Does the Constitution Truly Require Pay-to-Play? The New Campaign Finance Lawsuit in New York City

Campaign finance is an area of municipal ethics that is often treated as a separate field entirely. But they’re closely related. Both involve the conflict between private and public interest, and especially gifts to elected officials. The principal difference is that campaign contributions are a perfectly legal way of giving to elected officials, which makes the problem a bit more complex.

I began administering the public campaign financing program in New Haven, Connecticut last year. For me, it was an area of municipal ethics I knew little about, and this was a great way to learn it. But I haven’t written about campaign financing here, because it’s a bit off the track.

I would, however, like to say a few things about a suit against the New York City Campaign Finance Board, filed by attorney James Bopp, Jr, general counsel of the James Madison Center for Free Speech, who brought down Vermont’s public campaign financing program in 2006. I think the suit's implications are frightening.

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One of the arguments Bopp has made is that the new limits placed on contributions made by those who do business with the city not only violate the free speech and equal protection clauses of the U.S. Constitution, but they also discriminate against minorities. The limits are low for a city of this size: $400 for contributions to mayoral candidates, $200 for council candidates.

Here’s how it supposedly works. Minorities tend to live in relatively poor neighborhoods, so that people in a minority candidate’s district will not be able to give as large sums as those in a white candidate’s district. Therefore, minority candidates are relatively dependent on people outside their district who have deep pockets, that is, people who do business with the city.

Of the thirteen original plaintiffs, one is African-American and four are Hispanics. Two of these five plaintiffs say they would like to run again for City Council, but cannot due to the new limits. More former, minority candidates have joined the suit.

There are arguments on the other side, such as the fact that the matching funds ratio has increased, making smaller contributions more valuable than before. But I would like to focus on the basic idea behind Bopp’s argument: the dependence of minority candidates on large contributions from those who do business with the city.

Is a system where minority candidates are exceptionally dependent on people who do business with the city a good system? Do we want any officials, minority or otherwise, to owe their election to people who do business with the city? Doesn’t this create the perception that minority officials are owned by those they contract with the city and those whose developments they aid, that government is one big pay-to-play machine?

If what Bopp says is true, then our political system is essentially corrupt. It requires city officials to depend on the very people who are supposed to depend on the city. Does our Constitution truly require this situation? Is any attempt to fix the system Bopp describes unconstitutional?

According to an article in the New York Times, the suit is being funded by lobbyists and the real estate industry, although only one lobbyist is included among the plaintiffs.

If Bopp is in the right, I believe that our political system is in the wrong. We cannot have officials, minority or otherwise, who depend so much on those they do business with in their official capacity.

Robert Wechsler
Director of Research-Retired, City Ethics

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