Civil warrior

John McCain gives glamour to the battle for campaign-finance reform,
but foot soldiers like John Bonifaz are doing the dirty work

by Ben Geman

JOHN BONIFAZ HAS large glasses and a mop of thick, dark hair topping his slight frame. Partial to the casual, baggy clothes of a graduate student, the 34-year-old could pass for someone a decade younger. It's not obvious from his appearance, but Bonifaz, the founder and head of the Boston-based National Voting Rights Institute, is a key player in the debate over the role of money in politics. Though reformers such as US Senator John McCain may grab the headlines, it's people like Bonifaz who are busy implementing a legal strategy that may radically change how American elections are funded.

Right now, part of that strategy is unfolding in a setting that's as low-profile as Bonifaz himself: the federal courthouse in Burlington, Vermont. That state's Republican Party, pro-life advocates, and the Vermont American Civil Liberties Union have filed suit against the state to overturn Vermont's tough "clean elections" law. Passed in 1997, the law sets new limits on campaign contributions, creates public funding for the governor's and lieutenant governor's races, and sets spending caps in all statewide and state legislative races. Spending in the gubernatorial race, for instance, is capped at $300,000 for challengers and $255,000 for incumbents -- even if a candidate is funding a campaign with private money. The law also creates new regulations for interest-group spending on behalf of candidates, which is one of the things the right-to-life advocates are upset about.

Opponents of the clean-elections law say the spending limits violate candidates' First Amendment rights to free speech. Arguments before Judge William K. Sessions III ended in late May, and a ruling could come this month. Regardless of what Sessions decides, the losing side is likely to appeal, which could bring the issue of campaign finance one step closer to an airing before the Supreme Court. If the issue is eventually heard by the high court, the justices may be forced to revisit Buckley v. Valeo, the landmark 1976 case that basically equated campaign spending with free speech. The complicated Buckley decision holds, among other things, that campaign expenditures can't be curbed because doing so would limit a candidate's speech. That makes Vermont's clean-elections law "an exercise in defiance of free speech in our country," says attorney James Bopp, an experienced campaign-finance lawyer representing the Vermont Right to Life Committee.

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At the ballot box THE BOSTON-BASED National Voting Rights Institute says that the fight to get big money out of politics is the latest in a long line of struggles to ensure equal access to the ballot box. Listed below are some key legal decisions and laws that codified the long and continuing popular struggle for fair elections. 1870: The 15th Amendment to the Constitution bans federal and state governments from restricting voting on the basis of race. Some states, though, use Jim Crow laws to continue barring African-Americans from voting. 1920: The 19th Amendment to the Constitution gives women the right to vote. 1927: The Supreme Court rules in Nixon v. Herndon that a Texas law excluding blacks from primary voting is unconstitutional. It's the first of several rulings aimed at ending "white primaries." 1953: In the case of Terry v. Adams, the Supreme Court bars a cousin of the already outlawed "white primary" practice of excluding blacks from elections. The whites-only Jaybird Democratic Association in Texas -- a private club -- is banned from holding an exclusionary "pre-primary" nominating process to select Democratic candidates to run in state elections. 1964: With its decision in Reynolds v. Sims, in which Alabama voters charged that the state's legislative districts were unfairly drawn, the Supreme Court says that state legislative districts must adhere to the "one man, one vote" principle. It's one of several rulings in the early and mid 1960s that address fair representation. "Legislators represent people," writes Justice Earl Warren, "not trees or acres." 1965: The Voting Rights Act is signed into law, aimed at ending Jim Crow laws that prevented blacks from voting. The act, among other things, bans practices such as barring voters because of their literacy or educational levels. 1966: The Supreme Court, in Harper v. Virginia Board of Elections, agrees with Virginia resident Annie Harper that "poll taxes" imposed on voters are discriminatory. The 24th Amendment to the constitution, ratified in 1964, had already banned them in federal elections. "Voter qualifications," the Court says, "have no relation to wealth." 1972: In Bullock v. Carter, the Supreme Court strikes down the practice of high candidate filing fees in Texas, which had made it impossible for less wealthy candidates to run. -- Ben Geman

The National Voting Rights Institute is litigating the case alongside the state, representing "intervenors" -- groups that are allowed by the court to join the state's defense. In this case they include VermontPIRG, the Vermont League of Women Voters, and state legislators.

To Bonifaz, defending Vermont's law is part of the struggle to end what he calls "the wealth primary," the system of private election financing that gives wealthy candidates and campaign contributors extraordinary influence over elections. If the Supreme Court were to overturn Buckley v. Valeo, it would be a critical victory in the battle. It would also be a step toward Bonifaz's larger and more ambitious goal: full public financing of elections, with mandatory spending limits.

The wealth primary is part of what made George W. Bush the front-runner in the GOP presidential primary and caused some candidates, including Elizabeth Dole and John Kasich, to drop out before a single vote was cast. Insidiously, the wealth primary prevents many candidates with good ideas from making headway at all levels of government. More than ever, candidates with deep pockets thrive; lesser-funded candidates succumb to them with alarming consistency (see "By the Numbers," page 9), while many others never make it into the race at all.

Meanwhile, a voter who can afford a $1000 donation to a candidate has more influence over the process than the citizen whose only contribution is a vote on Election Day. And with the cost of this year's federal election cycle estimated at $3 billion, the influence of private money in the election of public officials has never been higher.

The wealth primary, Bonifaz says, prevents non-wealthy voters and candidates from having an "equal and meaningful" role in elections, in much the same way that African-Americans and women were once shut out of the process. Therefore, he says, campaign finance is not just a free-speech issue -- it's also one of civil rights. "The right to vote," says Bonifaz, "is not just the right to pull that lever on Election Day."

IN STARK contrast to his unassuming appearance, Bonifaz, who received a MacArthur "genius grant" last year, has a high level of energy. Very high. Someone who went to Harvard Law School with him describes him as an "effervescent Energizer bunny." It's not hard to see why.

Several months ago, Bonifaz stood outside Fenway Park during a press conference with Ralph Nader to protest public financing of a new ballpark. As Nader spoke, Bonifaz cheered him on like a fan encouraging a player at bat: "Okaay, Ralph! All right, Ralph!" he yelled from the back of the small crowd.

That energy -- times five -- 
surfaced again last month. Standing outside the State House office of Tom Finneran at a demonstration against the House Speaker's efforts to gut the state's successful 1998 clean-elections referendum, Bonifaz was even more pumped up, chanting, "Stand by the voters! Stand by the voters!" alongside other demonstrators.

A demonstrator who knew Bonifaz asked him to make an impromptu speech, and he gladly complied. "This is about democracy, and that's why we are here -- as voters, as citizens, we care about this political process," Bonifaz said, his small, wiry frame illuminated by the glare of a television-camera light in the dim State House hallway.

As he gained momentum, his slightly nasal tone rose to a shout. "It does not just belong to the monied interests! It does not belong to the monied few! In a democracy, public elections must be publicly financed! We are not going to sell the public streets to the highest bidder! We are not going to sell out our public schools to the highest bidder!

"This is not a dictatorship! This is not a plutocracy! This is a democracy, and in a democracy, the people rule!"

In an interview at his modest Downtown Crossing office, which is decorated with pictures of Frederick Douglass, W.E.B. Du Bois, and Mahatma Gandhi, Bonifaz speaks about campaign finance in softer, more measured tones. But his critique is no less sweeping. "If society wants to set up a different structure and says we are going to have a class of elites, then let's formalize it and have them make all the decisions -- let's come out and be honest about that," he says. "But that is not what democracy is supposed to be all about. There are not supposed to be people who, with all their money and power, are supposed to have more influence. That's not democracy. That's plutocracy."

His convictions about democracy can be traced back to his childhood in Pennsylvania, where his parents instilled strong values about civil rights and social justice. His mother, Deirdre, founded an artisans' cooperative for poor craftswomen. Some of the board members, such as Nettie Young of Alabama, were veterans of the civil-rights movement who would come and stay with the family.

"It brought these folks into our home, so I met people from Appalachia, the Deep South," he says. "My mother would sit me down and say, `Ask some questions.' "

"They told me stories of the civil-rights movement and how they had engaged in incredible efforts to overcome Jim Crow," he recalls. "Nettie Young has this one very vivid image she gave me, when she was walking up the steps of a courthouse to try and vote, and there were policemen and dogs on the steps. They were more scared than she was. That . . . made her understand that she was not alone in her fear and that she could be strong in the face of that, because she saw that there were others who even more scared on the other side. That's an image that I've kept all along."

Bonifaz's father, Cristobal -- an Ecuadorian immigrant who's now an activist attorney in Western Massachusetts -- helped start a group that worked with migrant farm workers to better their conditions. From the time John was a child, he would go with his father to the workers' camps. Cristobal recalls that once, when John was about five years old, the boy tried to stare down a rough-looking crew leader who was intimidating the advocates.

Activism stuck with Bonifaz. In high school, for example, he went to Washington, DC, to demonstrate for a nuclear-weapons freeze; at Harvard Law School, which he attended after graduating from Brown University, he participated in a sit-in to fight for a more diverse staff. He's remained close to his father and is currently working with him in another social-justice arena that's far removed from campaign finance. Cristobal is a lead attorney in a closely watched class-action suit against Texaco brought on behalf of 30,000 indigenous Ecuadorian rain-forest dwellers whose homeland was badly contaminated by the firm's drilling practices. Think A Civil Action, but on a much bigger scale.

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By the numbers JOHN BONIFAZ AND the National Voting Rights Institute want radical changes in an electoral system that consistently rewards the wealthiest candidates. Bonifaz also believes that the private election-finance system gives undue influence to monied donors at the expense of ordinary voters. But just how bad is the problem? The numbers below provides some examples of the high -- and rising -- admission price for office at the local, state, and federal levels. Boston: the most recent race for the Boston City Council shows that money helps determine who wins and who loses at the local level. After analyzing the 1999 Boston City Council election, the nonprofit Massachusetts Money in Politics Project found that: * in the at-large race -- that is, the race for the four seats selected by voters across the city -- the winning candidate spent an average of $115,358. By contrast, the average loser among those candidates who made it into November's final election spent $45,104. (These amounts do not include at-large candidate Andrea Morrell, who did not report campaign spending.) * in the district races for the seven contested seats, the average winner spent $40,696. Meanwhile, the average loser spent $22,147. It should be noted that some of the candidates faced only token opposition. Massachusetts: Figures compiled by the Massachusetts Money in Politics Project provide evidence that the "wealth primary" system prevails here. The group points out that candidates with spending advantages won 90 percent of state legislative elections and every statewide election in 1998. Its analysis also found that: * in contested races for the House of Representatives, the average winning candidates spent $38,729 in 1998. By contrast, the average losing candidate spent just $16,185. * in Senate campaigns, the differences are equally stark. In 1998's contested Senate elections, the average winning candidate spent $85,315. The average loser spent $35,938. The national picture: In federal elections, the wealth primary also dominates. That's true at the very top, where Texas governor George W. Bush's war chest scared off several challengers. The influence of wealth is made even clearer by examining trends in congressional races. Figures compiled by the Washington, DC-based Center for Responsive Politics show that: * in the 1998 elections, the higher-spending candidate failed to win in just 16 out of 435 races for the House of Representatives (44 of the races were unopposed). The same year, the higher-spending candidate won all but three of the 34 Senate races. * in 1998 races for the Senate, the winning candidate spent an average of $5,227,761. By contrast, the losing candidate spent an average of $2,839,813. * in 1998 races for the House of Representatives, the winning candidate spent an average of $650,428. The average losing candidate spent $210,614. -- BG

In some ways, Bonifaz has benefited from the best of both his parents. Like his father, he's ventured into law and activism, but his strategy also draws from mother's teachings about how social-justice movements work. He understands, for instance, that the courts are only part of the equation. "Any legal movement has to be grounded in a grassroots movement," Bonifaz said after his speech at the clean-elections demonstration. "This is the core of making any kind of change happen."

All of which has given Bonifaz some much-needed perspective on his battle to reform campaign finance. He's comfortable with the idea that full public financing or the collapse of Buckley v. Valeo may be decades away. Maybe the reason he's willing to wait is that he truly looks forward to living in a different kind of democracy. "What's wrong," he asks rhetorically, "with the coal miner, the teacher, the farmer running for president?" There's no hidden comfort with the establishment here.

THE EXPLICIT link between campaign finance and voting rights is about a decade old. In 1990, the connection between campaign finance and civil rights surfaced at a conference of the Working Group on Electoral Democracy. At that conference, civil-rights veteran Gwen Patton described the need to rid politics of private money as the "unfinished business of the voting-rights movement."

"That clearly captured the essence of the challenge, which was to think entirely differently about this issue and see it as part of the continuing struggle for an equal and meaningful vote for all citizens," says Bonifaz. He wasn't there, but a paper sparked by the conference caught his attention, and he went on to write his third-year law-school thesis on election financing. A few years later, while working at the Washington, DC-based Center for Responsive Politics, he expanded the issue and co-authored a paper on the wealth primary that serves as the basis for much of the National Voting Rights Institute's work.

Although campaign finance is often battled on First Amendment grounds, Bonifaz has expanded the debate. He sees the wealth primary on a continuum with other historical barriers to voting and running for office -- barriers such as property ownership, race, and gender (see "At the Ballot Box," page 8). One day, Bonifaz hopes, the wealth requirement for seeking office will also fall. Ellen Miller, director of the Washington, DC-based Public Campaign, a group that supports public financing for elections, credits Bonifaz's analysis with helping reshape the money-in-politics issue. "Most had thought of [campaign finance] as a sort of `good government' issue," says Miller, under whom Bonifaz worked when both were at the Center for Responsive Politics in the early 1990s. "He was the first to frame it as an issue of equality and ethics."

In discussing the influence of money over politics, Bonifaz likes to bring up the example of Annie Harper, a poor Virginian who, during the civil-rights movement, successfully challenged the state's "poll taxes," which were used to prevent blacks from voting. He talks about the Jaybird Democratic Association of Texas, which allowed only white voters to nominate primary candidates until the Supreme Court squashed the practice in 1953. That was a cousin to a series of cases targeting the "white primaries," which were knocked down by court decisions in the 1920s, '30s, and '40s. It's no coincidence, he says, that "wealth primary" sounds like "white primary."

Although meaningful campaign-finance reform has been elusive at the federal level, state-level reforms are providing some good models. Clean-elections laws have been approved in four states -- one being Massachusetts, where advocates fear the legislature will gut key provisions of the bill before it can be enacted. The others are Vermont, Maine, and Arizona. The various laws set forth a combination of spending limits and comprehensive public financing. They also contain provisions that encourage candidates to raise money through small contributions and discourage the influence of private "independent expenditure" campaigns and money from outside the candidate's district or state. The number of such laws could expand this year, as clean-elections proposals will go to the voters in Missouri and Oregon. Bonifaz believes that the recent clean-elections statutes passed in Maine, Massachusetts, and elsewhere will eventually prove that a publicly financed election system can work. "More and more candidates will see it's far better for them to engage in meeting with voters, talking about their ideas and visions . . . rather than going around to cocktail receptions," he says.

Today, the National Voting Rights Institute is involved in about half a dozen campaign-finance court cases around the country. It helped successfully defend Maine's clean-elections law on behalf of activists in that state, making arguments as a "friend of the court," and it defended a Cincinnati law limiting candidate expenditures, which was shot down. The group's most ambitious work may be in North Carolina, where the institute is working with several other groups on a lawsuit alleging that private election financing violates the equal-protection rights guaranteed by the state constitution. The lawsuit calls for replacing the current system with public financing. The case, filed late last year, embodies two key aspects of the strategy employed by Bonifaz and his allies: pushing for radical change in campaign finance, and winning it through the courts rather than merely pushing legislation.

In this sense, the voting-rights institute is a battering ram of sorts against the status quo. "They are the legal shock troops that press the courts to defend good laws and rewrite old decisions that get in the way of real reform," says David Donnelly, a friend of Bonifaz and director of Massachusetts Voters for Clean Elections, which led the successful 1998 state referendum that created a public-financing system for state elections.

A lot of people work on campaign finance, but it may be Bonifaz who has a mind sharp enough to make real headway. Eventually. "By pushing over and over and over again, I think that he may one day persuade the court that he is right, which would be a revolutionary change in the way the courts have been thinking about the role of money in politics," says E. Joshua Rosenkranz, head of the Brennan Center for Justice at NYU School of Law, another group advocating for the Supreme Court to revisit the Buckley decision.

"I don't think the court is ready for it now," he adds. "But the court was not ready to abolish `separate but equal' for many decades either."

Ben Geman can be reached at
bgeman[a]phx.com.