State parties explore a way around campaign-finance limits

April 22, 1996|By Jack W. Germond & Jules Witcover

WASHINGTON -- A case on campaign spending by political parties, just heard by the Supreme Court, has reformers worried that a concept called ''express advocacy'' could provide a major loophole for avoiding long-established federal limits.

The concept, invoked by the Colorado Republican Party to justify exceeding a federal spending limit for a Senate race, holds that an unlimited amount of money can be spent as long as it is not used to expressly advocate the election or defeat of a candidate. The Federal Election Commission fined the state party for going over the $103,000 state limit with a $15,000 radio ad that pointedly criticized a Democratic candidate, then-Rep. Tim Wirth, but did not expressly call on Coloradans to vote against him in the Senate race, which he later won.

A federal district court ruled for the state party but the decision was reversed by a federal court of appeals, which said it was enough that the target of the ad be clearly identified. Now the state party has taken the case to the Supreme Court. Its decision, expected in June, could frustrate efforts by liberal reformers to keep a lid on campaign spending.

If the Supreme Court rules that the political parties can get around the federal limit on spending for candidates, the reformers fear, fat-cat contributors, now limited to giving only $1,000 to any candidate for federal office, can funnel much larger contributions to the same candidate through his party. The federal campaign law permits an individual to give $20,000 to a party, which could then pass it on to the candidate, raising the individual gift to $21,000.

During oral arguments on the Colorado case, some justices hinted not only that ''express advocacy'' may be legitimate but the whole matter of spending limits on political parties may be unconstitutional.

Jan Baran, a veteran Republican campaign-finance expert representing the Colorado GOP, argued that any spending limits on the parties violate the First Amendment guarantee of free speech and expression. Justices Antonin Scalia and David Souter indicated they saw nothing wrong with parties giving financial support as their legitimate and expected function of electing party members.

Fred Wertheimer, former Common Cause president, warns that if the court rules in favor of the Colorado Republicans, ''you're going to see an Oklahoma land rush by the parties to go after $20,000 contributions.'' Without spending limits, he says, the parties will be able to spend the money in the fall for their presidential nominees, who now get public financing in return for forgoing direct voter contributions.

Ann McBride, the current Common Cause president, says the concept of ''express advocacy'' does not meet the test of reality. The ad in the Wirth case asserted that he had misled voters in saying he supported a strong national defense and a balanced-budget constitutional amendment, but stopped short of asking voters to vote against him.

No ''magic words''

The absence of ''magic words'' like ''vote for'' or ''vote against,'' she says, doesn't deceive anybody.

Don Fowler, the Democratic National Committee chairman, says he expects that the Supreme Court ''is going to lift these [spending] restrictions in some fashion,'' which is OK with his party as long as they are not lifted completely. One compromise would be to have a time period imposed by law, some months before an election, in which any ad advocating support for or opposition to a candidate, expressed or not, would count against a state party's spending limit in a federal race.

Mr. Wertheimer sounds a dire warning. ''We can't be in a position where the Supreme Court says there is no way to protect against corrupting democracy.'' But Ms. Baran counters that the way to protect against the undue influence of money is by monitoring it ''on the receiving end,'' with the reporting of campaign contributions.

''The stakes are very big, in this case,'' Mr. Wertheimer says, ''because the court can rule in a way that can undermine our whole system of campaign financing.''

Jack W. Germond and Jules Witcover report from The Sun's Washington bureau.

Pub Date: 4/22/96

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