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No. 02-1674 

================================================================ 

In The 

Supreme Court of the United States 


----♦-- -

MITCH McCONNELL, SENATOR, et al., 

Appellants, 

v. 

FEDERAL ELECTION COMMISSION, et al., 

Appellees. 

----♦-- -

On Appeal From The United States District Court 

For The District Of Columbia 

----♦-- -

BRIEF OF RODNEY A. SMITH AS 


AMICUS CURIAE IN SUPPORT OF APPELLANTS 


----♦-- -

CLARK BENSEN


3112 Cave Court 


Lake Ridge, Virginia 22192 


(703) 690-4066 


(Counsel of Record) 


================================================================ COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 

OR CALL COLLECT (402) 342-2831 
i 

TABLE OF CONTENTS 

Page 

STATEMENT OF INTEREST OF AMICUS CURIAE . 1 


SUMMARY OF THE ARGUMENT ............................ 2 


Part 1 .......................................................................... 2 


Political Fundraising.................................................. 2 


The Current Political Fundraising Market................ 3 


The Changing Political Fundraising Market............. 5 


The Changing Techniques of Marketing .................... 7 


Modes of Fundraising ................................................. 8 


Volume Changes Form................................................ 9 


Donor Acquisition ....................................................... 10 


Part 2 .......................................................................... 13 


Candidate Contributions ............................................ 15 


Fundraising Ratios – House....................................... 17 


Fundraising Ratios – Senate...................................... 19 


Part 3 .......................................................................... 22 


House Re-election Results .......................................... 23 


Buckley v. Valeo’s Impact on Senate Re-election 


Results..................................................................... 24 


Election Comparison – President, Senate, House ..... 25 


What is a Reasonable Amount of Campaign


Funding? ................................................................. 25 


CONCLUSION............................................................ 26 


APPENDIX ......................................................................... 1a 
ii 

TABLE OF AUTHORITIES 

Page 

CASES 

Buckley v. Valeo, 424 U.S. 1 (1976) ............................passim 
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1 

STATEMENT OF INTEREST OF AMICUS CURIAE1 

Rodney A. Smith is a marketing and fundraising 

consultant. He has been National Finance Director for the 

National Republican Congressional Committee, Treasurer 

and Finance Director of the National Republican Senatorial Committee, and Comptroller and Finance Director of 

the Republican National Committee. He has been involved 

in fundraising efforts for many campaigns including more 

than 50 statewide efforts. In 1996, he received the “Pollie 

Award” from the American Association of Political Consultants as the “Most Valuable Player in a Campaign,” the 

only finance professional ever given this award. 

In addition to his practical experience as a political 

fundraiser, he is also a scholar. For seven years he served 

on the faculty of the University of Maryland School of 

Business and has recently completed a book-length manuscript on campaign finance restrictions and their unintended consequences. 

This brief is based in large measure on exhaustive 

research he amassed in preparation for the writing of his 

definitive study, soon to be published, titled, “The Sunset 

of Citizen Sovereignty in America.” 

----♦-- -

1 All parties in this matter have consented to the filing of this 

Amicus Curiae Brief, as evidenced by letters of consent lodged with the 

Clerk. This brief was not authorized, in whole or in part, by any counsel 

for a party. No person or entity, other than the amicus curiae, made 

monetary contribution to the preparation or submission of this brief. 
2 

SUMMARY OF THE ARGUMENT 

The history of campaign finance reveals an early 

reluctance on the part of the nation’s political leaders to 

interfere in the operations of federal elections. Their 

instincts were sound, particularly in relation to political 

parties, which were originally organized and controlled by 

the people rather than by government. In the first decade 

of the 20th century, the U.S. Congress began to commandeer the electoral process and to dictate to political parties 

the way in which they could collect and spend campaign 

funds. These regulatory efforts were instituted to rein in 

the undue influence of high-dollar contributors and to 

eliminate the “appearance” of corruption. The Supreme 

Court has perennially supported Congress in these efforts, 

mistakenly assuming that restrictive legislation would 

actually accomplish these ends. 

This brief argues that the unintended consequences of 

federal control have been (1) a further heightening of the 

role big money plays in elections and (2) even greater 

advantages for rich candidates, and further empowerment 

of incumbents, who as the result of this regulation are all 

but unbeatable. 

Part 1 


Political Fundraising 


America’s competitive, two-party political process is at 

the crossroads. Its life-blood, political fundraising, is under 

siege. Marketing, technological, legislative and market 

changes have emerged almost simultaneously to undermine political fundraising and exponentially increase its 

complexity and cost. Under the best of circumstances, 

political fundraising is a hard sell. These ever-increasing 
3 

restrictions are making it infinitely more difficult to raise 

regulated so-called “hard” dollars. 

Without an adequate, continuous supply of money, our 

political process, the best in history, will fall apart – a 

victim of well-intended campaign restrictions that have 

substantially shut down the political debate they were 

intended to foster. 

The single most devastating blow to hit political 

fundraising is the financial stranglehold imposed by the 

Supreme Court’s decision in Buckley v. Valeo, 424 U.S. 1 

(1976), which has only been made worse by the passage of 

the Bipartisan Campaign Reform Act. 

While campaign finance reform has mandated 

changes in political fundraising, none of the finance 

reform laws provide a funding mechanism, other than 

scarce “regulated dollars” (money raised in compliance 

with federal regulations) to pay for the development of 

systems needed to operate any new form of fundraising. To 

draw an analogy with the commercial world, what campaign finance reform has done to political fundraising is 

similar to what would happen if a law were passed outlawing high-priced jewelry and Tiffany’s had to immediately 

become a “Wal-Mart” without the benefit of any of the 

elaborate support systems that enable Wal-Mart to effectively and efficiently function. 

The Current Political Fundraising Market 

According to the Federal Election Commission 

(“FEC”), the population of the United States in April 2000 

was 281,421,906, of which 209,128,094 represent the 

voting age population. In November 2000, 101,452,285 
4 

people voted for the two major party Presidential candidates (or 48.5% of the eligible voters). 

FEC data shows that during the 1999-2000 Presidential election cycle, barely 1% of Americans gave a campaign contribution to a federal candidate, political party 

committee or Political Action Committee. 

The Donor Matrix (see Appendix Chart A) shows a 

breakdown of the people nationwide who made a political 

donation during the 1999-2000 Election Cycle. 

Chart A shows that approximately 3.5 million Americans made a political contribution at the federal level 

during the 1999-2000 election cycle. This figure represents 

only 1.2% of the total U.S. population and 1.7% of the total 

voting age population. Eighty percent of these donors, or 

roughly 2.7 million people, gave less than $200. These 

smaller contributions are the most time-consuming and 

expensive to raise. In terms of $200+ donors, there is 

roughly one donor (Republican, Democrat or Independent) 

for every 350 people, or one donor out of every 200 households in the average congressional district. What this all 

means from the point of view of fundraising is that trying 

to raise significant amounts of money in any given congressional district for a political party or candidate is 

difficult and not unlike trying to find a large number of 

needles in the proverbial haystack. 

It is important to note that according to a survey 

conducted by McLaughlin and Associates back in 2000, 

these estimated 3.5 million donors represent a reasonable 

guess of the entire known universe of known political 

donors in America. These people supply all the individual 

donor money for all the committees and candidates – 

including Republicans, Democrats, and Independents 
5 

across the country. That means this small group supplies 

all the individual donor money for Presidential Candidates, Senatorial Candidates, and House Candidates; for 

all state and local candidates, for all national, state and 

local party committees, and for all federal reporting 

political action committees. 

The Changing Political Fundraising Market 

When the Supreme Court made its landmark ruling in 

Buckley v. Valeo, 424 U.S. 1 (1976), the dominant political 

fundraising audience in America was the “Patriot Generation,” consisting of people born before 1925. The year 1925 

is important because it is the last year an individual could 

have been born and suffered through the depression and 

been old enough to fight in World War II, both of which 

were life-altering experiences. 

Think what America was like prior to 1925. No television, no Internet, few phones, some cars, and lots of small 

towns. Children raised during this time were generally 

taught to believe that their role as citizens was to make 

society better. They joined groups like the Boy and Girl 

Scouts; they respected authority, leadership and civicmindedness. Growing up in a national “small town” 

culture, gave them a sense of civic duty and patriotism. As 

they aged, they volunteered and donated money because it 

was part of their inner image. 

Over 60 million Americans born prior to 1925 were 

alive in 1976. As children, this pre-1925 generation looked 

at such things as Sears & Roebuck and Montgomery Ward 

catalogs for entertainment as well as for shopping. They 

grew up with mass communication conducted via letters, 

newspapers, magazines, billboards, and catalogues. They 
6 

were accustomed to doing things through the mail. When 

the political contribution limits first went into effect in 

1976, this generation was largely an untapped source of 

political giving. Thus, direct mail appeals to the Patriot 

Generation audience became an important source of new 

money and helped offset some of the sting imposed by the 

new financial restrictions. Subsequent to the Buckley v. 

Valeo decision this Patriot Generation audience became 

the broad-base financial backbone for most political 

organizations. Prior to that decision most political support 

was received via a smaller number of larger contributions, 

which was and still is the least expensive way to quickly 

raise substantial sums of money. 

Now at the dawn of a new century most of the Patriot 

Generation has disappeared. As a consequence, that 

source of reliable revenue for political organizations is also 

substantially gone. Most of the political financial support 

being generated right now is coming from the Depression/World War II generation (i.e., people born between 

1926 and 1945). In terms of psycho-graphics, this “Transition Generation” contains a mixture of characteristics from 

both the Patriot Generation and the later Baby Boomer 

Generation (1946-1964). 

The parents of the Transition Generation drilled the 

lessons of the Great Depression into the heads of their 

children. Thus, the people born between 1926-1945 tend to 

be organization-loyal and value-oriented. They resemble 

their parents in that they tend to give generously to 

charity. The problem with this Transition Generation in 

terms of fundraising is its size; it only represents about 

12% of the adult market. So as a source of political funding, their potential is limited. 
7 

The most important fundraising market today is the 

huge “Baby Boomer Generation” (70 million) whose 

propensity for giving to political organizations and candidates is still largely unknown. Equally troubling is the fact 

that the marketing techniques and tools to entice “boomers” to make political contributions are also largely undeveloped. 

“Boomers” tend to be self-centered. They were told life 

is a voyage of self-discovery and that they could do anything they wanted. They are the only generation that 

ended a war (Vietnam) and brought down a president 

(Nixon). They grew up watching lots of television and 

using the telephone extensively. They tend to buy first, 

pay later, use credit cards and like monthly payment 

plans. They accept the phone and TV as methods of 

transacting business. In short, the psycho-graphic profile 

of the Baby Boomer Generation is far different from the 

psycho-graphic from that of their Patriot Generation 

elders. 

The Changing Techniques of Marketing 

What this shift in psycho-graphic profiles from the 

Patriot Generation to the Baby Boomer Generation means, 

in terms of broad-based political fundraising, is that the 

old fundraising paradigm of mass marketing, including 

mass media, mass mail, and even mass telemarketing, is 

slowly giving way to a radically new marketing paradigm 

specifically targeted at Baby Boomers and the younger 

emerging markets. 

These new marketing techniques are best explained 

simply as “one-to-one” marketing. Instead of raising 

money via mass mailings to a single homogeneous group 
8 

like the Patriot Generation, we are heading toward a time 

when to be successful at mass marketing fundraising, 

political organizations will have to be able to generate 

customized, individualized appeals. Books like The One to 

One Future and Enterprise One to One by Don Peppers & 

Martha Rogers; The Next Economy by Elliott Ettenberg 

and Defining Markets Defining Moments by Geoffrey E. 

Meredith & Charles D. Schewe all discuss various aspects 

of this emerging reality. An example of the marketing 

change now taking place in politics is the decline in money 

being raised from the Patriot Generation via direct mail 

and the increase in money being raised from the Transition Generation and the leading edge of the Baby Boomer 

Generation via telemarketing. 

To meet the new marketing demands and emerging 

marketing paradigm, political organizations and candidates will have to be able to access communication systems that provide the ability to interact with people on the 

issues that are important to each individual via the 

medium preferred by the person. However, campaign 

finance laws block the access to financial resources and 

cooperative business relationships necessary to effectively 

develop such sophisticated marketing systems. Therefore 

every political organization’s ability to compete in the 

evolving new fundraising world is seriously hampered. 

Modes of Fundraising 

There are four ways to ask an individual for money: 

(1) send them a letter (Direct Mail); (2) phone calls 

(Telemarketing); (3) face to face (Finance Committee); and 

(4) send them an email (Internet). It should be noted that as 
9 

the volume of people contacted increases via the implementation of one or more of these modes of fundraising, 

the nature of the fundraising effort changes. 

Volume Changes Form 

As the size of something increases, the more its form 

tends to change. For example, the various functions that 

occur within a typical congressional campaign often look 

substantially the same as these same functions occurring 

within a Presidential campaign. But they are not always 

the same thing. At some point, the sheer volume of the 

number of units involved in a particular function will force 

a change in its form. 

A simple example of this dynamic is the function of 

processing contributions. Every campaign has to process 

checks. Yet a clerk processing two thousand checks over 

the course of a congressional campaign has a far different 

kind of check processing system than the check processing 

system for a Presidential campaign that receives several 

hundred thousand checks over the same time period. This 

principle of “volume changing form” impacts every aspect 

of fundraising, particularly as political fundraising scrambles to offset the loss of large contributions. 

The Volume Chart (see Appendix Chart B) illustrates 

that as the volume of contributions received increases and 

the average contribution declines, the cost of generating 

the additional contributions also increases. This is a 

mathematical certainty. As a consequence to make up for 

lost revenue resulting from the imposition of contribution 

limits, the volume of smaller contributions must increase 

as the average contribution amount declines. This dynamic results in unavoidable higher fundraising cost. 
10 


In fact, there is an inverse functional relationship 

between fundraising cost and average contribution. The 

higher the average contribution, the lower fundraising 

costs will be as a percentage of gross receipts. The reverse 

is also true. The lower the average contribution, the higher 

the fundraising cost will be. 

Chart C shows four different ways to raise one million 

dollars. See Appendix Chart C. 

Each of the examples in Chart C has its own special 

fundraising challenge. For instance, compare Example 1 

with Example 4: Attempting to get $1 million from one 

person is a radically different fundraising challenge than 

attempting to get $10 from 100,000 people. Spending $5 to 

get a $1 million contribution is nothing. But spending $5 

per contribution to raise $1 million from 100,000 donors 

seems expensive. Yet nothing has changed but the volume 

and the average contribution. The human effort, the cost, 

the mode of fundraising used, the support systems needed, 

the time involved − all these things are different for each 

and every example shown. 

Donor Acquisition 

The cost dynamic of fundraising is further complicated 

because every fundraising organization must also spend 

money “acquiring” new donors. This process is commonly 

referred to as “prospecting.” The goal in prospecting is to 

attempt to break even, which means the first contribution 

received from each new donor is used to fund the entire 

cost of an organization’s growth. However, breaking even 

at prospecting is a difficult objective to realize. In fact, it is 

often an impossible goal to achieve. In such situations an 
11 


organization’s growth must be partially funded out of 

general operating funds. 

The fact that money must be consumed to acquire new 

donors exacerbates the cost dynamics of fundraising. 

Unfortunately few people understand this aspect of 

fundraising, which invariably leads to the misperception of 

“high fundraising cost.” 

Given that the active donor audience for most political 

organizations is relatively fixed, there are only two ways a 

fundraising operation can grow. One is by increasing the 

average contribution. The other is by prospecting for more 

donors. Since the mandated contribution limits imposed by 

campaign finance reform severely limit every political 

organization’s ability to increase its average contribution 

amount, the only alternative available to candidates and 

political organizations that want and/or need to generate 

additional revenue is by acquiring more donors. 

Chart D is similar to Chart C, in that it demonstrates 

four ways to raise one million dollars. See Appendix Chart 

D. However, Chart D also incorporates an assumed $10 

acquisition cost per donor in addition to the assumed $5 

per donor fundraising cost. 

Example 1 shows a $15 or .0015% cost to raise $1 

million dollars. Dirt-cheap! But when the exact same cost 

dynamics of $5 per gift and $10 for acquisition is applied 

to 100,000 donors the total fundraising cost of $1.5 million, 

or 150%, seems outrageous. Yet none of the costs elements 

have changed. What changed is the average contribution 

and the volume of gifts. 

The reason for the huge variance between Example 1 

and Example 4 is the unavoidable functional relationship 
12 

between cost, volume and the average contribution. As 

volume and the average contribution amount change, so 

does the cost and the form of the fundraising challenge. As 

these examples clearly demonstrate, the aggregate fundraising cost as a percentage of gross receipts increases as 

volume increases and the average contribution drops. 

What campaign finance reform has done by imposing 

contribution limits on candidates and political organizations is to mandate a lower average contribution amount, 

necessitating the need to significantly increase volume in 

order to make up the lost revenue. Thus, the imposed 

financial restrictions and limits have increased every 

political organization’s fundraising costs. 

It might be argued that the increase in the allowable 

“hard dollar” contribution amounts included in the Bipartisan Campaign Reform Act has mitigated the harsh 

reality of this mathematical dynamic. However, in terms of 

real purchasing power these increases in the contribution 

limits are deceptive. The FEC is estimating that the 

inflation factor in 2004 will be 446% in terms of adjusting 

for 1976 dollars, which is when the limits were first 

imposed. When the old individual contribution limit of 

$1,000 is adjusted into 1976 dollars it is only worth $225 

in terms of purchasing power in 2004. As a consequence, 

the new individual contribution limit of $2,000 is really 

only worth $450 in terms of 1976 dollars. Thus, the new 

contribution limits incorporated in the most recent campaign reform law are not really increases because they do 

not make up for the loss in purchasing power due to 

inflation. 
13 

Unfortunately, few people in or out of politics have an 

understanding of the mathematical realities of fundraising. Moreover, this general lack of understanding may well 

mean that the next great misperception to plague political 

fundraising will be “the perception of the corruption of 

high fundraising costs.” 

Part 2 

As a direct consequence of restrictions on campaign 

contributions, Congress, with the endorsement of the 

judiciary, has made politics, like polo, a game for the rich −

the court mandated “patrician class.” People of modest 

income (the court mandated “plebeian class”) are consigned to the sidelines while the Financial Elite (see 

Appendix Chart E) support candidates or set up political 

advocacy programs outside the established two-party 

system. 

Sometimes the Financial Elite become candidates 

themselves, maximizing their chance of victory by spending as much of their own money as is needed. In recent 

elections, some candidates have spent literally tens of 

millions of dollars of their private funds. In fact, one 

political committee of a major party is actively seeking 

candidates who are multimillionaires and can “pay their 

own way.” 

What the Congress set out to do was to get big money 

out of politics. Instead, they have devised a system that 

makes it virtually impossible for citizens without personal 

wealth to compete successfully for federal office. The only 

spending constraint on the financial elite is the magnitude 

of their fortune and the amount they choose to commit to 

politics. 
14 

While wealthy candidates can and do accept outside 

financial help, this does not mean they need it. In fact it is 

not uncommon for them to lend their campaigns a substantial sum of money and then, after winning the election, raise the money needed to repay their loans. 

Candidates without personal wealth cannot do this. To 

compete successfully, non-wealthy candidates need all the 

outside financial support they can get – and in the past, 

this necessary help has come from political parties, the 

Great Equalizers in elective politics. 

Consider just one problem the not-so-rich encounter. 

While running for public office, few can work full time. In 

fact, employers could face charges of making an illegal 

corporate contribution if they kept a federal candidate on 

their payroll. Candidates without wealth often have a 

hard enough time paying their personal expenses – the 

mortgage, family groceries, credit card bills, etc. – while 

running for public office. Most do not have extra funds 

available to contribute or lend to their campaign. Thus, 

without a substantial amount of outside financial aid, 

these candidates are almost always defeated before they 

begin. 

Chart F displays a schematic diagram of America’s 

financial elite – Billionaires, Centimillionaires, Decamillionaires and simple, ordinary Millionaires. See 

Appendix Chart F. 

An estimate of the funds controlled by the “super-rich” 

is roughly $10 Trillion (see Appendix Chart G) – a staggering sum of money. To get some sense of the magnitude of 

this wealth, consider this fact – as of June 2003 our 

national debt was $7.4 Trillion, less than the combined 

wealth of the super-rich. It should be emphasized that the 
15 

figures in Chart G are only a best-guess estimate based on 

available information. But even if these estimates are 50% 

off, the amount of money controlled by the Financial Elite 

is still daunting. If only a quarter of one percent of this 

money were ever spent on politics during any given 

election cycle, it would dwarf the total sum of all other 

sources of political funding. Chart G makes the problem 

abundantly clear. 

The fact that this amount of money is controlled by a 

relatively small group of people has marginalized middleincome and lower-income candidates and has prevented 

political parties from making up the difference. The whole 

electoral process is weakened by the creation of an unpredictable, autonomous financial force outside the established order. That this will have a devastating effect on 

our competitive two-party political process is almost a 

certainty. In addition, giving this kind of advantage to the 

rich increases the possibility that someone who obtains 

significant wealth through white-collar crime, drug trafficking, mob connections or terrorist activities could use 

those dollars to become a powerful political figure in 

America. 

Candidate Contributions 

The financial information shown in the charts is 

compelling evidence that the winning of House and Senate 

races is substantially (though not exclusively) the prerogative of the financial elite. On occasion, non-wealthy candidates do win elections for federal office. But a careful 

review of the bottom section of Chart H (Senate Challengers Defeating Senate Incumbents) shows how vulnerable 

incumbents without wealth are when a member of the 
16 

financial elite decides to challenge them. See Appendix 

Chart H. 

This evidence should be disturbing to those who 

advocate heightened government control of elections in 

order to curtail the impact of money. Indeed, the increase 

of high-dollar influence coincides with the increase of 

restrictions. The more Congress fiddles with the process, 

the more they empower the very people they are trying to 

bridle. The correlation is uncanny. 

In setting up the voluminous amount of election and 

financial data for analysis (collected respectively from the 

Clerk of the House and the Federal Election Commission), 

the following five-tiered system was established to rank 

the competitiveness of campaigns: 

Rank Title Descriptions 

5 No Contest Campaigns won by 15% or more 

4 Not Competitive Campaigns won (10%-14.99%) 

3 Semi-Competitive Campaigns won (5%-9.99%) 

2 Competitive Campaigns won (2.5%-4.99%) 

1 Extremely 

Competitive 

Campaigns won (0-2.49%) 

Utilizing this competitive ranking system, Charts H, 

I, and J show the average contribution amounts for winners and losers for the period 1992-2000.2 

In reviewing the charts that follow, note that in order 

to win the seat of an incumbent, the challenger must be 

not merely a millionaire – but often a multi-millionaire. 

2 See Appendix Chart H for Senate races; Appendix Chart I for 

House races; Appendix Chart J for open seats. 
17 

These charts illustrate the startling degree to which 

money has influenced the outcome of political campaigns. 

In his book Monopoly Politics, James C. Miller states that 

332 seats are locked up for one party or the other. This 

estimate is reinforced by the fact that during the period 

1992-2000 95% of the House incumbents were re-elected. 

So the power of incumbency and the priority access of 

incumbents to regulate “hard money,” have made members 

of the House of Representatives all but immune to defeat. 

Fundraising Ratios – House 

Chart K is a detailed summary by source of all the 

money raised by House candidates for the period 1992-

2000. See Appendix Chart K. It is also the chart used to 

calculate the fundraising ratios between incumbents and 

challengers. These ratios highlight the financial advantage 

wealthy House candidates enjoy. 

House Incumbents Re-elected 

• 	 The total average dollars raised by the 1821 Incumbents was $655,044 to Challengers’ $190,012 or a 3.5 to 

1 advantage. 

• 	 The average Individual money raised by Incumbents is 

$345,978 to Challengers’ $111,129 or a 3.1 to 1 advantage. 

• 	The average PAC fundraising by Incumbents is 

$298,523 to Challengers’ $36,506, or an 8.2 to 1 advantage. 

• 	 The average personal money spent by Challengers over 

Incumbents was $42,377 to $10,543 or a 4 to 1 advantage. 
18 

House Incumbents Defeated 

• 	 The total average dollars raised by the 86 Incumbents 

defeated was $1,022,462 to the winning Challengers’ 

$638,223, or a 1.6 to 1 advantage. Note: Incumbent 

raising more money than the average winning Challenger suggests the presence of additional money being 

spent by an outside force – either a political party 

committee(s) and/or a special interest group(s). 

• 	 The average Individual money raised by Incumbents is 

$553,244 to Challengers’ $333,713, or a 1.7 to 1 advantage. 

• 	The average PAC fundraising by Incumbents is 

$443,258 to Challengers’ $194,354, or a 2.3 to 1 advantage. 

• 	 The average personal money spent by Challengers over 

Incumbents was $110,156 to $24,960 or a 4.4 to 1 

advantage. 

House Open Seats 

• 	The total average dollars raised by winners was 

$764,753 to losers’ $502,183, or a 1.5 to 1 advantage. 

• 	 The average Individual money raised by winners was 

$422,063 to losers’ $251,196, or a 1.7 to 1 advantage. 

• 	 The average PAC fundraising by winners was $226,410 

to losers’ $128,934, or a 1.8 to 1 advantage. 

• 	The average personal money spent by losers over 

winners was $122,053 to $116,280, or a 1.1 to 1 advantage. 
19 

House Incumbents Defeating Incumbents 

• 	 The total average dollars raised by the winning Incumbents was $792,539 to the losers’ $794,336, or 1 to 

1. 

• 	 The average Individual money raised by Incumbent 

winners is $458,472, to losers’ $375,147, or a 1.2 to 1 

advantage. 

• 	 The average PAC fundraising by Incumbent winners 

was $405,889 to losers’ $296,880, or a 1.4 to 1 advantage. 

• 	 The average personal money spent by winning Incumbents over losers was $37,187 to $13,300, or a 2.8 to 1 

advantage. 

Fundraising Ratios – Senate 

Chart L is a consolidated summary by source of all the 

money raised by Senate candidates for the period 1992-

2000. See Appendix Chart L. It is also the chart used to 

calculate the fundraising ratios between Incumbents and 

Challengers shown. These ratios highlight the financial 

advantage wealthy Senate candidates enjoy. 

Senate Incumbents Re-elected 

• 	 The total average dollars raised by the 114 Incumbents 

was $3,645,716 to Challengers’ $1,954,314, or 1.9 to 1 

advantage. 

• 	 The average Individual money raised by Incumbents is 

$2,372,222 to Challengers’ $1,246,913, or a 1.9 to 1 

advantage. 
20 


• 	The average PAC fundraising by Incumbents is 

$1,033,111 to Challengers’ $177,723, or a 5.8 to 1 advantage. 

• 	 The average personal money spent by losing Challengers over Incumbents was $529,678 to $240,383, or a 2.2 

to 1 advantage. 

Senate Incumbents Defeated 

• 	The total average dollars raised by the 16 Senate 

Challengers defeating Incumbents was $7,648,320 to 

Incumbents’ $6,603,849, or a 1.2 to 1 advantage. 

• 	 The average Individual money raised by Incumbents is 

$4,802,136 to Challengers $3,840,384 or a 1.3 to 1 advantage. 

• 	The average PAC fundraising by Incumbents is 

$1,653,568 to Challengers’ $665,568, or a 2.5 to 1 

advantage. 

• 	 The average personal money spent by Challengers over 

Incumbents was $3,142,368 to $148,145, or a 21.2 to 1 

advantage. 

Senate Open Seats 

• 	The total average dollars raised by winners was 

$5,907,596 to the losers’ $3,610,001, or a 1.6 to 1 advantage. 

• 	 The average Individual money raised by winners was 

$3,056,486 to the losers’ $2,615,166, or a 1.2 to 1 advantage. 

• 	 The average PAC fundraising by winners was $921,385 

to the losers’ $534,394, or a 1.7 to 1 advantage. 
21 


• 	 The average personal money spent by winners over 

losers was $1,929,725 to $460,441, or a 4.2 to 1 advantage. 

National Party Committees 

Chart M shows the total “Hard” and “Soft” money 

raised by the three Republican and three Democrat 

national party committees combined for the 2001-02 

Election Cycle. See Appendix Chart M. “Soft money” 

represented approximately 43% of the net money raised by 

Republicans and 57% of the net money raised by Democrats. The passage of the Bipartisan Campaign Reform Act 

has stripped away all this “soft” money (roughly $250 

million) from each political party. 

The Fundraising Matrix (see Appendix Chart N) 

shows within various giving ranges the approximate 

number of new donors each party would have to find in 

order to make up for the loss in “soft” dollars mandated by 

law. When these numbers are compared to the figures 

shown in Chart A: Donor Matrix, it becomes crystal clear 

that it is a practical impossibility for either party to 

recruit enough new donors to make up for the loss of “soft” 

dollars. Both political parties would literally have to 

double their existing donor bases. Absent the occurrence of 

some cataclysmic event, doubling the size of either party’s 

donor base is simply impossible. 

In fact, the heightened level of fundraising competition that is certain to occur within each party as a result of 

the loss of “soft dollar” revenue is more likely to shrink 

rather than expand either party’s existing donor base. 

Why? Because the increased intensity in inter-party 

competition for dollars within both political parties is more 
22 

likely to turn-off proven donors faster than new donors can 

be recruited. In other words, over the long run, in an 

attempt to recover the lost “soft dollar” revenue, it is 

almost certain that the internal fight for dollars will result 

in “smothering by over solicitation” a large number of the 

“geese” that have traditionally supplied the “golden eggs,” 

supporting the activities of both parties. 

As already noted, the fundraising market for both 

political parties is simply too small and the new restrictions too severe for all the candidates and party committees to prosper under the new law. Over time, both parties 

are likely to shrink in size and influence − and shrink 

significantly. Many reformists have worried that some 

loophole might be discovered that would undermine their 

handiwork. To the contrary, the wolves of “reform” did 

their work well. There are no escape hatches or loopholes. 

And contrary to popular belief, this is not good news for 

America. 

Part 3 

The charts in this section graphically demonstrate 

that the restrictions imposed by Congress have been 

counterproductive, empowering the rich and reducing the 

competitiveness of the political arena. These unintended 

consequences of Buckley v. Valeo are thus contrary to the 

spirit of the Preamble of the Constitution which begins 

with the words, “We the people,” meaning, “we the sovereigns” not “we the subjects.” To the Framers, sovereignty 

meant the right of citizens to govern themselves free from 

the interference of some oppressive central authority. As 

stated by James Monroe, “The introduction, like a preamble to a law, is the Key of the Constitution. Whenever 
23 

federal power is exercised, contrary of the spirit breathed by 

this introduction, it will be unconstitutionally exercised, 

and ought to be resisted by the people.” If in politics money 

is speech, then the question looms large: How can government, in a free society, abridge its collection and disbursement without, at the same time, destroying the 

rights of citizens to govern themselves? 

House Re-election Results 

Chart O shows the election rates for House Incumbents and Challengers for the whole country, the old 

confederacy (eleven southern states), and the balance of 

the country without the south. See Appendix Chart O. 

Given that the old confederacy emerged from the civil war 

as a rock-solid single party geographic area, and that this 

single party affiliation did not seriously begin to change 

until the latter part of the twentieth century, Charts O(1), 

P(1) and Q(1) exclude the old confederacy. See Appendix 

Chart O(1); Appendix Chart P; Appendix Chart P(1); 

Appendix Chart Q; and Appendix Chart Q(1). 

It is important to note that the Court’s Buckley v. 

Valeo decision also had a repressive impact on elections in 

the south, but given the long time domination of a single 

party in this area, the impact is not as seemingly dramatic. As a consequence, the results for the south are 

shown separately. This separation makes it easier to 

clearly reveal the devastating impact of the Supreme 

Court’s Buckley v. Valeo decision on the rest of the country. 

The impact of the High Court decision on House races, 

for the period 1976–2000, is to push the re-election rate for 

House Incumbents to 95.4% and slash the chances of a 

Challenger candidate defeating an Incumbent by 60.7% 
24 

(see Appendix Chart O(1)).Over this same time period, the 

margin of victory for House Incumbents also substantially 

changed as follows: the number of extremely competitive 

House races dropped by 42.9%; the number of competitive 

races dropped by 47.1%; the number of semi-competitive 

races dropped by 39.8%; the not competitive races dropped 

by 39.3% and the no-contest races (those with a winning 

margin of 15% or more) shot-up by a remarkable 25.4%. 

Buckley v. Valeo’s Impact on 

Senate Re-election Results 

The impact of the Supreme Court’s Buckley v. Valeo 

decision on Senate elections is very much the same as on 

House elections. See Appendix Chart S; Appendix Chart 

S(1); Appendix Chart T; and Appendix Chart T(1). The 

Senate Incumbent re-election percentage increased by 

13.3%, while the percentage of Challengers winning 

dropped by 37.4%. 

Like House Incumbents, Senate Incumbent’s margin 

of victory in the no-contest category (those won by a 

margin of 15% or more) shot-up by 32%. During the same 

time period, extremely competitive Senate races dropped 

by 18.8%; the number of competitive Senate races dropped 

by 20.5%; the number of semi-competitive Senate races 

dropped by 32.5%; the number of non-competitive Senate 

races dropped by 12.7%. 

Clearly, the Supreme Court’s Buckley v. Valeo decision 

has had a devastating impact on both Senate and House 

elections and the Bipartisan Campaign Reform Act will 

only make things worse. This prediction is supported by a 

June 27, 2003 news release put out by The Center for 
25 

Responsive Politics which found that 94% of winning 

congressional candidates out-spent their losing opponents. 

Only four House challengers defeated incumbents in 2002. 

Election Comparison – President, Senate, House 

Charts U(1) and U(2) provide detailed analysis of the 

Non-Competitive and Competitive Categories shown in 

Chart U. See Appendix Chart U; Appendix Chart U(1); 

Appendix Chart U(2). Charts U(1) and U(2) emphasize the 

striking difference in the competitiveness of Presidential 

races and Senate and House races. In the NonCompetitive Category (races won by a margin of 10% or 

more) 36.9% of Senate races are won by a wider margin 

than the Presidential contest. In the House, the margin is 

an incredible 70.4% greater. 

In the Competitive Category (races where the victory 

margin is between 0-4.9%) there are 19.8% fewer competitive Senate races than Presidential races and 60.3% fewer 

competitive House races. 

What is a Reasonable Amount 

of Campaign Funding? 

In July of 1758 running as a challenger candidate, 

George Washington spent about $195 to win election to the 

Virginia House of Burgesses. The voting results were as 

illustrated in Chart V. See Appendix Chart V. 

In his first successful election to office, George Washington spent roughly $0.25 per vote cast. This $0.25 

adjusted for inflation in 2000 dollars (for an exact calculation see S. Morgan Friedman www.westegg.com) is worth 

approximately $2.40. Using George Washington’s actions 
----------------------------- ------------------------------

26 

as the frame of reference, the following is an analysis of all 

the actual federal elections spending in the 1999-2000 

election cycle compared to what would have been spent if 

General Washington’s spending standard adjusted for 

inflation had been followed. See Appendix Chart W. 

Adjusting George Washington’s spending for inflation 

and using this adjusted figure as the standard of measurement, the total spent by all candidates and party 

committees at the federal level during the 1999-2000 

election cycle is only 65% of what the Father of our country would have spent, and back in 1758, Washington did 

not have to pay for the high cost of mass media. 

----♦-- -

CONCLUSION 

Political party organizations are a natural offshoot of 

democracy – an essential concomitant. They were devised 

not only to promote certain ideas and interests, but also to 

curtail the influence of unbridled wealth functioning 

autonomously. A political party is no more than a group of 

like-minded people who combine their resources to elect 

people to public office. When allowed to operate without 

restriction, they can match or even exceed the investment 

of a single rich person or small group of wealthy individuals, who otherwise might be able to buy an election – for 

themselves or for candidates who support their interests. 

In the kind of democracy defined at the Philadelphia 

convention, the rich were not supposed to dominate 

government in the way the aristocracy had dominated it in 

colonial times. Even the English House of Commons was 

filled with wealthy country squires who promoted their 

own interests until a two-party system began to provide 
27 

the means for less wealthy commoners to enter the political arena in support of other agendas. 

We owe much to our two-party political process. It has 

protected America from the curse of multi-party, coalition 

government and from plutocracy. Our competitive twoparty political process is one of the fundamental strengths 

of American democracy. This Court should recognize that 

the restriction of the Bipartisan Campaign Reform Act and 

the Federal Election Campaign Act will bring our political 

parties to the brink of ruin through limiting their First 

Amendment association rights. 

Respectfully submitted, 


CLARK BENSEN


3112 Cave Court 


Lake Ridge, Virginia 22192 


(703) 690-4066 


(Counsel of Record) 

APPENDIX* 


* Data used to create Appendix Charts: Since 1920, the Clerk of the 

House of Representatives has collected and published the official vote 

counts for federal elections from the official sources among the various 

states and territories. 

Since 1976, the Federal Election Commission (“FEC”) has received 

financial reports containing all receipts and disbursements as required 

by the Federal Election Campaign Act. The FEC information collected 

since 1992 is in an electronic format that is downloadable from the 

Internet. 

Utilizing the public information available from the Clerk of the 

House since 1920 and the FEC since 1992, two electronically formatted 

and uniquely categorized databases were created – one for General 

Election Voting Data and one for Campaign Financial Information. All 

charts and graphs in this Brief are the products of these compiled, 

electronically formatted and uniquely categorized databases. Copyright 

registrations for both databases have been submitted to the U.S. Patent 

& Trademark Office and are currently pending.