Bush and Dukakis on crime [picture of Bush and Dukakis with text of Bush & Dukakis on Crime]. Bush supports the death penalty for first-degree murderers [picture of Bush with text of Supports Death Penalty]. Dukakis not only opposes the death penalty, he allowed first-degree murderers to have weekend passes from prison {Dukakis picture with text of opposes Death Penalty, Allowed Murderers to Have Weekend Passes]. One was Willie Horton, who murdered a boy in a robbery, stabbing him 19 times [picture of Willie Horton, with text of Willie Horton on screen]. Despite a life sentence, Horton received 10 weekend passes from prison [picture of Horton under arrest by police with text of Horton Received 10 Weekend Passes from Prison]. Horton fled, kidnapped a young couple, stabbing the man and repeatedly raping his girlfriend [picture of Horton under arrest by police with text of Kidnapping, Stabbing, Raping]. Weekend prison passes. Dukakis on Crime [picture of Dukakis with text of Weekend Prison Passes; Dukakis on Crime][political message paid by National Security Political Action Committee].

In Spring, 1988, the upcoming presidential general election looked grim for Vice President George Bush. Seeking to succeed his popular predecessor, Ronald Reagan, Bush appeared on the surface to be a long shot. No sitting vice president since Martin Van Buren in 1836 had been elected in his own right short of presidential assassination or death.

Bush's problem was more than historical precedent, though. As a man, he inspired little public confidence. Bush was a cautious politician with little vision. Even conservatives in his own party never fully trusted the Texas man. He was too moderate, too patrician, and too boring for their tastes.

Facing him was a Democratic opponent, Governor Michael Dukakis, who looked very strong. Dukakis had pulled off what was being called the "Massachusetts Miracle," a stunning revival of economic fortunes in a liberal state previously derided as "Tax-achusetts." Early national public opinion polls showed Dukakis with a 17 percentage point lead over Bush. Some Democrats gleefully debated who would earn Cabinet positions in a Dukakis White House.

Below the surface of Dukakis' advantage over Bush, however, lay a volatile public that would upset the conventional campaign wisdom and usher in a surprise outcome. Unbeknownst to outside observers, Bush operatives had organized a series of focus groups in Paramus, New Jersey with so-called Reagan Democrats. These small group discussions with swing voters were designed to test possible Bush campaign messages.

At the beginning of the conversations, group participants held a generally favorable view of Dukakis, based on his demonstrated leadership and accomplishments in Massachusetts. Slowly, though, voter sentiments turned more negative as key information uncovered by Bush operatives was revealed. How would you feel, the moderator asked, if you knew that as governor of Massachusetts, Dukakis had vetoed legislation requiring teachers to say the Pledge of Allegiance at the beginning of the school day? Not so good, came the group reply.

What about Dukakis' record on crime? During his term of office, Dukakis' prison administration had released on furlough a convicted black murderer named William Horton. While free, the immate had brutally raped a white woman and terrorized her husband. Again, the group response was negative. They had not known those aspects of the Dukakis record and the information made them feel much less positive about Dukakis.

Within weeks, the Bush general election strategy was finalized. Republicans would attack Dukakis' record as governor of Massachusetts. In their view, the man was too liberal, not patriotic, and soft on crime. The Horton furlough was symptomatic of all that was wrong with Dukakis. Bush campaign director Lee Atwater later would boast to party officials, "By the time this election is over, Willie Horton will be a household name."

The only remaining question for Bush strategists was how to get their anti-Dukakis message out before the general public. If they directly attacked Dukakis, their campaign could suffer a backlash from people upset over negative campaigning. That tactic could risk their quest for the presidency. Increasingly, in the 1980s, the American public had grown weary of attack politics. Negative ads and tough rhetoric made the country feel badly about itself. Politicians who employed such tactics sometimes saw public support for their campaigns disappear over night.

Caught between their need to place negative information about Dukakis before the public and their desire to avoid a backlash against going on the attack, Bush operatives decided on a two-track system. The official campaign would attack Dukakis' crime credentials and record as governor of Massachusetts. The public would have to be educated about the deficiencies of the "Massachusetts Miracle." Ads would be broadcast and speeches delivered emphasizing previously-unknown information about Governor Dukakis.

At the same time, however, taking advantage of a loophole in campaign finance rules, outside groups would run a second campaign that was much tougher. The outside track would feature "brass knuckles" tactics that would appeal to the basest instincts of the American public on the subject of race. This unauthorized and uncoordinated campaign would say things and run advertisements that could not be said by the official Bush organization.

In so doing, Bush's presidential effort would train a generation of campaign operatives how to run a negative campaign. Its "two-track" approach would become a model of how to exploit campaign finance laws and use outside groups to deliver hard-hitting messages on behalf of the candidate. Over the course of the following decade, this strategy would become commonplace in American elections.

Bush was not the first presidential candidate to rely on so-called independent expenditures, direct campaign spending advocating the election of a particular candidate that is not coordinated with the official campaign. As long as outside individuals and groups do not consult with the official candidate or his staff, or coordinate any of their campaign activities, they can spend whatever sums of money they want supporting or opposing candidates for federal office.

It was a strategy that had been made popular in presidential elections by Bush's predecessor Reagan. Following the Watergate scandal in the early 1970s, in which large, secret contributions to President Richard Nixon had been used to finance illegal break-ins and dirty tricks against political opponents, Congress had enacted a new system of campaign finance designed to equalize the playing field between the two parties and eliminate large, secret contributions.

Among the most important features of this new system was public disclosure. Contributions to political candidates had to be disclosed in periodic reports filed with a new federal agency, the Federal Election Commission. The idea was that secrecy was bad for the electoral process and that voters should be made aware of who was financing election campaigns. Given the possible corrupting impact of money in politics, citizens needed basic information on contributors and expenditures.

Watergate reforms also imposed a $1,000 limit on the amount any individual could contribute to a single candidate in each election cycle. The fear was that in the earlier era of unlimited campaign contributions, wealthy interests were buying influence by donating hundreds of thousands of dollars to particular candidates. The potential for abuse in this area -- which had been demonstrated vividly by the Watergate-era scandal -- led reformers to impose a clear limit on contributors and insist that wealthy people could not funnel large sums of money to individual candidates.

At the same time, the playing field between candidates was made equal by providing spending limits in presidential elections. In return for accepting public subsidies for the nominating and general election campaign, candidates had to agree to abide by caps on how much they could spend on their campaigns. In 1976, for example, the first campaign after Watergate, candidates Jimmy Carter and Gerald Ford each were given the identical amount of $22 million to contest the general election.

However, from the standpoint of reformers, one vexing problem remained. Legislation had to be careful not to restrict freedom of expression. One of the hallmarks of American democracy was freedom of speech and freedom of electoral advocacy. Running for office and commenting on the qualifications and stances of those who did run for office were time-honored American practices. Restrictions on what happened during election campaigns must safeguard constitutionally-guaranteed rights.

Shortly after Congress passed its historic campaign finance legislation in 1974, a constitutional challenge arose. Senator James Buckley of New York sued, arguing that the new rules violated freedom of expression. Because the legislation limited what candidates could spend and what contributors could give, Buckley argued, the new law was unconstitutional.

Slowly, the case made its way through the courts. In 1976, the Buckley v. Valeo lawsuit reached the Supreme Court and was decided. In its landmark decision, justices upheld the idea of public disclosure. Secrecy, the justices argued, had a corrosive effect on the political system and therefore it was important for voters to know who was funding candidates for office.

One thousand dollar limits on individual contributions and five thousand dollar limits on political action committee contributions also were upheld on grounds of protecting against corruption. It was unfair for millionaires to be able to give so much more than people of average means. Avoiding even the appearance of corruption justified this limit on individual expression.

More complex, however, was the notion of spending limits. Here, the majority of justices equated spending money with expressing one's opinions. Given the crucial role that freedom of expression held for election campaigns, several justices felt they could not limit spending unless there were a clear and discernible social good to be obtained. In a compromise solution, the justices rules that as long as candidates voluntarily entered the system of public finance and accepted public subsidies, they could be subject to spending limits. However, groups and individuals not affiliated with the official campaign and who did not coordinate their activities with the candidate would be free to spend whatever they wanted.

It was out of this compromise language that was born the loophole of independent expenditures. Groups that were truly independent were allowed to spend unlimited amounts of money on direct electoral advocacy because the Supreme Court did not want to limit freedom of expression. Candidates who voluntarily chose to accept public funding for their campaigns obviously could be limited in their spending, but not outside groups. It was a decision that would have remarkable consequences for later presidential campaigns.

The first presidential campaign to test this ruling on independent expenditures was in 1980. Conservative groups supportive of Republican party nominee Reagan made known their intention to spend millions of dollars in uncoordinated, independent expenditures. They would attack President Jimmy Carter's governing record and extol the virtues of the GOP nominee.

In their eyes, Carter was a disaster. Not only was the economy in shambles, and inflation and unemployment running far too high, the incumbent president was pro-choice on abortion, in favor of women's rights, and supportive of unpopular affirmative action laws.

Reagan, in contrast, was in favor of nearly everything they cherished. The California governor supported tax cuts and a smaller federal government. He opposed what conservatives believed was a treaty giving away the Panama Canal, which the United States had built. Reagan sympathized with conservative's social policy agenda on race, abortion, and equal rights.

Immediately following this announcement, both Common Cause, a citizens lobby that had championed campaign finance reform, and the Federal Election Commission challenged the legality of these independent expenditures on grounds that such spending by outside groups exhorting voters to support or oppose particular candidates represented a violation of federal rules limiting the amount any individual or organization could donate to a candidate. After a federal judge rejected this claim as an unconstitutional restriction on the First Amendment right of free speech, an appeal was made to the Supreme Court. Deadlocking 4 to 4 on the case, the high court in effect let the former ruling hold, which legalized independent expenditures.

The second major court challenge came in 1985, when the Supreme Court on a 7 to 2 decision, struck down a federal provision limiting the ability of political action committees from spending as much as they wanted independent of candidate organizations. The case involved two organizations -- the National Conservative Political Action Committee and the Fund for a Conservative Majority -- which had spent massive amounts of money on behalf of Reagan's 1984 presidential campaign.

The latter organization, for example, had funded a widely-broadcast television ad called "Morning in America," which extolled Reagan's performance as president. The country was back, the commercial proclaimed. Times were prosperous and people were feeling good about themselves. No longer was the country being pushed around by tin-horn dictators around the world.

By the time the campaign ended, $20 million had been spent by independent groups. Of that total, $15.8 million was devoted to supporting Reagan and about $4.2 million went toward helping Democratic candidate Walter Mondale.

When the case went before the Supreme Court, Justice William Rehnquist wrote for the majority that there was no compelling government interest that warranted a restriction of First Amendment rights. Justice Byron White demurred, saying the First Amendment allows the right to speak but not the right to spend. Paid speech was not the same as free speech.

These two Supreme Court decisions made an immediate impact on presidential elections in the 1980s. By freeing group expenditures from spending limits, as long as they truly were independent, large amounts of money started flowing into the election process. Since the GOP historically had a stronger base among big businesses and wealthy individuals, independent expenditures advantaged Republicans more than Democrats. Indeed, such spending arguably could be said to have helped the GOP win the presidency in 1980 and 1984.

It mattered little to the courts that the egalitarian goal of leveling the playing field between the two parties by allowing them to spend the same amount of money on electoral advocacy was compromised through one-sided independent spending by outside groups. In this and other cases, justices clearly indicated that freedom of expression was more important than equity of political discourse. One-sided expenditures would play an even more crucial role in the 1988 presidential contest.

Emboldened by the Reagan experience and with access to large sums of money, conservative groups continued their advocacy of Republican presidential candidates. In 1988, independent expenditures for the Republican party ($13.7 million) outnumbered those on behalf of Democrats ($2.8 million) by an even wider margin than before. Not only did such spending give Bush a financial advantage, it provided a strategic benefit that yielded massive dividends for the candidate.

As demonstrated by the Reagan success, presidential elections were dominated by television advertising. Reagan had swept to victory in 1980 and 1984 in part through the power of electronic advocacy. Nearly two-thirds of the overall campaign budget was devoted to political commercials. Increasingly, candidates were discovering, electoral agendas and voter impressions could be dominated through a clever combination of attack ads and favorable news coverage.

Taking this lesson to heart, Bush operatives used the feedback obtained from their Paramus, New Jersey focus groups to develop a hard-hitting strategy against Dukakis. The official Bush campaign devoted much of its energy and financial resources to negative television ads and news coverage skewering Dukakis' record on crime, taxes, and the environment, among other things.

For example, an ad known as "Boston Harbor" maligned Dukakis' stated claims to be a strong environmentalist. One of the things Bush was most worried about was his own weakness on environmental issues. As a former oil-state representative, Bush did not have good credentials in this area. He never had argued very strenuously on behalf of such matters, and often had supported legislation designed to weaken public protections. On the surface, Dukakis appeared to have a significant edge in this area.

Yet Bush's advertisements attacked the heart of this claim. If Dukakis was such a strong environmentalist, the ad asked, why was Boston Harbor so polluted? Featuring visual images of garbage floating in the harbor, the commercial undermined a possible Dukakis strength and in the process defused what could have been a troublesome issue for the vice president.

The centerpiece of this attack strategy, though, was the Horton furlough. From September 21 to October 4, 1988, the hawkish National Security Political Action Committee (NSPAC) and its arm Americans for Bush broadcast an ad about Horton entitled "Weekend Passes" that criticized Dukakis' record on fighting crime. Headed by former Joint Chiefs of Staff Thomas Moorer, the NSPAC was devoted to promoting Republican candidates who promised a strong defense, firm moral values, and tough crime laws.

Their first ad did not use the menacing mug shot of Horton that made him look, in the eyes of the ad's creator Larry McCarthy, like "every suburban mother's greatest fear." That picture might arouse the ire of network censors, who could refuse to run controversial ads by independent groups. However, after the ad cleared media scrutiny, McCarthy quietly substituted a second version that graphically cited the Horton case and used the now-controversial mug shot of the felon.

The commercial was a vintage attack spot. It opened with contrasting pictures of Bush (smiling) and Dukakis (looking grim), while the announced intoned, "Bush and Dukakis on crime." The commercial contrasted Bush's support for the death penalty with Dukakis' opposition and pointed out that the Massachusetts governor "allowed first-degree murderers to have weekend passes from prison."

At that point, the threatening-looking mug shot of Horton appeared on the screen and the announcer informed viewers that Horton murdered a boy in a robbery and despite a life sentence, received a weekend pass from prison. While on one of his 10 such furloughs, Horton kidnapped a young couple, stabbed the man, and repeatedly raped the man's wife. The ad closed with the punchline: "Weekend prison passes. Dukakis on crime."

On September 22 and following, news stories began appearing that told the tragic tale of Angie and Clifford Barnes, the woman raped and man assaulted by Horton. While on leave from a Massachusetts prison, Horton had broken into their house. According to the victims, for 12 hours, Barnes was "beaten, slashed, and terrorized" and his wife raped.

Having spent several weeks blanketing the nation with the Horton story, the official Bush campaign started broadcasting its "Revolving Door" ad on October 5. Scripted by Bush media advisor Roger Ailes, the commercial made no specific mention of Horton nor did it show a photo of the felon. But it reiterated the point that Dukakis was soft on crime and had a lenient furlough policy. Using visual images of prison immates slowly moving in and out of a revolving gate, the ad voice-over proclaimed that "Dukakis had vetoed the death penalty and given furloughs to 'first-degree murderers not eligible for parole. While out, many committed other crimes like kidnapping and rape.'"

October news stories about the "Revolving Door" ad explicitly mentioned that Barnes and Cuomo, the sister of the youth murdered by Horton, were appearing on a nation-wide speaking tour that visited Illinois, Texas, California, and New York, among other states. Most of these articles did not point out that the two-million dollar tour was funded by a pro-Bush independent group known as the Committee for the Presidency. Barnes also was a guest on a number of television talk shows, such as Oprah Winfrey and Geraldo Rivera.

Shortly thereafter, a political action committee broadcast two "victim" ads featuring Barnes and Cuomo, respectively. Speaking into the camera, Barnes told the story of the rape and assault, and complained, "Mike Dukakis and Willie Horton changed our lives forever....We are worried people don't know enough about Mike Dukakis."

Cuomo meanwhile argued that "Governor Dukakis's liberal furlough experiments failed. We are all victims. First, Dukakis let killers out of prison. He also vetoed the death penalty. Willie Horton stabbed my teenage brother nineteen times. Joey died. Horton was sentenced to life without parole, but Dukakis gave him furlough. He never returned. Horton went on to rape and torture others. I worry that people here don't know enough about Dukakis's record."

The Horton strategy was remarkably effective for Bush. Observers hailed it as a textbook example of attack campaigning. Bush got most of the advantages of attack (such as pinning negative impressions on his opponent) without suffering much of a backlash for the attacks. For example, CBS News/New York Times surveys revealed that until the last week of the campaign, as many people blamed Dukakis as Bush for the negative tone of the campaign.

One of the things that made the ad strategy so successful was the favorable free news coverage that was stimulated. An analysis of network news coverage in 1988 found that newscasts ran segments from the "Revolving Door" ad 10 times in October and November, making it the most frequently-aired commercial of the campaign. Overall, 22 segments about Bush's crime ads were rebroadcast during the news, compared with four for Dukakis's ads. Only once was the deceptive information from Bush's crime ads challenged by reporters.

By amplifying Bush's claims, news reporters gave the ads even greater legitimacy than otherwise would have appeared. News accounts quoted election experts who noted that Bush's tactics were effective and that Dukakis' failure to respond was disastrous. Because these assessments appeared in the high credibility framework of news broadcasts, they came across as more believable than had they been aired only as paid advertisements.

Not only were these ads successful at dictating news coverage, research also demonstrated their ability to influence voters. People who said they saw the "Revolving Door" spot were more likely to report an effect on their policy priorities. Those exposed to the commecial were most likely than others to cite crime and law and order as the most important problems facing the nation. This result also is reflected in voter shifts during the course of the campaign. The percentage citing Bush as "tough enough" on crime went from 23 percent in July to 61 percent in late October. During the same period, the percentage of those feeling Dukakis was "not tough enough" rose from 36 to 49 percent.

These ads were effective on the crime issue, but they also held another advantage for Bush. The spots aroused racial fears as well. Owing to Horton's visage, made clear in "Weekend Passes" and network news coverage, race was an obvious factor in how voters saw the crime spree. After all, Republicans had picked the perfect racial crime, that of a black felon raping a white woman.

Experimental research drawing on the Horton case demonstrates that viewers saw the story more as a case of race than crime. According to researchers, subjects who were exposed to news broadcasts about the Horton case responded in racial terms. The ad "mobilized whites' racial prejudice, not their worries about crime." Viewers became much more likely to feel negatively about blacks in general after having heard the details of the case. It was an attack strategy that worked well on several different levels for Republicans.

From the standpoint of campaign finance rules, the most interesting question during the aftermath of the 1988 presidential campaign was whether the two-track Bush strategy had broken the law on independent expenditures. From the outside, it was clear the Bush campaign and outside political action committees had engaged in ad and news tactics that dovetailed very nicely.

The first Horton ad had been run by the independent group, Americans for Bush, not the official Bush campaign itself. Indeed, when Bush media advisor Ailes put together his crime ad, he was careful not to use the name Horton or include any photos of the black felon. After Democrats protested Bush's blatant use of the race card, Ailes replied that outside group ads were using the Horton picture, not the "Revolving Door." This gave the Bush camp plausible deniability that helped its candidate avoid public condemnation for racist campaigning.

Yet soon, Democrats would test the proposition that these efforts truly were uncoordinated. For them, the coincidence in campaign tactics appeared far too convenient as to have been accidental. Using federal campaign rules as their guide, the Ohio Democratic party and a group called Black Elected Democrats of Ohio filed a complaint with the Federal Election Commission alleging that the National Security Political Action Committee violated the law on independent expenditures.

According to the complaint filed in May, 1990, the distinction between spending by NSPAC and the official Bush campaign had been violated. It was legal for NSPAC to expend funds criticizing Dukakis and supporting Bush's election only if the expenditures were independent and uncoordinated between the two organizations. Any spending that was made "in cooperation, consultation, or concert, with, or at the request or suggestion of, a candidate, his authorized political committees, or their agents," represented an illegal "in-kind contribution" in excess of federal contribution limits.

This complaint led to an official FEC investigation into the relationship between NSPAC and the Bush campaign. Various top officials of both organizations were deposed by government lawyers and a variety of documents subpoenaed from each group. Several interesting facts were uncovered that cast doubt on the independence of the NSPAC expenditures.

For example, Larry McCarthy, the NSPAC media consultant who worked for Americans for Bush and created "Weekend Passes," was a past senior vice president of Ailes Communications, Inc. (ACI), the main media consultant for the Bush campaign. According to an affidavit filed by McCarthy, he had worked at ACI prior to January, 1987. After that time, he continued to handle projects on "a contractual basis with ACI" through December, 1987, at which point he became Senator Robert Dole's media consultant.

During 1988, McCarthy confirmed that he had several contacts with Ailes. Some of these were "of a passing social nature," such as "running into one another in restaurants or at airports." In none of these encounters, McCarthy said, did he "discuss anything relative to the Bush presidential campaign, NSPAC or political matters."

But there were two encounters that were more substantive in nature. In June, 1988, shortly after being hired by NSPAC as a media consultant, Bush consultant Ailes called McCarthy on the phone. Ailes apparently had heard McCarthy was being hired to produce political commercials for NSPAC. The Bush consultant told McCarthy that "prior to learning of my relationship with NSPAC he was considering subcontracting with me to produce media spots for the Bush campaign." McCarthy told him that he "could not speak to him relative to any matters pertaining to the campaign, including media or strategy, because [he] was on retainer with NSPAC."

Ailes' version of the conversation was that he had called McCarthy to tell him "he had 'blown it' because the Bush campaign had considered using McCarthy for some comparative advertising. I explained to him that was now absolutely impossible because of his work for an independent expenditure group."

The second encounter came in October. At that point in the Fall campaign, McCarthy interviewed Ailes for a feature in the Gannett Journal. However, McCarthy testified that "nothing was discussed relative to NSPAC nor any of the media spots which [he] had produced for NSPAC."

The FEC investigation furthermore uncovered that Jesse Raiford of Raiford Communications, Inc., a former employee of ACI who was responsible for post-production editing of the "Weekend Passes" spot, "simultaneously received compensation from NSPAC and the Bush campaign, and that he had expended NSPAC funds for the production of the Willie Horton ad."

These were exactly the types of connections that Democratic critics had anticipated when they filed their complaint. The Bush campaign had gotten great mileage out of its claims to have had no role in producing "Weekend Passes." Both the content and timing of that ad was the work of an outside group, Bush officials routinely proclaimed. Such a defense helped deflect critics who felt Bush was using unfair and racist appeals.

Yet despite evidence of communication between the two organizations, the FEC Commissioners deadlocked 3 to 3 on finding illegal coordination based on the Ailes-McCarthy phone call. According to the key commissioner, Thomas Josefiak, who was the swing vote on this particular matter, "explanations of [Ailes' and McCarthy's] actions were plausible and reasonably consistent. Their conduct, even as explained, demonstrated some bad judgment that risked the appearance of or provided the opportunity for coordination....However foolish or deserving of criticism, the brief, isolated and insubstantial contact between respondents' agents during the campaign did not appear to involve any communications that, by content or timing, could be said to represent coordination."

Similarly, on Raiford's dual employment between the two organizations, the FEC rejected arguments about coordination because Raiford "performed technical tasks -- e.g., organizing film crews, bookkeping, camera operation, post-production and editing work -- for NSPAC and the Bush campaign, and played no role in any substantive or strategic decisions made by either organization." In the end, a majority of FEC Commissioners concluded there had been no illegal coordination between the two campaigns. In the eyes of the federal agency, the NSPAC's Horton expenditures were legal and independent of Bush.

With the FEC decision failing to find fault with the Horton ad, there has been an explosion of independent expenditures on the part of outside interest groups and political parties. Featuring direct electoral advocacy of particular candidates, these efforts have changed the nature of recent elections. It now has become common for political action committees to run ads, conduct polls, and sponsor research designed to affect voters' preferences at election time. Candidates used to be the only people to run ads at election time. Now, individuals, outside groups, and even political parties routinely employ independent expenditures.

Political parties have become especially adept at using independent expenditures. Since the 1996 Supreme Court decision, Federal Election Commission v. Colorado State Republican Party, the courts have allowed political parties to spend whatever they want on independent expenditures funded by so-called "hard money" contributions. No longer limited to individuals and interest groups, parties can engage in any of the types of independent expenditures used by others as long as the spending is not coordinated with outside groups.

Unlike the candidates, though, who are limited to $20,000 from an individual and $15,000 from a political action committee in any election cycle, parties can spend whatever they want on independent ads. As long as the spending promotes "party-building," a category which now has been broadened to include most common electioneering activities, there are practically no restrictions on how independent expenditures can be spent.

This ruling has freed parties to broadcast ads in individual campaigns exhorting citizens to vote for or against specific candidates, or transfer money to state party organizations who can spend the money however they want. In 1996, for example, both the Clinton and Dole campaigns relied on their respective national party committees to finance ads outside the spending limits of their own organizations.

In the 1998 election, the GOP shifted tactics. Rather than engaging in independent expenditures, it transferred money to its state parties for use in public education campaigns. This money helped local party affiliates broadcast spots tailored to the particular state in which the race was being conducted. It also had the additional advantage of disguising how much money overall was being spent on the campaign.

The result was that when the total spending in the last 20 days of the campaign were added up, the top independent spenders were interest groups. For example, the biggest spender was the National Rifle Association ($1.626 million), followed by the American Medical Association ($849,205), the Democratic Senatorial Campaign Committee ($802,000), League of Conservation Voters ($751,476), Campaign for Working Families ($271,230), National Republican Senatorial Committee ($255,150), National Abortion and Reproductive Rights Action League ($234,872), Campaign for America ($233,015), National Education Association ($190,149), Planned Parenthood ($142,262), Democratic State Central Committee of California ($108,876), and the National Right to Life Committee ($99,143).

Having studied the Horton expenditure, it is obvious why the practice of independent expenditures has exploded. This loophole gives the parties an ability to avoid accountability for their expenditures and to disguise the particular funds being used to finance electioneering activities. Especially when money is transferred from national to state parties, it is difficult to keep track of cash flows and virtually impossible to prove coordination took place between parties, candidates, and outside groups. Short of incriminating documents like "tell Joe to start running an ad on September 30," it is easy to collude on independent expenditures without much legal jeopardy.

In the 1988 Horton case, for example, evidence of phone calls, past employment, and dual employment between two organizations did not substantiate the charges of official coordination. Without any smoking gun or explicit memos, it is easy for outside groups informally to dovetail their efforts with that of the candidate and thereby get around spending limits designed to equalize the playing field between presidential candidates who accept public funding.

This creates serious problems in modern campaigns. Rather than competing fairly in the presidential general election, one candidate or one party today often has significantly more resources than the other, due at least in part to independent expenditures. Such spending skews the nature of election discourse and gives one side unfair electoral advantages.