You are here
Threats to Officials' Focus on the Public Interest
Thursday, July 28th, 2011
Robert Wechsler
It is sometimes hard to see what campaign finance has to do with
government ethics, that is, conflicts of interest. Campaign finance
involves candidates getting elected, while conflicts of interest
have to do with decisions made by elected officials. What they have in common is that both
areas are intended to help officials act for the public interest rather
than their own.
Two recent judicial decisions show how far campaign finance law has been moving away from government ethics law. Why? Because the First Amendment has had a deleterious effect on judges' vision of campaign finance law, so that they seem to be seeing something else there, some sort of illusion or mirage. A new article by Gene R. Nichol, Jr., "Citizens United and the Roberts Court's War on Democracy" (Georgia State University Law Review, Vol. 27, 2011) is what inspired this post.
The first decision is in N.C. Right to Life v. Leeke, 535 F.3d 274, 335–36 (4th Cir. 2008). Here is a frightening excerpt from the dissent (p. 93-94):
What is amazing here is that the organization did not even have to pay to run the ads. In fact, the organization could have created cheap, digital dummy ads, like so many people are doing these days, and spent very little money to get widespread support for their position. And according to the majority on the Fourth Circuit panel, this would be perfectly legal, even though clearly unethical in every sense of the word.
Citizens United took this a step further. Now, not only a PAC or individual, but any corporation, or its lobbyist, can make such threats and, presumably, that too would be legal. In any event, their threats would now be taken very seriously, because there is now no limit to how much a corporation can spend to protect its interests, even if it means attack ads on candidates across the country. Although everyone is concerned about the spending of corporate money to influence elections, the very fact that such money can be spent makes it unnecessary to actually spend it, if threats will do the trick.
Even if the Fourth Circuit decision were to be effectively overturned, and the creation of such conflicts of interest via express threats found not to be protected by the First Amendment, there are more subtle and indirect ways to convey such threats. As long as there are no limits on independent expenditures, the threat to our elected officials' focus on the public interest is also without limits.
Those who oppose campaign finance laws often talk about their unintended consequences. There are also unintended consequences to scrapping these laws. Or are these consequences intended?
Robert Wechsler
Director of Research-Retired, City Ethics
203-859-1959
Two recent judicial decisions show how far campaign finance law has been moving away from government ethics law. Why? Because the First Amendment has had a deleterious effect on judges' vision of campaign finance law, so that they seem to be seeing something else there, some sort of illusion or mirage. A new article by Gene R. Nichol, Jr., "Citizens United and the Roberts Court's War on Democracy" (Georgia State University Law Review, Vol. 27, 2011) is what inspired this post.
The first decision is in N.C. Right to Life v. Leeke, 535 F.3d 274, 335–36 (4th Cir. 2008). Here is a frightening excerpt from the dissent (p. 93-94):
-
Farmers [for Fairness] created advertisements directly opposing
certain legislative candidates. Instead of simply running the
advertisements during election time, Farmers scheduled meetings with
legislators and screened the advertisements for them in private.
Farmers then explained that, unless the legislators supported its
positions, it would run the advertisements that attacked the
candidates on positions unrelated to those advocated by Farmers. The
majority interprets this activity as the "group feel[ing]
passionately about an issue and discuss[ing] it." Ante at 30. This
could not be further from reality. The record reveals that Farmers
did not discuss its central issue, deregulation of the hog industry,
in its advertisements. Instead, it threatened and coerced candidates
to adopt its position, and, if the candidate refused, ran negative
advertisements having no connection with the position it advocated.
This activity is not "pure political speech," ante at 46; it is an
attempt to use pooled money for behind-the-scenes coercion of
elected officials. ...
The Farmers example shows exactly how independent expenditures can create the same appearance of corruption and potential for actual corruption as do excessively large contributions. The only difference between these two methods (other than, after today’s decision, that one may be regulated and the other may not) is that the independent expenditures made by Farmers had the potential to influence candidates through threats and reprisals, while excessively large direct contributions have the potential to influence candidates by rendering them beholden to the donor. In short, the method may differ, but the corrosive effect on the electoral process remains the same.
What is amazing here is that the organization did not even have to pay to run the ads. In fact, the organization could have created cheap, digital dummy ads, like so many people are doing these days, and spent very little money to get widespread support for their position. And according to the majority on the Fourth Circuit panel, this would be perfectly legal, even though clearly unethical in every sense of the word.
Citizens United took this a step further. Now, not only a PAC or individual, but any corporation, or its lobbyist, can make such threats and, presumably, that too would be legal. In any event, their threats would now be taken very seriously, because there is now no limit to how much a corporation can spend to protect its interests, even if it means attack ads on candidates across the country. Although everyone is concerned about the spending of corporate money to influence elections, the very fact that such money can be spent makes it unnecessary to actually spend it, if threats will do the trick.
Even if the Fourth Circuit decision were to be effectively overturned, and the creation of such conflicts of interest via express threats found not to be protected by the First Amendment, there are more subtle and indirect ways to convey such threats. As long as there are no limits on independent expenditures, the threat to our elected officials' focus on the public interest is also without limits.
Those who oppose campaign finance laws often talk about their unintended consequences. There are also unintended consequences to scrapping these laws. Or are these consequences intended?
Robert Wechsler
Director of Research-Retired, City Ethics
203-859-1959
Story Topics:
- Robert Wechsler's blog
- Log in or register to post comments