).
Post-Buckley Changes to Campaign Contribution Law
While Congress retained the power to craft disclosure requirements and contribution limits and while FECA retained "prohibitions on corporate and union electioneering spending to elect or defeat a particular candidate," these prohibitions were undermined. In 1976, FECA was rewritten to comply with Buckley. In 1979, Congress amended FECA to allow state and local "grass roots" and "party-building" activities, e.g., voter registration and voter participation drives, exemption from the political party contribution limits (expenditures on these activities by the political party did formerly count as contributions to the candidate's campaign) so that funds for these types of grass roots and party-building activities do not count against the political party contribution limits.
This 1979 exemption to state and local political parties--given to counter a perceived weakening of state and local political power in federal elections--worked contrary to expectations by undermining the FECA ban on corporate and labor union contributions (corporations and labor unions were/are seen as excessively strong and influential lobbying authorities that have the potential to overwhelm the election process in order to attain their own agendas). State and local political parties extended the meaning of the exemption that allowed spending on grass roots and party-building activities to include soliciting funds to spend on these exempt activities. Consequently, a new, unregulated contribution category was created called "soft money." This was contribution money given to the political party ostensibly for these exempt activities (i.e., grass roots, party-building). In reality, soft money was used for negative campaigns that employed mass media commercials that expressly avoided use of the words "defeat" or "support," to be in compliance with the Supreme Court's Buckley ruling, even though the content of the ads was clearly an effort to advance the election of the party candidate(s) while undermining the election of the opposing party's candidate(s). Supreme Court precedent ruling that "political speech" included the right for corporations and labor unions to "discussion about political and policy issues." Longstanding Court precedent held that that right may not be restricted without violation of the union's or corporation's First Amendment right of freedom of speech. In order for there to be a constitutionally supportable restriction of political speech, thee must be an "overwhelming justification for that restriction."
Bipartisan Campaign Reform Act of 2002
After soft money abuses and corruption escalated through the 1990s, Republican Senator John McCain of Arizona and Democratic Senator Russell Feingold of Wisconsin in 2002 crafted an anti-soft money bill called the Bipartisan Campaign Reform Act of 2002 and popularly know as "McCain-Feingold" to curb spending limit abuses and campaign corruption by reinstating "the pre-Watergate ban on corporate and labor union contributions by banning the solicitation or spending of soft money by the national political parties" (Glaze and Potter). A new definition to specify the application of corporation and labor union political speech in relation to campaign spending was introduced with the term "express advocacy." The concept is "designed to allow corporations and unions to engage in legitimate discussion of issues while keeping them out of campaign-related advertising" (Glaze and Potter).
Under the act's terms, corporate or union funds could not be used to pay for broadcast ads against a clearly identified national candidate, targeted at that candidate's electorate, within thirty days of a primary or sixty days of a general election. (Mark Glaze and Trevor Potter, "Federal Election Campaign Act (1971)")
McCain-Feingold was challenged before the Supreme Court in 2003. The Court upheld the Act of 2002 in a decision that stated that, since the Act deals with soft-money contributions rather than with campaign contributions, the restriction of freedom of political speech was minimal, therefore the threat to First Amendment freedom of speech rights was equally minimal, and that therefor the government had legitimate interest in preventing "both the actual corruption threatened by large financial contributions and ... the appearance of corruption." The Court also found that government had the legitimate necessity to legislate to prevent the groups from circumventing the law.
By law, individuals are limited to contributing no more than $1,000 to any given candidate for a federal election, and no more than $20,000 per year to a political party. Corporations and labor unions are prohibited from contributing to campaign funds at all. These regulations are intended to prevent individuals and organizations from buying influence by making huge contributions to a candidate, then calling in favors when the candidate is in office. "Soft money" is the term used to describe donations made to circumvent these rules. It is donated to political parties for the ostensible purpose of "party building," which describes activities not directly related to electing candidates. Soft money contributions in the presidential election of 2000 were estimated at approximately $500 million. In 2002 soft money contributions were banned with the passage of the Bipartisan Campaign Reform Act (known as McCain-Feingold); however, the ban was ruled unconstitutional in federal court. The Supreme Court was expected to hear the appeal in September 2003.
On June 17, 1972, five members of President Richard Nixon's Committee to Re-Elect the President were arrested after they broke into the headquarters of the Democratic National Committee (DNC) in the Watergate residential and office complex in Washington, D.C. The break-inn attempt to tap the DNC phones did little damage to Nixon's re-election campaign, and he won in November with an overwhelming majority. However, two Washington Post reporters, Robert Woodward and Carl Bernstein, pursued the story until they had uncovered a wide-reaching scandal. Nixon and his associates--driven by Nixon's obsession with discrediting his "enemies"--tapped phones, stole medical records, and paid off potential witnesses to buy their silence. In 1973, as their illegal activities and attempted cover-up came to light, three key administration officials and Attorney General Richard Kleindienst resigned. The new Attorney General, Elliot Richardson, appointed a special prosecutor, Archibald Cox, to investigate. At the same time, the Senate's Committee on Presidential Campaign Activities began a series of televised hearings which revealed that the president had secretly tape-recorded conversations in the Oval Office. Cox subpoenaed the tapes, but Nixon refused to hand them over and fired Cox. Richardson and his deputy resigned in protest. The Supreme Court ruled that Nixon was obligated to release the tapes, and the House of Representatives voted to begin impeachment proceedings. Nixon surrendered three tapes that clearly implicated him in the cover-up. He had little support, as the public was outraged over what was seen as the administration's attack on democracy, which included committing crimes to subvert the democratic process, suppressing civil liberties, using espionage and sabotage against political enemies, and intimidating members of the news media. In August 1974 Nixon resigned rather than face impeachment. He was pardoned by his successor, Gerald Ford.
"Federal Election Campaign Act (1971)." Major Acts of Congress. Ed. Brian K. Landsberg. Vol. 2. Gale Cengage, 2004.
"McConnell v. Federal Election Commission." Wikipedia, the free encyclopedia.