During the weeks leading up to New York’s recent election, the media exploded with headlines about favor-seeking campaign donors. Improprieties were vigorously denied, but even mere allegations such as these are disturbing.
Richard Nixon famously said that Americans had a right to know if their president was a crook. (He was, but that is another story.) More to the point here is the corollary: The public has a right to know if campaign contributions influence their elected officials’ decisions.
It is a tricky issue. After all, how can anyone gauge what factors tug at a public official when she is casting a vote or supporting a policy? All candidates for public office—from city council to president of the United States—must raise money to run an effective campaign, and every elected official has authority or influence over decisions that impact their constituents, contributors included. Mayoral candidates routinely accept donations from those with business before city agencies. Governors and legislators also take contributions from so-called special interests. And district attorneys are routinely supported by the legal community. So there is always going to be a skeptic, fairly or not, who tries to connect the dots between the contribution and the decision.
The usual reform proposals—lower contribution limits or even public matching funds of private donations—do not address the heart of the problem. Short of total funding of campaigns by public funds, there seems to be only one solution—an outright ban on candidates directly asking for contributions and learning contributors’ identities. Only if there is a complete firewall between candidates and donors can the public be certain that campaign dollar signs are not dancing in the elected official’s head.
This proposal is not as out-of-the-box as it might seem. In New York, we already ban certain candidates from asking for campaign donations. State court rules prohibit judicial candidates from asking for political contributions. NY Ct. Rules §100.5(A)(5). This ban is fairly common throughout the country, and the U.S. Supreme Court has given its approval. Judges, after all, are expected to be as objective as humanly possible. A violation can lead to a range of sanctions, including removal from the bench.
Police who run for office are also barred from soliciting or receiving contributions, and a violation is actually a crime. NY Elec. Law §17-110. This ban is over a hundred years old, from the days when the local police commissioner and his minions acted as Tammany Hall accomplices in getting out the vote and stifling opposition. Life has changed dramatically, but the law is still on the books.
In both examples, campaign committees of friends and colleagues step up to the plate. The candidates, however, are kept in the dark.
Judicial candidates face this issue in New York with little practical effect because, for good or bad, many of their races are relatively uncontested. And few police actually run for office, so the law’s impact is hard to gauge. One notable example just occurred, however. Suffolk County Police Commissioner Tim Sini (who I represented during his campaign) just ran and won for Suffolk County District Attorney. Sini was barred from asking anyone for money. Yet, his campaign committee raised $1.5 million. To be sure, without the candidate’s direct involvement it was not easy. But the firewall did not prevent his campaign from getting the job done without him. As a result, there are no suspicious dots to connect between donors and the new district attorney.
An across-the-board ban on candidate solicitation would allow them to focus on the issues, liberating them from the arduous task of dialing for dollars. More importantly, it would free elected officials from even considering a donor’s concerns. And voters would have a much higher comfort level in knowing their public officials were making decisions wholly on the merits.
State or local officials should favor this ban—it would make their lives a lot easier and protect their reputations. Short of that, candidates can simply decide to voluntarily opt out of the fundraising grind. This reform would boost the public’s confidence in our elected officials—and that certainly would be welcome news.
Jerry H. Goldfeder is a special counsel at Stroock & Stroock & Lavan. He teaches Election Law at Fordham Law School and the University of Pennsylvania Law School, and previously served as New York Attorney General Andrew Cuomo’s special counsel for public integrity.