The Federalist Society

We Already Have the Tools to Fight Illegal Influence

Free Speech & Election Law Practice Group Newsletter - Volume 3, Issue 2, Summer 1999

October 1, 1999

Bob Barr

"Exposing" the influence of "big money" in politics has become a virtual cottage industry in Washington. From Common Cause to Public Citizen, groups dedicated to disclosing the nefarious influence of campaign cash on the political process abound. While these groups have found a message that sells, their rhetoric frequently obscures the fact that we already have most of the tools we need to clean up our campaign system.

Such groups thrive on stumping for campaign finance reform as the panacea for everything that ails our political system. Unhappy with your high phone bill? Blame contributions by telecommunications companies. Concerned by the failure of environmental advocates to restrict the distribution of certain pesticides? You can thank contributions by the "chemical lobby" for that. Of course, contributions from "big tobacco" companies are so suspect, they can and are blamed for anything and everything.

This approach makes for good soundbites, but overlooks the obvious. There are numerous ways for one person, or a group of people, to acquire a level of influence over the political process that far exceeds their actual numbers. For example, organizations such as the National Rifle Association are able to influence the process because its membership is ready and willing to actively engage in grassroots politics. Another group might succeed in securing the support of a particular respected former House or Senate leader who moves its cause to the forefront. Still another association, such as groups that campaign against tobacco, may wield disproportionate influence because the news media flagrantly supports their goals.

In a very real sense, what I have just described is exactly what makes the American political system so effective. Political speech is one of the most cherished rights Americans have. That speech may take the form of wearing an elaborate costume and picketing the White House, or it may take the form of financially supporting a candidate who agrees with your views. For some, writing a check is a favored method of political speech. Others may prefer to fold and stuff mail or put up yard signs. Generally, those who complain about the process do so because they have been beaten at it, not because they truly believe the system is broken.

Of course — as the classic example of yelling fire in a crowded movie theater points out — all types of speech run into legal limits at some point. What then, should those limits be for political speech, such as making a campaign contribution? And, where those limits exist, who should be responsible for enforcing them?

First, it should be an ironclad rule of the American political game that only our citizens are allowed to play it. Fortunately, it already is black-letter law that foreign nationals cannot make campaign contributions in America.Under current law, it is illegal for a foreign national to contribute to federal political candidates. Unfortunately, laws that ban foreign nationals from making contributions have been enforced only sporadically by the Department of Justice ("DOJ") and the Federal Election Commission ("FEC"). Even worse, the laws against American citizens soliciting or receiving contributions from foreign sources have been virtually ignored by both agencies. Based on this record, for all practical purposes, it is still a crime to offer, but not to accept or solicit, a foreign contribution.

Secondly, federal bribery and extortion statutes can and do make a clear and sensible distinction between acceptable political speech and illegal attempts to influence government decisions. Essentially, our bribery laws turn on the presence or absence of a specific quid pro quo. When a government action — such as a vote or contract award — is made in return for a campaign contribution or other favor, a quid pro quo has occurred, and the law has been violated. However, if someone makes a donation hoping the favor will be returned, no law has been violated.

This legal structure appropriately punishes illegal actions where they actually occur, while resisting prosecution based solely on the appearance of impropriety. Since their enactment, bribery and extortion statutes have been interpreted by the courts to outlaw more subtle forms of influence peddling than blatantly offering cash in return for a favor. When both parties understand the rules of the exchange, they can be prosecuted regardless of whether they negotiate an explicit arrangement. The resulting legal structure can be a powerful tool against political corruption if it is wielded properly.

Under current law, failure to combat illegal influence rests not with an inadequate legal structure, but with weak enforcement of those laws. The FEC is crippled by partisan deadlock and a lack of resources. Furthermore, it enforces a Byzantine system of law and regulation that creates a minefield for candidates to negotiate. The result is that the Commission polices the campaign system in such a way that relatively trivial and technical matters become the target of massive inquiries, while far more significant violations go unpunished due to a lack of time, will, and resources. FEC enforcement becomes the all-too familiar regulatory game faced by all businesses in this era: come in and agree to a fine, because if we proceed, we can always find some technical violations.

Therefore, if we want to get serious about cleaning up campaign finances, it makes far more sense to focus our resources on areas where they can make a significant impact. The best way to do this is to aggressively enforce our laws against soliciting or receiving bribes. When an official takes a contribution in return for an official action or decision, a criminal law has been broken. In such cases, both the recipient and the donor of the bribe can and should be prosecuted. The Department of Justice already has the capability, resources, and legal structure it needs to accomplish this task. Further complications of existing law proposed by many proponents of "campaign finance reform" would only detract from this core mission, by turning attention away from direct quid pro quos, and toward an ill-advised campaign to make a traditionally rough and tumble electoral system appear clean.

When it comes to preventing the appearance of impropriety, no legal structure is an adequate substitute for prompt disclosure, an aggressive press, an opposing campaign, and an interested public. For this reason, campaigns should be required to disclose contributions and expenditures on a real-time basis. Modern technology, such as the Internet and accounting software, would allow for this change without any major bumps. The resulting constant disclosure would be a far more powerful incentive to discourage contributions that don't meet the public's "smell test" than cumbersome new campaign regulations would be.

In the final analysis, our legal arsenal against public corruption is already extensive. Before we take steps that could make our election laws even more unenforceable than they already are, we should closely examine whether our existing laws against bribery, extortion, and foreign contributions are being consistently and effectively enforced.

* Congressman Barr represents Georgia's 7th Congressional District. Before being elected to Congress he served as a United States Attorney under Presidents Reagan and Bush. He is a member of the House Judiciary Committee.


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