Threats to Officials' Focus on the Public Interest
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.<br>
<br>
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., "<a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1883862" target="”_blank”">Citizens
United and the Roberts Court's War on Democracy</a>" (<span class="textlink">Georgia State University Law Review, Vol. 27,
2011</span>) is what inspired this post.<br>
<br>
The first decision is in <a href="http://pacer.ca4.uscourts.gov/opinion.pdf/071438.P.pdf" target="”_blank”">N.C.
Right to Life v. Leeke</a>, 535 F.3d 274, 335–36 (4th Cir. 2008).
Here is a frightening excerpt from the dissent (p. 93-94):<ul>
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. ...<br>
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.</ul>
From a government ethics point of view, by threatening to run attack
ads unless the legislators voted to deregulate the hog industry in
North Carolina, Farmers for Fairness created a conflict. Legislators
who felt it was in the public interest to oppose deregulation were
forced to choose between the public interest and their personal
interest in getting re-elected.<br>
<br>
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.<br>
<br>
<a href="http://www.law.cornell.edu/supct/html/08-205.ZS.html" target="”_blank”">Citizens
United</a> 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.<br>
<br>
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.<br>
<br>
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?<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
203-859-1959