|By John F. Lauerman|
Like many lifelong commitments, this one began with a school project. In 1992, John Bonifaz wrote a third-year Harvard Law School thesis titled "Money in Politics and the Right to Vote: A Legal Strategy for Challenging the Private Financing of Elections." The paper begins: "Money has become the critical factor in determining who competes and who wins in elections. . . . We have long operated under the assumption that public elections can be privately financed. It is time for us to reassess that assumption."
Six years later, Bonifaz '87, now executive director of the Boston-based National Voting Rights Institute, has positioned himself to challenge that assumption before the U.S. Supreme Court. A slight, neatly dressed, smooth-faced thirty-two-year-old, Bonifaz was once described in the New Yorker as "bespectacled and somewhat mop-topped." Despite this bookish appearance, litigators underestimate him at their peril. He has a reputation for extraordinary preparation, on one occasion even arguing his case before a moot-court consisting of Harvard Law dons Charles Ogletree, Richard Parker, and Frank Michelman. Born into an activist family, Bonifaz founded the National Voting Rights Institute to accomplish one thing: to take private money out of public elections.
"He's continually breaking new ground and coming up with creative ideas," says long-time activist Randy Kehler, who made headlines last year when the Internal Revenue Service seized his house after his fourteen-year refusal to pay federal "war taxes." Kehler has known Bonifaz since the latter was a high-school nuclear-disarmament activist. "He surrounds himself with talented people who are won over to him and what he's doing."
It was Kehler, himself the founder of the Working Group for Electoral Democracy, who inspired Bonifaz to take on campaign-finance reform in the first place. Kehler formed his group out of the belief that legislators were disregarding popular sentiment about nuclear weapons because their campaigns were increasingly funded by moneyed interests benefiting from the arms race. Somehow, Kehler came to believe, money and politics had to be divorced, or at least estranged, from one another. In 1991, Kehler published a memo on the topic that hooked Bonifaz. "He more than nibbled at it," Kehler says. "He grabbed it. He wrote his thesis on the idea, he developed this constitutional theory around campaign spending, and he created a national buzz with his lawsuits."
The buzz began in 1994, when Bonifaz joined New York City Councilman Sal Albanese and a group of local voters in suing both the Federal Election Commission (FEC) and then-U.S. Representative Susan Molinari (R-N.Y.). Albanese, whom Molinari had defeated two years earlier, charged that the election had been unfair because of Molinari's incumbency and her having outspent him $524,000 to $267,000. Albanese and his co-complainants argued that less wealthy voters had been harmed by the infusion of money from wealthier donors. In effect, they sued the FEC to restructure campaign law to remove these inequities. The case was dismissed after Molinari, labeling Albanese a sore loser, pointed out that she had complied with all election guidelines. The judge ruled that no one had been harmed because no one had been prevented from voting.
Bonifaz, not surprisingly, maintains that this is a misreading of the law. "The right to vote is far more than pulling the lever on election day," he says. "It's the right to equal participation in the political process. I think Sal Albanese and the voters in this suit will go down in history as being at the forefront of this movement."
That Bonifaz considers campaign-finance reform a movement reveals much about both his sense of mission and his background. His upbringing included a strong dose of antidiscrimination fervor. His mother, Deirdre Bonifaz, established a sales cooperative that allowed low-income, rural artisans to share more fully in the profits made from their quilts and other products. While growing up in an agricultural section of Pennsylvania, Bonifaz watched his father, an Ecuadorian immigrant, sacrifice his own career to battle for the rights of migrant workers at local mushroom farms. At the age of forty-five, Cristobal Bonifaz left his job as a DuPont chemist to earn a law degree and win better working conditions for these migrants, many of whom had come north from Latin America.
"I remember once when John was four," Cristobal recalls, "we had an exchange at one of the [work] camps. He was standing by the side of the car, staring at a farm-crew leader who looked like he was about to punch me in the mouth. John always came with me to the camps, or to demonstrations in Harrisburg or Philadelphia."
This supplement to John Bonifaz's education had a lasting effect. At Brown, where he concentrated in developmental studies, he was put on probation for his role in an anti-apartheid demonstration. He later became notorious to Harvard Law School administrators for the dean's-office sit-ins he organized to protest the dearth of nonwhite faculty and the planned closing of the school's Office of Public Interest Advising. And Bonifaz has had an opportunity to repay his father for his early education: the two of them are in the midst of a suit against Texaco for environmental damage from its oil exploration and drilling in Ecuador.
On a day earlier this fall, Bonifaz ex-plained his work while sitting in his downtown Boston office, which, on that day at least, seemed preternaturally calm. The sounds of a street musician playing a saxophone penetrated through a window closed against the fall chill. Bonifaz's deadly seriousness lies hidden beneath a genial, rosy-cheeked exterior. He is so likable, in fact, that even the Harvard Law School deans whose offices Bonifaz filled with demonstrators wore masks bearing his likeness at his commencement. When providing context for his legal work, he appears less like the angry young man attacking the summits of power than an enthusiastic high-school history teacher explaining the significance of the Teapot Dome Scandal.
"In the early-1970s post-Watergate era," he says, "it appeared that there were hundreds of thousands of dollars flowing through the Nixon White House. This spurred an enormous amount of Congressional interest in substantial reform." In 1974, legislators passed sweeping amendments to the Federal Election Campaign Act, including overall limits on campaign spending and contributions, the formation of the Federal Election Commission, requirements for disclosing the source of campaign money, and the creation of a rudimentary public financing system for presidential elections. The measures ran into trouble almost immediately. On January 2, 1975, a broad coalition of plaintiffs, including Senator James Buckley, philanthropist and McGovern supporter Stewart Mott, the Mississippi Republican Party, and the New York Civil Liberties Union, filed a suit claiming that the new rules violated the First Amendment protection of free speech.
The campaign-spending curbs were upheld in a Washington, D.C., federal appeals court, which found that spending is not itself a form of speech. Rather, the court said, spending is analogous to an amplifier that can legally be turned down or off when it drowns out the speech of others. But after an almost eerily expeditious journey through the courts, the U.S. Supreme Court in 1976 handed down a tortured 294-page opinion. As if to suggest the complexity and ambiguity of the case, two justices wrote concurring opinions, one dissented, and yet another both dissented from and supported the ruling. The final verdict of the court was clear, however: campaign spending is equivalent to speech, and the Congressional limits on spending violated First Amendment rights. Overturning Buckley v. Valeo became the Holy Grail of campaign finance reform.
"Everyone has a right to speak out about political matters, and that includes candidates," says James Bopp, an Indiana lawyer who represents the National Right to Life Committee and is opposing Bonifaz in an Ohio campaign-spending case. "When you impose an expenditure limit, you limit the speech they can engage in. Citizens already know a woefully small amount about what candidates stand for. The solution isn't less information, but that's what spending limits impose."
To Bonifaz, the issue is not free speech but the disenfranchisement of ordinary citizens. Elections, he believes, have become a "wealth primary," in which only the richest and most powerful interests have a say. The vast sums needed to participate in the wealth primary prevent the majority of Americans from either running in or significantly influencing the outcome of elections. What's more, the victor in the wealth primary almost always wins the general election that follows it: in federal elections, top-spending candidates defeat their opponents almost 90 percent of the time. The money-raising contest also favors incumbents, whose campaigns are underwritten by political-action committees and special-interest lobbyists interested in preserving the status quo.
According to Bonifaz, the wealth primary is the latest manifestation of a discriminatory tradition that dates back to the time of the founding fathers, when only white male property owners were permitted to vote. Eventually women and nonwhites won the vote, yet even then many states held elections in which only whites were permitted to run. When the U.S. Supreme Court prohibited these "white primaries," white "Jaybird Association" Democrats began meeting informally to rally the white vote for chosen candidates; the practice did not end until 1953, when the Supreme Court ruled in Terry v. Adams that the white primary excludes certain citizens from "the elective process that determines who shall rule and govern."
Electoral loopholes favoring people with money were closed even more recently. Several southern states charged "poll taxes" to vote in elections until the mid-1960s, when court challenges and the Twenty-Fourth Amendment outlawed them. Some states charged candidates "filing fees" - sometimes in excess of $8,000 - to enter even small, local races. "Poor but serious candidates were excluded," Bonifaz and co-author Jamin Raskin write in their slim 1994 volume, The Wealth Primary, "while wealthy, frivolous candidates were not." In 1972, the Supreme Court ruled in Bullock v. Carter that filing fees violated the Fourteenth Amendment's guarantee of "equal protection under the law" for all citizens. To Bonifaz, such decisions are the legal basis for comprehensive campaign finance reform. Since 1994, as the staff of the National Voting Rights Institute has grown to seven, Bonifaz has battled the wealth primary on several fronts nationwide. Like most campaign-finance activists, his battlegrounds have been far from Washington, D.C. For example, the institute has joined the NAACP in both Los Angeles and Georgia to bring suits similar to the one in the Albanese case, arguing that too much private money swings an election away from disenfranchised voters. The institute is also working in such states as Vermont, Maine, New Mexico, and Ohio, where it defends state-mandated campaign-spending limits and publicly financed election laws.
The biggest fight has been in Cincinnati, where in 1995 city councilors weary of filling bottomless campaign war chests passed an ordinance limiting campaign spending to about three times their salary, or $140,000. In contrast, the maximum spent before the law passed grew from $75,000 in 1989 to $325,000 in 1996. Bonifaz and the institute, armed with supporting briefs filed by twenty-four states, defended the law against John Kruse, a computer salesman who has run three times for city council and lost. In 1997, a U.S. District Court judge found the law unconstitutional, and this spring the U.S. Court of Appeals for the Sixth Circuit affirmed that decision.
Bonifaz was delighted. This was the opportunity he'd been waiting for. He has now begun preparing a brief that he hopes will persuade the U.S. Supreme Court to hear the case and will lead to the judges' first reconsideration in twenty-two years of Buckley v. Valeo.
Given the electorate's recent fondness for campaign-spending limits - several states, including Massachusetts, passed laws this year allowing candidates to receive a limited amount of public campaign money - it's not surprising that Bonifaz has picked up plenty of support. "I put him in touch with a person on the Democratic steering committee," says Stacy DeBroff '83, who directs the same Office of Public Interest Advising at Harvard Law School that Bonifaz fought to protect several years ago. "The next day they had nineteen senators signing on to a petition urging the Supreme Court to take the Cincinnati case. I put him in touch with a former state attorney general from Maine, and now half the attorneys general in the country have signed onto another Supreme Court petition. People just sit down with him for a few minutes, and they're inspired, they're won over."
At the top of the U.S. Senators' petition is the signature of Jack Reed (D-R.I.), who watched the Republican National Committee purchase $1.5 million in advertising for his opponent during the six months leading up to the November 1996 election. All the ads were paid for with so-called "soft money," the unregulated contributions to political parties that avoid the restrictions placed on contributions to individual candidates. Reed's opponent, in other words, did not have to raise or account for the money used for the ads. Although Reed won the election, the experience changed his views and prompted him to support Bonifaz's crusade.
"Elections have been transformed into auctions rather than discussions of issues," Reed says. "Increasingly, people are becoming cynical, disgusted, and reluctant to vote because of the amounts of dollars spent in races. John's attempt to give the Court the opportunity to reconsider the Buckley decision is one of the most important public-policy efforts I know of."
Another Bonifaz ally is Ken Hechler, a former speechwriter for Harry Truman who, during nine terms as a U.S. Congressman from West Virginia, helped pass the campaign spending reforms that Buckley rendered invalid. Hechler, who turned eighty-four in September, gave up his House seat in 1976 to run for the Democratic nomination for governor against John D. Rockefeller IV and proceeded to get a hard lesson in campaign financing. "I decided to give up a safe seat in Congress, where I'd been for eighteen years, to run in the primary against him," Hechler recalls, "and it was like lying down in front of an Army tank."
The steamrolling stayed with Hechler, who since 1985 has been overseeing West Virginia's elections as secretary of state. Hechler is so passionate about Bonifaz' campaign that he has been working evenings and weekends persuading other secretaries of state to join the state attorneys general in urging the Supreme Court to hear the Cincinnati case. He equates Buckley with the Supreme Court's 1891 Plessy v. Ferguson decision, which sanctioned racially segregated railway cars, and later schools, that were "separate but equal." Until big money and politics are separated, Hechler argues, we will never have a truly representative government. "Unfortunately," he says, "Buckley protects the freedom of speech of millionaires and those who sell their souls to special interests, but there isn't equal protection for young and non-affluent people."
Grateful for all this support, Bonifaz nevertheless has a marathoner's perspective. As Steve Donziger, a law- school classmate, says, "You don't win these cases, you struggle for twenty-five years." Donziger adds that Bonifaz's skill as a marathoner has been obvious since their days in school. "Our first sit-in at the dean's office was a shocking surprise to the administration," Donziger recalls. "It was the spontaneous result of a long rally, and no one knew what would happen. A few hours passed, and it was getting close to five o'clock. We all started wondering, Should we leave? Would we be trespassing? What would the security guards do? John took me to one side and said, 'We've got to stay. At five o'clock the dynamic changes.' And that's been our mantra ever since. Hang in there and things will start going in our direction."
John F. Lauerman's Living to 100, a study of centenarians, will be published this spring by Basic Books.
On November 16, the U.S. Supreme Court denied without comment Bonifaz's request to review the Cincinnati case.