Many years ago, waiting in the anteroom of Dr. Howard Dean’s
office, I struck up a conversation with Al Gore. Each of us was
under the misimpression that the other was there for a medical
checkup. The reality was quite different. Al was, of course, quite
a powerhouse in Democratic circles. I was, immodest though it may
sound, a mover and shaker in libertarian ranks. Both Al and I were
sufficiently prescient to know that Howard would likely be the
Democratic front-runner for the 2004 nomination. Ergo, we both
wanted to help formulate his views on the major issues.
I had the earlier appointment with Dr. Dean. It went like
this:
Howard: “Hi, Bob. Nice to see you. Any particular ailments?”
Me: “Howard, let’s not beat around the Bush — the guy you’ll be
running against in 2004. Here’s the deal. I’d like access,
influence and input. In return, I’ll have my corporation spend
$250,000 on ‘issue ads’ supporting you just before the New
Hampshire primary. By the way, I ran into Al Gore in your waiting
room. He doesn’t have the money I have, so he’ll probably offer to
endorse you. Believe me, his endorsement translates into less than
a $250,000 value.”
Howard said he’d think it over.
Right after I departed, Al had his appointment. I later learned
from a secret source that it went like this:
Howard: “Hi, Al. Nice to see you. Any particular ailments?”
Al: “Howard, let’s not beat around the Bush — the guy you’ll be
running against in 2004. Here’s the deal. I’d like access,
influence and input. In return, I’ll endorse you just before the
New Hampshire primary. By the way, I ran into Bob Levy in your
waiting room. He’s got a bundle of money so I suppose he offered to
have his corporation spend about $250,000 on “issue ads” that
support you. Believe me, my endorsement translates into more than a
$250,000 value.
Well, we now know which deal Howard picked. In retrospect, that
choice was lucky for him and for me, because the U.S. Supreme
Court, on December 10, decided that my deal — exchanging something
worth roughly $250,000, shortly before an election, in return for
political access and influence — is a crime. By contrast, Al
Gore’s deal — exchanging something worth roughly $250,000, shortly
before an election, in return for political access and influence —
is perfectly okay. Undoubtedly, somewhere in the Court’s 300-page
opinion, Justice Sandra Day O’Connor explains that apparent
paradox.
Then again, maybe not. Sad to say, only Justices Antonin Scalia
and Clarence Thomas seem to grasp that politics is essentially a
bargain between the candidate and the electorate. From a
constitutional perspective, there should be no distinction between
each of these “political deals”: (1) I promise to vote for a
candidate if he promises to take positions that favor me. (2) I
promise to help convince my friends to vote for a candidate if he
promises to take positions that favor me. (3) I promise to write
letters to the editor in support of a candidate if he promises to
take positions that favor me. (4) I promise to pay for an ad that
supports a candidate if he promises to take positions that favor
me. (5) I promise to donate money to a candidate if he promises to
take positions that favor me. Nor should it matter if the
candidate’s end of the bargain included a commitment to meet with
me, listen to my views or, to put it crassly, give me access,
influence, and input.
Whether the voter pledges a single vote, a public endorsement,
payment for an ad, or a contribution of money so the candidate can
pay for his own ad, each of those acts has the same end: getting
the candidate elected. And each act operates through the same
means: political speech. The exchange of speech for promised
conduct by the candidate if he’s elected is not corrupt. It is
democracy at work.
What, then, should be illegal? Payoffs to a candidate —
secretly contributed and received, then spent on personal pleasures
like a new car. Those are corrupting and they should be illegal —
but not something of value provided to a candidate, where the value
is fully disclosed, then set aside in a segregated fund that can be
used only for constitutionally favored political speech. The First
Amendment does not allow treating the second as if it were the
first. If that’s too much for the Court to fathom, perhaps Congress
can get it right.
